U.S. v. Akbar, 74 M.J. 364

First Principles: Constitutional Matters: Cruel and Unusual Punishment

1. three discrete classes of offenders are exempt from execution under the Eighth Amendment: (1) those who are insane (and being insane is not the same as having a mental illness); (2) those who suffer from intellectual disability; and (3) those who were under the age of eighteen when they committed their crimes
2. 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

First Principles: Constitutional Matters: Double Jeopardy

1. in this case, the panel’s reconsideration of its sentence during deliberations did not violate the Fifth Amendment double jeopardy clause; although under the double jeopardy clause, a defendant cannot be sentenced to death at a retrial if he was sentenced to life imprisonment following a trial-like capital sentencing proceeding at his first trial, here the same panel reconsidered its own sentence during its one and only deliberation session

First Principles: Constitutional Matters: Due Process

1. 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
2. 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

First Principles: Constitutional Matters: Equal Protection

1. appellant’s Fifth Amendment equal protection rights argument that servicemembers who are death-eligible are treated differently than their similarly situated federal civilian counterparts because convening authorities do not have to comply with death penalty protocols set forth in the US Attorneys’ Manual is without merit; an equal protection violation is discrimination that is so unjustifiable as to violate due process; however, equal protection is not denied when there is a reasonable basis for a difference in treatment; no unjustifiable discrimination is found in the instant case because appellant, as an accused servicemember, was not similarly situated to a civilian defendant; in addition, the policy of the U.S. Justice Department is but an internal policy, without the force of law and subject to change or suspension at any time, and as such, it does not serve as the basis for an equal protection violation

First Principles: Constitutional Matters: Right to Counsel

1. an accused has the right to conflict-free legal representation; however, he may waive this right so long as it is knowing and voluntary
2. as an Article I court, the CAAF notes that, absent constitutional implications in a particular case or congressional authorization, it is beyond its authority to impose the learned counsel qualification for military capital cases
3. the CAAF does not adopt the ABA Guidelines in analyzing capital defense counsels’ performance; instead it adheres to the Supreme Court’s guidance that no particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant; it examines whether counsel made objectively reasonable choices based on all the circumstances of a case

Military Justice Personnel: Defense Function: Right to Counsel

1. an accused has the right to conflict-free legal representation; however, he may waive this right so long as it is knowing and voluntary
2. as an Article I court, the CAAF notes that, absent constitutional implications in a particular case or congressional authorization, it is beyond its authority to impose the learned counsel qualification for military capital cases

Military Justice Personnel: Defense Function: Responsibilities

1. trial defense counsel have a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary; strategic choices made by counsel after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; in considering whether an investigation was thorough, an appellate court addresses not what is prudent or appropriate, but only what is constitutionally compelled; the notion that the same type and breadth of investigation will be required in every case has been rejected
2. trial defense counsel must investigate adequately the possibility of evidence that would be of value to the accused in presenting a case; further, generally speaking, effective counsel will contact potential witnesses to determine the facts of the case; however, the duty to investigate does not require trial defense counsel to personally interview every potential witness in a case; the key point in deciding this issue is whether counsel made a good faith and substantive effort to identify those individuals who might be most helpful at trial, and to implement a means for obtaining information about and from these potential witnesses, thereby allowing counsel an opportunity to make an informed decision about their value for appellant’s court-martial
3. 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
4. a trial defense counsel’s decision on whether to call a witness is a tactical and strategic decision, requiring a balancing of the benefits and risks of the anticipated testimony

Military Justice Personnel: Defense Function: Experts, Investigators -- Appointment to Defense Team

1. 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
2. although it may be advantageous to have a mitigation specialist actively participate at a capital trial, it is not required

