Military's errors force most death sentences to be overturned
By MARISA TAYLOR | McClatchy-Tribune News Service | Published: August 27, 2011
WASHINGTON -- In December 2008, former Army Pvt. Ronald Gray was on the brink of becoming the first military execution in almost 50 years.
The rapist and murderer of four women had sat on death row for two decades by the time President George W. Bush approved his death warrant.
But the week before Gray was to receive a lethal injection, a federal judge halted the execution because of a new appeal.
Now, federal defenders who took over his case say they've found new evidence that his original military lawyers should have discovered. If they're successful, Gray could join a growing number of soldiers, airman and Marines who have been spared execution.
Of the 16 men sentenced to death since the military overhauled its system in 1984, 10 have been taken off death row. The military's appeals courts have overturned most of the sentences, not because of a change in heart about the death penalty or questions about the men's guilt, but because of mistakes made at every level of the military's judicial system.
The problems included defense attorneys who bungled representation, judges who didn’t know how to properly instruct a jury and prosecutors who mishandled evidence.
In all of the cases, the men have been resentenced to life in prison. Eventually, they could be eligible for parole.
Yet, by many measures, they’re the military’s worst of the worst. Convicted of crimes such as serial murder and rape, they’re the kinds of criminals that many people would agree the death penalty should be reserved for.
Critics say the military botched the cases because its judicial system lags behind civilian courts and isn’t equipped to handle the complex legal and moral questions that capital cases raise.
Civilian courts have demanded that experienced lawyers be appointed in capital cases and have pushed for a more uniform application of the death penalty. The military, however, hasn’t made any major institutional changes to address such problems in more than 25 years.
At almost every level — from trial to appeals — young, inexperienced lawyers routinely have been appointed to represent capital defendants.
“If you have a system where it’s always amateur hour and where the lawyers are always trying their first capital case, you’re going to guarantee the same kinds of mistakes that have resulted in many, many cases being reversed — because of ineffective assistance of counsel — for the last 30 years are going to be made over and over again,” said David Bruck, the director of the Virginia Capital Case Clearinghouse, a legal aid clinic. “Even worse, you may have cases where the person is not only sentenced to death because of their lawyers’ mistakes but because the courts will say that it’s close enough for government work.”
Even though the military has assigned more seasoned lawyers in some recent high-profile cases, the efforts are inconsistent and often can depend on the branch.
For instance, Charles Gittins, a civilian lawyer who hadn’t tried a capital case, asked the Army earlier this year to appoint qualified counsel to help him represent a client who was eligible for the death penalty. Gittins was turned down.
In contrast, the Guantanamo detainee who’s accused of masterminding the 2000 suicide attack on U.S. Navy warship recently was appointed a civilian attorney with decades of capital experience. In fact, all six Guantanamo detainees likely to face the death penalty before a separate military commissions system are guaranteed experienced attorneys.
That’s because a 2009 law requires the military to appoint qualified attorneys or “learned counsel” for the terrorism suspects. No such provision exists for the regular courts-martial where servicemembers face criminal charges.
Military officials often argue that they can’t provide the kinds of expert attorneys that most civilian courts now require. Defense attorneys and prosecutors generally rotate out of their jobs after a couple of years, and many are unlikely to get experience in capital cases. In addition, “each outcome was entirely case-specific,” said Jennifer Zeldis, a spokeswoman for the Navy’s Office of the Judge Advocate General, which had four of its five capital cases overturned on appeal. “Attempting to draw conclusions as to systemic issues is problematic because of the small number of death penalty cases tried over a wide number of years.”
In January, the Army launched a review of its handling of capital cases, but officials said it wasn’t prompted by any specific concerns.
“Any good criminal justice system worth its salt is constantly looking at how it does business,” said Col. Chuck Pede, who oversees criminal law policy for the Army’s Office of the Judge Advocate General.
Pede, who has experience as a prosecutor and defense attorney over a 24-year legal career, said the Army has teamed up less experienced lawyers with more seasoned attorneys or supervisors in more complex cases.
“I don’t see any major systemic issues that cry out for action on the part of the armed forces,” he said.
The military has tried to improve the quality of its attorneys appointed in all criminal cases. In 2007, for instance, the Navy established a program that allows a group of more than 50 lawyers to remain in criminal justice throughout their military careers. The Army has revamped its training.
Yet problems persist. In the case of former Marine Corps Lance Cpl. Kenneth Parker, who was convicted of killing two fellow Marines, he has had at least seven lawyers. They’ve written so many different briefs that the courts recently ordered his new lawyer to start from scratch and file one appeals brief, as is customary in a capital case.
The judge who’s overseeing a crucial issue in Parker’s appeal — questions about whether Parker is mentally retarded and therefore ineligible for the death penalty — was discovered to have discussed the case with one of the experts in the case without the knowledge of the lawyers. Such discussions are seen as improper and could be a sign that even the judge was out of his depth, experts said.
Making matters more complicated, Parker’s evidence was tested by a discredited North Carolina bloodstain pattern analyst who recently was accused in other cases of hiding or manipulating evidence to ensure a win for prosecutors
Almost two decades after Parker’s conviction, his case hasn’t even completed the first level of appeal, a delay that’s striking even in a capital case and that “has not been explained to me,” his lawyer said.
Last year, Navy Lt. Cmdr. Stephen Reyes surveyed capital systems in the country and found that 80 percent of all state systems, plus the federal court system, have set up minimum standards for the quality of the defense appointed in death penalty cases. The military has no such requirement for its courts-martial, and Reyes thinks it should.
Experts said the military could create an office for complex cases such as capital trials made up of lawyers from all the military services, similar to what was created for the separate military commissions system for Guantanamo detainees.
Or the military could hire more seasoned civilian lawyers, a phenomenon that’s already occurring in a limited way across the military’s justice system in general.
“We’ve already seen massive transformations in the civilian courts when it comes to defense counsel,” said Reyes, who’s represented military defendants accused of capital crimes. “Now it’s time for the military courts-martial to get on track, before a miscarriage of justice occurs.”