TRIAL STAGES: Sentence and Punishment:  Capital Punishment

2014 (September Term)

United States v. Akbar, 74 M.J. 364 (mitigation specialists in military justice capital cases are of special importance; without a professional death penalty bar in the military services, these specialists are likely the most experienced members of the defense team in capital litigation; the mitigation specialists’ role is to coordinate an investigation of the accused’s life history, identify issues requiring evaluation by psychologists, psychiatrists or other medical professionals, and assist attorneys in locating experts and providing documentary material for them to review; the specialists are considered an indispensable member of the defense team throughout all capital proceedings; as a result, mitigation specialists may play a particularly important role in ensuring the fair and full adjudication of military death penalty cases where counsel have little training or experience in capital litigation). 

(trial defense counsel are not ineffective for failing to always follow the mitigation specialists’ advice; it is counsel, not mitigation specialists, who are entrusted with making strategic litigation decisions in each case). 

(although it may be advantageous to have a mitigation specialist actively participate at a capital trial, it is not required). 

(the frontloading of mitigation evidence during the merits phase of a capital case is reasonable where the same factfinder (1) considers guilt and penalty evidence and (2) is instructed about the ability to consider all evidence for mitigation). 

(in determining what presentation to make concerning penalty, counsel should consider whether any portion of the defense case will open the door to the prosecution’s presentation of otherwise inadmissible aggravating evidence).

(victim impact testimony is admissible in capital cases to inform the panel about the specific harm caused by the accused; trial counsel may elicit evidence about (1) the victim’s personal characteristics or (2) the emotional impact of the murder on the victim’s family; what is not permitted is evidence or argument about the family members’ opinions and characterizations of the crimes, the accused, or the appropriate sentence). 

(trial counsel may strike hard blows in argument but he is not at liberty to strike foul ones; he may argue the evidence of record, as well as all reasonable inferences fairly derived from such evidence; this includes arguments in capital cases concerning the human cost of an accused’s capital crime). 

(in capital cases, victim-impact evidence is properly considered to counteract the mitigating evidence in helping the fact-finder evaluate moral culpability; to the extent that comparative worth arguments are disapproved, they are disapproved only with regard to victim-to-victim comparisons, not victim-to-defendant comparisons). 

(in this case, where the military judge instructed the panel that to impose a death sentence, it had to unanimously determine, in relevant part, (1) beyond a reasonable doubt, that the aggravating factor existed, and (2) that the extenuating and mitigating circumstances were substantially outweighed by the aggravating circumstances, there was no error in the instruction; although appellant argues that the military judge should have instructed the members that they had to find that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt, the decision weighing aggravating and mitigating does not have to be proven beyond a reasonable doubt; the beyond a reasonable doubt standard is unnecessary in weighing aggravating and mitigating factors in capital cases). 

(panel members are required to make four unanimous findings before imposing the death penalty: (1) the accused was guilty of an offense that authorized the imposition of the death penalty, (2) one aggravating factor existed beyond a reasonable doubt, (3) the extenuating or mitigating circumstances were substantially outweighed by any aggravating circumstances, and (4) the accused should be sentenced to death).

(in a capital case, where the members requested reconsideration of their sentence and the military judge, without objection and with appellant’s consent, provided the members with the standard Benchbook reconsideration instruction 2-7-19, there was no plain or obvious error in the military judge’s instruction; a plain reading of RCM 1009 (reconsideration of sentence) does not mandate the position that a panel is not authorized to reconsider its sentencing determination with a view toward increasing a sentence to death; for instance, RCM 1009(e)(3)(A), which identifies the number of votes needed to increase a sentence on reconsideration, does not provide an exception in death penalty cases; the reconsideration provision for decreasing a sentence, on the other hand, does contain a specific provision for death cases; because RCM 1009 does not explicitly prohibit the panel from reconsidering a sentence in a capital case with a view to increasing the sentence to death, the military judge’s reconsideration instruction was not plainly erroneous). 

(the congressional delegation of the RCM 1004 capital sentencing procedures to the President is constitutional). 

