CAAF decided the 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, in the capital Army case of United States v. Hennis, 77 M.J. 7, No. 17-0263/AR (CAAFlog case page) (link to slip op.), on Monday, November 20, 2017. Concluding that there is no constitutional, statutory, or regulatory authority for the court to grant the motion, CAAF denies it.

Judge Ohlson writes for a unanimous court.

The conviction and capital sentencing of Master Sergeant (E-8) Hennis were our #2 military justice story of 2010. The Army CCA affirmed the findings and sentence last October (noted here), and the case was docketed for mandatory review by CAAF this past March (noted here). Hennis is represented by two attorneys assigned to the Army Defense Appellate Division: Lieutenant Colonel (LTC) Carrier and Captain (CPT) Burroughs. Each, however, has other responsibilities, and neither has much capital experience. Judge Ohlson explains:

Appellant’s lead counsel, CPT Burroughs, has no experience litigating capital cases, defending an accused at court-martial, contesting a case before a court-martial panel, or investigating and presenting a mitigation case. However, he does have limited experience with military appeals. CPT Burroughs also carries a full caseload in his role as a military appellate defense counsel, representing twenty-seven other clients in addition to Appellant.

LTC Carrier, a former military judge, serves as the supervising counsel in Appellant’s case. Given his duties as the chief of capital and complex litigation, LTC Carrier is unable to wholly devote himself to Appellant’s case. Further, LTC Carrier has never prosecuted or defended an accused in a capital case and has minimal experience with capital appeals.

In addition, Appellant does not have the assistance of a mitigation specialist or a fact investigator in this case, despite making numerous requests to the CCA and various Army officials.

Slip op. at 3. These two attorney sought assistance in the form of learned counsel, which “is an attorney knowledgeable in the law applicable to capital cases.” Slip op. at 3 n.3. They also requested a capital mitigation specialist and a fact investigator who could discover information to attack the capital sentence. The Army denied those requests, and CAAF now does the same with Judge Ohlson concluding:

at this point in these appellate proceedings we discern no constitutional, statutory, or regulatory basis for this Court to grant Appellant’s requests for an enhanced appellate defense team or for funding for learned counsel, a mitigation specialist, and a fact investigator. However, we note that Congress has clearly expressed its preference that military members charged with capital offenses be provided with learned counsel in the near future, federal law requires the provision of learned counsel upon request in other federal death penalty cases, and most state jurisdictions which still have the death penalty have established minimum qualifications for counsel in such cases. Nevertheless, in deciding a motion such as the one now before us, this Court’s task is not to require “what is prudent or appropriate, but only what is constitutionally [and statutorily] compelled.” Cronic, 466 U.S. at 665 n.38. Appropriate personnel in the Army Judge Advocate General’s Corps are not similarly constrained, however, and may most certainly do what is “prudent” and “appropriate” in the instant case.

Slip op. at 7 (marks in original).

Case Links:
• Defense motion
• Government Division answer
• Government Division response to CAAF order
• Blog post: Argument preview
Oral argument audio
• CAAF opinion

15 Responses to “Opinion Analysis: It might if it could, but CAAF lacks authority to grant the motion in United States v. Hennis”

  1. jagaf says:

    LWOP > endless appellate litigation in a system that has not put someone to death since the Kennedy Administration.

  2. stewie says:

    The rest of it isn’t surprising but no mitigation specialist is very surprising. Akbar got one, and that was clearly a no brainer to the very crim law inexperienced, borderline uninterested ACCA panel.

  3. Dew_Process says:

    This is one of the reasons that demonstrate why the military has no business in capital litigation. The Court could have abated the proceedings imho.

