UNITED STATES, Appellee
v.
Hasan K. AKBAR, Sergeant
U.S. Army, Appellant
No. 13-7001
Crim. App. No. 20050514
United States Court of Appeals for the Armed Forces
Argued November 18, 2014
Decided August 19, 2015
OHLSON, J., delivered the opinion of the Court, in which STUCKY
and RYAN, JJ., joined. BAKER, J., filed a separate dissenting
opinion, in which ERDMANN, C.J., joined.
Counsel
For Appellant: Lieutenant Colonel Jonathan F. Potter and Major
Aaron R. Inkenbrandt (argued); Colonel Kevin Boyle and Major
Jacob D. Bashore (on brief).
For Appellee: Major Kenneth W. Borgnino and Captain Janae M.
Lepir (argued); Colonel John P. Carrell, Lieutenant Colonel
James L. Varley, and Captain Carrie L. Ward (on brief); Captain
Chad M. Fisher.
Amicus Curiae for Appellant: Andrea D. Lyon, Esq. -- for
National Association of Criminal Defense Lawyers (on brief).
Military Judges: Dan Trimble, Patrick J. Parrish, and Stephen
R. Henley
This opinion is subject to revision before final publication.
United States v. Akbar, No. 13-7001/AR
Judge OHLSON delivered the opinion of the Court.
Contrary to his pleas, a panel of officer and enlisted
court-martial members convicted Appellant of attempted murder
(three specifications) and premeditated murder (two
specifications), in violation of Articles 80 and 118, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 918 (2000).
The fifteen-member panel sentenced Appellant to death. The
convening authority approved the adjudged sentence, and the
United States Army Court of Criminal Appeals (CCA) affirmed the
findings and sentence. United States v. Akbar, No. ARMY
20050514, 2012 CCA LEXIS 247, at *102, 2012 WL 2887230, at *32
(A. Ct. Crim. App. July 13, 2012) (unpublished). Appellant’s
case is now before us for mandatory review under Article
67(a)(1), UCMJ, 10 U.S.C. § 867(a)(1) (2012).
Overview of the Case
The evidence adduced at trial showed that on the night of
March 22, 2003, as American armed forces were preparing to
launch Operation Iraqi Freedom from their staging area in
Kuwait, Appellant threw grenades into three of the tents of his
fellow servicemembers and opened fire with his M-4 rifle,
killing two military officers and wounding fourteen others. The
ensuing investigation revealed that Appellant previously had
written in his diary of his intent to “kill as many of [his
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fellow servicemembers] as possible” as soon as he arrived in
Iraq.
Although Appellant raises a number of issues for review,
the gravamen of his appeal focuses on whether his attorneys
provided ineffective assistance of counsel. The Supreme Court
has set a high bar for an appellant to prevail on such a claim.
Specifically, the seminal case of Strickland v. Washington,
466 U.S. 668 (1984), requires an appellant to 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. Id. at 688, 694. Upon analyzing both
the law and the facts in this case, we conclude that Appellant
has failed to meet either of these requirements established by
the Supreme Court.
In regard to the first prong of Strickland, we first note
that Appellant was represented by two experienced military
attorneys who devoted more than two years to preparing and
presenting the defense in this case. With the benefit of
appellate hindsight, we could dissect every move of these trial
defense counsel and then impose our own views on how they could
have handled certain matters differently and, perhaps, better.
However, that is not the standard of review we are obligated to
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apply. Rather, based on long-standing precedent from the
Supreme Court, we are required to be “highly deferential” in our
review of counsel’s performance, and we must presume that
counsel “rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.”
Id. at 689, 690. We also are 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. Id. at 690-91.
Concerning this last point, we are particularly mindful
that 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 (MP), just days before Appellant’s court-martial began.
We conclude that 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. For this and other reasons discussed in
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greater detail below, we conclude that the performance of trial
defense counsel was not “measurably below the performance
standards ordinarily expected of fallible lawyers.” United
States v. Davis, 60 M.J. 469, 474 (C.A.A.F. 2005).
In regard to the second prong of the ineffective assistance
of counsel test, several reasons convince us that there was no
reasonable probability that the panel members would have
acquitted Appellant or sentenced Appellant 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 Army Captain (CPT) Christopher Seifert and Air Force
Major (MAJ) Gregory L. Stone, and his attempted murder of other
officers of the United States armed forces, was premeditated.
Second, prior to committing this offense, Appellant had written
incriminating passages in his diary, such as: “I may have to
make a choice very soon about who to kill. . . . I will have to
decide if I should kill my Muslim brothers fighting for Saddam
Hussein or my battle buddies”; and, “I am not going to do
anything about it as long as I stay here. But as soon as I am
in Iraq I am going to kill as many of [my fellow servicemembers]
as possible.” Third, Appellant committed this attack in Kuwait
at the start of Operation Iraqi Freedom 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
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offenses, had served in the United States Army for just under
five years, and had attained the rank of sergeant. Fifth, both
the 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 offense 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, we conclude that 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. See Cullen v.
Pinholster, 131 S. Ct. 1388, 1410 (2011); see also United States
v. Kreutzer, 61 M.J. 293, 300 (C.A.A.F. 2005) (noting that
“overwhelming evidence of guilt may present an insurmountable
obstacle to an appellant claiming prejudice from ineffective
assistance of counsel”). Based on these factors and others
discussed below, we conclude that if there ever was a case where
a military court-martial panel would impose the death penalty,
this was it.
Since Appellant can establish neither deficient performance
nor prejudice, we conclude that Appellant cannot prevail on his
claims of ineffective assistance of counsel. We further
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conclude that Appellant’s other assignments of error are
similarly without merit. Accordingly, we affirm the lower
court’s decision.
I. Facts
A. The Offenses
In March 2003, soldiers from the 1st Brigade, 101st
Airborne Division, were stationed at Camp Pennsylvania, Kuwait,
preparing to begin Operation Iraqi Freedom. On the night of
March 22, Appellant was guarding grenades with another soldier.
When Appellant was left alone, he stole seven grenades: four M-
67 fragmentation grenades and three M-14 incendiary grenades.
The brigade was scheduled to cross the border from Kuwait into
Iraq in the next few days.
Before movement and while most of the brigade slept,
Appellant took a fellow soldier’s body armor and then walked to
the tents of the brigade officers. He shut off the generator
for the outdoor lighting to the tent area, plunging it into
darkness. Appellant then threw one incendiary and one
fragmentation grenade into Tent 1, where the brigade commander
(Colonel (COL) Frederick Hodges), brigade executive officer (MAJ
Ken Romaine), and brigade sergeant major (Command Sergeant Major
(CSM) Bart Womack) were sleeping. When MAJ Romaine emerged from
the tent, Appellant shot him, severely injuring, but not
killing, him.
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Appellant then moved to Tent 2 where several officers and
two interpreters were sleeping and threw two fragmentation
grenades into the tent. Many of the officers were injured from
the shrapnel, and MAJ Gregory Stone was killed from eighty-three
shrapnel wounds.
Appellant finally moved to Tent 3, which housed sixteen
officers, and threw a fragmentation grenade into the tent, which
injured multiple officers. When CPT Christopher Seifert exited
the tent, Appellant shot him in the back at close range, causing
CPT Seifert to bleed to death.
In the midst of the military’s response to the attacks, the
brigade S-2, MAJ Kyle Warren, learned from COL Hodges that
Appellant may have attacked Camp Pennsylvania. MAJ Warren found
Appellant and tackled him to the ground. When MAJ Warren asked
Appellant if he had attacked the tents, Appellant responded,
“Yes.”
At the time of apprehension, Appellant was in possession of
one fragmentation grenade and two incendiary grenades along with
three empty incendiary grenade canisters. His weapon, an M-4
rifle, had been recently fired. Ballistics testing matched the
bullets from Appellant’s firearm with those that had wounded MAJ
Romaine and killed CPT Seifert. Appellant also had M-14 and M-
67 grenade residue on his uniform and hands. His fingerprints
were on the switch to shut off the generator.
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B. The Trial Defense Team
Following the March 2003 Camp Pennsylvania attack,
Appellant was initially represented by MAJ Daniel Brookhart, CPT
David Coombs, CPT Jackie Thompson, and Lieutenant Colonel (LTC)
Victor Hansen. Of these counsel, LTC Hansen was the most
experienced because he had served as a trial counsel, senior
trial counsel, and chief of military justice, as well as a
professor of criminal law at what is now known as the Army Judge
Advocate General’s Legal Center and School (LCS). He also had
served as the lead trial counsel for a fact-finding hearing in a
capital case, United States v. Murphy. Given this experience,
LTC Hansen served as lead counsel.
Although LTC Hansen had the most capital experience among
the group, the other counsel were also well-qualified judge
advocates. Because Appellant’s claims of ineffective assistance
of counsel mostly concern MAJ Brookhart and CPT Coombs, we
describe their qualifications in some detail.
MAJ Brookhart had served as a judge advocate for
approximately eleven years before the pretrial hearings began
for Appellant’s court-martial. He had earned a master of laws
in military law from the LCS with a specialty in criminal law.
MAJ Brookhart had tried seventy-five cases as trial counsel or
senior defense counsel, including fifteen contested trials
involving serious offenses. He had dealt with expert witnesses,
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including mental health experts. He had been a government
appellate counsel for a year, during which time he attended the
capital litigation course held by the Naval Justice School. He
took this course so that he could handle the capital case of
United States v. Kreutzer. He also had participated in the
trial counsel assistance program which provided him with
litigation training. Additionally, MAJ Brookhart had served as
branch chief at the government appellate division where he
participated in strategy sessions for the Murphy capital case,
and reviewed and edited the brief in the Kreutzer capital case.
MAJ Brookhart had argued seven cases before this Court and seven
cases at the CCA.
CPT Coombs had served as a judge advocate for approximately
seven years before his appearance as counsel at Appellant’s
pretrial hearing. During this time, CPT Coombs had served for
more than two years as a trial counsel and for nearly four years
as a defense counsel. CPT Coombs had tried seventy-eight cases,
fifteen of which were contested. He had worked with expert
witnesses, including forensic psychiatrists. CPT Coombs also
had attended a week-long death penalty course in September 2003.
In preparation for Appellant’s case, both counsel consulted
capital resources to include motions in other capital cases, law
review articles, and materials from a capital litigation course.
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In addition to these two attorneys, the trial defense team
also included a forensic psychiatrist, Dr. Walker, and a
neuropsychologist, Dr. Clement, who both started working on the
case in May 2003. Dr. Walker was used to assist the defense in
understanding Appellant’s mental status at the time of the crime
and the trial, to help prepare a sentencing case, and to observe
the Rule for Courts-Martial (R.C.M.) 706 board. Dr. Clement
conducted neuropsychological tests on Appellant for the benefit
of other defense experts. A forensic DNA expert joined the
defense team in June 2003 to observe Government testing of key
evidence.
Initially the attorney workload was divided as follows.
MAJ Brookhart focused on findings issues, CPT Coombs took the
lead on motions, CPT Thompson contacted potential witnesses
while deployed in Iraq, and LTC Hansen worked mitigation issues.
The strategy was to use the services of a mitigation specialist,
Ms. Deborah Grey, early in the process in order to uncover and
develop information that could be used to avoid a capital
referral and to submit an offer to plead guilty. LTC Hansen
advised Appellant that an offer to plead guilty would be the
best way to avoid a capital referral. On two occasions,
Appellant agreed to this strategy, but he ultimately changed his
mind.
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In furtherance of the mitigation strategy, Ms. Grey began
her work in August 2003 and was authorized to perform 400 hours
of mitigation work. LTC Hansen and Ms. Grey traveled to
Appellant’s childhood neighborhoods where they interviewed
friends, family members, and associates, including Appellant’s
childhood imam, Appellant’s brother, high school teachers and
administrators, and college professors and administrators. Ms.
Grey provided the defense team with detailed written summaries
of these interviews and also collected school, medical,
employment, military, and other official records.
Appellant’s mother, whom counsel described as having an
emotional and mental influence over Appellant, did not agree
with LTC Hansen’s strategies or the mitigation efforts. In
December 2003, Appellant’s mother sent a letter to MAJ
Brookhart, informing him that she had asked her son to fire LTC
Hansen and CPT Thompson because she did not trust them, in large
part because they were encouraging Appellant to plead guilty.
As a result, at his mother’s behest, Appellant released LTC
Hansen, the defense’s most experienced capital litigator, as
well as CPT Thompson, in January 2004.
To replace the dismissed military counsel, Appellant, with
his mother’s encouragement, retained as lead counsel two
civilian attorneys, Mr. Musa Dan-Fodio and Mr. Wazir Ali-
Muhammad Al-Haqq, at different times in the pretrial
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proceedings. Neither attorney had capital litigation experience
nor military justice experience. As the first civilian lead
counsel, Mr. Dan-Fodio changed trial strategy to try to get
Appellant’s case transferred to the United Nations Human Rights
Commission or another international forum or, alternatively, to
focus on self-defense, defense-of-others, duress, and
Appellant’s innocence.
Mr. Dan-Fodio subsequently withdrew from the case and was
replaced by Mr. Al-Haqq in the spring of 2004. This left
Appellant with three counsel -- Mr. Al-Haqq, MAJ Brookhart, and
CPT Coombs. Mr. Al-Haqq became lead counsel and focused on an
insanity defense. For this purpose, in June 2004, the defense
team retained Dr. George Woods Jr., a neuropsychiatrist and
forensic psychiatry expert. By this point, the defense team
also had obtained the assistance of a ballistics and gunshot
powder residue expert, a certified latent print examiner, and a
pathologist to review physical and scientific evidence.
Around the time Appellant retained Mr. Al-Haqq as lead
counsel, Ms. Grey was informed in early May 2004 that her
services as a mitigation specialist were no longer needed
because Appellant’s mother refused to permit Ms. Grey to
interview her or anyone else in her family. At the time of her
withdrawal, Ms. Grey estimated that approximately 200 hours
would be needed to complete the mitigation case.
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In August 2004, Mrs. Scharlette Holdman replaced Ms. Grey
as the defense team’s mitigation specialist, and she was
authorized to conduct seventy-five hours of interviews of
Appellant’s family members. When Mrs. Holdman withdrew for
medical reasons, Ms. Scarlet Nerad replaced her in September
2004. The Government authorized Ms. Nerad to conduct 368 hours
of mitigation investigation and 198 hours of base-level
investigation. Ms. Nerad interviewed Appellant, his father,
mother, sisters, brother, half-brother, grandfather, aunts,
uncles, and cousins. She also collected thousands of pages of
documents, including court records, medical records of Appellant
and his relatives, and education records of Appellant’s
siblings.
When Mr. Al-Haqq stopped receiving payments from Appellant,
he ceased working on the case in August 2004. He informed
counsel he was withdrawing in late February 2005, but military
counsel had anticipated this announcement and had worked to
prepare Appellant’s case for trial accordingly. MAJ Brookhart
and CPT Coombs were now left as Appellant’s trial defense
counsel. By the start of the court-martial, the defense team
already had managed to file nearly sixty motions on multiple
topics, including many of the issues raised in this appeal.
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C. Trial Proceedings
Following numerous continuances, Appellant’s trial was
scheduled to begin on April 6, 2005, 744 days after Appellant’s
attack on Camp Pennsylvania. However, on March 30, 2005,
Appellant allegedly found a pair of scissors in the office of
the staff judge advocate and used them to stab an MP in the
neck. Appellant also allegedly tried to seize the MP’s firearm
before being subdued by another MP.1 Following the incident, the
military judge, upon trial defense counsels’ motions, reopened
the R.C.M. 706 sanity board and preliminarily prevented the
Government from referencing the stabbing incident. The sanity
board deemed Appellant competent to stand trial.
Following the alleged scissors attack, trial defense
counsel did not seek a delay in the start of the trial in a
successful effort to preclude the Government from having the
opportunity to refer additional charges against Appellant.
Thus, trial proceedings began, as scheduled, on April 6, 2005.
Twenty members were detailed to the venire pool. Following two
days of voir dire, a fifteen-member panel consisting of nine
officers and six enlisted soldiers was selected after the
defense successfully challenged one member for cause and the
1
Appellant was not charged in the stabbing incident. Also, as
discussed below, Appellant’s counsel successfully prevented the
panel from considering this incident during the sentencing phase
of Appellant’s trial.
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Government successfully challenged three members for cause and
used one peremptory challenge.
The Government’s case on the merits lasted four days and
involved forty witnesses who mostly testified about the Camp
Pennsylvania attack on March 22, 2003. When witnesses had
information about Appellant, trial defense counsel cross-
examined them, eliciting information about Appellant’s unfocused
state in the period leading up to the attack, his daydreaming,
his sleep problems and tendency to fall asleep at inappropriate
times, his long periods of silence, his laughing and smiling
without reason, and his tendencies to pace and talk to himself.
Trial defense counsel also elicited through cross-examination
that Appellant had heard servicemembers joking about and using
derogatory terms for Muslims.
Besides witness testimony, the Government’s case involved
admission of these entries from Appellant’s diary:
I may have not killed any Muslims, but being in
the Army is the same thing. I may have to make a
choice very soon about who to kill.
I will have to decide if I should kill my Muslim
brothers, fighting for Saddam Hussein, or my battle
buddies.
I’m hoping to get into a position so I don’t have
to take any crap from anyone anymore.
For the defense case on the merits, counsels’ strategy was
two-fold: (1) to present evidence establishing diminished
mental capacity so as to raise doubt about Appellant’s ability
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to premeditate; and (2) to “frontload” mitigation evidence
during the merits stage of the trial. As part of this strategy,
trial defense counsel elicited testimony from nine defense
witnesses.
Dr. Fred Tuton was a clinical psychologist who had examined
Appellant at the age of fourteen after allegations surfaced
about Appellant’s sister being sexually abused by Appellant’s
stepfather. Dr. Tuton testified that Appellant displayed no
normal emotions during the meeting and reported having sleep
problems and not being able to trust people. Dr. Tuton
diagnosed Appellant with an adjustment disorder with depressed
mood associated with a mixed specific developmental disorder.
Mr. Paul Tupaz, Appellant’s college roommate, testified
about his friendship with Appellant which lasted until 1994.
According to Mr. Tupaz, Appellant had difficulty sticking to his
plans, was not very social and spent time by himself, “paced a
lot,” talked to himself, and had difficulty sleeping.
Members of Appellant’s unit and unit leadership testified
about Appellant’s poor work performance, his isolation from
others, his pacing and talking to himself, his sleeping
difficulties, and his laughing and smiling at inappropriate
times. One servicemember testified about military personnel
using derogatory names regarding Muslims in Appellant’s
presence.
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The testimony of Dr. Woods, Appellant’s expert in forensic
psychiatry, revealed a family history of mental illness,
particularly a maternal uncle with psychiatric problems, a
father with depression, and a half-brother with paranoia. Dr.
Woods explained that Appellant had come from an “extremely
poverty-stricken home” and had an “extraordinarily abusive”
stepfather. Additionally, he noted that Appellant’s mother had
been homeless. Dr. Woods reported that test scores revealed
Appellant to be suffering from depression, paranoia,
impulsivity, sleep problems, and bizarre thinking, which Dr.
Woods believed was corroborated by Appellant’s diary entries and
academic history. Dr. Woods further testified that Appellant
had difficulty picking up social cues, perceiving situations,
and differentiating reality.
Although Dr. Woods could not provide a definitive
diagnosis, he provided three “differential”2 diagnoses:
(1) schizotypal disorder; (2) schizophrenia paranoid type; and
(3) schizoaffective disorder. Dr. Woods believed that
Appellant’s symptoms affected him on March 22, 2003, by causing
him to be overwhelmed emotionally and preventing him from
thinking clearly.
2
According to Dr. Woods, a differential diagnosis is based upon
an individual’s symptoms and provides the possible disorders
that would be consistent with the symptoms.
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In closing argument, trial defense counsel argued that the
evidence showed that Appellant had a mental illness at the time
the attack occurred, and that the Government had therefore
failed to meet its burden of proving premeditation. Counsel
explained that Appellant’s mental illness caused him to become
emotionally charged, which in turn led Appellant to react out of
confusion and fear. Throughout the closing, counsel argued that
Appellant’s actions did not represent “good planning,” “just
confusion.”
Despite the defense case and counsel’s closing argument,
the panel members returned a guilty verdict on the premeditated
murder and attempted murder charges. The case then moved to the
sentencing phase.
The Government’s presentencing case lasted one-and-a-half
days and included the testimony of twenty-one witnesses. COL
Hodges, the brigade commander, testified about the impact of the
attack on the brigade’s battle readiness. In response to a
question about the psychological impact of Appellant’s attack,
COL Hodges stated that he “hated” that a “fragging had occurred”
in his unit, noting that in reflecting on the “worst days for
the United States Army, at the end of Vietnam, the two things
that [came] to mind [were] heavy drug use and fraggings.”3
3
A fragging is an incident in which an individual “deliberately
injure[s] or kill[s] (one’s military leader) by means of a
fragmentation grenade.” Merriam-Webster Unabridged Online
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Other servicemember victims testified about the impact of
their injuries, the psychological impact of the attack, the
impact on their military careers, their memories of the deceased
victims, and their reactions upon learning that the attacks were
by a fellow servicemember. As to this last point, the
servicemember victims testified about feeling “disbelief,”
“distrust,” “shock[],” “betrayed,” “[e]xtremely frustrated,
angry,” “pissed,” and “confused.”
Colleagues of the victims also testified about feeling
“anger,” “disbelief,” and “betrayal” upon learning another
servicemember was responsible. Finally, the deceased victims’
family members and friends testified about the impact of losing
CPT Seifert and MAJ Stone.
Prior to the start of Appellant’s presentencing case, the
defense admitted a binder containing fifteen exhibits:
(1) Appellant’s entire diary (313 pages); (2) the FBI’s written
synopsis of the diary (nine pages); (3) Ms. Grey’s mitigation
report showing Appellant’s family tree, Appellant’s personal
history, and a summary of Appellant’s diary (thirty-three
pages); (4) government records reflecting Appellant’s family’s
use of food stamps from 1986-1994 (nineteen pages); (5) the
search and seizure authorization for Appellant’s military e-mail
Dictionary, http://unabridged.merriam-
webster.com/unabridged/fragging (last visited Aug. 14, 2015).
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account (one page); (6) definitions of relevant Islamic terms
(eight pages); (7) Appellant’s paperwork for his name change
(four pages);4 (8) Ms. Grey’s interview notes from a high school
guidance counselor (one page); (9) Ms. Grey’s interview notes
from a high school teacher (two pages); (10) Ms. Grey’s
interview notes from the high school college advisor and
photographs of the high school (six pages); (11) another
mitigation specialist’s interview notes with the ex-wife of
Appellant’s college roommate (two pages); (12) a memorandum from
a servicemember in Appellant’s platoon (three pages); (13) a
memorandum of the equal opportunity advisor for the brigade
(four pages); (14) Ms. Grey’s interview notes with Appellant’s
childhood imam and three photographs of Appellant’s childhood
mosque (six pages); and (15) the criminal records for
Appellant’s stepfather (four pages).
Before providing each member with a binder, the military
judge instructed the members that once the trial recessed for
the day, they would be provided defense exhibits to read at home
or work. The military judge added that the members were not to
conduct independent research, discuss the exhibits with anyone,
or copy the exhibits.
4
Appellant’s birth name was Mark Fidel Kools. His parents
became members of the Nation of Islam, and Appellant’s name was
changed to Hasan Karim Akbar when Appellant was eight years old.
Appellant enlisted in the Army under his birth name. However,
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The following morning, the defense presented its case in
mitigation. The defense presented testimony from CPT David
Storch (one of Appellant’s former platoon leaders), SFC Daniel
Kumm (the platoon sergeant for 2nd Platoon), and Mr. Dan Duncan
(Appellant’s high school physics teacher). CPT Storch testified
about Appellant’s termination from his platoon and Appellant’s
problems as a noncommissioned officer (NCO), including
difficulties relating well with soldiers, needing detailed
guidance to perform tasks, and performing in an increasingly
unsatisfactory manner over time. SFC Kumm testified about
Appellant being a “below average” NCO, being a soldier he did
not want to take to Iraq, and being assigned the task of
guarding grenades on March 22, 2003, at Camp Pennsylvania in
Kuwait. Mr. Duncan testified about the “very poor, low
socioeconomic, high crime,” and gang-ridden area where
Appellant’s high school was located. He described Appellant as
an “excellent student” who was memorable for trying to learn
material and being in “the top 5 to 10” students whom Mr. Duncan
had ever taught at the high school. Mr. Duncan described
Appellant as living in “a drab apartment building in a rather
depressed area.” After Mr. Duncan’s testimony, the military
judge recessed for the day “because of some witness travel
he petitioned to change his name to Hasan Akbar in June 2001,
and the Army finalized the name change in September 2001.
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schedules,” and for a second day he permitted the members to
take the defense-created binders home with them.
On the final morning of the defense’s presentencing case,
the defense offered into evidence and distributed to the members
copies of two statements: one from Ms. Regina Weatherford,
Appellant’s former high school classmate, and one from
Appellant’s brother. Ms. Weatherford’s statement described
Appellant’s academic success in high school and his tendency to
sit by himself during high school. The brother’s statement
described how Appellant helped raise him, how Appellant
financially helped the family, and how Appellant had trouble
falling in love too quickly with women. Defense counsel agreed
with the military judge that they had decided for “sound
tactical reasons” not to call Ms. Weatherford or Appellant’s
parents to testify.
The final piece of Appellant’s sentencing case was his
unsworn statement before the members of the court-martial panel.
Appellant took the stand and explained that he had decided not
to read the six-page statement that he previously had prepared
because he felt that it sounded “like an excuse.” Instead, he
said, “I want to apologize for the attack that occurred. I felt
that my life was in jeopardy, and I had no other options. I
also want to ask you to forgive me.”
23
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During trial defense counsel’s sentencing argument, counsel
emphasized that the Government’s argument was “based upon
emotion,” and that emotion should not be used when deciding
whether to impose the death penalty. He argued for life without
parole “based upon logic and reason.” Counsel cited Appellant’s
mental illness, noting that the diary provided “a unique look
into [Appellant’s] mind.” Counsel also cited Appellant’s sleep
problems as negatively affecting his ability to think. Counsel
further noted the command’s responsibility, as part of a “band
of brothers,” to ensure poor performers or those with mental
illness did not deploy and did not remain as members of the
Army. Counsel then cited Appellant’s difficult upbringing and
school environment. Counsel ultimately returned to and
emphasized Appellant’s mental illness as the cause of the lethal
events at Camp Pennsylvania.
The military judge provided the panel members with
instructions on the procedures that must be used during
deliberations in capital cases. Specifically, the military
judge instructed the members that in order for them to impose
the death penalty: (1) they had to unanimously find beyond a
reasonable doubt that an aggravating factor existed; (2) they
had to unanimously find that the extenuating and mitigating
factors were “substantially outweighed” by the aggravating
circumstances; and (3) they had to reach the decision to impose
24
United States v. Akbar, No. 13-7001/AR
death unanimously based on each member’s individual decision.
The military judge listed thirty-one mitigating factors but
explained that they were not the exclusive factors that the
members could consider. Trial defense counsel explicitly stated
that he did not object to these instructions.
The members then began their deliberations. Approximately
six hours later, the military judge held an Article 39(a), UCMJ,
10 U.S.C. § 839 (2012), hearing to discuss this note from the
members: “Sir, reconsideration has been proposed.” The
military judge proposed to the parties that he use
reconsideration instruction 2-7-19 from the Military Judges’
Benchbook (Benchbook), and the parties agreed.5 Appellant never
raised an objection to the instruction. Following additional
5
The reconsideration instruction explained the process for the
members to revote after reaching a sentence if a member proposed
reconsideration, noting that the process was different depending
on whether the proposal to reconsider related to increasing or
decreasing the sentence. The instruction outlined the following
process for determining whether the panel could reconsider and
revote the sentence: (1) if the proposal was to increase the
sentence, a majority of members had to vote by secret ballot in
favor of reconsideration; (2) if the proposal was to decrease
the sentence, one-fourth of the members had to vote in favor of
reconsideration with a view to decrease the sentence; and (3) if
the sentence reached was death, only one member vote was
required to reconsider the sentence. If the required votes were
not obtained for reconsideration, the instruction informed the
members that they were to announce the original sentence without
indicating whether it was the original or reconsidered sentence.
But, if a sufficient number of votes were obtained for
reconsideration, the instruction required the members to adhere
to the military judge’s original instructions for proposing and
determining an appropriate sentence.
25
United States v. Akbar, No. 13-7001/AR
deliberations, the president of the panel announced that the
members had unanimously determined that an aggravating factor
had been proven beyond a reasonable doubt, and that the matters
in mitigation and extenuation were “substantially outweighed” by
the aggravating circumstances. The president then announced
that the members had voted unanimously that Appellant should be
“put to death.”
II. Analysis
Appellant’s counsel has assigned a total of fifty-nine
issues for this Court to consider. Appellant also has
personally presented a number of additional matters for us to
consider pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982).6 After careful review, we conclude that a
majority of the assigned issues and all of the personally
asserted issues do not have merit and therefore warrant no
additional discussion. However, we deem it appropriate to
address below twenty-one assigned matters, starting with
Appellant’s ineffective assistance of counsel claims.
A. Ineffective Assistance of Counsel
Appellant challenges the effectiveness of trial defense
counsels’ performance at all stages of the pretrial and trial
6
The assigned issues and personally asserted Grostefon issues,
which we permitted Appellant to submit out of time, United
States v. Akbar, 73 M.J. 242 (C.A.A.F. 2014) (order), are listed
in the Appendix to this decision.
26
United States v. Akbar, No. 13-7001/AR
proceedings.7 We review these ineffective assistance of counsel
claims de novo. See United States v. Datavs, 71 M.J. 420, 424
(C.A.A.F. 2012). To prevail, Appellant “must show that
counsel’s performance was deficient, and that the deficiency
prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521
(2003). An attorney is deficient when his representation falls
“below an objective standard of reasonableness.” Id.
We do not measure deficiency based on the success of a
trial defense counsel’s strategy, but instead examine “whether
counsel made an objectively reasonable choice in strategy” from
the available alternatives. United States v. Dewrell, 55 M.J.
131, 136 (C.A.A.F. 2001) (quoting United States v. Hughes,
48 M.J. 700, 718 (A.F. Ct. Crim. App. 1998)). Similarly, we
must remain mindful that counsel have “wide latitude . . . in
making tactical decisions.” Pinholster, 131 S. Ct. at 1406
(quoting Strickland, 466 U.S. at 689). Thus, our scrutiny of a
trial defense counsel’s performance is “highly deferential,” and
we make “every effort . . . to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of counsel’s
7
Such challenges have become the norm in death penalty appeals
in both the civilian and military criminal justice systems. See
David D. Velloney, Balancing the Scales of Justice: Expanding
Access to Mitigation Specialists in Military Death Penalty
Cases, 170 Mil. L. Rev. 1, 18 & n.81 (2001). The vast majority
of ineffective assistance of counsel claims are unsuccessful.
See Anne M. Voigts, Note, Narrowing the Eye of the Needle:
Procedural Default, Habeas Reform, and Claims of Ineffective
Assistance of Counsel, 99 Colum. L. Rev. 1103, 1118 (1999).
27
United States v. Akbar, No. 13-7001/AR
challenged conduct, and to evaluate conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689.
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.” Strickland, 466 U.S. at 694. In the capital
sentencing context, we “reweigh 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. Wiggins, 539 U.S. at
534.
For ease of analysis, our discussion of Appellant’s
ineffective assistance of counsel claims in the instant case is
divided into four categories: (1) pretrial preparation;
(2) merits phase performance; (3) penalty phase performance; and
(4) cumulative error. As we explain in detail below, we
conclude that none of these claims merits relief.
1. Pretrial Preparation
a. Investigation
Trial defense counsel have “a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Strickland, 466 U.S. at
28
United States v. Akbar, No. 13-7001/AR
691. “[S]trategic choices made [by counsel] after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable . . . .” Id. at 690. In considering
whether an investigation was thorough, “[w]e address not what is
prudent or appropriate, but only what is constitutionally
compelled.” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting
United States v. Cronic, 466 U.S. 648, 665 (1984)). The Supreme
Court has “rejected the notion that the same [type and breadth
of] investigation will be required in every case.” Pinholster,
131 S. Ct. at 1406-07 (citing Strickland, 466 U.S. at 691).
i. Pretrial Interviews
A. Testifying Witnesses
Appellant claims that trial defense counsel failed to
adequately interview and prepare two witnesses who testified at
trial -- Mr. Tupaz, Appellant’s college roommate, who testified
during the merits phase, and Mr. Duncan, Appellant’s high school
physics teacher, who testified during presentencing. Neither
argument is persuasive.
