(dissenting):
I agree with the majority that the trial court erred in its instructions by doubling the aggravating factors,1 however, I disagree that the error may be or should be remedied by harmless-error analysis. I would remedy this error by commuting appellant’s death sentence to imprisonment for life.
Recently, in Sullivan v. Louisiana, — U.S. —, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), the United States Supreme Court held that certain trial errors of constitutional proportions defy the application of harmless-error analysis by appellate courts. Specifically, the Court held that harmless-error analysis could not be applied to an erroneous instruction on the definition of “reasonable doubt.” In doing so, the Court explained that harmless-error analysis of a trial error of constitutional proportions is unavailable when the error vitiates the jury’s verdict or creates a structural defect in the constitution of the trial mechanism. In order for a defect to constitute a “structural error” for which harmless-error analysis is unavailable, (1) the error must be a deprivation of a basic protection, that is, a constitutional guarantee whose precise effects are unmeasurable, but without which a criminal trial cannot reliably serve its function, and (2) the deprivation must have consequences that are necessarily unquantifiable and indeterminate. — U.S. —, 113 S.Ct. at 2081.
It is axiomatic that the mechanism for assessing the death penalty embodies basic constitutional protections and that an error in that mechanism is of constitutional proportions. Cf., United States v. Matthews, 16 M.J. 354 (1983). An instruction which misstates the mechanism by doubling the factors upon which a jury may base its decision deprives the accused of that basic protection with unquantifiable and indeterminate consequences. Hence, the harmless-error analysis upon which the majority embarks is now constitutionally unavailable.
Assuming arguendo, Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), which authorized reweighing or harmless-error analysis by state appellate courts in capital sentencing cases,2 survived Sullivan, Clemons was not “intended to convey the impression that ... appellate courts are required to or necessarily should engage in reweighing or harmless-error analysis when errors have occurred in a capital sentencing proceeding.” 494 U.S. at 754, 110 S.Ct. at 1451. Hence, even if we may employ a harmless-error analysis, we must answer the question whether we should.
There is no legislative guidance on the capital sentencing mechanism for trials by court-martial.3 Nonetheless, Congress has *545not left us entirely adrift. Article 55, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 855, prohibits the imposition of cruel or unusual punishments, and “in enacting Article 55, Congress ‘intended to grant protection covering even wider limits’ than ‘that afforded by the Eighth Amendment.’ ” Matthews, 16 M.J. at 368 (quoting United States v. Wappler, 2 U.S.C.M.A. 393, 396, 9 C.M.R. 23, 26, 1953 WL 2598 (1953)). Given the context of this capital sentencing process, the precision required as to the “weighing” scheme employed,4 and the statutory guidance afforded us by Congress, I am of the view we are obliged to resolve errors in the courts-martial capital sentencing process in favorem vitae and without resort to harmless-error analysis. While I do not suggest all trial errors in capital cases are beyond harmless-error analysis,51 do suggest that those constitutional errors infecting the most critical part of the procedure, instructions on the capital sentencing mechanism, like the instruction defining “reasonable doubt,” are.
The appellant was entitled to have his sentence decided by a unanimous panel of officer and enlisted personnel and to have the panel correctly instructed on those factors upon which they would determine whether he should live or die. Appellant’s panel was misinformed. This Court, whose composition is entirely different, now engages in “pure speculation” when it presumes to say what the members would have done upon correct instructions. See Sullivan, — U.S. at —, 113 S.Ct. at 2081. I prefer not to engage in such speculation. More importantly, in my view, the Constitution and the Code preclude it.
APPENDIX
Assignments of Error
I. APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL DEFENSE COUNSEL.
II. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL FROM HIS APPELLATE DEFENSE COUNSEL.
III. THE LACK OF AN INDEPENDENT DEFENSE COMMAND IN THE NAVAL JUSTICE SYSTEM CONSTITUTED IMPROPER COMMAND INFLUENCE IN THAT IT DEPRIVED APPELLANT OF DUE PROCESS OF LAW AT TRIAL AND ON APPEAL.
IV. THE DETAILING OF LCDR HOLT AS APPELLATE COUNSEL IN RESPONSE TO APPELLATE DEFENSE COUNSEL’S REQUEST THAT COUNSEL QUALIFIED UNDER THE ABA GUIDELINES BE DETAILED, ASSIGNED, OR HIRED TO ASSIST THE MILITARY APPELLATE DEFENSE COUNSEL ALREADY ASSIGNED TO REPRESENT [APPELLANT] WAS IMPROPER COMMAND INFLUENCE.
