CAAFlog » Capital Cases

After now bouncing around the Mil Jus system for nearly 30 years, the sentence of Private Dwight Loving was today commuted to life without the possibility of parole. See Military Times coverage here. H/t OFL

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.

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Last week CAAF denied a petition for extraordinary relief filed by Master Sergeant Timothy Hennis (U.S. Army Ret.), who is one of only five military death row inmates (though a potential sixth – Witt – is pending a sentence rehearing):

No. 17-0099/AR. In Re Timothy B. Hennis. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus or other appropriate writ, and Petitioner’s motion to stay proceedings of the United States Army Court of Criminal Appeals pending petition for extraordinary writ, it is ordered that said motion is hereby denied, and said petition is hereby denied without prejudice to raising the issues asserted during the course of normal appellate review.

The petition is available here and includes the assertion that:

the actions of the Judge Advocate General of the Army (Army JAG), Deputy Judge Advocate General (DJAG), and Chief Judges of the Army Court of Criminal Appeals (Army Court) create an appearance the deck is stacked against the petitioner during the ongoing review of his death sentence.

Pet. at 7.

Hennis was tried three times for the gruesome 1985 rape and murder of Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty, as well as the murder of their two daughters. The first two prosecutions were by state authorities in North Carolina. First, Hennis was convicted of the murders in 1986 and he was sentenced to death. The North Carolina Supreme Court reversed that conviction in 1988. Hennis was then retried by North Carolina in 1989, and he was acquitted. After the acquittal Hennis elected to remain in the military on the retired list and, in 2006, he was recalled to active duty and a general court-martial convicted him and sentenced him to death. The Army CCA affirmed the sentence two months ago. United States v. Hennis, __ M.J. __, No. 20100304 (A. Ct. Crim. App. Oct. 6, 2016) (en banc) (discussed here).

In a published opinion in United States v. Hennis, __ M.J. __, No. 20100304 (A. Ct. Crim. App. Oct. 6, 2016) (en banc) (link to slip op.), the Army Court of Criminal Appeals unanimously affirms the findings and the sentence to death of Master Sergeant Timothy Hennis (U.S. Army Ret.) for three specifications of premeditated murder.

Our #2 military justice story of 2010 was the conviction and capital sentence of Hennis.. Hennis is one of only five current military death row inmates (the others are Gray, Loving, Akbar, and Hasan; Witt is pending a sentence rehearing).

Hennis was tried three times for the gruesome 1985 rape and murder of Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty, as well as the murder of their two daughters. The first two prosecutions were by state authorities in North Carolina. First, Hennis was convicted of the murders in 1986 and he was sentenced to death. The North Carolina Supreme Court reversed that conviction in 1988. Hennis was then retried by North Carolina in 1989, and he was acquitted.

Hennis decided to remain on active duty in the Army after his acquittal, and he retired in 2004. However, retired members of an active component aren’t retired in the traditional sense of the word; they remain in the military, they’re subject to the UCMJ, and their retirement pay isn’t a pension but rather “is reduced compensation for reduced current services.” McCarty v. McCarty, 453 U.S. 210, 222 (1981). And so when advances in DNA allowed investigators to determine with scientific certainty that sperm found in the body of the murdered woman came from Hennis, he was recalled to active duty in 2006 and tried by court-martial for the murders.

He was convicted and, on April 15, 2010, the court-martial sentenced him to death, dishonorable discharge, total forfeitures, and E-1.

After rejecting numerous assertions of error (including jurisdictional challenges) the Army CCA finds the capital sentence appropriate for Hennis, 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).

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.

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Here (subscription req’d) is a link to Marcia Coyle’s piece in the National Law Journal Supreme Court Brief discussing the Akbar cert. petition and amicus brief from NIMJ, featuring quotes from NIMJ’s Prof. Stephen Vladeck.  From the portion visible outside the firewall:

In the past eight years, the Obama administration has been no stranger to charges it has violated separation of powers or exceeded its statutory authority. But a new charge comes from an unusual source—the military justice system—in a U.S. Supreme Court petition that has the potential to dismantle the military’s capital punishment scheme.

Our prior coverage of the cert. petition is here and here.  H/t JB/SV

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.

Here is the NIMJ amicus brief in support of the Petition for Certiorari in Akbar v. United States, No. 15-1257.  The general theme of the brief is that “in contrast to [] civilian criminal convictions, Congress specifically intended for [the Supreme] Court to take a more active role in supervising military convictions on direct appeal.”  Brief at 18.