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. an appellate court reviews ineffective assistance of counsel claims de novo; to prevail, appellant must show that counsel’s performance was deficient, and that the deficiency prejudiced the defense; an attorney is deficient when his representation falls below an objective standard of reasonableness
2. to prevail on a claim of ineffective assistance of counsel, an appellant must show that (1) his counsel’s performance fell below an objective standard of reasonableness, and (2) the counsel’s deficient performance gives rise to a reasonable probability that the result of the proceeding would have been different without counsel’s unprofessional errors
3. an appellate court is required to be highly deferential in its review of counsel’s performance, and it must presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment; further, it is constrained by the principle that strategic choices made by trial defense counsel are virtually unchallengeable after thorough investigation of the law and the facts relevant to the plausible options
4. an appellate court does not measure deficiency based on the success of a trial defense counsel’s strategy, but instead examines whether counsel made an objectively reasonable choice in strategy from the available alternatives; similarly, an appellate court must remain mindful that counsel have wide latitude in making tactical decisions; thus, an appellate court’s scrutiny of a trial defense counsel’s performance is highly deferential, and it makes every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate conduct from counsel’s perspective at the time
5. an appellant is prejudiced by counsel’s deficient performance where there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome; in the capital sentencing context, an appellate court reweighs the evidence in aggravation against the totality of available mitigating evidence to determine if there is a reasonable probability that the panel would have returned a different sentence
6. trial defense counsel have a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary; strategic choices made by counsel after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; in considering whether an investigation was thorough, an appellate court addresses not what is prudent or appropriate, but only what is constitutionally compelled; the notion that the same type and breadth of investigation will be required in every case has been rejected
7. in this case, with respect to his claim of ineffective assistance of counsel, appellant has established neither deficient performance nor prejudice; as to the first prong of IAC, appellant cannot prevail on his claims of ineffective assistance of counsel where he was represented by two experienced military attorneys who devoted more than two years to preparing and presenting the defense in this cas1e; many of the steps that were taken - or not taken - by trial defense counsel in the instant case, and that are now under scrutiny in this appeal, were the result of trial defense counsels’ strategic decision to conduct the case in a manner that avoided introduction of additional damaging information about appellant; specifically, trial defense counsel successfully sought to shield from the court-martial panel details about appellant’s alleged stabbing of a military police officer, just days before appellant’s court-martial began; trial defense counsel reasonably believed that the admission of such evidence would have seriously undermined their ability to convince the panel members during sentencing that appellant had rehabilitative potential, and thus should not be sentenced to death; as such, the performance of trial defense counsel was not measurably below the performance standards ordinarily expected of fallible lawyers; as to the second prong of the IAC test, there were several reasons that show that there was no reasonable probability that the panel members would have acquitted appellant or sentenced him to something less than the death penalty had trial defense counsel presented their case in the manner now urged on appeal; first, appellant’s murder of two officers and his attempted murder of three others was premeditated; second, prior to committing these offenses, appellant had written several incriminating passages in his diary about his intent to kill his battle buddies; third, appellant committed this attack at the start of a military operation in an effort to hobble the American military’s ability to prevail in battle; fourth, appellant was thirty-one years old at the time he committed the offenses, had served in the US Army for just under five years, and had attained the rank of sergeant; fifth, both a sanity board and many of appellant’s own experts concluded that appellant was not suffering from a severe mental disease or defect at the time he committed the offenses or at the time of testing; sixth, appellant was not intellectually deficient, as demonstrated by his engineering degree from a well-known university and his extremely high, superior IQ; and finally, even assuming that all of the information now provided by appellate defense counsel is true, appellant’s additional mitigation evidence is not sufficiently compelling to establish a substantial likelihood that the court-martial panel would have imposed a different sentence; based on these factors, if there ever was a case where a military court-martial panel would impose the death penalty, this was it
8. trial defense counsel must investigate adequately the possibility of evidence that would be of value to the accused in presenting a case; further, generally speaking, effective counsel will contact potential witnesses to determine the facts of the case; however, the duty to investigate does not require trial defense counsel to personally interview every potential witness in a case; the key point in deciding this issue is whether counsel made a good faith and substantive effort to identify those individuals who might be most helpful at trial, and to implement a means for obtaining information about and from these potential witnesses, thereby allowing counsel an opportunity to make an informed decision about their value for appellant’s court-martial
9. it can be assumed that, in some cases, counsel would be deemed ineffective for failing to consult or rely on experts
10. the mere fact that trial defense counsel did not shop around for another more favorable expert did not render them ineffective
11. 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
12. 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
13. 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
14. a trial defense counsel’s decision on whether to call a witness is a tactical and strategic decision, requiring a balancing of the benefits and risks of the anticipated testimony
15. in a capital case, if trial defense counsels’ mitigation presentation was deficient, in order to determine if prejudice has been established, an appellate court asks whether if the members had been able to place the additional evidence on the mitigating side of the scale, there is a reasonable probability that at least one member would have struck a different balance; the new mitigating evidence must differ in a substantial way - in strength and subject matter - from the evidence actually presented at sentencing
16. as an Article I court, the CAAF notes that, absent constitutional implications in a particular case or congressional authorization, it is beyond its authority to impose the learned counsel qualification for military capital cases
17. the CAAF does not adopt the ABA Guidelines in analyzing capital defense counsels’ performance; instead it adheres to the Supreme Court’s guidance that no particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant; it examines whether counsel made objectively reasonable choices based on all the circumstances of a case
18. where appellant alleges ineffective assistance of counsel on appeal, the CCA is authorized to compel trial defense counsel to submit affidavits
19. in this case, where appellant alleged ineffective assistance of counsel on appeal, absent any authority prohibiting the use of joint affidavits, the CCA did not abuse its discretion by authorizing trial defense counsel to submit a joint affidavit
20. the CAAF has reservations about the submission of joint affidavits by trial defense counsel when an appellant alleges ineffective assistance of counsel; almost by necessity, joint affidavits harmonize the memories and views of each counsel, and they often use the pronoun “we” when explaining the actions or reasoning that only one counsel may have engaged in; therefore, although the CAAF evaluates the combined efforts of the defense as a team rather than evaluating the individual shortcomings of any single counsel, it concludes that the better practice is for the CCAs to require counsel to submit individual affidavits