V. SPECIFICATION 2 OF CHARGE II FAILS TO STATE AN OFFENSE BECAUSE IT DOES NOT ALLEGE A LEGALLY-CORRECT PERSON AND BECAUSE IT FAILS TO STATE THE VALUE OF PROPERTY IN THAT IT DOES NOT ALLEGE THE VALUE OF ONE GREEN 1983 RENAULT ALLIANCE.
VI. SPECIFICATION 3 OF CHARGE II FAILS TO STATE AN OFFENSE BECAUSE IT DOES NOT ALLEGE A LEGALLY-CORRECT PERSON AND BECAUSE IT FAILS TO STATE THE VALUE OF PROPERTY IN THAT IT DOES NOT ALLEGE THE VALUE OF ONE RED 1985 FORD TEMPO.
VII. CHARGES II-IV AND ADDITIONAL CHARGES I-V ARE MULTIPLI-CIOUS FOR FINDINGS INASMUCH AS THEY WERE PART OF ONE CONTINUOUS COURSE OF CONDUCT PROHIBITED BY CHARGE I (ONE STATUTORY PROVISION OF PREMEDITATED MURDER).
VIII. THE CONVENING AUTHORITY ABUSED HIS DISCRETION IN REFER*546RING BOTH SERIOUS AND MINOR OFFENSES TO THE SAME COURT.
IX. APPELLANT DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE 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 MILITARY COUNSEL FAILED TO ADVISE APPELLANT OF HIS PROFESSIONAL DEFICIENCIES WHICH INCLUDED NO CAPITAL EXPERIENCE, NO CAPITAL TRAINING, AND EXPERIENCE IN SOPHISTICATED LITIGATION, AND FAILED TO ADVISE CLIENT THAT HE HAD DETAILED HIMSELF TO THE CASE.
X. APPELLANT DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE 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 MILITARY JUDGE MISLED APPELLANT BY STATING THAT HIS COUNSEL WERE “QUALIFIED LAWYERS” AND THAT HIS LEAD COUNSEL WAS A “LAWYER OF CONSIDERABLE EXPERIENCE,” WHEN NEITHER COUNSEL HAD TRIED A CAPITAL CASE, TRIED A MURDER CASE, OR HAD RECEIVED ANY DEATH PENALTY CONTINUING LEGAL EDUCATION.
XI. THE MILITARY JUDGE ERRED IN FAILING TO INQUIRE AS TO THE IDENTITY OF THE AUTHORITY WHO DETAILED MILITARY DEFENSE COUNSEL AND IN FAILING TO ENSURE THAT COUNSEL WERE QUALIFIED IN TRAINING, EXPERIENCE, AND EDUCATION TO DEFEND A CAPITAL CASE.
XII. ARTICLE 25(C)(1)’S EXCLUSION FROM COURT-MARTIAL SERVICE OF ENLISTED MEMBERS OF THE SAME UNIT OF THE ACCUSED IS A RACIALLY DISCRIMINATORY RULE TO PRECLUDE BLACK ENLISTED MEN FROM HAVING BLACK PEERS SIT ON THE COURT-MARTIAL.
XIII. ARTICLE 18, U.C.M.J. AND R.C.M. 201(F)(1)(C), WHICH REQUIRE TRIAL BY MEMBERS IN A CAPITAL CASE, VIOLATES 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(C)(1)’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. THE UNITED STATES CONSTITUTION’S APPOINTMENTS CLAUSE PROHIBITS THE JUDGE ADVOCATE GENERAL FROM APPOINTING GENERAL COURT-MARTIAL JUDGES.
XVII. THE ACCUSED WAS DENIED A FAIR AND IMPARTIAL HEARING BECAUSE OF ADVERSE PRETRIAL PUBLICITY AND RACIAL DISCRIMINATION AGAINST THE APPELLANT.
XVIII. COURT-MARTIAL PROCEDURES DENIED APPELLANT HIS ARTICLE III RIGHT TO A JURY TRIAL.
XIX. THE CONVENING AUTHORITY DID NOT UNDERSTAND THE LAW AND HIS OPTIONS (INCLUDING DETAILING AN ALU-ENLISTED COURT AND RANDOM SELECTION OF MEMBERS FOR HIS FURTHER SCREENING) REGARDING DETAILING ENLISTED MEMBER PURSUANT TO ARTICLE 25.