(in a capital case, failing to charge aggravating factors regarded as elements is an Apprendi error subject to harmless error review to determine whether the constitutional error was harmless beyond a reasonable doubt; where appellant preserved the charging issue at trial, the government bears the burden of establishing the error was harmless beyond a reasonable doubt; a specification’s failure to allege an element is not harmless if this error frustrated an accused’s right to notice and opportunity to zealously defend himself). 

(in a capital case, an aggravating factor that renders an accused eligible for death is the functional equivalent of an element of a greater offense; the Fifth Amendment’s due process clause and the Sixth Amendment’s notice and jury trial guarantees require any fact that increases the maximum penalty for a crime to be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt; in this case, the government did not allege the aggravating factors on the charge sheet and only provided written notice of them prior to arraignment; assuming that the government must allege in the charge sheet the aggravating factors as a functional equivalent of an element, and further assuming that the government erred in failing to allege the aggravating factors on the charge sheet in the instant case, the error was harmless beyond a reasonable doubt where (1) the fundamental essence of the aggravating factor ultimately pursued by the government, multiple murder (RCM 1004(c)(7)(J)), already appeared on the charge sheet as Appellant was charged in separate specifications with murdering two servicemembers and the investigating officer recommended that both specifications go forward, (2) the government demonstrated that appellant’s trial defense counsel could not articulate how he would have altered his strategy at the Article 32, UCMJ, hearing had the charge sheet specifically alleged the aggravating factor, and (3) appellant received actual notice of the aggravating factors prior to his arraignment pursuant to RCM 1004(c)(1) allowing him ample opportunity to prepare for the aggravating factor). 

(Article 36, UCMJ, which authorizes the President to prescribe pretrial, trial, and post-trial procedures, does not require the President to prescribe procedures for the military death penalty that are similar to those provisions in the United States Attorneys’ Manual which set forth policies and procedures for federal civilian capital cases). 

(appellant’s contention that his death sentence violates his Eighth Amendment rights because his mental illness renders the punishment disproportionate to his culpability is without merit; first, courts have uniformly determined that there is no constitutional impediment to imposing a capital sentence where a criminal defendant suffers from a mental illness; second, appellant’s specific mental illness did not make his death sentence highly disproportionate to his culpability; the Eighth Amendment prohibits punishments, including the death penalty, that are greatly disproportionate to the culpability of the accused, and thus individualized consideration is constitutionally required in imposing the death sentence; here, the record demonstrates that individualized consideration did occur in the instant case; most of the mental health experts who examined appellant concluded that although he suffered from some form of mental illness, he was mentally responsible at the time he committed the offenses; further, the panel members not only determined that appellant had the requisite mental ability to form the premeditated intent to kill when he committed the offenses, they also determined that he deserved the punishment of death for those offenses; and third, to the extent appellant claims that his mental illness presently rises to the level of insanity, once again the record does not support such a conclusion; although an accused’s earlier competency to be held responsible for committing a crime and to be tried for it does not foreclose a later determination that he or she is presently insane and cannot be executed, in this case, prior to and during the court-martial proceedings, mental health experts determined that appellant was mentally responsible at the time of the offense and mentally competent to stand trial; as such, there is no basis in the record to conclude that appellant is presently insane and therefore, appellant’s Eighth Amendment challenge premised on a claim of mental illness must be rejected).

Loving v. United States, 64 M.J. 132 (two fundamental principles of Eighth Amendment law are the foundation for a reliable determination of a death sentence: a genuine narrowing of the class of persons eligible to receive the death penalty and individualized sentencing – a decision on a capital sentence on the basis of the character of the individual and the circumstances of the crime; as to the second principle, the Supreme Court has stated that the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background and character or the circumstances of the crime). 


United States v. Simoy, 50 MJ 1 (1998) (members must vote on lightest proposed punishment first and may not vote on death first if there is a proposal by any member for lesser punishment).

