In 1988 Specialist Ronald Gray, U.S. Army, was convicted of the premeditated murder of two women, the attempted premeditated murder of a third woman, three specifications of rape, two specifications of robbery, two specifications of forcible sodomy, and also of burglary and larceny, contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation.

The members sentenced Gray to death, a dishonorable discharge, total forfeitures, and reduction to E-1. He is one of only four prisoners on military death row, our #2 Military Justice Story of 2016 (the others are Hennis, Akbar, and Hasan; Witt is pending a sentence rehearing that could return him to death row; Loving’s capital sentence was commuted).

Prior to Gray’s court-martial, in a wholly separate North Carolina proceeding, Gray pleaded guilty to the murder and rape of two additional women, and other offenses, for which he received three consecutive life sentences and five concurrent life sentences.

CAAF affirmed the findings and sentence in 1999 after hearing oral argument twice (that year and the year before). 51 M.J. 1. CAAF’s decision involved consideration of a great many issues. See 51 M.J. at 6-9 (index of issues). The Supreme Court denied certiorari in 2001. 532 U.S. 919. President Bush approved the death sentence in 2008.

Then came the habeas challenge. With a pro bono defense team, Gray raised 21 errors on collateral attack, many of which had been considered by the military appellate courts on direct review (and “when a military decision has dealt fully and fairly with an allegation raised in that application, it is not open to a federal civil court to grant [habeas] simply to re-evaluate the evidence. Burns v. Wilson, 346 U.S. 137, 142 (1953)). Gray also sought a writ of error coram nobis from the Army CCA, which is “a belated extension of the original proceeding.” United States v. Denedo, 556 U.S. 904, 912-913 (2009). Consideration of the habeas petition was then postponed pending resolution of the coram nobis petition.

The Army court denied the coram nobis petition (70 M.J. 646) and CAAF denied a writ-appeal (71 M.J. 300), both in 2012.

But there’s a twist. When the Army court denied the coram nobis petition, it did so on the basis that:

[Gray] cannot traverse these threshold requirements [for coram nobis relief] because there is, as a matter of law, a remedy other than coram nobis available to him. Although in our view petitioner’s right to habeas corpus in the military justice system has ended, this is not so for Article III courts. In fact, petitioner has filed a writ of habeas corpus in federal district court and the government does not dispute the jurisdictional basis for doing so. The merits of petitioner’s claims are now for the federal district court, rather than this court, to decide.

70 M.J. at 647-648. Put differently, the Army court denied coram nobis because of the availability of habeas.

The habeas petition resumed and, on September 29, 2015, U.S. District Judge J. Thomas Marten issued a hybrid dismissal of Gray’s habeas petition. Most of Gray’s claims were denied on the basis that they received full and fair consideration in the military courts, however the issues raised in the coram nobis petition were dismissed without prejudice because the military courts had never actually considered them.

The 10th Circuit reversed the hybrid dismissal, 645 Fed. Appx. 624, in 2016, finding that hybrid dismissal was an impermissible way to resolve the situation, and remanded with instructions. Pursuant to those instructions Judge Marten dismissed Gray’s entire habeas petition without prejudice on October 26, 2016. On December 20, 2016, Judge Marten lifted the stay of execution and denied Gray’s request for a new stay.

Gray then filed a second petition for a writ of error coram nobis in the Army court. The Army CCA denied the petition earlier this year in a published, en banc decision. 76 M.J. 579 (link to slip op.).

Gray then filed a writ-appeal at CAAF, and CAAF’s daily journal shows the following entry for September 6, 2017:

No. 17-0525/AR. No. 17-0502/AR. Ronald Gray, Appellant v. United States, Appellee. CCA 20160775. On consideration of Appellee’s motion to consolidate Docket No. 17-0502/AR with Docket No. 17-0525/AR, to construe the overlength petition for extraordinary relief in coram nobis in Docket No. 17-0502/AR as a writ-appeal petition, and to extend time to file an answer to the consolidated petitions in Docket Nos. 17-0502/AR and 17-0525/AR, of Appellant’s writ-appeal petition in Docket No. 17-0525/AR and Appellee’s answer to said writ-appeal petition, and of Appellant’s motion for leave to file an overlength petition in Docket No. 17-0502/AR, it is ordered that the motion to consolidate Docket No. 17-0502/AR and Docket No. 17-0525/AR is hereby granted. Docket No. 17-0502/AR is removed from this case and will not be used on any other case. Henceforth, Docket No. 17-0525/AR will be used on all future documents filed in this case.

