Top 10 military justice stories of 2008 -- #5: Two pro-defense military death penalty outcomes -- Martinez and Walker

This is a dog-bites-man story, since its significance lies in its reinforcement of long-standing trends.

In one of the highest profile courts-martial of the year, Army Staff Sergeant Alberto Martinez was completely acquitted in a capital fragging case tried at Fort Bragg. The verdict was returned on 4 December.

Martinez was the 49th known capital court-martial tried under the current military death penalty system. It is one of three acquittals. One of the other two occurred last year.

Of the 49 capital courts-martial tried under the current system, just 15 (a little more than 30%) have resulted in adjudged death sentences.

2008 also saw the 10th military death sentence complete direct appeal. In United States v. Walker, 66 M.J. 721 (N-M. Ct. Crim. App. 2008), the Navy-Marine Corps Court set aside one of the two premeditated murder convictions as well as the death sentence, which had been adjudged in July 1993. The reversal arose because the military judge erroneously denied a defense continuance request to allow sufficient time for a substitute expert witness to prepare to testify after a previous expert witness engaged in unethical conduct that precluded his testimony.

In a testament to the quality of the opinion, which was written by Senior Judge Wagner, the Judge Advocate General of the Navy didn't certify the case to CAAF.

Of the ten death sentences that have completed direct appeal, Walker's is the eighth to be reversed. Now that math is easy even for me: an 80% reversal rate. Another three military death penalty cases remain on direct appeal. For comparison purposes, a 20-year study of state death penalty systems conducted by Professor James Liebman of Columbia Law and two of his colleagues found that Wyoming's 67% direct appeal reversal rate was the highest while the national average was a 41% direct appeal reversal rate. Unlike most state systems, however, in the military issues like IAC and discovery violations that depend on extra-record evidence are typically raised on direct appeal. In most states, such issues are raised in a separate post-conviction proceeding that starts at the trial level, where evidence supporting such claims can be more easily developed and presented. So the military justice system's direct appeal reversal rate is probably best analogized to state direct appeal plus post-conviction reversal rates. Combining those two statistics, Wyoming again has the highest reversal rate at 78% while the national average is approximately 47%. So the military's capital reversal rate is high compared to state death penalty systems.

2009 will likely see much more trial-level capital litigation, with a capital court-martial of retired Master Sergeant Timothy B. Hennis slated for trial at Fort Bragg and retrials or resentencing possible in four of the capital cases that have been reversed on appeal.

Tomorrow's #4 military justice story of 2008 provides the man-bites-dog counterpoint to today's dog-bites-man story.

[DISCLAIMER: I was one of LCpl Walker's appellate defense counsel.]