Opinion Analysis: It might if it could, but CAAF lacks authority to grant the motion in United States v. Hennis
CAAF decided the Consolidated motion to compel funding for learned counsel, a mitigation specialist, and a fact investigator; for appointment of appellate team members; and for a stay of proceedings, in the capital Army case of United States v. Hennis, 77 M.J. 7, No. 17-0263/AR (CAAFlog case page) (link to slip op.), on Monday, November 20, 2017. Concluding that there is no constitutional, statutory, or regulatory authority for the court to grant the motion, CAAF denies it.
Judge Ohlson writes for a unanimous court.
The conviction and capital sentencing of Master Sergeant (E-8) Hennis were our #2 military justice story of 2010. The Army CCA affirmed the findings and sentence last October (noted here), and the case was docketed for mandatory review by CAAF this past March (noted here). Hennis is represented by two attorneys assigned to the Army Defense Appellate Division: Lieutenant Colonel (LTC) Carrier and Captain (CPT) Burroughs. Each, however, has other responsibilities, and neither has much capital experience. Judge Ohlson explains:
Appellant’s lead counsel, CPT Burroughs, has no experience litigating capital cases, defending an accused at court-martial, contesting a case before a court-martial panel, or investigating and presenting a mitigation case. However, he does have limited experience with military appeals. CPT Burroughs also carries a full caseload in his role as a military appellate defense counsel, representing twenty-seven other clients in addition to Appellant.
LTC Carrier, a former military judge, serves as the supervising counsel in Appellant’s case. Given his duties as the chief of capital and complex litigation, LTC Carrier is unable to wholly devote himself to Appellant’s case. Further, LTC Carrier has never prosecuted or defended an accused in a capital case and has minimal experience with capital appeals.
In addition, Appellant does not have the assistance of a mitigation specialist or a fact investigator in this case, despite making numerous requests to the CCA and various Army officials.
Slip op. at 3. These two attorney sought assistance in the form of learned counsel, which “is an attorney knowledgeable in the law applicable to capital cases.” Slip op. at 3 n.3. They also requested a capital mitigation specialist and a fact investigator who could discover information to attack the capital sentence. The Army denied those requests, and CAAF now does the same with Judge Ohlson concluding:
at this point in these appellate proceedings we discern no constitutional, statutory, or regulatory basis for this Court to grant Appellant’s requests for an enhanced appellate defense team or for funding for learned counsel, a mitigation specialist, and a fact investigator. However, we note that Congress has clearly expressed its preference that military members charged with capital offenses be provided with learned counsel in the near future, federal law requires the provision of learned counsel upon request in other federal death penalty cases, and most state jurisdictions which still have the death penalty have established minimum qualifications for counsel in such cases. Nevertheless, in deciding a motion such as the one now before us, this Court’s task is not to require “what is prudent or appropriate, but only what is constitutionally [and statutorily] compelled.” Cronic, 466 U.S. at 665 n.38. Appropriate personnel in the Army Judge Advocate General’s Corps are not similarly constrained, however, and may most certainly do what is “prudent” and “appropriate” in the instant case.
Slip op. at 7 (marks in original).