Date: 01-29-2016

Case Style: United States v. Akbar

Case Number: 13-7001

Judge: Kevin A. Ohlson

Court: United States Court of Appeals for the Armed Forces

Plaintiff's Attorney: Major Kenneth W. Borgnino and Captain Janae M. Lepir (argued); Colonel John P. Carrell, Lieutenant Colonel James L. Varley, Captain Carrie L. Ward,
Captain Chad M. Fisher.

Defendant's Attorney: Lieutenant Colonel Jonathan F. Potter, Major Aaron R. Inkenbrandt,
Colonel Kevin Boyle and Major Jacob D. Bashore

Description: The evidence adduced at trial showed that on the night of
March 22, 2003, as American armed forces were preparing to
launch Operation Iraqi Freedom from their staging area in
Kuwait, Appellant threw grenades into three of the tents of his
fellow servicemembers and opened fire with his M-4 rifle,
killing two military officers and wounding fourteen others. The
ensuing investigation revealed that Appellant previously had
written in his diary of his intent to “kill as many of [his
fellow servicemembers] as possible” as soon as he arrived in
Iraq.
Although Appellant raises a number of issues for review,
the gravamen of his appeal focuses on whether his attorneys
provided ineffective assistance of counsel. The Supreme Court
has set a high bar for an appellant to prevail on such a claim.
Specifically, the seminal case of Strickland v. Washington,
466 U.S. 668 (1984), requires an appellant to show that: (1)
his counsel’s performance fell below an objective standard of
reasonableness; and (2) the counsel’s deficient performance
gives rise to a “reasonable probability” that the result of the
proceeding would have been different without counsel’s
unprofessional errors. Id. at 688, 694. Upon analyzing both
the law and the facts in this case, we conclude that Appellant
has failed to meet either of these requirements established by
the Supreme Court.
In regard to the first prong of Strickland, we first note
that Appellant was represented by two experienced military
attorneys who devoted more than two years to preparing and
presenting the defense in this case. With the benefit of
appellate hindsight, we could dissect every move of these trial
defense counsel and then impose our own views on how they could
have handled certain matters differently and, perhaps, better.
However, that is not the standard of review we are obligated to
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apply. Rather, based on long-standing precedent from the
Supreme Court, we are required to be “highly deferential” in our
review of counsel’s performance, and we must presume that
counsel “rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.”
Id. at 689, 690. We also are constrained by the principle that
strategic choices made by trial defense counsel are “virtually
unchallengeable” after thorough investigation of the law and the
facts relevant to the plausible options. Id. at 690-91.
Concerning this last point, we are particularly mindful
that many of the steps that were taken -- or not taken -- by
trial defense counsel in the instant case, and that are now
under scrutiny in this appeal, were the result of trial defense
counsels’ strategic decision to conduct the case in a manner
that avoided introduction of additional damaging information
about Appellant. Specifically, trial defense counsel
successfully sought to shield from the court-martial panel
details about Appellant’s alleged stabbing of a military police
officer (MP), just days before Appellant’s court-martial began.
We conclude that trial defense counsel reasonably believed that
the admission of such evidence would have seriously undermined
their ability to convince the panel members during sentencing
that Appellant had rehabilitative potential, and thus should not
be sentenced to death. For this and other reasons discussed in
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greater detail below, we conclude that the performance of trial
defense counsel was not “measurably below the performance
standards ordinarily expected of fallible lawyers.” United
States v. Davis, 60 M.J. 469, 474 (C.A.A.F. 2005).
In regard to the second prong of the ineffective assistance
of counsel test, several reasons convince us that there was no
reasonable probability that the panel members would have
acquitted Appellant or sentenced Appellant to something less
than the death penalty had trial defense counsel presented their
case in the manner now urged on appeal. First, Appellant’s
murder of Army Captain (CPT) Christopher Seifert and Air Force
Major (MAJ) Gregory L. Stone, and his attempted murder of other
officers of the United States armed forces, was premeditated.
Second, prior to committing this offense, Appellant had written
incriminating passages in his diary, such as: “I may have to
make a choice very soon about who to kill. . . . I will have to
decide if I should kill my Muslim brothers fighting for Saddam
Hussein or my battle buddies”; and, “I am not going to do
anything about it as long as I stay here. But as soon as I am
in Iraq I am going to kill as many of [my fellow servicemembers]
as possible.” Third, Appellant committed this attack in Kuwait
at the start of Operation Iraqi Freedom in an effort to hobble
the American military’s ability to prevail in battle. Fourth,
Appellant was thirty-one years old at the time he committed the
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offenses, had served in the United States Army for just under
five years, and had attained the rank of sergeant. Fifth, both
the sanity board and many of Appellant’s own experts concluded
that Appellant was not suffering from a severe mental disease or
defect at the time he committed the offense or at the time of
testing. Sixth, Appellant was not intellectually deficient, as
demonstrated by his engineering degree from a well-known
university and his “extremely high, superior IQ.” And finally,
even assuming that all of the information now provided by
appellate defense counsel is true, we conclude that Appellant’s
additional mitigation evidence is not sufficiently compelling to
establish a substantial likelihood that the court-martial panel
would have imposed a different sentence. See Cullen v.
Pinholster, 131 S. Ct. 1388, 1410 (2011); see also United States
v. Kreutzer, 61 M.J. 293, 300 (C.A.A.F. 2005) (noting that
“overwhelming evidence of guilt may present an insurmountable
obstacle to an appellant claiming prejudice from ineffective
assistance of counsel”). Based on these factors and others
discussed below, we conclude that if there ever was a case where
a military court-martial panel would impose the death penalty,
this was it.
Since Appellant can establish neither deficient performance
nor prejudice, we conclude that Appellant cannot prevail on his
claims of ineffective assistance of counsel. We further
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conclude that Appellant’s other assignments of error are
similarly without merit. Accordingly, we affirm the lower
court’s decision.
I. Facts
A. The Offenses
In March 2003, soldiers from the 1st Brigade, 101st
Airborne Division, were stationed at Camp Pennsylvania, Kuwait,
preparing to begin Operation Iraqi Freedom. On the night of
March 22, Appellant was guarding grenades with another soldier.
When Appellant was left alone, he stole seven grenades: four M
67 fragmentation grenades and three M-14 incendiary grenades.
The brigade was scheduled to cross the border from Kuwait into
Iraq in the next few days.
Before movement and while most of the brigade slept,
Appellant took a fellow soldier’s body armor and then walked to
the tents of the brigade officers. He shut off the generator
for the outdoor lighting to the tent area, plunging it into
darkness. Appellant then threw one incendiary and one
fragmentation grenade into Tent 1, where the brigade commander
(Colonel (COL) Frederick Hodges), brigade executive officer (MAJ
Ken Romaine), and brigade sergeant major (Command Sergeant Major
(CSM) Bart Womack) were sleeping. When MAJ Romaine emerged from
the tent, Appellant shot him, severely injuring, but not
killing, him.
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Appellant then moved to Tent 2 where several officers and
two interpreters were sleeping and threw two fragmentation
grenades into the tent. Many of the officers were injured from
the shrapnel, and MAJ Gregory Stone was killed from eighty-three
shrapnel wounds.
Appellant finally moved to Tent 3, which housed sixteen
officers, and threw a fragmentation grenade into the tent, which
injured multiple officers. When CPT Christopher Seifert exited
the tent, Appellant shot him in the back at close range, causing
CPT Seifert to bleed to death.
In the midst of the military’s response to the attacks, the
brigade S-2, MAJ Kyle Warren, learned from COL Hodges that
Appellant may have attacked Camp Pennsylvania. MAJ Warren found
Appellant and tackled him to the ground. When MAJ Warren asked
Appellant if he had attacked the tents, Appellant responded,
“Yes.”
At the time of apprehension, Appellant was in possession of
one fragmentation grenade and two incendiary grenades along with
three empty incendiary grenade canisters. His weapon, an M-4
rifle, had been recently fired. Ballistics testing matched the
bullets from Appellant’s firearm with those that had wounded MAJ
Romaine and killed CPT Seifert. Appellant also had M-14 and M
67 grenade residue on his uniform and hands. His fingerprints
were on the switch to shut off the generator.
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B. The Trial Defense Team
Following the March 2003 Camp Pennsylvania attack,
Appellant was initially represented by MAJ Daniel Brookhart, CPT
David Coombs, CPT Jackie Thompson, and Lieutenant Colonel (LTC)
Victor Hansen. Of these counsel, LTC Hansen was the most
experienced because he had served as a trial counsel, senior
trial counsel, and chief of military justice, as well as a
professor of criminal law at what is now known as the Army Judge
Advocate General’s Legal Center and School (LCS). He also had
served as the lead trial counsel for a fact-finding hearing in a
capital case, United States v. Murphy. Given this experience,
LTC Hansen served as lead counsel.
Although LTC Hansen had the most capital experience among
the group, the other counsel were also well-qualified judge
advocates. Because Appellant’s claims of ineffective assistance
of counsel mostly concern MAJ Brookhart and CPT Coombs, we
describe their qualifications in some detail.
MAJ Brookhart had served as a judge advocate for
approximately eleven years before the pretrial hearings began
for Appellant’s court-martial. He had earned a master of laws
in military law from the LCS with a specialty in criminal law.
MAJ Brookhart had tried seventy-five cases as trial counsel or
senior defense counsel, including fifteen contested trials
involving serious offenses. He had dealt with expert witnesses,
United States v. Akbar, No. 13-7001/AR
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including mental health experts. He had been a government
appellate counsel for a year, during which time he attended the
capital litigation course held by the Naval Justice School. He
took this course so that he could handle the capital case of
United States v. Kreutzer. He also had participated in the
trial counsel assistance program which provided him with
litigation training. Additionally, MAJ Brookhart had served as
branch chief at the government appellate division where he
participated in strategy sessions for the Murphy capital case,
and reviewed and edited the brief in the Kreutzer capital case.
MAJ Brookhart had argued seven cases before this Court and seven
cases at the CCA.
CPT Coombs had served as a judge advocate for approximately
seven years before his appearance as counsel at Appellant’s
pretrial hearing. During this time, CPT Coombs had served for
more than two years as a trial counsel and for nearly four years
as a defense counsel. CPT Coombs had tried seventy-eight cases,
fifteen of which were contested. He had worked with expert
witnesses, including forensic psychiatrists. CPT Coombs also
had attended a week-long death penalty course in September 2003.
In preparation for Appellant’s case, both counsel consulted
capital resources to include motions in other capital cases, law
review articles, and materials from a capital litigation course.
United States v. Akbar, No. 13-7001/AR
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In addition to these two attorneys, the trial defense team
also included a forensic psychiatrist, Dr. Walker, and a
neuropsychologist, Dr. Clement, who both started working on the
case in May 2003. Dr. Walker was used to assist the defense in
understanding Appellant’s mental status at the time of the crime
and the trial, to help prepare a sentencing case, and to observe
the Rule for Courts-Martial (R.C.M.) 706 board. Dr. Clement
conducted neuropsychological tests on Appellant for the benefit
of other defense experts. A forensic DNA expert joined the
defense team in June 2003 to observe Government testing of key
evidence.
Initially the attorney workload was divided as follows.
MAJ Brookhart focused on findings issues, CPT Coombs took the
lead on motions, CPT Thompson contacted potential witnesses
while deployed in Iraq, and LTC Hansen worked mitigation issues.
The strategy was to use the services of a mitigation specialist,
Ms. Deborah Grey, early in the process in order to uncover and
develop information that could be used to avoid a capital
referral and to submit an offer to plead guilty. LTC Hansen
advised Appellant that an offer to plead guilty would be the
best way to avoid a capital referral. On two occasions,
Appellant agreed to this strategy, but he ultimately changed his
mind.
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In furtherance of the mitigation strategy, Ms. Grey began
her work in August 2003 and was authorized to perform 400 hours
of mitigation work. LTC Hansen and Ms. Grey traveled to
Appellant’s childhood neighborhoods where they interviewed
friends, family members, and associates, including Appellant’s
childhood imam, Appellant’s brother, high school teachers and
administrators, and college professors and administrators. Ms.
Grey provided the defense team with detailed written summaries
of these interviews and also collected school, medical,
employment, military, and other official records.
Appellant’s mother, whom counsel described as having an
emotional and mental influence over Appellant, did not agree
with LTC Hansen’s strategies or the mitigation efforts. In
December 2003, Appellant’s mother sent a letter to MAJ
Brookhart, informing him that she had asked her son to fire LTC
Hansen and CPT Thompson because she did not trust them, in large
part because they were encouraging Appellant to plead guilty.
As a result, at his mother’s behest, Appellant released LTC
Hansen, the defense’s most experienced capital litigator, as
well as CPT Thompson, in January 2004.
To replace the dismissed military counsel, Appellant, with
his mother’s encouragement, retained as lead counsel two
civilian attorneys, Mr. Musa Dan-Fodio and Mr. Wazir Ali
Muhammad Al-Haqq, at different times in the pretrial
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proceedings. Neither attorney had capital litigation experience
nor military justice experience. As the first civilian lead
counsel, Mr. Dan-Fodio changed trial strategy to try to get
Appellant’s case transferred to the United Nations Human Rights
Commission or another international forum or, alternatively, to
focus on self-defense, defense-of-others, duress, and
Appellant’s innocence.
Mr. Dan-Fodio subsequently withdrew from the case and was
replaced by Mr. Al-Haqq in the spring of 2004. This left
Appellant with three counsel -- Mr. Al-Haqq, MAJ Brookhart, and
CPT Coombs. Mr. Al-Haqq became lead counsel and focused on an
insanity defense. For this purpose, in June 2004, the defense
team retained Dr. George Woods Jr., a neuropsychiatrist and
forensic psychiatry expert. By this point, the defense team
also had obtained the assistance of a ballistics and gunshot
powder residue expert, a certified latent print examiner, and a
pathologist to review physical and scientific evidence.
Around the time Appellant retained Mr. Al-Haqq as lead
counsel, Ms. Grey was informed in early May 2004 that her
services as a mitigation specialist were no longer needed
because Appellant’s mother refused to permit Ms. Grey to
interview her or anyone else in her family. At the time of her
withdrawal, Ms. Grey estimated that approximately 200 hours
would be needed to complete the mitigation case.