The record reflects that trial defense counsel contacted
Mr. Tupaz in the month prior to trial. In a post-trial
affidavit, trial defense counsel reported interviewing Mr. Tupaz
over the telephone and reviewing draft questions for trial
preparation. In his post-trial declaration, Mr. Tupaz did not
“remember talking to any defense attorneys prior to showing up”
29
United States v. Akbar, No. 13-7001/AR
for the trial at which time Mr. Tupaz recalled speaking to trial
defense counsel. We conclude that Mr. Tupaz’s inability to
remember talking to trial defense counsel is “too equivocal and
ambiguous to overcome the presumption that [Appellant’s] counsel
were competent.” United States v. Key, 57 M.J. 246, 249
(C.A.A.F. 2002). Even assuming trial defense counsel did not
interview Mr. Tupaz, counsel’s questioning of Mr. Tupaz during
trial demonstrated that counsel was adequately prepared for his
testimony. Therefore, it cannot be said that counsels’
performance was deficient in this regard.
Appellant now claims that Mr. Tupaz should have been asked
to testify about the likelihood that Appellant took
inappropriate comments made by members of the military about
Muslims both very literally and personally. However, this
proffered testimony was cumulative of Dr. Woods’s testimony on
the same topic, and thus it would not have made Mr. Tupaz’s
testimony more compelling in scope or degree.
As for Mr. Duncan, we accept Appellant’s claim that he was
not interviewed by defense counsel prior to trial. However, we
note that trial defense counsel possessed the mitigation
specialist’s report about her own interview of Mr. Duncan, which
included facts and observations proffered by Mr. Duncan in
regard to Appellant’s high school experiences. Further, trial
defense counsel were able to elicit testimony from Mr. Duncan
30
United States v. Akbar, No. 13-7001/AR
that Appellant’s high school was in a poor and dangerous
neighborhood, Appellant was “an excellent student,” and
Appellant lived in a “depressed area.” Mr. Duncan’s post-trial
declaration contains no additional substantive information that
he would have provided had counsel interviewed him prior to his
testimony. Therefore, Appellant has not established a
reasonable probability of a different sentence based on
counsels’ failure to interview Mr. Duncan. We therefore reject
Appellant’s ineffective assistance of counsel claims with
respect to Mr. Tupaz’s and Mr. Duncan’s testimony.
B. Nontestifying Lay Witnesses
In the course of his ineffective assistance of counsel
claims, Appellant complains that counsel failed to personally
contact or to adequately interview his father, his brother, his
sisters, his cousins, a high school friend, and a former
landlady. In analyzing this issue, we first note that counsel
must “investigate adequately the possibility of evidence that
would be of value to the accused in presenting a case.” United
States v. Boone, 49 M.J. 187, 196 (C.A.A.F. 1998). Further,
generally speaking, “[e]ffective counsel will contact potential
witnesses to determine the facts” of the case. United States v.
Fluellen, 40 M.J. 96, 98 (C.A.A.F. 1994). However, the duty to
investigate does not require trial defense counsel to personally
interview every potential witness in a case. See LaGrand v.
31
United States v. Akbar, No. 13-7001/AR
Stewart, 133 F.3d 1253, 1274 (9th Cir. 1998). For example,
“there comes a point at which evidence from more distant
relatives can reasonably be expected to be only cumulative” and
“distract [counsel] from more important duties.” Bobby v. Van
Hook, 558 U.S. 4, 11 (2009). As a result, 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. Cf. Eggleston
v. United States, 798 F.2d 374, 376 (9th Cir. 1986) (noting that
trial counsel need not interview a witness if the account is
fairly known to counsel).
Trial defense counsel met this standard here.
Specifically, counsel developed a strategy whereby a mitigation
expert first interviewed potential witnesses and then provided
counsel with a summary of their statements. For those family
members with relevant information, one defense counsel would
then conduct a phone interview to determine whether to select
the person as a witness. There is nothing inherently deficient
about this strategy.
The parties dispute whether trial defense counsel actually
interviewed certain witnesses. For the sake of our analysis, we
32
United States v. Akbar, No. 13-7001/AR
will assume that trial defense counsel did not personally
conduct interviews of any of Appellant’s family members and
friends. The record nonetheless indisputably reflects that LTC
Hansen (when he was part of the defense team) and/or the
mitigation specialists did interview those witnesses and then
provided the defense team with summaries of those interviews.
Those witnesses included Appellant’s father, brother, sisters,
two cousins,8 a high school friend, and former landlady. We
conclude that these summaries allowed trial defense counsel to
make informed decisions about whether to call these potential
witnesses to testify at trial. Therefore, we do not find a
sufficient basis to conclude that they engaged in ineffective
assistance of counsel.
C. Nontestifying Professional/Expert Witnesses
Appellant claims that trial defense counsel were
ineffective in failing to interview or call to testify Dr. Donna
Sachs, Appellant’s treating college psychologist, and Dr.
Wilbert Miles, a clinical psychologist. At the outset, we note
that “[i]t can be assumed that in some cases counsel would be
deemed ineffective for failing to consult or rely on experts.”
8
Appellant complains about counsels’ failure to interview a
third cousin, Kimberly Vines, but we agree with the Government
that her claim about having no recollection of an interview is
simply “too equivocal and ambiguous to overcome the presumption”
of counsel’s competence. United States v. Key, 57 M.J. 246, 249
(C.A.A.F. 2002).
33
United States v. Akbar, No. 13-7001/AR
Harrington v. Richter, 562 U.S. 86, 106 (2011). However, that
is not the case here.
The record demonstrates that trial defense counsel believed
that a mitigation expert had coached or influenced Dr. Sachs’
memory of Appellant. Regardless of whether counsels’ belief was
correct, trial defense counsels’ concern was reasonable.
Therefore, we will not second guess counsels’ tactical decision
in declining to rely on Dr. Sachs.
We also conclude that there was no deficiency in trial
defense counsels’ decision not to rely on Dr. Miles despite his
expertise in the special challenges faced by African American
soldiers. See Richter, 562 U.S. at 107 (noting that counsel can
formulate reasonable strategy even if it means ignoring experts
“whose insight might possibly have been useful”). We note that
trial defense counsel already had the assistance of other mental
health professionals, including a neuropsychiatrist, a
neuropsychologist, and a forensic psychiatrist. See United
States v. Loving, 41 M.J. 213, 250 (C.A.A.F. 1994). “The mere
fact that [trial] defense counsel did not ‘shop around’ for
another more favorable expert [did] not render them
ineffective.” Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir.
1992).
Moreover, even if counsel were deficient in not having Dr.
Miles testify at trial, Appellant has not established any
34
United States v. Akbar, No. 13-7001/AR
prejudice resulting from this assumed deficient performance.
First, much of the information that would have been elicited
from Dr. Miles was already obtained from Dr. Woods. Second, we
recognize that Dr. Miles, unlike Dr. Woods, could have provided
an opinion about “how someone from [Appellant’s] background and
culture, presented with distress[ing] life experiences and [a]
history of racial oppression, may have [developed] a state of
mind that his own life was under imminent risk.” However,
Appellant has not demonstrated that this information would have
led to a different outcome on the merits or at sentencing. We
therefore find no merit to Appellant’s ineffective assistance
claims based on counsels’ failure to rely on Dr. Miles or Dr.
Sachs.
ii. Site Visits
Appellant asserts that trial defense counsel were deficient
because they failed to travel to the locations where Appellant
grew up, which he believes hindered them from properly
interviewing witnesses and fully understanding Appellant. The
premise of Appellant’s argument is flawed because the defense
team did conduct site visits. Both LTC Hansen, the first lead
counsel in this case, and the mitigation specialists made site
visits to Appellant’s high school and his childhood
neighborhoods, conducted interviews with Appellant’s
acquaintances and family members, and summarized the interviews
35
United States v. Akbar, No. 13-7001/AR
from these visits in memoranda used by the trial defense
counsel. We conclude that trial defense counsel acted
reasonably in opting not to repeat site visits performed by
others on the defense team.
iii. Use of Mitigation Experts
Appellant next criticizes trial defense counsels’ use of
the mitigation specialists in his case, pointing to counsels’
failure to follow all of their advice as well as the purported
dysfunction in counsels’ relationship with them. In examining
this issue, we first acknowledge the special importance of
mitigation specialists in military justice capital cases. See
Kreutzer, 61 M.J. at 298 n.7, 302-03, 305. Without a
“professional death penalty bar in the military services,” these
specialists are likely “the most experienced member[s] of the
defense team in capital litigation.” Id. at 298 n.7. The
mitigation specialists’ role is “to coordinate an investigation
of the defendant’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.” Id. at 302
(citation and footnote omitted). The specialists are considered
“an indispensable member of the defense team throughout all
capital proceedings.” Id. at 305 (citation omitted). As a
result, “mitigation specialists may play a particularly
36
United States v. Akbar, No. 13-7001/AR
important role in ensuring the fair and full adjudication of
military death penalty cases where . . . counsel have little
training or experience in capital litigation.” Id. at 303.
In the instant case, however, we first conclude there is no
basis to find counsel 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. See Strickland, 466 U.S. at
689 (noting “the constitutionally protected independence of
counsel” and “the wide latitude counsel must have in making
tactical decisions”).
Second, for purposes of this appeal we will accept the
premise that there was some dysfunction with and antipathy
toward the mitigation specialists on the part of the trial
defense counsel. But despite these problems, the various
mitigation specialists employed in Appellant’s case performed
extensive work and gathered significant information about
Appellant’s background, upbringing, and related issues which the
trial defense counsel effectively used in the preparation and
presentation of Appellant’s case. We particularly note the
efforts of Ms. Grey, whose nearly 400 hours of mitigation work
resulted in interviews, interview summaries, and thousands of
pages of records which were provided to trial defense counsel.
When Ms. Grey was fired by Appellant at his mother’s behest, Ms.
37
United States v. Akbar, No. 13-7001/AR
Grey estimated that an additional 150 to 210 hours of work was
needed to complete the mitigation investigation. One of her
successor mitigation specialists, Ms. Nerad, performed nearly
three times this estimate by billing approximately 565 hours of
work, which resulted in additional interviews, summaries, and
records reviewed by trial defense counsel. Therefore,
regardless of whatever dysfunction or antipathy might have
existed, the mitigation specialists were able to adequately
perform their important role by providing trial defense counsel
relevant and useful information in defending Appellant. See
Kreutzer, 61 M.J. at 302. Trial defense counsel then used this
information to defend Appellant both during the merits and
penalty phases of the trial in questioning witnesses and
presenting evidence.
Finally, trial defense counsel made a reasonable strategic
decision not to have a mitigation specialist testify or be
physically present at Appellant’s trial. Although it may be
advantageous to have a mitigation specialist actively
participate at a capital trial, it is not required. See
Kreutzer, 61 M.J. at 305. Moreover, the circumstances of this
case demonstrate that counsel acted reasonably in deciding not
to employ a mitigation specialist at trial. See Pinholster,
131 S. Ct. at 1406 (“No particular set of detailed rules for
counsel’s conduct can satisfactorily take account of the variety
38
United States v. Akbar, No. 13-7001/AR
of circumstances faced by defense counsel . . . .”) (quoting
Strickland, 466 U.S. at 688-89). The record demonstrates that
the appointed mitigation specialist at the time of trial, Ms.
Nerad, disagreed with a number of approaches taken by trial
defense counsel. Under these circumstances, trial defense
counsel could reasonably conclude that the presence and
participation of the mitigation specialist at trial would not
have been beneficial. See id. at 1407 (noting that reviewing
court must entertain the range of possible reasons for counsel’s
decisions). Therefore, we find no basis to conclude that trial
defense counsel were ineffective in the manner in which they
used the mitigation specialists.
iv. Information to Dr. Woods
Appellant claims that trial defense counsel were
ineffective for failing to provide Dr. Woods with certain
information, including sufficient mitigation evidence and
additional psychological testing data. Appellant asserts that
this information would have allowed Dr. Woods to make a forensic
diagnosis that Appellant suffered from schizophrenia and post-
traumatic stress disorder.
However, even if we assume Dr. Woods received none of this
material, we still find no demonstrated prejudice. First, even
in the absence of additional information, Dr. Woods was able to
provide the panel with “differential diagnoses” of schizotypal
39
United States v. Akbar, No. 13-7001/AR
personality disorder, high functioning paranoid schizophrenia,
and schizoaffective disorder. Dr. Woods opined that on March
22, 2003, Appellant’s symptoms, “played a great role in his
mental state at the time of the offense” by “overwhelm[ing
Appellant] emotionally and to really not think as clearly, to
not really understand.” The post-trial affidavits do not
demonstrate that Dr. Woods would have changed this opinion or
strengthened it with additional information or testing.
Second, Dr. Woods testified that “it would really require
appropriate treatment to really determine which of the three
[differential diagnoses] would be accurate.” (Emphasis added.)
This testimony indicates that Dr. Woods himself recognized that
he could not have given a more definitive diagnosis of
Appellant, even with more testing and mitigation information.
Third, Dr. Woods downplayed the importance of a precise
diagnosis, stating: (1) “The fact that it may not be called
schizophrenia or what have you is, in the long run, less
important . . . .”; and (2) “The fact that it’s not -- it may
not be called schizophrenia is not clinically relevant.” As can
be seen then, Dr. Woods’s testimony emphasized Appellant’s
symptoms and minimized the importance of a precise diagnosis.
Under these circumstances, we conclude that Appellant has not
demonstrated any likelihood of a different outcome in this case
40
United States v. Akbar, No. 13-7001/AR
even if trial defense counsel had provided additional
information or testing data to Dr. Woods.
b. Additional Funding and Continuances
Appellant claims that trial defense counsel were
ineffective for failing to request additional funding and for
failing to seek a continuance at two separate points before
trial -- following the mitigation specialist’s request in early
March 2005, and following Appellant’s alleged stabbing of the MP
in late March 2005. We first reject this argument because
Appellant has not carried “his burden to show that his counsel
would have been successful if he had filed . . . timely
motion[s]” for a continuance and additional funding. United
States v. Jameson, 65 M.J. 160, 164 (C.A.A.F. 2007). Simply
stated, there is no “reasonable probability that [the] motion[s
for a continuance and additional funding] would have been
[deemed] meritorious” by the military judge. Id. at 163-64
(quoting United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F.
2001)). These motions would have come a few days before and one
month before the start of trial, respectively, and after the
military judges in this case already had granted three prior
continuances in a case that was originally scheduled for trial
in July 2004. Given the late requests and this record of delay,
which totaled more than 700 days after the Camp Pennsylvania
attack, there is an insufficient basis for us to conclude that
41
United States v. Akbar, No. 13-7001/AR
the military judge likely would have granted additional
continuances, see United States v. Wiest, 59 M.J. 276, 279
(C.A.A.F. 2004) (listing factors relevant for continuance), or
additional funding, see United States v. Garries, 22 M.J. 288,
291 (C.M.A. 1986) (requiring showing of why request for funds
was needed).
We next observe that Appellant has not adequately
demonstrated that additional time or funding in early March 2005
would have resulted in a more favorable outcome in the
proceedings. Specifically, Appellant has not demonstrated that
additional investigation would have resulted in a substantively
different or enhanced mitigation posture at trial, particularly
where approximately 1,000 hours of investigation already had
been devoted to this case. Accordingly, Appellant has not
established that counsel were ineffective for failing to request
additional funds or a continuance in early March 2005.
In regard to late March 2005, we also conclude that counsel
were not ineffective for deciding not to seek a continuance
after the March 30, 2005, stabbing of the MP. The record is
clear that trial defense counsel made the strategic calculation
that a delay in the court-martial would provide the Government
with an opportunity to charge Appellant with the assault on the
MP. Evidence admitted at trial in support of this additional
specification likely would have greatly undermined the defense
42
United States v. Akbar, No. 13-7001/AR
position that Appellant’s prior violent conduct was aberrational
and that Appellant had rehabilitative potential. Therefore, we
do not conclude that trial defense counsel were ineffective for
deciding not to seek a continuance at that point in the
proceedings.
c. Special Instruction Regarding Guilty Pleas
Appellant contends that his trial defense counsel were
ineffective for failing to seek a mitigation instruction
concerning Appellant’s inability to plead guilty.9 Indeed, we
note that before trial began, trial defense counsel withdrew a
requested instruction informing the members that because this
matter had been referred as a capital case, Article 45, UCMJ, 10
U.S.C. § 845 (2012), required Appellant to plead not guilty and
be tried before members. However, the record shows that trial
defense counsel acted entirely reasonably in obtaining the
withdrawal of this instruction for the simple reason that
Appellant had decided not to submit an offer to plead guilty and
instead had decided to argue at trial that he had not
premeditated the attacks. Therefore, we conclude that trial
defense counsel were not ineffective for withdrawing the
instruction.
9
Article 45, UCMJ, states, “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.” Article
45(b), UCMJ, 10 U.S.C. § 845(b) (2000).
43
United States v. Akbar, No. 13-7001/AR
d. Voir Dire
Appellant challenges trial defense counsels’ use of an “ace
of hearts” strategy during the voir dire process.10 An ace of
hearts strategy is predicated on the fact that in order for a
panel to impose a death sentence, the members must vote
unanimously to impose that sentence. See R.C.M. 1006(d)(4).
Therefore, the strategy posits that the accused will benefit
from having the largest possible number of panel members because
that will increase the chances that at least one member of the
panel (the so-called “ace of hearts”) will vote for a sentence
other than the death penalty. In furtherance of this strategy,
trial defense counsel in the instant case made the strategic
decision to minimize their use of peremptory challenges and
challenges for cause.
It may be argued that the ace of hearts strategy ignores
panel dynamics whereby vocal and opinionated members hostile to
the defense position may disproportionately impact
deliberations.11 However, in light of the fact that trial
10
Appellant also claims that counsel were ineffective for
failing to seek a change in venue. The record reflects that
counsel sought to change venue but failed to convince the
military judge of the need to do so. As a result, counsels’
attempt to change venue means that they were not ineffective for
failing to do so.
11
See Eric R. Carpenter, An Overview of the Capital Jury Project
for Military Justice Practitioners: Jury Dynamics, Juror
Confusion, and Juror Responsibility, 2011 Army Law. 6, 8-10, 13-
16 & nn. 28, 46-47 (May 2011).
44
United States v. Akbar, No. 13-7001/AR
defense counsel consulted with other experienced attorneys and
relied on an appellate military judge’s concurring opinion in
United States v. Simoy, 46 M.J. 592, 625 (A.F. Ct. Crim. App.
1996) (Morgan, J., concurring), rev’d in part on other grounds
by 50 M.J. 1 (C.A.A.F. 1998), before deciding to employ this
strategy, we conclude that their decision is “virtually
unchallengeable.” United States v. Curtis, 44 M.J. 106, 119
(C.A.A.F. 1996) (quoting Strickland, 466 U.S. at 690).12
Therefore, we conclude that there was no ineffective assistance
of counsel.
2. Merits Phase
Appellant claims that trial defense counsel were
ineffective for conceding guilt in opening statement, during the
defense case on the merits, and in closing argument. However,
Appellant’s assertions are misplaced because trial defense
counsel never conceded that Appellant was guilty of premeditated
murder, only that he had committed certain acts.
To be blunt, there was absolutely overwhelming evidence
adduced at trial that Appellant committed the acts that resulted
in the deaths of MAJ Stone and CPT Seifert, and the wounding of
fourteen other military officers. Therefore, it was not
12
As discussed infra, we do not find a sufficient basis to
conclude that any of the panel members should have been
disqualified for cause, so counsel were not ineffective for
failing to challenge members for bias.
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unreasonable for trial defense counsel to forego trying to
convince the court-martial panel to the contrary, and to instead
focus squarely on trying to persuade the panel members that
Appellant’s acts were not premeditated. Accordingly,
concessions such as the ones made by trial defense counsel that
Appellant “threw those grenades” and “shot and killed Captain
Seifert” were not unreasonable because they did not concede
Appellant’s guilt to capital murder. Indeed, this type of
approach is a well-recognized defense strategy in capital cases.
See Florida v. Nixon, 543 U.S. 175, 190-91 (2004); Lingar v.
Bowersox, 176 F.3d 453, 458–59 (8th Cir. 1999) (holding that
concession of elements of second-degree murder to challenge
defendant’s mens rea for a capital-murder conviction was not
constitutionally deficient where overwhelming evidence pointed
to defendant as perpetrator). Accordingly, we conclude that
trial defense counsel were not ineffective in this regard.
3. Penalty Phase
Appellant describes trial defense counsels’ presentencing
presentation as consisting of “[t]hirty-eight minutes [of
testimony and Appellant’s unsworn statement] and a document
dump.” Specifically, he criticizes the performance of trial
defense counsel for failing to develop a coherent mitigation
theme, submitting his entire diary for the panel’s review, and
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presenting a mitigation case primarily through documents instead
of live witness testimony.
In closely analyzing this issue, we acknowledge at the
outset that trial defense counsel may well have presented a
stronger case in mitigation if they had adopted a different
approach and taken different steps during the presentencing
phase of this court-martial. However, in determining whether
there was ineffective assistance of counsel, we do not assess
trial defense counsels’ performance through the prism of
appellate hindsight and then apply our subjective view of how we
think defense counsel should have conducted the trial. Rather,
pursuant to Supreme Court precedent, we are 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. Strickland, 466 U.S. at 688, 694. In the instant
case, not only do we conclude that trial defense counsels’
performance was not “measurably below the performance standards
ordinarily expected of fallible lawyers,” Davis, 60 M.J. at 474,
we also conclude that even if trial defense counsel had handled
the mitigation case precisely as appellate defense counsel now
avers they should have, there is no reasonable probability that
the court-martial panel would have imposed a lesser sentence.
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See Loving v. United States, 68 M.J. 1, 7 (C.A.A.F. 2009).
Accordingly, for the reasons cited in greater detail below, we
disagree with Appellant’s assessment of this issue.
a. Mitigation Theme
Appellant argues that trial defense counsel failed to
develop a comprehensive and compelling mitigation argument
encompassing Appellant’s upbringing in accordance with the
tenets of the Nation of Islam, his need to overcome great
disadvantages as a youth, and his continued willingness to
provide love and support to his family. We recognize that
counsel are well advised to adopt a coherent defense theme and
strategy throughout a trial. Curtis, 44 M.J. at 120. However,
there are a number of acceptable ways to establish, develop, and
present such a theme in any given case. See Pinholster, 131 S.
Ct. at 1407.
In the instant case, the record reflects that trial defense
counsels’ mitigation strategy was to emphasize Appellant’s
mental illness while also pointing out Appellant’s difficult
upbringing, his lack of ties to radical Islamic groups, and the
Army leadership’s questionable decision to bring Appellant to
Kuwait despite signs of mental illness and poor NCO skills. The
evidence that supported these arguments was developed during
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United States v. Akbar, No. 13-7001/AR
both the merits13 and penalty phases of the trial. Because trial
defense counsels’ decision about how best to handle the
sentencing argument followed an extensive mitigation
investigation and exploration of other possible approaches,
Appellant’s criticism amounts to a dispute over counsels’
strategy. See United States v. Gray, 51 M.J. 1, 19 (C.A.A.F.
1999) (characterizing argument about counsels’ failure to
present an “adequate sentencing case” as an attack on “strategy
and tactics”). Under such circumstances, Appellant has not
established that trial defense counsels’ selection and
presentation of a mitigation theme constituted ineffective
assistance of counsel.
13
The “frontloading” of mitigation evidence during the merits
phase is reasonable where the same fact-finder (1) considers
guilt and penalty evidence and (2) is instructed about the
ability to consider all evidence for mitigation. See
Pinholster, 131 S. Ct. at 1408 (citing Woodford v. Visciotti,
537 U.S. 19, 25 (2002)); Bell v. Cone, 535 U.S. 685, 699 (2002)
(rejecting ineffective sentence claim for failure to present
testimony of medical experts at penalty phase where “compelling
mitigating evidence” admitted during guilt phase); Curtis,
44 M.J. at 119 (“Mitigating evidence may . . . be introduced at
both the findings and the sentencing stages of a capital
trial.”); Eaton v. Wilson, No. 09-CV-261-J, 2014 U.S. Dist.
LEXIS 163567, at *398-*99, 2014 WL 6622512, *149-*50 (D. Wyo.
Nov. 20, 2014) (explaining that “if the jury knows nothing about
the defendant other than the facts of the crime when it renders
its verdict finding him guilty, the defense bears a very heavy
burden to win them over to life in the second stage of trial”).
Here, the military judge instructed the panel that it could
“consider any matter in extenuation and mitigation, . . .
whether it was presented before or after findings.” Counsel
therefore reasonably adopted a strategy of presenting mitigation
evidence during the guilt phase.
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b. Submission of the Diary
Appellant argues that trial defense counsel were
ineffective for submitting the entirety of Appellant’s “damning”
diary into evidence at sentencing because it led to the
introduction of aggravating evidence, not mitigating evidence.
However, upon closely analyzing this issue, we find there is an
insufficient basis to conclude that trial defense counsel
provided ineffective assistance of counsel.
To be clear, we fully recognize that some of the entries
contained in the diary introduced by the defense were, indeed,
damning. However, we are also mindful of the fact that when
counsel made the decision to introduce the entire diary, the
Government already had presented to the panel some of its most
damaging portions. For example, the Government introduced the
following two passages: “[A]s soon as I am in Iraq I am going
to try to kill as many [fellow soldiers] as possible”; and “I
may have to make a choice very soon about who to kill. . . . I
will have to decide if I should kill my Muslim brothers fighting
for Saddam Hussein or my battle buddies.” These portions, along
with others introduced to the panel upon admission of the entire
diary, underscored Appellant’s premeditation. However, it is
important to note that at the time of the diary’s admission, the
members had already found premeditation during the merits phase,
and the existence or degree of premeditation was not at issue
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during sentencing. Therefore, the record indicates not only
that trial defense counsel reasonably concluded that additional
passages in the diary would not inflict any more damage on the
defense than those already selected by the Government, but that
they also reasonably concluded that the diary in its entirety
would paint a persuasive portrait of a mentally ill man who
could not control his thought processes or his actions in the
period leading up to the Camp Pennsylvania attack.14 Therefore,
we conclude that trial defense counsel were well aware of the
inflammatory nature of portions of the diary, yet made a
strategic decision to submit the diary in its entirety. In
doing so, we note that generally speaking, we “‘will not second-
guess the strategic or tactical decisions made at trial by
defense counsel.’” United States v. Mazza, 67 M.J. 470, 475
(C.A.A.F. 2009) (quoting United States v. Anderson, 55 M.J. 198,
202 (C.A.A.F. 2001)). Indeed, we decline to do so here.
14
For instance, in the diary entries from the two months before
Appellant’s attack, Appellant wrote (1) “I am in no condition to
take care of a family and when I leave the Army, I may be
homeless. I pace, daydream, and talk to myself everyday. And I
am alone with very little chance of finding a mate.”; and (2) “I
am a loser. That is just the truth. Everything I have tried to
work for I don’t have. A wife, good job, Self-respect.”
Throughout the thirteen years that Appellant kept the diary, his
entries reflected his struggles as demonstrated by his thoughts
about suicide, his low self-esteem, his problems staying awake,
his isolation or loneliness, his problems having relationships
with women, his sexual frustrations, his problematic
relationships with his parents, and his problems maintaining
employment.
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Appellant further claims that even if it was a reasonable
strategic decision to admit the diary as a whole, witness
testimony was needed to place the diary entries into proper
perspective. The record shows, however, that counsel did
contextualize the diary through Dr. Woods’s testimony, as well
as through the FBI analysis of the diary and Ms. Grey’s analysis
of the diary, which were submitted to the panel members as
evidence. Also, counsels’ sentencing argument emphasized that
the diary provided an important glimpse into Appellant’s mental
state and that it showed the facts and effects of Appellant’s
difficult upbringing. Moreover, with the diary’s admission,
counsel was able to argue at sentencing that despite the
conflict between the mental health experts as to a specific
diagnosis, the diary showed that Appellant suffered from a
profound mental illness when he committed the offenses, which
warranted a sentence of life imprisonment rather than the death
penalty. Given these circumstances, we conclude that counsels’
performance was not deficient.
c. Mitigation Primarily Through Documents
Appellant claims that trial defense counsel were
ineffective because they presented Appellant’s mitigation case
primarily through documents instead of through live testimony by
family and friends. However, we disagree with Appellant’s
initial premise that the mitigation case consisted only of
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thirty-eight minutes of testimony and a “document dump.” The
record shows that trial defense counsel actually began
developing the mitigation case during the merits phase of the
trial. They did so through the testimony of the expert
witnesses, members of Appellant’s unit, and Appellant’s college
roommate. This evidence covered Appellant’s troubled
upbringing, his strange behavior, his tendency to spend time
alone, his poor skills as an NCO, his symptoms of mental
illness, and his mental illness diagnoses. Once the merits
phase ended, counsel did not ignore this evidence but instead
built upon it during the presentencing phase and relied upon it
during the sentencing arguments. Therefore, we conclude that
trial defense counsel presented a more substantial and
thoughtful mitigation case at trial than Appellant now claims on
appeal.
We also disagree with Appellant’s criticism of trial
defense counsels’ decision to present mitigation evidence
primarily through documents rather than through live testimony.
In examining this issue, we view it as an essential fact that
trial defense counsels’ presentation was greatly affected by
Appellant’s alleged stabbing of an MP just days before the
court-martial began. In light of this incident, trial defense
counsel made a strategic decision to be very cautious about
taking any steps that could be used by the Government to
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United States v. Akbar, No. 13-7001/AR
introduce evidence of this uncharged misconduct in the course of
the trial. Trial defense counsel were successful in this
effort, and we deem their approach to be a reasonable and
appropriate one. See American Bar Association Guidelines for
the Appointment and Performance of Defense Counsel in Death
Penalty Cases (ABA Guidelines) 10.11.G, reprinted in 31 Hofstra
L. Rev. 913, 1056-57 (2003) (noting that “[i]n 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”). Any one of the witnesses who might have
been called to testify by the defense could have unintentionally
opened the door to evidence about the MP stabbing by, for
example, testifying about their belief that Appellant’s actions
at Camp Pennsylvania were out of character. Therefore, trial
defense counsel reasonably concluded that they should limit the
number of defense witnesses both because they posed a danger to
Appellant’s case and because, if they did testify, their
testimony would be so circumscribed that whatever value they
otherwise would have had for the defense would be substantially
diminished. See Cone, 535 U.S. at 700-01 (finding state court’s
application of Strickland was not unreasonable with respect to
failing to call other witnesses where “counsel feared that the
prosecution might elicit information about [the defendant’s]
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United States v. Akbar, No. 13-7001/AR
criminal history”); Burger, 483 U.S. at 792 (concluding decision
not to present character witnesses not unreasonable where prior
convictions might have been introduced on cross); Tinsley v.
Million, 399 F.3d 796, 809-10 (6th Cir. 2005) (noting no
testimony may be better than some testimony “given the risk that
every positive argument by a defendant potentially opens the
door to a more-harmful response”).
We also conclude that trial defense counsel did not merely
“dump” a bunch of documents on the panel. Counsel reviewed and
selected relevant documents for the members to consider, which
were presented to each member in a binder. Among the documents
submitted to the members were those that provided important
context for, and useful summaries of, Appellant’s diary.
The military judge implicitly instructed the members that
they were required to review the documents in the binders. For
instance, the military judge instructed the members prior to
disseminating the binders as follows:
The defense has requested, the government does
not oppose, and I’m going to allow you to take several
defense exhibits with you when we recess for the day
in a few moments. They are in the black binders in
front of you. The exhibits contain a lot of material,
and it will help if you have read through the
documents before the defense calls its witnesses
starting tomorrow. Since counsel estimate it may take
some time to do so, rather than require you to read it
in open court, which is what would normally happen,
I’m going to let you read it at home or work.
A couple cautionary instructions however. You
are only to read the exhibits. Please do not conduct
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any independent research based on anything you may
read. Also, please, do not discuss the exhibit with
anyone, to include friends and family members, or
yourselves. You can only discuss the exhibits with
each other once you begin your formal deliberations,
which probably won’t happen until Thursday. Also do
not copy the exhibits or let anyone else read them.
And please bring them back with you when you return to
court tomorrow morning . . . .
This instruction informed the members of their duty to review
the exhibits in two ways. First, the military judge told the
members, “rather than require you to read [the evidence] in open
court, which is what would normally happen,” they were being
permitted to “read it at home or work.” (Emphasis added.)
Second, the military judge told the members they were “only to
read the exhibits” instead of discussing them or performing
research. (Emphasis added.) These facets of the instruction
had the effect of notifying the members that they had to review
Appellant’s documentary evidence.