United States v. Murphy, 50 MJ 4 (1998) (a capital case - or at least this capital case - is not ordinary, and counsels’ inexperience in this sort of litigation is a factor that contributes to our ultimate lack of confidence in the reliability of the result:  a judgment of death).

(to reach a reliable result in a capital case, the adversarial system must be functioning properly; for that system to work, the key ingredients are:  competent counsel; full and fair opportunity to present exculpatory evidence; individualized sentencing procedures; fair opportunity to obtain the services of experts; and fair and impartial judges and juries).

(appellant did not get full and fair capital sentencing hearing where: conflict of interests issue was not resolved; mitigating effect of post-trial evidence of mental status could not be determined; impact of lack of training and experience of trial defense counsel in defending capital cases was unclear).

United States v. Gray, 51 MJ 1 (assuming that there is a requirement for subject matter jurisdiction or service connection in a capital case, then capital appellant’s crimes were service connected where:  (1) one murder victim was a military member; (2) one murder victim was a civilian who did business on post; (3) both bodies were found on post; and, (4) overwhelming evidence indicated that the murders were committed on post).

(“in favorem vitae” [in favor of life] policy for appellate review of capital cases rejected for the reasons set forth in United States v. Loving, 41 MJ 213, 266 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

(in reviewing petition for new trial on the basis of newly discovered evidence relating to a capital accused’s mental condition and state, the reviewing authority must also determine beyond a reasonable doubt whether a reasonable factfinder, considering the totality of the evidence, would be convinced by clear and convincing evidence that petitioner lacked mental responsibility for his crimes or should not get the death penalty for them).

(evidence considered when members found appellant guilty and sentenced him to death was not materially or substantially inaccurate where post-trial evidence of organic brain damage and its impact on appellant’s mental responsibility was speculative and disputed, and where there were clear indicators of appellant’s organic brain damage presented at time of trial).

(the standard for determining whether a member should be removed from a capital court-martial because of opposition to the death penalty is whether the member’s views would prevent or substantially impair the performance of the member’s duties in accordance with his instructions and his oath).

(there is no requirement as a matter of constitutional or military law that the findings state that all members concur in the balancing of extenuating or mitigating circumstances and aggravating factors; the members were properly instructed and the worksheet reflects the unanimous finding).

(military standard for balancing of extenuating or mitigating circumstances and aggravating factors, “substantially outweigh”, is not unconstitutional; see United States v. Loving, 41 MJ 213, 291 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

(requirement for trial by members in a capital case does not violate the Fifth and Eighth Amendment guarantee of due process and reliable verdict; see United States v. Loving, 41 MJ 213, 291 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

(prohibition against pleading guilty to offenses which could subject a military accused to death penalty does not deprive military accused of critical mitigating factor and cause other irreparable damage; see United States v. Loving, 41 MJ 213, 292 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

(capital court-martial in peacetime by a court-martial panel composed of fewer than twelve members does not deny accused due process of law under the Fifth, Sixth, and Eighth Amendments; see United States v. Loving, 41 MJ 213, 287 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

(CAAF declines to establish minimum standards of qualification for defense counsel in capital cases; see United States v. Loving, 41 MJ 213, 300 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

(the lack of a system which designates minimum standards of qualification for defense counsel in capital cases was not shown to have denied appellant due process; see United States v. Loving, 41 MJ 213, 298-299 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

(where appellant did not object to instructions as given and did not request instruction to the effect that he could not be sentenced to death on the basis of the aggregate or cumulative effect of all offenses, there was no reasonable likelihood that members of this court-martial were acting in any unconstitutional manner where:  (1) no authority was cited which prohibits members form considering appellant’s other crimes in decision to impose death penalty; (2) the members were told early that this was a capital murder case permitting the death penalty; (3) the members were told that whether the vote for the capital offenses was unanimous should be announced; and (4) the members were instructed that death and life imprisonment, with other types of punishments, were the only authorized punishments).

(read as a whole, military judge’s sentencing instructions informed the members that the finding that the extenuating and mitigating circumstances are substantially outweighed by the aggravating factors must be unanimous).