The motion to construe the overlength petition for extraordinary relief in coram nobis in Docket No. 17-0502/AR as a writ-appeal petition, having now been consolidated with the writ-appeal in Docket No. 17-0525/AR, is hereby granted.

That the Court will not consider the current writ-appeal filed in Docket No. 17-0525/AR.

That the motion to file an overlength petition in Docket No. 17-0502/AR is hereby denied and the Court will not consider that pleading. This denial is limited to the length, not the merits of the overlength pleading and is therefore without prejudice to Appellant refiling a single, consolidated writ-appeal petition in Docket No. 17-0525/AR that complies with Rule 24(b) of the Court’s Rule of Practice and Procedure.

The motion for an extension of time to file an answer is hereby denied as moot.

Appellant shall file a consolidated writ-appeal petition not later than 10 days from the date of this order. Appellee may file an answer within 10 days after the filing of the writ-appeal petition. Appellant may file a reply within 5 days after the filing of Appellee’s answer.

*  Judge Ohlson is recused and did not participate in this case.

A new writ-appeal petition was docketed on Monday the 18th (timely because the court was closed on Saturday and Sunday, the 16th and 17th).

20 Responses to “Developments in the Ronald Gray case”

  1. stewie says:

    So ultimately we know that CAAF will say good to go. I assume the next step is to go back to the Supremes? Or is it to go back to Federal Court with a renewed Hab Pet?

  2. Cloudesley Shovell says:

    If Gray had been sentenced to life in prison, the appellate process would have been completed decades ago.  Decades.  Yet here we are, still litigating over this multiple murderer and rapist.  Just commute his military sentence already and hand him over to North Carolina.  I’m sure he’ll be treated just fine in that prison system as opposed to all the deprivation he is suffering in the federal system.
    –CS

  3. DCGoneGalt says:

    What CS said.  Why does the DOD waste all that time, money, and effort on death cases when death will not be carried out?  Death penalty abolitionists won the war not by outlawing the death penalty but by, nearly everywhere (including DOD, making it so expensive and difficult to carry out that it’s not worth doing IMO (except for TX).  And that’s not a value judgment, although I do think there are appropriate cases for death (such as Gray).  The long-term strategy carried out through legislation and courts by abolitionists was brilliant.  In the vast majority of states they can’t get a majority vote to abolish so instead they created piecemeal “common sense” changes, democratically and (mostly) through the courts, that collectively make it near impossible to carry out the death penalty.  
     
    Just commute it to life and let him live out his miserable life locked up in Leavenworth or NC.  

  4. Don Rehkopf says:

    DISCLAIMER:  I’ve worked on Gray off-and-on since his original certiorari petition to SCOTUS on his direct appeal in 2001 [16 1/2 years ago] and later when the federal habeas litigation was about to get going.
     
    Gray – like many (if not most) military death penalty cases, was infused with issues due to the lack of experienced counsel on both sides — some of which have been “fully and fairly” litigated, some not, hence the protracted litigation. One positive thing that has resulted from the Gray post-conviction litigation is that Congress enacted Art. 25a, generally mandating a 12 person panel in military death penalty cases. Gray himself however, was convicted by a 6 person panel, and whether this is “constitutional” has yet to be fully and fairly considered by the federal civilian courts.
     