The military judge reiterated the members’ duty to review
the defense exhibits when he allowed the members to take the
binders home for a second day, stating: “[Y]ou should be able
to take them with you for the rest of the day if you need more
time to review the documents.” (Emphasis added.) By informing
the members that they had more time to review the documents, the
military judge again signaled to the members that they were
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United States v. Akbar, No. 13-7001/AR
expected to review all the evidence.15 The record does not
reveal that the members disobeyed the military judge’s
instructions, so we presume that the members followed them. See
United States v. Stewart, 71 M.J. 38, 42 (C.A.A.F. 2012). We
therefore conclude that the members were aware of their duty to
review, and did in fact review, the evidence submitted to them
in the binders.
Counsels’ sentencing argument then explained the purpose of
the diary by asserting that it provided a “unique” look into
Appellant’s troubled mind. This is hardly a case in which
counsel obtained records and “then dump[ed] the whole file in
front of the jury without organizing the files, reading them,
15
Besides these specific instructions, the military judge’s
general sentencing instructions apprised the members of their
duty to consider all evidence in the case, including that
submitted in the binders. For instance, the military judge
instructed the members that their deliberations on the
aggravating factors “should properly include a full and free
discussion on all of the evidence that has been presented.”
(Emphasis added.) The military judge also instructed the
members that they could consider “any matter in extenuation and
mitigation, whether pre-offense or post-offense; whether it was
presented before or after findings; and whether it was presented
by the prosecution or the defense.” These general sentencing
instructions informed the members that their sentencing
deliberations were to be based on all the evidence, which
included the defense sentencing exhibits the military judge
permitted the members to take home. Finally, the military judge
instructed the members of the importance of considering the
evidence submitted in the binders when he listed the possible
mitigating factors in the case, some of which explicitly
referenced the evidence submitted in the binders, including
Appellant’s diary, Ms. Grey’s interviews of individuals, the
diary analyses by Ms. Grey and the FBI, and the social service
records.
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eliminating irrelevant files or explaining to the jury how or
why they are relevant.” Johnson v. Bagley, 544 F.3d 592, 602
(6th Cir. 2008). Accordingly, we do not see a sufficient basis
to conclude that trial defense counsels’ method of introducing
the documents was deficient.
Appellant insists that the live testimony of family members
and friends, not submission of documents, was needed to present
all the available mitigation evidence to counter the
Government’s aggravation evidence. He further argues that trial
defense counsels’ failure to present this evidence constituted
an incomplete and incompetent defense.
To be sure, “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.” Loving, 68 M.J. at 15 (quoting Boyde v.
California, 494 U.S. 370, 382 (1990)). Here, however, trial
defense counsel did not ignore Appellant’s social history. They
introduced evidence about Appellant’s abusive stepfather through
the testimony of Drs. Tuton and Woods. Further, through
testimony, a declaration from Appellant’s brother, and the
mitigation specialist’s interview notes, they introduced
evidence about Appellant growing up in impoverished
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United States v. Akbar, No. 13-7001/AR
circumstances and living and going to school in dangerous
neighborhoods. And through Appellant’s diary, trial defense
counsel also introduced evidence of Appellant’s adverse
upbringing. Finally, the exhibits submitted by trial defense
counsel at sentencing contained information that humanized
Appellant such as the diary entries that detailed assistance to
his family and listed his goals of assisting his family and his
community, the interview summaries of Appellant’s teachers that
described his work ethic and politeness, the statement from
Appellant’s brother that recounted Appellant’s financial
support, and the interview summary from Appellant’s childhood
imam that described Appellant’s lack of aggression. Therefore,
there is an insufficient basis to conclude that trial defense
counsel needed additional live testimony in order to present key
points of their mitigation case.
The record also reveals that counsel did not act
unreasonably in choosing not to present live testimony from
Appellant’s father, brother, sisters, cousins, high school
friend, and former landlady. A trial defense counsel’s decision
on whether to call a witness is a tactical decision. See United
States v. Anderson, 55 M.J. 198, 202 (C.A.A.F. 2001); Fluellen,
40 M.J. at 98 (noting part of the tactical decision in the case
was deciding what witnesses not to call). In this case, trial
defense counsel made an informed tactical decision, after a
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United States v. Akbar, No. 13-7001/AR
reasonable investigation, when selecting trial witnesses. See
Wiggins, 539 U.S. at 533-34. Therefore, for this reason and for
the additional reasons cited below, we conclude that Appellant
has not provided us with a sufficient basis to question trial
defense counsels’ tactical decisions regarding these witnesses.
First, trial defense counsel had interactions with
Appellant’s father prior to trial and obtained additional
information about his background through the mitigation expert’s
report. They therefore assessed his likely manner of
presentation as a witness, and learned of his significant
criminal background, history of drug use, and impaired cognitive
abilities. See Pinholster, 131 S. Ct. at 1407 (noting that in
applying strong presumption of competence, court is required to
affirmatively entertain range of possible reasons for counsel’s
performance). Upon doing so, counsel explicitly informed the
military judge that they had made an informed, conscious, and
strategic decision not to have Appellant’s father testify during
sentencing. See Lord v. Wood, 184 F.3d 1083, 1095 n.8 (9th Cir.
1999). We see no basis to question this decision.
Appellant claims that his father would have served as a
valuable witness to document “the prejudices the Nation of Islam
instilled in” Appellant. Indeed, trial defense counsel could
have employed this strategy of eliciting testimony on this
point. However, they chose a different strategy, one that
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described Appellant as not being “hate-filled” but “a person
with mental illness, who is very sensitive to anything said to
him.” In fact, trial defense counsels’ affidavit explains that
they wanted to downplay Appellant’s link to the Nation of Islam
because it would “likely . . . carry strong negative
connotations with the panel members,” which ultimately would
harm Appellant’s defense. Additionally, counsel chose not to
portray Appellant as a hate-filled person since childhood
because this approach would have conflicted with their strategy
of portraying Appellant’s actions on March 22, 2003, as
aberrational and not premeditated, and because it would have
undermined their position that Appellant had rehabilitative
potential. We therefore do not find a basis to question
counsels’ tactical decision not to call Appellant’s father to
testify.
Second, we conclude that counsel was not deficient in
presenting the declaration of Appellant’s brother at trial
rather than having the brother testify. Although the brother
now claims that he was willing and able to testify at
Appellant’s trial, the brother’s April 26, 2005, trial
declaration stated that he could not leave his wife’s side due
to the birth of a child. Additionally, we conclude there is no
additional information in the brother’s post-trial one-page
declaration that reasonably could be considered powerful
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United States v. Akbar, No. 13-7001/AR
mitigation evidence. We do not consider counsels’ failure to
call Appellant’s brother as a witness to be deficient
performance under these circumstances.
Third, the record reflects that trial defense counsel had
the mitigation specialists’ interview summaries for Appellant’s
sisters, his cousins, a high school friend, and his former
landlady. With this information, trial defense counsel made an
informed decision not to call these witnesses, and we do not
find a sufficient basis to second-guess that decision. Cf. Lema
v. United States, 987 F.2d 48, 54 (1st Cir. 1993) (noting that
“decision whether to call a particular witness is almost always
strategic, requiring a balancing of the benefits and risks of
the anticipated testimony”).
We finally conclude that even if trial defense counsels’
mitigation presentation was deficient, Appellant has not
established prejudice. This inquiry 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.’” Loving, 68 M.J. at 7 (quoting Wiggins, 539 U.S. at
537). The new mitigating evidence “must differ in a substantial
way -- in strength and subject matter -- from the evidence
actually presented at sentencing.” Id. at 16 (quoting Hill v.
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Mitchell, 400 F.3d 308, 319 (6th Cir. 2005)). Appellant has not
met this standard.
The additional post-trial evidence in this case can
generally be placed into one of seven categories: Appellant’s
parents’ backgrounds, the history of family mental illness,
Appellant’s challenging upbringing and his positive qualities as
a child, the influence on Appellant of the Nation of Islam,
Appellant’s high school experience, Appellant’s attempt to repay
a debt, and the impact of Appellant’s execution on his family.
Many of these areas were presented at trial, including
information about Appellant’s upbringing and positive qualities,
his high school experience, and the existence of mental health
issues in the family. While some of the post-trial information
may be viewed as elaborating on these points, there is not a
sufficient basis to conclude that this information was different
in quality or substance from what the members actually
considered. Therefore, we consider it to be “largely
cumulative.” See Loving, 68 M.J. at 16.
We recognize that the material submitted by Appellant post-
trial includes information in four areas that were not addressed
at the court-martial. However, we conclude that Appellant was
not prejudiced by counsels’ failure to present this evidence.
First, trial defense counsel concluded that the role of the
Nation of Islam in Appellant’s life represented a “double-edged
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sword” in that any mitigation effect of this information may
have been outweighed by the extent to which it alienated the
panel and undermined trial defense counsels’ theory that
Appellant’s attack was due to mental illness and was not the
product of hatred and premeditation. Cf. Wiggins, 539 U.S. at
535 (noting that limited investigation justified where
defendant’s history was “double-edged”). Second, Appellant’s
attempt to repay his landlady long after she expected him to,
although a positive story, certainly is not “sufficiently
compelling” to establish prejudice given Appellant’s crimes and
their impact on the victims. See Loving, 68 M.J. at 17. Third,
although the post-trial evidence demonstrates that Appellant’s
parents’ had challenging upbringings, Appellant does not explain
why this information would prove compelling to the panel members
as they decided the appropriate sentence to impose on Appellant.
Finally, we recognize the potential mitigating value of
Appellant’s family members expressing opinions about the impact
Appellant’s death sentence would have on his family. We do not
seek to minimize the importance of such testimony in capital
cases. However, in the instant case, there is an insufficient
basis to conclude that the panel’s knowledge of this information
would have changed the result of the proceeding given the
aggravating circumstances. Moreover, trial defense counsel had
to weigh whether such testimony would have alienated the panel
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members in light of the fact that Appellant’s murderous actions
had so tragically and irrevocably affected the families of the
victims of Appellant’s attack. Accordingly, we conclude that
Appellant has not met his burden of establishing that he was
prejudiced by counsels’ submission of documents instead of live
witness testimony.
4. Cumulative Error
We next consider whether trial defense counsels’ conduct,
examined in its totality, constituted ineffective assistance of
counsel even if individual oversights or missteps did not
independently rise to that level. Loving, 41 M.J. at 252; see
also United States v. Dado, 759 F.3d 550, 563 (6th Cir. 2014).
As shown above, for the vast majority of Appellant’s individual
ineffective assistance of counsel claims, there is an
insufficient basis to conclude that trial defense counsel acted
unreasonably. These claims do not provide a basis for
establishing ineffective assistance of counsel based on
cumulative error. See United States v. Hall, 455 F.3d 508, 520
(5th Cir. 2006) (stating that “ineffective assistance of counsel
cannot be created from the accumulation of acceptable decisions
and actions”); Campbell v. United States, 364 F.3d 727, 736 (6th
Cir. 2004); Hough v. Anderson, 272 F.3d 878, 907 n.14 (7th Cir.
2001). In those few instances where we assumed otherwise, we
found no prejudice. Even considering these instances of assumed
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deficient performance in the aggregate, we conclude that they do
not establish prejudice at the findings phase or penalty phase
of the trial. Therefore, we conclude that Appellant has not
provided us with a sufficient basis to apply the cumulative
error doctrine to the circumstances of his case, and we decline
to find ineffective assistance of counsel on the basis of this
doctrine. See Becker v. Luebbers, 578 F.3d 907, 914 n.5 (8th
Cir. 2009) (noting that even if some aspect of counsel’s
performance was deficient, prejudice must be limited to
constitutionally defective aspects of representation).
B. DuBay Hearing
Appellant asserts that, at a minimum, we should order a
post-trial fact-finding hearing in this case under United States
v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Our decision in
United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997) sets forth
the proper standard to determine whether a DuBay hearing is
necessary to resolve ineffective assistance of counsel claims.
We have considered the five Ginn factors16 and conclude that the
issues in this case can be resolved on the record before us and
without a DuBay hearing.
16
These factors are whether: (1) the facts alleged would result
in relief; (2) the alleged facts are conclusory or speculative;
(3) the parties agree on the facts; (4) the record “compellingly
demonstrate[s] the improbability of” the allegations; and
(5) Appellant adequately explains why an allegation contradicts
a matter within the guilty plea record. Ginn, 47 M.J. at 248.
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C. Victim-Impact Presentation
Appellant challenges two aspects of the Government’s
victim-impact presentation. First, he contends that
presentencing testimony from Government witnesses violated the
Eighth Amendment. Second, he challenges the propriety of trial
counsels’ sentencing argument. In making these claims,
Appellant correctly concedes that his trial defense counsel did
not raise objections to the witness testimony or to the trial
counsels’ argument during the court-martial. Therefore, we note
that he has “forfeit[ed] appellate review of [these issues]
absent plain error.” United States v. Eslinger, 70 M.J. 193,
197-98 (C.A.A.F. 2011); see also United States v. Frey, 73 M.J.
245, 247 n.1 (C.A.A.F. 2014) (sentencing argument); United
States v. Holt, 33 M.J. 400, 408-09 (C.M.A. 1991) (victim-impact
testimony). 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.” United States v. Knapp, 73 M.J. 33,
36, reconsideration denied, 73 M.J. 237 (C.A.A.F. 2014).
We conclude that Appellant fails to meet the first prong of
the plain error standard. Victim impact testimony is admissible
in capital cases to inform the panel about “the specific harm
caused by the [accused].” Payne v. Tennessee, 501 U.S. 808, 825
(1991); United States v. Wilson, 35 M.J. 473, 476 n.6 (C.M.A.
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1992). 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. See Payne, 501 U.S. at 827.
What is not permitted is evidence or argument about the family
members’ “opinions and characterizations of the crimes,” the
defendant, or the appropriate sentence. See Booth v. Maryland,
482 U.S. 496, 508-09 (1987), overruled on other grounds by
Payne, 501 U.S. at 830 n.2. Examples of this type of
impermissible victim-impact evidence include: an opinion from
the victim’s family members that the victims were “butchered
like animals”; a statement that the witness “doesn’t think
anyone should be able to do something like that and get away
with it”; and descriptions of the defendant as “vicious,” worse
than an animal, and unlikely to be rehabilitated. Booth,
482 U.S. at 508.
We conclude that the Government did not violate these
proscriptions in the course of eliciting witness testimony in
the instant case. Initially, we note that Appellant
mischaracterizes the victim testimony as equating Appellant to a
terrorist or traitor, or describing Appellant’s conduct as
treasonous, mutinous, or assisting the enemy.
During the Government’s sentencing case, trial counsel
posed questions concerning witnesses’ reaction upon learning
that a fellow servicemember was the alleged perpetrator of the
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Camp Pennsylvania attack. Such questions were appropriate
because they were designed to elicit testimony about the effect
this unique bit of information had on the victims. Moreover, it
was not improper for the Government witnesses, many of whom were
also victims of the attack, to express human responses,
including feeling “betrayed,” “disbelief,” “livid,” “angry,”
“shocked,” and “pissed.”17 This testimony placed Appellant’s
crime in context by describing how his actions affected the
victims of the attacks.
Also, COL Hodges’s testimony about “fraggings” during the
Vietnam War was made in the context of describing why he, as
commander of the battalion, was particularly psychologically
shaken by Appellant’s particular attack, and we do not deem such
testimony to be improper. Similarly, we conclude that COL
Hodges’s observations about the “very worst days for
17
Appellant supports his challenge to sentencing testimony by
citing the testimony of the victims’ family members in United
States v. Mitchell, 502 F.3d 931, 990 (9th Cir. 2007), and
DeRosa v. Workman, 679 F.3d 1196, 1240 (10th Cir. 2012). We
observe that much of the contested testimony in this case was
made by the victims who were reporting their own reactions to
the crime, so they did not constitute family member testimony
about the crime or Appellant. We recognize that trial counsel
elicited testimony by civilians about their reactions upon
learning that a servicemember was responsible for the attacks.
To the extent that this testimony by the civilians was improper,
we find no prejudice because it was brief and unlikely had any
impact on the panel where the victims properly testified about
their reactions upon learning that the perpetrator was a
servicemember. See United States v. Davis, 609 F.3d 663, 685
(5th Cir. 2010).
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the United States Army” were not inflammatory in intent or
effect. Instead, they reflected COL Hodges’s embarrassment and
dismay that Appellant’s attack occurred in the battalion he was
commanding, and COL Hodges’s comments were directly responsive
to trial counsels’ question about how Appellant’s attack had
affected him.
We also do not consider improper trial counsel’s sentencing
argument in which he characterized Appellant as “the enemy
within the wire” and asked for the imposition of the death
penalty in order to send a message about the value of innocent
life and the value of loyalty. Trial counsel “may strike hard
blows,” but “he is not at liberty to strike foul ones.” Berger
v. United States, 295 U.S. 78, 88 (1935); see also United States
v. Halpin, 71 M.J. 477, 479 (C.A.A.F. 2013). He “may ‘argue the
evidence of record, as well as all reasonable inferences fairly
derived from such evidence.’” Halpin, 71 M.J. at 479 (quoting
United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000)). This
includes arguments in capital cases concerning “the human cost”
of an accused’s capital crime. Payne, 501 U.S. at 827. Under
the circumstances of this case, it was not a foul blow to
characterize Appellant as the enemy within the wire given his
act of tossing grenades and shooting officers within the
confines of Camp Pennsylvania at the start of Operation Iraqi
Freedom.
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Trial counsels’ request to send a message about the value
of life, loyalty, and the bond among the band of brothers was
essentially a general deterrence argument. 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. See United States v. Lania, 9
M.J. 100, 104 (C.M.A. 1980) (stating that “general deterrence is
suitable for consideration in sentencing and for instructions”).
Trial counsels’ argument was more than one of general deterrence
because it focused on Appellant’s motivation, his acts, and
their aftermath. Also, the military judge properly instructed
the panel as to general deterrence. Therefore, there was
nothing improper in asking the members to send a general
deterrence message.
Finally, Appellant challenges trial counsel’s two
references to “weighing life”:
• “What you must decide is what a life is worth;
what two lives are worth; what a military career is
worth; what the use of your legs are worth; what a
little boy’s life without his father is worth.”
• “Weigh his life -- that is what you’re doing.
You’re weighing his life against what he did, what he
caused, and what he set in motion forever.”
These comments were made in the specific context of trial
counsel’s argument that the aggravating circumstances outweighed
the mitigating circumstances. This is “entirely consistent with
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Payne’s recognition that victim-impact evidence is properly
considered to ‘counteract’ the mitigating evidence in helping
the [fact-finder] evaluate moral culpability.” United States v.
Lawrence, 735 F.3d 385, 435 (6th Cir. 2013). Also, we note that
other federal courts have held that “to the extent that [Payne]
expressed disapproval of comparative worth arguments, it did so
only with regard to victim-to-victim comparisons, not victim-to-
defendant comparisons.” United States v. Fields, 483 F.3d 313,
340–41 (5th Cir. 2007) (citing Humphries v. Ozmint, 397 F.3d
206, 224 n.8 (4th Cir. 2005)). Trial counsel in the instant
case did not make victim-to-victim characterizations. We
therefore find no error in his argument.18
Even if we were to assume that trial counsels’ arguments
were improper, we conclude that Appellant has demonstrated no
prejudice. In the plain error context, we determine whether the
cumulative effect of an improper sentencing argument impacted
“the accused’s substantial rights and the fairness and integrity
of his trial.” Halpin, 71 M.J. at 480 (quoting United States v.
Erickson, 65 M.J. 221, 224 (C.A.A.F. 2007)). This inquiry
examines “whether trial counsel’s comments, taken as a whole,
were so damaging that we cannot be confident that the appellant
18
Since neither the victim testimony nor trial counsels’
sentencing argument was improper, we reject Appellant’s related
ineffective assistance of counsel claims.
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was sentenced on the basis of the evidence alone.” Id. (quoting
Erickson, 65 M.J. at 224) (original alterations and internal
punctuation omitted). This case involved many aggravating
circumstances, including Appellant’s murder of two military
officers, his use of grenades, the extensive injuries to some
officers, and the impact of the attack on the unit as it
prepared for battle. Also, the fact that trial defense counsel
did not see fit to object to the argument is “some measure” that
the argument had “minimal impact.” United States v. Gilley,
56 M.J. 113, 123 (C.A.A.F. 2001) (quoting United States v.
Carpenter, 51 M.J. 393, 397 (C.A.A.F. 1999)). Accordingly, we
do not conclude that trial counsel’s argument warrants reversal.
D. Sua Sponte Disqualification of Members
Appellant challenges the military judge’s failure to sua
sponte dismiss fourteen of the fifteen panel members on implied
and/or actual bias grounds. We note that “[i]t is clear that a
military judge may excuse a member sua sponte” under R.C.M.
912(f)(4). United States v. Strand, 59 M.J. 455, 458 (C.A.A.F.
2004). 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.
See R.C.M. 912(f)(4) (2005 ed.). However, in United States v.
McFadden the majority held that although “[a] military judge has
the discretionary authority to sua sponte excuse [a] member,
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[he] has no duty to do so.” 74 M.J. 87, 90 (C.A.A.F. 2015).
Moreover, even if the military judge had such a duty, he did not
abuse his discretion in failing to sua sponte remove any of the
members for the reasons that follow.
First, we are mindful of the essential fact that, as noted
above, trial defense counsel were using the ace of hearts
strategy during this voir dire process, and we note that the
military judge had been placed on notice that Appellant was
“seeking to maximize the panel size.” Second, the military
judge had afforded trial defense counsel great leeway in
determining how they would conduct voir dire, thereby obviating
the need for the military judge to take a more active role in
the process. Third, the military judge could observe that trial
defense counsel were not impassive in the voir dire process, as
evidenced not only by their questioning of potential panel
members but also by the fact that they sought and obtained the
removal of a member on implied bias grounds, did not object to
the Government’s challenge to three other members, and explained
their opposition to the Government’s challenges to three
additional panel members.
In regard to Appellant’s challenges to the service on the
panel of specific members, we make the following observations.
Appellant first states that the military judge should have sua
sponte disqualified COL GQ and COL PM because of their friendly
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relationship with COL Hodges, a victim and witness in
Appellant’s case. However, it is not an infrequent occurrence
in the military for a panel member to know a witness in a court-
martial, and without more, we have not found implied bias in
such circumstances. Cf. United States v. Ai, 49 M.J. 1, 5
(C.A.A.F. 1998) (rejecting member challenge on implied bias
grounds where member held professional relationship with
witness, candidly disclosed the relationship, and unequivocally
denied influence).19 We similarly decline to do so here.
Second, Appellant states that the military judge should
have sua sponte dismissed LTC CF and LTC DL because another
panel member, COL PM, had a supervisory relationship over them.
Once again, it is not an infrequent occurrence in the military
to have panel members who have a supervisory relationship with
another panel member. And where, as here, all of the panel
members state openly that they will not feel constrained in
performing their court-martial duties, there is an insufficient
19
Appellant cites United States v. Harris, but the member in
that case not only knew two victims but also rated the victims,
was aware of the crimes, and chaired a committee to reduce the
crime in question on base. 13 M.J. 288, 289 (C.M.A. 1982).
Neither COL GQ’s nor COL PM’s relationship with COL Hodges is
nearly as close as the member’s relationship with the victims in
Harris. In United States v. Leonard, 63 M.J. 398, 403 (C.A.A.F.
2006), we found implied bias where a member had a relationship
“of trust” with a victim in a case in which the victim’s
credibility was an issue. The record does not reflect a similar
relationship of trust in this case or that COL Hodges’s
credibility was at issue.
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basis for the military judge to sua sponte remove them from the
panel. United States v. Castillo, 74 M.J. 39, 43 (C.A.A.F.
2015) (“[A] senior-subordinate/rating relationship does not per
se require disqualification of a panel member.”) (quoting United
States v. Wiesen, 56 M.J. 172, 175 (C.A.A.F. 2001)).
Third, Appellant argues that the military judge should have
sua sponte dismissed LTC WT from the panel because of his
relationships with his two older brothers. One brother was the
commanding general of the 101st Airborne Division, the unit to
which Appellant and some of the victims were assigned. The
other brother worked with a victim in this case and served as
the executive officer for the senior commanding general of the
convening authority in this case. However, LTC WT stated he did
not discuss the case with his brothers or feel any pressure to
vote in any particular manner in this case. We therefore
conclude that LTC WT’s fraternal relationships did not provide a
basis for the military judge to sua sponte dismiss LTC WT. See
Strand, 59 M.J. at 459 (finding military judge did not have a
sua sponte duty to dismiss for implied bias a member who was the
son of the commander). This is particularly true here because
both Appellant and his trial defense counsel specifically stated
that they did not want to excuse LTC WT for cause.
Fourth, Appellant generally challenges a number of members
-- SFC KD, MAJ DS, LTC TG, SFC JC, CSM MH, CSM RC, and MSG PC --
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on the basis that they had an inelastic predisposition to
adjudge a particular sentence. We note, of course, that
Appellant 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.” United States v. Martinez, 67 M.J. 59, 61 (C.A.A.F.
2008) (citing United States v. James, 61 M.J. 132, 138 (C.A.A.F.
2004)); see also R.C.M. 912(f)(1)(N) Discussion. However, the
record reveals that each of these panel members agreed to follow
the military judge’s instructions and to appropriately consider
a full range of punishments in this case. Therefore, the voir
dire of these individual members disclosed no basis for the
military judge to sua sponte disqualify them.
Fifth, we have reviewed LTC TG’s views on Islam20 and share
some of Appellant’s concerns about his comments during voir
dire. However, we ultimately conclude that the military judge
should not have invoked his authority under R.C.M. 912(f) to
dismiss LTC TG sua sponte because LTC TG also expressed positive
views of Muslims, describing them as “very nice” and “very
friendly people,” and more importantly, because LTC TG stated
20
When specifically asked by trial defense counsel about his
views on Islam, LTC TG stated that Islam was a “male oriented
religion” and a “passionate religion,” by which he meant that
“sometimes you can’t think clearly and you take certain views
that are selfish -- for your own selfish pleasures, self-desire
instead of the good of the man.”
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openly that he would not be influenced in the course of the
trial by any of his preconceptions about Muslims generally. See
Elfayoumi, 66 M.J. at 357 (noting that question of bias is not
whether a member has particular views but whether they can put
these views aside to evaluate the case on its merits).
Sixth, Appellant avers that the military judge should have
sua sponte dismissed SFC JC from the panel because he stated
that Appellant sounded guilty. We note that a member “must be
excused when he or she ‘[h]as []formed or expressed a definite
opinion as to the guilt or innocence of the accused as to any
offense charged.” Nash, 71 M.J. at 88 (quoting R.C.M.
912(f)(1)(M)). However, in the instant case SFC JC’s voir dire
responses “dispel[led] the possibility” of bias because he
stated that his initial opinion was not definite and that he
understood Appellant was presumed innocent. See id. at 89; see
also Irvin v. Dowd, 366 U.S. 717, 723 (1961). Therefore, we
conclude that the military judge did not abuse his discretion in
failing to sua sponte dismiss SFC JC.
Seventh, Appellant contends that the military judge should
have sua sponte excused CSM MH for ignoring the military judge’s
order to avoid exposure to any pretrial publicity about
Appellant’s case. We find this challenge meritless because
trial defense counsel specifically opposed MH’s removal. We
also find that although CSM MH admitted to reading about the MP
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stabbing incident in the newspaper, he stated he could put the
event out of his mind. Therefore, the military judge did not
err in failing to sua sponte disqualify MH.
Eighth, Appellant challenges ten other panel members
because of their knowledge of the March 30 stabbing incident.
We note, however, that panel members are not automatically
disqualified simply because they have learned facts about an
accused from outside sources. Cf. Murphy v. Florida, 421 U.S.
794, 799 (1975) (noting that defendant is not presumptively
deprived of his due process rights if juror is exposed “to
information about a state defendant’s prior convictions or to
news accounts of the crime with which he is charged”). These
ten challenged panel members, along with SGM MH, generally
reported learning something along the lines of Appellant
overpowering an MP, scuffling with an MP, or stabbing an MP.
However, to the extent that the members were asked, they
uniformly expressed their ability to lay aside their knowledge
of these events in rendering a verdict in this case, which
vitiates Appellant’s claim of actual bias. Cf. Murphy, 421 U.S.
at 800-01 (noting in finding no due process violation that no
jurors “betrayed any belief in the relevance of [the
defendant’s] past to the present case”); United States v.
McVeigh, 153 F.3d 1166, 1184 (10th Cir. 1998) (finding no actual
bias despite some members learning of appellant’s confession
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from news reports where jurors indicated they could keep an open
mind).
In terms of implied bias, we find none in this instance
because trial defense counsel made no attempt to have the
members excused based on their knowledge of the stabbing
incident, trial defense counsel adequately explored their
concerns during the voir dire process, and the members stated
that they would judge the case on the merits rather than decide
the case based on this incident. Therefore, the military judge
did not abuse his discretion by declining to sua sponte dismiss
these panel members.
Ninth, and finally, Appellant challenges seven members
because of their initial negative reactions to Appellant’s
attack. Specifically, these members expressed “shock” (or a
similar emotion) upon first learning about the events at Camp
Pennsylvania. However, we note the long-standing principle that
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.” United States v. Calley, 22 C.M.A. 534, 537,
48 C.M.R. 19, 22 (1973); see also United States v. Barraza,
576 F.3d 798, 803 (8th Cir. 2009) (“An initial impression about
a case does not disqualify a [member] if the [judge] accepts the
[member’s] assurances that he or she will set aside any
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preconceived beliefs and follow the court’s instructions.”);
United States v. Iribe-Perez, 129 F.3d 1167, 1171 n.4 (10th Cir.
1997) (noting that although “noteworthy trials” will “pique the
interest of the public” and will lead “many potential jurors
[to] have formed initial impressions about the case,” a juror
will not be disqualified unless he cannot set aside the initial
impressions).
We find the members’ initial reactions to Appellant’s
crimes to be neither unreasonable nor unexpected. Cf. Irvin,
366 U.S. at 722 (noting that an “important case can be expected
to arouse the interest of the public” so most jurors will have
“formed some impression or opinion as to the merits of the
case”). And importantly, the members’ voir dire responses
indicated that their initial reactions would not impact their
view of the case or affect their decisions in the course of the
court-martial. Therefore, the members’ initial reactions did
not provide the military judge with a sua sponte basis to
dismiss the challenged members. See Calley, 22 C.M.A. at 538,
48 C.M.R. at 23 (holding after careful consideration of voir
dire that “none . . . had formed unalterable opinions about
[appellant’s] guilt from the publicity”).
E. Venue
Appellant asserts that his trial venue should have been
moved because of pervasive pretrial publicity at Fort Bragg. We
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review this challenge for an abuse of discretion. Loving,
41 M.J. at 282. 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. United States v. Simpson, 58 M.J. 368, 372 (C.A.A.F.
2003). Pretrial publicity by itself is not enough, however, for
a change of venue. Curtis, 44 M.J. at 124. 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.’” Loving,
41 M.J. at 254 (quoting R.C.M. 906(b)(11) Discussion).
Appellant’s change of venue argument is meritless. The
convening authority had already moved Appellant’s case to Fort
Bragg from Fort Campbell, the headquarters for Appellant’s unit.
Further, the military judge determined that the pretrial
publicity was not inflammatory and had not saturated the
community. In addition, as the above panel bias discussion
demonstrates, the voir dire process uncovered no fixed opinions
of Appellant’s case that rose to the level of actual prejudice.
See Simpson, 58 M.J. at 372 (defining actual prejudice).
Finally, Appellant’s position that the military community’s
knowledge of his notorious crimes, standing alone, served as a
basis for a change of venue would, if adopted, essentially have
precluded the military from conducting Appellant’s court-martial
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at any military installation. The military judge therefore did
not abuse his discretion in denying Appellant’s request to
change venue.
F. Conflict of Interest
Appellant raises a number of alleged conflicts of interest
in this case, but we find only one merits discussion -- trial
defense counsels’ working relationship with one of the victims,
CPT Andras Marton, who served with the Army Judge Advocate
General’s Corps. At an Article 39(a), UCMJ, hearing, MAJ
Brookhart and CPT Coombs informed the military judge about their
“strictly professional” relationship with CPT Marton. Counsel
explained that they had tried cases against CPT Marton, but did
not have further contact with him. Appellant acknowledged that
he was aware of the possible conflict and had the right to be
represented by conflict-free counsel, but he expressly wanted
MAJ Brookhart and CPT Coombs to continue representing him due to
his familiarity with counsel and their familiarity with his
case.
An accused has the right to conflict-free legal
representation. See United States v. Lee, 66 M.J. 387, 388
(C.A.A.F. 2008); United States v. Murphy, 50 M.J. 4, 10
(C.A.A.F. 1998). However, he may waive this right so long as it
is knowing and voluntary. United States v. Davis, 3 M.J. 430,
433 n.16 (C.M.A. 1977).
