CAAFlog » Capital Cases

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.

Our #2 story of the year was the court-martial of Major Hasan, the Fort Hood shooter. We ended last year with CAAF granting a petition for extraordinary relief and removing the military judge and ordering a new one be assigned. Col Tara Osburn, USA, was then assigned. Major Hasan’s court-martial was last year’s number two story of 2012.

For all the tragedy of the victims and court-room drama leading up to the trial, the trial itself was relatively uneventful. The defense rested without putting on any evidence. Major Hasan acknowledged he was the shooter at the beginning of the trial. He was convicted of 13 specifications of premeditated murder and 32 specifications of attempted murder. He was sentenced to death after less than two hours of deliberations.

The trial was most notable for Major Hasan’s decision to represent himself. After firing his lawyers, the MJ granted his request to represent himself. His counsel, who continued to be available to assist him, described his actions as a “working towards the death penalty” according to the Washington Post.

I once did extensive research, attempting to look at all Article 118(1) & 118(4) cases preferred since 1984 to identify predictors of convening authorities’ decisions to refer cases capitally and on members awarding death as a punishment. We started with the thought that perhaps there were racial trends we could identify. What we found was the unsurprising conclusion that the number one predictor of capital referrals and capital sentences in Article 118(1) cases was multiple victims. That certainly held true in Major Hasan’s case.

Of course, Major Hasan will receive automatic review from the Army Court of Criminal Appeals. As this CNN report points out, the reversal rate for death-penalty cases in the military on direct review is very high. This report cites a 82% reversal. These numbers are since 1984, when President Reagan implemented R.C.M. 1004.

One issue that lurks in the case highlights some of the paternalism that still lingers in the military-justice system. Major Hasan attempted to plead guilty, but his plea was rejected by the MJ. Article 45(b), UCMJ prohibits a guilty plea to a capital offense. In theory, this denied Major Hasan the mitigating effects of a guilty plea. Is it remotely conceivable that ACCA or CAAF will rule Article 45(b), UCMJ unconstitutional and reverse? Probably not, but if they did, it would probably make our top ten list in future years.

AFCCA announced that it is [granting a government motion for reconsideration] and vacating the [en banc] decision in United States v. Witt and that the full court will now [re-consider] the case, Air Force Times coverage here. [The en banc] court previously set aside Airman Witt’s death sentence due to errors in the trial defense counsel’s investigation of potential sentencing evidence. Prior coverage of AFCCA’s decision in Witt here and now vacated AFCCA decision here. [Updated to reflect that prior decision was en banc, which a knowledgeable source pointed out to me]

A former Marine Corps’ staff sergeant received a five year sentence from a federal district judge in San Diego. Gilbert Mendez was convicted of receiving bribes in exchange for awarding contracts to local companies while assigned to Camp Fallujah. San Diego Union-Tribune report here.

The House passed a bill to create a commission to study backlogged VA claims reports Military Times:

Over Veterans Affairs Department objections, the House passed a bill Monday night creating a commission to evaluate new ways of reducing the backlog of veterans benefits claims, including new claims awaiting an initial decision and those where a veteran has appealed the decision.

VA officials argued, unsuccessfully, that a new commission or task force created by HR 2189 would slow down progress already being made.

Military Times article here.

After less than two hours of deliberations, the members sentenced Major Hasan to total forfeitures, a dismissal, and to be put to death. AFP reports:

The forewoman of the jury, a colonel, said the verdict was unanimous that Hasan should be executed.

“It is my duty as president of this jury to inform you that.. the court martial in closed session in a secret ballot of all members concurs to the sentences, to forfeit all pay and allowances, to dismissal from service, to be put to death,” she said.

Hasan, who conducted his own defence during the trial, showed no emotion as the verdict was read.

Here is a report from NBC 5 from Dallas on the Hasan sentencing non-story, and a little more from Stars and Stripes here on the three words he’s said at sentencing.  After much wringing of hands and gnashing of teeth, the prospect of MAJ Nidal Hasan defending himself has turned into more of a suicide by court-martial as ResIpsaLoquitor put it.  Closing argument(s) tomorrow.  H/t Ama

The Hasan sentencing hearing on aggravating and mitigating factors and other evidence got underway yesterday.  CNN (here), Austin americna Statesman (here, with updates from throughout the day), and the Kileen Daily Herald (here, including a complete list of the prosecution witnesses that testified yesterday).