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Senior Airman Andrew Witt is one of only six military death row inmates (the others are Gray, Loving, Akbar, Hennis, and Hasan). Witt’s capital sentence in the fourth oldest, adjudged in 2005 after he was convicted of the premeditated murder of a fellow Airman and that Airman’s wife, and of the attempted murder of a third Airman.

The Air Force CCA’s reversal and then reinstatement of the capital sentence was our #7 Military Justice Story of 2014.

Last November (discussed here) CAAF specified two issues for review in the case related to the CCA’s decisions (of note: Article 67(a)(1) requires CAAF to review all capital cases):

No. 15-0260/AF. U.S. v. Andrew P. Witt. CCA 36785.  On further consideration of the record, it is ordered that the parties brief the following specified issues:

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?

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?

The parties will brief these issues contemporaneously, and file their briefs on or before January 5, 2016. Reply briefs on these issues may be filed on or before January 15, 2016.

Briefing is complete and the briefs are available on CAAF’s website at the following links:

Appellant’s Briefs:
• Appellant’s primary brief
Appellant’s reply brief
Appellant’s brief on specified issues
Appellant’s reply brief on specified issues

Government’s Briefs:
Government’s primary brief
Government’s brief on specified issues
Government’s reply brief on specified issues

The appellant’s primary brief raises 65 issues. Oral argument is scheduled for Tuesday, April 26, 2016, at 9:30 a.m.

Now, in an order issued last week, CAAF is limiting that argument to only the two specified issues:

No. 15-0260/AF. U.S. v. Andrew P. Witt. CCA 36785. In the order of February 9, 2016, in the above-referenced case, oral argument was set for April 26, 2016, at 9:30 a.m., with the issues to be argued to be provided in a future order. Upon consideration of the issues in the case, the Court will hear oral argument only on two issues that were specified in the Court’s order dated November 20, 2015. Each side is allotted 20 minutes to present oral argument on these issues. In view of the existence of a vacant position on the Court, notice is hereby given that the Chief Judge has called upon Senior Judge Walter T. Cox III to perform judicial duties in the above-referenced case, and that Senior Judge Cox has consented to perform judicial duties in said case under Article 142(e)(1)(A)(ii), Uniform Code of Military Justice, 10 U.S.C. § 942(e)(1)(A)(ii) (2012).

Our #7 Military Justice Story of 2014 was the Air Force CCA’s reinstatement of the death sentence in the case of Senior Airman Witt, one of only six prisoners on military death row (the others are Gray, Loving, Akbar, Hennis, and Hasan). In 2005 a general court-martial composed of twelve officer members convicted Witt of the premeditated murder of a fellow Airman and his wife, and of the attempted murder of another Airman, and sentenced him 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: Behavioral changes in Witt after a motorcycle accident that occurred four months before the murders, the mental health history of Witt’s mother, and expressions of remorse by Witt that were observed by a deputy sheriff. It split 3-2 on the question of prejudice, narrowly finding that “had the members been confronted with this additional mitigating evidence, there is a reasonable likelihood that at least one member would have struck a different balance between the aggravating and mitigating factors and would have returned with a different sentence.” 72 M.J. at 766. The CCA remanded for a sentence rehearing where Witt could have received 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.

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. United States v. Witt, 73 M.J. 738 (A.F. Ct. Crim. App. Jun. 30, 2014) (discussed here).

The case was forwarded to CAAF, where review is required by Article 67(a)(1).

Last Friday, CAAF specified an issue for briefing that questions the appropriateness of the CCA’s decision on reconsideration:

No. 15-0260/AF. U.S. v. Andrew P. Witt. CCA 36785.  On further consideration of the record, it is ordered that the parties brief the following specified issues:

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?

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?

The parties will brief these issues contemporaneously, and file their briefs on or before January 5, 2016. Reply briefs on these issues may be filed on or before January 15, 2016.

Opinion here. Judge Olson writes for a three judge majority. Judge Baker dissents, joined by Chief Judge Erdmann.

Prior coverage at the CAAFlog case page.

More to follow.

Interesting developments in the Hasan case which should be proceeding to post-trial review of  his death sentence.  Here is a Stars & Stripes story about an upcoming hearing to address post-trial matters.  And here is another story (belatedly, its from Oct. 2014) about some crazy writing of the confined former Major.

CAAF will hear oral argument in the capital case of United States v. Akbar, No. 13-7001/AR (CAAFlog case page), on Tuesday, November 18, 2014. The court is conducting mandatory review of the case pursuant to Article 67(a)(1) because the appellant was sentenced to death after he was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of two specifications of premeditated murder and three specification of attempted premeditated murder, in violation of Articles 118 and 80.