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Although trial defense counsels’ relationship with a victim
raises some obvious concerns, it does not establish reversible
error because Appellant knowingly and voluntarily waived the
issue. The military judge engaged in an open discussion with
Appellant about the potential conflict. Following this
discussion, Appellant informed the military judge that he wanted
to waive any conflict or potential conflict. The post-trial
affidavits alleging a conflict do not outweigh these
considerations because the affidavits are conclusory in nature
and are contradicted by trial defense counsel’s own statements
and by the record.
G. Trial Defense Counsel Assignments
Appellant complains about unlawful command influence and
prosecutorial misconduct stemming from the Government’s control
of trial defense counsels’ assignments. Indeed, the record
shows that the lead Government trial counsel arranged for MAJ
Brookhart and CPT Coombs to be placed in positions that would
not conflict with their roles as Appellant’s trial defense
counsel. However, because Appellant never objected at trial to
trial counsels’ role in these assignments, we review the
arguments for plain error. See Halpin, 71 M.J. at 479-80.
Appellant cites no case law, and we are aware of none,
finding prosecutorial misconduct under similar facts. Although
this point is not dispositive because this could be an issue of
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first impression, it does tend to show that trial counsels’
input into the trial defense counsels’ assignments does not
plainly or obviously constitute prosecutorial misconduct. See
United States v. Tarleton, 47 M.J. 170, 172 (C.A.A.F. 1997)
(noting that “the absence of controlling precedent favorable to
appellant demonstrates that the error, if any, was not plain
error”). But importantly, in reaching our decision on
Appellant’s prosecutorial misconduct argument and also his
unlawful command influence argument, we rely heavily on the fact
that Appellant has not demonstrated any unfairness in the
proceedings based on defense counsels’ assignments. See
Simpson, 58 M.J. at 373 (noting there is no unlawful command
influence claim where there is no evidence of unfairness in the
proceedings); United States v. Meek, 44 M.J. 1, 6 (C.A.A.F.
1996) (holding that prosecutorial misconduct claim reviewed for
prejudice); see also Smith v. Phillips, 455 U.S. 209, 219 (1982)
(noting that “touchstone of due process analysis in cases of
alleged prosecutorial misconduct is the fairness of the trial”).
Indeed, the record of trial indicates that trial counsels’
actions were intended to assist Appellant by ensuring that his
counsel remained available to him. We therefore see no basis
for concluding there was prosecutorial misconduct and/or
unlawful command influence in this case.
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H. Trial Defense Counsels’ Qualifications
Appellant and amicus raise three distinct arguments about
trial defense counsels’ qualifications, but as demonstrated
below, none of them provides a basis for relief. First,
Appellant contends that trial defense counsel did not have the
training or experience necessary to effectively defend him in
this case, and challenges the CCA’s conclusions that counsel
were “well-qualified.” However, after reviewing trial defense
counsels’ extensive legal experience as summarized at the
beginning of this opinion, we reject Appellant’s argument
outright and agree with the CCA’s conclusion that counsel were
“well-qualified.”
Second, in its brief, amicus curiae advocates that we adopt
and apply to the instant case the provisions of Guideline 5.1 of
the American Bar Association (ABA) Guidelines for the
Appointment and Performance of Counsel in Death Penalty Cases.
This guideline seeks to establish minimum qualifications for
counsel in capital cases. In addressing this issue, we take
particular note of the Supreme Court’s memorable observation in
Ring v. Arizona: “[D]eath is different.” 536 U.S. 584, 606
(2002). Congress has recognized as much in civilian federal
cases by requiring the services of at least one counsel “learned
in the law applicable to capital cases.” 18 U.S.C. § 3005
(2012). Congress has even extended this requirement of “learned
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counsel” to alleged terrorists being prosecuted in military
commissions. See 10 U.S.C. § 949a(b)(2)(C)(ii) (2012). We
further note that even in the absence of congressional action,
the judge advocates general could take unilateral steps to
improve the process by which trial litigators are selected in
capital cases, and to enhance their training and qualifications.
Indeed, LTC Hansen, who we pointedly note was summarily
dismissed by Appellant, serves as an example of someone who was
particularly well qualified to litigate a capital case.
However, as an Article I court, we also note that -- absent
constitutional implications in a particular case or
congressional authorization -- it is beyond our authority to
impose the learned counsel qualification advocated by amicus.
Indeed, in the past we have similarly considered and rejected
claims that learned counsel must participate in military capital
cases. See, e.g., Gray, 51 M.J. at 54; Curtis, 44 M.J. at 127;
Loving, 41 M.J. at 300. Nonetheless, “we remain vigilant as to
the quality of representation provided servicemembers in capital
cases in the military justice system.” Gray, 51 M.J. at 54.
Finally, Appellant and amicus argue that we should adopt
the ABA Guidelines in analyzing capital defense counsels’
performance. However, we instead adhere to the Supreme Court’s
guidance that “[n]o particular set of detailed rules for
counsel’s conduct can satisfactorily take account of the variety
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of circumstances faced by defense counsel or the range of
legitimate decisions regarding how best to represent a criminal
defendant.” Strickland, 466 U.S. at 688-89. We therefore do
not adopt the ABA Guidelines as the ultimate standard for
capital defense representation in the military. See Pinholster,
131 S. Ct. at 1407 (“It is ‘[r]are’ that constitutionally
competent representation will require ‘any one technique or
approach.’”) (quoting Richter, 562 U.S. at 89). Instead, we
examine whether “counsel [made] objectively reasonable choices”
based on all the circumstances of a case. Van Hook, 558 U.S. at
9 (quoting Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000)).
I. Mitigation Evidence
Appellant contends that the panel’s consideration of
mitigation evidence was unconstitutionally limited by the
prohibition against guilty pleas in capital cases, which is
contained in Article 45(b), UCMJ. This challenge is meritless
based on our prior case law. Gray, 51 M.J. at 49; Loving,
41 M.J. at 292; United States v. Matthews, 16 M.J. 354, 362-63
(C.M.A. 1983). It is also meritless under the facts of this
case. Appellant refused to allow his counsel to submit any
offers to plead guilty, so this potential mitigation evidence
would never have been available for him to present at trial.
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J. Exclusion of Occupational Branches
Appellant is correct that the exclusion of nine
occupational branches from court-martial service in this case
pursuant to Army Regulation (AR) 27-10 would have conflicted
with the statutorily defined criteria in Article 25, UCMJ, 10
U.S.C. § 825 (2012). See United States v. Bartlett, 66 M.J.
426, 429 (C.A.A.F. 2008). We conclude, however, that here there
was no impermissible selection of panel members.
It is true that the initial convening authority was advised
that he had to select the panel in accordance with AR 27-10.
However, when the succeeding convening authority made his
selections he was informed by the acting staff judge advocate:
(1) “[Y]ou must detail those members who, in your opinion, are
best qualified for the duty by virtue of their age, education, .
. . and judicial temperament”; and (2) “You may . . . choose
anyone in your general court-martial jurisdiction for service as
a court member provided you believe they meet the Article 25
criteria listed above.” We recognize that the succeeding
convening authority adopted his predecessor’s panel pool, but
the succeeding convening authority did not act pursuant to the
improper AR 27-10 instruction, but instead acted based on proper
legal advisement in accordance with Article 25, UCMJ, criteria.
Also, even if the panel was impermissibly selected pursuant
to AR 27-10, we conclude that the Government has met its burden
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of showing any error was harmless. As the Government
demonstrates, the six circumstances which this Court identified
and relied upon in deciding Bartlett, 66 M.J. at 431, as showing
harmless error are also present here: (1) there is no evidence
that the Secretary of the Army acted with an improper motivation
in promulgating AR 27-10; (2) the convening authority followed a
facially valid regulation without an improper motive; (3) the
convening authority had authority to convene a general-court
martial; (4) Appellant was sentenced by members who were
selected by the convening authority; (5) Appellant was sentenced
by members who met the Article 25, UCMJ, criteria; and (6) the
military judge noted that the panel had female and African
American representation. We therefore find no reversible error
in the convening authority’s selection of the panel’s venire.
K. CCA Ruling on Appellate Experts
Appellant claims that the CCA erred in denying his request
for appellate assistance by mental health experts. The CCA
concluded that Appellant had failed to sufficiently show that
the expert assistance was necessary. We review this decision
for an abuse of discretion. Gray, 51 M.J. at 20. 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. See United States v. Taylor, 47 M.J. 322, 325 (C.A.A.F.
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1997). Neither factor applies in this instance, and we find no
abuse of discretion in the CCA’s denial of expert assistance.
L. Military Judge’s Instructions
Appellant challenges two instructions by the military
judge: (1) the sentencing instruction relating to weighing
mitigating and aggravating factors; and (2) the instruction on
reconsidering the sentence. Ordinarily, we review the adequacy
of a military judge’s instructions de novo. United States v.
MacDonald, 73 M.J. 426, 434 (C.A.A.F. 2014). However, if an
appellant fails to object to the instruction at trial, we review
for plain error. United States v. Thomas, 46 M.J. 311, 314
(C.A.A.F. 1997); R.C.M. 1005(f).
1. Sentencing
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 are substantially outweighed by the aggravating
circumstances.” Appellant now 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. Appellant bases this
argument on his reading of the Supreme Court’s decisions in
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v.
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Arizona, 536 U.S. 584 (2002), which stand for the proposition
that a jury must find beyond a reasonable doubt aggravating
factors that are necessary to impose the death penalty. See
Ring, 536 U.S. at 609; Apprendi, 530 U.S. at 490. However,
contrary to Appellant’s assertion, these cases do not require
any particular standard of proof with regard to weighing the
aggravating and mitigating circumstances. United States v.
Gabrion, 719 F.3d 511, 533 (6th Cir. 2013) (en banc) (joining
six other federal circuits in concluding that decision weighing
aggravating and mitigating did not have to be proven beyond a
reasonable doubt); Lockett v. Trammel, 711 F.3d 1218, 1253 (10th
Cir. 2013). Indeed, the Supreme Court itself has indicated that
the beyond a reasonable doubt standard is unnecessary in
weighing aggravating and mitigating factors. See Kansas v.
Marsh, 548 U.S. 163, 173 (2006) (noting that state could place
burden on defendant to prove mitigating circumstances outweighed
aggravating circumstances); id. at 174 (noting that states have
“a range of discretion in imposing the death penalty, including
the manner in which aggravating and mitigating circumstances are
to be weighed”). We therefore find no error in the military
judge’s sentencing instruction.
2. Reconsideration
After the members requested reconsideration of their
sentence, the military judge, without objection and with
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Appellant’s consent, provided the members with the standard
Benchbook reconsideration instruction 2-7-19. Dep’t of the
Army, Pam. 27-9, Legal Service, Military Judges Benchbook ch. 2
§ VII, para. 2-7-19 (2010). Appellant now claims the military
judge should have instructed the members either (1) not to
impose death if they had initially voted for life or,
alternatively, (2) to follow the R.C.M. 1004 deliberative
process during reconsideration.21 The parties agree that
Appellant forfeited this issue by failing to raise it at trial,
so we review this claim for plain error. See Thomas, 46 M.J. at
314.
We find no plain or obvious error in the military judge’s
reconsideration instruction. First, Appellant has cited no case
law to support his position that “R.C.M. 1009 does not authorize
a panel to reconsider its sentencing determination with a view
toward increasing a sentence to death.” There also is no
factual support for Appellant’s position because the record does
not indicate whether the panel requested reconsideration in
21
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, R.C.M. 1004(a)(1)-(2); (2) one aggravating factor
existed beyond a reasonable doubt, R.C.M. 1004(b)(7); (3) “the
extenuating or mitigating circumstances [were] substantially
outweighed by any aggravating circumstances,” R.C.M.
1004(b)(4)(C); and (4) the accused should be sentenced to death,
R.C.M. 1006(d)(4)(A). See also United States v. Simoy, 50 M.J.
1, 2 (C.A.A.F. 1998).
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order to increase Appellant’s sentence to death or to decrease
his sentence. Second, we are not persuaded that a plain reading
of the text of this rule mandates this conclusion. For
instance, R.C.M. 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.
See R.C.M. 1009(e)(3)(B)(i). Because R.C.M. 1009 does not
explicitly prohibit the panel from reconsidering a sentence in a
capital case with a view to increasing the sentence to death, we
conclude that the military judge’s reconsideration instruction
was not plainly erroneous. Without case law or the text of
R.C.M. 1009 clearly supporting Appellant’s claim, we find no
plain or obvious error. See United States v. Nieto, 66 M.J.
146, 150 (C.A.A.F. 2008) (finding no clear or obvious error
where “at the time of trial, the case law from this Court did
not preclude trial counsel’s questions, generally applicable
federal criminal law did not provide guidance on point, and only
a handful of state cases addressed this matter”).
Third, Appellant has not demonstrated that it was plain
error for the military judge to authorize a revote without
repeating the required instructions under R.C.M. 1004(b)(6). In
regard to this argument, it is sufficient to note that the
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military judge read, with Appellant’s express agreement,
Benchbook instruction 2-7-19, which specifically instructed the
members to “adhere to all my original instructions for proposing
and determining an appropriate sentence.” We therefore find no
reversible error stemming from the military judge’s
reconsideration instruction.
M. Motion to Suppress
Appellant argues that the military judge’s decision to
admit Appellant’s confession under the public safety exception
was error because the confession was obtained in violation of
his Article 31(b), UCMJ, 10 U.S.C. § 831(b) (2012), and Miranda22
rights.23 The following facts serve as the basis for this
challenge.
22
Miranda v. Arizona, 384 U.S. 436 (1966).
23
Because Appellant frames the issue in the context of the
public safety exception, we discuss this exception infra. We
note, however, that other grounds also support the conclusion
that MAJ Warren’s brief questioning under the attendant
circumstances did not violate Appellant’s Article 31(b), UCMJ,
rights. Our case law provides that these warnings are not
required when an accused’s questioner is “fulfill[ing] his
operational responsibilities” and not attempting “to evade
constitutional or codal rights.” United States v. Loukas, 29
M.J. 385, 389 (C.M.A. 1990). Here, MAJ Warren, who served as an
intelligence officer, tasked himself with security following
Appellant’s attack. MAJ Warren’s purpose was operational as
demonstrated by the obvious safety concerns and his limited
questioning of Appellant. MAJ Warren also was not seeking to
avoid Appellant’s statutory or constitutional rights. Given the
urgency of the threat to Camp Pennsylvania after Appellant’s
attack and MAJ Warren’s ad hoc security position, we find that
MAJ Warren was acting in an operational capacity and conclude
there was no need to provide Appellant with an Article 31(b),
UCMJ, warning. Loukas, 29 M.J. at 389.
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Shortly after Appellant’s attack on the brigade officers at
Camp Pennsylvania, COL Hodges informed MAJ Warren, who was
coordinating security: “This may be one of our own. 2d
Battalion is missing an engineer soldier. His name is Sergeant
Akbar. . . . There’s some ammo missing.” Soon after this
briefing, MAJ Warren found Appellant, grabbed him, and forced
him to lie face down on the ground. Once Appellant was on the
ground, MAJ Warren pointed his firearm at Appellant while
holding him down with his left hand. He then told Appellant not
to move. After reholstering his firearm as another soldier
stood guard, MAJ Warren kneeled down, looked directly at
Appellant’s face, and asked Appellant, “Did you do this? Did
you bomb the tent?” Appellant responded, “Yes.” Prior to
questioning Appellant, MAJ Warren did not give Appellant any
Article 31(b), UCMJ, warnings.
We conclude that the military judge did not abuse his
discretion in admitting Appellant’s confession. The Supreme
Court has recognized a public safety exception to Miranda
warnings. New York v. Quarles, 467 U.S. 649, 655-56 (1984). We
have extended this exception to Article 31, UCMJ, rights
advisements “when life is endangered.” United States v. Jones,
26 M.J. 353, 357 (C.M.A. 1988); see also United States v.
Morris, 28 M.J. 8, 14 (C.M.A. 1989). In an instance such as
this one, an unwarned statement is inadmissible under Article
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31(b), UCMJ, unless (1) the statement falls within the public
safety exception and (2) the statement was voluntary. Jones, 26
M.J. at 357; cf. Quarles, 467 U.S. at 654 (noting that in
absence of evidence of compelled confession, Court was only
examining whether public safety justified failure to give
Miranda warning). Appellant challenges only the public safety
exception aspect of this test.
We conclude that the public safety exception did apply to
Appellant’s statement. MAJ Warren conducted his questioning of
Appellant 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 MAJ Warren questioned Appellant, the
perpetrator of the attack remained at large and his identity was
unclear. MAJ Warren’s questioning ensured that no further life
would be endangered by seeking to definitively ascertain the
identity of the attacker. Once MAJ Warren obtained the
admission, he ceased all questioning, further indicating that
the questions were elicited solely to secure the safety of the
Camp. See Quarles, 467 U.S. at 659 (observing applicability of
public safety exception where law enforcement “asked only the
question necessary to locate the missing gun before advising
respondent of his rights”). Under these circumstances, the
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military judge did not err in concluding the public safety
exception applied.24
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.’” United States v. Mott, 72 M.J.
24
We note that whether Appellant’s admission was voluntary is a
closer question. When evaluating the voluntariness of a
statement, we “review the totality of the circumstances to
determine whether Appellant’s ‘will was overborne and his
capacity for self-determination was critically impaired.’”
United States v. Chatfield, 67 M.J. 432, 439 (C.A.A.F. 2009)
(quoting United States v. Bubonics, 45 M.J. 93, 95 (C.A.A.F.
1996)). This inquiry examines “the accused’s age, education,
experience and intelligence.” Id. at 439-40. Certain factors
support the position that Appellant’s statement was coerced,
such as Appellant being physically secured and questioned by a
superior commissioned officer. See United States v. Jones, 73
M.J. 357, 360 (C.A.A.F. 2014) (noting existence of subtle
pressures in military society when questioned by military
superior); United States v. Morris, 49 M.J. 227, 230 (C.A.A.F.
1998) (examining whether physical abuse was factor in
confession). We also recognize that MAJ Warren pointed a weapon
at Appellant, but the military judge found that Appellant “never
saw the weapon pointed at him.” Appellant does not state why
this finding is clearly erroneous, so we do not consider MAJ
Warren’s brandishing the weapon in our analysis. Further, any
other coercive factors were minimal, and we therefore find under
the totality of the circumstances that Appellant’s confession
was voluntary given his age, his college education, his rank as
an NCO, and his intelligence. See Morris, 49 M.J. at 230
(noting accused’s age and education as factors in determining
coercive nature of interrogation). Cf. United States v.
Carroll, 207 F.3d 465, 472 (8th Cir. 2000) (finding use of
physical force to subdue defendant resisting arrest did not
render confession involuntary).
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319, 332 (C.A.A.F. 2013) (quoting United States v. Moran,
65 M.J. 178, 187 (C.A.A.F. 2007)). 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. See United States v.
Powell, 49 M.J. 460, 464 (C.A.A.F. 1998) (explaining that
Supreme Court in Arizona v. Fulminante, 499 U.S. 279 (1991),
found admission of an involuntary confession harmless where
there was overwhelming evidence of guilt). This overwhelming
evidence directly linked Appellant to the attack, and we find
that any error in admitting Appellant’s admission was harmless
beyond a reasonable doubt.
N. Military Capital Case Procedures
Appellant challenges the constitutionality of three aspects
of the military capital procedures: (1) the congressional
delegation of capital sentencing procedures to the President;
(2) R.C.M. 1004’s authorization for the convening authority to
add aggravating elements at referral; and (3) the lack of a
system to ensure consistent application of the death penalty in
the military. None of these challenges warrants relief.
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First, the Supreme Court has already upheld the
congressional delegation of the R.C.M. 1004 capital sentencing
procedures to the President in United States v. Loving, 517 U.S.
748 (1996). Appellant claims that the Supreme Court’s decision
in Ring v. Arizona, 536 U.S. at 608-09, “overruled Loving sub
silentio.” However, the Supreme Court has instructed: “If a
precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of
decisions, the [lower court] should follow the case which
directly controls, leaving to [the Supreme Court] the
prerogative of overruling its own decisions.” Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).
Consistent with this mandate, we will continue to adhere to the
holding in Loving unless the Supreme Court decides at some point
in the future that there is a basis to overrule that precedent.
As a result, we reject Appellant’s constitutional challenge to
R.C.M. 1004 on the basis that it constitutes an improper
delegation of power.
Second, Appellant argues that R.C.M. 1004 violates his due
process rights by allowing the convening authority to add and
amend aggravating factors at the time of referral. The relevant
R.C.M. 1004 provision states:
Before arraignment, trial counsel shall give the
defense written notice of which aggravating factors
under subsection (c) of this rule the prosecution
intends to prove. Failure to provide timely notice
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under this subsection of any aggravating factors under
subsection (c) of this rule shall not bar later notice
and proof of such additional aggravating factors
unless the accused demonstrates specific prejudice
from such failure and that a continuance or a recess
is not an adequate remedy.
R.C.M. 1004(b)(1) (2005 ed.). In this case, the charge sheet
omitted the R.C.M. 1004(c) aggravating factors, but it contained
special instructions that the court-martial “be tried as a
capital case.” In accordance with R.C.M. 1004(b)(1), the
Government notified Appellant prior to arraignment of the two
aggravating factors it intended to prove.25
An aggravating factor that renders an accused eligible for
death is “the functional equivalent of an element of a greater
offense.” Ring, 536 U.S. at 609 (quoting Apprendi, 530 U.S. at
494 n.19). The Supreme Court has determined that 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.”
Jones v. United States, 526 U.S. 227, 243 n.6 (1999). For
purposes of this appeal, we assume that the Government must
allege in the charge sheet the aggravating factor as a
functional equivalent of an element, and we therefore further
25
Following Appellant’s conviction, the Government, without
objection from Appellant, withdrew one of the aggravating
factors, leaving only one -- that there were multiple
convictions of premeditated murder in the case.
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assume that the Government erred in failing to allege the
aggravating factor on the charge sheet in the instant case.
Federal circuit courts have labeled this type of charging
error as an “Apprendi error.” See, e.g., United States v.
Robinson, 367 F.3d 278, 285 (5th Cir. 2004) (defining “Apprendi
error” as “the failure of an indictment specifically to charge
aggravating factors regarded as elements because they increase
the maximum available punishment”). Those circuit courts that
have examined the issue have determined such a charging error is
subject to harmless error review. See, e.g., id. at 286
(concluding that Apprendi error is not a structural error and
subject to harmless error review); see also 5 Wayne R. LaFave et
al., Criminal Procedure § 19.3, at 265 (3d ed. 2007) (Circuit
courts have “almost uniformly held that the failure of the
indictment to include the Apprendi-element, like the failure to
submit that element to the jury, [is] subject to harmless error
review.”). Our case law also indicates that this type of
Apprendi error would be subject to harmless error review. See
United States v. Humphries, 71 M.J. 209, 215 (C.A.A.F. 2012)
(noting that each case in which an element was not alleged “must
be reviewed for harmless error to determine whether the
constitutional error was harmless beyond a reasonable doubt”).
Because Appellant preserved the charging issue at trial, the
Government bears the burden of establishing the error was
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harmless beyond a reasonable doubt. See id. at 213 n.5; United
States v. Savala, 70 M.J. 70, 77 (C.A.A.F. 2011). 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.” United States v.
Gaskins, 72 M.J. 225, 233 (C.A.A.F. 2013).
The Government has established that any error in failing to
allege the aggravating factor in the charge sheet was harmless.
First, the fundamental essence of the aggravating factor
ultimately pursued by the Government -- multiple murder (R.C.M.
1004(c)(7)(J)) -- already appeared on the charge sheet as
Appellant was charged in separate specifications with murdering
CPT Seifert and MAJ Stone, and the investigating officer
recommended that both specifications go forward. Cf. Robinson,
367 F.3d at 288-89 (concluding that Apprendi error was harmless
in part where there was sufficient evidence that grand jury
would have indicted had it known the proper elements). Second,
the Government has demonstrated that Appellant’s trial defense
counsel could not articulate how he would have altered his
strategy at the Article 32, UCMJ, 10 U.S.C. § 832 (2012),
hearing had the charge sheet specifically alleged the
aggravating factor. Finally, Appellant received actual notice
of the aggravating factors prior to his arraignment pursuant to
R.C.M. 1004(c)(1) allowing him ample opportunity to prepare for
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the aggravating factor. See Robinson, 367 F.3d at 287 (finding
Apprendi error harmless in part where defendant had sufficient
notice and opportunity to defend against aggravating factor).
We therefore conclude that any error in failing to allege the
aggravating factor in the charge sheet was harmless. Because we
resolve Appellant’s due process argument on harmless error
grounds, we do not need to reach the issue of whether R.C.M.
1004 is unconstitutional in the instant case. However, we note
that Appellant has raised a viable question as to whether
adherence to the provisions of R.C.M. 1004(b)(1) may violate
Fifth Amendment due process rights. See Ring, 536 U.S. at 609;
Apprendi, 530 U.S. at 490; Jones, 526 U.S. at 243 n.6; United
States v. Fosler, 70 M.J. 225, 229-30, 232 (C.A.A.F. 2011); cf.
United States v. Lawrence, 735 F.3d 385, 420 (6th Cir. 2013)
(“After Ring, several courts have held that an indictment
charging a death-eligible offense under the [Federal Death
Penalty Act] must charge the statutory aggravating factors.”).
Third, citing the provisions in the United States
Attorneys’ Manual that set forth policies and procedures in
federal civilian capital cases, Appellant claims the military’s
failure to create similar procedures violates his Article 36,
UCMJ, rights and his Fifth Amendment equal protection rights.
Appellant’s reliance on Article 36, UCMJ, is unpersuasive
because this article does not require the President to prescribe
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similar policies for military death penalty cases. See Article
36(a), UCMJ, 10 U.S.C. 836(a) (2012) (noting that pretrial
procedures “may be prescribed by the President, which shall, so
far as he considers practicable, apply the principles of law and
the rules of evidence generally recognized in the trial of
criminal cases in the United States district courts”).
Appellant’s equal protection argument is equally
unpersuasive. Appellant asserts that servicemembers who are
death-eligible are treated differently than their similarly
situated civilian counterparts because convening authorities do
not have to comply with death penalty protocols. “An ‘equal
protection violation’ is discrimination that is so unjustifiable
as to violate due process.” United States v. Rodriguez-Amy,
19 M.J. 177, 178 (C.M.A. 1985). However, “equal protection is
not denied when there is a reasonable basis for a difference in
treatment.” United States v. McGraner, 13 M.J. 408, 418 (C.M.A.
1982). We do not find any unjustifiable discrimination in the
instant case because Appellant, as an accused servicemember, was
not similarly situated to a civilian defendant. See Parker v.
Levy, 417 U.S. 733, 743 (1974) (“[T]he military is, by
necessity, a specialized society separate from civilian
society.”). We also note that “[t]he policy of the Justice
Department is but an internal policy, without the force of law
and subject to change or suspension at any time.” Therefore, it
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does not serve as the basis for an equal protection violation.
See United States v. Jones, 527 F.2d 817, 822 (D.C. Cir. 1975);
cf. United States v. Lopez-Matias, 522 F.3d 150, 156-57 (1st
Cir. 2003) (concluding United States Attorneys’ Manual on death
penalty protocols did not confer substantive rights).26
Accordingly, we conclude there was no equal protection
violation.
O. Constitutionality of Death Sentence
Appellant contends that his death sentence violates (1) his
Fifth Amendment rights because he has been denied due process
and (2) his Eighth Amendment rights because his mental illness
renders the punishment disproportionate to his culpability. We
conclude that the claim of a Fifth Amendment due process
violation is too vague to merit relief.27
Similarly, we are unpersuaded by Appellant’s Eighth
Amendment claim. First, courts have uniformly determined that
there is no constitutional impediment to imposing a capital
26
In his reply brief, Appellant notes two other differences
between the military and civilian systems: (1) the military
system did not allow him to be tried by a military judge alone;
and (2) the military system only provided one peremptory
challenge instead of the twenty permitted in the civilian
system. While we recognize differences exist, we find no
unjustifiable differences that rise to the level of an equal
protection violation.
27
We also doubt that we have the authority to hold “capital
punishment per se violative of due process.” See United States
v. Sampson, 486 F.3d 13, 28 (1st Cir. 2007) (citing Chapman v.
United States, 500 U.S. 453, 465 (1991)); United States v.
Quinones, 313 F.3d 49, 70 (2d Cir. 2002).
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sentence where a criminal defendant suffers from a mental
illness.28 See, e.g., Mays v. Stephens, 757 F.3d 211, 219 (5th
Cir. 2014) (noting that no Supreme Court case has “created a
rule of constitutional law making the execution of mentally ill
persons unconstitutional”); Franklin v. Bradshaw, 695 F.3d 439,
455 (6th Cir. 2012) (noting “no authorities have extended
[Supreme Court precedent] to prohibit the execution of those
with mental illnesses”); Carroll v. Secretary, DOC, 574 F.3d
1354, 1369 (11th Cir. 2009); Baird v. Davis, 388 F.3d 1110, 1114
(7th Cir. 2004) (noting Supreme Court has not ruled on
executions of those “who kill under an irresistible impulse”).
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.
Enmund v. Florida, 458 U.S. 782, 798 (1982) (quoting Lockett v.
Ohio, 438 U.S. 586, 605 (1978)). The record demonstrates that
28
The Supreme Court has identified three discrete classes of
offenders who are exempt from execution under the Eighth
Amendment: (1) those who are insane (and we note that being
insane is not the same as having a mental illness), Ford v.
Wainwright, 477 U.S. 399, 410 (1986); (2) those who suffer from
intellectual disability, Hall v. Florida, 134 S. Ct. 1986, 1992
(2014), Atkins v. Virginia, 536 U.S. 304, 321 (2002); and
(3) those who were under the age of eighteen when they committed
their crimes, Roper v. Simmons, 543 U.S. 551, 575 (2005).
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individualized consideration did occur in the instant case. We
first note that 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. Accordingly, this record does not
support the conclusion that Appellant’s mental impairments
rendered his death sentence highly disproportionate to his
culpability.
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. We recognize that 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. Panetti v. Quarterman, 551 U.S. 930, 934
(2007). However, 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. There is no basis in the record for
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us to conclude that Appellant is presently insane.29 Therefore,
we reject Appellant’s Eighth Amendment challenge premised on a
claim of mental illness. See Ford v. Wainwright, 477 U.S. 399,
410 (1986).
P. Crime Scene Photographs
Appellant contends that the admission of the Government’s
crime scene photographs violated his Fifth and Eighth Amendment
right to due process because they were unduly prejudicial. We
reject this challenge. We conclude that “it cannot be seriously
argued that [the autopsy and surgical] photographs were admitted
only to inflame or shock this court-martial.” Gray, 51 M.J. at
35.
Q. Voir Dire
Appellant asserts that the Government used voir dire to
impermissibly advance the Government’s theory. The Discussion
to Rule 912 states that voir dire should not be used “to argue
the case.” R.C.M. 912(d) Discussion (2005 ed.). However,
Appellant does not cite any instances in the record where this
occurred, and our review of the record does not reveal (1) any
questions in which the Government impermissibly advanced its
29
We recognize that appellate defense counsel signed a January
28, 2010, affidavit identifying certain behaviors by Appellant
that they believed might call into question Appellant’s
competency to assist with his appeal. We are unaware, however,
of any diagnosis from a mental health professional or any
judicial finding that Appellant was or is insane.
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theory or (2) any objections by Appellant on this basis. This
issue therefore does not provide any basis for reversal.
R. Government Peremptory Challenge
Appellant challenges the constitutionality of the
Government’s use of peremptory challenges to remove a member
whose moral bias against the death penalty does not justify a
challenge for cause. As Appellant recognizes, we have
previously rejected this argument. See Loving, 41 M.J. at 294-
95; see also Gray, 51 M.J. at 33. He provides no compelling
reason for us to reconsider our prior precedent, and we decline
to do so.
S. Panel Reconsideration
Appellant claims that the panel’s reconsideration of its
sentence violated the Fifth Amendment double jeopardy clause.
The Supreme Court has held that, 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. Caspari v.
Bohlen, 510 U.S. 383, 386 (1994) (citing Bullington v. Missouri,
451 U.S. 430, 446 (1981)). However, the circumstances of the
instant case are quite different from those in the cases cited
above because here the same panel reconsidered its own sentence
during its one and only deliberation session. Therefore, this
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Supreme Court precedent is readily distinguishable.30 Moreover,
we are unaware of any other cases that have applied double
jeopardy principles to reconsideration of a death sentence at
the same trial and during the course of the same deliberations,
and Appellant has cited no such authority. For these reasons,
we conclude that there is no double jeopardy violation stemming
from the panel’s reconsideration of its sentence in the course
of its deliberations, and its ultimate imposition of a death
sentence in this case.