(military death penalty scheme is not invalid; see United States v. Loving, 41 MJ 213, 293 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

(21 USC § 848(o)(1), “Right of the defendant to justice without discrimination”, was enacted after appellant’s trial, is not constitutionally mandated, and is specifically limited to offenses under 21 USC; see United States v. Loving, 41 MJ 213, 274 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

(rejecting claim that imposition of death penalty violated equal protection because RCM 1004 subjects appellant, as a member of the armed forces, to a penalty which is not otherwise available under the criminal code of the United States for identical criminal conduct; see United States v. Loving, 41 MJ 213, 294 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

(convening authority is not prohibited from selecting court-members pursuant to Article 25(d), UCMJ, for capital trial for offenses that occur on a military reservation but where there is concurrent jurisdiction with a state authority; see United States v. Loving, 41 MJ 213, 297 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

(it was not legal error for trial counsel to reference the rights of two murder victims and the pain and anguish suffered by the victims during sentencing argument at capital trial; see United States v. Loving, 41 MJ 213, 292 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

(appellant’s due process claim that each member should sign the death sentence worksheet or that the condemned be afforded the opportunity to poll the members was not properly framed; in any event, the death penalty verdict must be unanimous; see United States v. Loving, 41 MJ 213, 296 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

(rejecting claim that military capital sentencing procedure is unconstitutional because the military judge lacks the power to adjust or suspend a sentence of death that is improperly imposed; see United States v. Loving, 41 MJ 213, 297 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

(death sentence per se does not violate Eighth Amendment as cruel and unusual punishment).

United States v. Curtis, 52 MJ 166 (the plain language of Article 66(c), UCMJ, its legislative history, and the precedents of the Supreme Court and Court of Appeals for the Armed Forces provide ample authority for the Courts of Criminal Appeals to cure an error in the imposition of the death sentence by reassessing the sentence to life imprisonment).

Aggravating factors:


United States v. Gray, 51 MJ 1 (double counting of aggravating factors did not exist where the military judge’s instructions allowed double murder to be considered only once as an aggravating factor; CAAF also declines to adopt rule against double counting aggravating circumstances based on a single offense and substantially the same evidence as no such rule appears in RCM 1004 and is not required by the Due Process Clause of the Fifth Amendment).

(the aggravating factor in RCM 1004(c)(7)(I), “[t]hat, only in the case of a violation of Article 118(1) [t]he murder was preceded by the intentional infliction of substantial physical harm or prolonged substantial mental or physical pain and suffering to the victim”, is not unconstitutionally vague; see United States v. Loving, 41 MJ 213, 294 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).



United States v. Gray, 51 MJ 1 (the military judge did not commit plain error by using the terms “substantially outweighed” without further definition with regard to the relationship of mitigating circumstances to aggravating factors; see United States v. Loving, 41 MJ 213, 278-279 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

(military judge’s instructions adequately conveyed to members that even if all other requirements were met, each member still had the discretion to decline to impose the death penalty; see United States v. Loving, 41 MJ 213, 276-277 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

Mitigating evidence:


United States v. Gray, 51 MJ 1 (capital defendant has broad right to introduce mitigating evidence to avoid the death penalty, but relevance and other concerns expressed in rules of evidence are still to be applied in the traditional manner by the judge).

(any error in excluding a videotape depicting conditions of appellant’s home town was harmless beyond a reasonable doubt in light of other evidence of appellant’s life in the projects and abusive relationship with his stepfather).

(the standard for determining whether an instruction effectively placed relevant mitigating evidence beyond the effective reach of the sentencer is whether there is a reasonable likelihood that the members have applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence, and a reviewing court must approach the instructions in the same way that the members would, with a commonsense understanding of the instructions in the light of all that has taken place at the trial).

(although the military judge did not expressly delineate appellant’s family and social background as a mitigating circumstance, the instructions as given, including references to psychiatric opinions and testimony, viewed with a commonsense understanding of all that took place at trial, informed members that they should consider appellant’s background as a mitigating circumstance).

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