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. it is clear that a military judge may excuse a member sua sponte under RCM 912(f)(4); that rule permits a military judge to, in the interest of justice, excuse a member against whom a challenge for cause would lie even if neither party has raised such a challenge; although a military judge has the discretionary authority to sua sponte excuse a member, he has no duty to do so

Military Justice Personnel: Military Judge: Instructions

1. 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
2. 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

Military Justice Personnel: Court Members: Challenges for Cause

1. it is clear that a military judge may excuse a member sua sponte under RCM 912(f)(4); that rule permits a military judge to, in the interest of justice, excuse a member against whom a challenge for cause would lie even if neither party has raised such a challenge; although a military judge has the discretionary authority to sua sponte excuse a member, he has no duty to do so
2. it is not an infrequent occurrence in the military for a panel member to know a witness in a court-martial, and without more, implied bias is not found in such a circumstance
3. it is not an infrequent occurrence in the military to have panel members who have a supervisory relationship with another panel member, and without more, that is an insufficient basis to remove them from the panel; a senior-subordinate/rating relationship does not per se require disqualification of a panel member
4. an accused is entitled to have his case heard by members who are not predisposed or committed to a particular punishment, or who do not possess an inelastic attitude toward the punitive outcome
5. a member must be excused when he or she has formed or expressed a definite opinion as to the guilt or innocence of the accused as to any offense charged
6. panel members are not automatically disqualified simply because they have learned facts about an accused from outside sources
7. a member is not disqualified just because he has been exposed to pretrial publicity or even has formulated an opinion as to the guilt or innocence of an accused on the basis of his exposure as long as he will set aside any initial impressions and preconceived beliefs and follow the court’s instructions

Core Criminal Law Subjects: Evidence: Confessions and Admissions › Article 31

1. a public safety exception to Article 31, UCMJ, rights advisement exists when life is endangered; as such, an unwarned statement is admissible under Article 31(b), UCMJ, when (1) the statement falls within the public safety exception and (2) the statement is voluntary; in this case, the military judge did nor err in admitting appellant’s confession under the public safety exception where the security officer conducted his questioning of appellant, without providing him any Article 31(b), UCMJ, warnings, in a combat staging area shortly after appellant’s deadly attack on the brigade’s officer corps on the eve of battle; at the time of the questioning, the perpetrator of the attack remained at large and his identity was unclear; the questioning ensured that no further life would be endangered by seeking to definitively ascertain the identity of the attacker; once the security officer obtained appellant’s admission that he was the perpetrator, he ceased all questioning, further indicating that the questions were elicited solely to secure the safety of the camp
2. Article 31(b), UCMJ, warnings are not required when an accused’s questioner is fulfilling his operational responsibilities and not attempting to evade constitutional or codal rights; in this case, the security officer who questioned appellant following the attack, without providing him with Article 31(b), UCMJ, warnings, was fulfilling his operational responsibilities as demonstrated by the obvious safety concerns given the urgency of the threat to the unit after the attack and his limited questioning of appellant; thus, there was no need to provide appellant with Article 31(b), UCMJ, warnings
3. when evaluating the voluntariness of a statement, an appellate court reviews the totality of the circumstances to determine whether appellant’s will was overborne and his capacity for self-determination was critically impaired; this inquiry examines the accused’s age, education, experience and intelligence; in this case, certain factors support the position that appellant’s statement to the security officer was coerced, such as appellant being physically secured and questioned by a superior commissioned officer; however, any other coercive factors were minimal; under the totality of the circumstances, appellant’s confession was voluntary given his age, his college education, his rank as an NCO, and his intelligence