T. CCA Proportionality Review
Appellant seeks a remand because the CCA failed to engage
in a proportionality review. Although not constitutionally
required, we have interpreted Article 66(c), UCMJ, 10 U.S.C. §
866(c) (2012), as requiring the courts of criminal appeals to
perform proportionality reviews of death sentences as part of
the sentence appropriateness determination. United States v.
Curtis, 33 M.J. 101, 109 (C.M.A. 1991). Our task is to assure
that the lower court’s review was “properly performed.” Id.
However, we do not require a lower court to “always articulate
its reasoning for its decisions.” United States v. Wean, 37
30
Even if Bullington could be analogized to the circumstances of
this case, the record before us does not reveal the
circumstances or results of the panel’s first vote. Therefore,
there is no evidence upon which to base a conclusion that the
panel’s ultimate sentence of death violated any double jeopardy
principles.
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M.J. 286, 287 (C.M.A. 1993) (citing United States v. Clifton,
35 M.J. 79 (C.M.A. 1992)); see also United States v.
Winckelmann, 73 M.J. 11, 16 (C.A.A.F. 2013) (stating that CCA
was not “obligated” to detail its analysis); United States v.
Matias, 25 M.J. 356, 361 (C.M.A. 1987) (noting that no provision
in the UCMJ or the R.C.M. requires the lower court to address
all assignments of error in a written opinion).
Although the CCA did not explicitly include any discussion
of a proportionality review in its opinion, we conclude that
Appellant received a proper legal review under Article 66(c),
UCMJ. We first note that Appellant raised an Article 66(c),
UCMJ, proportionality challenge below, so the CCA was fully
aware of the need to resolve this issue. We next note that,
absent evidence to the contrary, we presume that the judges on
the courts of criminal appeals know and properly apply the law.
United States v. Schweitzer, 68 M.J. 133, 139 (C.A.A.F. 2009).
Given this presumption and these facts, we find that 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.” Cf. United States v. Reed, 54 M.J. 37, 42-43
(C.A.A.F. 2000) (finding “nothing in the opinion that would lead
one to conclude that the lower court did not give . . .
appellant’s assignment[] of error careful consideration”).
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Although we emphasize that an explicit discussion by the CCA of
its proportionality review would have been far preferable,31 we
do not find a sufficient basis to remand this case for the CCA
to explicitly articulate its reasoning in the course of
performing its proportionality review.32
U. Joint Affidavits
The courts of criminal appeals are authorized to compel
trial defense counsel to submit affidavits. United States v.
Lewis, 42 M.J. 1, 5 (C.A.A.F. 1995). Here, the CCA authorized
trial defense counsel, MAJ Brookhart and CPT Coombs, to submit
joint affidavits. Appellant challenges this decision because
the joint affidavits prevented him from obtaining the
independent recollections of each counsel.
31
Cf. United States v. Durant, 55 M.J. 258, 261 (C.A.A.F. 2001)
(noting that lower court analysis is “extremely beneficial” in
cases involving unique sentencing issues because “[s]ound
articulation of their rationale . . . avoids speculation and
promotes judicial economy”).
32
Even if the CCA erred by failing to perform a proportionality
review, we conclude that any error was harmless. See Article
59(a), UCMJ, 10 U.S.C. § 859(a) (2012). We require the CCA to
employ a general offense-oriented proportionality review, United
States v. Gray, 51 M.J. 1, 63 (C.A.A.F. 1999), 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. Curtis, 33 M.J. at 109. To perform this
latter function, the service courts may consider military cases,
federal district court cases, and Supreme Court decisions on
state cases involving circumstances similar to an appellant’s.
Gray, 51 M.J. at 63; Curtis, 33 M.J. at 109. Here, the
Government has adequately shown that the capital sentence was
both appropriate and proportional for Appellant’s actions.
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The courts of criminal appeals have “discretion . . . to
determine how additional evidence, when required, will be
obtained.” Lewis, 42 M.J. at 6. They may determine that
evidence is required “by affidavit, testimony, stipulation, or a
factfinding hearing.” Boone, 49 M.J. at 193. “We are reluctant
to mandate procedures for the” courts of criminal appeals, but
we will do so when appropriate. Lewis, 42 M.J. at 6.
We conclude that the CCA did not abuse its discretion in
permitting trial defense counsel to submit joint affidavits.
Appellant has not cited any authorities directly prohibiting the
use of joint affidavits, and we have found none.33 Absent any
authority prohibiting the use of joint affidavits, we conclude
that the CCA did not abuse its discretion in allowing trial
defense counsel to submit one.
Although we conclude that there was no error, we do have
reservations about the submission of joint affidavits by trial
defense counsel when an appellant alleges ineffective assistance
33
There is authority that the use of joint affidavits is
“undesirable.” Masiello v. United States, 304 F.2d 399, 402
(D.C. Cir. 1962) (discussing joint affidavits in warrant
applications). As noted infra, we agree with this assessment.
However, a federal district court also has noted that it was
unable to find “any authority for the proposition that the use
of a joint affidavit is per se improper” and that “numerous
courts” in the Second Circuit had referred to or relied on them.
Steward v. Graham, No. 01-CV-0569, 2007 U.S. Dist. LEXIS 101402,
at *26 n.14 (N.D.N.Y. July 24, 2007), adopted by 2008 U.S. Dist.
LEXIS 40381, at *3 (N.D.N.Y. May 19, 2008), 2008 WL 2128172, at
*10 n.14 (N.D.N.Y. May 19, 2008).
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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 “[w]e
evaluate the combined efforts of the defense as a team rather
than evaluating the individual shortcomings of any single
counsel,” United States v. Garcia, 59 M.J. 447, 450 (C.A.A.F.
2004), we conclude that the better practice in future cases is
for the courts of criminal appeals to require counsel to submit
individual affidavits. Nonetheless, we conclude there was no
error in the instant case.
III. Decision
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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Appendix
Issues Presented
A.I
SGT HASAN K. AKBAR WAS DENIED HIS RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE SIXTH AMENDMENT TO
THE UNITED STATES CONSTITUTION, AT EVERY CRITICAL STAGE OF HIS
COURT-MARTIAL.
A.II
THIS COURT SHOULD ORDER A POST-TRIAL EVIDENTIARY HEARING TO
RESOLVE DISPUTED FACTUAL ISSUES RELEVANT TO SGT AKBAR’S NUMEROUS
COLLATERAL CLAIMS UNLESS THIS COURT FINDS IN HIS FAVOR ON
ANOTHER DISPOSITIVE GROUND.
A.III
WHETHER THE PROSECUTION’S VICTIM-IMPACT PRESENTATION AND
ARGUMENT, AND COUNSEL’S FAILURE TO OBJECT, VIOLATED SGT AKBAR’S
FIFTH, SIXTH, AND EIGHTH AMENDMENT RIGHTS.
A.IV
THE MILITARY JUDGE, BY FAILING TO SUA SPONTE DISMISS FOURTEEN OF
THE FIFTEEN PANEL MEMBERS FOR CAUSE BASED ON ACTUAL AND IMPLIED
BIAS MANIFESTED BY RELATIONSHIPS OF THE MEMBERS, A
PREDISPOSITION TO ADJUDGE DEATH, AN INELASTIC OPINION AGAINST
CONSIDERING MITIGATING EVIDENCE ON SENTENCING, VISCERAL
REACTIONS TO THE CHARGED ACTS, PRECONCEIVED NOTIONS OF GUILT,
AND DETAILED KNOWLEDGE OF UNCHARGED MISCONDUCT THAT HAD BEEN
EXCLUDED, DENIED SGT AKBAR A FAIR TRIAL.
A.V
THE MILITARY JUDGED ERRED TO SGT AKBAR’S SUBSTANTIAL PREJUDICE
BY DENYING HIS MOTION FOR CHANGE OF VENUE.
A.VI
SGT AKBAR WAS DENIED HIS SIXTH AND EIGHTH AMENDMENT RIGHT TO
COUNSEL WHEN HIS TRIAL DEFENSE COUNSEL ACTIVELY REPRESENTED
CONFLICTING INTERESTS WHICH ADVERSELY AFFECTED THEIR
PERFORMANCE.
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A.VII
“WHERE [UNLAWFUL COMMAND INFLUENCE] IS FOUND TO EXIST, JUDICIAL
AUTHORITIES MUST TAKE THOSE STEPS NECESSARY TO PRESERVE BOTH THE
ACTUAL AND APPARENT FAIRNESS OF THE CRIMINAL PROCEEDING.”
UNITED STATES v. LEWIS, 63 M.J. 405, 407 (C.A.A.F. 2006).
PROSECUTORIAL MISCONDUCT IS “ACTION OR INACTION BY A PROSECUTOR
IN VIOLATION OF SOME LEGAL NORM OR STANDARD, e.g., A
CONSTITUTIONAL PROVISION, A STATUTE, A MANUAL RULE, OR AN
APPLICABLE PROFESSIONAL ETHICS CANON.” UNITED STATES v. MEEK,
44 M.J. 1, 5 (C.A.A.F. 1996). IN THIS CASE, GOVERNMENT COUNSEL
MANIPULATED THE DUTY ASSIGNMENTS OF SGT AKBAR’S TRIAL DEFENSE
COUNSEL TO AVOID TRIAL DELAY AND THEREBY CREATED A CONFLICT OF
INTERESTS. See A.E. VI, SEC. E. DID GOVERNMENT COUNSEL’S ACTIONS
AMOUNT TO UNLAWFUL COMMAND INFLUENCE OR PROSECUTORIAL MISCONDUCT
IN VIOLATION OF SGT AKBAR’S RIGHT TO DUE PROCESS?
A.VIII
STANDARDS APPLICABLE TO FEDERAL AND STATE CAPITAL DEFENSE
COUNSEL HAVE APPLICABILITY TO COURTS-MARTIAL AS RELEVANT
STANDARDS OF CARE AND THE ARMY COURT’S ANALYSIS OF SGT AKBAR’S
CASE WAS FLAWED BECAUSE OF ITS MISAPPLICATION OF THE GUIDELINES
AND ITS DETERMINATION COUNSEL WERE “WELL-QUALIFIED.”
A.IX
DENYING SGT AKBAR THE RIGHT TO PLEAD GUILTY UNCONSTITUTIONALLY
LIMITED HIS RIGHT TO PRESENT MITIGATION EVIDENCE. IN THE
ALTERNATIVE, COUNSEL’S FAILURE TO DEMAND AN INSTRUCTION ON THIS
LIMITATION OF MITIGATION PRESENTATION AMOUNTED TO [INEFFECTIVE
ASSISTANCE OF COUNSEL] AS OMISSION OF THE INSTRUCTION DENIED SGT
AKBAR MITIGATION EVIDENCE IN VIOLATION OF THE EIGHTH AMENDMENT.
A.X
THE SECRETARY OF THE ARMY’S EXEMPTION FROM COURT-MARTIAL SERVICE
OFFICERS OF THE SPECIAL BRANCHES NAMED IN AR 27-10 VIOLATED
ARTICLE 25(d)(2), UCMJ, PREJUDICING SGT AKBAR’S RIGHT TO DUE
PROCESS AND A FAIR TRIAL.
A.XI
AS SGT AKBAR’S TRIAL DEFENSE COUNSEL DID NOT ADEQUATELY
INVESTIGATE HIS CASE, THE ARMY COURT ERRED DENYING HIS REQUEST
TO RETAIN PSYCHIATRIST AND PSYCHOLOGIST DR. RICHARD DUDLEY AND
DR. JANICE STEVENSON, OR OTHERWISE, ORDERING PROVISION OF
ADEQUATE SUBSTITUTES. FURTHER INVESTIGATION BY APPELLATE
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DEFENSE COUNSEL ALSO REVEALS THE NECESSITY OF OBTAINING THE
EXPERT ASSISTANCE OF CLINICAL PSYCHOLOGIST DR. WILBERT MILES.
A.XII
THE MILITARY JUDGE COMMITTED PLAIN ERROR BY PROVIDING SENTENCING
RECONSIDERATION INSTRUCTIONS THAT FAILED TO INSTRUCT THE PANEL
DEATH WAS NO LONGER AN AVAILABLE PUNISHMENT IF THE PANEL’S
INITIAL VOTE DID NOT INCLUDE DEATH AND DID NOT COMPLY WITH
R.C.M. 1004.
A.XIII
THE MILITARY JUDGE ERRED IN NOT SUPPRESSING THE STATEMENT “YES”
BY SGT AKBAR TO MAJ WARREN, WHEN THAT STATEMENT WAS GIVEN WHILE
SGT AKBAR WAS AT GUNPOINT, IN CUSTODY, AND BEFORE HE RECEIVED
RIGHTS WARNINGS UNDER MIRANDA v. ARIZONA OR ARTICLE 31(b), UCMJ.
A.XIV
UNDER THE SUPREME COURT’S REASONING IN RING v. ARIZONA, 536 U.S.
584 (2002), CONGRESS UNCONSTITUTIONALLY DELEGATED TO THE
PRESIDENT THE POWER TO ENACT ELEMENTS OF CAPITAL MURDER, A
PURELY LEGISLATIVE FUNCTION.
A.XV
DID THE PROCEDURES PROVIDED UNDER R.C.M. 1004 VIOLATE SGT
AKBAR’S RIGHT TO DUE PROCESS BY ALLOWING THE CONVENING AUTHORITY
TO UNILATERALLY APPEND UNSWORN AND UNINVESTIGATED AGGRAVATING
ELEMENTS TO HIS MURDER SPECIFICATIONS AT REFERRAL?
A.XVI
“WHEN A FINDING OF FACT ALTERS THE LEGALLY PRESCRIBED PUNISHMENT
SO AS TO AGGRAVATE IT, THE FACT NECESSARILY FORMS A CONSTITUENT
PART OF A NEW OFFENSE AND MUST BE SUBMITTED TO THE JURY.”
ALLEYNE, 133 S. CT. AT 2162. UNDER R.C.M. 1004(b)(4)(C), DEATH
CANNOT BE CONSIDERED ABSENT A PRELIMINARY, UNANIMOUS FINDING
THAT AGGRAVATING CIRCUMSTANCES “SUBSTANTIALLY OUTWEIGH”
MITIGATING AND EXTENUATING CIRCUMSTANCES. AT TRIAL, SGT AKBAR
UNSUCCESSFULLY REQUESTED SENTENCING INSTRUCTIONS REQUIRING THAT
AGGRAVATING CIRCUMSTANCES OUTWEIGH MITIGATING AND EXTENUATING
CIRCUMSTANCES BEYOND A REASONABLE DOUBT PURSUANT TO APPRENDI,
530 U.S. 466 AND RING, 536 U.S. 584. DID THE MILITARY JUDGE
VIOLATE SGT AKBAR’S RIGHT TO DUE PROCESS BY FAILING TO INSTRUCT
THAT AGGRAVATING CIRCUMSTANCES MUST OUTWEIGH MITIGATING
CIRCUMSTANCES BEYOND A REASONABLE DOUBT?
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A.XVII
THE LACK OF A SYSTEM TO ENSURE CONSISTENT AND EVEN-HANDED
APPLICATION OF THE DEATH PENALTY IN THE MILITARY VIOLATES BOTH
SGT AKBAR’S EQUAL PROTECTION RIGHTS AND ARTICLE 36, UCMJ. See
18 U.S.C. § 2245 AND U.S. DEP’T OF JUSTICE, U.S. ATTORNEY’S
MANUAL § 9-10.010 (JUNE 1998) (USAM) AND 10 U.S.C.
§ 949a(b)(2)(C)(ii). IN CONTRAST TO THE USAM, NO PROTOCOL
EXISTS FOR CONVENING AUTHORITIES IN CAPITAL CASES, CREATING AN
AD HOC SYSTEM OF CAPITAL SENTENCING.
A.XVIII
SGT AKBAR’S DEATH SENTENCE VIOLATES THE EIGHTH AMENDMENT BECAUSE
APPELLANT’S SEVERE MENTAL ILLNESS MAKES SUCH A PUNISHMENT HIGHLY
DISPROPORTIONATE TO HIS CULPABILITY AND VIOLATES THE FIFTH
AMENDMENT BECAUSE IT WOULD BE A DENIAL OF DUE PROCESS TO EXECUTE
HIM.
A.XIX
THE MILITARY JUDGE ERRED IN ADMITTING THE GOVERNMENT’S CRIME
SCENE PHOTOGRAPHS AS THEY UNDULY PREJUDICED SGT AKBAR’S FIFTH
AND EIGHTH AMENDMENT RIGHT TO DUE PROCESS. See, e.g., APP. EXS.
157, 299.
A.XX
THE TRIAL COUNSEL COMMITTED REVERSIBLE ERROR BY USING THE VOIR
DIRE OF THE MEMBERS TO IMPERMISSIBLY ADVANCE THE GOVERNMENT’S
THEORY OF THE CASE. See APP. EX. VII (DEFENSE MOTION FOR
APPROPRIATE RELIEF FOR INDIVIDUAL SEQUESTRATION OF MEMBERS
DURING VOIR DIRE); See R.C.M. 912(d), DISCUSSION.
A.XXI
THE MILITARY JUSTICE SYSTEM’S PEREMPTORY CHALLENGE PROCEDURE,
WHICH ALLOWS THE GOVERNMENT TO REMOVE ANY ONE MEMBER WITHOUT
CAUSE, IS AN UNCONSTITUTIONAL VIOLATION OF THE FIFTH AND EIGHTH
AMENDMENTS TO THE U.S. CONSTITUTION IN CAPITAL CASES, WHERE THE
PROSECUTOR IS FREE TO REMOVE A MEMBER WHOSE MORAL BIAS AGAINST
THE DEATH PENALTY DOES NOT JUSTIFY A CHALLENGE FOR CAUSE. But
see UNITED STATES v. CURTIS, 44 M.J. 106, 131-33 (C.A.A.F.
1996); UNITED STATES v. LOVING, 41 M.J. 213, 294-95 (C.A.A.F.
1994).
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A.XXII
THE PANEL’S RECONSIDERATION OF THE SENTENCE IN SGT AKBAR’S CASE
VIOLATED THE FIFTH AMENDMENT’S DOUBLE JEOPARDY CLAUSE BECAUSE
“NO PERSON . . . SHALL BE SUBJECT FOR THE SAME OFFENSE TO BE
TWICE PUT IN JEOPARDY OF LIFE.” See APP. EX. XXXVII (DEFENSE
MOTION FOR APPROPRIATE RELIEF -- FINDING AND SENTENCING
INSTRUCTIONS EXPLAINING VOTING PROCEDURE ON CAPITAL OFFENSES AND
DEATH).
B.I
THE ARMY COURT’S FAILURE TO DO AN ARTICLE 66(c), UCMJ,
PROPORTIONALITY REVIEW REQUIRES REMAND FOR THE COMPLETE REVIEW
IT WAS REQUIRED BY LAW TO CONDUCT, AND THE FAILURE TO DETAIL ITS
REVIEW IN ITS OPINION UNDERMINES THIS COURT’S ABILITY TO REVIEW
THE PROPORTIONALITY ANALYSIS UNDER ARTICLE 67, UCMJ.
B.II
THE ARMY COURT’S REFUSAL TO ACCEPT SGT AKBAR’S EVIDENCE IN
REBUTTAL TO GOV’T APP. EX. 13, A DECLARATION FROM TRIAL DEFENSE
COUNSEL, AND REFUSAL TO GRANT THE FEW WEEKS NECESSARY TO OBTAIN
DISCOVERY NOT PROVIDED AS ORDERED IN 2008, REQUIRES REMAND FOR A
COMPLETE REVIEW UNDER ARTICLE 66, UCMJ, BECAUSE (1) THE ARMY
COURT WAS REQUIRED BY LAW TO CONDUCT THE REVIEW, AND (2) THIS
COURT DOES NOT HAVE FACT FINDING ABILITY UNDER ARTICLE 67, UCMJ.
B.III
THE 2,633 DAY GAP BETWEEN THE COMPLETION OF SGT AKBAR’S COURT-
MARTIAL AND THE ARMY COURT’S DECISION WAS FACIALLY UNREASONABLE
AND REQUIRES REMAND TO DETERMINE IF SGT AKBAR WAS PREJUDICIALLY
DENIED THE DUE PROCESS OF LAW GUARANTEED UNDER THE FIFTH
AMENDMENT.
B.IV
THE ARMY COURT ERRED ALLOWING TRIAL DEFENSE COUNSEL TO FILE A
JOINT AFFIDAVIT OVER SGT AKBAR’S OBJECTION, DEPRIVING HIM OF THE
INDEPENDENT RECOLLECTIONS OF BOTH COUNSEL AND DELEGATING THE
ARMY COURT’S FACT FINDING RESPONSIBILITY TO HIS TRIAL DEFENSE
TEAM WHO NOW STAND OPPOSED TO SGT AKBAR’S INTERESTS.
B.V
“ELIGIBILITY FACTORS ALMOST OF NECESSITY REQUIRE AN ANSWER TO A
QUESTION WITH A FACTUAL NEXUS TO THE CRIME OR THE DEFENDANT SO
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AS TO ‘MAKE RATIONALLY REVIEWABLE THE PROCESS FOR IMPOSING A
SENTENCE OF DEATH.’” ARAVE v. CREECH, 507 U.S. 463, 471 (1993)
(CITATION OMITTED). IN THIS CASE, THE SOLE AGGRAVATING FACTOR
RELIED UPON BY THE PANEL TO FIND SGT AKBAR DEATH ELIGIBLE WAS
THAT, HAVING BEEN FOUND GUILTY OF PREMEDITATED MURDER, IN
VIOLATION OF ARTICLE 118(1), UCMJ, THE ACCUSED WAS FOUND GUILTY,
IN THE SAME CASE, OF ANOTHER VIOLATION OF ARTICLE 118, UCMJ,
PURSUANT TO R.C.M. 1004(c)(7)(J). IS THE AGGRAVATING FACTOR
PROVIDED IN R.C.M. 1004(c)(7)(J) UNCONSTITUTIONALLY VAGUE
BECAUSE IT IS NOT DIRECTED AT A SINGLE EVENT AND DEPENDANT UPON
THE GOVERNMENT’S DECISION TO PROSECUTE TWO OR MORE VIOLATIONS OF
ARTICLE 118, UCMJ, AT A SINGLE TRIAL?
B.VI
THE CUMULATIVE ERRORS IN THIS CASE COMPEL REVERSAL OF THE
FINDINGS AND SENTENCE.
B.VII
RULE FOR COURTS-MARTIAL (R.C.M.) 1004 DOES NOT ENSURE THE GOALS
OF INDIVIDUAL FAIRNESS, REASONABLE CONSISTENCY, AND ABSENCE OF
ERROR NECESSARY TO ALLOW THIS COURT TO AFFIRM APPELLANT’S DEATH
SENTENCE BECAUSE R.C.M. 1004 DOES NOT ENSURE THE RACE OF THE
VICTIM OR ALLEGED PERPETRATOR IS NOT A FACTOR IN THE DEATH
SENTENCE. McCLESKEY v. KEMP, 481 U.S. 279 (1987).
B.VIII
THE VARIABLE SIZE OF THE COURT-MARTIAL PANEL CONSTITUTED AN
UNCONSTITUTIONAL CONDITION ON SERGEANT AKBAR’S FUNDAMENTAL RIGHT
TO CONDUCT VOIR DIRE AND PROMOTE AN IMPARTIAL PANEL. See APP.
EX. XXIII (DEFENSE MOTION FOR APPROPRIATE RELIEF -- GRANT OF
ADDITIONAL PEREMPTORY CHALLENGES); IRVIN v. DOWD, 366 U.S. 717,
722 (1961).
B.IX
THE DEATH SENTENCE IN THIS CASE VIOLATES THE FIFTH, SIXTH, AND
EIGHTH AMENDMENTS AND ARTICLE 55, UCMJ, BECAUSE THE MILITARY
SYSTEM DOES NOT GUARANTEE A FIXED NUMBER OF MEMBERS. See APP.
EX. XXIII (DEFENSE MOTION FOR APPROPRIATE RELIEF -– GRANT OF
ADDITIONAL PEREMPTORY CHALLENGES); See also APP. EX. LXXXIII
(DEFENSE MOTION FOR APPROPRIATE RELIEF TO PRECLUDE THE COURT-
MARTIAL FROM ADJUDGING A SENTENCE OF DEATH SINCE THE MANUAL FOR
COURTS-MARTIAL FAILS TO MANDATE A FIXED SIZE PANEL IN CAPITAL
CASES); IRVIN v. DOWD, 366 U.S. 717, 722 (1961).
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B.X
DISCUSSION OF FINDINGS AND SENTENCING INSTRUCTIONS AT R.C.M. 802
CONFERENCES DENIED SGT AKBAR HIS RIGHT TO BE PRESENT AT EVERY
STAGE OF TRIAL. See APP. EX. XLVII (DEFENSE MOTION FOR
APPROPRIATE RELIEF -- REQUEST THAT ALL CONFERENCES BE HELD IN AN
ARTICLE 39(a)).
B.XI
THIS COURT ARBITRARILY AND SEVERELY RESTRICTED THE LENGTH OF SGT
AKBAR’S BRIEF, IN VIOLATION OF THE EQUAL PROTECTION AND DUE
PROCESS CLAUSES OF THE FOURTEENTH AMENDMENT AND ARTICLE 67, WHEN
THIS COURT ORDERED SGT AKBAR TO FILE AN ABBREVIATED BRIEF,
INCONSISTENT WITH THE PAST PRACTICE OF THIS COURT IN CAPITAL
CASES AND ARTICLE 67, AND WITHOUT GOOD CAUSE SHOWN.
C.I
THE ROLE OF THE CONVENING AUTHORITY IN THE MILITARY JUSTICE
SYSTEM DENIED SGT AKBAR A FAIR AND IMPARTIAL TRIAL IN VIOLATION
OF THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS AND ARTICLE 55, UCMJ,
BY ALLOWING THE CONVENING AUTHORITY TO ACT AS A GRAND JURY IN
REFERRING CAPITAL CRIMINAL CASES TO TRIAL, PERSONALLY APPOINTING
MEMBERS OF HIS CHOICE, RATING THE MEMBERS, HOLDING THE ULTIMATE
LAW ENFORCEMENT FUNCTION WITHIN HIS COMMAND, RATING HIS LEGAL
ADVISOR, AND ACTING AS THE FIRST LEVEL OF APPEAL, THUS CREATING
AN APPEARANCE OF IMPROPRIETY THROUGH A PERCEPTION THAT HE ACTS
AS PROSECUTOR, JUDGE, AND JURY. See APP. EX. XIII (DEFENSE
MOTION FOR APPROPRIATE RELIEF TO DISQUALIFY ALL MEMBERS CHOSEN
BY THE CONVENING AUTHORITY).
C.II
ARTICLE 18, UCMJ, AND R.C.M. 201(f)(1)(C), WHICH REQUIRE TRIAL
BY MEMBERS IN A CAPITAL CASE, VIOLATES THE GUARANTEE OF DUE
PROCESS AND A RELIABLE VERDICT UNDER THE FIFTH, SIXTH, AND
EIGHTH AMENDMENTS.
C.III
SERGEANT AKBAR WAS DENIED HIS RIGHT TO A TRIAL BY AN IMPARTIAL
JURY COMPOSED OF A FAIR CROSS-SECTION OF THE COMMUNITY IN
VIOLATION OF THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION.
DUREN v. MISSOURI, 439 U.S. 357 (1979). But see UNITED STATES
v. CURTIS, 44 M.J. 106, 130-33 (C.A.A.F. 1996).
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C.IV
THE SELECTION OF THE PANEL MEMBERS BY THE CONVENING AUTHORITY IN
A CAPITAL CASE DIRECTLY VIOLATES SGT AKBAR’S RIGHTS UNDER THE
FIFTH, SIXTH, AND EIGHTH AMENDMENTS TO THE U.S. CONSTITUTION AND
ARTICLE 55, UCMJ, BY IN EFFECT GIVING THE GOVERNMENT UNLIMITED
PEREMPTORY CHALLENGES. See APP. EX. XIII (DEFENSE MOTION FOR
APPROPRIATE RELIEF TO DISQUALIFY ALL MEMBERS CHOSEN BY THE
CONVENING AUTHORITY).
C.V
THE PRESIDENT EXCEEDED HIS ARTICLE 36 POWERS TO ESTABLISH
PROCEDURES FOR COURTS-MARTIAL BY GRANTING TRIAL COUNSEL A
PEREMPTORY CHALLENGE AND THEREBY THE POWER TO NULLIFY THE
CONVENING AUTHORITY’S ARTICLE 25(d) AUTHORITY TO DETAIL MEMBERS
OF THE COURT. See APP. EX. XXIII (DEFENSE MOTION FOR
APPROPRIATE RELIEF -- GRANT OF ADDITIONAL PEREMPTORY
CHALLENGES).
C.VI
THE DESIGNATION OF THE SENIOR MEMBER AS PRESIDING OFFICER FOR
DELIBERATIONS DENIED SGT AKBAR A FAIR TRIAL BEFORE IMPARTIAL
MEMBERS IN VIOLATION OF THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS
TO THE U.S. CONSTITUTION AND ARTICLE 55, UCMJ. See APP. EX. XXV
(DEFENSE MOTION FOR APPROPRIATE RELIEF -- REQUEST THAT THE
SENIOR MEMBER NOT BE MADE THE PRESIDENT OF THE PANEL).
C.CVII
THE DENIAL OF THE RIGHT TO POLL MEMBERS REGARDING THEIR VERDICT
AT EACH STAGE OF TRIAL DENIED SERGEANT AKBAR A FAIR TRIAL BEFORE
IMPARTIAL MEMBERS IN VIOLATION OF THE FIFTH, SIXTH, AND EIGHTH
AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE 55, UCMJ. See
APP. EX. XVII (DEFENSE MOTION FOR APPROPRIATE RELIEF -- POLLING
OF PANEL MEMBERS).
C.VIII
THERE IS NO MEANINGFUL DISTINCTION BETWEEN PREMEDITATED AND
UNPREMEDITATED MURDER ALLOWING DIFFERENTIAL TREATMENT AND
SENTENCING DISPARITY IN VIOLATION OF THE FIFTH, SIXTH, AND
EIGHTH AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE 55, UCMJ.
See APP. EX. LIX (DEFENSE MOTION TO DISMISS THE CAPITAL REFERRAL
DUE TO ARTICLE 118 OF THE UCMJ BEING UNCONSTITUTIONALLY VAGUE).
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C.IX
SERGEANT AKBAR WAS DENIED HIS CONSTITUTIONAL RIGHT UNDER THE
FIFTH AMENDMENT TO A GRAND JURY PRESENTMENT OR INDICTMENT. See
APP. EX. LXIX (DEFENSE MOTION TO DISMISS CAPITAL REFERRAL ON THE
GROUND THAT THE MILITARY CAPITAL SCHEME VIOLATES THE FIFTH
AMENDMENT).
C.X
COURT-MARTIAL PROCEDURES DENIED SGT AKBAR HIS ARTICLE III RIGHT
TO A JURY TRIAL. SOLORIO v. UNITED STATES, 103 U.S. 435, 453-54
(1987) (MARSHALL, J., DISSENTING). But see UNITED STATES v.
CURTIS, 44 M.J. 106, 132 (C.A.A.F. 1996).
C.XI
DUE PROCESS REQUIRES TRIAL AND INTERMEDIATE APPELLATE JUDGES IN
MILITARY DEATH PENALTY CASES BE PROTECTED BY A FIXED TERM OF
OFFICE, NOT SUBJECT TO INFLUENCE AND CONTROL BY THE JUDGE
ADVOCATE GENERAL OF THE ARMY. See APP. EX. V (DEFENSE MOTION
FOR APPROPRIATE RELIEF, HEIGHTENED DUE PROCESS). But see UNITED
STATES v. LOVING, 41 M.J. 213, 295 (C.A.A.F. 1994).
C.XII
THE ARMY COURT LACKED JURISDICTION BECAUSE THE JUDGES ARE
PRINCIPAL OFFICERS NOT PRESIDENTIALLY APPOINTED AS REQUIRED BY
THE APPOINTMENTS CLAUSE OF THE CONSTITUTION. See U.S. CONST.,
ART. II, § 2. But see UNITED STATES v. GRINDSTAFF, 45 M.J. 634
(N-M. CT. CRIM. APP. 1997); cf. EDMOND v. UNITED STATES,
115 U.S. 651 (1997).
C.XIII
THIS COURT LACKS THE JURISDICTION AND AUTHORITY TO REVIEW THE
CONSTITUTIONALITY OF THE RULES FOR COURTS-MARTIAL AND THE UCMJ
BECAUSE THIS COURT IS AN ARTICLE I COURT, NOT AN ARTICLE III
COURT WITH THE POWER TO CHECK THE LEGISLATIVE EXECUTIVE BRANCHES
UNDER MARBURY v. MADISON, 5 U.S. (1 CRANCH) 137 (1803). See
also COOPER v. AARON, 358 U.S. 1 (1958) (THE POWER TO STRIKE
DOWN UNCONSTITUTIONAL STATUTES OR EXECUTIVE ORDERS IS EXCLUSIVE
TO ARTICLE III COURTS). But see LOVING, 41 M.J. AT 296.