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In August 2004, Mrs. Scharlette Holdman replaced Ms. Grey
as the defense team’s mitigation specialist, and she was
authorized to conduct seventy-five hours of interviews of
Appellant’s family members. When Mrs. Holdman withdrew for
medical reasons, Ms. Scarlet Nerad replaced her in September
2004. The Government authorized Ms. Nerad to conduct 368 hours
of mitigation investigation and 198 hours of base-level
investigation. Ms. Nerad interviewed Appellant, his father,
mother, sisters, brother, half-brother, grandfather, aunts,
uncles, and cousins. She also collected thousands of pages of
documents, including court records, medical records of Appellant
and his relatives, and education records of Appellant’s
siblings.
When Mr. Al-Haqq stopped receiving payments from Appellant,
he ceased working on the case in August 2004. He informed
counsel he was withdrawing in late February 2005, but military
counsel had anticipated this announcement and had worked to
prepare Appellant’s case for trial accordingly. MAJ Brookhart
and CPT Coombs were now left as Appellant’s trial defense
counsel. By the start of the court-martial, the defense team
already had managed to file nearly sixty motions on multiple
topics, including many of the issues raised in this appeal.
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C. Trial Proceedings
Following numerous continuances, Appellant’s trial was
scheduled to begin on April 6, 2005, 744 days after Appellant’s
attack on Camp Pennsylvania. However, on March 30, 2005,
Appellant allegedly found a pair of scissors in the office of
the staff judge advocate and used them to stab an MP in the
neck. Appellant also allegedly tried to seize the MP’s firearm
before being subdued by another MP.1 Following the incident, the
military judge, upon trial defense counsels’ motions, reopened
the R.C.M. 706 sanity board and preliminarily prevented the
Government from referencing the stabbing incident. The sanity
board deemed Appellant competent to stand trial.
Following the alleged scissors attack, trial defense
counsel did not seek a delay in the start of the trial in a
successful effort to preclude the Government from having the
opportunity to refer additional charges against Appellant.
Thus, trial proceedings began, as scheduled, on April 6, 2005.
Twenty members were detailed to the venire pool. Following two
days of voir dire, a fifteen-member panel consisting of nine
officers and six enlisted soldiers was selected after the
defense successfully challenged one member for cause and the
1 Appellant was not charged in the stabbing incident. Also, as discussed below, Appellant’s counsel successfully prevented the panel from considering this incident during the sentencing phase of Appellant’s trial.
United States v. Akbar, No. 13-7001/AR
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Government successfully challenged three members for cause and
used one peremptory challenge.
The Government’s case on the merits lasted four days and
involved forty witnesses who mostly testified about the Camp
Pennsylvania attack on March 22, 2003. When witnesses had
information about Appellant, trial defense counsel cross
examined them, eliciting information about Appellant’s unfocused
state in the period leading up to the attack, his daydreaming,
his sleep problems and tendency to fall asleep at inappropriate
times, his long periods of silence, his laughing and smiling
without reason, and his tendencies to pace and talk to himself.
Trial defense counsel also elicited through cross-examination
that Appellant had heard servicemembers joking about and using
derogatory terms for Muslims.
Besides witness testimony, the Government’s case involved
admission of these entries from Appellant’s diary:
I may have not killed any Muslims, but being in the Army is the same thing. I may have to make a choice very soon about who to kill. I will have to decide if I should kill my Muslim brothers, fighting for Saddam Hussein, or my battle buddies.
I’m hoping to get into a position so I don’t have to take any crap from anyone anymore.
For the defense case on the merits, counsels’ strategy was
two-fold: (1) to present evidence establishing diminished
mental capacity so as to raise doubt about Appellant’s ability
United States v. Akbar, No. 13-7001/AR
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to premeditate; and (2) to “frontload” mitigation evidence
during the merits stage of the trial. As part of this strategy,
trial defense counsel elicited testimony from nine defense
witnesses.
Dr. Fred Tuton was a clinical psychologist who had examined
Appellant at the age of fourteen after allegations surfaced
about Appellant’s sister being sexually abused by Appellant’s
stepfather. Dr. Tuton testified that Appellant displayed no
normal emotions during the meeting and reported having sleep
problems and not being able to trust people. Dr. Tuton
diagnosed Appellant with an adjustment disorder with depressed
mood associated with a mixed specific developmental disorder.
Mr. Paul Tupaz, Appellant’s college roommate, testified
about his friendship with Appellant which lasted until 1994.
According to Mr. Tupaz, Appellant had difficulty sticking to his
plans, was not very social and spent time by himself, “paced a
lot,” talked to himself, and had difficulty sleeping.
Members of Appellant’s unit and unit leadership testified
about Appellant’s poor work performance, his isolation from
others, his pacing and talking to himself, his sleeping
difficulties, and his laughing and smiling at inappropriate
times. One servicemember testified about military personnel
using derogatory names regarding Muslims in Appellant’s
presence.
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The testimony of Dr. Woods, Appellant’s expert in forensic
psychiatry, revealed a family history of mental illness,
particularly a maternal uncle with psychiatric problems, a
father with depression, and a half-brother with paranoia. Dr.
Woods explained that Appellant had come from an “extremely
poverty-stricken home” and had an “extraordinarily abusive”
stepfather. Additionally, he noted that Appellant’s mother had
been homeless. Dr. Woods reported that test scores revealed
Appellant to be suffering from depression, paranoia,
impulsivity, sleep problems, and bizarre thinking, which Dr.
Woods believed was corroborated by Appellant’s diary entries and
academic history. Dr. Woods further testified that Appellant
had difficulty picking up social cues, perceiving situations,
and differentiating reality.
Although Dr. Woods could not provide a definitive
diagnosis, he provided three “differential”2 diagnoses:
(1) schizotypal disorder; (2) schizophrenia paranoid type; and
(3) schizoaffective disorder. Dr. Woods believed that
Appellant’s symptoms affected him on March 22, 2003, by causing
him to be overwhelmed emotionally and preventing him from
thinking clearly.
2 According to Dr. Woods, a differential diagnosis is based upon an individual’s symptoms and provides the possible disorders that would be consistent with the symptoms.
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In closing argument, trial defense counsel argued that the
evidence showed that Appellant had a mental illness at the time
the attack occurred, and that the Government had therefore
failed to meet its burden of proving premeditation. Counsel
explained that Appellant’s mental illness caused him to become
emotionally charged, which in turn led Appellant to react out of
confusion and fear. Throughout the closing, counsel argued that
Appellant’s actions did not represent “good planning,” “just
confusion.”
Despite the defense case and counsel’s closing argument,
the panel members returned a guilty verdict on the premeditated
murder and attempted murder charges. The case then moved to the
sentencing phase.
The Government’s presentencing case lasted one-and-a-half
days and included the testimony of twenty-one witnesses. COL
Hodges, the brigade commander, testified about the impact of the
attack on the brigade’s battle readiness. In response to a
question about the psychological impact of Appellant’s attack,
COL Hodges stated that he “hated” that a “fragging had occurred”
in his unit, noting that in reflecting on the “worst days for
the United States Army, at the end of Vietnam, the two things
that [came] to mind [were] heavy drug use and fraggings.”3
3 A fragging is an incident in which an individual “deliberately injure[s] or kill[s] (one’s military leader) by means of a fragmentation grenade.” Merriam-Webster Unabridged Online
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Other servicemember victims testified about the impact of
their injuries, the psychological impact of the attack, the
impact on their military careers, their memories of the deceased
victims, and their reactions upon learning that the attacks were
by a fellow servicemember. As to this last point, the
servicemember victims testified about feeling “disbelief,”
“distrust,” “shock[],” “betrayed,” “[e]xtremely frustrated,
angry,” “pissed,” and “confused.”
Colleagues of the victims also testified about feeling
“anger,” “disbelief,” and “betrayal” upon learning another
servicemember was responsible. Finally, the deceased victims’
family members and friends testified about the impact of losing
CPT Seifert and MAJ Stone.
Prior to the start of Appellant’s presentencing case, the
defense admitted a binder containing fifteen exhibits:
(1) Appellant’s entire diary (313 pages); (2) the FBI’s written
synopsis of the diary (nine pages); (3) Ms. Grey’s mitigation
report showing Appellant’s family tree, Appellant’s personal
history, and a summary of Appellant’s diary (thirty-three
pages); (4) government records reflecting Appellant’s family’s
use of food stamps from 1986-1994 (nineteen pages); (5) the
search and seizure authorization for Appellant’s military e-mail
Dictionary, http://unabridged.merriamwebster.com/unabridged/fragging (last visited Aug. 14, 2015).
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account (one page); (6) definitions of relevant Islamic terms
(eight pages); (7) Appellant’s paperwork for his name change
(four pages);4 (8) Ms. Grey’s interview notes from a high school
guidance counselor (one page); (9) Ms. Grey’s interview notes
from a high school teacher (two pages); (10) Ms. Grey’s
interview notes from the high school college advisor and
photographs of the high school (six pages); (11) another
mitigation specialist’s interview notes with the ex-wife of
Appellant’s college roommate (two pages); (12) a memorandum from
a servicemember in Appellant’s platoon (three pages); (13) a
memorandum of the equal opportunity advisor for the brigade
(four pages); (14) Ms. Grey’s interview notes with Appellant’s
childhood imam and three photographs of Appellant’s childhood
mosque (six pages); and (15) the criminal records for
Appellant’s stepfather (four pages).
Before providing each member with a binder, the military
judge instructed the members that once the trial recessed for
the day, they would be provided defense exhibits to read at home
or work. The military judge added that the members were not to
conduct independent research, discuss the exhibits with anyone,
or copy the exhibits.
4 Appellant’s birth name was Mark Fidel Kools. His parents became members of the Nation of Islam, and Appellant’s name was changed to Hasan Karim Akbar when Appellant was eight years old. Appellant enlisted in the Army under his birth name. However,
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The following morning, the defense presented its case in
mitigation. The defense presented testimony from CPT David
Storch (one of Appellant’s former platoon leaders), SFC Daniel
Kumm (the platoon sergeant for 2nd Platoon), and Mr. Dan Duncan
(Appellant’s high school physics teacher). CPT Storch testified
about Appellant’s termination from his platoon and Appellant’s
problems as a noncommissioned officer (NCO), including
difficulties relating well with soldiers, needing detailed
guidance to perform tasks, and performing in an increasingly
unsatisfactory manner over time. SFC Kumm testified about
Appellant being a “below average” NCO, being a soldier he did
not want to take to Iraq, and being assigned the task of
guarding grenades on March 22, 2003, at Camp Pennsylvania in
Kuwait. Mr. Duncan testified about the “very poor, low
socioeconomic, high crime,” and gang-ridden area where
Appellant’s high school was located. He described Appellant as
an “excellent student” who was memorable for trying to learn
material and being in “the top 5 to 10” students whom Mr. Duncan
had ever taught at the high school. Mr. Duncan described
Appellant as living in “a drab apartment building in a rather
depressed area.” After Mr. Duncan’s testimony, the military
judge recessed for the day “because of some witness travel
he petitioned to change his name to Hasan Akbar in June 2001, and the Army finalized the name change in September 2001.
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schedules,” and for a second day he permitted the members to
take the defense-created binders home with them.
On the final morning of the defense’s presentencing case,
the defense offered into evidence and distributed to the members
copies of two statements: one from Ms. Regina Weatherford,
Appellant’s former high school classmate, and one from
Appellant’s brother. Ms. Weatherford’s statement described
Appellant’s academic success in high school and his tendency to
sit by himself during high school. The brother’s statement
described how Appellant helped raise him, how Appellant
financially helped the family, and how Appellant had trouble
falling in love too quickly with women. Defense counsel agreed
with the military judge that they had decided for “sound
tactical reasons” not to call Ms. Weatherford or Appellant’s
parents to testify.
The final piece of Appellant’s sentencing case was his
unsworn statement before the members of the court-martial panel.
Appellant took the stand and explained that he had decided not
to read the six-page statement that he previously had prepared
because he felt that it sounded “like an excuse.” Instead, he
said, “I want to apologize for the attack that occurred. I felt
that my life was in jeopardy, and I had no other options. I
also want to ask you to forgive me.”
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During trial defense counsel’s sentencing argument, counsel
emphasized that the Government’s argument was “based upon
emotion,” and that emotion should not be used when deciding
whether to impose the death penalty. He argued for life without
parole “based upon logic and reason.” Counsel cited Appellant’s
mental illness, noting that the diary provided “a unique look
into [Appellant’s] mind.” Counsel also cited Appellant’s sleep
problems as negatively affecting his ability to think. Counsel
further noted the command’s responsibility, as part of a “band
of brothers,” to ensure poor performers or those with mental
illness did not deploy and did not remain as members of the
Army. Counsel then cited Appellant’s difficult upbringing and
school environment. Counsel ultimately returned to and
emphasized Appellant’s mental illness as the cause of the lethal
events at Camp Pennsylvania.
The military judge provided the panel members with
instructions on the procedures that must be used during
deliberations in capital cases. Specifically, the military
judge instructed the members that in order for them to impose
the death penalty: (1) they had to unanimously find beyond a
reasonable doubt that an aggravating factor existed; (2) they
had to unanimously find that the extenuating and mitigating
factors were “substantially outweighed” by the aggravating
circumstances; and (3) they had to reach the decision to impose
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death unanimously based on each member’s individual decision.
The military judge listed thirty-one mitigating factors but
explained that they were not the exclusive factors that the
members could consider. Trial defense counsel explicitly stated
that he did not object to these instructions.