Trial Stages: Pretrial: Charges and Specifications

1. 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
2. (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

Trial Stages: Merits: Guilty Pleas

1. Article 45, UCMJ, states that a plea of guilty by the accused may not be received to any charge or specification alleging an offense for which the death penalty may be adjudged

Trial Stages: Sentence and Punishment: Evidence

1. 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
2. evidence about an accused’s background and character is relevant because of the belief, long held by this society, that those accused who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than those who have no such excuse

Trial Stages: Sentence and Punishment: Argument

1. 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
2. trial counsel may make such general deterrence arguments when they are not the government’s only argument and when the military judge properly instructs the members about conducting an individualized consideration of the sentence

Trial Stages: Sentence and Punishment: Capital Punishment

1. 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
2. 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
3. although it may be advantageous to have a mitigation specialist actively participate at a capital trial, it is not required
4. 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
5. 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
6. 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
7. 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
8. 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
9. 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
10. 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
11. 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
12. the congressional delegation of the RCM 1004 capital sentencing procedures to the President is constitutional
13. 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
14. 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
15. 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
16. 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

Trial Stages: Sentence and Punishment: Instructions

1. 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
2. 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

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. the CCAs have discretion to determine how additional evidence, when required, will be obtained; they may determine that evidence is required by affidavit, testimony, stipulation, or a factfinding hearing
2. where appellant alleges ineffective assistance of counsel on appeal, the CCA is authorized to compel trial defense counsel to submit affidavits
3. in this case, where appellant alleged ineffective assistance of counsel on appeal, absent any authority prohibiting the use of joint affidavits, the CCA did not abuse its discretion by authorizing trial defense counsel to submit a joint affidavit
4. the CAAF has reservations about the submission of joint affidavits by trial defense counsel when an appellant alleges ineffective assistance of counsel; almost by necessity, joint affidavits harmonize the memories and views of each counsel, and they often use the pronoun “we” when explaining the actions or reasoning that only one counsel may have engaged in; therefore, although the CAAF evaluates the combined efforts of the defense as a team rather than evaluating the individual shortcomings of any single counsel, it concludes that the better practice is for the CCAs to require counsel to submit individual affidavits

Trial Stages: Appeals: Courts of Criminal Appeals › Sentence appropriateness

1. although a proportionality review of death sentences is not constitutionally required, Article 66(c), UCMJ, require a CCA to perform a proportionality review of a death sentence as part of the sentence appropriateness determination; this review is a general offense-oriented proportionality review, meaning that the CCA must consider whether the sentence is appropriate for the crimes of conviction and whether the sentence is generally proportional to those imposed by other jurisdictions under similar situations; to perform this latter function, the CCA may consider military cases, federal district court cases, and Supreme Court decisions on state cases involving circumstances similar to an appellant’s
2. even though the CCA did not explicitly include any discussion of a proportionality review of the death sentence in its opinion, appellant implicitly received a proper legal review under Article 66(c), UCMJ, where appellant raised an Article 66(c), UCMJ, proportionality challenge below, so the CCA was fully aware of the need to resolve this issue, and absent evidence to the contrary, the CCA judges are presumed to know and properly apply the law; given this presumption and these facts, the CCA implicitly performed its Article 66(c), UCMJ, proportionality review when it determined, both initially and on reconsideration, that appellant’s approved sentence was correct in law and fact

