New Capital Court-Martial

Third Infantry Division and Fort Stewart CG, Maj. Gen. Anthony Cucolo, referred charges yesterday against Sgt. Joseph Bozicevich (3rd ID) for the alleged murders of Staff Sgt. Darris Dawson and Sgt. Wesley Durbin, fellow Third Infantry Division NCOs. See this reprint of a Fort Stewart, GA press release and WaPo (AP) story here. The charges were referred capitally, according to the press release. See our prior coverage of the Art. 32 and other proceedings here and here. The reports showed that Sgt Boz. is represented by Charles Gittins.

NIMJ files amicus brief supporting cert in Loving's FOIA appeal

As the No Man has previously observed, USDB death row inmate Dwight Loving has a cert petition pending at the Supremes seeking review of his FOIA appeal, which argues for his right to see the recommendations as to whether the President should approve his death sentence. Loving v. Dep't of Defense, No. 08-1476.

NIMJ has now filed an amicus brief supporting Loving's cert petition. The amicus brief is available here. Loving's cert petition is available here. The SG has received an extension to file an opposition until 31 July 2009.

CAAF halts appellate proceedings in Akbar

CAAF yesterday ordered ACCA's proceedings in the capital case of United States v. Akbar stayed as CAAF considers a petition for extraordinary relief. See Akbar v. Army Court of Criminal Appeals, __ M.J. ___, No. 09-8026/AR (C.A.A.F. June 23, 2009) (order); Akbar v. United States, __ M.J. ___, No. 09-8025/AR (C.A.A.F. June 23, 2009) (order). We've posted CAAF's orders here. The underlying issue on the petition for extraordinary relief deals with whether the United States and ACCA erred in denying litigation resources to Akbar's appellate defense counsel. The government was ordered to show cause by 6 July why CAAF shouldn't order the requested relief.

Judge Rogers grants Gray's habeas counsel more time

Judge Rogers issued this order today extending Ronald Gray's habeas counsel's deadline for filing their traverse until 30 September 2009. Gray v. Gray, No. 08-3289-RDR (D. Kan. June 18, 2009) (order). Judge Rogers explained: "Under circumstances which include novel habeas challenges to the imposition of a death sentence in a military proceeding, and the court's recent appointment of attorneys providing substantive legal assistance to petitioner, the court finds the 120 day extension granted herein does not constitute unwarranted delay in the court’s resolution of this capital habeas action." Id., slip op. at 1-2.

Recent activity in the Gray habeas case

On Thursday, Senior Judge Rogers issued four orders in the federal habeas corpus case of military death row inmate Ronald Gray. Three of the orders granted motions for counsel from the highly regarded Capital Habeas Corpus Unit (CHU) of the Federal Public Community Defender, Philadelphia, Pennsylvania, to appear pro hac vice. The fourth order granted in part those counsel's request for an extension in the deadline for filing their traverse to accommodate a mitigation investigation. Gray's counsel had sought a 120-day extension. Judge Rogers found "it appropriate under the circumstances to grant a preliminary extension of 60 days at this time. Once the period for filing a response to petitioner's motion has expired, the court will renew its consideration of petitioner's request for an additional sixty days to file a traverse." Gray v. Gray, No. 08-3289-RDR (D. Kan. May 21, 2009) (order).

Gray's counsel move for extension to filing deadline

Ronald Gray's counsel today asked for a 120-day extension in their deadline to file the traverse to the United States' response to his habeas petition. The motion, which is available here, is based largely on the defense's need for time to conduct a mitigation investigation, which apparently none of Gray's counsel ever received funding to perform. The motion is supported by an affidavit from Russell Stetler -- one of the nation's premier experts on capital mitigation investigations -- describing the investigation's necessity.

U.S. district court grants Gray's motion for appointment of CHU counsel

Yesterday, Senior Judge Rogers entered this order granting Ronald Gray's motion to have the highly regarded Capital Habeas Corpus Unit (CHU) of the Federal Public Community Defender, Philadelphia, Pennsylvania, appointed without cost to represent him on his habeas petition. Gray v. Gray, No. 08-3289-RDR (D. Kan. May 8, 2009) (order).

Gray petitions for appointment of CHU counsel

Here's a link to a motion filed yesterday by Ronald Gray asking the U.S. District Court for the District of Kansas to appoint the highly-regarded Capital Habeas Corpus Unit of the Federal Public Community Defender, Philadelphia, Pennsylvania, to represent him on his habeas petition. The motion contains the sad news that Tom Dunn -- a former Army JAG and a veteran of the first Gulf War -- can no longer practice law full time for health reasons.