The members then began their deliberations. Approximately
six hours later, the military judge held an Article 39(a), UCMJ,
10 U.S.C. § 839 (2012), hearing to discuss this note from the
members: “Sir, reconsideration has been proposed.” The
military judge proposed to the parties that he use
reconsideration instruction 2-7-19 from the Military Judges’
Benchbook (Benchbook), and the parties agreed.5 Appellant never
raised an objection to the instruction. Following additional
5 The reconsideration instruction explained the process for the members to revote after reaching a sentence if a member proposed reconsideration, noting that the process was different depending on whether the proposal to reconsider related to increasing or decreasing the sentence. The instruction outlined the following process for determining whether the panel could reconsider and revote the sentence: (1) if the proposal was to increase the sentence, a majority of members had to vote by secret ballot in favor of reconsideration; (2) if the proposal was to decrease the sentence, one-fourth of the members had to vote in favor of reconsideration with a view to decrease the sentence; and (3) if the sentence reached was death, only one member vote was required to reconsider the sentence. If the required votes were not obtained for reconsideration, the instruction informed the members that they were to announce the original sentence without indicating whether it was the original or reconsidered sentence. But, if a sufficient number of votes were obtained for reconsideration, the instruction required the members to adhere to the military judge’s original instructions for proposing and determining an appropriate sentence.
United States v. Akbar, No. 13-7001/AR
26
deliberations, the president of the panel announced that the
members had unanimously determined that an aggravating factor
had been proven beyond a reasonable doubt, and that the matters
in mitigation and extenuation were “substantially outweighed” by
the aggravating circumstances. The president then announced
that the members had voted unanimously that Appellant should be
“put to death.”
II. Analysis
Appellant’s counsel has assigned a total of fifty-nine
issues for this Court to consider. Appellant also has
personally presented a number of additional matters for us to
consider pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982).6 After careful review, we conclude that a
majority of the assigned issues and all of the personally
asserted issues do not have merit and therefore warrant no
additional discussion. However, we deem it appropriate to
address below twenty-one assigned matters, starting with
Appellant’s ineffective assistance of counsel claims.
A. Ineffective Assistance of Counsel
Appellant challenges the effectiveness of trial defense
counsels’ performance at all stages of the pretrial and trial
6 The assigned issues and personally asserted Grostefon issues, which we permitted Appellant to submit out of time, United States v. Akbar, 73 M.J. 242 (C.A.A.F. 2014) (order), are listed in the Appendix to this decision.
United States v. Akbar, No. 13-7001/AR
27
proceedings.7 We review these ineffective assistance of counsel
claims de novo. See United States v. Datavs, 71 M.J. 420, 424
(C.A.A.F. 2012). To prevail, Appellant “must show that
counsel’s performance was deficient, and that the deficiency
prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521
(2003). An attorney is deficient when his representation falls
“below an objective standard of reasonableness.” Id.
We do not measure deficiency based on the success of a
trial defense counsel’s strategy, but instead examine “whether
counsel made an objectively reasonable choice in strategy” from
the available alternatives. United States v. Dewrell, 55 M.J.
131, 136 (C.A.A.F. 2001) (quoting United States v. Hughes,
48 M.J. 700, 718 (A.F. Ct. Crim. App. 1998)). Similarly, we
must remain mindful that counsel have “wide latitude . . . in
making tactical decisions.” Pinholster, 131 S. Ct. at 1406
(quoting Strickland, 466 U.S. at 689). Thus, our scrutiny of a
trial defense counsel’s performance is “highly deferential,” and
we make “every effort . . . to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of counsel’s
7 Such challenges have become the norm in death penalty appeals in both the civilian and military criminal justice systems. See David D. Velloney, Balancing the Scales of Justice: Expanding Access to Mitigation Specialists in Military Death Penalty Cases, 170 Mil. L. Rev. 1, 18 & n.81 (2001). The vast majority of ineffective assistance of counsel claims are unsuccessful. See Anne M. Voigts, Note, Narrowing the Eye of the Needle: Procedural Default, Habeas Reform, and Claims of Ineffective Assistance of Counsel, 99 Colum. L. Rev. 1103, 1118 (1999).
United States v. Akbar, No. 13-7001/AR
28
challenged conduct, and to evaluate conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689.
An appellant is prejudiced by counsel’s deficient
performance where “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. In the capital
sentencing context, we “reweigh the evidence in aggravation
against the totality of available mitigating evidence” to
determine if there is a reasonable probability that the panel
would have returned a different sentence. Wiggins, 539 U.S. at
534.
For ease of analysis, our discussion of Appellant’s
ineffective assistance of counsel claims in the instant case is
divided into four categories: (1) pretrial preparation;
(2) merits phase performance; (3) penalty phase performance; and
(4) cumulative error. As we explain in detail below, we
conclude that none of these claims merits relief.
1. Pretrial Preparation
a. Investigation
Trial defense counsel have “a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Strickland, 466 U.S. at
United States v. Akbar, No. 13-7001/AR
29
691. “[S]trategic choices made [by counsel] after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable . . . .” Id. at 690. In considering
whether an investigation was thorough, “[w]e address not what is
prudent or appropriate, but only what is constitutionally
compelled.” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting
United States v. Cronic, 466 U.S. 648, 665 (1984)). The Supreme
Court has “rejected the notion that the same [type and breadth
of] investigation will be required in every case.” Pinholster,
131 S. Ct. at 1406-07 (citing Strickland, 466 U.S. at 691).
i. Pretrial Interviews
A. Testifying Witnesses
Appellant claims that trial defense counsel failed to
adequately interview and prepare two witnesses who testified at
trial -- Mr. Tupaz, Appellant’s college roommate, who testified
during the merits phase, and Mr. Duncan, Appellant’s high school
physics teacher, who testified during presentencing. Neither
argument is persuasive.
The record reflects that trial defense counsel contacted
Mr. Tupaz in the month prior to trial. In a post-trial
affidavit, trial defense counsel reported interviewing Mr. Tupaz
over the telephone and reviewing draft questions for trial
preparation. In his post-trial declaration, Mr. Tupaz did not
“remember talking to any defense attorneys prior to showing up”
United States v. Akbar, No. 13-7001/AR
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for the trial at which time Mr. Tupaz recalled speaking to trial
defense counsel. We conclude that Mr. Tupaz’s inability to
remember talking to trial defense counsel is “too equivocal and
ambiguous to overcome the presumption that [Appellant’s] counsel
were competent.” United States v. Key, 57 M.J. 246, 249
(C.A.A.F. 2002). Even assuming trial defense counsel did not
interview Mr. Tupaz, counsel’s questioning of Mr. Tupaz during
trial demonstrated that counsel was adequately prepared for his
testimony. Therefore, it cannot be said that counsels’
performance was deficient in this regard.
Appellant now claims that Mr. Tupaz should have been asked
to testify about the likelihood that Appellant took
inappropriate comments made by members of the military about
Muslims both very literally and personally. However, this
proffered testimony was cumulative of Dr. Woods’s testimony on
the same topic, and thus it would not have made Mr. Tupaz’s
testimony more compelling in scope or degree.
As for Mr. Duncan, we accept Appellant’s claim that he was
not interviewed by defense counsel prior to trial. However, we
note that trial defense counsel possessed the mitigation
specialist’s report about her own interview of Mr. Duncan, which
included facts and observations proffered by Mr. Duncan in
regard to Appellant’s high school experiences. Further, trial
defense counsel were able to elicit testimony from Mr. Duncan
United States v. Akbar, No. 13-7001/AR
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that Appellant’s high school was in a poor and dangerous
neighborhood, Appellant was “an excellent student,” and
Appellant lived in a “depressed area.” Mr. Duncan’s post-trial
declaration contains no additional substantive information that
he would have provided had counsel interviewed him prior to his
testimony. Therefore, Appellant has not established a
reasonable probability of a different sentence based on
counsels’ failure to interview Mr. Duncan. We therefore reject
Appellant’s ineffective assistance of counsel claims with
respect to Mr. Tupaz’s and Mr. Duncan’s testimony.
B. Nontestifying Lay Witnesses
In the course of his ineffective assistance of counsel
claims, Appellant complains that counsel failed to personally
contact or to adequately interview his father, his brother, his
sisters, his cousins, a high school friend, and a former
landlady. In analyzing this issue, we first note that counsel
must “investigate adequately the possibility of evidence that
would be of value to the accused in presenting a case.” United
States v. Boone, 49 M.J. 187, 196 (C.A.A.F. 1998). Further,
generally speaking, “[e]ffective counsel will contact potential
witnesses to determine the facts” of the case. United States v.
Fluellen, 40 M.J. 96, 98 (C.A.A.F. 1994). However, the duty to
investigate does not require trial defense counsel to personally
interview every potential witness in a case. See LaGrand v.
United States v. Akbar, No. 13-7001/AR
32
Stewart, 133 F.3d 1253, 1274 (9th Cir. 1998). For example,
“there comes a point at which evidence from more distant
relatives can reasonably be expected to be only cumulative” and
“distract [counsel] from more important duties.” Bobby v. Van
Hook, 558 U.S. 4, 11 (2009). As a result, the key point in
deciding this issue is whether counsel made a good faith and
substantive effort to identify those individuals who might be
most helpful at trial, and to implement a means for obtaining
information about and from these potential witnesses, thereby
allowing counsel an opportunity to make an informed decision
about their value for Appellant’s court-martial. Cf. Eggleston
v. United States, 798 F.2d 374, 376 (9th Cir. 1986) (noting that
trial counsel need not interview a witness if the account is
fairly known to counsel).
Trial defense counsel met this standard here.
Specifically, counsel developed a strategy whereby a mitigation
expert first interviewed potential witnesses and then provided
counsel with a summary of their statements. For those family
members with relevant information, one defense counsel would
then conduct a phone interview to determine whether to select
the person as a witness. There is nothing inherently deficient
about this strategy.
The parties dispute whether trial defense counsel actually
interviewed certain witnesses. For the sake of our analysis, we
United States v. Akbar, No. 13-7001/AR
33
will assume that trial defense counsel did not personally
conduct interviews of any of Appellant’s family members and
friends. The record nonetheless indisputably reflects that LTC
Hansen (when he was part of the defense team) and/or the
mitigation specialists did interview those witnesses and then
provided the defense team with summaries of those interviews.
Those witnesses included Appellant’s father, brother, sisters,
two cousins,8 a high school friend, and former landlady. We
conclude that these summaries allowed trial defense counsel to
make informed decisions about whether to call these potential
witnesses to testify at trial. Therefore, we do not find a
sufficient basis to conclude that they engaged in ineffective
assistance of counsel.
C. Nontestifying Professional/Expert Witnesses
Appellant claims that trial defense counsel were
ineffective in failing to interview or call to testify Dr. Donna
Sachs, Appellant’s treating college psychologist, and Dr.
Wilbert Miles, a clinical psychologist. At the outset, we note
that “[i]t can be assumed that in some cases counsel would be
deemed ineffective for failing to consult or rely on experts.”
8 Appellant complains about counsels’ failure to interview a third cousin, Kimberly Vines, but we agree with the Government that her claim about having no recollection of an interview is simply “too equivocal and ambiguous to overcome the presumption” of counsel’s competence. United States v. Key, 57 M.J. 246, 249 (C.A.A.F. 2002).
United States v. Akbar, No. 13-7001/AR
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Harrington v. Richter, 562 U.S. 86, 106 (2011). However, that
is not the case here.
The record demonstrates that trial defense counsel believed
that a mitigation expert had coached or influenced Dr. Sachs’
memory of Appellant. Regardless of whether counsels’ belief was
correct, trial defense counsels’ concern was reasonable.
Therefore, we will not second guess counsels’ tactical decision
in declining to rely on Dr. Sachs.
We also conclude that there was no deficiency in trial
defense counsels’ decision not to rely on Dr. Miles despite his
expertise in the special challenges faced by African American
soldiers. See Richter, 562 U.S. at 107 (noting that counsel can
formulate reasonable strategy even if it means ignoring experts
“whose insight might possibly have been useful”). We note that
trial defense counsel already had the assistance of other mental
health professionals, including a neuropsychiatrist, a
neuropsychologist, and a forensic psychiatrist. See United
States v. Loving, 41 M.J. 213, 250 (C.A.A.F. 1994). “The mere
fact that [trial] defense counsel did not ‘shop around’ for
another more favorable expert [did] not render them
ineffective.” Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir.
1992).
Moreover, even if counsel were deficient in not having Dr.
Miles testify at trial, Appellant has not established any
United States v. Akbar, No. 13-7001/AR
35
prejudice resulting from this assumed deficient performance.
First, much of the information that would have been elicited
from Dr. Miles was already obtained from Dr. Woods. Second, we
recognize that Dr. Miles, unlike Dr. Woods, could have provided
an opinion about “how someone from [Appellant’s] background and
culture, presented with distress[ing] life experiences and [a]
history of racial oppression, may have [developed] a state of
mind that his own life was under imminent risk.” However,
Appellant has not demonstrated that this information would have
led to a different outcome on the merits or at sentencing. We
therefore find no merit to Appellant’s ineffective assistance
claims based on counsels’ failure to rely on Dr. Miles or Dr.
Sachs.
ii. Site Visits
Appellant asserts that trial defense counsel were deficient
because they failed to travel to the locations where Appellant
grew up, which he believes hindered them from properly
interviewing witnesses and fully understanding Appellant. The
premise of Appellant’s argument is flawed because the defense
team did conduct site visits. Both LTC Hansen, the first lead
counsel in this case, and the mitigation specialists made site
visits to Appellant’s high school and his childhood
neighborhoods, conducted interviews with Appellant’s
acquaintances and family members, and summarized the interviews
United States v. Akbar, No. 13-7001/AR
36
from these visits in memoranda used by the trial defense
counsel. We conclude that trial defense counsel acted
reasonably in opting not to repeat site visits performed by
others on the defense team.
iii. Use of Mitigation Experts
Appellant next criticizes trial defense counsels’ use of
the mitigation specialists in his case, pointing to counsels’
failure to follow all of their advice as well as the purported
dysfunction in counsels’ relationship with them. In examining
this issue, we first acknowledge the special importance of
mitigation specialists in military justice capital cases. See
Kreutzer, 61 M.J. at 298 n.7, 302-03, 305. Without a
“professional death penalty bar in the military services,” these
specialists are likely “the most experienced member[s] of the
defense team in capital litigation.” Id. at 298 n.7. The
mitigation specialists’ role is “to coordinate an investigation
of the defendant’s life history, identify issues requiring
evaluation by psychologists, psychiatrists or other medical
professionals, and assist attorneys in locating experts and
providing documentary material for them to review.” Id. at 302
(citation and footnote omitted). The specialists are considered
“an indispensable member of the defense team throughout all
capital proceedings.” Id. at 305 (citation omitted). As a
result, “mitigation specialists may play a particularly
United States v. Akbar, No. 13-7001/AR
37
important role in ensuring the fair and full adjudication of
military death penalty cases where . . . counsel have little
training or experience in capital litigation.” Id. at 303.
