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).
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).
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)).
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).