United States opposes Gray's habeas petition

Here's a link to the answer and return that the United States filed today in the United States District Court for the District of Kansas opposing Ronald Gray's habeas petition.

Gray habeas petition filed

Counsel for Ronald Gray, who is under a presidentially approved death sentence, filed his habeas petition yesterday in U.S. District Court for the District of Kansas. I've posted the habeas petition here. It raises the following 18 claims for relief:

CLAIM ONE

DURING PEACETIME, ALLOWING A MEMBER OF THE ARMED FORCES TO BE SENTENCED TO DEATH BY A COURT-MARTIAL PANEL OF LESS THAN TWELVE, WHEN THERE IS NO FIXED PANEL SIZE, PROMOTES UNRELIABILITY, UNDERMINES THE RIGHT TO AN IMPARTIAL FACT FINDER AND SENTENCER AND CREATES AN ARBITRARY FACTOR IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS

CLAIM TWO

IN A CAPITAL COURT-MARTIAL DURING PEACETIME, THE CONVENING AUTHORITY'S POWER TO HAND-PICK MILITARY SUBORDINATES – WHOSE CAREERS HE CAN DIRECTLY AND IMMEDIATELY AFFECT AND CONTROL – TO SERVE AS COURT MEMBERS VIOLATES THE FIFTH, AND EIGHTH AMENDMENT

CLAIM THREE

AN APPELLATE COURT CAN NOT ASSUME THAT THE TRIAL JUDGE MADE A DETERMINATION AS TO WHETHER TRIAL COUNSEL'S EXPLANATION WAS CREDIBLE OR PRETEXTUAL PURSUANT TO BATSON V. KENTUCKY, 476 U.S. 79 (1986), WITHOUT CONDUCTING A FURTHER HEARING ON THE ISSUE, WHEN THE TRIAL JUDGE RULED ON PETITIONER'S BATSON CLAIM WITHOUT EVEN REQUIRING THE PROSECUTOR TO PROVIDE A RACE NEUTRAL EXPLANATION FOR THE CHALLENGE.

CLAIM FOUR

PETITIONER WAS DENIED THE RIGHT TO A FAIR AND IMPARTIAL JURY WHEN THE MILITARY JUDGE IMPROPERLY GRANTED GOVERNMENT CHALLENGES FOR CAUSE AGAINST TWO MEMBERS

CLAIM FIVE

THE PEREMPTORY CHALLENGE PROCEDURE IN THE MILITARY JUSTICE SYSTEM, WHICH ALLOWS THE GOVERNMENT TO REMOVE ONE JUROR WITHOUT CAUSE, IS UNNECESSARY AND SUBJECT TO ABUSE IN ITS APPLICATION AND WAS ABUSED IN PETITIONER'S CASE

CLAIM SIX

PETITIONER WAS DENIED HIS RIGHTS UNDER THE FIFTH, SIXTH AND EIGHTH AMENDMENTS BECAUSE THE PANEL MEMBER SELECTION POOL IN PETITIONER'S CASE DID NOT INCLUDE ANY FEMALES.

CLAIM SEVEN

THE MILITARY JUDGE IMPROPERLY DENIED A DEFENSE MOTION FOR A MISTRIAL BASED ON TRIAL COUNSEL'S COMMENTS ON PETITIONER'S RIGHT TO REMAIN SILENT

CLAIM EIGHT

THE MILITARY JUDGE PRECLUDED THE SENTENCING PANEL FROM CONSIDERING PETITIONER'S BACKGROUND AS A BASIS FOR A SENTENCE LESS THAN DEATH IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS

CLAIM NINE

ARTICLE 18 OF THE UCMJ AND R.C.M. 201(F)(l)(c), WHICH REQUIRE TRIAL BY MEMBERS IN A CAPITAL CASE, VIOLATES THE FIFTH, SIXTH AND EIGHTH AMENDMENT GUARANTEE OF DUE PROCESS AND A RELIABLE VERDICT

CLAIM TEN

R.C.M. 1004'S PROHIBITION AGAINST GUILTY PLEAS IN CAPITAL COURT-MARTIAL DEPRIVED PETITIONER OF A CRITICAL MITIGATING FACTOR AND CAUSED OTHER IRREPARABLE PREJUDICE IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS

CLAIM ELEVEN

PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT HIS CAPITAL COURT-MARTIAL

