(dissenting):
Jose F.S. Simoy did not kill anyone. Nor did he plan anyone’s death. Sergeant Stacy E. LeVay is dead, but not because the armed robbery was carried out as appellant planned it.1 However, it is true that the armed robbery which appellant planned and helped to carry out resulted in Sergeant LeVay’s untimely death. Given those facts, does appellant’s culpability warrant the imposition of the ultimate penalty of death? From my perspective, that is the overriding issue. The majority answers the question in the affirmative. I cannot agree. When I compare this case with other death penalty cases that have been prosecuted by the military, I can only conclude that, under these circumstances, the sentence to death is inappropriate, both legally and factually.
It has been more than 13 years since this Court has last been called upon to decide upon the appropriateness of a death penalty. United States v. Gay, 16 M.J. 586 (A.F.C.M.R.1983) (airman who killed two security policemen with an M-16 rifle had his death sentence overturned on constitutional grounds). In the last 40 years, not a single Air Force member has been executed pursuant to a court-martial sentence.2 There are numerous reported cases in which Air Force members have been convicted of murder. A number of them have involved particularly gruesome killings which clearly warranted the maximum possible sentence. Yet, all of them have resulted in no greater punishment than life imprisonment. Consequently, there are no published Air Force cases which will assist us in determining sentence appropriateness in this case.
I write separately to explain how I differ from the majority opinion in three crucial areas. First, I am not satisfied that appellant was accorded effective representation of *632counsel during the sentencing portion of his trial. Next, I believe appellant was unfairly-prejudiced by the military judge’s ruling precluding the defense from making any reference to the prosecution of appellant’s brother. Finally, I am not persuaded that this is the type of felony murder that warrants or permits the imposition of the death penalty.
Even if I could join the majority in its conclusion that this death penalty is appropriate, I would still vote to remand the case for a rehearing on the sentence because of ineffective assistance of counsel. I have never seen a case in which the ineffectiveness of counsel was more blatantly obvious. From the defense’s perspective, this was solely a sentencing case. They never seriously questioned appellant’s guilt. Once the decision was made to refer this as a capital case, clearly the dominant defense focus was, or should have been, to preclude the death penalty. Particularly disturbing to me, given that focus, is the fact that in a record of trial that consumes 1383 pages, the entire defense submission during the sentencing portion covers a mere 7 pages. All that was submitted was an affidavit from Lieutenant Colonel Suehenski that appellant had offered to plead guilty, a -written unsworn statement signed by the appellant, and a short oral statement made by the civilian defense counsel stating little more than the fact that appellant had a wife and three kids. Not a single witness was called on appellant’s behalf and virtually no effort was made to humanize appellant in the eyes of the panel members. Such paucity in the sentencing portion of a capital case, particularly when the accused neither planned nor inflicted the death, can only be viewed as appalling.
I take issue with the majority’s conclusion that the defense had a “viable” strategy for avoiding the death penalty. If the defense team had a strategy during the sentencing portion of the trial, it is not discernible by me. At most, the defense appeared to rely on a “hope” that defendant would not be sentenced to death because he was not the triggerman. A “hope” is not a “strategy.” When I read the majority opinion, I am unpersuaded by the attempt to find a reasonable strategy from the sparse sentencing presentation. I’m reminded of that old adage which goes, “you can’t make a silk purse from a sow’s ear.” While the law pertaining to effective assistance of counsel does not require defense counsel to construct a “silk purse” to be effective, the law does require counsel to meet an objective standard of reasonableness. United, States v. Lawson, 40 M.J. 475 (C.M.A.1994). I cannot dignify the way defense counsel handled the mitigation portion of the trial by calling it reasonable. It is hard for me to see how anyone reviewing this ease could conclude that the failure to call any live witnesses to testify in appellant’s behalf was reasonable. It might be reasonable if appellant were only facing a punitive discharge, but hardly when the client faces death.
Unlike the majority, I cannot casually dismiss the affidavits filed by the two military defense counsel admitting ineffectiveness by the defense team. I believe these affidavits go far beyond “Monday morning quarterbacking” about bad tactical decisions.3 Rather, they confirm my conclusion that the defense team did not have a strategy for mitigation. They establish that the defense team was in a state of disarray. Let me make it' dear that I reject any suggestion that they were ineffective because they simply lacked experience in capital murder eases. But one does not need experience in capital murder cases to know that competent counsel would have “developed a theme for presenting matters in mitigation.” This is something that military defense counsel routinely do in every court-martial, particularly when sentencing is inevitable. That’s why the two military defense counsel know and admit that the defense team performance in this case does not pass professional muster.4
The majority contends that my concern is based on the quantity of the defense presentation alone. Not so! It is also the lack of *633substance which left the defense team helpless to counter the prosecution’s grim picture of appellant that deeply troubles me.5 The majority opinion finds that the defense team “made a well-thought out tactical choice to limit the defense presentation.” How can the failure to call a single live witness be called a tactical choice in this case? What “devastating counterattack” was the defense team trying to avoid? The prosecution had already produced an Article 15 and a letter of reprimand which the appellant had received. The only rationale I can find for the failure of the defense team to call any member of appellant’s family was a reference in Captain Bemis’ affidavit. He recalled that Mr. Trapp was concerned “about the quality of witnesses” they would make.
