United States v. Murphy

STATES, Appellee, UNITED MURPHY, Sergeant, T.

James Army, Appellant.

U.S. 64,926.

No.

CMR No. 8702873. Appeals

U.S. Court

the Armed Forces.

Argued May 15, 1997.

Decided Dec. Crawford, JJ.,

Sullivan and filed dissent- opinions.

ing student) (law Vaughn M. David

Wilson and (on brief); Milstein. Elliott S. opinion of Judge delivered the COX

Chief the Court. (SGT) T. Mur- James

Appellant, Sergeant specifications three convicted of phy, stands murder, of Arti- premeditated violation of Justice, 10 118, Military of Uniform Code cle 918, specifications of larce- single § and USC of swearing, violation ny, and false bigamy, 134, UCMJ, §§ 921 and USC Articles 121 by 934, He respectively. was sentenced and general to death. Court court-martial (now Military of Review the Court Crimi- of and Appeals) affirmed his convictions nal (1993). His to death. 36 MJ sentence 67(a)(1), Article appeal mandated 867(a)(l)(1994). UCMJ, § 10 USC numerous issues Appellant has raised appel- appeal, many of which are classic trial, jurisdic- relating to the late issues court-martial, rulings, evidentiary tion of the However, discovery questions, and the like. col- among numerous interspersed these are conviction, primarily lateral attacks on his upon his of ineffective assis- based claims Appendix for com- See tance of counsel. appellant. plete list of the issues raised Upon consideration careful claims, agree we that he received ineffective sentencing assistance of counsel COX, C.J., opinion of the delivered Accordingly, case. we set aside the decision EFFRON, JJ., Court, in which GIERKE and Military Review and return of the Court CRAWFORD, JJ., joined. SULLIVAN and Judge to the Advocate General the record dissenting opinions. filed Army with for further action consistent E. Appellant: Captain For Richard opinion. paragraph of this the decretal Bums, Goodman, Captain Cap- Mark I. and practice in the United Unlike the States Mayer, (argued); Kurt Colonel tain USAR Courts, nei- Appeals and District Courts Major W. Walter- Phelps, T. Fran John for ther the nor the Manual Courts- UCMJ Pacella, house, Captain Captain Beth G. States, 1984, Martial, provides proce- United (on brief); B. Captain A. Arden Victor Tall collateral, post-conviction attacks dures Levy. § et guilty verdicts. See 28 USC Major Lyle D. Appellee: For Jentzer Nevertheless, upon have relied seq. we (argued); Captain H. Levin Colonel Steven mili- variety procedures to ensure that a Smith, M. Eva M. Lieutenant Colonel John fully tary rights protected. are accused’s Novak, Captain Mulligan, E. Michael See, Henry, 42 e.g., States v. MJ United (on brief); Lieu- Captain Kenneth G. Wilson (remanded (1995) to Court of Criminal L. tenant Colonel James Pohl. re- Appeals for consideration of affidavits DuBay, parties); urging spective United States reversal: Sandra Amicus Curiae (eviden- (1967) (law student) (argued); J. 37 CMR Richard USCMA Tvarian case, tiary hearing). In this have also Tim we elected He admitted that he killed trial, James, to consider not record but Jr. subsequent also numerous affidavits filed August The bodies were discovered on the trial in order to if determine pastor, when Petra’s Chief Warrant Officer good grant- has shown cause for relief to be Smith, why Two tried to ascertain she had 59(a), UCMJ, ed. Arts. 67 and 10 USC missed church several activities. Smith went 859(a), §§ respectively. doing, 867 and In so apartment, to her where he encountered an carefully we have all of considered the issues reported findings unusual odor. He to by appellant raised before Court. How- police. They investigated the German and ever, we will general discuss two areas of discovered bodies the three victims. these, juris- personam of concern: one in discovery precipitated investiga- This an him, try by diction the court-martial to its by tion both the German and authorities