    The CA detailed 15 members to his c-m; after voir dire, 6 remained. The Defense then moved “as a matter of equal protection and due process, to require that there be a panel of twelve persons and to delay this proceeding (sic) the appointment – or the detailing of enough members to get up to twelve.” [R. 768-69]. The prosecution opposed the motion, stating: “We agree with the court in this case.” [R. 769]. The MJ had ruled that a GCM only required 5 members and thus there was no impediment. The following exchange then took place:
     

    MJ: Well, I interrupted my thought merely because if the government were to be of the mind that they wanted to have twelve members, I certainly wouldn’t contest it. [emphasis added]
    TC: We are not, Your Honor.
    MJ: All right. Based upon the rationalization advanced previously, the motion for requirement of at least twelve members is denied. [R. 770].

     
    Historically, prior to and at the time of the Founding capital GCM’s were required to have a 13 member panel [There were no MJ’s back then] absent a demonstrable military exigency. And British precedent going back centuries had likewise mandated a 12 person jury in capital cases.
     
    As our amicus brief argued:
     

    The judge abdicated his role by ceding to the prosecutorthe authority to decide the Defense motion, when he stated, “[I]f the government were to be of the mind that they wanted to have twelve members, I certainly wouldn’t contest it.” [R. 770; emphasis added].   . . .
    It is unprecedented in criminal litigation, much less in a capital case, for the prosecutor to be given the choice of whether a capital defendant has a six person or a twelve person panel to decide his fate.   . . .
    In an adversarial criminal justice system, which our courts-martial practice surely is, to allow one of the litigants the arbitrary power to control the size of the forum adjudicating Petitioner’s life or death, is a miscarriage of justice of Constitutional dimensions.

     
    Ronald Gray was convicted and sentenced to death in 1988 – almost 30 years ago. Congress enacted Art. 25a presumably to cure “the Gray problem.” CAAF needs to address this issue “fully and fairly,” even if that “test” remains viable, which numerous commentators have questioned because the continuing viability of Burns v. Wilson, remains at issue.

  5. Jason Grover says:

    I’ll take the label as a death-penalty abolitionist. I’ll quibble that there is still the possibility of being convicted and executed in this country and that the country’s collective criminal justice systems would be better off simply taking the death penalty off the books, but I’ll agree that it is incredibly time-consuming and expensive to seek death.

    DCGoneGalt, perhaps the answer to your question why DOD wastes all the time, money, and effort on death penalty cases is because the true costs are hidden from decision-makers. There is no one command that has to list the total cost on this year’s budget. The defense organizations are buying the billets and the trial counsel are already paid for and nobody thinks to add up the true cost of millions of dollars spread among offices for decades of attorney-time. I probably worked on Walker’s initial brief for 75% of my time for a year and a half. One random O-4’s time in a defense shop. But when you add that to the over dozen attorneys that touched the case just on the appellate defense side over a appellate process over 15 years (1993 to 2008), and then add in the appellate government folks, the cost is staggering. But when the convening authority looked at it in 2008 and decided to referral the charges to a capital retrial, they were looking at the travel costs and experts, still a huge amount, but that convening authority didn’t pay for all the previous litigation or the later appellate proceedings. 

    Remember in the past 9 years, the Marine Corps has sought the death-penalty in two cases originally tried in the 1990’s (Quintanilla & Walker). 

  6. jagaf says:

    In my opinion, what CS and DCGG said.
     
    For DR though, I’m not familiar with the intricacies of the case but, based on what you posted, that doesn’t sound like judicial abdication to me. Instead, it sounds like the MJ had ruled already after having heard the motion from the DC and opposition from the TC. After having done so, something caused the MJ to question whether the TC was reversing position on previously stated opposition and the MJ, quite logically in my view, was open to revisiting the matter if the TC’s position was now in accord with the DC. Given that there was no prohibition on there being 12 members, why would the MJ not revisit the matter if the parties were now in agreement? However, when it was confirmed the TC’s position had not changed, the MJ left his prior ruling in place. If that is what happened, and it reads that way, I have a hard time with the proposition that “…the prosecutor [was] given the choice of whether a capital defendant has a six person or a twelve person panel to decide his fate…”
     
    Again though, the fact that we are still spending time and money litigating a conviction that was obtained when I was younger than my niece or nephews is ridiculous. Just let him have his four walls and be done with it.     