Appellant attacked fellow soldiers in Kuwait in 2003, killing two and wounding 14 others, leading to his court-martial and death sentence in 2005. The Army CCA affirmed the death sentence in 2012 (discussed here). Notably, Akbar is one of only six military death row inmates. The whole list (in the order sentence was adjudged) is: Gray, Loving, Akbar, Witt, Hennis, and Hasan.

Akbar’s brief to CAAF raises 59 assignments of error, but the court’s website identifies only five as set for oral argument next week:

(1) Whether the Appellant was denied his right to the effective assistance of counsel, as guaranteed by the Sixth Amendment to the U.S. Constitution, at every critical stage of his court-martial;

(2) Whether this Court should order a post-trial evidentiary hearing to resolve disputed factual issues relevant to Appellant’s numerous collateral claims unless the Court finds in his favor on another dispositive ground;

(3) Whether the prosecution’s victim impact presentation and argument, and counsel’s failure to object, violated Appellant’s Fifth, Sixth, and Eighth Amendment rights;

(4) Whether the military judge denied Appellant a fair trial by failing to sua sponte dismiss fourteen of the fifteen panel members for cause based on actual and implied bias manifested by relationships of the members, a predisposition to adjudge death, an inelastic opinion against considering mitigating evidence on sentencing, visceral reactions to the charged acts, preconceived notions of guilt, and detailed knowledge of uncharged misconduct that had been excluded; and

(5) Whether the analysis of the Army Court of Criminal Appeals of Appellant’s case was flawed because of its misapplication of the standards applicable to federal and state capital defense counsel and that court’s determination that counsel were “well-qualified.”

CAAF granted each side an hour to present oral argument (typically each side receives just 20 minutes).

Appellant’s brief is 328 pages, the Government’s answer is 350 pages, and Appellant’s reply brief is 58 pages. Because of the number of issues in this case, I’m not going to engage in my normal analysis of the briefs in advance of the oral argument. However, I do note that the fifth issue to be argued has echoes of Judge Mitchell’s dubitante opinion in the Air Force CCA’s approval of the death sentence in United States v. Witt, No. 36785, 73 M.J. 738 (A.F. Ct. Crim. App. Jun. 30, 2014) (discussed here).

I’ll also note two informative posts about the military death penalty system from our archives (both written by Dwight Sullivan). The first is from 2007: Military death penalty system by the numbers. The second is from 2009: Military death penalty stats: building the pyramid.

Case Links:
CAAFlog case page
ACCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

In a lengthy published opinion available here, the Air Force CCA affirms the death sentence adjudged in the case of United States v. Witt, 73 M.J. 738 (A.F.Ct.Crim.App. Jun. 30, 2014). The CCA’s action reverses the earlier decision (72 M.J. 727) (available here) (discussed here) of the court that set aside the death sentence after finding ineffective assistance of counsel by the trial defense team in that it did not effectively investigate and present various types of mitigation evidence.

The court previously split 3-2 on the question of prejudice. This time it splits 4-2, again on the question of prejudice. Senior Judge Marksteiner (who joined a partial dissent in the first decision, finding no prejudice) writes for the majority now, joined by Chief Judge Helget and Senior Judge Harney. Judge Mitchell concurs dubitante. Judge Saragosa (who wrote for the majority in the first decision) dissents in part, and is joined by Judge Peloquin who also writes a separate opinion dissenting in part.

But there is also dissent over the absence of minimum qualification requirements for counsel defending a military member facing the death penalty. Judge Mitchell’s dubitante opinion is about the lack of an express requirement for experienced capital defense counsel in a capital court-martial. Slip op. at 114. Judge Peloquin’s separate opinion addresses this issue as well. Slip op. at 136. Judge Peloquin explains:

In the instant case, the Government opted to detail two trial defense counsel to the appellant. When he was assigned to defend the appellant, the senior military defense counsel, Captain (Capt) DR, had been a member of the bar for two-and-a-half years, had prosecuted six cases of unknown complexity, and had served as a trial defense counsel for twelve months, defending nine cases. He had no capital trial experience and little training on the subject of capital trials60 prior to being detailed. The assisting military defense counsel, Capt DJ, had been a member of the bar for less than three years, had prosecuted 14–15 cases of unknown complexity, and had never served as a trial defense counsel prior to his assignment to the appellant’s defense team. He had no capital trial experience or training prior to being detailed.

The appellant, of his own accord, procured the services of a private attorney, Mr. FS. Mr. FS had been practicing law for 25 years with significant trial and appellate defense experience in courts-martial. However, he had no capital trial or capital appellate-level experience. As the lead counsel, he determined the division of labor among the defense legal team. . . .

