Reflections on Sullivan and Potter and the Military Death Penalty

11/14/2020

Dwight Sullivan and Jonathan Potter gave an impressive lecture on the death penalty in the military yesterday. Three questions from the audience were intriguing and may be of interest to readers here:

1. Potter noted that only a large command will attempt to pursue a capital case because only a large command has the resources to do so. The audience wondered whether this would give rise to some sort of legal claim (probably Equal Protection?). [A thought: is this also true of other prosecution decisions, and if so, does it weigh in favor of centralizing disposition authority?]

2. Why are all of the current death row inmates in the military from the Army?

3. If there are so few capital cases, how would it be possible for a military JAG to become learned counsel given the requirement of second-chairing a previous capital case?

Brenner Fissell

EIC

8 Comments

Philip D Cave link

11/14/2020 01:42:13 pm

MLDHS can answer better than me, but the other Services' cases ended up with the DP off the table--e.g., Witt (AF), Quintanilla (MC), Parker (MC), Curtis (MC). Fricke (NA) had a PTA in a case referred non-capital. However, he was killed by another prisoner at the USDB, I think a month or two before he was to be paroled??? (ML???)

Don Rehkopf

11/14/2020 02:47:41 pm

Having second-chaired two Army death penalty cases in the early 1980's, institutionally the military justice system simply lacks the experience (and thus, competence) to handle death penalty cases. E.g., the GTMO prisoners have more procedural due process rights than does an accused under the UCMJ, in death-eligible cases.

The JAG's involved, CoJ's, SJA's, and MAJCOM SJA's, lack the trial experience and thus, do not appreciate the complexities of pursuing death. E.g., why would an SJA recommend that a CA deny DNA resources to the defense, as in Hennis? [Disclaimer: I briefly worked on Hennis's case pretrial]; or in Gray [Disclaimer: I authored an amicus brief for NACDL at SCOTUS in 2001 (that's right) on this issue], where after voir dire and challenges, there remained only 6 members - the defense moved for an adjournment to allow the CA to detail additional members to ensure a 12 member panel [Art. 25a, was a result] which the MJ said he would grant "UNLESS the government objected," which of course they did, and the MJ abdicated his judicial role to the TC. Gray was convicted and sentenced to death by a 6 person panel! And Gray has been in litigation ever since.

The AF dabbles in death, but that's about all. About 15 years ago, I had a client where the SJA told me, "Take the 50 year deal, or we're going capital." "Bring it on," was our response, "because you have no clue what you're doing." The client ended up with a 9 month, time served sentence. My point here is just because the UCMJ may authorize a death sentence, doesn't mean it's remotely viable and if not, then other than the proverbial "notch on your gun" approach, why go down that road?

Philip D Cave link

11/14/2020 03:16:31 pm

Before I retired, I was one of only several very experienced Navy defense counsel. I was one of several who actually attended the required death penalty litigation training. In the only DP likely case I had we got the DP off the table after the 32--Note, the old 32 where you got discovery and witnesses and an opportunity to present reasons why a particular course of action was a better course for the commander. I would not pretend to be "learned counsel," and I don't know of any who might fit that bill at the moment.

Don refers to Gitmo.

Remember the fiasco at the Commissions when the Navy LT got stuck with a DP case when the civilian counsel were removed--and in the beginning the CMJ wanted him to proceed with the pending litigation.

https://www.aclu.org/blog/national-security/detention/guantanamo-death-penalty-case-without-death-penalty-lawyer

Of course, it wasn't too long after this that the judge had his own issues; issues that have spilled over into "regular" courts-martial, see, e.g., Snyder.

https://www.politico.com/blogs/under-the-radar/2017/11/01/abd-al-rahim-al-nashiri-halt-prosecution-244411

https://deathpenaltyinfo.org/news/lack-of-death-penalty-counsel-brings-guant%C3%A1namo-war-crimes-trial-to-a-halt

Tami a/k/a Princess Leia

11/14/2020 08:34:26 pm

There are only 4 inmates on death row. Yes, all of them are Army b/c the Army is the largest service, so statistically speaking, is one reason why, one of them had his death warrant signed by Pres. George Bush and is STILL alive, and all 4 of them have committed heinous crimes.

We used to have more inmates on death row, including from other services, but DP litigation takes forever during trial (Hasan took 4 years), and even longer on appeal (think decades), and bouncing between appellate courts, sometimes they just end up reducing the sentence from death to LWOP just to end the ping-ponging.

Call me jaded, but the DP in the military just isn't worth it. If Hasan had gotten life, he'd only have one appeal as a matter of right, not 2. But due to the death sentence, he will probably die before his appeals are complete.

Dwight Sullivan

11/15/2020 07:06:18 pm

[Standard disclaimer: This comment is offered in my personal capacity and should not be imputed to anyone or anything else.] My Liege -- LCDR Michael Fricke was doing 30 years in the USDB for hiring someone to kill his wife. About three months before he was scheduled to be paroled, he was umpiring a USDB softball game. Inmate Steven Chapman (who was confined for life after being convicted of offenses including premeditated murder and rape) was apparently dissatisfied with his calls and hit him in the head with a baseball bat, causing fatal head trauma. When asked for comment, the mother of his victim -- Fricke's former mother-in-law -- said, "All we can say is, God takes care of everything." https://www.pilotonline.com/news/crime/article_85176e31-2b9a-57a9-86a5-f85895dde3f3.html .

The Air Force dispatched Ryan Hendricks -- a former professional baseball player -- to serve as Chapman's counsel (proving that the Air Force JAG Corps has a sense of humor; who knew?). Ryan did a great job and got his client a non-capital outcome. Ryan is now a bird colonel and the SJA at the Air Force base in Guam -- where the AIr Force carried out two of the three executions in its history.

manyopinions

11/17/2020 02:40:05 pm

Wasn't Bales originally referred capital? At least two of his detailed defense counsel remain in the Army, but that might be as deep as the "bench" gets for current DP practitioners.

Tami a/k/a Princess Leia

11/17/2020 03:44:01 pm

I believe Bales was referred capital, but he pled guilty to take the DP off the table. Got LWOP.

Charles Anzalone

12/2/2021 11:01:35 am

When the military death penalty was briefly overturned in 1983 (US v Matthews), death row was emptied and all death sentences inmates had their sentences commuted to life. (Matthews, Gay, Brown aka Mustafa, Redmond, Artis, Hutchinson, Rojas). All were transferred to the feds eventually where all were eventually paroled except for Rojas who died in prison in 1998 and Matthews aka Al-Mutawkkil, who is still confined at USP Marion. They are not the only service members once sentenced to death who had their sentences commuted to life and are free today, others include King, Relford, Turner, and Dock.

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Reflections on Sullivan and Potter and the Military Death Penalty

Brenner Fissell

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