In the instant case, however, we first conclude there is no
basis to find counsel ineffective for failing to always follow
the mitigation specialists’ advice. It is counsel, not
mitigation specialists, who are entrusted with making strategic
litigation decisions in each case. See Strickland, 466 U.S. at
689 (noting “the constitutionally protected independence of
counsel” and “the wide latitude counsel must have in making
tactical decisions”).
Second, for purposes of this appeal we will accept the
premise that there was some dysfunction with and antipathy
toward the mitigation specialists on the part of the trial
defense counsel. But despite these problems, the various
mitigation specialists employed in Appellant’s case performed
extensive work and gathered significant information about
Appellant’s background, upbringing, and related issues which the
trial defense counsel effectively used in the preparation and
presentation of Appellant’s case. We particularly note the
efforts of Ms. Grey, whose nearly 400 hours of mitigation work
resulted in interviews, interview summaries, and thousands of
pages of records which were provided to trial defense counsel.
When Ms. Grey was fired by Appellant at his mother’s behest, Ms.
United States v. Akbar, No. 13-7001/AR
38
Grey estimated that an additional 150 to 210 hours of work was
needed to complete the mitigation investigation. One of her
successor mitigation specialists, Ms. Nerad, performed nearly
three times this estimate by billing approximately 565 hours of
work, which resulted in additional interviews, summaries, and
records reviewed by trial defense counsel. Therefore,
regardless of whatever dysfunction or antipathy might have
existed, the mitigation specialists were able to adequately
perform their important role by providing trial defense counsel
relevant and useful information in defending Appellant. See
Kreutzer, 61 M.J. at 302. Trial defense counsel then used this
information to defend Appellant both during the merits and
penalty phases of the trial in questioning witnesses and
presenting evidence.
Finally, trial defense counsel made a reasonable strategic
decision not to have a mitigation specialist testify or be
physically present at Appellant’s trial. Although it may be
advantageous to have a mitigation specialist actively
participate at a capital trial, it is not required. See
Kreutzer, 61 M.J. at 305. Moreover, the circumstances of this
case demonstrate that counsel acted reasonably in deciding not
to employ a mitigation specialist at trial. See Pinholster,
131 S. Ct. at 1406 (“No particular set of detailed rules for
counsel’s conduct can satisfactorily take account of the variety
United States v. Akbar, No. 13-7001/AR
39
of circumstances faced by defense counsel . . . .”) (quoting
Strickland, 466 U.S. at 688-89). The record demonstrates that
the appointed mitigation specialist at the time of trial, Ms.
Nerad, disagreed with a number of approaches taken by trial
defense counsel. Under these circumstances, trial defense
counsel could reasonably conclude that the presence and
participation of the mitigation specialist at trial would not
have been beneficial. See id. at 1407 (noting that reviewing
court must entertain the range of possible reasons for counsel’s
decisions). Therefore, we find no basis to conclude that trial
defense counsel were ineffective in the manner in which they
used the mitigation specialists.
iv. Information to Dr. Woods
Appellant claims that trial defense counsel were
ineffective for failing to provide Dr. Woods with certain
information, including sufficient mitigation evidence and
additional psychological testing data. Appellant asserts that
this information would have allowed Dr. Woods to make a forensic
diagnosis that Appellant suffered from schizophrenia and post
traumatic stress disorder.
However, even if we assume Dr. Woods received none of this
material, we still find no demonstrated prejudice. First, even
in the absence of additional information, Dr. Woods was able to
provide the panel with “differential diagnoses” of schizotypal
United States v. Akbar, No. 13-7001/AR
40
personality disorder, high functioning paranoid schizophrenia,
and schizoaffective disorder. Dr. Woods opined that on March
22, 2003, Appellant’s symptoms, “played a great role in his
mental state at the time of the offense” by “overwhelm[ing
Appellant] emotionally and to really not think as clearly, to
not really understand.” The post-trial affidavits do not
demonstrate that Dr. Woods would have changed this opinion or
strengthened it with additional information or testing.
Second, Dr. Woods testified that “it would really require
appropriate treatment to really determine which of the three
[differential diagnoses] would be accurate.” (Emphasis added.)
This testimony indicates that Dr. Woods himself recognized that
he could not have given a more definitive diagnosis of
Appellant, even with more testing and mitigation information.
Third, Dr. Woods downplayed the importance of a precise
diagnosis, stating: (1) “The fact that it may not be called
schizophrenia or what have you is, in the long run, less
important . . . .”; and (2) “The fact that it’s not -- it may
not be called schizophrenia is not clinically relevant.” As can
be seen then, Dr. Woods’s testimony emphasized Appellant’s
symptoms and minimized the importance of a precise diagnosis.
Under these circumstances, we conclude that Appellant has not
demonstrated any likelihood of a different outcome in this case
United States v. Akbar, No. 13-7001/AR
41
even if trial defense counsel had provided additional
information or testing data to Dr. Woods.
b. Additional Funding and Continuances
Appellant claims that trial defense counsel were
ineffective for failing to request additional funding and for
failing to seek a continuance at two separate points before
trial -- following the mitigation specialist’s request in early
March 2005, and following Appellant’s alleged stabbing of the MP
in late March 2005. We first reject this argument because
Appellant has not carried “his burden to show that his counsel
would have been successful if he had filed . . . timely
motion[s]” for a continuance and additional funding. United
States v. Jameson, 65 M.J. 160, 164 (C.A.A.F. 2007). Simply
stated, there is no “reasonable probability that [the] motion[s
for a continuance and additional funding] would have been
[deemed] meritorious” by the military judge. Id. at 163-64
(quoting United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F.
2001)). These motions would have come a few days before and one
month before the start of trial, respectively, and after the
military judges in this case already had granted three prior
continuances in a case that was originally scheduled for trial
in July 2004. Given the late requests and this record of delay,
which totaled more than 700 days after the Camp Pennsylvania
attack, there is an insufficient basis for us to conclude that
United States v. Akbar, No. 13-7001/AR
42
the military judge likely would have granted additional
continuances, see United States v. Wiest, 59 M.J. 276, 279
(C.A.A.F. 2004) (listing factors relevant for continuance), or
additional funding, see United States v. Garries, 22 M.J. 288,
291 (C.M.A. 1986) (requiring showing of why request for funds
was needed).
We next observe that Appellant has not adequately
demonstrated that additional time or funding in early March 2005
would have resulted in a more favorable outcome in the
proceedings. Specifically, Appellant has not demonstrated that
additional investigation would have resulted in a substantively
different or enhanced mitigation posture at trial, particularly
where approximately 1,000 hours of investigation already had
been devoted to this case. Accordingly, Appellant has not
established that counsel were ineffective for failing to request
additional funds or a continuance in early March 2005.
In regard to late March 2005, we also conclude that counsel
were not ineffective for deciding not to seek a continuance
after the March 30, 2005, stabbing of the MP. The record is
clear that trial defense counsel made the strategic calculation
that a delay in the court-martial would provide the Government
with an opportunity to charge Appellant with the assault on the
MP. Evidence admitted at trial in support of this additional
specification likely would have greatly undermined the defense
United States v. Akbar, No. 13-7001/AR
43
position that Appellant’s prior violent conduct was aberrational
and that Appellant had rehabilitative potential. Therefore, we
do not conclude that trial defense counsel were ineffective for
deciding not to seek a continuance at that point in the
proceedings.
c. Special Instruction Regarding Guilty Pleas
Appellant contends that his trial defense counsel were
ineffective for failing to seek a mitigation instruction
concerning Appellant’s inability to plead guilty.9 Indeed, we
note that before trial began, trial defense counsel withdrew a
requested instruction informing the members that because this
matter had been referred as a capital case, Article 45, UCMJ, 10
U.S.C. § 845 (2012), required Appellant to plead not guilty and
be tried before members. However, the record shows that trial
defense counsel acted entirely reasonably in obtaining the
withdrawal of this instruction for the simple reason that
Appellant had decided not to submit an offer to plead guilty and
instead had decided to argue at trial that he had not
premeditated the attacks. Therefore, we conclude that trial
defense counsel were not ineffective for withdrawing the
instruction.
9 Article 45, UCMJ, states, “A plea of guilty by the accused may not be received to any charge or specification alleging an offense for which the death penalty may be adjudged.” Article 45(b), UCMJ, 10 U.S.C. § 845(b) (2000).
United States v. Akbar, No. 13-7001/AR
44
d. Voir Dire
Appellant challenges trial defense counsels’ use of an “ace
of hearts” strategy during the voir dire process.10 An ace of
hearts strategy is predicated on the fact that in order for a
panel to impose a death sentence, the members must vote
unanimously to impose that sentence. See R.C.M. 1006(d)(4).
Therefore, the strategy posits that the accused will benefit
from having the largest possible number of panel members because
that will increase the chances that at least one member of the
panel (the so-called “ace of hearts”) will vote for a sentence
other than the death penalty. In furtherance of this strategy,
trial defense counsel in the instant case made the strategic
decision to minimize their use of peremptory challenges and
challenges for cause.
It may be argued that the ace of hearts strategy ignores
panel dynamics whereby vocal and opinionated members hostile to
the defense position may disproportionately impact
deliberations.11 However, in light of the fact that trial
10 Appellant also claims that counsel were ineffective for failing to seek a change in venue. The record reflects that counsel sought to change venue but failed to convince the military judge of the need to do so. As a result, counsels’ attempt to change venue means that they were not ineffective for failing to do so. 11 See Eric R. Carpenter, An Overview of the Capital Jury Project for Military Justice Practitioners: Jury Dynamics, Juror Confusion, and Juror Responsibility, 2011 Army Law. 6, 8-10, 1316 & nn. 28, 46-47 (May 2011).
United States v. Akbar, No. 13-7001/AR
45
defense counsel consulted with other experienced attorneys and
relied on an appellate military judge’s concurring opinion in
United States v. Simoy, 46 M.J. 592, 625 (A.F. Ct. Crim. App.
1996) (Morgan, J., concurring), rev’d in part on other grounds
by 50 M.J. 1 (C.A.A.F. 1998), before deciding to employ this
strategy, we conclude that their decision is “virtually
unchallengeable.” United States v. Curtis, 44 M.J. 106, 119
(C.A.A.F. 1996) (quoting Strickland, 466 U.S. at 690).12
Therefore, we conclude that there was no ineffective assistance
of counsel.
2. Merits Phase
Appellant claims that trial defense counsel were
ineffective for conceding guilt in opening statement, during the
defense case on the merits, and in closing argument. However,
Appellant’s assertions are misplaced because trial defense
counsel never conceded that Appellant was guilty of premeditated
murder, only that he had committed certain acts.
To be blunt, there was absolutely overwhelming evidence
adduced at trial that Appellant committed the acts that resulted
in the deaths of MAJ Stone and CPT Seifert, and the wounding of
fourteen other military officers. Therefore, it was not
12 As discussed infra, we do not find a sufficient basis to conclude that any of the panel members should have been disqualified for cause, so counsel were not ineffective for failing to challenge members for bias.
United States v. Akbar, No. 13-7001/AR
46
unreasonable for trial defense counsel to forego trying to
convince the court-martial panel to the contrary, and to instead
focus squarely on trying to persuade the panel members that
Appellant’s acts were not premeditated. Accordingly,
concessions such as the ones made by trial defense counsel that
Appellant “threw those grenades” and “shot and killed Captain
Seifert” were not unreasonable because they did not concede
Appellant’s guilt to capital murder. Indeed, this type of
approach is a well-recognized defense strategy in capital cases.
See Florida v. Nixon, 543 U.S. 175, 190-91 (2004); Lingar v.
Bowersox, 176 F.3d 453, 458–59 (8th Cir. 1999) (holding that
concession of elements of second-degree murder to challenge
defendant’s mens rea for a capital-murder conviction was not
constitutionally deficient where overwhelming evidence pointed
to defendant as perpetrator). Accordingly, we conclude that
trial defense counsel were not ineffective in this regard.
3. Penalty Phase
Appellant describes trial defense counsels’ presentencing
presentation as consisting of “[t]hirty-eight minutes [of
testimony and Appellant’s unsworn statement] and a document
dump.” Specifically, he criticizes the performance of trial
defense counsel for failing to develop a coherent mitigation
theme, submitting his entire diary for the panel’s review, and
United States v. Akbar, No. 13-7001/AR
47
presenting a mitigation case primarily through documents instead
of live witness testimony.
In closely analyzing this issue, we acknowledge at the
outset that trial defense counsel may well have presented a
stronger case in mitigation if they had adopted a different
approach and taken different steps during the presentencing
phase of this court-martial. However, in determining whether
there was ineffective assistance of counsel, we do not assess
trial defense counsels’ performance through the prism of
appellate hindsight and then apply our subjective view of how we
think defense counsel should have conducted the trial. Rather,
pursuant to Supreme Court precedent, we are obligated to
determine whether trial defense counsels’ performance fell below
an “objective standard of reasonableness” and, if so, whether
there was a “reasonable probability” that the result of the
proceeding would have been different absent counsels’ deficient
performance. Strickland, 466 U.S. at 688, 694. In the instant
case, not only do we conclude that trial defense counsels’
performance was not “measurably below the performance standards
ordinarily expected of fallible lawyers,” Davis, 60 M.J. at 474,
we also conclude that even if trial defense counsel had handled
the mitigation case precisely as appellate defense counsel now
avers they should have, there is no reasonable probability that
the court-martial panel would have imposed a lesser sentence.
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See Loving v. United States, 68 M.J. 1, 7 (C.A.A.F. 2009).