  4. Cloudesley Shovell says:

    “In May 1985, the wife, five-year-old daughter, and three-year-old daughter of an Air Force captain were murdered in Fayetteville, North Carolina. Appellant, who was a member of the Army at the time of the murders, was initially tried for these crimes in state court. He was convicted of the offenses at his first trial, but those convictions were overturned upon appellate review by the North Carolina SupremeCourt. At his second trial in state court in 1989, Appellant was acquitted.
    “Following his acquittal in state court, Appellant returned to active duty with the Army and served until his retirement in 2004. However, after his retirement, DNA testing linked Appellant to the Fayetteville murders. The Army ordered Appellant to active duty and initiated court-martial proceedingsagainst him in 2006.”
    jagaf:  You are correct, but here we are.
    stewie: Was the Akbar ruling for a specialist during appellate litigation or at trial?  The Court’s opinion explains why they denied the specialist in this appellate case.  I’m unlearned, to coin a phrase, in capital litigation.  Where did the Court err in its ruling?  Is there a contrary statute, consitutional rule, or controlling case law?
    Dew_Process: 1. Given the acquittal in state court, what other jurisdiction could have prosecuted Hennis?  I’m assuming the murders occurred outside the “special maritime and territorial jurisdiction of the United States” so federal prosecution was out of the question.  So now you’re the Army, and you have new DNA evidence in a triple murder case where an Army man is alleged to have murdered three Air Force dependents, including 2 children.  What do you do?
    2.  The Court’s opinion (it’s only 7 pages with wide margins, a quick read) explains why they did not stay the proceedings.  I’m am unlearned in capital litigation.  Can you explain where the Court erred in declining to stay the proceedings?
    Kind regards all,CS

  5. Vulture says:

    I’d start with that part of the UCMJ that says “Military appellate counsel shall also perform such other functions in connection with the review of court-martial cases as the Judge Advocate General directs.”  If TJAG is assigning an incapable officer to a duty, they must  request learned counsel.  Or maybe there is something in the JAG Personnel Policies upon which to infer further requirements.  Maybe its in those wide margins of the say nothing memos from the Office of Professional Responsibility.  Grab Commander USALSA’s OER support form and look for the bullets implying “leadership,” “support,” or “improve.”  Functions: gotta like them ten penny words.

  6. DCGoneGalt says:

    If anyone ever writes a book about the Hennis case, you’ll sell at least one copy to me.

  7. Cloudesley Shovell says:

    Vulture–What you say may all be true, but as CAAF points out on the last page of its ruling on the motion, “this Court’s task is not to require ‘what is prudent or appropriate, but only what is constitutionally [and statutorily] compelled.’ Cronic, 466 U.S. at 665 n.38.”  See also footnote 5 on page 6 of the ruling.  UCMJ Art. 70 applies to the service JAGs, not to CAAF.  Where in the UCMJ is CAAF granted the jurisdiction to compel the JAG to comply with Art. 70?  What is the mechanism? As the Court points out on pages 5 and 6 of its ruling, ineffective assistance of counsel claims are reviewable by CAAF, but only after a record of counsel’s performance has been made.  Limited experience does not raise a presumption of incompetence, as the Court notes.
    I see this ruling as one more in a string of recent CAAF opinions redrawing the limits of its jurisdiction.  CAAF in the past has taken a broad “overseer of the administration of military justice” view of its jurisdiction, a stance which has been criticized (at least by me) as far broader that its enabling statute, Art. 67.  CAAF is a creature of statute after all, an Article I court whose jurisdiction must be strictly construed.  Footnote 5 of this present ruling is illuminating in that regard.
    Let me google that for you.
    Kind regards,
    Kind regards,

  8. Vulture says:

    CS.  Once standing has been established how is any article different than any other?  A question of “function” can take any form once the JAG has provided any compulsion on the part of DAD.  I think it was Judge Stucky that said something like, “Write the regs any way you want to but we will make you follow them.”  Nettles maybe, I’d have to go back and listen.  But that was a question of jurisdiction too so I’m not disagreeing with you. 
    A long time ago the DAD published something called The Advocate.  I am sure the current Chief of DAD remembers as it was folded into the Army Lawyer.  Further, the OTJAG has established the means for the TDS SOP by way of regulation and the UCMJ allows for the interaction of Trail and Appellate Counsel at any time.  So if DAD is historically the upper house and they are supposed to be able to operate as a combined arms team with the TDS, whatever means attainable by the TDS is a potential point of contention for the appellate level.