We need not speculate whether the defense team could have done anything to “humanize” appellant in the eyes of the members. In the record of trial, this Court has before it the videotape of appellant’s family members which was offered with his post-trial clemency presentation. Although the videotape was prepared prior to trial, the court members never heard the family members’ comments. The lead opinion (citing Strickland v. Washington and Burger v. Kemp6 ) notes that a defense team may tactically choose not to put on any mitigation evidence. As those cases clearly hold, when there is a tactical reason for failing to present mitigation evidence, such an omission does not constitute ineffective assistance of counsel. Here we have a much different situation. The failure of the defense team to present any mitigation evidence about appellant’s background, values, family life, and character provided nothing to combat, balance or soften the damaging characterizations made during the prosecution sentencing arguments. They neglected to present any portrayal of appellant which would have countered words like “coward,” “evil, greedy vicious murderer,” “savage criminal,” and “he is simply an evil man.” Inexplicably, members never heard appellant’s children, wife, sister and mother say their videotaped comments: “I miss my Daddy,” “I love my Daddy,” “he helps me do my homework,” and “he is not a killer.”
I suggest the deficiencies of this defense team during the sentencing phase were no less egregious or potentially damaging to our system of justice than a failure of counsel to investigate a client’s defense of alibi. See United States v. Scott, 24 M.J. 186 (C.M.A. 1987). The breakdown in the development of a mitigation strategy deprived this appellant of the type of adversarial process that our system counts on to produce just results. See United States v. Mansfield, 24 M.J. 611, 618 (A.F.C.M.R.1987). The majority opinion suggests that the meager mitigation presentation was designed to minimize unfavorable rebuttal. That rationale doesn’t hold water. What conceivable unfavorable rebuttal evidence was there which would justify the failure to call a single mitigation witness? The answer is none.
Under the Strickland standard, finding unreasonable performance is not enough to justify a remand of appellant's case. There is also the requirement that appellant be prejudiced by the defective performance. I have no difficulty finding prejudice in this instance. I am not convinced that the result would have been the same if a proper mitigation presentation had been made. I believe the defense performance was so deficient that the adjudged sentence cannot be viewed as a reliable result.
We have a military system of justice that is widely acclaimed for fairness and equality of treatment. Our concern for equal justice is one of the reasons we provide free legal counsel to every accused. However, simply providing counsel is not enough. Ineffective assistance of counsel may be worse than no counsel at all. That’s why the affidavits of the two military counsel asserting that the *634defense team was ineffective must be seen as placing an indelible cloud over this case. Can we honestly look at the bare mitigation evidence in the light of these affidavits and conclude that the record establishes that the defense team was effective during the mitigation stage? This judge cannot. Like the view expressed by Judge Gierke in his separate opinion in United States v. Curtis, 44 M.J. 106, 171 (1996), I am not satisfied that this appellant received the representation during the sentencing stage that the Constitution requires and a member of our armed forces facing a sentence of death deserves. A rehearing on sentence is needed to correct this deficiency.
I also take issue with the majority’s conclusion regarding the military judge’s ruling which precluded the defense from presenting any evidence or comments concerning Dennis Simoy’s potential sentence. The only reason appellant was facing the death penalty in this case was because of the actions of his brother, Dennis. It was Dennis that “bludgeoned” Sergeant LeVay to death, not appellant. What legal justification can there be for the conclusion that the members, who were told what role Dennis played in the crime, should not be told that Dennis was not subjected to the death penalty? In regard to capital eases, R.C.M. 1004(b)(3) provides as follows: “The accused shall be given broad latitude to present evidence in extenuation and mitigation.” I cannot reconcile this principle with the judge’s ruling precluding the accused in extenuation from informing the members that the actual killer was not subject to capital punishment.