Accordingly, for the reasons cited in greater detail below, we
disagree with Appellant’s assessment of this issue.
a. Mitigation Theme
Appellant argues that trial defense counsel failed to
develop a comprehensive and compelling mitigation argument
encompassing Appellant’s upbringing in accordance with the
tenets of the Nation of Islam, his need to overcome great
disadvantages as a youth, and his continued willingness to
provide love and support to his family. We recognize that
counsel are well advised to adopt a coherent defense theme and
strategy throughout a trial. Curtis, 44 M.J. at 120. However,
there are a number of acceptable ways to establish, develop, and
present such a theme in any given case. See Pinholster, 131 S.
Ct. at 1407.
In the instant case, the record reflects that trial defense
counsels’ mitigation strategy was to emphasize Appellant’s
mental illness while also pointing out Appellant’s difficult
upbringing, his lack of ties to radical Islamic groups, and the
Army leadership’s questionable decision to bring Appellant to
Kuwait despite signs of mental illness and poor NCO skills. The
evidence that supported these arguments was developed during
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both the merits13 and penalty phases of the trial. Because trial
defense counsels’ decision about how best to handle the
sentencing argument followed an extensive mitigation
investigation and exploration of other possible approaches,
Appellant’s criticism amounts to a dispute over counsels’
strategy. See United States v. Gray, 51 M.J. 1, 19 (C.A.A.F.
1999) (characterizing argument about counsels’ failure to
present an “adequate sentencing case” as an attack on “strategy
and tactics”). Under such circumstances, Appellant has not
established that trial defense counsels’ selection and
presentation of a mitigation theme constituted ineffective
assistance of counsel.
13 The “frontloading” of mitigation evidence during the merits phase is reasonable where the same fact-finder (1) considers guilt and penalty evidence and (2) is instructed about the ability to consider all evidence for mitigation. See Pinholster, 131 S. Ct. at 1408 (citing Woodford v. Visciotti, 537 U.S. 19, 25 (2002)); Bell v. Cone, 535 U.S. 685, 699 (2002) (rejecting ineffective sentence claim for failure to present testimony of medical experts at penalty phase where “compelling mitigating evidence” admitted during guilt phase); Curtis, 44 M.J. at 119 (“Mitigating evidence may . . . be introduced at both the findings and the sentencing stages of a capital trial.”); Eaton v. Wilson, No. 09-CV-261-J, 2014 U.S. Dist. LEXIS 163567, at *398-*99, 2014 WL 6622512, *149-*50 (D. Wyo. Nov. 20, 2014) (explaining that “if the jury knows nothing about the defendant other than the facts of the crime when it renders its verdict finding him guilty, the defense bears a very heavy burden to win them over to life in the second stage of trial”). Here, the military judge instructed the panel that it could “consider any matter in extenuation and mitigation, . . . whether it was presented before or after findings.” Counsel therefore reasonably adopted a strategy of presenting mitigation evidence during the guilt phase.
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b. Submission of the Diary
Appellant argues that trial defense counsel were
ineffective for submitting the entirety of Appellant’s “damning”
diary into evidence at sentencing because it led to the
introduction of aggravating evidence, not mitigating evidence.
However, upon closely analyzing this issue, we find there is an
insufficient basis to conclude that trial defense counsel
provided ineffective assistance of counsel.
To be clear, we fully recognize that some of the entries
contained in the diary introduced by the defense were, indeed,
damning. However, we are also mindful of the fact that when
counsel made the decision to introduce the entire diary, the
Government already had presented to the panel some of its most
damaging portions. For example, the Government introduced the
following two passages: “[A]s soon as I am in Iraq I am going
to try to kill as many [fellow soldiers] as possible”; and “I
may have to make a choice very soon about who to kill. . . . I
will have to decide if I should kill my Muslim brothers fighting
for Saddam Hussein or my battle buddies.” These portions, along
with others introduced to the panel upon admission of the entire
diary, underscored Appellant’s premeditation. However, it is
important to note that at the time of the diary’s admission, the
members had already found premeditation during the merits phase,
and the existence or degree of premeditation was not at issue
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during sentencing. Therefore, the record indicates not only
that trial defense counsel reasonably concluded that additional
passages in the diary would not inflict any more damage on the
defense than those already selected by the Government, but that
they also reasonably concluded that the diary in its entirety
would paint a persuasive portrait of a mentally ill man who
could not control his thought processes or his actions in the
period leading up to the Camp Pennsylvania attack.14 Therefore,
we conclude that trial defense counsel were well aware of the
inflammatory nature of portions of the diary, yet made a
strategic decision to submit the diary in its entirety. In
doing so, we note that generally speaking, we “‘will not second
guess the strategic or tactical decisions made at trial by
defense counsel.’” United States v. Mazza, 67 M.J. 470, 475
(C.A.A.F. 2009) (quoting United States v. Anderson, 55 M.J. 198,
202 (C.A.A.F. 2001)). Indeed, we decline to do so here.
14 For instance, in the diary entries from the two months before Appellant’s attack, Appellant wrote (1) “I am in no condition to take care of a family and when I leave the Army, I may be homeless. I pace, daydream, and talk to myself everyday. And I am alone with very little chance of finding a mate.”; and (2) “I am a loser. That is just the truth. Everything I have tried to work for I don’t have. A wife, good job, Self-respect.” Throughout the thirteen years that Appellant kept the diary, his entries reflected his struggles as demonstrated by his thoughts about suicide, his low self-esteem, his problems staying awake, his isolation or loneliness, his problems having relationships with women, his sexual frustrations, his problematic relationships with his parents, and his problems maintaining employment.
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Appellant further claims that even if it was a reasonable
strategic decision to admit the diary as a whole, witness
testimony was needed to place the diary entries into proper
perspective. The record shows, however, that counsel did
contextualize the diary through Dr. Woods’s testimony, as well
as through the FBI analysis of the diary and Ms. Grey’s analysis
of the diary, which were submitted to the panel members as
evidence. Also, counsels’ sentencing argument emphasized that
the diary provided an important glimpse into Appellant’s mental
state and that it showed the facts and effects of Appellant’s
difficult upbringing. Moreover, with the diary’s admission,
counsel was able to argue at sentencing that despite the
conflict between the mental health experts as to a specific
diagnosis, the diary showed that Appellant suffered from a
profound mental illness when he committed the offenses, which
warranted a sentence of life imprisonment rather than the death
penalty. Given these circumstances, we conclude that counsels’
performance was not deficient.
c. Mitigation Primarily Through Documents
Appellant claims that trial defense counsel were
ineffective because they presented Appellant’s mitigation case
primarily through documents instead of through live testimony by
family and friends. However, we disagree with Appellant’s
initial premise that the mitigation case consisted only of
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thirty-eight minutes of testimony and a “document dump.” The
record shows that trial defense counsel actually began
developing the mitigation case during the merits phase of the
trial. They did so through the testimony of the expert
witnesses, members of Appellant’s unit, and Appellant’s college
roommate. This evidence covered Appellant’s troubled
upbringing, his strange behavior, his tendency to spend time
alone, his poor skills as an NCO, his symptoms of mental
illness, and his mental illness diagnoses. Once the merits
phase ended, counsel did not ignore this evidence but instead
built upon it during the presentencing phase and relied upon it
during the sentencing arguments. Therefore, we conclude that
trial defense counsel presented a more substantial and
thoughtful mitigation case at trial than Appellant now claims on
appeal.
We also disagree with Appellant’s criticism of trial
defense counsels’ decision to present mitigation evidence
primarily through documents rather than through live testimony.
In examining this issue, we view it as an essential fact that
trial defense counsels’ presentation was greatly affected by
Appellant’s alleged stabbing of an MP just days before the
court-martial began. In light of this incident, trial defense
counsel made a strategic decision to be very cautious about
taking any steps that could be used by the Government to
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introduce evidence of this uncharged misconduct in the course of
the trial. Trial defense counsel were successful in this
effort, and we deem their approach to be a reasonable and
appropriate one. See American Bar Association Guidelines for
the Appointment and Performance of Defense Counsel in Death
Penalty Cases (ABA Guidelines) 10.11.G, reprinted in 31 Hofstra
L. Rev. 913, 1056-57 (2003) (noting that “[i]n determining what
presentation to make concerning penalty, counsel should consider
whether any portion of the defense case will open the door to
the prosecution’s presentation of otherwise inadmissible
aggravating evidence”). Any one of the witnesses who might have
been called to testify by the defense could have unintentionally
opened the door to evidence about the MP stabbing by, for
example, testifying about their belief that Appellant’s actions
at Camp Pennsylvania were out of character. Therefore, trial
defense counsel reasonably concluded that they should limit the
number of defense witnesses both because they posed a danger to
Appellant’s case and because, if they did testify, their
testimony would be so circumscribed that whatever value they
otherwise would have had for the defense would be substantially
diminished. See Cone, 535 U.S. at 700-01 (finding state court’s
application of Strickland was not unreasonable with respect to
failing to call other witnesses where “counsel feared that the
prosecution might elicit information about [the defendant’s]
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criminal history”); Burger, 483 U.S. at 792 (concluding decision
not to present character witnesses not unreasonable where prior
convictions might have been introduced on cross); Tinsley v.
Million, 399 F.3d 796, 809-10 (6th Cir. 2005) (noting no
testimony may be better than some testimony “given the risk that
every positive argument by a defendant potentially opens the
door to a more-harmful response”).
We also conclude that trial defense counsel did not merely
“dump” a bunch of documents on the panel. Counsel reviewed and
selected relevant documents for the members to consider, which
were presented to each member in a binder. Among the documents
submitted to the members were those that provided important
context for, and useful summaries of, Appellant’s diary.
The military judge implicitly instructed the members that
they were required to review the documents in the binders. For
instance, the military judge instructed the members prior to
disseminating the binders as follows:
The defense has requested, the government does not oppose, and I’m going to allow you to take several defense exhibits with you when we recess for the day in a few moments. They are in the black binders in front of you. The exhibits contain a lot of material, and it will help if you have read through the documents before the defense calls its witnesses starting tomorrow. Since counsel estimate it may take some time to do so, rather than require you to read it in open court, which is what would normally happen, I’m going to let you read it at home or work.
A couple cautionary instructions however. You are only to read the exhibits. Please do not conduct
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any independent research based on anything you may read. Also, please, do not discuss the exhibit with anyone, to include friends and family members, or yourselves. You can only discuss the exhibits with each other once you begin your formal deliberations, which probably won’t happen until Thursday. Also do not copy the exhibits or let anyone else read them. And please bring them back with you when you return to court tomorrow morning . . . .
This instruction informed the members of their duty to review
the exhibits in two ways. First, the military judge told the
members, “rather than require you to read [the evidence] in open
court, which is what would normally happen,” they were being
permitted to “read it at home or work.” (Emphasis added.)
Second, the military judge told the members they were “only to
read the exhibits” instead of discussing them or performing
research. (Emphasis added.) These facets of the instruction
had the effect of notifying the members that they had to review
Appellant’s documentary evidence.
The military judge reiterated the members’ duty to review
the defense exhibits when he allowed the members to take the
binders home for a second day, stating: “[Y]ou should be able
to take them with you for the rest of the day if you need more
time to review the documents.” (Emphasis added.) By informing
the members that they had more time to review the documents, the
military judge again signaled to the members that they were
United States v. Akbar, No. 13-7001/AR
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expected to review all the evidence.15 The record does not
reveal that the members disobeyed the military judge’s
instructions, so we presume that the members followed them. See
United States v. Stewart, 71 M.J. 38, 42 (C.A.A.F. 2012). We
therefore conclude that the members were aware of their duty to
review, and did in fact review, the evidence submitted to them
in the binders.
Counsels’ sentencing argument then explained the purpose of
the diary by asserting that it provided a “unique” look into
Appellant’s troubled mind. This is hardly a case in which
counsel obtained records and “then dump[ed] the whole file in
front of the jury without organizing the files, reading them,
15 Besides these specific instructions, the military judge’s general sentencing instructions apprised the members of their duty to consider all evidence in the case, including that submitted in the binders. For instance, the military judge instructed the members that their deliberations on the aggravating factors “should properly include a full and free discussion on all of the evidence that has been presented.” (Emphasis added.) The military judge also instructed the members that they could consider “any matter in extenuation and mitigation, whether pre-offense or post-offense; whether it was presented before or after findings; and whether it was presented by the prosecution or the defense.” These general sentencing instructions informed the members that their sentencing deliberations were to be based on all the evidence, which included the defense sentencing exhibits the military judge permitted the members to take home. Finally, the military judge instructed the members of the importance of considering the evidence submitted in the binders when he listed the possible mitigating factors in the case, some of which explicitly referenced the evidence submitted in the binders, including Appellant’s diary, Ms. Grey’s interviews of individuals, the diary analyses by Ms. Grey and the FBI, and the social service records.
United States v. Akbar, No. 13-7001/AR
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eliminating irrelevant files or explaining to the jury how or
why they are relevant.” Johnson v. Bagley, 544 F.3d 592, 602
(6th Cir. 2008). Accordingly, we do not see a sufficient basis
to conclude that trial defense counsels’ method of introducing
the documents was deficient.
Appellant insists that the live testimony of family members
and friends, not submission of documents, was needed to present
all the available mitigation evidence to counter the
Government’s aggravation evidence. He further argues that trial
defense counsels’ failure to present this evidence constituted
an incomplete and incompetent defense.
To be sure, “evidence about [an accused’s] background and
character is relevant because of the belief, long held by this
society, that [those accused] who commit criminal acts that are
attributable to a disadvantaged background, or to emotional and
mental problems, may be less culpable than [those] who have no
such excuse.” Loving, 68 M.J. at 15 (quoting Boyde v.
California, 494 U.S. 370, 382 (1990)). Here, however, trial
defense counsel did not ignore Appellant’s social history. They
introduced evidence about Appellant’s abusive stepfather through
the testimony of Drs. Tuton and Woods. Further, through
testimony, a declaration from Appellant’s brother, and the
mitigation specialist’s interview notes, they introduced
evidence about Appellant growing up in impoverished
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circumstances and living and going to school in dangerous
neighborhoods. And through Appellant’s diary, trial defense
counsel also introduced evidence of Appellant’s adverse
upbringing. Finally, the exhibits submitted by trial defense
counsel at sentencing contained information that humanized
Appellant such as the diary entries that detailed assistance to
his family and listed his goals of assisting his family and his
community, the interview summaries of Appellant’s teachers that
described his work ethic and politeness, the statement from
Appellant’s brother that recounted Appellant’s financial
support, and the interview summary from Appellant’s childhood
imam that described Appellant’s lack of aggression. Therefore,
there is an insufficient basis to conclude that trial defense
counsel needed additional live testimony in order to present key
points of their mitigation case.