C.XIV
SERGEANT AKBAR IS DENIED EQUAL PROTECTION OF LAW IN VIOLATION OF
THE FIFTH AMENDMENT AS ALL U.S. CIVILIANS ARE AFFORDED THE
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OPPORTUNITY TO HAVE THEIR CASES REVIEWED BY AN ARTICLE III
COURT, BUT MEMBERS OF THE UNITED STATES MILITARY BY VIRTUE OF
THEIR STATUS AS SERVICE MEMBERS ARE NOT. But see UNITED STATES
v. LOVING, 41 M.J. 213, 295 (C.A.A.F. 1994).
C.XV
SERGEANT AKBAR IS DENIED EQUAL PROTECTION OF LAW UNDER THE FIFTH
AMENDMENT TO THE U.S. CONSTITUTION BECAUSE [IN ACCORDANCE WITH]
ARMY REGULATION 15-130, PARA. 3-1(d)(6), HIS APPROVED DEATH
SENTENCE RENDERS HIM INELIGIBLE FOR CLEMENCY BY THE ARMY
CLEMENCY AND PAROLE BOARD, WHILE ALL OTHER CASES REVIEWED BY
THIS COURT ARE ELIGIBLE FOR SUCH CONSIDERATION. But see UNITED
STATES v. THOMAS, 43 M.J. 550, 607 (N-M. CT. CRIM. APP. 1995).
C.XVI
SERGEANT AKBAR’S DEATH SENTENCE VIOLATES THE EIGHTH AMENDMENT
PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT BECAUSE THE
CAPITAL REFERRAL SYSTEM OPERATES IN AN ARBITRARY AND CAPRICIOUS
MANNER. See APP. EX. LXV (DEFENSE MOTION TO SET ASIDE CAPITAL
REFERRAL FOR LACK OF STATUTORY GUIDELINES).
C.XVII
THE DEATH PENALTY PROVISION OF ARTICLE 118, UCMJ, IS
UNCONSTITUTIONAL AS IT RELATES TO TRADITIONAL COMMON LAW CRIMES
THAT OCCUR IN THE U.S. But see UNITED STATES v. LOVING, 41 M.J.
213, 293 (C.A.A.F. 1994). THE COURT RESOLVED THE ISSUE AGAINST
PRIVATE LOVING, ADOPTING THE REASONING OF THE DECISION OF THE
ARMY COURT OF MILITARY REVIEW. See UNITED STATES v. LOVING,
34 M.J. 956, 967 (A.C.M.R. 1992). HOWEVER, PRIVATE LOVING’S
ARGUMENT BEFORE THE ARMY COURT RELIED ON THE TENTH AMENDMENT AND
NECESSARY AND PROPER CLAUSE OF THE U.S. CONSTITUTION. Id.
SERGEANT AKBAR’S ARGUMENT RELIES ON THE EIGHTH AMENDMENT TO THE
U.S. CONSTITUTION.
C.XVIII
THE DEATH SENTENCE IN THIS CASE VIOLATES THE FIFTH AND EIGHTH
AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE 55, UCMJ, AS THE
CONVENING AUTHORITY DID NOT DEMONSTRATE HOW THE DEATH PENALTY
WOULD ENHANCE GOOD ORDER AND DISCIPLINE. See APP. EX. LXVII
(DEFENSE MOTION FOR APPROPRIATE RELIEF TO PRECLUDE IMPOSITION OF
DEATH AS INTERESTS OF JUSTICE WILL NOT BE SERVED).
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C.XIX
THE MILITARY CAPITAL SENTENCING PROCEDURE IS UNCONSTITUTIONAL
BECAUSE MILITARY JUDGES DO NOT HAVE THE POWER TO ADJUST OR
SUSPEND A DEATH SENTENCE IMPROPERLY IMPOSED. See APP. EX. V
(DEFENSE MOTION FOR APPROPRIATE RELIEF, HEIGHTENED DUE PROCESS).
C.XX
DUE TO THE MILITARY JUSTICE SYSTEM’S INHERENT FLAWS CAPITAL
PUNISHMENT AMOUNTS TO CRUEL AND UNUSUAL PUNISHMENT UNDER ALL
CIRCUMSTANCES. See APP. EX. LXXI (DEFENSE MOTION FOR
APPROPRIATE RELIEF TO PRECLUDE THE COURT–MARTIAL FROM ADJUDGING
A SENTENCE IN VIOLATION OF ARTICLE 55 OF THE UCMJ).
C.XXI
THE DEATH PENALTY CANNOT BE CONSTITUTIONALLY IMPLEMENTED UNDER
CURRENT EIGHTH AMENDMENT JURISPRUDENCE. See CALLINS v. COLLINS,
510 U.S. 1141, 1143-59 (1994) (BLACKMUN, J., DISSENTING) (CERT.
DENIED).
C.XXII
R.C.M. 1209 AND THE MILITARY DEATH PENALTY SYSTEM DENY DUE
PROCESS AND CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT AND ARE
TANTAMOUNT TO FORESEEABLE, STATE-SPONSORED EXECUTION OF INNOCENT
HUMAN BEINGS BECAUSE THERE IS NO EXCEPTION FOR ACTUAL INNOCENCE
TO THE FINALITY OF COURTS-MARTIAL REVIEW. Cf. TRIESTMAN v.
UNITED STATES, 124 F.3d 361, 378-79 (2d CIR. 1997).
C.XXIII
R.C.M. 1001(b)(4) IS UNCONSTITUTIONALLY VAGUE AND OVERBROAD AS
APPLIED TO THE APPELLATE AND CAPITAL SENTENCING PROCEEDINGS
BECAUSE IT PERMITS THE INTRODUCTION OF EVIDENCE BEYOND THAT OF
DIRECT FAMILY MEMBERS AND THOSE PRESENT AT THE SCENE IN
VIOLATION OF THE FIFTH AND EIGHTH AMENDMENTS. See APP. EX. LV
(DEFENSE MOTION FOR APPROPRIATE RELIEF -- TO LIMIT ADMISSIBILITY
OF VICTIM’S CHARACTER AND IMPACT ON FAMILY FROM VICTIM’S DEATH);
See also APP. EX. 296 (MOTION FOR APPROPRIATE RELIEF -- LIMIT
VICTIM IMPACT AND GOVERNMENT ARGUMENT).
C.XXIV
R.C.M. 1001(b)(4) IS UNCONSTITUTIONALLY VAGUE AND OVERBROAD AS
APPLIED TO THE APPELLATE AND CAPITAL SENTENCING PROCEEDINGS
BECAUSE IT PERMITS THE INTRODUCTION OF CIRCUMSTANCES WHICH COULD
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NOT REASONABLY HAVE BEEN KNOWN BY SERGEANT AKBAR AT THE TIME OF
THE OFFENSE IN VIOLATION OF HIS FIFTH AND EIGHTH AMENDMENT
RIGHTS. See APP. EX. LV (DEFENSE MOTION FOR APPROPRIATE RELIEF
-- TO LIMIT ADMISSIBILITY OF VICTIM’S CHARACTER AND IMPACT ON
FAMILY FROM VICTIM’S DEATH).
C.XXV
THE MILITARY JUDGE ERRED IN ADMITTING VICTIM-IMPACT EVIDENCE
REGARDING THE PERSONAL CHARACTERISTICS OF THE VICTIMS WHICH
COULD NOT REASONABLY HAVE BEEN KNOWN BY SERGEANT AKBAR AT THE
TIME OF THE OFFENSE IN VIOLATION OF HIS FIFTH AND EIGHTH
AMENDMENT RIGHTS. See APP. EX. LV (DEFENSE MOTION FOR
APPROPRIATE RELIEF -- TO LIMIT ADMISSIBILITY OF VICTIM’S
CHARACTER AND IMPACT ON FAMILY FROM VICTIM’S DEATH).
C.XXVI
THE DEATH SENTENCE IN THIS CASE VIOLATES THE EX POST FACTO
CLAUSE, FIFTH AND EIGHTH AMENDMENTS, SEPARATION OF POWERS
DOCTRINE, PREEMPTION DOCTRINE, AND ARTICLE 55, UCMJ, BECAUSE
WHEN IT WAS ADJUDGED NEITHER CONGRESS NOR THE ARMY SPECIFIED A
MEANS OR PLACE OF EXECUTION. See APP. EX. LXXIII (DEFENSE
MOTION TO DISMISS -- MILITARY SYSTEM FOR ADMINISTERING THE DEATH
PENALTY VIOLATES THE NON-DELEGATION DOCTRINE).
Issues Presented Pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982)
I.
WHETHER THERE WAS A FRAUD ON THE COURT WHERE TWO WITNESSES
TESTIFIED DIFFERENTLY AT TRIAL THAN AT THEIR ARTICLE 32 HEARING
AND WHERE FORENSIC ANALYSIS OF THE BULLETS SHOWED THEY WERE
ARMOR PIERCING WHERE APPELLANT ONLY WAS ISSUED STANDARD ISSUE
BULLETS.
II.
WHETHER APPELLANT WAS ABLE TO ASSIST COUNSEL AT TRIAL.
III.
WHETHER THE BULLET ANALYSIS WAS A SHAM.
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IV.
WHETHER THE PANEL AND THE MILITARY JUDGE WERE BIASED AGAINST
APPELLANT.
V.
WHETHER SOMEONE USED MIND CONTROL ON APPELLANT TO FORCE HIM TO
ATTACK.
VI.
WHETHER TRIAL DEFENSE COUNSEL COERCED APPELLANT NOT TO TESTIFY.
VII.
WHETHER LEAD CIVILIAN COUNSEL SHOULD HAVE ACCEDED TO APPELLANT’S
REQUEST TO REMOVE MILITARY DEFENSE COUNSEL.
VIII.
WHETHER APPELLANT WAS DENIED COUNSEL OF HIS CHOICE WHEN TRIAL
DEFENSE COUNSEL REFUSED TO INVITE LTC HANSEN BACK AND CIVILIAN
COUNSEL’S FAMILY WAS THREATENED FOR WORKING ON THE CASE.
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BAKER, Judge,* with whom ERDMANN, Chief Judge, joins
(dissenting):
Principle is hardest to hold in the face of countervailing
virtue. For a judge that moment may arrive when knowing what is
just, one must also consider what is fair. This is a case about
whether or not the military justice system was fair, not whether
it was just.
INTRODUCTION
Appellant raises fifty-nine issues on appeal. This Court
heard oral argument on five issues. However, in my view, there
is but one pivotal question: Did defense counsel provide
ineffective assistance of counsel in the manner in which they
presented Appellant’s sentence mitigation case?
To understate, defense counsel had a hard case. Their task
was made harder by the absence of guidelines in the military for
handling death penalty cases and a requirement to provide
counsel “learned in the law applicable to capital cases” in
death penalty cases. That meant that defense counsel, appointed
from the ranks of judge advocates, were on their own, without
clear guidance or expert assistance on the criteria against
which to measure the effective assistance of counsel in this
death penalty case.
Former Chief Judge James E. Baker took final action in this
case prior to the expiration of his term on July 31, 2015.
United States v. Akbar, No. 13-7001/AR
The military has guidelines on the length of hair and
mustaches.1 It has guidelines on how much fat is permitted on a
cut of meat served in the mess hall,2 and it has guidelines on
the placement of the necktie in relation to one’s belt,3 but it
does not have guidelines on how to provide effective assistance
of counsel in a death penalty case. This seems to expose
counsel unnecessarily to allegations of ineffective assistance
of counsel. The absence of counsel “learned in the law
applicable to capital cases” who might have helped fill this
void compounds the problem.
Guidelines or not, hard case or not, in my view,
Appellant’s trial defense counsel were ineffective in two
respects. First, and foremost, counsel were ineffective for
providing to members Appellant’s 313-page diary without
appropriate contextual explanation. The Government earlier
introduced three pages of this diary. However, it was defense
counsel who introduced the other 310 pages. These pages
included a running diatribe against Caucasians and the United
1
See, e.g., Dep’t of the Army, Reg. 670-1, Uniform and Insignia,
Wear and Appearance of Army Uniforms para. 3-2(a) (Apr. 10,
2015) [hereinafter AR 670-1].
2
See, e.g., Dep’t of the Army Pam. 30-22, Food Program,
Operating Procedures for the Army Food Program Table I-1 (Feb.
6, 2007).
3
See, e.g., AR 670-1, para. 20-18(c)(3)(a).
2
United States v. Akbar, No. 13-7001/AR
States dating back twelve years, and included repeated
references to Appellant’s desire to kill American soldiers “for
Allah” and for “jihad.”
The defense intended the diary to reflect Appellant’s
descent into mental illness. However, the diary was offered
without adequate explanation, expert or otherwise. Until
closing arguments, members were left on their own to read and
interpret the diary’s contents along with the mitigation
specialist’s notes and an FBI report. In the words of defense
counsels’ expert medical witness: it “was a mistake” to admit
the diary into evidence. He “never advised or would have
advised trial defense counsel to admit the diary as they did”
because, “[t]o a lay person the diary is damning evidence,
standing alone, . . . and the nature of [Appellant]’s diary
contained explosive material.” Appellant’s mitigation
specialist stated she “would have never advised introduction of
. . . [Appellant’s] diary without providing context through
testimony.” No wonder it was Government trial counsel who
referenced the diary throughout his closing argument.
Second, counsel were ineffective for failing to produce a
single witness, including any family member, to provide
humanizing testimony in favor of a life sentence. The message
was clear and unmistakable: not even a family member was
prepared to say Appellant’s life was worth sparing.
3
United States v. Akbar, No. 13-7001/AR
Finding ineffective assistance, this leaves the question of
prejudice under Strickland prong II. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). As the majority suggests,
Appellant has a steep cliff to scale. The evidence of guilt was
overwhelming, including through defense counsels’ introduction
of Appellant’s diary. Moreover, Appellant’s crimes were
heinous. Appellant murdered two soldiers and wounded fourteen
others. He did so with wanton disregard. He did so on the eve
of battle and, in his mind, to aid the enemy. And, he did so
with premeditation, as evidenced by the diary. Nonetheless,
there are two arguments supporting a finding of prejudice.
First, the members requested an instruction on
reconsideration of sentence. That makes this case different
from almost every other death penalty case and virtually every
other ineffective assistance of counsel case. It indicates that
at least one member was open to considering an outcome other
than death. In other words, the request for this instruction
suggests that at least one juror may have been persuaded to
spare Appellant’s life with an effective presentation of
mitigation evidence.
Second, the standard for prejudice cannot be: “if there
ever was a case where a military court-martial panel would
impose the death penalty, this was it.” United States v. Akbar,
__ M.J. __, __ (6) (C.A.A.F. 2015). That is the standard
4
United States v. Akbar, No. 13-7001/AR
adopted by the majority. With a standard like that, if a
defendant committed a particularly despicable crime, it would
not matter if he received effective assistance of counsel, or
for that matter a fair trial, because we could be confident in
the outcome. However, the hallmark of American justice is its
commitment to procedural justice as well as to substantive
justice. How we reach a result can matter as much as what
result we reach. That is the essential judicial virtue of a
democracy. This case tests that commitment.
Therefore, for the reasons explained below, I respectfully
dissent and would remand this case for a new sentence rehearing.
This opinion proceeds in two sections. Section I addresses
the applicable standard for ineffective assistance of counsel in
death penalty cases. The section highlights the absence of
standards and guidelines for defense counsel in death penalty
cases in the military and considers the consequences of such an
absence. Section II considers the application of Strickland in
this case. Part A addresses the submission of Appellant’s
entire diary into evidence without medical context or
explanation and explains why, in this case, such a decision
amounted to ineffective assistance of counsel. Part B discusses
the failure of counsel to offer mitigating evidence in the form
of humanizing testimony to spare Appellant’s life. Finally,
Part C addresses prejudice and determines that where, as here,
5
United States v. Akbar, No. 13-7001/AR
the members asked for a sentence reconsideration instruction,
there is concrete rather than speculative evidence that an
effective presentation on sentencing might have swayed at least
one member to vote for life.
DISCUSSION
I. Standards for Capital Defense Counsel in the Military
A. Absence of Military Guidelines, Standards, and Norms
Evaluation of defense counsels’ performance starts with the
identification of the prevailing standard or professional norm
against which to measure counsels’ performance. However, such
standard is elusive. There are no guidelines in the military on
death penalty defense. The armed services have not adopted the
ABA Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases.4 American Bar Association
4
No branch of the armed forces has adopted the ABA Guidelines as
the yardstick for measuring defense counsels’ performance. The
Supreme Court has specifically disavowed adoption of the ABA
Guidelines as definitive statements on “prevailing professional
norms.” Strickland v. Washington, 466 U.S. 668, 689 (1984).
And this Court has previously rejected arguments by counsel to
adopt the ABA guidelines as the comprehensive standard of
prevailing professional norms. See United States v. Loving
(Loving I), 41 M.J. 213, 300 (1994), opinion modified on
reconsideration, (C.A.A.F. Feb. 2, 1995), aff’d, 517 U.S. 748
(1996) (considering whether due process requires that this Court
establish minimum standards for defense counsel in capital cases
and concluding that specification of such standards are not
constitutionally required); United States v. Murphy, 50 M.J. 4,
9 (C.A.A.F. 1998) (noting that “both the ABA Guidelines and
federal law are instructive,” without finding that ABA
Guidelines are binding on capital military defense counsel).
Nevertheless, the ABA Guidelines are helpful for determining
6
United States v. Akbar, No. 13-7001/AR
Guidelines on Appointment of Counsel in Death Penalty Cases,
reprinted in 31 Hofstra L. Rev. 913, 1061 (2003) [hereinafter
ABA Guidelines]. And yet, we know that “death is a punishment
different from all other sanctions.”5 It is different in
prevailing professional norms, and have been used by both the
Supreme Court and this Court for this purpose. See, e.g.,
Rompilla v. Beard, 545 U.S. 374, 387 (2005) (looking to ABA
Guidelines to establish appropriate standard of common practice
and finding that the State “has come up with no reason to think
the [applicable guideline] impertinent here”); Wiggins v. Smith,
539 U.S. 510 (2003) (looking to Maryland professional standards
and ABA Guidelines to determine the standard of reasonable
professional conduct); Williams v. Taylor, 529 U.S. 362, 396
(2000) (citing 1 ABA Standards for Criminal Justice 4–4.1,
commentary, p. 4–55 (2d ed. 1980)); Murphy, 50 M.J. at 9-10
(recognizing that “the ABA Guidelines and federal law are
instructive”). Consequently, I also look to these standards for
guidance in reviewing counsels’ performance.
5
Booth v. Maryland, 482 U.S. 496, 509 n.12 (1987) overruled on
other grounds by Payne v. Tennessee, 501 U.S. 808 (1991) (citing
Woodson v. North Carolina, 428 U.S. 280, 303–304, 305 (1976)
(plurality opinion of Stewart, Powell, and Stevens, JJ.)
(internal quotation marks omitted)); Loving v. United States
(Loving II), 62 M.J. 235, 236 (C.A.A.F. 2005) (“‘Death is
different’ is a fundamental principle of Eighth Amendment
law.”); Harmelin v. Michigan, 501 U.S. 957, 995 (1991) (“The
penalty of death differs from all other forms of criminal
punishment, not in degree but in kind.” (quoting Furman v.
Georgia, 408 U.S. 238, 306 (1972))); United States v. Curtis
(Curtis I), 32 M.J. 252, 255 (C.M.A. 1991) (recognizing that the
Supreme Court treats capital and noncapital cases differently);
see also Jeffrey Abramson, Death-is-Different Jurisprudence and
the Role of the Capital Jury, 2 Ohio State J. Crim. L. 117, 117
n.1 (2004) (collecting Supreme Court concurrences authored by
various justices articulating the principle that death is
different).
7
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severity; different in finality; and different in what is
expected of competent counsel. Guidance is needed.
This Court has “decline[d] to mandate minimum standards
based on years of practice or number of cases tried” for
military capital defense counsel.6 The Supreme Court has not
mandated minimum qualifications or training either. It is not
constitutionally required.
In the absence of military norms, guidelines, and
standards, Strickland becomes the standard. In Strickland v.
Washington, a capital case, the Supreme Court set forth the
familiar two-part test applicable to claims of ineffective
assistance of counsel:
First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the
6
See Loving I, 41 M.J. at 300; Murphy, 50 M.J. at 10 (explaining
that this Court will not “view[] the limited experience of
counsel as inherent deficiency,” but will look solely “to the
adequacy of counsel’s performance”); United States v. Gray, 51
M.J. 1, 54 (C.A.A.F. 1999) (declining to adopt minimum
qualifications standards for capital defense counsel); see also
United States v. Curtis (Curtis II), 44 M.J. 106, 126 (C.A.A.F.
1996), on reconsideration, United States v. Curtis (Curtis III),
46 M.J. 129 (C.A.A.F. 1997) (this Court has rejected a
requirement for appointment of ABA qualified counsel twice in
summary dispositions (citing United States v. Gray, 34 M.J. 164
(C.M.A. 1991); Curtis v. Stumbaugh, 31 M.J. 397 (C.M.A. 1990));
Loving I, 41 M.J. at 300)).
8
United States v. Akbar, No. 13-7001/AR
defense. This requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.
466 U.S. at 687; see also United States v. Green, 68 M.J. 360,
361 (C.A.A.F. 2010). With respect to the first prong, “the
defendant must show that counsel’s representation fell below an
objective standard of reasonableness,” based on “prevailing
professional norms.” Strickland, 466 U.S. at 688. This now-
axiomatic standard, by design, provides little guidance as to
what these “prevailing professional norms” are, or where one can
find them. Indeed, the Supreme Court stated in Strickland that
“[m]ore specific guidelines are not appropriate.” Id.; see also
Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000) (citing
Strickland, 466 U.S. at 689) (Strickland has “reject[ed]
mechanistic rules governing what counsel must do.”).
“Prevailing norms of practice as reflected in American Bar
Association standards and the like, e.g., ABA Standards for
Criminal Justice 4–1.1 to 4–8.6 (2d ed. 1980) (“The Defense
Function”), are guides to determining what is reasonable, but
they are only guides.” Id.; see also Bobby v. Van Hook, 558
U.S. 4, 8-9 (2009) (noting that the ABA Guidelines are not
“inexorable commands with which all capital defense counsel
‘must fully comply,’” rather, they are “‘only guides’ to what
reasonableness means, not its definition”) (internal citations
omitted).
9
United States v. Akbar, No. 13-7001/AR
What, then, are the key elements of the Strickland
standard? Objectively reasonable tactical choices based on
objectively reasonable investigation informing those choices,
both of which are measured by “prevailing professional norms.”
Here is the problem. As Strickland itself recognizes, this
standard is evolving and changing. Nor is it one that is
immediately evident to a practitioner outside the death penalty
field. And, even where discernible, prevailing professional
civilian norms may not fit with military practice.
Perhaps cognizant of these limitations, the Supreme Court
since Strickland has endorsed the adoption of more detailed
guidance for capital defense counsel as a non-constitutional
matter. See Flores-Ortega, 528 U.S. at 479; see also Van Hook,
558 U.S. at 8-9. As the Supreme Court has recognized, even
though “the Federal Constitution imposes one general
requirement: that counsel make objectively reasonable choices,”
state governments and private organizations “are free to impose
whatever specific rules they see fit to ensure that criminal
defendants are well represented.” Flores-Ortega, 528 U.S. at
479 (state governments can impose specific rules); Van Hook, 558
U.S. at 9 (“What we [the Supreme Court] have said of state
requirements is a fortiori true of standards set by private
organizations.”). For example, a “less categorical use of the
[ABA] Guidelines” to evaluate counsel’s performance may be
10
United States v. Akbar, No. 13-7001/AR
proper to the extent the guidelines “reflect prevailing norms of
practice and standard practice and must not be so detailed that
they would interfere with the constitutionally protected
independence of counsel.” Van Hook, 558 U.S. at 8 n.1
(citations omitted) (internal quotation marks omitted).
There is therefore no reason not to promulgate standards
for capital defense counsel in the military. Guidelines are
useful and necessary if the military is going to have a death
penalty. Specialized facets of the military justice system make
such guidance invaluable.
B. The Utility of Guidelines for Military Capital
Defense Counsel
It is self-evident that “[c]ounsel who are ‘learned in the
law applicable to capital cases’ are less likely to provide an
inadequate or ineffective defense than those ‘not learned’ in
the law.” United States v. Murphy, 50 M.J. 4, 9 (C.A.A.F.
1998). “[I]nexperience –- even if not a flaw per se -- might
well lead to inadequate representation.” Id.7
7
See also United States v. Curtis, 48 M.J. 330 (C.A.A.F. 1997)
(denial of petition for reconsideration) (“[I]n order to ensure
that those few military members sentenced to death have received
a fair and impartial trial within the context of the death-
penalty doctrine of the Supreme Court, we should expect that: .
. . Each military servicemember has available a skilled,
trained, and experienced attorney.”).
11
United States v. Akbar, No. 13-7001/AR
First, the military justice system does not have a death
penalty qualified bar.8 In civilian courts, federal capital
defense counsel are required by statute to be “learned in the
law applicable to capital cases.” 18 U.S.C. § 3005 (1994).
Under 18 U.S.C. § 3005, as amended in 1994 through the Federal
Death Penalty Act, a capital defendant is entitled to two
counsel, “of whom at least 1 shall be learned in the law
applicable to capital cases.” Prior to the 1994 amendment, the
statute only required that counsel be “learned in the law”; the
1994 amendment added the phrase “applicable to capital cases.”
Federal Death Penalty Act of 1994, 18 U.S.C. §§ 3591–3598.9 At
least one federal circuit court has interpreted this to mean
that counsel must have significant experience litigating
8
See Dwight H. Sullivan, Killing Time: Two Decades of Military
Capital Litigation, 189 Mil. L. Rev. 1, 47-48 (2006) (“The
paucity of military death penalty referrals, combined with the
diversity of experience that is required of a successful
military attorney, leaves the military’s legal corps unable to
develop the skills and experience necessary to represent both
sides properly.” (citing Kevin J. Barry, A Face Lift (And Much
More) for an Aging Beauty: The Cox Commission Recommendations
to Rejuvenate the Uniform Code of Military Justice, L. Rev.
Mich. St. U.-Detroit. C.L. 57, 110 (2002))).
9
The Tenth Circuit has interpreted this amendment to be a
substantive change, “creating a new requirement which previously
had not existed,” namely, that counsel be proficient in trying
capital cases, not merely proficient as lawyers writ large.
United States v. McCullah, 76 F.3d 1087, 1098 (10th Cir. 1996);
see also In re Sterling-Suarez, 323 F.3d 1, 5-6 (1st Cir. 2003)
(Torruella, J., dissenting).
12
United States v. Akbar, No. 13-7001/AR
criminal cases to qualify as “learned counsel” under this
statute.10 Significantly, even persons accused of committing
terrorist acts against the United States are entitled, “to the
greatest extent practicable,” to at least one “counsel who is
learned in applicable law relating to capital cases” under the
Military Commissions Act. 10 U.S.C. § 949a(b)(2)(C)(ii)(2012).11
Yet no similar requirement exists for service members accused of
a capital crime. As a result, there is no guarantee that any
accused service member will receive counsel who have specialized
training or experience defending death penalty cases.
Second, there are an insufficient number of capital cases
to effectively train a cadre of military counsel to be well
versed in capital litigation. For example, there were forty-
seven capital prosecutions between 1984 and 2006, with only
fifteen of them resulting in a death sentence. See Sullivan,
supra note 8, at 17. Moreover, there is little opportunity for
counsel to specialize in capital litigation, as counsel are
10
See McCullah, 76 F.3d at 1098 (finding that experienced
public defenders practicing for ten years were learned under the
statute); In re Sterling-Suarez, 323 F.3d at 4-6 (Torruella, J.,
dissenting) (noting that counsel must, inter alia, have
extensive prior experience litigating a capital case, and be
familiar with complex death penalty procedure).
11
Under the Military Commissions Act, at least one learned
counsel shall be provided to the accused, even if this requires
hiring civilian capital defense counsel. 10 U.S.C.
§ 949a(b)(2)(C)(ii)(2012).
13
United States v. Akbar, No. 13-7001/AR
expected to be military law generalists who should be prepared
to practice in a number of legal fields, of which only one is
criminal law. As the ABA Guidelines acknowledge, “death penalty
cases have become so specialized that defense counsel have
duties and functions definably different from those of counsel
in ordinary criminal cases,” ABA Guidelines, Introduction, 31
Hofstra L. Rev. at 923, yet there is little opportunity to
develop relevant experience. In addition, military defense
counsel are typically transferred to different duty stations
over the course of their careers after serving a three-year
tour, reducing the amount of time they can spend on protracted
capital litigation. See Sullivan, supra note 8, at 48 (“Given
that judge advocates typically stay in a position for no more
than three years, it is unlikely that any participant in a
capital court-martial will have experience performing his or her
duties in a death penalty case.”). In the context of capital
cases, this contributes to uncertainty that counsel “learned in
the law applicable to capital cases” will indeed be provided to
accused persons at every stage of their case.
In this case, for example, Appellant’s defense counsel had
a permanent change of station while they were still representing
Appellant. Lieutenant (LTC) Brookhart was reassigned to the
10th Mountain Division. Major (MAJ) Coombs was assigned a new
position as senior defense counsel at Fort Eustis and Fort Lee,
14
United States v. Akbar, No. 13-7001/AR
Virginia. Defense counsel attributed their transfers to
Government counsel’s “tampering,” stating in their post-trial
affidavit that they “were both shocked that a senior judge
advocate would take such action” and believed “it created a very
damaging appearance issue with regards to the fairness of the
military justice system.” LTC Brookhart, the more experienced
of the two attorneys, stated that he was only able to continue
working on Appellant’s case because the staff judge advocate,
LTC Jim Garrett, “recognized the seriousness of the situation”
and “made arrangements for LTC Brookhart to stay at Fort Drum to
work as a special projects officer in Administrative Law,”
permitting LTC Brookhart to work on Appellant’s case. As
defense counsel have noted, such a structure is problematic, not
only because of the public perceptions of fairness.
Third, military lawyers are not specially trained in death
penalty voir dire. “The conventional wisdom is that most trials
are won or lost in jury selection.” John H. Blume et al.,
Probing “Life Qualification” Through Expanded Voir Dire, 29
Hofstra L. Rev. 1209 (2001).12 Voir dire is, without
12
Citing 45 Am. Jur. Trials § 144 (1992) (“Experienced trial
lawyers agree that a case can often be won or lost in voir
dire.”); V. Hale Starr & Mark McCormick, Jury Selection: An
Attorney’s Guide to Jury Law and Methods § 3.8 (1985) (“Lawyers
apparently do win, as they occasionally boast, some of their
cases during, or with the help of voir dire.” (quoting Hans
Zeisel, The American Jury, Annual Chief Justice Earl Warren
Conference on Advocacy in the United States 81-84 (1977))); Jon
15
United States v. Akbar, No. 13-7001/AR
exaggeration, a matter of life and death. As the Supreme Court
noted in Morgan v. Illinois, 504 U.S. 719, 729-30 (1992):
part of the guarantee of a defendant’s right to an
impartial jury is an adequate voir dire to identify
unqualified jurors. Voir dire plays a critical
function in assuring the criminal defendant that his
[constitutional] right to an impartial jury will be
honored. Without an adequate voir dire the trial
judge’s responsibility to remove prospective jurors
who will not be able impartially to follow the court’s
instructions and evaluate the evidence cannot be
fulfilled.
Id. at 729-30 (brackets in original) (citations omitted) (citing
Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981)
(plurality opinion)). Yet no resources are provided to equip
M. Van Dyke, Jury Selection Procedures: Our Uncertain Commitment
to Representative Panels 139 (1977) (“Many attorneys believe
that trials are frequently won or lost during [jury
selection].”); Jeffery R. Boyll, Psychological, Cognitive,
Personality and Interpersonal Factors in Jury Verdicts, 15 Law &
Psychol. Rev. 163, 176 (1991) (stating that a “case may be [won]
or lost at the [jury selection stage]”); Margaret Covington,
Jury Selection: Innovative Approaches to Both Civil and Criminal
Litigation, 16 St. Mary’s L.J. 575, 575-76 (1984) (arguing that
“[e]xperienced trial lawyers agree that the jury selection
process is the single most important aspect of the trial
proceedings. In fact, once the last person on the jury is
seated, the trial is essentially won or lost.”); Chris F. Denove
& Edward J. Imwinkelried, Jury Selection: An Empirical
Investigation of Demographic Bias, 19 Am. J. Trial Advoc. 285,
285 (1995) (“[J]ury selection can be the most important phase of
a trial. Pick the right jury and the battle is half won. But
select the wrong jury, and the case is lost before [the]
evidence is even heard.”)). See also Williams v. Bagley, 380
F.3d 932, 978 (6th Cir. 2004) (Merritt, J., dissenting) (“In
such a randomized system, the capital case often is won or lost
at voir dire. The voir dire and the method of jury selection
become more important than the trial itself. Executions depend
on “the line between innocence and guilt [which] is drawn with
reference to reasonable doubt” by individual jurors (citing
Schlup v. Delo, 513 U.S. 298, 329 (1995)).