Can anyone seriously argue that appellant who planned the robbery is more deserving of the death penalty than the actual killer? Is it logical to conclude that the punishment imposed upon the actual killer is not relevant when felony murder is the sole basis for a capital prosecution? The rationale provided by the military judge for precluding the members from knowing that Dennis Simoy was not subjected to the death penalty was his finding that such relevant information under Mil.R.Evid. 403 was outweighed by the danger of undue prejudice, confusion or waste of time. It appears that all the defense wanted to do was to have appellant make the following statement: “The United States government has tried and convicted my brother for actually killing Sergeant Le-Vay and yet he will not suffer the death penalty.” That statement would have been short, clear and factually accurate. Moreover, in my view, it was a statement that appellant had a constitutional right to present as extenuation and mitigation. I submit it is highly likely, if not probable, that at least one member would have voted against the death penalty if they had known Dennis Simoy had escaped the death sentence. See McKoy v. North Carolina, 494 U.S. 433, 436-38, 110 S.Ct. 1227, 1230-31, 108 L.Ed.2d 369 (1990) (as long as any reasonable juror might use the evidence to vote for life versus death, it is error for the court to exclude the evidence).
The majority opinion suggests that appellant should not be allowed to present evidence that his brother would not face the death penalty because, if the contrary were true, the government would have been precluded from introducing evidence that he had received the death penalty. The suggestion that the rights of the government and defense are balanced has no support in law or fact. Can a government witness make an unsworn statement? Does R.C.M. 1004(b)(3) apply with equal force to both the government and the defense? Obviously not!
The majority also upholds the trial judge’s ruling on the grounds that he prevented the members from engaging in sentence comparison. They reason that the law does not permit the sentence received by one co-conspirator to be admitted at the trial of another. There are problems with the majority’s rationale on this point. First, appellant was not charged with conspiracy to murder — he was charged with felony murder. Second, he was not attempting to discuss the disposition of his brother’s case for purposes of sentence comparison, but rather to show the great disparity in the maximum authorized punishments solely as a result of his brother being a civilian. Third, there is an important element that ties Dennis Simoy’s offense to the punishment which appellant was subjected. But for the fatal blows which Dennis inflicted *635upon Sergeant LeVay, appellant could not have been subjected to a capital prosecution. Fourth, the only sentencing discretion which the members had in this instance was whether the death sentence was appropriate. I can think of no justification for denying the right of an accused to inform those who must decide his fate of the simple fact that the person who actually committed the killing could not and would not face the death sentence. In my view, appellant had a constitutional right to tell the members that he faced the death penalty for this crime only because, unlike the actual killer, he was a member of the armed forces. Finding prejudicial error in the military judge’s ruling on this point, I would authorize a rehearing on sentence.
Finally, I turn to the crucial question of whether the death sentence is appropriate in this case. I cannot join my colleagues in the majority in concluding the adjudged sentence in this case is correct in law and fact. First, I disagree because I do not believe that, under the circumstances of this case, appellant’s sentence to death is constitutionally permissible. Such a conclusion will moot the issues of ineffectiveness of counsel during the sentencing stage and whether the military judge erred in excluding any reference to Dennis Simoy’s prosecution. The Eighth Amendment requires, among other things, that there be a scheme to “genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Loving v. United States,—U.S. -,-, 116 S.Ct. 1737,1742,135 L.Ed.2d 36 (1996), quoting Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 554, 98 L.Ed.2d 568 (1988).
The Supreme Court in Loving has already addressed the constitutionality of the circumstances before us in this case. The following language leaves no doubt that this death penalty could not withstand a constitutional challenge:
Article 118 authorizes the death penalty for but two of the four types of murder specified: premeditated and felony murder are punishable by death, whereas intentional murder without premeditation and murder resulting from wanton and dangerous conduct are not. The statute’s selection of the two types of murder for the death penalty, however, does not narrow the death-eligible class in a way consistent with our cases. Article 118(4) by its terms permits death to be imposed for felony murder even if the accused had no intent to kill and even if he did not do the killing himself. The Eighth Amendment does not permit the death penalty to be imposed in those circumstances. Enmund v. Florida, 458 U.S. 782, 801 [102 S.Ct. 3368, 3378-79, 73 L.Ed.2d 1140]....
Loving v. United States,—U.S. at-, 116 S.Ct. at 1742.
The majority opinion makes a strong case for appellant’s culpability, stressing that appellant was the one who “masterminded” the aimed robbery and was its “commander-in-chief.” It describes appellant as the “engineer of the train of death which crushed the life from Sergeant LeVay’s body” and argues that “appellant’s grip on the lead pipe which struck the fatal blows was as tight as his brother’s, if not more so.” In so doing, the majority ignores the simple fact that appellant does not fall within the group of murderers who may be put to death under the military’s “narrowing” scheme. In effect, they attempt to use the aggravating factors to “broaden” the group of murderers who may be put to death to include appellant.