The record also reveals that counsel did not act
unreasonably in choosing not to present live testimony from
Appellant’s father, brother, sisters, cousins, high school
friend, and former landlady. A trial defense counsel’s decision
on whether to call a witness is a tactical decision. See United
States v. Anderson, 55 M.J. 198, 202 (C.A.A.F. 2001); Fluellen,
40 M.J. at 98 (noting part of the tactical decision in the case
was deciding what witnesses not to call). In this case, trial
defense counsel made an informed tactical decision, after a
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reasonable investigation, when selecting trial witnesses. See
Wiggins, 539 U.S. at 533-34. Therefore, for this reason and for
the additional reasons cited below, we conclude that Appellant
has not provided us with a sufficient basis to question trial
defense counsels’ tactical decisions regarding these witnesses.
First, trial defense counsel had interactions with
Appellant’s father prior to trial and obtained additional
information about his background through the mitigation expert’s
report. They therefore assessed his likely manner of
presentation as a witness, and learned of his significant
criminal background, history of drug use, and impaired cognitive
abilities. See Pinholster, 131 S. Ct. at 1407 (noting that in
applying strong presumption of competence, court is required to
affirmatively entertain range of possible reasons for counsel’s
performance). Upon doing so, counsel explicitly informed the
military judge that they had made an informed, conscious, and
strategic decision not to have Appellant’s father testify during
sentencing. See Lord v. Wood, 184 F.3d 1083, 1095 n.8 (9th Cir.
1999). We see no basis to question this decision.
Appellant claims that his father would have served as a
valuable witness to document “the prejudices the Nation of Islam
instilled in” Appellant. Indeed, trial defense counsel could
have employed this strategy of eliciting testimony on this
point. However, they chose a different strategy, one that
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described Appellant as not being “hate-filled” but “a person
with mental illness, who is very sensitive to anything said to
him.” In fact, trial defense counsels’ affidavit explains that
they wanted to downplay Appellant’s link to the Nation of Islam
because it would “likely . . . carry strong negative
connotations with the panel members,” which ultimately would
harm Appellant’s defense. Additionally, counsel chose not to
portray Appellant as a hate-filled person since childhood
because this approach would have conflicted with their strategy
of portraying Appellant’s actions on March 22, 2003, as
aberrational and not premeditated, and because it would have
undermined their position that Appellant had rehabilitative
potential. We therefore do not find a basis to question
counsels’ tactical decision not to call Appellant’s father to
testify.
Second, we conclude that counsel was not deficient in
presenting the declaration of Appellant’s brother at trial
rather than having the brother testify. Although the brother
now claims that he was willing and able to testify at
Appellant’s trial, the brother’s April 26, 2005, trial
declaration stated that he could not leave his wife’s side due
to the birth of a child. Additionally, we conclude there is no
additional information in the brother’s post-trial one-page
declaration that reasonably could be considered powerful
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mitigation evidence. We do not consider counsels’ failure to
call Appellant’s brother as a witness to be deficient
performance under these circumstances.
Third, the record reflects that trial defense counsel had
the mitigation specialists’ interview summaries for Appellant’s
sisters, his cousins, a high school friend, and his former
landlady. With this information, trial defense counsel made an
informed decision not to call these witnesses, and we do not
find a sufficient basis to second-guess that decision. Cf. Lema
v. United States, 987 F.2d 48, 54 (1st Cir. 1993) (noting that
“decision whether to call a particular witness is almost always
strategic, requiring a balancing of the benefits and risks of
the anticipated testimony”).
We finally conclude that even if trial defense counsels’
mitigation presentation was deficient, Appellant has not
established prejudice. This inquiry asks “whether if the
members had been able to place the additional evidence ‘on the
mitigating side of the scale, there is a reasonable probability
that at least one [member] would have struck a different
balance.’” Loving, 68 M.J. at 7 (quoting Wiggins, 539 U.S. at
537). The new mitigating evidence “must differ in a substantial
way -- in strength and subject matter -- from the evidence
actually presented at sentencing.” Id. at 16 (quoting Hill v.
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63
Mitchell, 400 F.3d 308, 319 (6th Cir. 2005)). Appellant has not
met this standard.
The additional post-trial evidence in this case can
generally be placed into one of seven categories: Appellant’s
parents’ backgrounds, the history of family mental illness,
Appellant’s challenging upbringing and his positive qualities as
a child, the influence on Appellant of the Nation of Islam,
Appellant’s high school experience, Appellant’s attempt to repay
a debt, and the impact of Appellant’s execution on his family.
Many of these areas were presented at trial, including
information about Appellant’s upbringing and positive qualities,
his high school experience, and the existence of mental health
issues in the family. While some of the post-trial information
may be viewed as elaborating on these points, there is not a
sufficient basis to conclude that this information was different
in quality or substance from what the members actually
considered. Therefore, we consider it to be “largely
cumulative.” See Loving, 68 M.J. at 16.
We recognize that the material submitted by Appellant post
trial includes information in four areas that were not addressed
at the court-martial. However, we conclude that Appellant was
not prejudiced by counsels’ failure to present this evidence.
First, trial defense counsel concluded that the role of the
Nation of Islam in Appellant’s life represented a “double-edged
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sword” in that any mitigation effect of this information may
have been outweighed by the extent to which it alienated the
panel and undermined trial defense counsels’ theory that
Appellant’s attack was due to mental illness and was not the
product of hatred and premeditation. Cf. Wiggins, 539 U.S. at
535 (noting that limited investigation justified where
defendant’s history was “double-edged”). Second, Appellant’s
attempt to repay his landlady long after she expected him to,
although a positive story, certainly is not “sufficiently
compelling” to establish prejudice given Appellant’s crimes and
their impact on the victims. See Loving, 68 M.J. at 17. Third,
although the post-trial evidence demonstrates that Appellant’s
parents’ had challenging upbringings, Appellant does not explain
why this information would prove compelling to the panel members
as they decided the appropriate sentence to impose on Appellant.
Finally, we recognize the potential mitigating value of
Appellant’s family members expressing opinions about the impact
Appellant’s death sentence would have on his family. We do not
seek to minimize the importance of such testimony in capital
cases. However, in the instant case, there is an insufficient
basis to conclude that the panel’s knowledge of this information
would have changed the result of the proceeding given the
aggravating circumstances. Moreover, trial defense counsel had
to weigh whether such testimony would have alienated the panel
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members in light of the fact that Appellant’s murderous actions
had so tragically and irrevocably affected the families of the
victims of Appellant’s attack. Accordingly, we conclude that
Appellant has not met his burden of establishing that he was
prejudiced by counsels’ submission of documents instead of live
witness testimony.
4. Cumulative Error
We next consider whether trial defense counsels’ conduct,
examined in its totality, constituted ineffective assistance of
counsel even if individual oversights or missteps did not
independently rise to that level. Loving, 41 M.J. at 252; see
also United States v. Dado, 759 F.3d 550, 563 (6th Cir. 2014).
As shown above, for the vast majority of Appellant’s individual
ineffective assistance of counsel claims, there is an
insufficient basis to conclude that trial defense counsel acted
unreasonably. These claims do not provide a basis for
establishing ineffective assistance of counsel based on
cumulative error. See United States v. Hall, 455 F.3d 508, 520
(5th Cir. 2006) (stating that “ineffective assistance of counsel
cannot be created from the accumulation of acceptable decisions
and actions”); Campbell v. United States, 364 F.3d 727, 736 (6th
Cir. 2004); Hough v. Anderson, 272 F.3d 878, 907 n.14 (7th Cir.
2001). In those few instances where we assumed otherwise, we
found no prejudice. Even considering these instances of assumed
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66
deficient performance in the aggregate, we conclude that they do
not establish prejudice at the findings phase or penalty phase
of the trial. Therefore, we conclude that Appellant has not
provided us with a sufficient basis to apply the cumulative
error doctrine to the circumstances of his case, and we decline
to find ineffective assistance of counsel on the basis of this
doctrine. See Becker v. Luebbers, 578 F.3d 907, 914 n.5 (8th
Cir. 2009) (noting that even if some aspect of counsel’s
performance was deficient, prejudice must be limited to
constitutionally defective aspects of representation).
B. DuBay Hearing
Appellant asserts that, at a minimum, we should order a
post-trial fact-finding hearing in this case under United States
v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Our decision in
United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997) sets forth
the proper standard to determine whether a DuBay hearing is
necessary to resolve ineffective assistance of counsel claims.
We have considered the five Ginn factors16 and conclude that the
issues in this case can be resolved on the record before us and
without a DuBay hearing.
16 These factors are whether: (1) the facts alleged would result in relief; (2) the alleged facts are conclusory or speculative; (3) the parties agree on the facts; (4) the record “compellingly demonstrate[s] the improbability of” the allegations; and (5) Appellant adequately explains why an allegation contradicts a matter within the guilty plea record. Ginn, 47 M.J. at 248.
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C. Victim-Impact Presentation
Appellant challenges two aspects of the Government’s
victim-impact presentation. First, he contends that
presentencing testimony from Government witnesses violated the
Eighth Amendment. Second, he challenges the propriety of trial
counsels’ sentencing argument. In making these claims,
Appellant correctly concedes that his trial defense counsel did
not raise objections to the witness testimony or to the trial
counsels’ argument during the court-martial. Therefore, we note
that he has “forfeit[ed] appellate review of [these issues]
absent plain error.” United States v. Eslinger, 70 M.J. 193,
197-98 (C.A.A.F. 2011); see also United States v. Frey, 73 M.J.
245, 247 n.1 (C.A.A.F. 2014) (sentencing argument); United
States v. Holt, 33 M.J. 400, 408-09 (C.M.A. 1991) (victim-impact
testimony). To prevail under the plain error standard,
Appellant has the burden of “establishing (1) error that is
(2) clear or obvious and (3) results in material prejudice to
his substantial rights.” United States v. Knapp, 73 M.J. 33,
36, reconsideration denied, 73 M.J. 237 (C.A.A.F. 2014).
We conclude that Appellant fails to meet the first prong of
the plain error standard. Victim impact testimony is admissible
in capital cases to inform the panel about “the specific harm
caused by the [accused].” Payne v. Tennessee, 501 U.S. 808, 825
(1991); United States v. Wilson, 35 M.J. 473, 476 n.6 (C.M.A.
United States v. Akbar, No. 13-7001/AR
68
1992). Trial counsel may elicit evidence about (1) the victim’s
personal characteristics or (2) the emotional impact of the
murder on the victim’s family. See Payne, 501 U.S. at 827.
What is not permitted is evidence or argument about the family
members’ “opinions and characterizations of the crimes,” the
defendant, or the appropriate sentence. See Booth v. Maryland,
482 U.S. 496, 508-09 (1987), overruled on other grounds by
Payne, 501 U.S. at 830 n.2. Examples of this type of
impermissible victim-impact evidence include: an opinion from
the victim’s family members that the victims were “butchered
like animals”; a statement that the witness “doesn’t think
anyone should be able to do something like that and get away
with it”; and descriptions of the defendant as “vicious,” worse
than an animal, and unlikely to be rehabilitated. Booth,
482 U.S. at 508.
We conclude that the Government did not violate these
proscriptions in the course of eliciting witness testimony in
the instant case. Initially, we note that Appellant
mischaracterizes the victim testimony as equating Appellant to a
terrorist or traitor, or describing Appellant’s conduct as
treasonous, mutinous, or assisting the enemy.
During the Government’s sentencing case, trial counsel
posed questions concerning witnesses’ reaction upon learning
that a fellow servicemember was the alleged perpetrator of the
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Camp Pennsylvania attack. Such questions were appropriate
because they were designed to elicit testimony about the effect
this unique bit of information had on the victims. Moreover, it
was not improper for the Government witnesses, many of whom were
also victims of the attack, to express human responses,
including feeling “betrayed,” “disbelief,” “livid,” “angry,”
“shocked,” and “pissed.”17 This testimony placed Appellant’s
crime in context by describing how his actions affected the
victims of the attacks.
Also, COL Hodges’s testimony about “fraggings” during the
Vietnam War was made in the context of describing why he, as
commander of the battalion, was particularly psychologically
shaken by Appellant’s particular attack, and we do not deem such
testimony to be improper. Similarly, we conclude that COL
Hodges’s observations about the “very worst days for
17 Appellant supports his challenge to sentencing testimony by citing the testimony of the victims’ family members in United States v. Mitchell, 502 F.3d 931, 990 (9th Cir. 2007), and DeRosa v. Workman, 679 F.3d 1196, 1240 (10th Cir. 2012). We observe that much of the contested testimony in this case was made by the victims who were reporting their own reactions to the crime, so they did not constitute family member testimony about the crime or Appellant. We recognize that trial counsel elicited testimony by civilians about their reactions upon learning that a servicemember was responsible for the attacks. To the extent that this testimony by the civilians was improper, we find no prejudice because it was brief and unlikely had any impact on the panel where the victims properly testified about their reactions upon learning that the perpetrator was a servicemember. See United States v. Davis, 609 F.3d 663, 685 (5th Cir. 2010).
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the United States Army” were not inflammatory in intent or
effect. Instead, they reflected COL Hodges’s embarrassment and
dismay that Appellant’s attack occurred in the battalion he was
commanding, and COL Hodges’s comments were directly responsive
to trial counsels’ question about how Appellant’s attack had
affected him.
