CAAF will hear an unusual argument on Tuesday, October 10, 2017, it’s first day of oral arguments in the term. Military appellate defense counsel representing Master Sergeant (E-8) Hennis – whose conviction and capital sentence were our #2 military justice story of 2010 – will go up against military counsel for the Army Government Appellate Division to argue a “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.”
It’s not the first time CAAF has heard oral argument on a motion, but I believe that it is the first such oral argument this century.
The motion asks CAAF to:
order the government to provide funding and contract for learned appellate counsel, a capital mitigation specialist, and a fact investigator. Further, appellant requests this Court order the government to provide defense team members deemed necessary in accordance with AR 27-10. Finally, appellant requests oral argument and a stay of proceedings pending receipt of required resources pursuant to C.A.A.F. R. 33 and 40.
Mot. at 1-2.
The defense motion paints a pretty dramatic picture of the size of the Hennis case:
The record of trial consists of 7,410 transcribed pages and, in total, contains approximately 38,090 pages including 17,750 pages of discovery. (Record; Def. App. Ex. QQ). Further, approximately 1,500 pages of appellate opinions, pleadings, orders, appellate exhibits, and ancillary documents have been generated on appeal to date. (Record; Def. App. Ex. QQ). When packaged, this case file fills a shipping pallet. Assuming a diligent attorney could read an average of 3 00 pages a work day, it would take that attorney more than half a year to simply read through the entire record of trial.
Additionally, the trial defense team’s files fill an additional pallet of their own. The trial defense counsel’s files were delivered consisting of over 40 additional boxes of materials. Further, even more materials were received from the defense experts to include the fact investigator and mitigation specialist at trial.
Mot. at 4-5. Yet the defense asserts that once Hennis was convicted and sentenced, the Army withdrew the necessary resources:
The Army expended the resources to recall MSG Hennis from retirement, and try over the course of three years for offenses of which he had been acquitted decades earlier. Once that conviction was pronounced, however, the Army’s resources seemed to run out.
Mot. at 2. And so they’re asking CAAF for help.
There are three asserted bases for CAAF to grant relief. First, the defense argues that changes made by the Military Justice Act of 2016 – that won’t take effect until a date set by the President, currently anticipated to be January 1, 2019 – “created a right to learned counsel.” Mot. at 30. Yet the Government Division’s response highlights that the Act specifically excluded cases like this one:
Except as otherwise provided in this division or the amendments made by this division, the amendments made by this division shall not apply to any case in which charges are referred to trial by court-martial before the effective date of such amendments. Proceedings in any such case shall be held in the same manner and with the same effect as if such amendments had not been enacted.
Ans. at 6 (quoting 130 Stat. 2967-2968).
Second, the defense argues that Chapter 28 of Army Regulation 27-10 “mandates a minimum defense team that exists throughout trial and direct appeal.” Mot. at 36. The Government Division responds that:
AR 27-10 does not “mandate” additional defense personnel in capital cases. Paragraph 28-6, AR 27-10, “Suggested capital litigation teams,” specifically states “[t]he suggested capital litigation team serves as a guideline to the [Staff Judge Advocate], the detailing authority for the defense counsel, [Personnel, Plans, and Training Office], and Human Resources Command].” AR 27-10, paragraph 28-6(a). Paragraph 28-6(a) also provides, “Nothing in this paragraph is to be construed as a right to particular counsel or staff.” AR 27-10, paragraph 28-6(a). This language does not constitute a mandate.
Ans. at 10.
Finally, the defense argues that a mitigation expert and fact investigator are necessary pursuant to United States v. Gray, 51 M.J. 1, 20 (C.A.A.F. 1999). Gray reviewed denials by the Judge Advocate General and the Army Court of Military Review (the precursor to the Army CCA) to provide funding for appellate assistance, ultimately finding no error. It’s not clear from the motion how the defense thinks Gray entitles Hennis to the relief requested, and the Government Division opposes it. But the reason for the opposition is surprising:
Appellant cannot make a showing of necessity that would justify the appointment of a mitigation expert and a fact investigator to the defense team for the duration of the appellate process. An appellant may receive expert assistance during an appeal upon a “proper showing of necessity.” This Court should judge Appellant’s necessity based on the facts of this case, including the assistance that Appellant received at the trial level. In the past, this Court found “necessity” in cases where the defense did not receive the required assistance at trial. In this case, Appellant already received expert assistance at trial totaling $140,000 in expert fees, so Appellant cannot argue that he stands in the same position as the capital defendants in Kreutzer, Loving, or Murphy. When combined with Appellant’s other rationale for appellate expert assistance, the substantial amount of money dedicated to his defense at the trial level undermines the argument that such assistance is “necessary” now.
Ans. at 12 (citations omitted) (emphases added).
$140,000 is a pittance compared to the cost of prosecuting Hennis, or even merely completing the mandatory appellate review of his capital sentence.