The sole purpose of the aggravating factors is to narrow the group of murderers eligible for the death penalty so as to impose the ultimate punishment only in those instances when it is most justified. Article 118, UCMJ, narrows the group of murderers who may receive the death penalty within the military. Included in that group are those convicted of premeditated murder and felony murder. Anyone convicted of premeditated murder is subject to the death penalty. However, only those premeditated murderers “convicted” of one of the aggravating factors beyond a reasonable doubt may actually be executed. Unlike those convicted of premeditated murder, not everyone convicted of felony murder may constitutionally be subjected to the death penalty. In Loving, the *636Supreme Court reiterated that the Eighth Amendment would not permit the death penalty for a felony murderer who “did not do the killing himself’ or who “had no intent to kill.” In order for the aggravating factors to apply in the military to felony murderers, the accused must have actually killed or had the intent to kill. The aggravating factors determine which of those felony murderers may actually be executed. Since appellant does not fall within the group of felony murderers who may be subjected to the death penalty, his sentence to death is constitutionally impermissible.
In light of Enmund, R.C.M. 1004(c)(8) must be read as it is written. By its language, it applies only when the accused is the actual perpetrator of the killing or is a “principal” to the killing. In order to be a principal to the killing, under Article 77, UCMJ, an accused must “share in the criminal purpose [or] design.” Manual for Courts-Martial (1984), Part IV, 11 lb(2)(b)(ii). As an aggravating factor, R.C.M. 1004(c)(8) applies only in those situations of felony murder in which the death penalty is permissible; namely, when the accused is the perpetrator or has the intent to kill. If “principal” were read, as the majority presumably reads it, to mean “principal to the felony,” application of the aggravating factors could lead to absurd results. For example, a premeditated murderer, generally considered the most culpable of all murderers, might escape the death penalty in the absence of additional aggravating factors. On the other hand, if R.C.M. 1004(c)(8) were read to mean “principal to the robbery,” a major participant in a robbery, like appellant, could receive a death penalty although he killed no one, planned to kill no one, and intended to kill no one. Under such an interpretation, R.C.M. 1004(c)(8) could scarcely be viewed as legitimately narrowing the group of murderers subject to the death penalty and it most certainly would not comply with the principles set forth in Enmund or Loving.
To the extent that the majority uses the Supreme Court’s decision in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) to bring appellant within the group of felony murderers who may receive the death penalty, I believe it ignores the narrowing scheme which the military has adopted. Tison only speaks to the specific narrowing scheme which has been adopted by a minority of jurisdictions, like Arizona.7 It is not surprising, therefore, that the Supreme Court decision in Loving makes no reference to Tison.
The Supreme Court has never held that the death penalty for premeditated murder violates the Eighth Amendment. Neither has the Supreme Court held that the death penalty violates the Eighth Amendment when a felony murderer actually does the killing or intends that one be killed. However, both Enmund and Loving make it clear that the Eighth Amendment does not permit the death penalty for someone, like appellant, who neither killed anyone or intended that anyone be killed. Because appellant neither did the killing nor intended the killing, it is simply not possible to reconcile the appellant’s death sentence with either Enmund or Loving.
Lastly, even if the death penalty were permissible in this case, I would have concluded, under Article 66(c), UCMJ, that appellant’s sentence is inappropriate. In this country, this is not the type of murder that results in an execution. It is certainly not the type of intentional gruesome slaying that warrants the first Air Force execution in over 40 years. Article 66(c) gives this Court unique appellate review authority. It should be used to preclude unjust results. This is such a case. I have found no reported ease in any U.S. jurisdiction in which an accused has been sentenced to the death penalty when the actual perpetrator was not also tried for capital murder. Not a single one. The reason is rather obvious: it would violate our sense of basic fairness. If “equal justice under the law” means anything, I trust it means that one who did not plan, intend, or commit a killing will not be sentenced to death by a government that decides not to capitally prosecute the one who actually did the killing. Again, I say Jose F.S. Simoy did *637not kill anyone. To take his life under the facts of this case would be unjust. His brother, who killed Sgt LeVay, did not even face the death penalty. This disparity not only makes appellant’s sentence inappropriate, it makes it grossly unfair.
