Alas, the Golden CAAF II remains without a new home as the Supreme Court denied what was the best prospect of a certiorari grant in a Mil Jus case in some time. Yesterday’s orders list (here) denied certiorari in United States v. Akbar, No. 15-1257. Going to be a long cold winter without Mil Jus at SCOTUS again. At this rate, the Golden CAAF II will be a full grown steer (or would it be a cow, not sure we’ve determined gender) by the time it finds a home.
In an amicus brief filed at the same time as the Government’s response to the petition for certiorari in Akbar (CAAFlog case page), University of Virginia School of Law professor Aditya Bamzai asserts that:
Marbury [v. Madison, 5 U.S. (1 Cranch) 137 (1803)] bars the Court from hearing this case. The provision that petitioner invokes (see Pet. 1) to establish certiorari jurisdiction, 28 U.S.C. § 1259, violates Article III, section 2, and Marbury’s holding by authorizing this Court to issue writs directly to executive branch officers.
Br. at 2.
The brief is available here.
Here (subscription req’d) is a link to Marcia Coyle’s piece in the National Law Journal Supreme Court Brief discussing the Akbar cert. petition and amicus brief from NIMJ, featuring quotes from NIMJ’s Prof. Stephen Vladeck. From the portion visible outside the firewall:
In the past eight years, the Obama administration has been no stranger to charges it has violated separation of powers or exceeded its statutory authority. But a new charge comes from an unusual source—the military justice system—in a U.S. Supreme Court petition that has the potential to dismantle the military’s capital punishment scheme.
The Supreme Court received two additional briefs in support of the petition for certiorari in Akbar v. United States, No. 15-1257 (Akbar CAAFlog case page). The first from the National Association of Criminal Defense Lawyers (NACDL), here, supports the defense’s substantive argument in their petition asking for the SCOTUS to reverse its prior decision in Loving v. United States, 517 U.S. 748 (1996), which found the military’s capital sentencing scheme to be constitutional. See prior coverage here. The second from the Air Force and Navy-Marine Corps appellate defense shops, here, addresses the related issue, which is not directly addressed in the petition for certiorari, that trial defense counsel for the accused was not qualified, in accordance with prevailing standards, to handle a capital case.
Here is the NIMJ amicus brief in support of the Petition for Certiorari in Akbar v. United States, No. 15-1257. The general theme of the brief is that “in contrast to  civilian criminal convictions, Congress specifically intended for [the Supreme] Court to take a more active role in supervising military convictions on direct appeal.” Brief at 18.
Ring v. Arizona, 536 U.S. 584 (2002) held that aggravating factors in capital cases constitute elements of the crime that must be tried to a jury. Does it violate the Constitutional separation-of-powers or exceed statutory authority for the President, rather than Congress, to prescribe the aggravating-factor elements that permit a court-martial to impose a death sentence on a member of the armed forces.
Scintillating reading ladies and gentlemen, scintillating.
Number 3 is a tough one for me to write about. In United States v. Akbar, CAAF, by a 3-2 vote, affirmed the death sentence for Sergeant Akbar following his murder of two officers and injuring 14 other servicemembers at the start of the Iraq War.
It’s tough to write about because capital cases are tough. I know, deep insight on our top ten list, right? But seriously, for those who have worked on capital cases, or even potential capital referrals, these cases consume you regardless of what side you are on. And while the government tosses out threats of capital referral and even does refer capital charges from time-to-time, the universe of counsel that have stood in the well before a panel in a capital case is thankfully small.
Col Sullivan described the difficulty of these cases like this once: when you are working on a capital case, it takes over your life. You end up feeling guilty going to the movies on a Saturday afternoon with you kids because you should be working on that motion, interviewing that witness, or preparing that expert.
Like any death-penalty case, this one involved dozens of issues. But the crux of the fight at CAAF was about ineffective assistance of counsel. The majority finds that the trial defense counsel were not ineffective and that their actions were the result of strategic decisions. There were two big decisions that the Court focused on. First, the decision to introduce Appellant’s diary in full to the members, over 300 pages that included plenty of harmful passages. Second, the decision to avoid “opening the door” to damaging cross-examination involving Appellant allegedly stabbing a MP with scissors days before the court-martial began. The defense avoided “opening the door” by not calling certain mitigation witnesses.
Another important issue was the voir dire. The defense employed a “ace of hearts” approach where they attempted to maximize the panel size on the theory that one vote means a life sentence so more members give higher odds of drawing that ace. Appellant ended up with 15 members on his panel.
A majority of the Court affirmed Appellant’s death-sentence. Of course, the President must sign the death-warrant before habeas proceedings can begin so realistically, we may be a decade or more away from any execution. Remember, as Dew Process pointed out, Gray was sentenced in 1988.
The dissent was powerful. Former CJ Baker wrote it, jointed by current CJ Erdmann. In it, he takes the whole system to task. Starting out powerfully, he writes, “Principle is hardest to hold in the face of countervailing virtue. For a judge that moment may arrive when knowing that is just, one must also consider what is fair. This is a case about whether or not the military justice system was fair, not whether it was just.”
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.
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.
Knowing that it’s sometimes hard to access ACCA’s website due to problems with certificates (whatever that means), I’ve posted ACCA’s unpublished Akbar decision here. United States v. Akbar, No. ARMY 20050514 (A. Ct. Crim. App. July 13, 2012). Judge Burton wrote for a unanimous panel affirming SGT Akbar’s death sentence and denying a petition for new trial. I’ll be interested in the No Man’s analysis of the court’s rejection of Akbar’s Apprendi/Ring arguments.
I assume his defense team’s next step will be to request reconsideration en banc.
We previously noted CAAF’s denial of Akbar’s petition for extraordinary relief seeking expert assistance for his defense team in his military capital appeal. Akbar v. United States, __ M.J. __, Misc. Nos. 09-8025/AR and 09-8026/AR (C.A.A.F. Sept. 2, 2009). On Wednesday, CAAF granted the government’s motion to lift the stay in appellate proceedings. United States v. Akbar, __ M.J. __, Misc. Nos. 09-8025/AR; 09-8026/AR (C.A.A.F. Sept. 16, 2009).
In June, CAAF issued a show cause order and stayed proceedings in the appeal of the capital court-martial of United States v. Akbar, which is pending before ACCA. Akbar v. Army Court of Criminal Appeals, __ M.J. __, Nos. 09-8026/AR, 09-8025/AR (C.A.A.F. June 23, 2009). The petition for extraordinary relief concerned whether the United States and ACCA erred by denying litigation resources to Akbar’s appellate defense counsel. On Wednesday, CAAF denied the petition for extraordinary relief without prejudice to raising the issue in the normal course of appellate review. Akbar v. United States, __ M.J. __, Misc. Nos. 09-8025/AR and 09-8026/AR (C.A.A.F. Sept. 2, 2009). But it doesn’t appear that CAAF lifted the stay on proceedings before ACCA. Can anyone shed light on whether the stay remains in place?