We also do not consider improper trial counsel’s sentencing
argument in which he characterized Appellant as “the enemy
within the wire” and asked for the imposition of the death
penalty in order to send a message about the value of innocent
life and the value of loyalty. Trial counsel “may strike hard
blows,” but “he is not at liberty to strike foul ones.” Berger
v. United States, 295 U.S. 78, 88 (1935); see also United States
v. Halpin, 71 M.J. 477, 479 (C.A.A.F. 2013). He “may ‘argue the
evidence of record, as well as all reasonable inferences fairly
derived from such evidence.’” Halpin, 71 M.J. at 479 (quoting
United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000)). This
includes arguments in capital cases concerning “the human cost”
of an accused’s capital crime. Payne, 501 U.S. at 827. Under
the circumstances of this case, it was not a foul blow to
characterize Appellant as the enemy within the wire given his
act of tossing grenades and shooting officers within the
confines of Camp Pennsylvania at the start of Operation Iraqi
Freedom.
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Trial counsels’ request to send a message about the value
of life, loyalty, and the bond among the band of brothers was
essentially a general deterrence argument. Trial counsel may
make such general deterrence arguments when they are not the
Government’s only argument and when the military judge properly
instructs the members about conducting an individualized
consideration of the sentence. See United States v. Lania, 9
M.J. 100, 104 (C.M.A. 1980) (stating that “general deterrence is
suitable for consideration in sentencing and for instructions”).
Trial counsels’ argument was more than one of general deterrence
because it focused on Appellant’s motivation, his acts, and
their aftermath. Also, the military judge properly instructed
the panel as to general deterrence. Therefore, there was
nothing improper in asking the members to send a general
deterrence message.
Finally, Appellant challenges trial counsel’s two
references to “weighing life”:
• “What you must decide is what a life is worth; what two lives are worth; what a military career is worth; what the use of your legs are worth; what a little boy’s life without his father is worth.”
• “Weigh his life -- that is what you’re doing. You’re weighing his life against what he did, what he caused, and what he set in motion forever.”
These comments were made in the specific context of trial
counsel’s argument that the aggravating circumstances outweighed
the mitigating circumstances. This is “entirely consistent with
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Payne’s recognition that victim-impact evidence is properly
considered to ‘counteract’ the mitigating evidence in helping
the [fact-finder] evaluate moral culpability.” United States v.
Lawrence, 735 F.3d 385, 435 (6th Cir. 2013). Also, we note that
other federal courts have held that “to the extent that [Payne]
expressed disapproval of comparative worth arguments, it did so
only with regard to victim-to-victim comparisons, not victim-to
defendant comparisons.” United States v. Fields, 483 F.3d 313,
340–41 (5th Cir. 2007) (citing Humphries v. Ozmint, 397 F.3d
206, 224 n.8 (4th Cir. 2005)). Trial counsel in the instant
case did not make victim-to-victim characterizations. We
therefore find no error in his argument.18
Even if we were to assume that trial counsels’ arguments
were improper, we conclude that Appellant has demonstrated no
prejudice. In the plain error context, we determine whether the
cumulative effect of an improper sentencing argument impacted
“the accused’s substantial rights and the fairness and integrity
of his trial.” Halpin, 71 M.J. at 480 (quoting United States v.
Erickson, 65 M.J. 221, 224 (C.A.A.F. 2007)). This inquiry
examines “whether trial counsel’s comments, taken as a whole,
were so damaging that we cannot be confident that the appellant
18 Since neither the victim testimony nor trial counsels’ sentencing argument was improper, we reject Appellant’s related ineffective assistance of counsel claims.
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was sentenced on the basis of the evidence alone.” Id. (quoting
Erickson, 65 M.J. at 224) (original alterations and internal
punctuation omitted). This case involved many aggravating
circumstances, including Appellant’s murder of two military
officers, his use of grenades, the extensive injuries to some
officers, and the impact of the attack on the unit as it
prepared for battle. Also, the fact that trial defense counsel
did not see fit to object to the argument is “some measure” that
the argument had “minimal impact.” United States v. Gilley,
56 M.J. 113, 123 (C.A.A.F. 2001) (quoting United States v.
Carpenter, 51 M.J. 393, 397 (C.A.A.F. 1999)). Accordingly, we
do not conclude that trial counsel’s argument warrants reversal.
D. Sua Sponte Disqualification of Members
Appellant challenges the military judge’s failure to sua
sponte dismiss fourteen of the fifteen panel members on implied
and/or actual bias grounds. We note that “[i]t is clear that a
military judge may excuse a member sua sponte” under R.C.M.
912(f)(4). United States v. Strand, 59 M.J. 455, 458 (C.A.A.F.
2004). That rule permits a military judge to, “in the interest
of justice, excuse a member against whom a challenge for cause
would lie” even if neither party has raised such a challenge.
See R.C.M. 912(f)(4) (2005 ed.). However, in United States v.
McFadden the majority held that although “[a] military judge has
the discretionary authority to sua sponte excuse [a] member,
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[he] has no duty to do so.” 74 M.J. 87, 90 (C.A.A.F. 2015).
Moreover, even if the military judge had such a duty, he did not
abuse his discretion in failing to sua sponte remove any of the
members for the reasons that follow.
First, we are mindful of the essential fact that, as noted
above, trial defense counsel were using the ace of hearts
strategy during this voir dire process, and we note that the
military judge had been placed on notice that Appellant was
“seeking to maximize the panel size.” Second, the military
judge had afforded trial defense counsel great leeway in
determining how they would conduct voir dire, thereby obviating
the need for the military judge to take a more active role in
the process. Third, the military judge could observe that trial
defense counsel were not impassive in the voir dire process, as
evidenced not only by their questioning of potential panel
members but also by the fact that they sought and obtained the
removal of a member on implied bias grounds, did not object to
the Government’s challenge to three other members, and explained
their opposition to the Government’s challenges to three
additional panel members.
In regard to Appellant’s challenges to the service on the
panel of specific members, we make the following observations.
Appellant first states that the military judge should have sua
sponte disqualified COL GQ and COL PM because of their friendly
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relationship with COL Hodges, a victim and witness in
Appellant’s case. However, it is not an infrequent occurrence
in the military for a panel member to know a witness in a court
martial, and without more, we have not found implied bias in
such circumstances. Cf. United States v. Ai, 49 M.J. 1, 5
(C.A.A.F. 1998) (rejecting member challenge on implied bias
grounds where member held professional relationship with
witness, candidly disclosed the relationship, and unequivocally
denied influence).19 We similarly decline to do so here.
Second, Appellant states that the military judge should
have sua sponte dismissed LTC CF and LTC DL because another
panel member, COL PM, had a supervisory relationship over them.
Once again, it is not an infrequent occurrence in the military
to have panel members who have a supervisory relationship with
another panel member. And where, as here, all of the panel
members state openly that they will not feel constrained in
performing their court-martial duties, there is an insufficient
19 Appellant cites United States v. Harris, but the member in that case not only knew two victims but also rated the victims, was aware of the crimes, and chaired a committee to reduce the crime in question on base. 13 M.J. 288, 289 (C.M.A. 1982). Neither COL GQ’s nor COL PM’s relationship with COL Hodges is nearly as close as the member’s relationship with the victims in Harris. In United States v. Leonard, 63 M.J. 398, 403 (C.A.A.F. 2006), we found implied bias where a member had a relationship “of trust” with a victim in a case in which the victim’s credibility was an issue. The record does not reflect a similar relationship of trust in this case or that COL Hodges’s credibility was at issue.
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basis for the military judge to sua sponte remove them from the
panel. United States v. Castillo, 74 M.J. 39, 43 (C.A.A.F.
2015) (“[A] senior-subordinate/rating relationship does not per
se require disqualification of a panel member.”) (quoting United
States v. Wiesen, 56 M.J. 172, 175 (C.A.A.F. 2001)).
Third, Appellant argues that the military judge should have
sua sponte dismissed LTC WT from the panel because of his
relationships with his two older brothers. One brother was the
commanding general of the 101st Airborne Division, the unit to
which Appellant and some of the victims were assigned. The
other brother worked with a victim in this case and served as
the executive officer for the senior commanding general of the
convening authority in this case. However, LTC WT stated he did
not discuss the case with his brothers or feel any pressure to
vote in any particular manner in this case. We therefore
conclude that LTC WT’s fraternal relationships did not provide a
basis for the military judge to sua sponte dismiss LTC WT. See
Strand, 59 M.J. at 459 (finding military judge did not have a
sua sponte duty to dismiss for implied bias a member who was the
son of the commander). This is particularly true here because
both Appellant and his trial defense counsel specifically stated
that they did not want to excuse LTC WT for cause.
Fourth, Appellant generally challenges a number of members
-- SFC KD, MAJ DS, LTC TG, SFC JC, CSM MH, CSM RC, and MSG PC --
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on the basis that they had an inelastic predisposition to
adjudge a particular sentence. We note, of course, that
Appellant is “entitled to have his case heard by members who are
not predisposed or committed to a particular punishment, or who
do not possess an inelastic attitude toward the punitive
outcome.” United States v. Martinez, 67 M.J. 59, 61 (C.A.A.F.
2008) (citing United States v. James, 61 M.J. 132, 138 (C.A.A.F.
2004)); see also R.C.M. 912(f)(1)(N) Discussion. However, the
record reveals that each of these panel members agreed to follow
the military judge’s instructions and to appropriately consider
a full range of punishments in this case. Therefore, the voir
dire of these individual members disclosed no basis for the
military judge to sua sponte disqualify them.
Fifth, we have reviewed LTC TG’s views on Islam20 and share
some of Appellant’s concerns about his comments during voir
dire. However, we ultimately conclude that the military judge
should not have invoked his authority under R.C.M. 912(f) to
dismiss LTC TG sua sponte because LTC TG also expressed positive
views of Muslims, describing them as “very nice” and “very
friendly people,” and more importantly, because LTC TG stated
20 When specifically asked by trial defense counsel about his views on Islam, LTC TG stated that Islam was a “male oriented religion” and a “passionate religion,” by which he meant that “sometimes you can’t think clearly and you take certain views that are selfish -- for your own selfish pleasures, self-desire instead of the good of the man.”
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openly that he would not be influenced in the course of the
trial by any of his preconceptions about Muslims generally. See
Elfayoumi, 66 M.J. at 357 (noting that question of bias is not
whether a member has particular views but whether they can put
these views aside to evaluate the case on its merits).
Sixth, Appellant avers that the military judge should have
sua sponte dismissed SFC JC from the panel because he stated
that Appellant sounded guilty. We note that a member “must be
excused when he or she ‘[h]as []formed or expressed a definite
opinion as to the guilt or innocence of the accused as to any
offense charged.” Nash, 71 M.J. at 88 (quoting R.C.M.
912(f)(1)(M)). However, in the instant case SFC JC’s voir dire
responses “dispel[led] the possibility” of bias because he
stated that his initial opinion was not definite and that he
understood Appellant was presumed innocent. See id. at 89; see
also Irvin v. Dowd, 366 U.S. 717, 723 (1961). Therefore, we
conclude that the military judge did not abuse his discretion in
failing to sua sponte dismiss SFC JC.
Seventh, Appellant contends that the military judge should
have sua sponte excused CSM MH for ignoring the military judge’s
order to avoid exposure to any pretrial publicity about
Appellant’s case. We find this challenge meritless because
trial defense counsel specifically opposed MH’s removal. We
also find that although CSM MH admitted to reading about the MP
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stabbing incident in the newspaper, he stated he could put the
event out of his mind. Therefore, the military judge did not
err in failing to sua sponte disqualify MH.
Eighth, Appellant challenges ten other panel members
because of their knowledge of the March 30 stabbing incident.
We note, however, that panel members are not automatically
disqualified simply because they have learned facts about an
accused from outside sources. Cf. Murphy v. Florida, 421 U.S.
794, 799 (1975) (noting that defendant is not presumptively
deprived of his due process rights if juror is exposed “to
information about a state defendant’s prior convictions or to
news accounts of the crime with which he is charged”). These
ten challenged panel members, along with SGM MH, generally
reported learning something along the lines of Appellant
overpowering an MP, scuffling with an MP, or stabbing an MP.
However, to the extent that the members were asked, they
uniformly expressed their ability to lay aside their knowledge
of these events in rendering a verdict in this case, which
vitiates Appellant’s claim of actual bias. Cf. Murphy, 421 U.S.
at 800-01 (noting in finding no due process violation that no
jurors “betrayed any belief in the relevance of [the
defendant’s] past to the present case”); United States v.
McVeigh, 153 F.3d 1166, 1184 (10th Cir. 1998) (finding no actual
bias despite some members learning of appellant’s confession
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from news reports where jurors indicated they could keep an open
mind).
In terms of implied bias, we find none in this instance
because trial defense counsel made no attempt to have the
members excused based on their knowledge of the stabbing
incident, trial defense counsel adequately explored their
concerns during the voir dire process, and the members stated
that they would judge the case on the merits rather than decide
the case based on this incident. Therefore, the military judge
did not abuse his discretion by declining to sua sponte dismiss
these panel members.
Ninth, and finally, Appellant challenges seven members
because of their initial negative reactions to Appellant’s
attack. Specifically, these members expressed “shock” (or a
similar emotion) upon first learning about the events at Camp
Pennsylvania. However, we note the long-standing principle that
a member “is not disqualified just because he has been exposed
to pretrial publicity or even has formulated an opinion as to
the guilt or innocence of an accused on the basis of his
exposure.” United States v. Calley, 22 C.M.A. 534, 537,
48 C.M.R. 19, 22 (1973); see also United States v. Barraza,
576 F.3d 798, 803 (8th Cir. 2009) (“An initial impression about
a case does not disqualify a [member] if the [judge] accepts the
[member’s] assurances that he or she will set aside any
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preconceived beliefs and follow the court’s instructions.”);
United States v. Iribe-Perez, 129 F.3d 1167, 1171 n.4 (10th Cir.
1997) (noting that although “noteworthy trials” will “pique the
interest of the public” and will lead “many potential jurors
[to] have formed initial impressions about the case,” a juror
will not be disqualified unless he cannot set aside the initial
impressions).
