CAAFlog » September 2015 Term » United States v. Witt

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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Update: It is very difficult to hear Judge Ryan in CAAF’s recording of the oral argument in Sterling. I was able to enhance the recording to make her easier to hear. The enhanced audio is available here

Audio of this week’s oral arguments at CAAF is available at the following links:

United States v. Witt, No. 15-0260/AF (CAAFlog case page): Oral argument audio

United States v. Sterling, No.s 15-0510/MC & 16-0223/MC (CAAFlog case page): Oral argument audio (original from CAAF)

CAAF will hear oral argument in the capital Air Force case of United States v. Witt, No. 15-0260/AF (CAAFlog case page), on Tuesday, April 26, 2016, at 9:30 a.m. As one of only six inmates on the military’s death row, Witt’s case presents the typical smorgasbord of issues raised in a capital case. However, next week’s oral argument will address only two issues, both of which were specified by the court:

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 2005 a general court-martial composed of twelve officer members convicted 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 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 (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.

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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.

Of the six service members on the military’s death row (Gray, Loving, Akbar, Witt, Hennis, and Hasan), Senior Airman Andrew Witt has the fourth oldest sentence. 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.

But the court 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).

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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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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.