XX. 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 CONCUR*547RENT JURISDICTION WITH A STATE AUTHORITY.
XXI. COURT-MARTIAL PROCEDURES DENIED APPELLANT OF HIS SIXTH AMENDMENT RIGHT TO JURY TRIAL AND AN IMPARTIAL CROSS-SECTION OF THE COMMUNITY.
XXII. APPELLANT WAS DENIED HIS FIFTH AMENDMENT DUE PROCESS OF LAW BY COMMAND ACTION IN DETAILING 18 MALE PANEL MEMBERS, INTENTIONALLY DISCRIMINATING AGAINST WOMEN, AND EXCLUDING THEM FROM THE COURT.
XXIII. THE GOVERNMENT MAY NOT MAKE A WITHERSPOON CHALLENGE AFTER THE CONVENING AUTHORITY EXERCISES HIS ARTICLE 25 STATUTORY RESPONSIBILITY AND DETAILS A MEMBER.
XXIV. 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.
XXV. THE PEREMPTORY CHALLENGE PROCEDURE IN THE MILITARY JUSTICE SYSTEM CONSTITUTES AN UNCONSTITUTIONAL VIOLATION OF THE FIFTH AND EIGHT 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.
XXVI. PROSECUTION EXHIBIT 1, A COLOR WEDDING PHOTOGRAPH OF THE VICTIMS, WAS INADMISSIBLE, IMPERMISSIBLY INFLAMED THE MEMBERS, AND PREJUDICED APPELLANT’S TRIAL.
XXVII. PROSECUTION EXHIBITS 3, 4, AND 13, PHOTOGRAPHS OF THE VICTIMS, WERE INADMISSIBLE, IMPERMISSIBLY INFLAMED THE MEMBERS, AND PREJUDICED APPELLANT’S TRIAL.
XXVIII. THE WARRANTLESS SEARCH AND SEIZURE OF APPELLANT’S CLOTHING BY THE ONSLOW COUNTY JAILOR WAS AN UNREASONABLE SEARCH AND SEIZURE IN VIOLATION OF THE FOURTH AMENDMENT.
XXIX. THE CONFESSIONS OF APPELLANT ARE INADMISSIBLE BECAUSE HE WAS NOT ADVISED THAT HE WAS SUSPECTED OF MURDER OR ANY PARTICULAR OFFENSE WHEN HE WAS INFORMED OF HIS MIRANDA RIGHTS.
XXX. APPELLANT’S CONFESSIONS WERE INVOLUNTARY AND INADMISSIBLE WHERE HE WAS NOT GIVEN HIS MIRANDA RIGHTS PRIOR TO INTERROGATION (ARTICLE 32 RECORD AT 65, AND 78-80, 1.0. EXHIBIT XXIII).
XXXI. APPELLANT’S CONFESSIONS WERE INADMISSIBLE WHERE IMPROPER CLEANSING WARNINGS WERE GIVEN ALMOST NINETY MINUTES AFTER APPELLANT’S INTERROGATION BEGAN.
XXXII. NORTH CAROLINA OFFICERS WERE ACTING FOR THE MILITARY DURING THEIR INTERROGATION AND WERE THUS REQUIRED TO ADVISE APPELLANT OF HIS ARTICLE 31 RIGHTS, WHICH THEY FAILED TO DO.
XXXIII. THERE IS INSUFFICIENT EVIDENCE THAT JOAN LOTZ WAS ALIVE AT THE TIME OF THE ALLEGED WRONGFUL TOUCHING TO ESTABLISH GUILT OF THE SEXUAL ASSAULT UNDER ADDITIONAL CHARGE II.
XXXIV. THE GOVERNMENT FAILED TO PROVE, BEYOND A REASONABLE DOUBT, THAT APPELLANT KILLED JOAN LOTZ WITH PREMEDITATION.
XXXV. THERE IS INSUFFICIENT EVIDENCE TO ESTABLISH LARCENY IN ADDITIONAL CHARGE I.
XXXVI. THE OPINION OF THE COURT OF MILITARY REVIEW IS INADE*548QUATE AS A MATTER OF LAW WHERE THE OPINION FAILS TO ADDRESS CONSIDERATION OF THE DEFENSE OF DIMINISHED CAPACITY ESTABLISHED IN ELLIS V. JACOB, 26 M.J. 90 (C.M.A.1988).
XXXVII. THE DESIGNATION OF THE SENIOR MEMBER AS THE PRESIDING OFFICER FOR DELIBERATIONS DENIED THE APPELLANT 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.