OFFICIAL
ROXANE M.G. PORTER Staff Sergeant, USAF Chief Court Administrator
APPENDIX
I. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH AMENDMENT AND MILITARY DUE PROCESS
II. THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING AIRMAN SIMOY’S MOTION FOR APPROPRIATE RELIEF (NONCAPITAL REFERRAL) WHICH ALLEGED THE CONVENING AUTHORITY IMPROPERLY REFERRED AIRMAN SIMOY’S CASE AS CAPITAL
III. THE MILITARY JUDGE ERRED IN HIS DENIAL OF APPELLANT’S REQUESTS REGARDING THE ARTICLE 32 INVESTIGATION
IV. THE MILITARY JUDGE ERRED IN HIS DENIAL OF AIRMAN SIMOY’S MOTION TO COMPEL DISCOVERY
V. THE MILITARY JUDGE ERRED IN HIS DENIAL OF APPELLANT’S MOTION FOR APPROPRIATE RELIEF (REFERRAL PROCESS OF CAPITAL CASES RENDERS DEATH PENALTY ARBITRARY AND CAPRICIOUS)
VI. THE MILITARY JUDGE ERRED IN HIS DENIAL OF APPELLANT’S MOTION FOR APPROPRIATE RELIEF (ADMINISTRATION OF CAPITAL CASES RENDERS DEATH PENALTY ARBITRARY AND CAPRICIOUS)
VII. THE MILITARY JUDGE ERRED IN HIS DENIAL OF APPELLANT’S MOTION IN LIMINE TO EXCLUDE PRIOR ACTS OF UNCHARGED MISCONDUCT BY APPELLANT
VIII. THE MILITARY JUDGE ERRED BY GRANTING PART OF THE PROSECUTION’S MOTION IN LI-MINE TO EXCLUDE CROSS-EXAMINATION, TESTIMONY, OR EVIDENCE CONCERNING DENNIS SIMOY’S CRIMINAL TRIAL
IX. THE MILITARY JUDGE ERRED IN IMPROPERLY LIMITING APPELLANT IN HIS SUBMISSIONS IN MITIGATION AND EXTENUATION BY INTERPRETING ARTICLE 45 AS PROHIBITING APPELLANT’S PLEA OF GUILTY TO CHARGES I, III, & IV
X. APPELLANT IS ENTITLED TO REPRESENTATION BY COUNSEL QUALIFIED UNDER THE AMERICAN BAR ASSOCIATION GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF COUNSEL IN DEATH PENALTY CASES (1989) ON APPEAL AND TO UNINTERRUPTED CONTINUITY OF COUNSEL UNAFFECTED BY PEACETIME MILITARY PERSONNEL DECISIONS
*638XI. CHARGES II-IV ARE MULTIPLICIOUS FOR FINDINGS AND SENTENCING IN AS MUCH AS THEY WERE PART OF ONE CONTINUOUS COURSE OF CONDUCT PROHIBITED BY CHARGE II (FELONY MURDER)
XII. AIRMAN SIMOY DID NOT KNOWINGLY AND INTELLIGENTLY INVOKE HIS ARTICLE 38(b)(2) STATUTORY RIGHT TO CIVILIAN COUNSEL AND HIS ARTICLE 38(b)(3)(B) STATUTORY RIGHT TO MILITARY COUNSEL OF HIS OWN SELECTION WHERE THE MILITARY JUDGE MISLED APPELLANT BY STATING THAT HIS COUNSEL WERE “QUALIFIED LAWYERS” WHEN NONE OF THE COUNSEL HAD TRIED A CAPITAL CASE, RECEIVED ANY DEATH PENALTY CONTINUING LEGAL EDUCATION, OR PROPERLY PREPARED FOR THIS CAPITAL CASE
XIII. ARTICLE 18, U.C.M.J. AND R.C.M. 201(f)(1)(C), WHICH REQUIRE TRIAL BY MEMBERS IN A CAPITAL CASE, VIOLATE THE FIFTH AND EIGHTH AMENDMENT GUARANTEE OF DUE PROCESS AND A RELIABLE VERDICT
XIV. APPELLANT WAS DENIED HIS FIFTH AMENDMENT RIGHT TO A GRAND JURY PRESENTMENT OR INDICTMENT
XV. ARTICLE 25(e)(l)’S EXCLUSION FROM COURT-MARTIAL SERVICE OF ENLISTED MEMBERS OF THE SAME UNIT AS THE ACCUSED INJECTS AN IMPROPER CRITERION (ENLISTED STATUS) IN SELECTING THE MEMBERS POOL
XVI. COURT-MARTIAL PROCEDURES DENIED APPELLANT HIS ARTICLE III RIGHT TO A JURY TRIAL
