The Supreme Court received two additional briefs in support of the petition for certiorari in Akbar v. United States, No. 15-1257 (Akbar CAAFlog case page).  The first from the National Association of Criminal Defense Lawyers (NACDL), here, supports the defense’s substantive argument in their petition asking for the SCOTUS to reverse its prior decision in Loving v. United States, 517 U.S. 748 (1996), which found the military’s capital sentencing scheme to be constitutional.  See prior coverage here.  The second from the Air Force and Navy-Marine Corps appellate defense shops, here, addresses the related issue, which is not directly addressed in the petition for certiorari, that trial defense counsel for the accused was not qualified, in accordance with prevailing standards, to handle a capital case.

3 Responses to “Amici Support Akbar v. US SCOTUS Cert. Petition”

  1. Dew_Process says:

    The proverbial “Pink Elephant” in this court-room is the fact that everyone seems to be ignoring the “Make Rules” Clause of Article I, Section 8, U.S. Const.  That could be a distinguishing feature between the aggravation scheme in Loving versus Ring and its progeny.  Using that power, Congress enacted Art. 36, UCMJ, which raises a collateral issue, viz., is there a viable basis for a difference constitutionally between civilian death penalty cases and military ones in the context of how an “element” is created.
     
    Considering the old adage, “Death is different,” there seems to be little difference when it is our own government seeking to kill, whether it be a civilian or member of the military. Congress certainly knows how to and did legislate “aggravating factors” in the UCMJ, see, Art. 106a(c), where they did just that. So, the government’s response – certainly to thump on the concept that the military is a “separate society” and the Make Rules Clause controls – will be interesting.

  2. Zachary D Spilman says:

    Apprendi repeatedly instructs in that context that the characterization of a fact or circumstance as an “element” or a “sentencing factor” is not determinative of the question “who decides,” judge or jury.

    Ring v. Arizona, 536 U.S. 584, 604-605 (2002).

    Marcum factors would seem to fail under the same logic as that advanced in the petition, as would the heightened terminal element burden for adultery.

    Furthermore, the petition wants the Court to label the aggravating factors as elements because only Congress can create elements. But the Court doesn’t have to call them elements to apply its capital jurisprudence. So – other than grabbing this as a pretext to invalidate the military’s death penalty system – why would SCOTUS play ball?

  3. Mike "No Man" Navarre says:

    Dew–I’ve got several pages on how the elements are only for Congress rule also applies to the military justice system.  it traces the history of military crimes from the time of the framers through Parker v. Levy.  I think the argument is relatively sound that the President doesn’t have the power to summarily create offenses.