AP via Yahoo News, here, has more on PFC Manning’s desire to become Chelsea Manning while incarcerated.

Sep. 2, 2014, that’s the date for the first capital trial  of a Gitmo detainee reports the Miami Herald here. Abd al Rahim al Nashiri will face charges stemming from the explosion that ripped through the USS COLE in October 2000.  The 9/11 conspirators’ case will begin Sep. 22, 2014 if prosecutors get their requested triaol date–which seems unlikely now that al Nashiri is set for 3 weeks earlier. 

This is an interesting case, Marine accidentally shoots tent mate in Iraq, [severely injures] him, isn’t charged, and gets an honorable discharge.  US Attorney hears about the case,  and files charges for assault and false statements.  The district court judge in the case is perplexed, as am I.  Why is it when the military wants a USAO to prosecute a case its a struggle to get resources, see e.g. Bob Reed and others testimony in 2008 here, but if they get a burr in their . . . .  NYT coverage here.  [My bad on the earlier report, not sure whyI wrote that he killed the guy]  H/t Navy JAG

Preview of the Hasan sentencing phase , here, features NIMJ’s Gene Fidell and Loving counsel Teresa Norris.

The AF is vying for airtime in high profile removals. This one out of missile command resulted froma loss of confidence after several poor inspections of nuke sites. AP via WaPo here.

The AFCCA has set aside the death sentence in United States v. Witt, No. 36785, (opinion here) (link fixed) after finding that the trial defense team did not effectively investigate various types of mitigation evidence and concluding:

Thus, this undiscovered mitigating evidence, taken as a whole, “might well have influenced the jury’s appraisal” of the appellant’s moral culpability. Wiggins, 539 U.S. at 538 (quoting Williams, 529 U.S. at 398). It would have considerably added to the mitigation evidence actually presented and would have served to counteract some of the aggravating evidence. As such, we find 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. Having found both constitutionally deficient performance as well as prejudice, we reverse the sentence in this case and remand for a new sentencing hearing.

Slip op. at 49.

Witt is one of only five prisoners on military death row. The other four are: Gray, Loving, Akbar, and Hennis.

At Ft. Hood the capital court-martial of MAJ Nodal Hasan begins. WaPo coverage here.

The PFC Manning sentencing continues, WaPo coverage here, with evidence of the harm/potential harm to national security caused by the offenses:

A senior U.S. official told a military court Monday that while he believed the leaking of a huge number of classified cables by Army Pfc. Bradley Manning had a chilling effect on diplomatic relations, the State Department never completed a formal damage assessment.

On Tuesday, Judge Denise Lind ruled on multiplicity for sentencing motions and reduced Manning’s potential maximum sentence to 90 years, ABC News report here.

Coverge of the Hutchins case out of San Diego and his release fromLeavenworth after winning at CAAF, San Diego Union Tribune here and LA Times here.

Members selection in the sexual assault case of BG Jeffrey Sinclair continues this week.  See FayObs here.

Former Marine JA and Deputy Asst SecDef for Detainee Affairs Willaim Lietzau has some candid comments on Gitmo in the Daily Mail, here.

Interesting NPR piece on the Invisible War’s Myla Haider here

The response to transparency and legality concerns with the US drone policy appears to be more symbolic than real, so says Eric Schmitt at the NYT here.

7 months confinement and a BCD in latest Lackland instructor case. This instructor had consensual sex with two recruits and lied to investigators according to the report out of San Antonio here.

[UPDATE]  I forgot to add yesterday’s news about the military judge, COL Tara Osborn, rejecting MAJ Nidal Hasan’s attempt to plead guilty . . . because one of the not so bright provisions of the [UCMJ] prohibits it. LA Times report here.  COL Osborn also appears to have ruled on several “standard” capital court-martial motions. [My apologies for earlier pinning all the blame for the SNAFU in capital pleas on the Executive Branch; Congress created the mess in UCMJ, Art. 45(b).]

The Ft. Hood PAO announced the agenda for today’s hearing in the MAJ Hasan court-martial:

Motions expected for argument include a defense request to change venue, a defense request to change venire (venire are the individuals that make up the potential panel members) and several defense requests concerning the procedural rules that apply during sentencing proceedings.

Results later tonight.