CAAF decided the capital Air Force case of United States v. Witt, 75 M.J. 380, No. 15-0260/AF (CAAFlog case page) (link to slip op.), on Tuesday, July 19, 2016. In a short opinion the court sets aside the second decision of the Air Force CCA (that affirmed the sentence of death) and reinstates the first decision (that reversed the sentence of death), authorizing a sentence rehearing.

Judge Stucky writes for a unanimous court.

In 2005 a general court-martial composed of twelve officer members convicted Senior Airman 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.

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.

Because Witt had an approved sentence of death, CAAF’s review was mandatory (see Article 67(a)(1)), and the court specified two issues that questioned whether the AFCCA could reinstate the capital sentence in the way that it did:

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 today’s decision CAAF holds that a CCA does have the authority to reconsider en banc a prior en banc decision, however it finds that three of the AFCCA judges who participated in the reconsideration were disqualified from doing so.

Addressing the first issue – a CCA’s authority to reconsider en banc a prior en banc decision – Judge Stucky explains that:

As we have held continuously since the UCMJ was enacted, military appellate courts have the inherent authority to reconsider their own decisions. The CCAs Rules are not the basis for this conclusion, although they are consistent with it.

We hold, therefore, that the CCA sitting en banc had the authority to reconsider its own decision, consistent with CCAs R. 19.

Slip op. at 4 (citations omitted).

Yet whether the reconsideration was proper in this case is an entirely different question, as Judge Stucky notes that

The CCA first heard oral argument in this case on October 11, 2012. Witt I was issued ten months later, on August 9, 2013. Four judges, present for duty on that date, declined to participate in Witt I because of their arrival at the CCA well after oral argument and conference but shortly before the opinion issued. Three of those judges, however, subsequently participated in Witt II.

Slip op. at 4. This non-participation turned participation gives CAAF pause, and Judge Stucky explains that “although a judge has a duty not to sit when disqualified, the judge has an equal duty to sit on a case when not disqualified.” Slip op. at 5. Accordingly:

A judge who is present for duty does not have the discretion to not participate in an assigned case, absent exceptional circumstances not present here.

Slip op. at 5. Moreover, CAAF also finds “a problem of appearances and public confidence” in the CCA’s handling of this case:

Several judges present for duty declined to sit for the initial en banc consideration yet sat for reconsideration en banc and reversed the original result. The Government then opposed the defense’s motion to disclose the votes on the motion to reconsider and the motion was denied. Particularly in the unique context of capital litigation, this is exceedingly problematic.

Slip op. at 6-7. A footnote adds that “how a judge votes on a motion to reconsider is not part of the deliberative process and is subject to discovery.” Slip op. at 7 n.9.

Judge Stucky concludes that:

In Appellant’s case, three judges who were present for duty at the time Witt I issued but did not participate may have participated in the vote to reconsider and did participate in Witt II. We hold that the failure of these judges to participate in Witt I amounted to de facto disqualification and, that they were therefore prohibited from further participation in the case.

Slip op. at 7.

As a result, CAAF sets aside the decision in Witt II and reinstates the decision in Witt I. Witt now faces a sentence rehearing (where he could again receive a death sentence, he could receive a sentence of confinement for life without eligibility for parole, or he could receive the mandatory minimum sentence of confinement for life with eligibility for parole).

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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

9 Responses to “Opinion Analysis: CCA judges who refused to participate in the first decision were disqualified from participating in the second decision in United States v. Witt, No. 15-0260/AF”

  1. A Random Jag says:

    Not an appellate attorney here, but the AF can still certify the underlying IAC issues that led to the reversal to CAAF, right?

  2. Huig de Groot says:

    I don’t think the AF can certify. They made the election to seek reconsideration at the CCA instead of seeking certification to CAAF within 60 days of Witt I.
    See CAAFlog coverage of United States v. Williams, 75 M.J. 244 (C.A.A.F. May 3, 2016) Concluding that the Air Force Appellate Government Division’s successive motions for reconsideration by the Air Force Court of Criminal Appeals did not toll the 60-day deadline in CAAF’s rules for the filing of a certificate for review, a unanimous CAAF dismisses the certificate for review as untimely filed.

  3. Tami a/k/a Princess Leia says:

    I would say no, since they never challenged the IAC finding, that holding is the law of the case.  This decision can be appealed to SCOTUS, but not on the basis that AFCCA erred in finding IAC.

  4. Glen Hines says:

    I was in the same position the AF is now when I had the Quintanilla sentence rehearing in 2006 as TC.  It’s next to impossible for the G to get the death penalty again because now they’ll have to get new members, and although there’s a process under R.C.M. 810 to put all the previous findings evidence before the new panel, it just doesn’t have the same impact. Your playing tapes of having someone read the record.  It falls flat.  Plus, add in that Witt has likely been a good prisoner, etc., and it’s an uphill battle for the G. 

  5. The Silver Fox says:

    It’s all a charade for the judges and attorneys involved anyway.  The military hasn’t executed anyone since 1961.  Inmate Hasan notwithstanding, I don’t see that trend changing in the near future.  
    But, I have no doubt that President Trump would make us great at executing again.  So great, in fact, that we’d be tired of how great it was.    

  6. Zeke Kennen says:

    Footnote 9 is significant.  As I read it, all CCAs must now, upon defense request, disclose the identity of each participating CCA judge and also disclose that judge’s vote.  CAAF summarily rejected the government’s two-pronged argument for maintaining secrecy: 1) The identity and vote of a judge is not deliberative process privileged, and 2) CCA judges are not presumed to know and follow the law on that point.  I note that this seems to merely be discoverable information – not required to be disclosed without a request from the person with a due process interest in the case – i.e. the Appellant.  I wonder whether the CCAs will disclose voting data as a practice or whether they will wait for a defense request.  

  7. DCGoneGalt says:

    Silver Fox:  It goes against his position on the issue but we could always outsource our executions to China because, much like manufacturing, they do it quicker and cheaper.

  8. stewie says:

    Trump ties are made in China, so don’t see why he’d be against exporting other things there.

  9. Contract Lawyer says:

    The death penalty issues will work themselves out and we will one day return to greatness in a number of things.  If Hillary were president, she would likely go along because she loathes the military and the execution of a servicemember would be fine by her.  For Trump, it would be a more noble law and order purpose to it.  As for as the rehearing, I believe all things being equal, the sentence will be death.  That is the way it leans, even if we allow homosexuals and transgenders (not that there is anything wrong with that) on the panel.