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. as an Article I court, the CAAF notes that, absent constitutional implications in a particular case or congressional authorization, it is beyond its authority to impose the learned counsel qualification for military capital cases
2. the CAAF does not adopt the ABA Guidelines in analyzing capital defense counsels’ performance; instead it adheres to the Supreme Court’s guidance that no particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant; it examines whether counsel made objectively reasonable choices based on all the circumstances of a case
3. a denial by the CCA of an appellant’s request for appellate assistance by mental health experts is reviewed for an abuse of discretion by the CAAF; an abuse of discretion arises if the CCA’s factual findings are clearly erroneous or if its decision is based on a misapplication of the law
4. after a CCA performs a proportionality review of a death sentence, the task of the CAAF is to assure that the lower court’s review was properly performed; however, the CAAF does not require the CCA to always articulate its reasoning for its decision
5. the CAAF has reservations about the submission of joint affidavits by trial defense counsel when an appellant alleges ineffective assistance of counsel; almost by necessity, joint affidavits harmonize the memories and views of each counsel, and they often use the pronoun “we” when explaining the actions or reasoning that only one counsel may have engaged in; therefore, although the CAAF evaluates the combined efforts of the defense as a team rather than evaluating the individual shortcomings of any single counsel, it concludes that the better practice is for the CCAs to require counsel to submit individual affidavits

Trial Stages: Appeals: Harmless / Prejudicial Error

1. even assuming that the admission of appellant’s confession was error, it was harmless beyond a reasonable doubt; the admission of a confession is prejudicial if, after reviewing the entire record of an individual case, there is a reasonable possibility that the evidence complained of might have contributed to the conviction; appellant’s confession presents no such reasonable possibility because Appellant did not contest his identity as the attacker at the court-martial; also, there was overwhelming evidence that appellant was responsible for the attack, including appellant’s fingerprints on the generator switch, the rounds from appellant’s weapon matched the rounds used in the attack, and appellant’s possession of grenades when apprehended
2. 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
3. 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
4. in this case, even if the CCA erred by failing to perform a proportionality review of the death sentence, any error was harmless where the capital sentence was shown to be both appropriate and proportional for appellant’s actions in throwing grenades into three tents of fellow servicemembers and then shooting servicemembers with his M-4 rifle, killing two and wounding fourteen

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where trial defense counsel did not raise objections to the witness testimony or to the trial counsels’ argument during the court-martial, he forfeited appellate review of these issues absent plain error; to prevail under the plain error standard, appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights
2. assuming that trial counsel’s arguments were improper, in the plain error context, an appellate court determines whether the cumulative effect of an improper sentencing argument impacted the accused’s substantial rights and the fairness and integrity of his trial; this inquiry examines whether trial counsel’s comments, taken as a whole, were so damaging that the court cannot be confident that the appellant was sentenced on the basis of the evidence alone
3. the fact that trial defense counsel did not see fit to object to trial counsel’s sentencing argument is some measure that the argument had minimal impact

