The last person executed as the result of a court-martial was Army Private First Class John A. Bennett’s, whose convictions for the rape and attempted murder of a child led the Court of Military Appeals to observe that “seldom, if ever, have we been faced with a record which revealed a more vicious offense, or an accused who had less to entitle him to any consideration by the fact finders.” United States v. Bennett, 21 CMR 223, 225 (C.M.A. 1956).

Bennett was hanged in the boiler room of the United States Disciplinary Barracks at Fort Leavenworth on April 13, 1961. See Dwight H. Sullivan, The Last Line of Defense: Federal Habeas Review of Military Death Penalty Cases, 144 Mil. L. Rev. 1, 76 (1994) (citing James J. Fisher, A Soldier is Hanged, Kan. City Star, Apr. 13, 1961, at 7).

The military gallows have been quiet since then, but the military’s death row experienced a flurry of activity in 2016 with notable developments in four capital cases.

The first is United States v. Witt, 75 M.J. 380 (C.A.A.F. Jul. 19, 2016) (CAAFlog case page). Senior Airman Andrew Witt was sentenced to death in 2005 after a general court-martial convicted him of the premeditated murder of a fellow Airman and his wife, and of the attempted murder of another Airman. Shortly after the trial the prosecution team published a detailed first-person account of the proceedings in the Air Force JAG Corps magazine, The Reporter.

In 2013 Witt’s death sentence was set aside by the Air Force Court of Criminal Appeals sitting en banc on the basis 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 Government sought reconsideration and, in a dramatic reversal, the CCA reinstated Witt’s death sentence in a second en banc decision issued in 2014. This reversal of fortune was our #7 Military Justice Story of 2014.

CAAF’s review was mandatory under Article 67(a)(1), but the court limited oral argument to just two issues: Whether an en banc CCA can reconsider a prior en banc decision, and whether such reconsideration is permitted when the composition of the court changes from the first decision to the second. In a short and unanimous opinion issued in 2016 CAAF concluded that such reconsideration is allowed but that three judges who participated in the reconsideration were disqualified from doing so. CAAF set aside the CCA’s second decision and reinstated the first decision, remanding the case for a sentence rehearing where Witt could receive 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

The second notable capital case is United States v. Akbar, 74 M.J. 364 (C.A.A.F. Aug 19, 2015), cert. denied, 137 S. Ct. 41 (Oct. 3, 2016) (CAAFlog case page).

Sergeant Akbar attacked fellow soldiers in Kuwait in 2003, killing two and wounding 14 others. He was convicted and sentenced to death in 2005, the Army CCA affirmed the sentence in 2012, and CAAF affirmed the sentence in 2015, making the case our #5 Military Justice Story of 2015. CAAF’s decision highlighted the premeditated nature of Akbar’s fratricide, with Judge Ohlson explaining that:

there was no reasonable probability that the panel members would have acquitted Appellant or sentenced Appellant to something less than the death penalty had trial defense counsel presented their case in the manner now urged on appeal. First, Appellant’s murder of Army Captain (CPT) Christopher Seifert and Air Force Major (MAJ) Gregory L. Stone, and his attempted murder of other officers of the United States armed forces, was premeditated. Second, prior to committing this offense, Appellant had written incriminating passages in his diary, such as: “I may have to make a choice very soon about who to kill. . . . I will have to decide if I should kill my Muslim brothers fighting for Saddam Hussein or my battle buddies”; and, “I am not going to do anything about it as long as I stay here. But as soon as I am in Iraq I am going to kill as many of [my fellow servicemembers] as possible.” Third, Appellant committed this attack in Kuwait at the start of Operation Iraqi Freedom in an effort to hobble the American military’s ability to prevail in battle. Fourth, Appellant was thirty-one years old at the time he committed the offenses, had served in the United States Army for just under five years, and had attained the rank of sergeant. Fifth, both the sanity board and many of Appellant’s own experts concluded that Appellant was not suffering from a severe mental disease or defect at the time he committed the offense or at the time of testing. Sixth, Appellant was not intellectually deficient, as demonstrated by his engineering degree from a well-known university and his “extremely high, superior IQ.” And finally, even assuming that all of the information now provided by appellate defense counsel is true, we conclude that Appellant’s additional mitigation evidence is not sufficiently compelling to establish a substantial likelihood that the court-martial panel would have imposed a different sentence.