  9. Scott says:

  10. says:

    Cloudsley:  Someone dropped that book the last Hennis post.  I read it when it was recommended and liked it (the TV series not so much).  However, the book is from 1993 and the ultimate turn in the story isn’t included.
    As a story:  Hennis > McDonald > Wilkerson

  11. stewie says:

    Cloudesley, appellate mitigation specialist. The psych doctor request was denied. The mitigation specialist was summarily granted.

  12. Wahoowa says:

    To respond to Cloudsley Shovell’s point about CAAF drawing back on jurisdiction:
    I think that’s largely the influence of Judge Ryan. She has been relentless about hammering on Art. 67. She clearly wasn’t in the majority when she joined the court, but has slowly shaped it in her image over the years. Kind of impressive. There’s no way the present opinion would have been unanimous when Effron was on the court.

  13. Dew_Process says:

    [DISCLAIMER:  Early on after the Army had preferred charges, I worked on a specific pretrial issue in Hennis. Post-trial, I consulted with Hennis’s original appellate DC on that same issue. His civilian trial defense counsel and I are long-time friends. I am biased.]
    @ Admiral CS – I understand your point, but there was an interesting issue on that point, viz., the Army “agreed” to let the State prosecute Hennis because they figured it was more likely to get the death penalty. So, the issue was, did that “waive” their right to prosecute him after the State failed to convict him at the retrial? That of course assumes that the “dual sovereignty” exception to former jeopardy is a viable concept. The plain language of the Fifth Amendment’s former jeopardy clause binds the federal government, or in Justice Scalia’s view, the text of the Constitutional provision at issue is what controls.  See, e.g., Scalia’s lecture on this HERE.
    I think that CAAF got it wrong here and there are a number of reasons why I think that.  First, CAAF has long held that it possesses the “powers incidental to, and protective of” those contained in Article 67. U.S. v. Frischholz, 36 CMR 306, 307 (1966); as well as having the duty to protect and preserve “the Constitutional rights of persons in the armed forces.” Id. at 308. SCOTUS has acknowledge CAAF’s control over the military justice system in cases where CAAF has jurisdiction, as it does in Hennis. Noyd v. Bond, 395 U.S. 683 (1969).
    EQUAL PROTECTION:  I think CAAF’s opinion on the claim that Hennis is being denied equal protection on the learned counsel issue, both ignores the above, i.e., one of Congress’s purposes in creating a civilian appellate court. The “class” here that’s being discriminated against by the government are military defendants / appellants who are denied learned counsel when prosecuted by the Executive Branch. Yet, both civilians charged with capital offenses in federal courts and GTMO prisoners charged with capital offenses, get “learned counsel,” but Hennis doesn’t. If a guy charged with capital offenses at GTMO gets learned counsel, it is particularly odious that Hennis does not.
    First, any civilian charged with a capital crime in federal court is entitled to a learned counsel, as provided by 18 USC Sec. 3005:

         Whoever is indicted for treason or other capital crime shall be allowed to make his full defense by counsel; and the court before which the defendant is to be tried, or a judge thereof, shall promptly, upon the defendant’s request, assign 2 such counsel, of whom at least 1 shall be learned in the law applicable to capital cases . . . .

    Even more troublesome in this regard is the fact that the GTMO prisoners facing the death penalty, are provided learned counsel pursuant to both the MCA, 10 USC Sec. 949a(b)(2)(C)(ii), and the Manual for Military Commissions Rule 506, which states:

    (b) Capital Offenses. In any case in which the trial counsel makes a recommendation to the convening authority pursuant to R.M.C. 307(d) that a charge be referred to a capital military commission, or in which the convening authority refers a charge to a capital military commission, the accused has the right to be represented in accordance with section (a) above, and by at least one additional counsel who is learned in applicable law relating to capital cases. . . . [Emphasis added].

