Monday, December 29, 2008

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.]


Cloudesley Shovell said...

"Death is different." But why? The due process clause says "life or liberty" not just "life." Any case should get the same review that a death penalty case, subject to the exact same standards. Why are the judicial review standards for most criminal cases lower than those for a death penalty case? Why should any system tolerate different standards? Why does the person sentenced to 50 years in prison get less than the guy down the hall sentenced to death?

Also, I will quibble with your headline. An acquittal is not a pro-defense outcome, any more than a conviction is "pro-prosecution." It's an outcome based upon the evidence. Who knows? The jury may think that Martinez is guilty as sin, but did not convict because the gov't failed to carry its burden. "Not guilty" does not equal "innocent."

John O'Connor said...

I agree with Cloudesley that the "death is different" doctrine is, to use a precise legal term, "stupid."

Anonymous said...

How about the lengthy confinement is different rule at CAAF. If an accused got lengthy confinement --30 years -- CAAF automatically grants the petition for review even if neither the accused nor the appellate defense counsel raises an issue. Then CAAF summarily affirms. I think the idea is that someone with lengthy confinement deserves an opportunity to get review at the Supreme Court. But if you get ONLY 29 years' confinement, you are out of luck -- no automatic grant and affirm, you have to earn it.

Anonymous said...

How about "justice denied in two capital cases" where one murderer goes free and another murderer (racially motivated no less) wins on a technicality?

Anonymous said...

Anon 1315: On the off chance that you are related to one of the victims of these cases, I will reserve some choice words.

These cases showcase that age old saying, "Better that 10 guilty men go free than that one innocent man is convicted."

The system works. Not perfectly, but it does work. A system without acquittals should scare the hell out of everyone.

Dew_Process said...

Cloudesly gets my ** SALUTE ** of the day!

I have been representing a Marine pro bono now for 8 years. His was a capital case and he got a "death qualified" Defense Counsel a just shortly before trial. Repeated defense requests for a continuance to allow trial prep were denied because the case was "getting old." Through extraordinary efforts, the Defense team "beat" the death penalty, and the Accused got the mandatory life sentence [pre LWOP]. Of course, the real issue was, was the right person accused and convicted.

There were serious issues of evidence tampering of the key bit of physical evidence by a prosecution expert mid-trial, that the Defense wasn't aware of until the second week of trial. But, the Accused did not get the "exacting" review one would get in a death sentence case.

As to Anon 1232 - I'm not sure they're still following the "30 year rule" at CAAF. If anyone has any knowledge of this, I'd appreciate knowing it as I have an "anxious" client who qualifies, but the Petition has been pending now for 8+ months.

And for all of the "bitching" on this blog, for any of you who have defended [or tried] a case in federal court, you know that the UCMJ and MCM are light-years ahead of Title 18 and the F.R.Crim.P., and that "discovery" is only a TV channel.....

Anonymous said...


Please expand. What are you talking about re: 18 USC v. UCMJ? Thanks.