  7. stewie says:

    Other than retribution, there is zero value to the DP. There is zero evidence that it has a general deterrence effect, in fact, some research suggests the opposite. It doesn’t rehabilitate. I suppose it has specific deterrence in theory, but someone would have to see the rate at which murders sentenced to life without parole commit future murders vice those on death row. If it’s comparable, and I suspect it is, that argument goes away too.
     
    Protection of society isn’t really a good argument either.
     
    So we are left with “eye for an eye.”  And to get there, we spend tons of money, time and effort for something we overturn more than half the time anyways, and for something almost none of us know how to do correctly.
     
    And since we are talking about a person’s life, there is no just alternative to “streamline” or make the process faster or cheaper. I takes this long because collectively we recognize we need these procedural protections, not because “abolitionists” have somehow pulled a fast one.

  8. Charlie Gittins says:

    That someone is on death row having been convicted by a panel of 6 is pretty scary.  Even scarier, I guess is that they started with 13 and whittled it down to 6 without any new members being detailed.  In the Bozicevich case we went through 56 excused members to get our 12.  And the last one to make the 12 was the one who was the non-unanimous vote on findings, I am convinced.  In addition, the level of ignorance and stupidity of some of the 56 excused members was breathtaking.  Hard to believe that there were so many mouth breathers in the senior enlisted and officer ranks.   

  9. DCGoneGalt says:

    stewie and Mr Gittens:  Then why don’t we just get rid of it instead of wasting the time and resources on it when it’s all for pretend.  Death penalty litigation in the military is like running on a million dollar hampster wheel.  It’s expensive but it gets you nowhere.  

  10. stewie says:

    We should get rid of it everywhere. It serves no purpose, and it costs a lot of time, energy, and money.

  11. Concerned Defender says:

    I am in favor of the ability to use it and have it available for certain capital offenses. I do believe super-extra precautions must be in place, more on that another time.
    But to claim it’s not a deterrent or not cost effective at times is debatable.
    Getting an accused to plead to avoid the DP saves the government piles of money, millions of dollars in some cases, and erases many of the issues that would have otherwise been raised on appeal. I’ve seen a number of capital cases charged as DPs that end up as a plea and each of these probably saves tens or hundreds of thousands of dollars at the trial level. 
    Take SGT Bales, who pled to his crimes to avoid the DP.  Had it been a full contested trial you’d be looking at some 16 murders, and transporting dozens of Afghanis to the USA for perhaps weeks, translators, experts, and the whole mess.  What would that pricetag have been?
    I don’t recall exactly the price tag, but I was a prosecutor in an office on a murder contested murder trial, that transported several Afghani citizens to the USA.  I observed from a distance and was generally aware of the nightmare of logistics, background checks, 24/7 escorts, and other extremely expensive travel and security and per diem costs for a long period of time.  The number $1 million for that case stands out in my mind.  That case was appealed and lost at ACCA, and may go to CAAF.  
    Anyway, pleas do save money and correct possible errors on the front end and offer a certain outcome.

  12. slyjackalope says:

    Instead of getting rid of executions, why don’t we fix the system?  Congress could eliminate appellate review by intermediate appellate courts and require the Supremes to hear one appeal 6 to 12 months after the sentence is adjudged in all federal and military cases.  If the Supremes say everything is good to go, the President signs the death warrant whenever he decides to.  Unnecessary delay is what’s limiting deterrence.

  13. PitViper says:

    No one has mentioned, and I think it’s often overlooked, the difference between life on death row and living in general pop.  Death row is a miserable existence.  Life sentence gets you all kind of privileges, prison job, education, etc.  Huge difference.  Living on death row might be worse than death.  Living in gen pop, not so much.

  14. DCGoneGalt says:

    PitViper:  GenPop ain’t summer camp.

  15. stewie says:

    He didn’t say it was summer camp, but he is correct there is a real difference between living on death row and living in general population. But there’s an easy fix for that, you create a LWOP system with reduced privileges and the inability to get benefits/things/perks that the gen pop gets…ever.
     