XXXVIII. THE 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 JUDGE FAILED TO INFORM THE MEMBERS OF THESE MATTERS IN PRELIMINARY INSTRUCTIONS AND FIRST EXPLAINED THEM AFTER COUNSEL’S SENTENCING ARGUMENT.
XXXIX. THE MILITARY JUDGE ERRED IN FAILING TO SUA SPONTE INSTRUCT THE MEMBERS ON VOLUNTARY MANSLAUGHTER AND ERRONEOUSLY LIMITED THE MEMBERS’ CONSIDERATION TO ONLY PREMEDITATED AND UNPREMEDITATED MURDER WITH REGARD TO THE KILLING OF JOAN LOTZ.
XL. A MANSLAUGHTER INSTRUCTION MUST INCORPORATE THE SUBJECTIVE BELIEF RATHER THAN THE OBJECTIVE BELIEF OF A REASONABLE PERSON.
XLI. THE MILITARY JUDGE’S INSTRUCTION ON BURGLARY WAS INCOMPLETE AND PREJUDICIAL TO APPELLANT WHERE THE INSTRUCTION FAILED TO INFORM MEMBERS THAT THE BURGLARY OFFENSE COULD BE SUPPORTED BY THE FELONY OF MANSLAUGHTER.
XLII. THE MILITARY JUDGE ERRED BY FAILING TO PROVIDE A SUA SPONTE INSTRUCTION THAT VOLUNTARY INTOXICATION IS A DEFENSE TO THE SPECIFIC INTENT ELEMENT OF UNPREMEDITATED MURDER.
XLIII. THE MILITARY JUDGE’S INSTRUCTION ON PREMEDITATED MURDER AS “MURDER COMMITTED AFTER FORMATION OF A SPECIFIC INTENT TO KILL SOMEONE AND CONSIDERATION OF THE ACTION INTENDED” DID NOT SUFFICIENTLY ADVISE THE MEMBERS OF THE MALICE ASPECT OF PREMEDITATION AND DID NOT PERMIT AN INFORMED MEMBER TO EVALUATE THE APPELLANT’S MENS REA AT THE TIME OF THE OFFENSES.
XLIV. THE MILITARY JUDGE’S INSTRUCTIONS RESTRICTED FREE CONSIDERATION OF THE EVIDENCE BY REQUIRING THE MEMBERS TO VOTE ON THE MOST SERIOUS OFFENSE FIRST.
XLV. THE MILITARY JUDGE’S [sic] ERRED IN FAILING TO GIVE AN INSTRUCTION ON SELF-DEFENSE REGARDING APPELLANT’S KILLING OF MRS. LOTZ.
XLVI. IN A CAPITAL CASE WHERE THE APPELLANT’S NOT GUILTY PLEA WAS MANDATORY BY STATUTE, THE MILITARY JUDGE HAD A SUA SPONTE OBLIGATION TO INQUIRE WHETHER THE APPELLANT UNDERSTOOD UNEQUIVOCALLY THE CONSEQUENCES OF HIS TESTIMONY WHERE HE TESTIFIED IN RESPONSE TO HIS OWN COUNSEL THAT HE “DECIDED TO KILL [LT LOTZ].”
XLVII. THE MILITARY JUDGE ERRED IN FAILING TO GIVE A REQUESTED INSTRUCTION REGARDING MITIGATING FACTORS IN GENERAL AND IN FAILING TO EVEN MENTION ALCOHOL INTOXICATION IN PARTICULAR AS A MITIGATING FACTOR, TO THE PREJUDICE OF THE APPELLANT.
XLVIII. THE MILITARY JUDGE’S FAILURE TO INSTRUCT THE . MEM*549BERS REGARDING THE BURDEN OF PROOF ON MITIGATING FACTORS WAS INADEQUATE GUIDANCE TO THEM IN THEIR DELIBERATIONS TO ENSURE A RELIABLE SENTENCING VERDICT.
IL. TRIAL COUNSEL INACCURATELY PORTRAYED THE INDECENT ASSAULT CHARGE (ADDITIONAL CHARGE II) AS AN INDEPENDENT CRIME AND UNLAWFULLY INFLAMED THE PANEL.
L. TRIAL COUNSEL ENGAGED IN UNLAWFULLY INFLAMMATORY ARGUMENT BY DENIGRATING THE NATURE OF THE RACIAL ISSUES IN THIS CASE, ARGUING COMMAND POLICY, AND RELIGIOUS REFERENCES.