XVII. THE CONVENING AUTHORITY DID NOT UNDERSTAND THE LAW AND HIS OPTIONS (INCLUDING DETAILING AN ALL-ENLISTED COURT AND RANDOM SELECTION OF MEMBERS FOR HIS FURTHER SCREENING) REGARDING DETAILING ENLISTED MEMBERS PURSUANT TO ARTICLE 25
XVIII. THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS DO NOT PERMIT, IN PEACETIME, A CONVENING AUTHORITY TO HAND-PICK MILITARY SUBORDINATES, WHOSE CAREERS HE CAN DIRECTLY AND IMMEDIATELY AFFECT AND CONTROL, AS MEMBERS TO DECIDE A CAPITAL CASE FOR OFFENSES THAT OCCUR ON A MILITARY BASE BUT WHERE THERE IS CONCURRENT JURISDICTION WITH FEDERAL AUTHORITY
XIX. COURT-MARTIAL PROCEDURES DENIED APPELLANT HIS SIXTH AMENDMENT RIGHT TO A JURY TRIAL AND AN IMPARTIAL CROSS-SECTION OF THE COMMUNITY
*639XX. THE GOVERNMENT MAY NOT MAKE A WITHER-SPOON CHALLENGE AFTER THE CONVENING AUTHORITY EXERCISES HIS ARTICLE 25 STATUTORY RESPONSIBILITY IN DETAILING MEMBERS
XXI. THE PRESIDENT EXCEEDED HIS ARTICLE 36 POWERS TO ESTABLISH PROCEDURES FOR COURTS-MARTIAL WHEN HE GRANTED THE TRIAL COUNSEL A PEREMPTORY CHALLENGE AND THEREBY THE POWER TO NULLIFY THE CONVENING AUTHORITY’S ARTICLE 25(d) STATUTORY AUTHORITY TO DETAIL MEMBERS OF THE COURT
XXII. THE PEREMPTORY CHALLENGE PROCEDURE IN THE MILITARY JUSTICE SYSTEM VIOLATES THE FIFTH AND EIGHTH AMENDMENTS 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, CONTRARY TO THE DICTATES OF MORGAN v. ILLINOIS, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), WHICH AUTHORIZED VOIR DIRE ON A POTENTIAL JUROR’S UNWILLINGNESS TO CONSIDER A LIFE SENTENCE
XXIII. TRIAL DEFENSE COUNSEL WERE INEFFECTIVE IN THEIR FAILURE TO OBJECT TO PROSECUTION EXHIBIT 20, A COLOR PHOTOGRAPH FROM BASIC TRAINING OF SGT LEVAY IN HIS SERVICE DRESS AND WHEEL CAP, WITH THE AMERICAN FLAG IN THE BACKGROUND, BECAUSE THE PHOTOGRAPH SERVED NO PROBATIVE PURPOSE WHATSOEVER, IMPER-MISSIBLY INFLAMED THE MEMBERS, AND IRREPARABLY PREJUDICED APPELLANT’S TRIAL, ESPECIALLY WITH REGARD TO SENTENCING, WHERE THE ADMISSION OF THE PHOTOGRAPH WORKED TO CAUSE THE COURT MEMBERS TO IMPOSE THE DEATH PENALTY IN VIOLATION OF THE EIGHTH AMENDMENT
XXIV. THE DESIGNATION OF THE SENIOR MEMBER AS THE PRESIDING OFFICER FOR DELIBERATIONS DENIED AIRMAN SIMOY DUE PROCESS OF LAW AND A FAIR AND IMPARTIAL MEMBERS’ CONSIDERATION OF THE EVIDENCE, BY ESTABLISHING THE SENIOR MEMBER’S SUPERIORITY IN AND CONTROL OF THE DELIBERATION PROCESS
XXV. MILITARY JUDGE FAILED TO PROPERLY INSTRUCT THE MEMBERS REGARDING THE LAW OF A CAPITAL CASE AND THE CAPITAL SENTENCING MECHANISM OF R.C.M. 1004 AND 1006, WHEN THE MILITARY JUDGE FAILED TO INFORM THE MEMBERS OF THESE MATTERS IN PRELIMINARY INSTRUCTIONS AND FIRST *640EXPLAINED THEM AFTER COUNSEL’S SENTENCING ARGUMENT
XXVI. THE MILITARY JUDGE’S FAILURE TO INSTRUCT THE MEMBERS REGARDING THE BURDEN OF PROOF ON MITIGATING FACTORS WAS INADEQUATE GUIDANCE TO THEM IN THEIR DELIBERATIONS TO ENSURE A RELIABLE SENTENCING VERDICT
XXVII. TRIAL COUNSEL’S SENTENCING ARGUMENT WAS UNDULY PREJUDICIAL