16
United States v. Akbar, No. 13-7001/AR
military defense counsel with the necessary skills to conduct
effective voir dire in a capital case.
Lack of specialized training in death penalty voir dire is
compounded by the structure of the military justice member
selection process. In the instant case, the members that would
comprise the panel were to be selected from a pool of twenty
servicemembers. This pool would be replenished only if causal
challenges reduced the panel below twelve members, the statutory
minimum for capital cases. Article 41, UCMJ, 10 U.S.C. § 841
(2012). Presumptively, all twenty members in the initial pool
could serve on the panel if there were no peremptory or causal
challenges.13
Cognizant of the limitations of panel selection, trial
defense counsel in this case deliberately did not challenge any
panel members for cause under the theory that the more people
that were placed on the panel, the higher the likelihood that
there would be an “ace of hearts” who would vote against the
death penalty, leading counsel to structure “a voir dire with an
aim to keep anyone who did not have a clear basis for a
challenge for cause.” Defense counsels’ “ace of hearts”
13
Defense counsel were only entitled to exercise one peremptory
challenge per Rule for Courts-Martial (R.C.M.) 912(g)(1). By
contrast in federal civilian capital cases, defense counsel are
entitled to exercise twenty peremptory challenges. Fed. R.
Crim. P. 24(b)(1).
17
United States v. Akbar, No. 13-7001/AR
strategy has no basis in prevailing professional norms. The
strategy was adopted by trial defense counsel based on a comment
made in a concurring opinion in a United States Air Force Court
of Criminal Appeals case. See United States v. Simoy, 46 M.J.
592, 625-26 (A.F.Ct.Crim.App. 1996) (Morgan, J., concurring),
aff’d in part, rev’d in part, 50 M.J. 1 (C.A.A.F. 1998).14
Essentially, all considerations regarding the beliefs,
biases, and personalities of the panel members, and the
potential group dynamics that would form with particular
combinations of members, were subordinate to the overarching
goal of filling the panel.15 This strategy is contrary to
14
In Simoy, Judge Morgan stated in concurrence:
Little mathematical sophistication is required to
appreciate the profound impact in this case of
reducing the court-martial panel size. To use a
simple metaphor – if appellant’s only chance to escape
the death penalty comes from his being dealt the ace
of hearts from a deck of 52 playing cards, would he
prefer to be dealt 13 cards, or 8? . . . Each
challenge of an individual ‘spots’ the prosecution a
vote, and becomes in essence, a vote for death.
Simoy, 46 M.J. at 625-26.
15
See Dwight H. Sullivan, Playing the Numbers: Court-Martial
Panel Size and the Military Death Penalty, 158 Mil. L. Rev. 1,
36 (1998) (“A defense counsel who is attempting to obtain a
large panel will not engage in voir dire, with the exception of
questions designed to rehabilitate any member who appears
vulnerable to a challenge for cause by either the government or
the defense. After all, it does the defense little good to
discover that a member is biased against the accused. An
accused whose primary goal is to avoid the death penalty may
choose to leave biased members on the panel rather than reduce
the panel size by removing them even if only a minuscule chance
18
United States v. Akbar, No. 13-7001/AR
prevailing professional norms in civilian courts, but it may
make sense in the military context where counsel receive only
one peremptory challenge. R.C.M. 912(g)(1).
In civilian capital cases, by contrast, defense counsel are
expected to do a searching inquiry of potential jurors to “life-
qualify” a jury, meaning they should “conduct a voir dire that
is broad enough to expose those prospective jurors who are
unable or unwilling to follow the applicable sentencing law, . .
. [or] unwilling to consider mitigating evidence” in order to
strike them from the panel. See ABA Guideline 10.10.2,
commentary, 31 Hofstra L. Rev. at 1052-53.16 Counsel
additionally “should also develop a strategy for rehabilitating
those prospective jurors who have indicated opposition to the
death penalty.” Id.
It is imperative that counsel be trained to identify
prospective jurors during voir dire who would automatically
impose the death penalty following a murder conviction without
exists that they could overcome their bias and vote for the
defense.”).
16
“[T]he starkest failures of capital voir dire are the failure
to uncover jurors who will automatically impose the death
penalty following a conviction or finding of the circumstances
which make the defendant eligible for the death penalty, and the
failure to uncover jurors who are unable to consider particular
mitigating circumstances.” ABA Guideline 10.10.2, commentary,
31 Hofstra L. Rev. at 1050.
19
United States v. Akbar, No. 13-7001/AR
meaningfully weighing the aggravating and mitigating evidence as
they are required to do. See ABA Guideline 10.10.2.B., 31
Hofstra L. Rev. at 1049.17 The Supreme Court has recognized the
importance of this function of capital voir dire. See Morgan,
504 U.S. at 735-36 (“A defendant on trial for his life must be
permitted on voir dire to ascertain whether his prospective
jurors function under [the] misconception” that a defendant
convicted of a capital crime ought to be sentenced to death).18
Quite frankly, the incentives in the civilian and military
systems are entirely at odds with respect to capital voir dire.
17
The ABA Guidelines instruct that counsel should be familiar
with techniques: (1) for exposing those prospective jurors who
would automatically impose the death penalty following a murder
conviction or finding that the defendant is death-eligible,
regardless of the individual circumstances of the case; and (2)
for uncovering those prospective jurors who are unable to give
meaningful consideration to mitigating evidence. ABA Guideline
10.10.2.B., 31 Hofstra L. Rev. at 1049.
18
The Morgan Court stated, in full:
A defendant on trial for his life must be permitted on
voir dire to ascertain whether his prospective jurors
function under such misconception [that a person
convicted of a death-eligible crime ought to be put to
death]. The risk that such jurors may have been
empaneled in this case and infected petitioner's
capital sentencing [is] unacceptable in light of the
ease with which that risk could have been minimized.
Petitioner was entitled, upon his request, to inquiry
discerning those jurors who, even prior to the State's
case in chief, had predetermined the terminating issue
of his trial, that being whether to impose the death
penalty.
Morgan, 504 U.S. at 735-36 (brackets in original) (internal
quotation marks omitted) (citations omitted).
20
United States v. Akbar, No. 13-7001/AR
The emphasis in civilian capital cases is to have counsel engage
in a searching inquiry to “life-qualify” a jury. In the armed
forces and the instant case, the incentive is to conduct a
superficial voir dire to avoid elucidating statements that could
prompt a causal challenge, in order to have the largest panel
possible.19 This does not afford accused servicemembers the most
effective capital defense.
In summary, the armed forces have no guidelines regarding
the qualifications, training, or performance required of capital
defense counsel. Such omission leaves the standard amorphous
and, significantly, deprives capital defense counsel of a
standard against which to measure their performance. This opens
the door to ineffective assistance of counsel claims, real or
perceived. In failing to specify what quality of performance is
19
For example, in this case, defense counsels’ strategy prompted
them to include in the panel individuals who may have exhibited
a bias in Appellant’s case. Defense counsel had the statutory
right to have one panel member excused because he had served in
the same unit as Appellant. Although the military judge brought
this to defense counsels’ attention and informed them of their
statutory right of removal, defense counsel demurred and kept
this member on the panel. Another panel member expressed views
that Muslims are “misguided, easily influenced, [and] too
rigid.” On voir dire, when questioned about such views, he
stated his belief that Islam is a “passionate religion” and
sometimes Muslims can’t “think clearly and . . . take certain
views that are selfish . . . . They interpret it the way they
want to interpret certain things for their own self interests.”
After perfunctory questioning, wherein the member stated that
his views of Islam would not impact his impartiality, defense
counsel promptly moved to a different topic, and did not raise a
causal challenge or use their lone peremptory challenge to
strike this member from the panel.
21
United States v. Akbar, No. 13-7001/AR
expected, counsel are gratuitously exposed to claims of
ineffective assistance of counsel. Confidence in the outcome of
the trial on guilt or on sentencing may also diminish, as might
confidence that the outcome will be upheld on appeal. This is
neither good for the accused, counsel, the victims of an
offense, the military, or the public credibility of the military
justice system.
As is often said, death is different. It is different in
kind. It is different in finality. Death is also different
because the standard for ineffective assistance of counsel is
hardest to find and pinpoint. When we apply the Strickland
standard to determine what “prevailing professional norms” are
in the military, do we look to the professional norms of counsel
writ large? Or capital defense counsel specifically? Do we
draw our standard for professional norms from military defense
counsel? Or civilian? Given the lack of specific “prevailing
professional norms,” we are left to evaluate counsels’
performance on the basis of this Court’s at best intermittent
case law on the subject, and Supreme Court case law, which is
directed towards state law and habeas review. This strikes me
as unfair to the accused, unfair to defense counsel, and
potentially unfair to the victims and their families who are
left in doubt about the ultimate outcome of a case until all
appeals are final.
22
United States v. Akbar, No. 13-7001/AR
II. Trial Defense Counsel Were Ineffective in the Penalty
Phase of Appellant’s Court-Martial
“[I]ndulg[ing] a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance,” in my view, trial defense counsels’ performance
during the penalty phase of Appellant’s court-martial was not
“reasonable[] under prevailing professional norms.” Strickland,
466 U.S. at 688-89. As discussed further below, Appellant has
identified two “acts or omissions of counsel” that were not “the
result of reasonable professional judgment.” Id. at 690.
First, defense counsel submitted into evidence the entirety of
Appellant’s diary, including particularly damaging passages
relaying Appellant’s hatred of Caucasians and the United States,
without redactions or sufficient contextualization. Second,
defense counsel were deficient in the witness presentation at
the penalty phase of Appellant’s court-martial by omitting any
testimony that would humanize Appellant and demonstrate that his
life has worth.
Counsel are ordinarily afforded great deference when making
reasonable tactical decisions. Nevertheless, I conclude, as
this Court concluded in Murphy, that although “[w]e have no
quarrel . . . regarding the obligation of an appellate court not
to second-guess tactical judgments[, h]ere, . . . counsels’ lack
of training and experience contributed to questionable tactical
23
United States v. Akbar, No. 13-7001/AR
judgments, leading us to the ultimate conclusion that there are
no tactical decisions to second-guess.” Murphy, 50 M.J. at 13.
A. Appellant’s Diary
a. Admission of Appellant’s Entire Diary
During the mitigation phase of Appellant’s court-martial,
defense counsel submitted into evidence the entirety of
Appellant’s personal diary, dating from March 1990 to March
2003. The diary consists of 313 handwritten pages. The diary
was given to the members to take home to read without
explanation and with three lines of general instruction from the
military judge. Along with the diary, members also received
notes by defense counsels’ mitigation specialist, Ms. Deborah
Grey, summarizing the diary for defense counsels’ case
preparation, and an FBI analysis of the diary.
In their post-appeal affidavit, counsel give two reasons
supporting their decision to submit the diary in its entirety:
first, their belief that “[t]he government had, in its merits
case, already admitted the most damaging aspects of [Sergeant]
SGT Akbar’s diary,” so no more harm could be done; and, second,
that defense expert Dr. Woods believed that “SGT Akbar’s diary
documented a progressive deterioration into a psychotic state,”
and the diary “read in total proved SGT Akbar had mental
illness.”
24
United States v. Akbar, No. 13-7001/AR
Under Strickland, appellate courts are obliged to give
heavy deference to counsel’s professional judgment because
“Strickland insulates [tactical decisions] from Monday-morning
quarterbacking.” Hittson v. GDCP Warden, 759 F.3d 1210, 1248
(11th Cir. 2014) cert. denied sub nom. Hittson v. Chatman, 135
S.Ct. 2126 (2015). Nevertheless, ”[w]hile the point of the
Sixth Amendment is not to allow Monday-morning quarterbacking of
defense counsel’s strategic decisions, a lawyer cannot make a
protected strategic decision without investigating the potential
bases for it.” Couch v. Booker, 632 F.3d 241, 246 (6th Cir.
2011). Here, counsel did not reasonably investigate the basis
of their decisions, and in the context of this case, introducing
a 313-page diary without further investigation cannot be viewed
as a reasonable tactical decision.
A review of the diary illustrates why expert consultation
was necessary to fully and properly gauge the impact the diary
would have on the panel. It also illustrates why counsels’
reasoning that the most damaging aspects of the diary had
already been admitted is unreasonable. The Government admitted
two diary entries, totaling less than three pages, as
Prosecution Exhibit 176a. The most damaging portion of the
first entry, from February 2, 2003, states:
I may not have killed any Muslims but being in the
Army is the same thing. I may have to make a choice
very soon about who to kill. If we go to war with
25
United States v. Akbar, No. 13-7001/AR
Iraq, . . . I will have to decide if I should kill my
Muslim brothers fighting for Saddam Hussein or my
battle buddies.
The second entry, from February 4, 2003, contains the
following remarks:
as soon as I am in Iraq I am going to try to kill as
many of them as possible. If I am wrong then may
Allah, The Great, stop me. I will not be able to live
with myself if I go there and help these sick people
kill Muslims.
Although these excerpts are damaging to Appellant’s case, they
are limited temporally, and in subject matter. The entirety of
the diary contains many more damaging passages.
For example, the diary is rife with references to
Appellant’s hatred of Caucasians, extending back over a decade
prior to the attack. In an entry from July 19, 1991, Appellant
references “what the Nation of Islam taught me: to hate
Caucasians . . . sleep is lost thinking about the destruction of
Caucasians and how to carry it out.” It is troubling that the
diary also includes passages that could be interpreted to
portend the crimes he committed, including an April 9, 1992,
entry where Appellant writes: “I made a promise that if I was
not able to achieve success because of some caucasion [sic] I
would kill as many of them as possible. . . . if I am denied
anything given to me by almighty God, Allah, I will kill as many
cacasions [sic] as possible.” In another entry, from March 3,
1996, Appellant writes:
26
United States v. Akbar, No. 13-7001/AR
Destroying America was my plan as a child, jovenile
[sic] and freshman in college. Some where [sic] along
the way it got side tracked [sic] by all of the
academic problems that came my way. My life will not
be complete if America is not destroyed. It is my
biggest goal.
Appellant writes in his final diary entry, dated March 1, 2003,
approximately three weeks before the attack, “May Allah, the
Often Forgiving, forgive me for what I am about to do.”
The diary also contains passages where Appellant disparages
the military, and self-identifies as “anti-government,”
including a passage from January 17, 2000, where he writes:
“[b]eing in the military . . . is horrible to me. It is as if
all of my beliefs mean nothing to me. . . . My feeling is that
it is a betrayal of everything that a Muslim is supposed to
stand for.” Appellant also references, on multiple occasions,
his intent to make “jihad.” He writes in an October 2, 1999,
entry: “As far as being in the Army perhaps it will be useful if
there is jihad in my future.”
Appellant’s diary also related an incident where Appellant
had a dispute with a sergeant:
I went to Grandpa’s Pawn Shop and bought three weapons
and enough ammo to reload each of them five times. I
came to work that Tuesday, we had Monday off, with all
three weapons fully loaded. I had decided to just
attack [the sergeant] as soon as I saw him. But he
was at sick call. Right after PT formation the 1st
Sgt. called me into his office. First he told me that
the people at Grandpa’s called CID and said they were
worried that I might be a terrorist.
27
United States v. Akbar, No. 13-7001/AR
None of these entries were introduced by the Government.
Moreover, these passages all preceded the February 2003 entries
the Government submitted into evidence.
The admission of these entries is significant for at least
four reasons. First, far from showing progressive mental
deterioration, the passages show a consistent thread of anti-
Caucasian, anti-American, violent tendencies that extend from
Appellant’s young adulthood to the time of the attack. The
passages in the diary indicate that Appellant harbored antipathy
towards the United States and the armed forces for years, and
may have been planning an attack well in advance of March 23,
2003. Specifically, with no medical context in which to place
the final diary entry, it is hard to read this passage as
anything other than evidence of premeditation from a depraved
man who will kill and kill again if not stopped.20 Second, they
20
I disagree with the majority opinion’s contention that
premeditation was not at issue in the sentencing phase of
Appellant’s court-martial as it was already proved beyond a
reasonable doubt in the merits phase, Akbar, __ M.J. at __ (53).
In arriving at a sentence, the members were instructed that they
may “consider any matter in extenuation and mitigation” and “may
also consider mercy, sympathy, and sentiment in deciding . . .
what sentence to impose.” Surely, a panel member would be less
inclined to feel mercy or sympathy towards Appellant if he or
she believed he had premeditated the attack over the span of
months or even years, rather than in the days or hours leading
up to the attack he ultimately carried out. In addition,
evidence of lengthy premeditation would undercut defense
counsels’ theory that the attack was the result of the onset of
28
United States v. Akbar, No. 13-7001/AR
tend to support the view that Appellant’s attack was not an
anomaly, but the manifestation of years of hatred directed at
Caucasians, the military, and, in one instance, a fellow
sergeant. Third, quite simply, these passages quell any
possible sympathy the members might have garnered for Appellant
based on his life story. Fourth, submitting the entire diary
into evidence gave the Government additional fodder to bolster
its case, which trial counsel fully exploited in closing
arguments.
All of these points are illustrated with reference to the
Government’s closing arguments. The Government used specific
passages from the diary, on multiple occasions, to argue that
Appellant deserved the death penalty. The Government argued
that Appellant should be sentenced to death “to protect society
from his violence and his hatred,” a short time later showing
the panel slides with five passages from Appellant’s diary.
Trial counsel later argued:
The defense introduced [Appellant’s] complete diary,
several hundred pages filled with repeated threats of
violence and murder. When did the thoughts of
violence and murder emerge? Is it only in the last
four entries? Is it after the Army is being prepared
to be sent into harm’s way? Was it even after 9/11?
No, it’s not. These are Sergeant Akbar’s own words,
mental illness. Consequently, the degree of premeditation
Appellant exhibited is of consequence in the sentencing phase of
trial, even though this element of the crime was already proved
in the merits phase.
29
United States v. Akbar, No. 13-7001/AR
dated years before he even joined the Army, back
before there was any mention of soldier talk. . . .
Look back in his diary, look back at critical dates.
Trial counsel repeated quotations from Appellant’s diary,
remarking, “Look at his diary. It is full of rage, it is full
of hate, and it was all there before he was ever notified he was
deploying.” What defense counsel introduced as mitigation
evidence was successfully converted to powerful aggravating
evidence by the Government. For these reasons, defense
counsels’ judgment that the entirety of Appellant’s diary was
less damaging to Appellant’s mitigation case than the two
entries Government trial counsel admitted is unreasonable. It
does not account for the impact of a consistent and enduring
theme of hatred towards Caucasians, and, later, towards the
United States armed forces. Nor was it tactically reasonable to
admit the diary without explanation. This allowed members to
set the context themselves, or have the Government do so in
closing arguments. A reasonable investigation into the wisdom
of submitting the entire diary might well have averted this
problem.
b. Absence of Prior Investigation and Consultation
Regarding the Diary
As noted above, in their post-trial affidavits, defense
counsel defend their decision to submit the diary to the members
30
United States v. Akbar, No. 13-7001/AR
without medical explanation on two related grounds. First, they
argue that Dr. Woods’s assessment of the diary was that it
“documented a progressive deterioration into psychotic state,”
which supported their decision to offer the complete diary into
evidence. Second, counsel argue that the summary created by
their mitigation specialist, Ms. Deborah Grey, and the FBI’s
analysis of the diary otherwise placed the diary in the intended
medical context.
There are a number of problems with this explanation that
undercut the decision to admit the diary. The underlying issue
is that defense counsels’ decision was not supported by a
reasonable investigation because they failed to seek advice
before submitting the diary into evidence. First, while defense
counsel invoke Dr. Woods’s expertise in support of offering the
diary into evidence, in actuality they did not consult with Dr.
Woods before doing so. Dr. Woods states in his post-trial
declaration that “[w]hile the diary is powerful evidence of
schizophrenia, it is only so when viewed . . . by a trained
practitioner.” According to Dr. Woods, it “was a mistake” to
admit the diary into evidence and he “never advised or would
have advised trial defense counsel to admit the diary as they
did” because, “[t]o a lay person the diary is damning evidence,
standing alone, . . . and the nature of [Appellant]’s diary
contained explosive material.” Ms. Grey similarly opined that
31
United States v. Akbar, No. 13-7001/AR
submitting into evidence “the diary itself without any context
would be a horrible mistake from the standpoint of mitigation
strategy. . . . the diary, without context, is potentially far
more damaging than mitigating.” She stated that she “would have
never advised introduction of . . . [Appellant’s] diary without
providing context through testimony.”21
Second, defense counsel did not consult any experts to
determine whether Ms. Grey’s notes or the FBI analysis
sufficiently contextualized Appellant’s diary. Upon my review,
these documents do not adequately explain these damning
passages. Ms. Grey stated in a post-trial affidavit that the
notes she created summarizing the diary’s contents were intended
for counsels’ pretrial preparations. She cautioned that these
summaries “are helpful in preparing for trial, but they are not
a device intended to introduce evidence,” repeating that these
notes “were not prepared for trial.” She also believed that
although interview summaries might be used “[i]f for some reason
a vital witness is inappropriate or unavailable to testify,” she
21
Trial defense counsel stated in their post-trial affidavit
that they recalled speaking with Ms. Grey regarding admission of
documentary evidence she authored “in lieu of her live
testimony” and that she did not have “any strong opinions
regarding ‘the wisdom of this tactic.’” Defense counsel do not
mention informing or consulting Ms. Grey on their decision to
admit Appellant’s entire diary into evidence without supporting
testimony. As evidenced by the post-trial affidavits, both Dr.
Woods and Ms. Grey would have opposed submission of Appellant’s
entire diary.
32
United States v. Akbar, No. 13-7001/AR
“cannot think of an instance where [she] would recommend the
introduction of an interview summary in isolation to a jury.”
She stated that “presenting [her] summary of the diary . . .
would be a horrible mistake.”22 Ms. Therese Scarlet Nerad,
another mitigation specialist employed by defense counsel,
echoed this sentiment, opining post-trial that Ms. Grey’s notes
were “incomplete work product[s]” and “should never have been
admitted in that form” as it “would do serious disservice to a
jury.”
Ms. Grey’s work product is not a polished, concise
explanation of the implications of Appellant’s diary. Rather,
it consists of a factual summary of Appellant’s diary -- not an
analysis. In some portions, it is apparent that these notes are
in draft form. To illustrate, at one point, Ms. Grey writes in
response to a passage, “Again, lack of problem solving . . . ?
grandiosity?” In some instances, Ms. Grey’s notes, rather than
relating how Appellant’s more hateful passages support a
22
As noted, although defense counsel state in their post-trial
affidavit that Ms. Grey did not have “any strong opinions”
regarding admitting documentary evidence, it is not clear that
they consulted her specifically about presenting her interview
notes with the purpose of contextualizing Appellant’s entire
diary. As it appears from Ms. Grey’s uncontradicted statement
that she was unaware defense counsel intended to submit the
diary, she could not have realized that defense counsel intended
to use her notes for this purpose. Her post-trial affidavit
clarifies that she would not have endorsed use of her notes
under these circumstances.
33
United States v. Akbar, No. 13-7001/AR
narrative of mental illness, merely draws attention to these
passages. For example, the diary contains references to
Appellant’s indoctrination in the tenets of the Nation of Islam,
which defense counsel allegedly did not wish to introduce to the
members. Ms. Grey’s notation next to one such passage reads:
“Hatred of Caucasians -- stemming from exposure to Nation of
Islam,” with nothing more. Her notes point out in other places,
“Childhood goal of destroying America,” and “Kill as many
Caucasians as possible if they block his success in helping his
people: prays Allah will stop him if he is wrong.” In short,
her notes do not communicate that the diary is indicative of
long-standing mental illness.
The FBI analysis, similarly, fails to relate back to
defense counsels’ mitigation case theme: that Appellant was
mentally ill. The report does not, for example, explain that
Appellant’s feelings are symptomatic of mental illness. Nor
does it otherwise contextualize the damaging, anti-American,
prejudicial passages in the diary. For example, the summary
condenses the passages where Appellant’s entries exhibit “anger
and . . . increasingly verbalize[] a desire to kill some of his
comrades,” without further analysis. Although the report’s
concluding paragraphs do state that Appellant’s “diary reflects
years of a lonely struggle,” they also relate that: “[a]lthough
no mention is made in his diary of a specific plan to kill his
34
United States v. Akbar, No. 13-7001/AR
military ‘buddies,’ given what has been written, his actions
come as no surprise.” Significantly, the conclusion ends with
this statement: “None of this excuses what Akbar has done.
Based on his writings and pleas to Allah, Akbar clearly knew
right from wrong. He states, ‘I have nothing left to lose. I
don’t even have any pride left.’” Although the FBI assessment
presents a more cohesive analysis of the diary than Ms. Grey’s
notes, it still does not place damaging diary entries in the
larger context of defense counsels’ theme of mental illness.
Consequently, these notes did not support defense counsels’
reasoning for submitting the diary in the first place: to
illustrate Appellant’s latent and emerging mental illness.
More importantly, submitting these documents along with
Appellant’s entire diary does not alleviate defense counsels’
obligation to first consult with experts before admitting the
diary. Defense counsel ought to have sought advice on this
issue, not merely inferred that their experts would support
their decision.
Defense counsel are not required to consult an expert every
time they seek to submit documentary evidence. Such a standard
would be absurd. They may generally rely on their own judgment
regarding the submission of exhibits. However, Strickland
presents a fact- and case-specific test. See Williams v.
Taylor, 529 U.S. 362, 391 (2000) (noting that Strickland “of
35
United States v. Akbar, No. 13-7001/AR
necessity requires a case-by-case examination of the evidence,”
as each mitigation case is unique (quoting Wright v. West, 505
U.S. 277, 30 (1992)); Rompilla v. Beard, 545 U.S. 374, 394
(2005) (O’Connor, J., concurring) (recognizing the Supreme
Court’s “longstanding case-by-case approach to determining
whether an attorney’s performance was unconstitutionally
deficient under Strickland v. Washington.”). And this is no
ordinary piece of evidence. The diary was used in support of
Appellant’s lack of mental responsibility defense -- a matter
that is heavily influenced by the input and advice of experts.
Just as competent defense counsel are expected to consult an
expert before mounting a mental illness defense,23 so, too,
should they seek expert advice before submitting critical
evidence in support of such a defense.24 Counsel here were not
23
See, e.g., Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005)
(determining counsel was ineffective for relying on defendant’s
own testimony to support “heat of passion or diminished
capacity” defense rather than “investigat[ing], discover[ing],
and present[ing] mental health evidence”).
24
See Duncan v. Ornoski, 528 F.3d 1222, 1235-36 (9th Cir. 2008)
(noting that “[i]t is especially important for counsel to seek
the advice of an expert when he has no knowledge or expertise
about the field” and holding counsel’s performance deficient for
failing to consult an expert before trial because counsel “did
not have the personal expertise . . . to make strategic
decisions about how to handle . . . evidence on his own and he
certainly was not qualified to undermine the State’s case by
simply cross-examining its experts without obtaining expert
assistance himself.”); Bell v. Miller, 500 F.3d 149, 156 (2d
36
United States v. Akbar, No. 13-7001/AR
in a position to assume that their experts would support
submission of the entire diary based on general “discussions
with Dr. Woods,” rather than meaningful and direct consultation.
In a similar case, the United States District Court for the
Eastern District of New York concluded that defense counsel was
deficient for submitting into evidence “a complete, unredacted”
copy of a medical report detailing a child’s account of her
sexual abuse by the defendant. Usher v. Ercole, 710 F.Supp. 2d
287, 305-06 (E.D.N.Y. 2010). The court found that even if some
of the evidence in the report was admissible, defense counsel
was not “justified in placing a complete and unredacted copy of
the . . . Report before the jury,” calling its contents “highly
damaging,” and noting that “[t]he extraneous details in [the
report] are disturbing and inflammatory.” Id. at 306-07. The
court found that “[t]hese and other contextual details . . .
[describe a] frankly harrowing narrative of chronic abuse, with
a suggestion of continuing danger.” Id. at 307. On this basis,
the district court concluded that defense counsel’s decision to
Cir. 2007) (concluding that counsel’s failure to consult expert
before cross-examining sole eyewitness who had suffered from
“trauma, blood loss and sedation” was deficient performance
under Strickland); Gersten v. Senkowski, 426 F.3d 588, 611 (2d
Cir. 2005) (holding that counsel was deficient for “fail[ing] to
consult or call an expert on the psychology of child sexual
abuse, or to educate himself sufficiently on the scientific
issues.”).
37
United States v. Akbar, No. 13-7001/AR
present the report fell below the standard of reasonable
competence expected of counsel. Id. at 307-09.
Similar to Usher, here, defense counsels’ decision to
present the diary to the members, unvarnished and unredacted,
was not the result of a reasonable tactical decision. Not only
because defense counsel failed to properly investigate the basis
of their decision, but also because the decision itself was
unreasonable.
The diary is problematic for two reasons. First,
Appellant’s diary was a key component in the defense’s theory of
Appellant’s mental illness. Second, the diary contained
inflammatory entries recounting Appellant’s hatred for
Caucasians, meaning it was potentially prejudicial to
Appellant’s case. Cognizant of these factors, defense counsels’
lack of investigation into whether, or how, to present the diary
was error.
Accordingly, trial defense counsel were deficient in
deciding to submit into evidence Appellant’s entire diary
without adequate investigation.
B. Omitting “Humanizing” Testimony From Appellant’s
Family and Friends
a. The Importance of “Humanizing” Testimony
38
United States v. Akbar, No. 13-7001/AR
Although not required per se, testimony by lay mitigation
witnesses humanizing an accused person is significant. In the
context of a death penalty case involving a heinous offense, it
may be invaluable, as well as a defendant’s best hope for life.
The Supreme Court, for example, has repeatedly emphasized “the
crucial importance of adducing evidence at a sentencing
proceeding that establishes the defendant’s social and familial
connections.” See Strickland, 466 U.S. at 718 (Marshall, J.,
dissenting); see also Penry v. Lynaugh, 492 U.S. 302, 319
(1989), abrogated on other grounds by Atkins v. Virginia, 536
U.S. 304 (2002) (“[E]vidence about the defendant’s background
and character is relevant because of the belief, long held by
this society, that defendants who commit criminal acts that are
attributable to a disadvantaged background . . . may be less
culpable”); Eddings v. Oklahoma, 455 U.S. 104, 112 (1982)
(presentation of a defendant’s life history in a capital case is
“part of the process of inflicting the penalty of death”
(internal quotation marks omitted)). The Court has noted that a
defendant’s “troubled history . . . [is] relevant to assessing a
defendant’s moral culpability.” Porter v. McCollum, 558 U.S.
30, 41 (2009).
The ABA Guidelines also recognize value in such testimony.
Guideline 10.11 states that “it is critically important to
construct a persuasive narrative in support of the case for
39
United States v. Akbar, No. 13-7001/AR
life, rather than to simply present a catalog of seemingly
unrelated mitigating factors.” ABA Guideline 10.11, commentary,
31 Hofstra L. Rev. at 1061. To that end, the ABA Guidelines
encourage counsel to consider presenting, in the penalty phase
of the court-martial, “[w]itnesses familiar with and evidence
relating to the client’s life and development, from conception
to the time of sentencing, that . . . would present positive
aspects of the client’s life, or would otherwise support a
sentence less than death,” as well as “witnesses who can testify
about the adverse impact of the client’s execution on the
client’s family and loved ones.” Id. at 1055-56. This is so
because “[f]amily members and friends can provide vivid first-
hand accounts of the poverty and abuse that characterizes the
lives of many capital defendants. These witnesses can also
humanize the client by allowing the jury to see him in the
context of his family, showing that they care about him, and
providing examples of his capacity to behave in a caring,
positive way, such as attempting to protect other family members
from domestic violence or trying to be a good parent and
provider.” Id. at 1062.
Moreover, under the ABA Guidelines, “[a] capital defendant
has an unqualified right to present any facet of his character,
background, or record that might call for a sentence less than
death.” ABA Guidelines, Introduction, 31 Hofstra L. Rev. at
40
United States v. Akbar, No. 13-7001/AR
927. “This Eighth Amendment right . . . does nothing to fulfill
its purpose unless it is understood to presuppose that the
defense lawyer will unearth, develop, present, and insist on the
consideration of those compassionate or mitigating factors
stemming from the diverse frailties of humankind.” Id.