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews ineffective assistance of counsel claims de novo; to prevail, appellant must show that counsel’s performance was deficient, and that the deficiency prejudiced the defense; an attorney is deficient when his representation falls below an objective standard of reasonableness
2. to prevail on a claim of ineffective assistance of counsel, an appellant must show that (1) his counsel’s performance fell below an objective standard of reasonableness, and (2) the counsel’s deficient performance gives rise to a reasonable probability that the result of the proceeding would have been different without counsel’s unprofessional errors
3. an appellate court is required to be highly deferential in its review of counsel’s performance, and it must presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment; further, it is constrained by the principle that strategic choices made by trial defense counsel are virtually unchallengeable after thorough investigation of the law and the facts relevant to the plausible options
4. an appellate court does not measure deficiency based on the success of a trial defense counsel’s strategy, but instead examines whether counsel made an objectively reasonable choice in strategy from the available alternatives; similarly, an appellate court must remain mindful that counsel have wide latitude in making tactical decisions; thus, an appellate court’s scrutiny of a trial defense counsel’s performance is highly deferential, and it makes every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate conduct from counsel’s perspective at the time
5. an appellant is prejudiced by counsel’s deficient performance where there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome; in the capital sentencing context, an appellate court reweighs the evidence in aggravation against the totality of available mitigating evidence to determine if there is a reasonable probability that the panel would have returned a different sentence
6. trial defense counsel have a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary; strategic choices made by counsel after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; in considering whether an investigation was thorough, an appellate court addresses not what is prudent or appropriate, but only what is constitutionally compelled; the notion that the same type and breadth of investigation will be required in every case has been rejected
7. in determining whether there was ineffective assistance of counsel, an appellate court does not assess trial defense counsels’ performance through the prism of appellate hindsight and then apply its own subjective view of how it thinks defense counsel should have conducted the trial; rather, it is obligated to determine whether trial defense counsels’ performance fell below an objective standard of reasonableness and, if so, whether there was a reasonable probability that the result of the proceeding would have been different absent counsels’ deficient performance
8. an appellate court will not second-guess the strategic or tactical decisions made at trial by defense counsel
9. in a capital case, if trial defense counsels’ mitigation presentation was deficient, in order to determine if prejudice has been established, an appellate court asks whether if the members had been able to place the additional evidence on the mitigating side of the scale, there is a reasonable probability that at least one member would have struck a different balance; the new mitigating evidence must differ in a substantial way - in strength and subject matter - from the evidence actually presented at sentencing
10. to prevail under the plain error standard, appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights
11. assuming that trial counsel’s arguments were improper, in the plain error context, an appellate court determines whether the cumulative effect of an improper sentencing argument impacted the accused’s substantial rights and the fairness and integrity of his trial; this inquiry examines whether trial counsel’s comments, taken as a whole, were so damaging that the court cannot be confident that the appellant was sentenced on the basis of the evidence alone
12. the fact that trial defense counsel did not see fit to object to trial counsel’s sentencing argument is some measure that the argument had minimal impact
13. a challenge for change of venue based on pervasive pretrial publicity is reviewed by an appellate court for an abuse of discretion
14. servicemembers are entitled to have their cases adjudged by fair and impartial court-martial panels whose evaluation is based solely upon the evidence, not pretrial publicity; pretrial publicity by itself is not enough, however, for a change of venue; instead, an accused is entitled to a change of venue if the pretrial publicity creates so great a prejudice against the accused that the accused cannot obtain a fair and impartial trial
15. the CAAF does not adopt the ABA Guidelines in analyzing capital defense counsels’ performance; instead it adheres to the Supreme Court’s guidance that no particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant; it examines whether counsel made objectively reasonable choices based on all the circumstances of a case
16. a denial by the CCA of an appellant’s request for appellate assistance by mental health experts is reviewed for an abuse of discretion by the CAAF; an abuse of discretion arises if the CCA’s factual findings are clearly erroneous or if its decision is based on a misapplication of the law
17. ordinarily, an appellate court reviews the adequacy of a military judge’s instructions de novo; however, if an appellant fails to object to the instruction at trial, the appellate court reviews for plain error
18. when evaluating the voluntariness of a statement, an appellate court reviews the totality of the circumstances to determine whether appellant’s will was overborne and his capacity for self-determination was critically impaired; this inquiry examines the accused’s age, education, experience and intelligence
19. 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

Miscellaneous Matters: Manual for Courts-Martial: Generally

1. 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 US Attorneys’ Manual which set forth policies and procedures for federal civilian capital cases

Miscellaneous Matters: Pretrial Publicity: Generally

1. servicemembers are entitled to have their cases adjudged by fair and impartial court-martial panels whose evaluation is based solely upon the evidence, not pretrial publicity; pretrial publicity by itself is not enough, however, for a change of venue; instead, an accused is entitled to a change of venue if the pretrial publicity creates so great a prejudice against the accused that the accused cannot obtain a fair and impartial trial

Miscellaneous Matters: Pretrial Publicity: Burdens

1. a challenge for change of venue based on pervasive pretrial publicity is reviewed by an appellate court for an abuse of discretion
2. servicemembers are entitled to have their cases adjudged by fair and impartial court-martial panels whose evaluation is based solely upon the evidence, not pretrial publicity; pretrial publicity by itself is not enough, however, for a change of venue; instead, an accused is entitled to a change of venue if the pretrial publicity creates so great a prejudice against the accused that the accused cannot obtain a fair and impartial trial