    And no, it’s not really debatable. There is no evidence that the DP has a general deterrence effect. In fact, the only study to show anything in that area showed that it actually had a negative effect. But does anyone really think that the type of people who commit murders that receive the death penalty, are actively thinking…boy I better not do this, or I might get the DP?
     
    And of course we’ve left unsaid the socioeconomic and racial realities where money gets you LWOP and killing a white person is four times more likely to get you the DP as killing a brown person.

  16. jagaf says:

    I have no moral objection to a fairly administered DP, which would mean one without glaringly obvious economic and racial disparities and not subject to the vagaries of politics (have to look tough on crime in election years) and media attention. We don’t have that currently and, as our system is run not by computers, but by people, I don’t know that we ever will. It isn’t worth the effort, so I say get rid of it.
     
    Also, CD, I have to say that the argument that the DP is worthwhile because seeking (threatening) it encourages (coerces) the accused into pleading guilty and thus saves the government money seems to fall just a little outside my conception of justice. 

  17. Jason Grover says:

    JAGAF,

    I agree that I dislike the notion of using the threat of a capital referral, or an actual capital referral, simply to encourage a guilty plea. I don’t believe capital referrals are appropriately used like that. The federal system at least has some roadblocks to that, but in the military is very little preventing exactly that. And many of us has seen it happen. It strikes me as akin to threatening criminal prosecution to gain an advantage in a civil case. Perhaps not a perfect analogy, but I agree, the concept is unfair and does not encourage respect for the system from those within or outside it.

  18. Concerned Defender says:

     
     
    Well in theory you could make that argument about ANY max sentences or charging philosophies.   When facing heavy time individuals clearly weigh those years against a guilty plea, and often take the plea for the benefit of a certainty of far less legal exposure.  I see no difference.  If a case is a capital case by virtue of the offense (e.g. murder) and it’s charged as a DP case, the accused surely will weigh that against a deal. 
    Conversely if it’s just LWOP on the table an accused may roll the dice rather than deal for something that would probably be measured in decades anyway….  If you’re 25 or 55 there’s not going to be much difference between 30 years or LWOP… but there sure is a difference if you’re exposed to the DP.
    @ Stewie, the only true  way to measure non-crimes would be to find the people who opted to not kill a victim because they knew that they could be put to death.  I grant that criminals rarely think in terms of getting caught, but I also believe that if they know there is a risk of the state putting them to death, it sends a particularly chilling message.  Even if it’s rarely implemented.
    I do agree that socio-economic issues and additional protections must be implemented in any DP case, and that costs to the state often don’t make it worthwhile to pursue.

  19. Vulture says:

    CD et.al. Doesn’t the Gray case make a perfect case study for both of your positions, because on one hand he got LWOP and on the other he did get the DP.  The ultimate remedy would fall to Congress, though, and it would not do well for the Accused.  Consider that the debate would be subject to the same kind of process that has done so well for the Sexual Assault cases. 
    Take Senator J. Cornyn of Texas.  On the Armed Services and Judiciary Committees.  Former Texas AG and Associate Justice on the Texas Supreme Court.  Would you like for that pedigree to be in the same position as Clair McCaskal in a death penalty discussion?  1st. Texas kills more people than anyone.  2nd.  From a Military Justice standpoint his lip biting angst ridden face was in every photo op for Hasan.  3rd.  He is a machine  apparatchik. 
    Point here being that Congress ain’t going to get you there.  The expense is regrettable but it is going to have to be resolved by the Courts.  BTW, CD, you bring up Bales just as I did before.  You might be thinking that I am reaching into my Cracker Jack box, I don’t care.

  20. Concerned Defender says:

    Major Hassan is a great case.  He murdered 13 and injured 30 unarmed Soldiers on Ft. Hood.  The evidence, forensics, eye witnesses, and he was caught red handed – all evidence was overwhelming.  Is there a person who objects to the fact he was sentenced to death?  This is a proper use of the DP.  Clear evidence, serious crimes, etc.  It should be carried out swiftly in terms of a few years in my view.  There’s nothing to appeal.  He did it.  Everyone knows it.  He had a trial.  He was convicted and sentenced to death.  Now execute the sentence.