TRIAL STAGES: Sentence and Punishment:  Capital Punishment

General:


2006


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). 


1999

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:

1999

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)).


Instructions:

1999

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:

1999

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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