(internal quotation marks omitted) (citation omitted).
b. The Absence of “Humanizing” Testimony in
Appellant’s Mitigation Case
Counsel in this case were not oblivious to the value of
such humanizing testimony. Multiple mitigation specialists
employed by defense counsel emphasized the importance of
mounting a detailed social history through lay witnesses in
Appellant’s mitigation case.25 Yet counsel did not call any
25
See Grey Declaration (mitigation specialist) (“[T]he best way
to present mitigation evidence, the evidence of the client’s
life history, is through lay witnesses, those individuals who
may be family, friends, teachers, and treating professionals.”);
Nerad Declaration (mitigation specialist) (advising, in the
context of a mitigation presentation, that “it is unacceptable
to substitute lay witnesses” with expert witnesses, because
expert witnesses “should be used only in conjunction with lay
witnesses who lay the foundation with their information.”);
Rogers Declaration (mitigation specialist) (“Understanding and
appreciating the relevance of Sergeant Akbar’s unusual life and
extremely strange upbringing would be nearly impossible without
detailed accounts and explanation” from witnesses); Dunn
Declaration (experienced capital litigator) (“I instructed
counsel that SGT Akbar’s story must include both the ‘nature’
and ‘nurture’ aspects of his life which . . . provide a means of
understanding his actions on the day of the crimes” and that
they should present a “multigenerational life history” of
Appellant).
41
United States v. Akbar, No. 13-7001/AR
witnesses that humanized Appellant. During the mitigation phase
of the court-martial, defense counsel called two servicemembers
as well as one civilian mitigation witness: Daniel Duncan,
Appellant’s high school teacher.26 However, counsel did not call
any member of Appellant’s family to request that his life be
spared, standing instead on a single familial declaration from
Appellant’s brother.
In their joint post-trial affidavits, counsel reasoned that
they did not wish to call Appellant’s family members as
witnesses for fear that their testimony could open the door to
the “incident of 30 March 2005” where Appellant “allegedly
stabbed a military policeman in the neck with a pair of 12-inch-
scissors” while in pretrial custody.27 Defense counsel explained
26
As explained below, Mr. Duncan’s testimony did little to
humanize Appellant, in part because Mr. Duncan had only a vague
recollection of Appellant as a student. And no other live
witness testified to facts that would humanize Appellant. During
the merits phase of the trial, defense counsel called two
experts, Dr. Woods and Dr. Tuton, as well as Appellant’s college
roommate, Paul Tupaz. As explained further below, see infra,
Part C, this testimony was clinical and dispassionate and did
not humanize Appellant. Certainly, in omitting humanizing
testimony from willing family members, counsel did not “at every
stage of the case . . . take advantage of all appropriate
opportunities to argue why death is not suitable punishment for
their particular client.” ABA Guideline 10.11, 31 Hofstra L.
Rev. at 1058.
27
Strikingly, given defense counsel’s Herculean efforts to keep
out any mention of the “scissor attack” of March 30, 2005,
defense counsel did not challenge any of the panel members who
had stated on voir dire that they were, in some manner, aware
that the attack had occurred. Out of fifteen panel members, ten
42
United States v. Akbar, No. 13-7001/AR
that “[a]lthough the defense motion to preclude the government
from referencing the incident during the case was successful, it
was a ruling that was made without prejudice for the government
to revisit the decision at a later date.” Defense counsel
stated that after the alleged attack they “re-interviewed each
of [their] civilian mitigation witnesses” and chose not to call
any of them because of the “inability of the witness[es] to
limit their testimony in order to avoid opening the door to the
30 March 2005 incident on rebuttal.”28 (JA 2350).
stated during voir dire that they had heard of such an attack
either from the local news, or from workplace chatter. Of these
ten, three were never asked if they could put this incident out
of their minds and decide the case solely based on the evidence.
Four panel members stated that they were aware from news reports
that a “scuffle” had occurred involving Appellant and a military
police officer. Another panel member stated he heard that
Appellant had “overpowered” a guard. Yet, despite defense
counsel’s insistence that this incident never be mentioned
during the court-martial, defense counsel did not challenge a
single member who had heard of the event, not even the panel
member who both expressed a slanted view of Muslims and Islam
and had heard of the alleged scissor attack.
28
I note that it is the majority opinion, not defense counsel,
which reasons that family members’ testimony on the impact of
Appellant’s death would have alienated the members. Akbar, __
M.J. at __ (67). Defense counsel did not make this claim in
their post-trial affidavits. Indeed, they would not, as up
until the night before closing arguments, defense counsel sought
to admit the testimony of Appellant’s parents as mitigating
evidence. Defense counsel did not believe that testimony from
family members would be fruitless or counterproductive of its
own accord, only because it may open the door to the March 30,
2005 attack.
43
United States v. Akbar, No. 13-7001/AR
Certainly, as a general matter, defense counsel have
discretion on whether or not to call witnesses to testify. That
is not the issue. The real issue is that counsels’ reasoning
was decided on the basis of insufficient inquiry. “[A]
reviewing court must consider the reasonableness of the
investigation said to support that strategy.” Wiggins v. Smith,
539 U.S. 510, 527 (2003) (citing Strickland, 466 U.S. at 691).
Having reviewed counsels’ strategy, it is apparent that, similar
to the decision to submit Appellant’s diary, counsels’ decision
was not sufficiently supported by an adequate investigation, and
therefore is not entitled to deference.
We can infer that counsel valued humanizing testimony
because defense counsel intended to call Appellant’s family
members to testify on his behalf during the mitigation phase of
Appellant’s court-martial.29 Defense counsels’ witness list for
29
Further proof that counsel valued humanizing testimony can be
gleaned from defense counsels’ correspondences after the merits
phase of the court-martial, where counsel seemed to acknowledge
the shortcomings of their mental illness defense. In an e-mail
to Dr. Walker, an expert whom defense counsel had retained in
preparation for trial, LTC Brookhart requested Dr. Walker’s
help, explaining that “[o]ur expert in the merits case, Dr.
Woods, did ok, but obviously, the panel rejected his theory.”
We can deduce from this e-mail that, mid-trial, counsel doubted
the value of emphasizing the mental illness theme that Dr. Woods
had developed through his differential diagnosis in the merits
phase of the trial. This should have prompted a renewed focus
on presenting humanizing testimony. Government appellate
counsel argued in its brief before this Court that calling
44
United States v. Akbar, No. 13-7001/AR
the sentencing phase of the court-martial included Appellant’s
high school classmate, Regina Weatherford; Appellant’s brother,
Musa John Akbar; and Appellant’s parents, Quran Bilal and John
Akbar. Indeed, up until the night before closing arguments were
scheduled, MAJ Coombs implied that he would be calling one or
more of these mitigation witnesses. When the military judge
asked MAJ Coombs: “just to get a handle on what we might expect
tomorrow; two -- maybe three witnesses, so the defense
sentencing case should close by 1000?,” MAJ Coombs responded, “I
would think so, sir. Yes.” Yet, the next day, defense counsel
called no additional witnesses, and that morning the parties
delivered their closing arguments.30 Defense counsels’ actions
demonstrate that despite the complication the alleged scissor
attack posed, they nevertheless planned on calling civilian
family members as mitigation witnesses was unnecessary because
none would have contributed to defense counsels’ mental illness
theme in both the merits and penalty phase of the trial. This
argument is not supported by defense counsels’ post-trial
affidavits, nor is it consistent with their actions at trial,
wherein they appeared ready to call family members as mitigation
witnesses up to the night before closing arguments.
Consequently, this belief that defense counsel eschewed
humanizing testimony is merely post-hoc argument that should
not factor into an objective analysis of the reasonableness of
defense counsels’ strategy at the time of trial.
30
When questioned, MAJ Coombs informed the military judge that
he had “sound tactical reasons not to” call further witnesses.
Of course, this Court should not defer to counsel’s own
assessment that their tactical reasoning was sound; this Court
must undergo this analysis objectively.
45
United States v. Akbar, No. 13-7001/AR
mitigation witnesses for almost four weeks following the
incident.
After the alleged attack, counsel had almost a month to,
either, prepare their mitigation witnesses to avoid testimony
that would “open the door” to the attack, or interview
replacement witnesses. It appears that counsel did neither.
Rather, counsel stayed the course, representing that they would
call Appellant’s family as mitigation witnesses until the
eleventh hour, even though defense counsel now claim, post-
trial, that they did not wish to call these witnesses at all
after the alleged scissor attack had occurred.31
More importantly, despite anticipating the limitations of
their current mitigation witnesses, defense counsel did not seek
out replacement witnesses. Upon determining that several
31
Defense counsel did present statements in the mitigation phase
of the court-martial from two potential mitigation witnesses:
Appellant’s brother, Musa John Akbar, and Appellant’s high
school classmate Regina Weatherford. These documents were of
limited value in humanizing Appellant. For example, Ms.
Weatherford’s statement, offered into evidence by defense
counsel by way of a question-and-answer form, relates that
Appellant and Ms. Weatherford were “not really” friends but
“acquaintances with a love hate relationship,” and implied that
Appellant was sexist, writing, “Hasan had very specific
viewpoints of what a woman should or should not do. I believe
it was part of his religious beliefs.” Mr. Musa John Akbar’s
statement, while more personalized, was also presented in the
form of a standardized question-and-answer sheet, and lacked the
personal value that live witness testimony would have provided.
46
United States v. Akbar, No. 13-7001/AR
mitigation witnesses scheduled to testify would prove
problematic, the reasonable next step would have been for
defense counsel to interview additional potential witnesses
beyond Appellant’s mother, father, brother, and childhood
friend. There were other family members known to defense
counsel who would have been willing to testify on Appellant’s
behalf: Appellant’s sisters Sultana Bilal, and Mashiyat Akbar;
Appellant’s aunt, Dyan Rankins; Appellant’s cousins, Starr
Wilson, Merthine Vines, Catherine Brown, and Jill Brown;
Appellant’s high school friend, Ruthie Avina; and Appellant’s
college landlord, Marianne Springer. Yet counsel did not seek
out these witnesses to see if they could testify without opening
the door to the alleged attack.32
32
Three federal circuits have recognized that counsel are not
under an obligation to interview every witness who is willing to
testify. See Magee v. United States, 277 F. App’x 598, 602 (7th
Cir. 2008) (unpublished) (“When counsel already knows what a
potential witness is going to say and makes a strategic decision
not to pursue the testimony, counsel’s performance is not
defective.”); Parker v. Woodford, 168 F. App’x 152, 155 (9th
Cir. 2006) (unpublished) (“[C]ounsel of course . . . need not
interview every possible witness to have performed proficiently.
Interviewing witnesses whose testimony is generally known to
counsel, for example, may be unnecessary.” (citing Strickland,
466 U.S. at 691) (internal quotation marks omitted) (citations
omitted)); Huffington v. Nuth, 140 F.3d 572, 580 (4th Cir. 1998)
(“The Sixth Amendment, however, does not always compel counsel
to undertake interviews and meetings with potential witnesses
where counsel is familiar with the substance of their
testimony.”) (collecting cases). Nevertheless, under these
circumstances, where counsel were specifically concerned about
their ability to control a witness on the stand, defense
47
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Counsel were reasonably expected to further investigate
following the alleged attack, yet did not. See Williams, 529
U.S. at 396 (finding that counsel’s omissions “clearly
demonstrate that trial counsel did not fulfill their obligation
to conduct a thorough investigation of the defendant’s
background.” (citing 1 ABA Standards for Criminal Justice 4–
4.1, commentary, p. 4–55 (2d ed. 1980))). According to the ABA
Guidelines, even when tailoring a mitigation case to avoid
bringing in otherwise inadmissible aggravating evidence,
“[c]ounsel should pursue all appropriate means . . . to ensure
that the defense case concerning penalty is constricted as
little as possible by this consideration.” ABA Guideline 10.11,
31 Hofstra L. Rev. at 1056-57. This was not a case where
counsel believed that interviewing additional witnesses would be
fruitless, Wiggins, 539 U.S. at 525, “that character and
psychological evidence would be of little help,” Strickland, 466
U.S. at 699, or that all the witnesses they had investigated
were more harmful than helpful to Appellant’s case, Burger v.
Kemp, 483 U.S. 776, 794-95 (1987).33 Counsel simply did not
counsels’ failure to interview additional witnesses beyond their
original witness list was unreasonable.
33
It does not appear from the post-trial affidavits that counsel
concluded that no further investigation into additional
humanizing witnesses was necessary following the alleged attack.
See Strickland, 466 U.S. at 690.
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interview any other family members or close friends to determine
whether they could replace the mitigation witnesses.
Based on counsels’ lack of investigation, their omission of
humanizing testimony was not a “virtually unchallengeable”
decision made “after thorough investigation of law and facts
relevant to plausible options.” See Strickland, 466 U.S. at
690; Knowles v. Mirzayance, 556 U.S. 111, 126 (2009). Rather,
as the Wiggins Court noted, “[t]he record of the actual
sentencing proceedings underscores the unreasonableness of
counsel’s conduct by suggesting that their failure to
investigate thoroughly resulted from inattention, not reasoned
strategic judgment.” Wiggins, 539 U.S. at 526. Such a decision
was unreasonable, even if “hindsight is discounted by pegging
adequacy to ‘counsel’s perspective at the time’ investigative
decisions are made.” Rompilla, 545 U.S. at 381 (citing
Strickland, 466 U.S. at 689).
Defense counsels’ incomplete investigation into whether
humanizing witnesses could testify without opening the door to
aggravating evidence distinguishes the instant case from past
Supreme Court cases with seemingly similar factual predicates.
In Bell v. Cone, 535 U.S. 685, 700 (2002), the Supreme
Court did not hold defense counsel deficient where counsel
neglected to “call[] other witnesses from [the defendant’s]
childhood or days in the Army” out of “fear[] that the
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United States v. Akbar, No. 13-7001/AR
prosecution might elicit information about respondent’s criminal
history.” Id. Nevertheless, that case is distinguishable
because the defendant in Bell did not allege that counsel had
conducted an incomplete investigation into the viability of
calling other mitigation witnesses, as Appellant does here.34
Id. Similarly, in Burger, 483 U.S. at 792-94, the Supreme Court
concluded that defense counsel’s decision not to call the
defendant’s mother to testify was reasonable because counsel
reasonably believed her testimony might raise “matters of
historical fact that would have harmed his client’s chances for
a life sentence.” Id. at 792. Like Bell, Burger is inapposite
becausethe defendant did not claim that defense counsel had
failed to interview additional witnesses.. Id.35
34
In fact, defense counsel had called the accused’s mother to
testify in the merits portion of the case, but did not recall
her during the sentencing case only because she “had not made a
good witness at the guilt stage and should not be subjected to
further cross-examination.” Bell, 535 U.S. at 687. Defense
counsel in Bell was not alleged to have made this tactical
decision without a sufficient investigation.
35
In Burger the accused claimed, without success, that defense
counsel had failed to conduct a sufficient investigation into
Appellant’s background by neglecting to interview all available
witnesses. Nevertheless, the basis for this claim is
distinguishable from Appellant’s because in Burger the Court
found that defense counsel “did interview all potential
witnesses who had been called to his attention,” Burger, 483
U.S. at 794-95, whereas in the instant case, counsel did not re-
interview the mitigation witnesses known to them and could
provide no reasonable justification for this omission.
50
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Wong v. Belmontes, 558 U.S. 15 (2009), is distinguishable
on separate grounds. In that case, similar to the case at hand,
defense counsel “built his mitigation strategy around the
overriding need to exclude” evidence that the accused had
committed a prior bad act, “tailor[ing] his mitigation case
carefully to . . . exclud[e]” the prejudicial evidence. Id. at
18-19. Yet, ultimately, the Supreme Court did not sanction this
strategy, instead resolving the case on Strickland’s prejudice
prong alone. Id. at 19. Significantly, the Supreme Court did
not repudiate the circuit court’s conclusion that counsel’s
“performance was constitutionally deficient,” even though
defense counsel had mounted a lengthy mitigation case over the
span of two days, “put[ting] on nine witnesses he thought could
advance a case for mitigation,” and presenting detailed personal
stories about the defendant’s character and life history. Id.
Wong, therefore, is not an endorsement of counsel’s averred
strategy in this case of excluding mitigation witnesses to avoid
mention of the March 30, 2005, attack.
Ultimately, counsel missed the forest for the trees. Out
of concern that they not open the door to inquiry regarding
Appellant’s assault of a guard with a pair of scissors, they
chose not to offer what may have been Appellant’s best
opportunity to avoid a sentence of death. How could a single
member of the panel be expected to argue for mercy if
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Appellant’s own family was seemingly not prepared to do so?
Moreover, to the extent the goal was to avoid opening the door
to the scissor incident, and thus Appellant’s violent nature and
propensity to commit acts of future violence, Appellant’s diary
already arguably opened, closed, and sealed that door.
In summary, counsel were aware of the scissor attack for
weeks, and intended to present mitigating witnesses to testify.
Under such circumstances, proficient counsel would have
undergone additional investigation instead of staying the course
in light of changed circumstances. Consequently, counsels’
strategy is not entitled to deference because it was based on an
incomplete investigation that was unreasonable under the
circumstances. Given that defense counsel did not interview
other witnesses, counsels’ choice to present no witnesses to
humanize Appellant was not sound strategy. In the end, it is
hard not to ask the question: If Appellant’s own family is not
prepared to argue for his life, why should an individual member?
C. Prejudice -- Is There a Reasonable Probability That
At Least One Juror Would Have Struck a Different
Balance?
The second prong of Strickland addresses prejudice. 466
U.S. at 692-96. Under this prong, Appellant is not required to
show “‘that counsel’s deficient conduct more likely than not
52
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altered the outcome’ of his penalty proceeding, but rather . . .
establish ‘a probability sufficient to undermine confidence in
[that] outcome.’” Porter, 558 U.S. at 44 (citing Strickland,
466 U.S. at 693–94); see also Rompilla, 545 U.S. at 393. When
looking at deficient performance during capital sentencing,
courts specifically examine whether “there is a reasonable
probability that at least one juror would have struck a
different balance” in sentencing. Wiggins, 539 U.S. at 537.
“In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the evidence
before the judge or jury.” Strickland, 466 U.S. at 695. “[W]e
reweigh the evidence in aggravation against the totality of
available mitigating evidence.” Loving v. United States (Loving
III), 68 M.J. 1, 7 (C.A.A.F. 2009) (quoting Wiggins, 539 U.S. at
534).
To be sure, counsel did present some mitigating evidence.
But solely mounting a mitigation case is not enough. As the
Supreme Court noted in Sears v. Upton, 561 U.S. 945 (2010),
“[W]e also have found deficiency and prejudice in other cases in
which counsel presented what could be described as a
superficially reasonable mitigation theory during the penalty
phase.” Id. at 954-55 (citing Williams, 529 U.S. at 398
(remorse and cooperation with police), Rompilla, 545 U.S. at 378
(residual doubt), Porter, 558 U.S. at 32 (intoxication)).
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Contrary to the majority’s declaration that “if there ever
was a case where a military court-martial panel would impose the
death penalty, this was it,” Akbar, __ M.J. at __ (6), a death
sentence was not a foregone conclusion in this case. Indeed,
both the Supreme Court and this Court have found prejudice in
death penalty cases even when the crimes have been abhorrent.
See Rompilla, 545 U.S. at 377-80 (concluding there was prejudice
notwithstanding evidence that defendant had repeatedly stabbed
the victim and set him on fire); Wiggins, 539 U.S. at 514-19
(concluding there was prejudice despite the fact that the
accused drowned a septuagenarian); Murphy, 50 M.J. at 12
(concluding there was prejudice even though the case involved “a
gory and inexplicable family homicide” where the accused’s
“first wife had been killed by repeated blows to the head by . .
. a hammer, and then drowned in her bathtub” and her two young
children “had been violently killed”). The question presented
is not whether Appellant is guilty, but whether he had fair
opportunity, with the effective representation of counsel, to
argue for life.
Here, when viewing the totality of the mitigating evidence
and weighing the mitigating and aggravating factors, there is a
reasonable probability that “at least one [member] would have
struck a different balance.” Loving III, 68 M.J. at 7 (citing
Wiggins, 539 U.S. at 537). First, the errors in question were
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harmful to Appellant’s case. Second, the mitigating evidence
the defense introduced did not otherwise compensate for the
introduction of the diary and absence of familial support.
Third, and most importantly, the members requested an
instruction on reconsideration, indicating that the sentence
outcome was not inevitable or certain.
Admission of the diary in its entirety was harmful to
Appellant’s case. As previously noted, there were damaging
passages spanning from Appellant’s early twenties to the weeks
before the attack, a decade later, which defense counsel
introduced into evidence. First, the diary undercut defense
counsels’ theory that the attack was due to Appellant’s mental
illness. These passages portrayed Appellant as hateful and
resentful of Caucasians and the U.S. government. They
demonstrated that this hatred was enduring. This does not
suggest a recent worsening of an existing mental illness that
drove Appellant to attack his fellow soldiers. Second, the
diary undercut the argument that the attack was not
premeditated. As the FBI report states, when reading the diary,
Appellant’s “actions [came] as no surprise.” Third, the diary
sapped any sympathy the members may have had for Appellant.
Similarly, the absence of live lay witnesses to humanize
Appellant was prejudicial. As noted, Supreme Court case law and
the ABA Guidelines recognize the value of presenting humanizing
55
United States v. Akbar, No. 13-7001/AR
witness testimony. See Penry, 492 U.S. at 319; Eddings, 455
U.S. at 112; Porter, 558 U.S. at 41; ABA Guideline 10.11, 31
Hofstra L. Rev. at 1061. Such testimony was completely absent
in this case. The panel was left with the impression that no
one could be bothered to come into court and testify on
Appellant’s behalf, and that no one would be affected by his
death, even his family.
Second, the witnesses that defense counsel did call to
testify were unhelpful, and even harmful, to Appellant’s
mitigation case. The only witnesses who testified in support of
Appellant’s mitigation case were either dispassionate expert
witnesses, servicemembers who demonstrated aversion for
Appellant, or civilian lay witnesses who were ambivalent about
Appellant.36
During the merits phase of the court-martial, defense
counsel called three witnesses in support of Appellant’s merits
and mitigation case. Dr. Woods and Dr. Tuton testified in
support of the mental illness defense. These witnesses did not
know Appellant personally. Their testimony was intended to
support a mental health diagnosis and was, as a result, clinical
and impersonal. Dr. Woods testified from a clinician’s
36
The six witnesses comprise the total number of witnesses
called in support of Appellant’s mitigation case in both the
merits and mitigation phases of the trial.
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perspective, providing a dispassionate differential diagnosis
based on his post-arrest evaluation of Appellant, and therefore
did little to humanize Appellant, other than point out that he
likely suffers from a mental illness. Dr. Tuton had limited
experience with Appellant, having conducted a mental evaluation
of him when he was a teenager after speaking with Appellant for
only four hours. Such testimony is no substitute for the live
testimony of lay witnesses who had, at one point, a strong
affinity for Appellant.
Defense counsel also called a civilian lay witness, Mr.
Paul Tupaz, Appellant’s former roommate, to testify. Mr.
Tupaz’s testimony, similar to that of the two experts, focused
on symptoms of mental illness, such as Appellant’s habit of
pacing, his short temper, and his habit of keeping lists. This
testimony did not speak to any personal positive attributes of
Appellant’s character, only to manifestations of a potential
mental ailment.
During the mitigation phase of the trial, defense counsel
called two servicemembers who had served with Appellant to
testify regarding behaviors Appellant exhibited that were
consistent with the theme of mental illness introduced in the
merits stage of the court-martial.37 Yet the behaviors described
37
The testimony of all three witnesses during Appellant’s
mitigation case lasted less than one hour total.
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United States v. Akbar, No. 13-7001/AR
by these witnesses did not further establish that Appellant was
psychologically ill -- only that he was irresponsible and a
“subpar” noncommissioned officer (NCO). For example, Captain
Storch testified that Appellant had “deficiencies as a team
leader,” often “exhibiting poor decision-making skills.” He
testified that Appellant never improved as a platoon leader. He
related an incident where Sergeant Akbar was put in charge of
cleaning up a company bunker and, after doing so, dumped all the
trash, including “unused M.R.E. heaters, some air conditioning
units . . . hazardous material[s]” into a creek, where it was
eventually discovered. In addition, Sergeant Kumm testified
that Appellant was a “below average” NCO and that “[i]t had been
an ongoing issue that [Appellant] was not coming up to par.”
The testimony presented did not support a cohesive and
compelling case for Appellant’s mental illness. This testimony
illustrated that Appellant was disagreeable, and had squandered
his potential.
The third witness defense counsel called during the
mitigation phase was similarly unhelpful. Daniel Duncan,
Appellant’s high school teacher, testified that Appellant “was
an excellent student” who “ha[d] an aptitude and showed an
interest” in learning. Yet he also testified that he did not
have many interactions with Appellant personally. Mr. Duncan’s
unfamiliarity with Appellant and endorsement of his “aptitude”
58
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are no replacement for humanizing testimony from Appellant’s
family and close friends on Appellant’s character or worth as a
person.
Appellant’s mitigation case is insubstantial in contrast
with the mitigation presentation in Loving III, where this Court
found no prejudice. 68 M.J. at 2. In Loving III, this Court
considered the fact that:
[d]uring the sentencing phase, defense counsel
presented the testimony of a number of witnesses to
address Loving’s family and social background. These
included: Joe Loving Sr., Loving’s father; Lucille
Williams, Loving’s mother; Ronald Loving, Loving’s
brother; Wendolyn Black, Loving’s sister; Lord
Johnson, Loving’s childhood boxing coach; and
Detective Verna of the Rochester police department.
Stipulated testimony was submitted from Harry Loving,
Loving’s brother, and Kenneth Wilson, Loving’s
childhood teacher.
Id. at 9-10. Appellant’s case is lacking even when compared to
United States v. Curtis (Curtis III), 46 M.J. 129, 130 (C.A.A.F.
1997), where this Court did hold that the defendant was
prejudiced by counsel’s deficient performance. This Court
concluded that “there is a reasonable probability that there
would have been a different result if all available mitigating
evidence had been exploited by the defense,” 46 M.J. at 130,
despite the fact that defense counsel made an “effort to present
a picture of appellant not only through his mother’s own words
but also through the words of over 27 individuals who knew
appellant from his community in Wichita,” comprising forty pages
59
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of the court-martial transcript. United States v. Curtis
(Curtis II), 44 M.J. at 123, on reconsideration, 46 M.J. 129
(C.A.A.F. 1997). In contrast to both Loving and Curtis, in the
instant case not only were there far fewer character witnesses,
but some of these witnesses painted an unflattering portrait of
Appellant. It is therefore unconvincing that defense counsel
presented some mitigating evidence. In weighing the aggravating
and mitigating evidence, it is clear that Appellant was
prejudiced by defense counsels’ decisions.
Consequently, even considering the aggravating evidence, I
disagree with the majority opinion’s contention that testimony
on the impact of Appellant’s death on family members would have
made no difference. Akbar, __ M.J. at __ (65-67). In my view,
some of the mitigating evidence that defense counsel presented
was arguably unhelpful, and even harmful to Appellant’s
mitigation case.
The third and critical piece to the prejudice analysis is
that at least one member waivered in their decision, as
evidenced by the members’ request for an opportunity to
reconsider the sentence they had initially reached. This
indicates that the members’ views were not fixed and could have
been swayed by an effective mitigation presentation.
The members deliberated for six hours before indicating to
the military judge that reconsideration had been proposed.
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During deliberations, any member may propose a sentence, and the
members vote on a sentence by secret written ballot, starting
with the least to the most severe, “until a sentence is adopted
by the concurrence of the number of members required.” See
R.C.M. 1006(c), (d)(2), R.C.M. 1009.38 If a consensus is reached
on a proposed sentence, the members may not vote again unless
they do so under the reconsideration procedures established
under R.C.M. 1009. See R.C.M. 1006(c), (d)(2), R.C.M. 1009.
Any member may propose reconsideration, but the members may only
reconsider a sentence if a threshold number of members agree to
do so. R.C.M. 1009. The military judge instructed the members
on reconsideration after they had indicated that reconsideration
had been proposed.
It is not apparent in the record what sentence the members
had initially reached, namely, whether it was a death sentence,
or life without parole. Indeed, the military judge instructed
the members not to disclose whether the announced sentence was
identical to the original vote, or had changed upon
38
The members are required to first vote on whether the
prosecution has proved an aggravating factor beyond a reasonable
doubt. R.C.M. 1004(b)(4)(A). The members must then “concur
that any extenuating or mitigating circumstances are
substantially outweighed by any aggravating circumstances”
before they may vote on a sentence. R.C.M. 100(b)(4)(C).
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reconsideration. This detail is immaterial.39 The request for
an instruction on reconsideration itself demonstrates waiver,
doubt, and room for persuasion. As this Court noted in United
States v. Wilson:
[w]ithout enumerating [reasons for recasting a
ballot], we may state generally that they relate to
the desirability of having the theories for both the
prosecution and defense weighed and debated thoroughly
before final judgment, for it cannot be disputed that
justice is more likely to be administered if full and
free discussions are not automatically cut off just
because a vote has been recorded.
18 M.J. 204, 207 (C.M.A. 1984). There is a reasonable
probability that in weighing and debating thoroughly the
evidence presented, at least one member was swayed to vote
for death by the hate-filled passages in Appellant’s diary.
Conversely, there is a reasonable probability that at least
one member would have voted for life after hearing
humanizing testimony from Appellant’s family. The
prejudice prong requires only a “reasonable probability
that at least one juror would have struck a different
39
Based on the trial record, it is possible that, either, the
members reached a sentence of life without parole and
reconsidered with a view to increasing the sentence, or voted
for death and adhered to this position on a second vote. Had
the members voted on the death sentence, at least one person
would need to vote for reconsideration in order to compel a
second vote. This is nevertheless significant because even if
one person had misgivings about a death sentence, that
individual could have been persuaded by an effective mitigation
case and could have precluded a sentence of death by voting for
life imprisonment.
62
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balance.” Wiggins, 539 U.S. at 537. This reconsideration
request supports a reasonable probability that at least one
of the members would have voted for life. This, in my
view, undermines confidence in the result which, in turn,
establishes prejudice. See id. at 526-27.
Accordingly, because I would conclude that counsel was
deficient and that Appellant was prejudiced by such
deficient representation in the mitigation presentation, I
would reverse Appellant’s sentence on the basis that he
received ineffective assistance of counsel.
CONCLUSION
There is no doubt that Appellant is guilty of the offenses
for which he was charged and convicted. The verdict is just.
As previously stated, the question presented is whether
Appellant had a fair opportunity with effective representation
to argue for life. In my view, he did not.
Capital defense counsel in the military are at a
disadvantage. They are expected to perform effectively in
surely the most challenging and long-lasting litigation they
will face in their legal careers, without the benefit of the
exposure, training, guidelines, or experience in capital
litigation that is available to federal civilian lawyers. We do
military lawyers, and accused servicemembers, a disservice by
putting them in this position.
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Without the benefit of guidelines or expertise, counsel
made two tactical decisions that fell below the professional
norms expected of competent counsel. First, and critically,
counsel introduced Appellant’s vitriolic and expansive diary
without appropriate contextualization, and did so without
adequate prior investigation to support this decision. Such
investigation would have emphatically demonstrated a need to
place the diary in medical context, particularly where it was
used in support of the defense’s theme of mental illness.
Without such context, the diary demonstrated that Appellant
remained a threat to society and the soldiers around him.
Second, counsel failed to introduce a single witness in
court to humanize Appellant and to argue for life. This was
done not because counsel thought such testimony was meritless,
but to avoid opening the door to rebuttal testimony regarding
Appellant’s alleged attack on a guard. Yet counsel reached this
decision without first interviewing known family members to see
if they could testify on Appellant’s behalf without opening the
door to this aggravating evidence. Defense counsels’ decision,
therefore, was not supported by reasonable investigation under
the circumstances. Moreover, this water was already under the
bridge. Appellant was identified as a violent offender based on
overwhelming evidence of guilt. And, as the diary seemed to
indicate, Appellant would offend again. Under such conditions
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it was not a reasonable tactical decision not to call at least
one family member or friend to sincerely argue for life.
Finally, weighing the aggravating and mitigating factors,
and considering that the members requested an instruction on
reconsidering sentences, there is a reasonable probability that
at least one juror may have been influenced by an effective
presentation of mitigation evidence.
Accordingly, I respectfully dissent and conclude that
Appellant did not receive effective assistance of counsel. I
would reverse Appellant’s sentence, and remand the case for a
new hearing on Appellant’s sentence.
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Combined Opinion