LI. ARTICLE 118(1)’S MANDATORY MINIMUM LIFE SENTENCE IS UNCONSTITUTIONAL AS CRUEL AND UNUSUAL PUNISHMENT.
LII. WHERE THE FELONY IS BURGLARY WITH INTENT TO MURDER, THE USE OF FELONY-MURDER AS AN AGGRAVATING FACTOR UNCONSTITUTIONALLY NARROWS THE CLASS OF MURDERS SUBJECT TO THE DEATH PENALTY.
LIII. WHERE THE BURGLARY WAS COMPLETE PRIOR TO THE COMMISSION OF THE HOMICIDES, THERE WAS NOT A MURDER WHILE THE ACCUSED WAS “ENGAGED IN THE COMMISSION OF A BURGLARY.”
LIV. THE REQUIREMENTS OF R.C.M. 1004(C)(7)(B) WERE NOT SATISFIED INASMUCH AS THE ABSENCE OF A BREAKING NEGATED ANY BURGLARY.
LV. 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.”
LVI. THE MILITARY JUDGE COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE MEMBERS ON SENTENCING AS TO THE TERM “SUBSTANTIALLY OUTWEIGHED” WITH REGARD TO THE RELATIONSHIP OF MITIGATING CIRCUMSTANCES TO AGGRAVATING FACTORS.
LVII. THE FINDINGS MUST STATE EXPLICITLY THAT ALL MEMBERS CONCUR THAT ANY EXTENUATING OR MITIGATING CIRCUMSTANCES ARE SUBSTANTIALLY OUTWEIGHED BY THE AGGRAVATING FACTORS FOUND BY THE MEMBERS.
LVIII. 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.
LIX. 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 DETERMINE 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.
LX. THERE WAS AN UNLAWFUL DOUBLE COUNTING OF A SINGLE AGGRAVATING CIRCUMSTANCE (A DOUBLE MURDER), WHERE THE MURDER OF JAMES LOTZ WAS ALLEGED AS AN AGGRAVATING FACTOR OF THE MURDER OF JOAN LOTZ AND THE MURDER OF JOAN LOTZ WAS ALLEGED AS AN AGGRAVATING FACTOR OF THE MURDER OF JAMES LOTZ.
*550LXI. APPELLANT WAS PREJUDICED BY THE “DOUBLING UP” OF AGGRAVATING FACTORS.
LXII. THE TRIAL COUNSEL’S FAILURE TO GIVE THE DEFENSE TIMELY NOTICE OF THEIR INTENT TO ALr LEGE EACH MURDER AS AN AGGRAVATING FACTOR FOR THE OTHER MURDER MISLED AND PREJUDICED THE DEFENSE.
LXIII. THE GOVERNMENT FAILED TO PROVIDE THE DEFENSE NOTICE OF AN AGGRAVATING FACTOR AS REQUIRED BY R.C.M. 1004(B)(1) WHEN THE TRIAL COUNSEL IMPLICITLY PRESENTED TO THE MEMBERS THE R.C.M. 1004(C)(7)(G) AGGRAVATING FACTOR THAT LT LOTZ WAS A COMMISSIONED OFFICER MURDERED IN THE EXECUTION OF HIS OFFICE AND WHEN THE TRIAL COUNSEL EXPLICITLY ARGUED THAT EVERY MARINE OFFICER IS TAUGHT THAT HE SHOULD TAKE CARE OF HIS TROOPS AND THAT LT LOTZ DIED IN THE EXECUTION OF THAT DUTY.
LXIV. THE GOVERNMENT FAILED TO SERVE DEFENSE COUNSEL ON 9 JULY 1987 WITH NOTICE OF THE AGGRAVATING FACTORS AND LATER CHANGED THOSE AGGRAVATING FACTORS DURING TRIAL, PROVIDING DEFENSE WITH INSUFFICIENT TIME TO PREPARE TO CHALLENGE THE AGGRAVATING FACTORS.
LXV. DUE PROCESS IN CAPITAL CASES REQUIRES TRIAL DEFENSE COUNSEL TO FILE A SEALED STATEMENT ATTACHED TO THE RECORD WHEN COUNSEL INTENTIONALLY DECIDES NOT TO OFFER SPECIFIC SIGNIFICANT MATTERS IN MITIGATION DETAILING THE REASONS FOR THE DECISION AND THE CLIENT’S EXPRESS CONSENT TO THE OMISSION OF THESE MATERIALS.
LXVI. 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 AND CONVENING AUTHORITY AS TO THE STANDARDS USED BY THE SENTENCING AUTHORITY.
