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  whether counsel were ineffective in failing to offer evidence of the appellant’s future risk of violence,  failing to offer testimony of SP and KP, and  failing to object to inadmissible victim impact evidence.
Slip op. at 37-38.
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