XXVIII. THE DEATH PENALTY SENTENCING STANDARD REQUIRING AGGRAVATING FACTORS TO “SUBSTANTIALLY OUTWEIGH” EXTENUATING AND MITIGATING CIRCUMSTANCES IS UNCONSTITUTIONAL; THE ONLY ACCEPTABLE STANDARD MUST BE “BEYOND A REASONABLE DOUBT”
XXIX. THE MILITARY JUDGE COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE MEMBERS ON SENTENCING AS TO THE MEANING OF THE TERM “SUBSTANTIALLY OUTWEIGHED,” WITH REGARD TO THE RELATIONSHIP OF MITIGATING CIRCUMSTANCES TO AGGRAVATING FACTORS
XXX. FOR ASSURANCE OF MEANINGFUL REVIEW, ANY DEATH PENALTY SENTENCING WORKSHEET MUST STATE EXPLICITLY THAT ALL MEMBERS CONCUR THAT ANY EXTENUATING OR MITIGATING CIRCUMSTANCES ARE SUBSTANTIALLY OUTWEIGHED BY THE AGGRAVATING FACTORS FOUND BY THE MEMBERS
XXXI. THE MILITARY JUDGE’S INSTRUCTION THAT “YOU MAY NOT ADJUDGE A SENTENCE OF DEATH UNLESS YOU FIND THAT ANY AND ALL EXTENUATING OR MITIGATING CIRCUMSTANCES ARE SUBSTANTIALLY OUTWEIGHED BY ANY AGGRAVATING FACTORS” DID NOT SUFFICIENTLY INFORM THE MEMBERS THAT THIS FINDING MUST BE UNANIMOUS
XXXII. THE MILITARY JUDGE ERRED IN FAILING TO EXPLICITLY INSTRUCT THAT EVEN IF THE MEMBERS UNANIMOUSLY FOUND ONE OR MORE AGGRAVATING FACTORS AND EVEN IF THE MEMBERS UNANIMOUSLY DETERMINED THAT THE EXTENUATING OR MITIGATING CIRCUMSTANCES ARE SUBSTANTIALLY OUTWEIGHED BY THE AGGRAVATING FACTORS, EACH MEMBER STILL HAD THE ABSOLUTE DISCRETION TO DECLINE TO IMPOSE THE DEATH SENTENCE
XXXIII. THE MILITARY JUDGE FAILED TO SPECIFICALLY ADVISE THE MEMBERS THAT ONLY A SINGLE VOTE WAS NEEDED TO DEFEAT THE DEATH SENTENCE
*641XXXIV. R.C.M. 1004 IS UNCONSTITUTIONAL UNDER THE FIFTH AND EIGHTH AMENDMENTS AND VIOLATES ARTICLE 55, U.C.M.J., BY NOT REQUIRING THAT SENTENCING PROCEDURES BE MORE DETAILED AND SPECIFIC TO ALLOW A RATIONAL UNDERSTANDING BY THE MILITARY JUDGE, CONVENING AUTHORITY, AND APPELLATE AUTHORITIES AS TO THE STANDARDS USED BY THE PANEL
XXXV. THE COURT OF CRIMINAL APPEALS HAS A SUPERVISORY ROLE IN ENSURING THAT COUNSEL ARE QUALIFIED IN TRAINING AND EXPERIENCE TO DEFEND A CAPITAL CASE
XXXVI. A FACT-FINDING COURT OF CRIMINAL APPEALS MUST UNANIMOUSLY AGREE ON BOTH FINDINGS OF GUILT AND THE SENTENCE IN A CAPITAL CASE AND MUST APPLY THE POLICY OF IN FAVO-REM VITAE
XXXVII. THE MILITARY JUDGE COMMITTED PLAIN ERROR BY ERRONEOUSLY INSTRUCTING THE MEMBERS THAT THEY WERE TO VOTE ON ANY SENTENCE PROPOSED WHICH HAD DEATH AS A PROPOSED SENTENCE BEFORE ANY PROPOSALS WHICH INCLUDED LIFE AS A PROPOSED SENTENCE, IN VIOLATION OF AIRMAN SIMOY’S DUE PROCESS RIGHTS
XXXVIII. R.C.M. 1004(c)(4)’S USE AS AN AGGRAVATOR WAS IMPROPERLY AND UNCONSTITUTIONALLY ALLOWED
XXXIX. R.C.M. 1004(c)(8)’S USE AS AN AGGRAVATOR WAS ILLEGAL, UNCONSTITUTIONAL, AND MATERIALLY PREJUDICIAL
XL. THE JUDGE ERRED IN HIS INSTRUCTIONS UNDER R.C.M. 1004 ON WEIGHING THE MITIGATING AND AGGRAVATING CIRCUMSTANCES, AND FAILED IN HIS SUA SPONTE DUTY TO CORRECTLY GIVE INSTRUCTIONS, THEREBY VIOLATING AIRMAN SIMOY’S RIGHTS UNDER THE FIFTH AND EIGHTH AMENDMENTS, AND ARTICLE 55, U.C.M.J.