very nature must be resolved at the thresh- Army Investigation Criminal U.S. Command old; other, view, dispositive in our is (CID). 27, 1987, August appellant gave On appeal. the first of to several confessions the authori- Ultimately, gave ties. he a written state- First, will we consider whether there was CID, in ment to the which he admitted that jurisdiction, principles under of international he had killed his former wife and the two law, try appellant in Germany, by United children. Court-Martial, States General for the mur- stepson, der of his wife former and former Appellant custody was taken into at Red- who were German citizens and were not his Germany, stone and Arsenal was returned to “dependents” at the time the homicide. placed pretrial where in he was confinement Second, appellant we will consider whether by Army the U.S. the Mannheim Confine- there, ground Facility, Germany. entitled to a new trial on the that he ment he While inmates, guilt did not receive effective assistance of coun- also confessed his two fellow incriminating sel. and he made statements Sergeant First Class James Marek. The Facts The Jurisdictional Questions Murphy, Petra a citizen and resident of Germany prohibits Constitution im- Germany, appellant. had been married to position penalty. of the death From that son, 5-year-old Tim, She had a before she vantage point, appellant now that he asserts son, appellant, married and she had a second percent” having was “100 in favor of Jr., James, by appellant. During the months jurisdiction German Government exercise murders, prior appellant she and had question. over offenses His basic ongoing, proceeding an acrimonious divorce premise jurisdiction primary is that over the pending in the German In courts. June homicides his former wife and her son 1987, Beate, appellant married another Ger- Government, with the that the German and citizen, yet although man he had not divorced German Government would have exercised 1987, July appellant Petra. In North visited jurisdiction over this case had the German Carolina, obtained a from where he divorce primary juris- they authorities realized had grounds 1-year separation. Petra on the of a VII.3, diction. See Art. North Atlantic Trea- 1987, August military received Organization ty Agreement Status of Forces requiring him to orders transfer Redstone (NATO SOFA), applicable 4 UST Arsenal, Alabama. 1, 1963, Germany July effective UST 531. specifically, More his attack is three-fold. August when Petra Sometime between by First, mem- that, was last seen alive fellow church by operation of cer- he asserts ber, August and when regulations, left Ger- tain laws and he was denied many, appellant apartment. presenting went to Petra’s effective assistance of counsel confessions, There, according Specifi- to his he killed his views the German authorities. smashing cally, her in her head with a hammer. he that his detailed defense claims domestic, tribunals, foreign determi- law, Logan or prohibited were counsel state, nation, agency will (1982), by military which Act, § nation 18 USC matter for the jurisdiction is a Army Europe Regulation exercise regulation, U.S. concerned, states, nations, agencies 550-56, actively representing him the from suspect or prosecu- right of the ac- negotiations the local is not a with German jurisdiction. concerning question tors cused. Second, pros- contends that the German he upon principles of provision is This based acting under a false belief were ecutors Supreme long recognized by the sovereignty jurisdiction primary had

the United States Fessenden, 258 U.S. Ponzi v. Court. See existing NATO the case under over (1922), 254, 260, L.Ed. S.Ct. SOFA, argues authori- that American he which states: mistakenly purposely in- or ties had either right to a full of crime has a One accused of prosecutor that all the formed the German according of the to the law and fair trial within “dependents” in case were victims the al- government sovereignty he is whose when, fact, they in treaty meaning of the offended, but he has no more leged to have case, argues appel- not. If this is the were that____ complain may if one than He not lant, acquired him in jurisdiction over was right exclu- sovereignty waives its strict to treaty, a SOFA. contravention of the NATO custody of him for vindication of its sive by made the Su- Relying on the distinctions may in that the other also laws order cases, Ker preme in landmark v. Court two against subject him to of crime conviction 225, Illinois, 436, 7 30 L.Ed. 119 U.S. S.Ct. it. (1886), Rauscher, 421 v. and United States 407, 234, 7 L.Ed. 119 30 425 U.S. S.Ct. Girard, 524, v. 77 Wilson 354 U.S. See also correct, (1886), that, appellant argues if he is (1957). 1409, 1 L.Ed.2d 1544 S.Ct. jurisdic- was without then the United States however, