CAAF will hear oral argument in the capital Air Force case of United States v. Witt, No. 15-0260/AF (CAAFlog case page), on Tuesday, April 26, 2016, at 9:30 a.m. As one of only six inmates on the military’s death row, Witt’s case presents the typical smorgasbord of issues raised in a capital case. However, next week’s oral argument will address only two issues, both of which were specified by the court:

I. Whether a court of criminal appeals sitting en banc can reconsider a previous en banc decision of that court pursuant to statutory authority, applicable precedent, or inherent authority?

II. Whether a decision of a court of criminal appeals sitting en banc can be reconsidered en banc when the composition of the en banc court has changed?

In 2005 a general court-martial composed of twelve officer members convicted Witt of the premeditated murder of a fellow Airman and his wife, and also of the attempted murder of another Airman, and sentenced Witt to death. About 18 months later the prosecution team published a detailed first-person account of the trial proceedings in the Air Force JAG Corps magazine, The Reporter (available here).

In 2013 Witt’s death sentence was set aside by the Air Force Court of Criminal Appeals sitting en banc (discussed here). The CCA unanimously concluded that Witt’s trial defense team was deficient in failing to investigate three areas relevant for the sentencing portion of the court-martial. But the court split 3-2 on the question of prejudice, narrowly finding that had Witt’s counsel not been deficient then the members might not have adjudged the death sentence. The CCA remanded for a sentence rehearing where Witt could have received another death sentence, a sentence of confinement for life without eligibility for parole, or the mandatory minimum sentence of confinement for life with eligibility for parole.

But then the Government sought reconsideration by the CCA, and in a dramatic reversal the court reinstated Witt’s death sentence in a second en banc decision issued in 2014 (discussed here). As it had in the first decision, the CCA again found that Witt’s trial defense counsel were deficient. But on the crucial question of prejudice the court split 4-2 to find that Witt was not prejudiced by his counsel’s errors, and accordingly it approved the adjudged sentence of death. This reversal of fortune was our #7 Military Justice Story of 2014.

Complicating the case, however, is the fact that the composition of the Air Force court changed from the first review to the second. The original decision involved five judges (Stone, Orr, Harney, Saragosa, and Marksteiner), with an additional ten judges not participating because of recusals, retirement, or their recent addition to the court. The reconsideration decision involved six judges (Helget, Harney, Saragosa, Marksteiner, Mitchell, and Peloquin), with an additional five judges not participating because of recusals, retirement, or recent addition to the court. Of the three judges who participated in both opinions (Harney, Saragosa, and Marksteiner), Judge Saragosa consistently voted to set aside the sentence, Judge Marksteiner consistently voted to affirm the sentence, and Judge Harney switched from first voting to set aside to later voting to affirm the sentence.

Witt asserts that a court of criminal appeals has no authority to reconsider an en banc decision. This argument is based on the language of Article 66(a):

Each Judge Advocate General shall establish a Court of Criminal Appeals which shall be composed of one or more panels, and each such panel shall be composed of not less than three appellate military judges. For the purpose of reviewing court-martial cases, the court may sit in panels or as a whole in accordance with rules prescribed under subsection (f). Any decision of a panel may be reconsidered by the court sitting as a whole in accordance with such rules. Appellate military judges who are assigned to a Court of Criminal Appeals may be commissioned officers or civilians, each of whom must be a member of a bar of a Federal court or of the highest court of a State. The Judge Advocate General shall designate as chief judge one of the appellate military judges of the Court of Criminal Appeals established by him. The chief judge shall determine on which panels of the court the appellate judges assigned to the court will serve and which military judge assigned to the court will act as the senior judge on each panel.

Article 66(a) (emphasis added). Witt’s claims that this language authorizes en banc reconsideration of a panel decision, but not en banc reconsideration of an en banc decision. Witt’s reasoning functionally renders any en banc decision final and impossible to reconsider for any reason. Like all human endeavors, however, courts sometimes make mistakes. But were CAAF to accept Witt’s reasoning then a CCA that acts en banc is stuck with the result.

As for the change in the court’s composition from the first en banc decision to the second, Witt makes relatively weak arguments that ultimately equate the changing composition of the court to a judicial lottery.

The Government, however, asserts that the first decision wasn’t an en banc decision at all, but rather was a decision of a mere panel of the Air Force court. This argument is based on the fact that some of the judges chose not to participate in the first decision. The appellant rightly highlights that the same choice was made in the second opinion (and so it too must also be only a panel decision), but that’s far from the only obvious flaw in the Government’s tortured claim that the first decision was not en banc. The CCA’s first decision is published on its website (available here) and clearly identifies itself as an en banc decision. Furthermore, the decision explains the reason for the absence of each non-participating judge; a nonsensical exercise for a mere panel of the court. Finally, if the five judges who decided the case the first time were merely acting as a panel then there must be an order appointing that panel (like the order for the current panel appointments), but the Government does not offer one.

Discussion of this contention by the Air Force Appellate Government Division during next week’s oral argument will likely be entertaining, if not a trainwreck.

The remainder of the Government’s arguments are lost in its insistence that the CCA’s first decision was a panel decision, except that the Government lands a hard blow by highlighting that CAAF itself once reconsidered a decision in a capital case (changing the result from affirming the death sentence to setting it aside) after a change in its own composition: United States v. Curtis, 44 M.J. 106 (C.A.A.F. 1996), reversed on recon., 46 M.J. 129 (C.A.A.F. 1997). The change in CAAF’s composition occurred with the death of Judge Wiss and the confirmation of his replace, Judge Effron.

Yet with next week’s oral argument limited to just the two specified issue, it’s hard to imagine that CAAF won’t order additional argument on Witt’s other, more substantive contentions if it finds no procedural error in the CCA’s successive considerations.

Case Links:
AFCCA decision (72 M.J. 727)
Blog post: AFCCA sets aside death sentence in Witt
AFCCA decision (73 M.J. 738)
Blog post: AFCCA reinstates the death penalty for Senior Airman Witt
Blog post: #7 Military Justice Story of 2014
Blog post: CAAF to examine the AFCCA’s reconsideration
Blog post: Oral argument limited to two issues
• Appellant’s brief (specified issues)
Appellee’s (Government) brief (specified issues)
Appellant’s reply brief (specified issues)
Appellee’s (Government) brief (specified issues
Appellant’s brief (other issues)
Appellee’s (Government) brief (other issues)
Appellant’s reply brief (other issues)
Blog post: Argument preview

2 Responses to “Argument Preview: United States v. Witt, No. 15-0260/AF”

  1. The Silver Fox says:

    But tell us how you really feel.

  2. SNLJAG says:

    SUPERPANEL!!!