Flaws in Military Death Penalty Cases Exposed

McClatchy has a report today on the flaws in the military's death penalty system:

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....At almost every level - from trial to appeals - young, inexperienced lawyers routinely have been appointed to represent capital defendants.

McClatchy contrasts these cases with those of the 9/11 defendants: [More...]

[A]ll six Guantánamo 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 service members face criminal charges.

There's also racial disparities in the military system:

Ten of the 16 men who've been sentenced to death since 1984 were minorities. (Of those, six had their sentences overturned.)

...According to one recent study obtained by McClatchy Newspapers, minorities are twice as likely to be sentenced to death in courts-martial as their white counterparts, a statistic that's higher than is known to exist in most civilian court systems.

The military has not even established minimum standards for defense counsel in capital cases:

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,

The death penalty should be abolished in both civilian and military courts. Since that's not likely to occur any time soon, in the meantime, the military should at least ensure that death penalty trials are not conducted like espisodes of Amateur Hour.

< Commission Releases New Documents on 1940's Guatamalan Experiments | 9/11 Legacy: Americans' Loss of Privacy Rights >
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    It sounds to me (5.00 / 1) (#3)
    by Zorba on Tue Aug 30, 2011 at 03:59:18 PM EST
    an awful lot like the civilian justice system.  Judges who don't know how to properly instruct a jury?  Prosecutors who mishandle evidence?  Defense attorneys who bungle representation?  (Not disparaging our esteemed TL defense attorneys at all, but not all defense attorneys rise to your levels of expertise.)  Check, check, check.  Include incompetence (or at times outright lies) in the forensics labs.  For all the flaws in our civilian system, though, it seems as though the military system is much, much worse.   And I absolutely agree with you about abolishing the death penalty, period.    

    Possibly the civilian side? That might be the only place to get experienced representation in capital cases for the military.

    16 sentences of death in 27 years, less than one a year. I didn't read in the article how many actual capital cases. That's between 4 branches (5 if you count the Coast Guard), not much experience to go around.

    Most of the branches rotate duty stations every two or three years. That plus the lack of capital cases pretty much ensures that there will always be inexperience at multiple levels of a case like that in the military. The judge, prosecution and defense could all be trying there first one.

    It's sad that a law can get passed to provide  

    qualified attorneys or "learned counsel" for the terrorism suspects
    but nothing like that exists for those who serve.

    All the more reason for the death penalty to go.

    I don't think the military (none / 0) (#6)
    by Militarytracy on Tue Aug 30, 2011 at 05:49:41 PM EST
    will ever get rid of the death penalty.  It would be nice though if decent representation HAD to be provided every soldier no matter the charges.  When will that be a priority though?  They seem to use the possibility of you being badly abused by their justice system as a form of determent.

    Barring a federal ban on the death penalty (none / 0) (#10)
    by republicratitarian on Wed Aug 31, 2011 at 07:32:51 AM EST
    the military won't get rid of it. I agree that it would be nice if decent representation had to be provided. I don't understand how we can mandate it for terrorists but not military members, or U.S. citizens for that matter. I've seen the military JAG office in action several times in my career and I was unimpressed each time. If I remember correctly, you have the option of having a civilian lawyer in the military, but you might be on the hook for the cost of it yourself.  

    Seems Like... (none / 0) (#1)
    by ScottW714 on Tue Aug 30, 2011 at 03:46:31 PM EST
     ...some report comes out every couple of months pointing to the problems in the criminals justice system, that indicate mistakes are not as rare as once believed.  They are fairly routine one might even argue, with capital cases.

    I could care less about putting people to death, but it seems like we probably already have and will certainly soon put someone to death in which their innocence will be provable after the fact.  Then what ?  What we know now seems more then enough to stop this non-sense, we are just playing the odds, and one of these times those odds are gong to bite us and the state will have officially killed an innocent man, and that I have a lot of issues with.

    To me the reward isn't worth the risk.

    Why aren't we holding anyone in the process that is complacent is these miscarriages of justice accountable.  In the above mentioned, why aren't judges who give improper instructions in a capital case penalized, why aren't prosecutors who mishandle evidence answering when a man's life is at stake.  Just seems like no one really cares, which is what I suspect will be the attitude when an innocent man is executed.

    Plus of course the whole 'the government has to kill a man to avenge the a murder' non-sense of it all.  Life in prison is no picnic, and seems like taking the high road would be better off for society as a whole.  Let them spend their life behind bars and just drop this dog and pony show of extracting life when life is taken.

    I know this doesn't have much to do with the article, just my 2 cents.  And as a former military man, I didn't actually realize the military was executing people in the normal course of business.  That's stunning, especially considering the leniency they have doled out with the people found guilty of horrific war crimes.  Doesn't make sense.

    You are correct (5.00 / 0) (#2)
    by jbindc on Tue Aug 30, 2011 at 03:54:35 PM EST
    But I notice that in your sentence

    Why aren't we holding anyone in the process that is complacent is these miscarriages of justice accountable.  In the above mentioned, why aren't judges who give improper instructions in a capital case penalized, why aren't prosecutors who mishandle evidence answering when a man's life is at stake.

    You leave out one whole part of the process - the defense attorneys.  Why are attorneys who are not competent to defend people in capital cases allowed to do so?  The article points to very junior attorneys and those with limited capital experience taking (or being assigned) these kinds of cases.  Who is responsible for this?  

    And if they are truly incompetent or just slacking in their ethical responsibilities - why are they still practicing?


    Who assigns the cases to (none / 0) (#8)
    by MKS on Tue Aug 30, 2011 at 06:46:18 PM EST
    the incompetent Defense Attorneys..... Are they paid as much as the prosecutors? Do they have the same caseload and level of support as the prosecutors?

    If they are JAG lawyers (none / 0) (#9)
    by jbindc on Wed Aug 31, 2011 at 07:23:18 AM EST
    Then the answer is yes. If they are private lawyers hired by the defendant, then my guess is they get paid more than the prosecutors (who are probably also JAG lawyers).

    I Left That Out... (none / 0) (#11)
    by ScottW714 on Wed Aug 31, 2011 at 09:46:57 AM EST
     ...because I don't know the process for selecting defense attorneys and I would hardly blame some rookie because he botched a job he wasn't qualified to try.

    But good point.


    He or she actually.

    Hate That... (none / 0) (#13)
    by ScottW714 on Wed Aug 31, 2011 at 02:06:17 PM EST
     ... one or two always slip by, sorry.

    Hold it...none innocent from the link (none / 0) (#7)
    by diogenes on Tue Aug 30, 2011 at 05:56:54 PM EST
    "In all of the cases, the men have been resentenced to life in prison. Eventually, they could be eligible for parole."

    It sure looks as if the only documented botching was in the "death penalty phase" of the case.  If the ten had been executed, it would not have been a case of an innocent man being executed.