Thursday, November 20, 2008

Army Sets Execution Date for Gray

The Army Times is reporting here, and others reporting elsewhere, that the Army set December 10 as the scheduled execution date for Pvt. Gray. The execution is apparently being scheduled for the US BOP chamber at Terre Haute, IN, vice the USDB chamber.

As CAAFlog noted for the Army Times, Gray still has a federal habeas corpus petition to file. I wonder if the standard of review dispute featured in the U.S. ex rel. New v. Gates Solicitor General's brief, highlighting how wrong the 10th Cir standard was, had anything to do with the move? See CAAFlog coverage here. Though, I must confess, I have no idea what the 7th Cir. military habeas standard is and no 7th Cir. case is cited in SG's brief. Is Gray still in Kansas?
Posted by Mike "No Man" Navarre at 9:24 PM

9 comments:

Anonymous said...

If he can delay another month, I do not think the new administration will want to bring the death penalty back to the military after almost 50 years.

Thu Nov 20, 10:53:00 PM EST
Anonymous said...

My guess is that they will keep him in KS until the last possible minute.

Fri Nov 21, 08:22:00 AM EST
Anonymous said...

If I were his attorney... I'd wait until the second he touched down on ConAir in Indiana, and then file the petition.

In fact, I'll bet that is what they are doing... since I haven't seen anything else filed on his behalf yet on ECF in the U.S. District Court for the District of Kansas.

Fri Nov 21, 09:11:00 AM EST
Anonymous said...

delay delay delay, standard defense tactic. Shameful.

Fri Nov 21, 02:03:00 PM EST
Anonymous said...

If my memory has not failed me, Gray is black.
That is a whole new factor with a liberal black prez coming in.
Will he let the guy down to life for liberal reasons; let the guy down to life for black reasons; or let the guy get the needle to avoid an accusation of the reason being black?
If I were in Obama's shoes and needed to sign a death order on Gray, I would form a committee of liberal not-black retired generals and let them advise me-- with a copy going straight to the press room.

Fri Nov 21, 02:32:00 PM EST
Anonymous said...

AR 190-55, chapter 2-1, has the prisoner being discharged prior to execution. Doesn't that remove in personam jurisdiction from the Army to be able to kill Gray?

Fri Nov 21, 03:40:00 PM EST
John O'Connor said...

A person who is discharged but "in the custody of the armed forces serving a sentence imposed by a court-martial" remain subject to the UCMJ. I would say that someone sentenced to death is serving that sentence as they are confined while awaiting execution.

Fri Nov 21, 03:58:00 PM EST
Dew_Process said...

If my memory has not failed me, Gray is black. That is a whole new factor with a liberal black prez coming in. Will he let the guy down to life for liberal reasons; let the guy down to life for black reasons; or let the guy get the needle to avoid an accusation of the reason being black?
___________________________________

Anon 0232: Race has nothing to do with this case - even though yes, Gray is Black. The Death Warrant was signed by Bush last July 28th.

There are two significant (but interrelated) constitutional issues in this case, viz., a death sentence with a panel of 6 imposing it [the Rule of 12 had been in force since the Revolutionary War, until ironically, the UCMJ, which was amended back to 12 post-Gray]; and second, is it unconstitutional to allow the Trial Counsel to determine whether or not a Capital Defendant has a panel of 12?

That's what happened factually Gray. When the Defense objected to the size of the "final" panel, the MJ had this exchange:

MJ: Well, I interrupted my thought merely because if the government were to be of the mind that they wanted to have twelve members, I certainly wouldn't contest it.

TC: We are not, Your Honor.
[RoT 770].

Why should a military Accused have substantially LESS constitutional protections, especially in a capital case? And why should the Trial Counsel have the power to determine the size of a capital panel?

As far as I know, John Blume of Cornell Law School is representing Gray on the habeas that will no doubt be filed within hours of Gray getting to Indiana.

Gray may be deserving of his penalty if that's your inclination, but he is equally as deserving constitutional consideration of the core issues raised. Indeed, those facing capital sentences via MilCom's at GTMO, are mandated to be tried by a panel of 12.

And Anon 0203 - the file sat for 3 years in the President's Counsel Office.

DISCLOSURE: I was counsel for an amicus when Gray was last at SCOTUS.

Sat Nov 22, 05:27:00 PM EST
Christopher Mathews said...

Anon 0232 -- with your fixation on "black reasons" and playing PR with death penalty decisions, I'm pleased you will never be in Obama's shoes.

Mon Nov 24, 11:31:00 AM EST

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