None of the appellant’s attorneys met the minimum qualification standards required of capital defense counsel, specific bar admission aside, as adopted in 18 jurisdictions which account for over 80% of the capital cases in the United States. And lead counsel for the appellant’s sentencing case did not meet the minimum qualification standards in any of 24 jurisdictions with minimum qualification standards accounting for 94% of the capital cases in the United States. In fact, none of the appellant’s trial defense counsel met the minimum statutory qualifications governing counsel appointed to defend in federal capital cases.

To be fair, Capt DR, Capt DJ, and Mr. FS certainly appear to be capable, conscientious attorneys who worked diligently and tirelessly to defend their client. But in light of the import the overwhelming majority of capital jurisdictions accord to minimum standards for capital defense counsel, it strains credibility to conclude their judgment, efforts, and decisions were not handicapped by their own lack of training and experience.

Slip op. at 140 (Judge Peloquin dissenting) (citations omitted).

But on the issue that led the court to reverse the sentence the first time, Judge Marksteiner explains:

We conclude that although trial defense counsel were deficient in some areas, the appellant was not prejudiced by these deficiencies, and therefore under the second prong of Strickland we must resolve these issues against the appellant.

Slip op. at 38. The majority focuses on six aspects of the Defense sentence case:

(1) the scope of trial defense counsel’s investigation into, and failure to present evidence deriving from, a motorcycle accident the appellant was involved in four and a half months prior to the murders; (2) trial defense counsel’s failure to investigate and obtain records pertaining to the appellant’s mother’s treatment at an inpatient mental health facility; and (3) trial defense counsel’s failure to investigate and develop evidence of remorse through Deputy Sheriff LF. Then we will examine [4] whether counsel were ineffective in failing to offer evidence of the appellant’s future risk of violence, [5] failing to offer testimony of SP and KP, and [6] failing to object to inadmissible victim impact evidence.

Slip op. at 37-38.

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In this post from December, I noted that former-Sergeant Akbar requested leave to file a brief in excess of 50 pages (and perhaps in excess of 500 pages) in the capital appeal of his 2005 death sentence. On Monday CAAF ordered that he make do with a mere 250 pages. The court also ordered oral argument for early next term:

No. 13-7001/AR. U.S. v. Hasan K. AKBAR. CCA 20050514. On consideration of Appellant’s motion to file a brief in excess of fifty pages, Appellant’s motion to attach defense appellate exhibits PPP-AAAA, the motion of the National Association of Criminal Defense Lawyers (NADCL) for leave to file an amicus curiae brief in support of Appellant, Appellant’s motion to substitute a corrected Appendix B, the motion of Andrea D. Lyon, Esq., to appear pro hac vice and to participate in oral argument, Appellant’s motion to consider Grostefon matters out of time, and Appellant’s motion to attach supplemental exhibits in support of his supplement to file a brief in excess of fifty pages, the said motions to file an amicus curiae brief in support of Appellant, to substitute a corrected Appendix B, that part of Ms. Lyon’s motion to appear pro hac vice, and to attach supplemental exhibits in support of the request to file a brief in excess of fifty pages are granted; the part of Ms. Lyon’s motion to participate in oral argument and Appellant’s motion to consider Grostefon matters out of time are denied; the motion to attach defense appellate exhibits PPP-AAAA is granted as to exhibits SSS, TTT, UUU, VVV, WWW, XXX, and ZZZ, and is denied as to PPP, YYY, and AAAA. As for exhibits QQQ and RRR, the motion is granted, but only for the purpose of evaluating Assignment of Error B.II. Exhibits QQQ and RRR will not be considered for the purpose of providing substantive evidence of Appellant’s claim of ineffective assistance of counsel; and the motion to file a brief in excess of fifty pages is granted, but only up to 250 pages.

Appellant will resubmit his brief in compliance with this Order within 30 days. Appellee will submit its brief, also not to exceed 250 pages, within 60 days of the filing of Appellant’s brief. Appellant may file a reply brief, not to exceed 50 pages, within 30 days of the filing of Appellee’s brief. A new Joint Appendix will not be filed. The Court will use the Joint Appendix previously filed. Requests for further extensions of time or expansion of page limits will not be granted.

After all pleadings have been submitted, Appellant and Appellee are directed to seek agreement on the issues to be heard at oral argument, and to inform the Court of those issues. If no agreement can be reached, the parties will so advise the Court within 10 days of the date of the filing of the last pleading, and the Court will resolve any differences. Oral argument will be scheduled at the outset of the September 2014 Term of Court. Each side will be allotted one hour for oral argument.