The death sentence of an airman convicted of the brutal stabbing murder of a married couple and the near-killing of a visiting friend was overturned last week when the Air Force appellate court decided the airman’s trial defense had been deficient.
Airman Andrew Witt’s sentence was set aside by two judges of a three-judge panel of the Air Force Court of Criminal Appeals in an opinion published Friday. The opinion, in which the third judge dissented, ordered Witt be provided another sentencing hearing. His guilty verdicts were affirmed.
The decision underscores the uncertainty of death penalty sentences, particularly in the military, even as the court-martial of Army psychiatrist Maj. Nidal Hasan on 13 counts of premeditated murder proceeds toward what experts say is certain conviction and a very likely death sentence.
Witt, who was the only Air Force member on death row, killed Senior Airman Andrew Schliepsiek and his wife, Jamie, in July 2004 for what remain little-understood reasons.
Witt barged in to their home on Warner Robins Air Force Base, Ga., after Schliepsiek had angrily phoned him several times to berate him for making sexual overtures to his wife. Witt stabbed Schliepsiek several times, then stabbed a friend, Senior Airman Jason King, who had tried to intervene. King sustained life-threatening injuries but fled to safety.
Witt then smashed through a locked bedroom door to stab Jamie Schliepsiek, curled in a fetal position, five times. He then stabbed her husband in the heart.
“The murders are as heinous as you would ever see. If there is a death penalty-worthy case in the Air Force, it is Witt,” said an Air Force official, who declined to be identified because the case is still pending.
The official said the Air Force would ask the full court to reconsider the ruling, and, if that failed, appeal to the Court of Appeals for the Armed Forces, the military’s highest court. If that court declined to consider the case, a sentence rehearing would take place.
“Regardless of what happens, this will be a lengthy process,” the official said.
The Witt decision, unless it is reversed, leaves just four military men on death row. Eleven other men sentenced to death at courts-martial since 1984 have had their death sentences overturned and were subsequently sentenced to life in prison, usually with the possibility of parole, according to the Death Penalty Information Center.
In the Witt case, the Air Force appellate court decided that Witt’s trial defense counsel’s performance in preparing for the sentencing portion of his court-martial was deficient for not exploring whether a head injury Witt had received in a motorcycle accident four months before the murders could have been a factor and for not presenting evidence of familial mental health issues, including his mother’s hospitalization for depression. Additionally, the defense failed to effectively present Witt’s remorse for the murders. All those would act as “mitigating” factors that could have led the jury to spare Witt the death sentence, the judges determined.
“(H)ad the members been confronted with this additional mitigating evidence, there is a reasonable likelihood that at least one member would have struck a different balance between the aggravating and mitigating factors and would have returned with a different sentence,” the judges wrote in the opinion.
Victor Hansen , a former military lawyer, now associate dean at the New England School of Law in Boston, said that ineffective assistance of counsel at sentencing, usually for not exploring or presenting mitigating factors like mental health issues or childhood abuse, was a common theme in the overturning of military death sentences.
But the sentence reversals are not a good predictor of what’s likely to happen in the Hasan case, Hansen said.
“Hasan is sui generis. It’s really unprecedented,” he said. “There’s no case that I’m aware of in the annals of military history of an officer who became radicalized and turned his gun on soldiers.”
Or as Eugene Fidell, a former judge advocate who teaches military justice at Yale Law School, put it: “If a person were setting out to earn the death penalty, they’d do what Dr. Hasan did. There’s no question he’ll be convicted and I think there’s very little question he’ll be sentenced to death.”
In order to sentence Hasan to death, all jurors would have to agree that Hasan was guilty beyond a reasonable doubt, that aggravating factors outweighed mitigating factors and that the death sentence was appropriate.
“I’d be very surprised if [jurors] decided otherwise,” Hansen said.
It’s unclear whether Hasan, who is representing himself, will introduce any mitigating evidence. Experts say no other defendant in a military capital case, at least in modern times, has ever acted as his own lawyer. His military lawyers appointed to consult on legal matters have asked to be released from the case, saying Hasan hoped to be put to death. They said it was unethical for them to be associated with a case in which they were disallowed from providing a vigorous defense. The fact that Hasan represented himself means, the experts said, that he will not be allowed to claim ineffective assistance of counsel on appeal.
There was a slim possibility, the experts said, that a juror — it would take only one — might decide against providing Hasan with the martyr’s death he reportedly seeks. “One might say, ‘Let’s just bury him in the bowels of Leavenworth for 80 years,’ ” Hansen said.
Hasan, a U.S. citizen of Palestinian descent and a Muslim who became a radicalized Islamist, unsuccessfully sought to use a “defense of others” defense, saying he wanted to protect the Taliban and other Afghans from U.S. troops. The judge in the case disallowed that defense, saying the law required imminent harm and that the troops he killed were no threat.
Appeals are automatic in the military, and Fidell and Hansen said an appellate brief would be filed in Hasan’s case, even if Hasan didn’t want one.
One of the most critical areas of an appeal would be whether the judge, Col. Tara Osborn, was correct to allow Hasan to represent himself, Hansen said. But the law clearly states that people must be allowed to represent themselves, unless they’re not mentally competent or somehow did not make the choice voluntarily.
Fidell said he thinks Hasan will be executed. “If I were somebody else on death row, I’d be concerned,” he said. “It might break the logjam. This would not be unpopular.”
But Hansen said all bets were off.
“It’s anybody’s guess what’s going to happen to Hasan,” he said.
No military member has been executed since 1961, when Army Pvt. John Bennett was hanged for raping an 11-year-old Austrian girl seven years earlier and attempting to drown her. Bennett is the only known troop executed in peacetime for offenses not including murder. Like eight of nine troops executed in the 1950s, he was African-American.
Three of the four men now on death row are black. Dwight Loving murdered two cab drivers, both with military backgrounds, near Fort Hood, Texas; Ronald Gray, a serial rapist, killed four women near Fort Bragg, N.C.; Hasan Akbar killed two soldiers and injured others in Kuwait when he tossed grenades into tents and opened fire and was sentenced in 2005.
Witt’s lead defense lawyer was Frank Spinner, who also represented Army Master Sgt. Timothy Hennis, the latest military member sentenced to death — in 2010 for the rape-murder 25 years earlier of an Air Force officer’s wife and the murder of her two children near Fort Bragg.
Spinner did not immediately return a phone call for comment.