We find the members’ initial reactions to Appellant’s
crimes to be neither unreasonable nor unexpected. Cf. Irvin,
366 U.S. at 722 (noting that an “important case can be expected
to arouse the interest of the public” so most jurors will have
“formed some impression or opinion as to the merits of the
case”). And importantly, the members’ voir dire responses
indicated that their initial reactions would not impact their
view of the case or affect their decisions in the course of the
court-martial. Therefore, the members’ initial reactions did
not provide the military judge with a sua sponte basis to
dismiss the challenged members. See Calley, 22 C.M.A. at 538,
48 C.M.R. at 23 (holding after careful consideration of voir
dire that “none . . . had formed unalterable opinions about
[appellant’s] guilt from the publicity”).
E. Venue
Appellant asserts that his trial venue should have been
moved because of pervasive pretrial publicity at Fort Bragg. We
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review this challenge for an abuse of discretion. Loving,
41 M.J. at 282. Servicemembers are entitled to have their cases
“adjudged by fair and impartial court-martial panels whose
evaluation is based solely upon the evidence,” not pretrial
publicity. United States v. Simpson, 58 M.J. 368, 372 (C.A.A.F.
2003). Pretrial publicity by itself is not enough, however, for
a change of venue. Curtis, 44 M.J. at 124. Instead, an accused
is entitled to a change of venue if the “pretrial publicity
creates ‘so great a prejudice against the accused that the
accused cannot obtain a fair and impartial trial.’” Loving,
41 M.J. at 254 (quoting R.C.M. 906(b)(11) Discussion).
Appellant’s change of venue argument is meritless. The
convening authority had already moved Appellant’s case to Fort
Bragg from Fort Campbell, the headquarters for Appellant’s unit.
Further, the military judge determined that the pretrial
publicity was not inflammatory and had not saturated the
community. In addition, as the above panel bias discussion
demonstrates, the voir dire process uncovered no fixed opinions
of Appellant’s case that rose to the level of actual prejudice.
See Simpson, 58 M.J. at 372 (defining actual prejudice).
Finally, Appellant’s position that the military community’s
knowledge of his notorious crimes, standing alone, served as a
basis for a change of venue would, if adopted, essentially have
precluded the military from conducting Appellant’s court-martial
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at any military installation. The military judge therefore did
not abuse his discretion in denying Appellant’s request to
change venue.
F. Conflict of Interest
Appellant raises a number of alleged conflicts of interest
in this case, but we find only one merits discussion -- trial
defense counsels’ working relationship with one of the victims,
CPT Andras Marton, who served with the Army Judge Advocate
General’s Corps. At an Article 39(a), UCMJ, hearing, MAJ
Brookhart and CPT Coombs informed the military judge about their
“strictly professional” relationship with CPT Marton. Counsel
explained that they had tried cases against CPT Marton, but did
not have further contact with him. Appellant acknowledged that
he was aware of the possible conflict and had the right to be
represented by conflict-free counsel, but he expressly wanted
MAJ Brookhart and CPT Coombs to continue representing him due to
his familiarity with counsel and their familiarity with his
case.
An accused has the right to conflict-free legal
representation. See United States v. Lee, 66 M.J. 387, 388
(C.A.A.F. 2008); United States v. Murphy, 50 M.J. 4, 10
(C.A.A.F. 1998). However, he may waive this right so long as it
is knowing and voluntary. United States v. Davis, 3 M.J. 430,
433 n.16 (C.M.A. 1977).
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Although trial defense counsels’ relationship with a victim
raises some obvious concerns, it does not establish reversible
error because Appellant knowingly and voluntarily waived the
issue. The military judge engaged in an open discussion with
Appellant about the potential conflict. Following this
discussion, Appellant informed the military judge that he wanted
to waive any conflict or potential conflict. The post-trial
affidavits alleging a conflict do not outweigh these
considerations because the affidavits are conclusory in nature
and are contradicted by trial defense counsel’s own statements
and by the record.
G. Trial Defense Counsel Assignments
Appellant complains about unlawful command influence and
prosecutorial misconduct stemming from the Government’s control
of trial defense counsels’ assignments. Indeed, the record
shows that the lead Government trial counsel arranged for MAJ
Brookhart and CPT Coombs to be placed in positions that would
not conflict with their roles as Appellant’s trial defense
counsel. However, because Appellant never objected at trial to
trial counsels’ role in these assignments, we review the
arguments for plain error. See Halpin, 71 M.J. at 479-80.
Appellant cites no case law, and we are aware of none,
finding prosecutorial misconduct under similar facts. Although
this point is not dispositive because this could be an issue of
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first impression, it does tend to show that trial counsels’
input into the trial defense counsels’ assignments does not
plainly or obviously constitute prosecutorial misconduct. See
United States v. Tarleton, 47 M.J. 170, 172 (C.A.A.F. 1997)
(noting that “the absence of controlling precedent favorable to
appellant demonstrates that the error, if any, was not plain
error”). But importantly, in reaching our decision on
Appellant’s prosecutorial misconduct argument and also his
unlawful command influence argument, we rely heavily on the fact
that Appellant has not demonstrated any unfairness in the
proceedings based on defense counsels’ assignments. See
Simpson, 58 M.J. at 373 (noting there is no unlawful command
influence claim where there is no evidence of unfairness in the
proceedings); United States v. Meek, 44 M.J. 1, 6 (C.A.A.F.
1996) (holding that prosecutorial misconduct claim reviewed for
prejudice); see also Smith v. Phillips, 455 U.S. 209, 219 (1982)
(noting that “touchstone of due process analysis in cases of
alleged prosecutorial misconduct is the fairness of the trial”).
Indeed, the record of trial indicates that trial counsels’
actions were intended to assist Appellant by ensuring that his
counsel remained available to him. We therefore see no basis
for concluding there was prosecutorial misconduct and/or
unlawful command influence in this case.
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H. Trial Defense Counsels’ Qualifications
Appellant and amicus raise three distinct arguments about
trial defense counsels’ qualifications, but as demonstrated
below, none of them provides a basis for relief. First,
Appellant contends that trial defense counsel did not have the
training or experience necessary to effectively defend him in
this case, and challenges the CCA’s conclusions that counsel
were “well-qualified.” However, after reviewing trial defense
counsels’ extensive legal experience as summarized at the
beginning of this opinion, we reject Appellant’s argument
outright and agree with the CCA’s conclusion that counsel were
“well-qualified.”
Second, in its brief, amicus curiae advocates that we adopt
and apply to the instant case the provisions of Guideline 5.1 of
the American Bar Association (ABA) Guidelines for the
Appointment and Performance of Counsel in Death Penalty Cases.
This guideline seeks to establish minimum qualifications for
counsel in capital cases. In addressing this issue, we take
particular note of the Supreme Court’s memorable observation in
Ring v. Arizona: “[D]eath is different.” 536 U.S. 584, 606
(2002). Congress has recognized as much in civilian federal
cases by requiring the services of at least one counsel “learned
in the law applicable to capital cases.” 18 U.S.C. § 3005
(2012). Congress has even extended this requirement of “learned
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counsel” to alleged terrorists being prosecuted in military
commissions. See 10 U.S.C. § 949a(b)(2)(C)(ii) (2012). We
further note that even in the absence of congressional action,
the judge advocates general could take unilateral steps to
improve the process by which trial litigators are selected in
capital cases, and to enhance their training and qualifications.
Indeed, LTC Hansen, who we pointedly note was summarily
dismissed by Appellant, serves as an example of someone who was
particularly well qualified to litigate a capital case.
However, as an Article I court, we also note that -- absent
constitutional implications in a particular case or
congressional authorization -- it is beyond our authority to
impose the learned counsel qualification advocated by amicus.
Indeed, in the past we have similarly considered and rejected
claims that learned counsel must participate in military capital
cases. See, e.g., Gray, 51 M.J. at 54; Curtis, 44 M.J. at 127;
Loving, 41 M.J. at 300. Nonetheless, “we remain vigilant as to
the quality of representation provided servicemembers in capital
cases in the military justice system.” Gray, 51 M.J. at 54.
Finally, Appellant and amicus argue that we should adopt
the ABA Guidelines in analyzing capital defense counsels’
performance. However, we instead adhere to the Supreme Court’s
guidance that “[n]o particular set of detailed rules for
counsel’s conduct can satisfactorily take account of the variety
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of circumstances faced by defense counsel or the range of
legitimate decisions regarding how best to represent a criminal
defendant.” Strickland, 466 U.S. at 688-89. We therefore do
not adopt the ABA Guidelines as the ultimate standard for
capital defense representation in the military. See Pinholster,
131 S. Ct. at 1407 (“It is ‘[r]are’ that constitutionally
competent representation will require ‘any one technique or
approach.’”) (quoting Richter, 562 U.S. at 89). Instead, we
examine whether “counsel [made] objectively reasonable choices”
based on all the circumstances of a case. Van Hook, 558 U.S. at
9 (quoting Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000)).
I. Mitigation Evidence
Appellant contends that the panel’s consideration of
mitigation evidence was unconstitutionally limited by the
prohibition against guilty pleas in capital cases, which is
contained in Article 45(b), UCMJ. This challenge is meritless
based on our prior case law. Gray, 51 M.J. at 49; Loving,
41 M.J. at 292; United States v. Matthews, 16 M.J. 354, 362-63
(C.M.A. 1983). It is also meritless under the facts of this
case. Appellant refused to allow his counsel to submit any
offers to plead guilty, so this potential mitigation evidence
would never have been available for him to present at trial.
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J. Exclusion of Occupational Branches
Appellant is correct that the exclusion of nine
occupational branches from court-martial service in this case
pursuant to Army Regulation (AR) 27-10 would have conflicted
with the statutorily defined criteria in Article 25, UCMJ, 10
U.S.C. § 825 (2012). See United States v. Bartlett, 66 M.J.
426, 429 (C.A.A.F. 2008). We conclude, however, that here there
was no impermissible selection of panel members.
It is true that the initial convening authority was advised
that he had to select the panel in accordance with AR 27-10.
However, when the succeeding convening authority made his
selections he was informed by the acting staff judge advocate:
(1) “[Y]ou must detail those members who, in your opinion, are
best qualified for the duty by virtue of their age, education, .
. . and judicial temperament”; and (2) “You may . . . choose
anyone in your general court-martial jurisdiction for service as
a court member provided you believe they meet the Article 25
criteria listed above.” We recognize that the succeeding
convening authority adopted his predecessor’s panel pool, but
the succeeding convening authority did not act pursuant to the
improper AR 27-10 instruction, but instead acted based on proper
legal advisement in accordance with Article 25, UCMJ, criteria.
Also, even if the panel was impermissibly selected pursuant
to AR 27-10, we conclude that the Government has met its burden
United States v. Akbar, No. 13-7001/AR
90
of showing any error was harmless. As the Government
demonstrates, the six circumstances which this Court identified
and relied upon in deciding Bartlett, 66 M.J. at 431, as showing
harmless error are also present here: (1) there is no evidence
that the Secretary of the Army acted with an improper motivation
in promulgating AR 27-10; (2) the convening authority followed a
facially valid regulation without an improper motive; (3) the
convening authority had authority to convene a general-court
martial; (4) Appellant was sentenced by members who were
selected by the convening authority; (5) Appellant was sentenced
by members who met the Article 25, UCMJ, criteria; and (6) the
military judge noted that the panel had female and African
American representation. We therefore find no reversible error
in the convening authority’s selection of the panel’s venire.
K. CCA Ruling on Appellate Experts
Appellant claims that the CCA erred in denying his request
for appellate assistance by mental health experts. The CCA
concluded that Appellant had failed to sufficiently show that
the expert assistance was necessary. We review this decision
for an abuse of discretion. Gray, 51 M.J. at 20. An abuse of
discretion arises if the CCA’s factual findings are clearly
erroneous or if its decision is based on a misapplication of the
law. See United States v. Taylor, 47 M.J. 322, 325 (C.A.A.F.
United States v. Akbar, No. 13-7001/AR
91
1997). Neither factor applies in this instance, and we find no
abuse of discretion in the CCA’s denial of expert assistance.
L. Military Judge’s Instructions
Appellant challenges two instructions by the military
judge: (1) the sentencing instruction relating to weighing
mitigating and aggravating factors; and (2) the instruction on
reconsidering the sentence. Ordinarily, we review the adequacy
of a military judge’s instructions de novo. United States v.
MacDonald, 73 M.J. 426, 434 (C.A.A.F. 2014). However, if an
appellant fails to object to the instruction at trial, we review
for plain error. United States v. Thomas, 46 M.J. 311, 314
(C.A.A.F. 1997); R.C.M. 1005(f).
1. Sentencing
The military judge instructed the panel that to impose a
death sentence, it had to unanimously determine, in relevant
part, (1) “beyond a reasonable doubt, that the aggravating
factor existed,” and (2) that “the extenuating and mitigating
circumstances are substantially outweighed by the aggravating
circumstances.” Appellant now argues that the military judge
should have instructed the members that they had to find that
the aggravating circumstances outweighed the mitigating
circumstances beyond a reasonable doubt. Appellant bases this
argument on his reading of the Supreme Court’s decisions in
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v.
United States v. Akbar, No. 13-7001/AR
92
Arizona, 536 U.S. 584 (2002), which stand for the proposition
that a jury must find beyond a reasonable doubt aggravating
factors that are necessary to impose the death penalty. See
Ring, 536 U.S. at 609; Apprendi, 530 U.S. at 490. However,
contrary to Appellant’s assertion, these cases do not require
any particular standard of proof with regard to weighing the
aggravating and mitigating circumstances. United States v.
Gabrion, 719 F.3d 511, 533 (6th Cir. 2013) (en banc) (joining
six other federal circuits in concluding that decision weighing
aggravating and mitigating did not have to be proven beyond a
reasonable doubt); Lockett v. Trammel, 711 F.3d 1218, 1253 (10th
Cir. 2013).

Outcome: Indeed, the Supreme Court itself has indicated that
the beyond a reasonable doubt standard is unnecessary in
weighing aggravating and mitigating factors. See Kansas v.
Marsh, 548 U.S. 163, 173 (2006) (noting that state could place
burden on defendant to prove mitigating circumstances outweighed
aggravating circumstances); id. at 174 (noting that states have
“a range of discretion in imposing the death penalty, including
the manner in which aggravating and mitigating circumstances are
to be weighed”). We therefore find no error in the military
judge’s sentencing instruction.

Plaintiff's Experts:

Defendant's Experts:

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