LXVII. R.C.M. 1004 DOES NOT INCORPORATE THE PRINCIPLES OF LAW APPLIED IN FEDERAL CRIMINAL CASES REFLECTING THE POLICY EXPRESSED BY CONGRESS IN VARIOUS STATUTES AND GENERALLY CONFORMING WITH THE MODEL PENAL CODE AND POLICIES EXPRESSED IN THE STATUTES OF MANY DEATH PENALTY STATES TO PROTECT THE DEFENDANT AND TO ENSURE A RELIABLE VERDICT AND APPROPRIATE SENTENCE.
LXVIII. THE CONVENING AUTHORITY’S ACTION WAS IMPROPER INASMUCH AS THE STAFF JUDGE ADVOCATE DID NOT PROPERLY COMMENT ON THE ACCUSED’S SANITY AND “SUICIDAL” STATE RAISED BY MRS. CURTIS’ LETTER AND HER OFFER TO SUBMIT PSYCHIATRIC PAPERS AND ON THE DEFENSE COUNSEL’S CLEMENCY PETITION THAT ADDRESSED RACIAL HARASSMENT, APPELLANT’S INTOXICATION, AND EXEMPLARY LAW-ABIDING LIFE.
LXIX. ARTICLE 142(B)(2)’S LIMITATION OF COURT OF MILITARY APPEALS JUDGES TO TERMS OF OFFICE OF FIFTEEN YEARS VIOLATES ARTICLE III, SECTION 1, U.S. CONSTITUTION, WHICH GUARANTEES LIFE TERM OF OFFICE TO JUDGES OF INFERIOR COURTS AS THE CONGRESS MAY ESTABLISH.
LXX. THE FAILURE TO GUARANTEE THE MILITARY JUDGES AND JUDGES OF THE COURT OF MILITARY REVIEW A FIXED TERM OF OFFICE DENIED APPELLANT DUE PROCESS.
LXXI. THE COURT OF MILITARY REVIEW ERRED IN FAILING TO INQUIRE AS TO THE IDENTITY AND PRACTICE OF THE AUTHORITY WHO DETAILED *551APPELLATE DEFENSE COUNSEL AND IN FAILING TO ENSURE THAT COUNSEL WERE QUALIFIED IN TRAINING, EXPERIENCE, AND EDUCATION TO DEFEND A CAPITAL CASE.
LXXII. APPELLANT WAS DENIED DUE PROCESS BY THE PURPOSEFUL OMISSION OF BLACK OFFICERS FROM SERVING AS JUDGES ON THE COURT OF MILITARY REVIEW DURING THE PERIOD OF APPELLANT’S INITIAL REVIEW.
LXXIII. THE FACT-FINDING COURT OF MILITARY REVIEW MUST UNANIMOUSLY AGREE ON BOTH FINDINGS OF GUILT AND THE SENTENCE IN A CAPITAL CASE.
LXXIV. THE UNITED STATES CONSTITUTION’S APPOINTMENTS CLAUSE PROHIBITS THE JUDGE ADVOCATE GENERAL FROM APPOINTING THIS COURT’S JUDGES.
LXXV. 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.
LXXVI. THE DEATH SENTENCE AWARDED IN THIS CASE IS DISPROPORTIONATE TO THE SENTENCES AWARDED IN OTHER DOUBLE MURDER CASES, AND DISPROPORTIONATE TO OTHER DEATH PENALTY CASES.
LXXVII. THE DEATH SENTENCE IS NOT AN APPROPRIATE SENTENCE IN THIS CASE.
. It has not been argued that the first aggravating factor trebled the count under the circumstances of this case.
. See also Sochor v. Florida, — U.S. —, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992).
. The capital sentencing scheme adopted by the President for courts-martial is in the nature of a "weighing" scheme. See generally Stringer v. Black, — U.S. —, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). Before the death penalty may be awarded by the members, they must unanimously find beyond a reasonable doubt that one or more specific aggravating factors exist, and having so found, they must then unanimously find that any extenuating or mitigating circumstances are substantially outweighed by any aggravating circumstances, including the specific aggravating factors. Rule for Courts-Martial (R.C.M.) 1004, Manual for Courts-Martial, United States, 1984. Weighing schemes, as distinguished from non-weighing schemes, require that aggravating factors be defined with some degree of precision. Stringer v. Black, — U.S. at —, 112 S.Ct. at 1136.
. Note 3, supra.
. See Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988).