CLAIM TWELVE

PETITIONER'S APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE FIFTH, SIXTH, AND EIGHTH, AND FOURTEENTH AMENDMENTS

CLAIM THIRTEEN

THE MILITARY JUDGE IMPROPERLY INSTRUCTED THE PANEL JURY IN VIOLATION OF PETITIONER’S FIFTH, SIXTH, AND EIGHTH, AMENDMENT RIGHTS

CLAIM FOURTEEN

THE MILITARY JUDGE DENIED RESOURCES NECESSARY TO RETAIN EXPERT SERVICES IN CRIMINAL INVESTIGATION TO ASSIST THE DEFENSE IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS

CLAIM FIFTEEN

THE AGGRAVATING FACTOR STATED IN R.C.M. 1004(c)(7)(I) IS VAGUE, FAILS TO SUFFICIENTLY CLARIFY THE FACTOR INVOLVED, AND DOES NOT NARROW THE CLASS OF PERSONS ELIGIBLE FOR THE DEATH PENALTY, AND IS THEREFORE INVALID UNDER THE EIGHTH AMENDMENT

CLAIM SIXTEEN

BASED ON THE SUPREME COURT'S REASONING IN RING V. ARIZONA, 536 U.S. 584 (2002), CONGRESS UNCONSTITUTIONALLY DELEGATED TO THE PRESIDENT THE POWER TO ENACT THE FUNCTIONAL EQUIVALENT OF ELEMENTS OF CAPITAL MURDER, A PURELY LEGISLATIVE FUNCTION

CLAIM SEVENTEEN

THE PROPORTIONALITY REVIEW IN THIS CASE WAS INSUFFICIENT AS A MATTER OF LAW IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS

CLAIM EIGHTEEN

THE MANNER IN WHICH THE GOVERNMENT WOULD CARRY OUT PETITIONER'S EXECUTION VIOLATES THE EIGHTH AMENDMENT

Senator Feingold introduces bill to abolish federal death penalty -- including the military's

While we already know the bill's fate, Senator Russell Feingold (D-Wis.) has introduced the Federal Death Penalty Abolition Act of 2009 (S. 650), which would abolish all federal death penalties, including the military's. The bill's text is here.

Kreutzer sentenced to life (with eligibility for parole)

As the Fayetteville Observer reports here, Sergeant William Kreutzer Jr. was sentenced this afternoon to confinement for life, a dishonorable discharge, forfeiture of all pay and allowances, and reduction to E-1. Kreutzer shot 19 soldiers at Fort Bragg in 1995, killing one. At his original court-martial, he was sentenced to death. His original death sentence and the contested findings were set aside, largely because the military judge erroneously denied a defense request for a mitigation specialist. United States v. Kreutzer, 59 M.J. 773 (A. Ct. Crim. App. 2004), aff'd, 61 M.J. 272 (C.A.A.F. 2005).

Kreutzer convicted of greater offenses

The AP reports here that the military judge presiding over Sgt William Kreutzer's case found him guilty of 16 specs of attempted premeditated murder. Kreutzer had reportedly pleaded guilty to 17 specs of aggravated assault. The military judge reportedly found him guilty of the greater offenses on Tuesday. We'll try to let you know when Kreutzer is resentenced.

Kreutzer cont'

Sgt Kreutzer's offenses (shooting 19 soldiers, one of whom died) were committed in 1995. He was sentenced to death in 1996. In 2004, ACCA set aside all of the findings of guilty to which Kreutzer had pleaded not guilty, including one specification of premeditated murder, and his sentence. United States v. Kreutzer, 59 M.J. 773 (A. Ct. Crim. App. 2004). The Judge Advocate General of the Army certified the case to CAAF, which affirmed in 2005. United States v. Kreutzer, 61 M.J. 293 (C.A.A.F. 2005). Yesterday, according to this report in the Fayetteville Observer, Kreutzer entered guilty pleas, including to premeditated murder, in exchange for a non-capital referral. The prosecution will proceed to try to prove some other offenses for which Kreutzer pleaded guilty to lesser-included offenses. The contested portion of his case, as well as sentencing, will be in a military judge alone proceeding.

Since the military death penalty was reinstated in 1984, there have been 15 known military death sentences. Two were set aside in the initial CA's action. Eight have been set aside on direct appeal. In three of those cases, retrials or resentencing proceedings are still in their very early stages. In the four military capital cases where the initial sentence was reversed and the case is now complete, the death sentence wasn't reinstated in any of them (Dock, Curtis, Simoy, Thomas). Assuming that nothing happens before sentencing to interfere with yesterday's pleas, Kreutzer will become the fifth former military death row inmate to have his death sentence replaced with a non-capital sentence.

