Monday, July 28, 2008

SIGNIFICANT MILITARY JUSTICE DEVELOPMENT: President approves Gray's death sentence

Here's the news. This marks the first time a president has approved a military death sentence in 51 years. The last president to do so was President Eisenhower, who approved Army Private John A. Bennett's death sentence on 2 July 1957. Following unsuccessful habeas challenges in the Article III courts and an unsuccessful petition to CMA for a writ of error coram nobis, PVT Bennett was executed at the USDB on 13 April 1961 after President Kennedy declined to grant clemency.

Article 71(a) of the UCMJ provides, "If the sentence of the court-martial extends to death, that part of the sentence providing for death may not be executed until approved by the President." 10 U.S.C. § 871(a). The last time a president acted under Article 87(a) was on 12 February 1962, when President Kennedy commuted a Sailor's death sentence to a dishonorable discharge, total forfeitures, and confinement for life.

Gray was sentenced to death by a court-martial at Fort Bragg, NC, on 12 April 1988. The Army Court of Military Review affirmed Gray's death sentence in two opinions isused in 1992 and 1993. United States v. Gray, 37 M.J. 730 (A.C.M.R. 1992); United States v. Gray, 37 M.J. 751 (A.C.M.R. 1993).

CAAF affirmed Gray's death sentence in a 3-2 opinion in 1999. United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999). The Supreme Court denied cert on 19 March 2001. Gray v. United States, 532 U.S. 919 (2001). The Court denied a rehearing petition on 14 May 2001. Gray v. United States, 532 U.S. 1035 (2001). The case has been ripe for presidential action ever since.

In all likelihood, Gray's counsel will now file a petition for habeas corpus in the U.S. District Court for the District of Kansas under 28 U.S.C. § 2241.


Anonymous said...

I wonder if all of the attention brought on the military death penalty from the Kennedy v Louisiana/CAAFlog brouhaha led some staffer to start digging around, and realize that Gray's case has been lingering, and put the execution papers in front of President Bush?

Anonymous said...

Can we all agree that executing a multiple murderer and rapist is a good thing, if done in a manner that does not violatethe 8th Amendment?

Anonymous said...

I lean a bit on the left when it comes to military justice, and believe that the military justice system needs some work.

That said, in this case, with this individual, given the facts and circumstances of his crimes, capital punishment is appropriate.

It'll still be at least 3 years before he actually gets executed, when one considers habeas in the Article III courts. And that assumes you don't have a liberal federal district judge who just sits on the pleadings for years without a decision. Justice delayed is justice denied.

Anonymous said...

If anybody deserves it it is this man. That said, the death penalty is violates European law.

Anonymous said...

Anon 1320,

I cannot think of a single reason not to execute this man. Except, maybe, that it's wrong for anyone to take a life, that executions give society the unmistakable message that killing someone is acceptable when justified by pragmatic concerns, that the death penalty is imposed disproportionately upon those whose victims are white, on offenders who are people of color, and on those who are poor and uneducated, and that the imposition of the death penalty is irrevocable, forever depriving an individual of benefits of new evidence or new law that might warrant the reversal of a conviction or the setting aside of a death sentence.

Otherwise, though, I'm sure every single one of us agrees with you 100%.

Cloudesley Shovell said...

So . . . given the appalling delay in Presidential action in this case, will a Moreno-style due process argument be made in the habeas petition?

Also, since Denedo says the CCAs have continuing jurisdiction notwithstanding any purported finality within the military justice system, why don't Gray's counsel file their writ at ACCA? Why not file at both the ACCA and the appropriate Art. III court? Maybe a military court would be more sympathetic of a Moreno-type argument than an Art. III court.

I don't know diddly about the finer points of the various death penalty strategies. Just thinking out loud.

Maybe Congress could fix the problem by placing an explicit time limit in Art. 71(a) for Presidential action. Something like, "The President shall act no later than 90 days after the case is forwarded for his review. Failure to act in that time period approves the death sentence [or commutes the sentence to a term of life without possibility of parole] [insert whatever policy preference here]."

Paul said...

There is now another one set for 10 Dec.

Anonymous said...

I was spc gray's roommate for 45 days when he first reached our unit and i truly believe it is time
to execute this piece of scum for the acts of violence and the terror he put our community and female soldiers through at the time. he has lived for too long he disgraced our unit our army and our country. Its just a shame that the military doesn't still give him a last dance as a puppet on a rope. he should suffer as the women he raped and killed suffered not get poked with a needle and go to sleep