    Thus, we have the unfair and unjust anomaly that an alleged terrorist at GTMO has greater rights to counsel than does a member of our armed forces.  See generally, Reyes, Left Out in the Cold: The Case for a Learned Counsel Requirement in the Military, Army Lawyer, October 2010, 5, available HERE.
    Finally, if CAAF was looking for statutory authority to compel the Army (or DoD) to act, they didn’t have far to look, as Congress granted them such authority via 10 USC Sec. 944, Art. 144, UCMJ, to wit: “The United States Court of Appeals for the Armed Forces may prescribe its rules of procedure and may determine the number of judges required to constitute a quorum.” [Emphasis added].  All CAAF has to do is to amend CAAF Rule 13, Qualifications To Practice, and Rule 17, Assignment of Counsel, to include that any capital case before the Court must have a “learned counsel” appointed / detailed / assigned.
    This case, as noted above, has received considerable attention and interesting commentary here at CAAFlog. Hennis raised almost 50 assignments of error before ACCA.  Two of the major issues are IAC [with many sub-issues] and the fact that the MJ [COL Parrish] repeatedly denied defense requests to either retest or do additional testing on the DNA evidence as well as other forensic testing and assistance. HERE is a good summary of the forensic “problems” in the case.  I’ve previously commented on this in more detail HERE. [scroll down].  CAAF concluded that Hennis’s requests for “Experts” was at best, premature. For anyone who has ever litigated “bad forensics” in a DNA case, that is a preposterous conclusion – especially here, knowing that there were considerable issues involving DNA samples being contaminated while at the NC State Crime Lab [that was a systemic problem that applied across the board in its serology section]; that other male DNA found at the scene did not match the DNA of either Hennis nor the husband of the woman murdered, etc.
    Stay tuned!

  14. Cloudesley Shovell says:

    Double jeopardy–  I agree with you on this issue.  That’s what the law should be.  Yet here we are.  I once had a client simultaneously prosecuted in state court and at court-martial for the same offense, so I understand how infuriating the “separate sovereign” rule is.   
    Learned counsel– Is there a constitutional requirement for learned counsel?  Has any court ever held that the equal protection clause mandates learned counsel?  (Don’t get me started on “death is different”, that’s a whole nother rant.)  The vagaries in the statutes can be absurd, but do any actually apply to CAAF and courts-martial under the UCMJ?  As CAAF points out on the last page of its ruling on the motion, “this Court’s task is not to require ‘what is prudent or appropriate, but only what is constitutionally [and statutorily] compelled.’ Cronic, 466 U.S. at 665 n.38.”  This gets back to my point about CAAF redrawing the limits of its jurisdiction.  I think given the appropriate case CAAF will back off of the expansive statement that you cited in Frischholz.  That leads to your suggestion that CAAF simply make learned counsel one of its rules of procedure.  But can CAAF mandate by rule of procedure something not required by statute?  I think not.
    As for the issues you get into in your last paragraph, good luck.  The sum total of my interest in the Hennis case up until this comment thread has been to wonder why the heck the guy stayed in the Army after his state court acquittal when surely at some point one of his lawyers warned him of his continued jeopardy.  One thing that got my attention about the facts of the case was that the three Eastburn family victims were all stabbed to death, which gets blood everywhere.  Was any trace blood evidence ever found on Hennis, his clothes, his car, etc.? 
    Wahoowa– I agree with you completely.
    Kind regards to all,

  15. Dew_Process says:

    @ Admiral CS:  Two quick things [Guinness is calling me]: (1) CAAF does a lot of things not expressly authorized in the UCMJ, the most obvious is the DuBay process, which they invented by just ordering it.  (2) As you anticipated, there were 3  violent stabbings and blood was everywhere.  No blood was found on Hennis, his clothes, or in his car. Conversely, a bloody towel at the scene had unidentified male DNA on it, and Hennis was excluded.  One of the thorny issues was/is did Hennis have a break in service? The ACCA decision talks about that, but they muddied the facts a bit . . . .