HUGE NEWS -- Kreutzer avoids the death penalty

As reported here by the Fayetteville Observer, Sgt Kreutzer has entered pleas of guilty in a non-capital general court-martial.

NYT article on Martinez PTA offer

I don't know how I missed this yesterday. Yesterday's NYT had a lengthy article about last year's Martinez capital court-martial that ended in an acquittal at Fort Bragg. Here's a link. It reported that two years before the trial, the defense made a written PTA offer, signed by Martinez and his two defense counsel, to cap the sentence at confinement for life with eligibility for parole. It also reported about the convening authority, Lieutenant General John R. Vines, rejecting the offer. I wonder how that particular document came into the possession of the New York Times. Interestingly, one of the prosecutors in the case, Major John C. Benson, is quoted as saying, "I don’t think there can be any doubt whatsoever as to his guilt."

USMC Capital Case Ex Writ

Here is a link to our Caaflog.com hosted version of the ex writ filed in the Navy-Marine Corps Court of Criminal Appeals by counsel for former Sgt. Jessie Quintanilla, whose re-sentencing after reversal of his death sentence continues at Camp Pendleton. The Ex Writ is based on the military judge's refusal, see orders here and here, to consider LWOP a permissible sentence for Quintanilla or allow a PTA provision that includes waiver of the right to request clemency and parole board review of his sentence. An interesting part of the ex writ is that while the military judge refused to allow LWOP as a punishment or waiver of NMCPB, the ex writ makes these observations:

Furthermore, on information and belief, Petitioner believes the Convening Authority will accept a pretrial agreement that provides for a non-capital sentencing hearing, conditioned upon a presentencing determination that Petitioner’s agreement to waive his right to request clemency or parole is legally permissible. . . .

Furthermore, on information and belief, Petitioner believes the Convening Authority will accept a pretrial agreement that provides for a non-capital sentencing hearing, conditioned upon a presentencing determination that Petitioner’s agreement to waive his right to request clemency or parole is legally permissible.

The ex writ does its best to distinguish United States v. Tate, 64 M.J. 269 (C.A.A.F. 2007), which had a similar, though not identical, waiver of NMCPB rights. On the LWOP issue the tide is a bit against Quintanilla, Ronghi and Thomas, but there is no case law directly on point as to whether LWOP applies retroactively (for a defendnat specifically asking for it to be applied retroactively).

Disclaimer: Almost everyone on this blog (OK, 3 of us) was a Quintanilla appellate defense counsel (or in the case of a commenter, trial counsel).

CAAF denies petition for extraordinary relief in Murphy

Today's CAAF daily journal update included the denial of a petition for extraordinary relief in the Murphy capital case. Murphy v. Maggs, __ M.J. ___, Misc. No. 09-8003/AR (C.A.A.F. Jan. 15, 2009). That ruling appears to clear the way for the Murphy case to return to the trial level for resentencing -- bringing the number of ongoing trial-level capital cases to at least five (Hennis, Quintanilla, Kreutzer, Walker, Murphy).

Scheduling order issued for Gray habeas litigation

The United States District Court for the District of Kansas today issued a scheduling order governing Ronald Gray's habeas litigation. Gray v. Gray, No. 08-3289-RDR (D. Kan. Dec. 19, 2008) (order). I've posted a copy here.

The order sets a 1 April 2009 deadline for Gray's counsel to file his habeas petition. The United States then has 30 days to file its return. Gray's traverse is due 30 days later. Any request for discovery or a hearing must be made in writing.

Senior Judge Rogers declined to apply 28 U.S.C. § 2251(a)(3), which imposes a 90-day limit on pre-petition stays upon appointment of counsel for state death row inmates. Judge Rogers wrote that the statute, which expressly deals with "State" prisoners sentenced to death, "does not on its face reach petitioner, and the court finds the April 1, 2009, deadline for petitioner's filing of a habeas petition is appropriate under the circumstances."

The order misstates Gray's first name. Previous orders in the case have correctly named him.

SSgt Martinez Acquitted

As reported here, the members in the Ft. Bragg capital, fragging court-martial returned not guilty verdicts on all counts. SSgt Martinez was accused of murdering two officers with a claymore mine and faced a possible death sentence.