74 M.J. at 372, slip op. at 5-6 (marks in original). The Supreme Court denied certiorari on October 3, 2016, ending direct appellate review of Akbar’s convictions and death sentence.

The third case is United States v. Hennis, 75 M.J. 796, No. 20100304 (A. Ct. Crim. App. Oct. 6, 2016) (en banc) (discussed here), whose capital sentence was approved by the Army CCA in 2016.

In 2010 a general court-martial convicted Master Sergeant Timothy Hennis (U.S. Army Ret.) of three specifications of premeditated murder and sentenced him to death, our #2 military justice story of 2010. The case involved the gruesome rape and murder of Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty, and also the murder of their two daughters, in 1985. Hennis was tried three times for these crimes: twice by North Carolina authorities and then finally by a court-martial. The first trial resulted in a conviction and death seantence, but it was reversed by the North Carolina Supreme Court in 1988. A retrial resulted in an acquittal in 1989 and Hennis was reinstated in the Army and eventually transferred to the retired list where – like every other active duty retiree – Hennis remained subject to the UCMJ. But advances in DNA allowed investigators to determine with scientific certainty that sperm found in the body of the murdered woman came from Hennis, and he was recalled to active duty in 2006, tried by court-martial for the murders, convicted, and again sentenced to death.

The Army CCA unanimously affirmed the findings and sentence on October 6, 2016, concluding:

We are required to assess the proportionality of appellant’s death sentence. Under Article 66(c), UCMJ, we conclude the approved sentence is correct in law and fact. Further, under the circumstances of this case, including appellant’s rape of one of the murder victims, the vulnerability inherent in the young ages of the other two murder victims, and appellant’s mutilation of all three murder victims, we conclude the adjudged and approved death sentence fits the crimes of which he was found guilty. We further find “the sentence is generally proportional to those imposed by other jurisdictions in similar situations.”

Slip op. at 106 (citations omitted). The case now moves on to mandatory review by CAAF, though Hennis attempted to short-cut the process with a petition for extraordinary relief that asserted “an appearance the deck is stacked against [him] during the ongoing review of his death sentence.” CAAF denied the petition.

The fourth and final notable capital case from 2016 is an old one: the case of Army Private Ronald Gray.

Gray was convicted and sentenced to death nearly thirty years ago, on April 12, 1988. The Army Court of Military Review affirmed Gray’s death sentence in two opinions issued in 1992 and 1993. United States v. Gray, 37 M.J. 730 (A.C.M.R. 1992); United States v. Gray, 37 M.J. 751 (A.C.M.R. 1993). CAAF affirmed the sentence in 1999. United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999). The Supreme Court denied cert in 2001. Gray v. United States, 532 U.S. 919 (2001). President George W. Bush approved the death sentence in 2008 (our #4 Military Justice Story of 2008) but execution was postponed as extensive habeas litigation followed.

That litigation suffered a significant setback in final weeks of 2016. In an order dated October 26, 2016, U.S. District Judge Thomas Marten dismissed Gray’s petition for habeas corpus without prejudice, concluding that some of his claims were unexhausted in the military justice system. Then, on December 20, 2016, Judge Marten lifted the stay of execution and denied Gray’s request for a new stay.

While additional appeals are likely in the Gray case, his execution would be the first since Private Bennett was hanged in 1961. We’ll be watching.

5 Responses to “Top Ten Military Justice Stories of 2016 – #2: Military death row”

  1. Philip D. Cave says:

    Comment applies to this story and one of the honorable mentions.
    404 – Page not found!
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  2. Zachary D Spilman says:

    The link to the Reporter article about the Witt case has been updated. My fault for copying an old link without checking it.

    Link rot is a recognized problem in legal writing. Here, for example, is a 2013 New York Times article by Adam Liptak discussing how half of all links in Supreme Court opinions are broken: In Supreme Court Opinions, Web Links to Nowhere.

  3. Michael Korte says:

    “Link Rot” is also an excellent band name.  I once waited 3 hours in the pouring rain to get Link Rot tickets in Seattle. They opened for Nirvana and did not disappoint.

  4. stewie says:

    Please tip your waitress. Try the veal!

  5. K fischer says:

    Korte, you lie!  You lie big time!  I could not find “Link Rot” anywhere on the inter webs, and my interwebs research skills are impeccable.  However, you might have been referring to the late 80’s punk band “Crotch Rot” known for its critically acclaimed album “Who farted?”  They indeed disappoint…..