United States v. Witt
2016 CAAF LEXIS 576
| C.A.A.F. | 2016Background
- Senior Airman Andrew P. Witt was convicted at general court-martial of attempted and premeditated murder; the court sentenced him to death and the convening authority approved.
- The Air Force Court of Criminal Appeals (CCA), sitting en banc in Witt I, affirmed findings but set aside the death sentence and ordered a rehearing based on ineffective assistance of counsel for failing to investigate mitigation.
- The Government moved for reconsideration; the CCA granted reconsideration en banc in Witt II and reversed Witt I, affirming the death sentence.
- Several judges who were present for duty when Witt I issued declined to participate in Witt I (because they arrived after oral argument) but later participated in Witt II; other judges recused for prior involvement.
- The Court of Appeals for the Armed Forces (this Court) considered whether the CCA could reconsider an en banc decision and whether judges who declined to participate in the original en banc decision could later participate in reconsideration.
- The Court held the CCA may reconsider its own en banc decision but judges who were present for duty and declined to participate in the original en banc decision were de facto disqualified and could not later participate; the participation of those judges in Witt II prejudiced appellant and required vacatur of Witt II and remand for a sentence rehearing.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether a CCA en banc panel may reconsider its own en banc opinion | En banc reconsideration of an en banc decision is prohibited by Article 66(a) and precedent | CCA rules and practice permit reconsideration; court has inherent authority to reconsider | CCA sitting en banc has authority to reconsider its own en banc decision |
| Whether a judge present for duty who did not participate in the original en banc decision may later participate in reconsideration | Judges who declined to participate in initial en banc should be disqualified from later participation | Participation is permissible; no per se bar because court may change composition | A judge present for duty who declined to participate in the first en banc decision is disqualified from further participation in the case |
| Whether participation of de facto disqualified judges in Witt II prejudiced appellant’s substantial rights | Their participation undermined confidence and prejudiced appellant, particularly because it affirmed a vacated death sentence | The Government contended no prejudice and resisted disclosure of individual votes | Court found prejudice under Liljeberg factors (risk to public confidence) and vacated Witt II |
| Proper remedy for the composition error | Vacatur of Witt II and remand for sentence rehearing in accordance with Witt I | Argued for affirmance | Court vacated Witt II and returned case for a sentence rehearing |
Key Cases Cited
- United States v. Henderson, 52 M.J. 14 (C.A.A.F. 1999) (panels may reconsider their own decisions; discussion of CCA rules)
- United States v. Chilcote, 20 C.M.A. 283 (C.M.A. 1971) (held uniform rules did not authorize en banc reconsideration of en banc opinion)
- Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988) (three-factor harmlessness test for judicial disqualification violations)
- United States v. Roach, 69 M.J. 17 (C.A.A.F. 2010) (applied Liljeberg factors in military context; public confidence dispositive)
- United States v. Fimmano, 9 M.J. 256 (C.M.A. 1980) (discussion on judges joining courts after petitions and appearance concerns)
- United States v. Witt (Witt I), 72 M.J. 727 (A.F. Ct. Crim. App. 2013) (en banc) (original CCA decision setting aside sentence for ineffective assistance)
- United States v. Witt (Witt II), 73 M.J. 738 (A.F. Ct. Crim. App. 2014) (en banc recon.) (reconsideration opinion affirming sentence; later vacated)