XLI. THE MILITARY JUDGE ERRED IN HIS DENIAL OF APPELLANT’S MOTION TO SUPPRESS SOME STATEMENTS MADE ON 16 JANUARY 1992 AS VIO-LATIVE OF MRE 305, THE FIFTH AND SIXTH AMENDMENTS TO THE U.S. CONSTITUTION
XLII. THE CONVENING AUTHORITY’S APPROVAL OF FORFEITURES OF PAY AND ALLOWANCES IN HIS ACTION OF 22 MARCH 1993 WAS A NULLITY
XLIII. THE MILITARY JUDGE ERRED BY ADMITTING THE STATEMENTS OF NON-TESTIFYING CO-CONSPIRATORS
XLIV. THE CONVENING AUTHORITY WAS DISQUALIFIED FROM ANY POST-TRIAL DUTIES DUE TO HIS VICE COMMANDER’S AND HIS WIFE’S PERSONAL INVOLVEMENT WITH SGT LEVAYS FAMILY
*642XLV. THE MILITARY JUDGE ERRED BY ADMITTING TWO DEATH CERTIFICATES OF SERGEANT LE-VAY
XLVI. THE MILITARY JUDGE ERRED BY REFUSING TO ADMIT DEFENSE EXHIBIT B, AN OFFICIAL UNITED STATES ARMY REGULATION ABOUT EXECUTIONS AT THE U.S. DISCIPLINARY BARRACKS
XLVII. THE MILITARY JUDGE ERRED BY REFUSING TO GIVE DEFENSE REQUESTED MITIGATION INSTRUCTIONS AND MATERIALLY PREJUDICED AIRMAN SIMOY’S RIGHTS BY ADVISING THE MEMBERS THAT AIRMAN SI-MOY HAD AN “APPARENT DESIRE TO ACCEPT RESPONSIBILITY”
XLVIII. THE SJA’S ADVICE IN HIS RECOMMENDATION TO THE CONVENING AUTHORITY WAS PREJUDI-CIALLY DEFICIENT IN THAT HE FAILED TO ADDRESS THE ISSUE OF SENTENCE COMPARISON
XLIX. THE NUMEROUS ERRORS WHICH OCCURRED DURING AIRMAN SIMOYS COURT-MARTIAL CANNOT BE FOUND HARMLESS BEYOND A REASONABLE DOUBT WHEN CONSIDERED COLLECTIVELY
L. THE DEATH SENTENCE IS NEITHER APPROPRIATE NOR PROPORTIONATE FOR AIRMAN SI-MOY’S CRIMES OR HIS PERSONAL CULPABILITY
LI. CLOVING ISSUE 1) WHETHER CONGRESS’ LEGISLATIVE RESPONSIBILITY TO ESTABLISH THE AGGRAVATING CIRCUMSTANCES TO BE USED IN MILITARY CAPITAL CASES IS ONE WHICH CAN BE DELEGATED TO THE PRESIDENT CONSISTENT WITH THE SEPARATION OF GOVERNMENTAL POWERS REQUIRED BY ARTICLE I, SECTIONS 1 AND 8 AND THE EIGHTH AMENDMENT OF THE UNITED STATES CONSTITUTION
LII. CLOVING ISSUE 2). WHETHER CONGRESS HAS IMPLICITLY DELEGATED TO THE PRESIDENT ITS LEGISLATIVE AUTHORITY TO ESTABLISH AGGRAVATING CIRCUMSTANCES TO BE USED IN MILITARY CAPITAL CASES
LUI. CLOVING ISSUE 3). IF THERE HAS BEEN SUCH AN IMPLICIT DELEGATION OF AUTHORITY TO THE PRESIDENT, WHETHER CONGRESS HAS ESTABLISHED CONSTITUTIONALLY ADEQUATE STANDARDS TO GUIDE THE PRESIDENT’S EXERCISE OF LEGISLATIVE AUTHORITY
. The plan was for Dennis Simoy to knock the escort out by hitting him in the head but not for him to "bludgeon” the guard to death after the initial blow.
. The last three Air Force executions occurred in the early 1950s.
. The law is clear that differences of opinion among the defense team concerning tactical decisions does not support a claim of ineffectiveness of counsel.
. The affidavits establish that the two defense counsel played subordinate roles to the civilian defense counsel, particularly in the decisions regarding mitigation evidence.
. A portion of Captain Bemis’ affidavit reads as follows: "Our plan was to extenuate the crime, but very little effort, over the six or seven months we had, went into gathering or preparing any mitigating evidence which would humanize Airman Simoy or counter the prosecution’s picture of him.”
. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987).
. Despite the Supreme Court holding that the death penally would be permissible, upon remand, both of the Tison sentences to death were commuted to life.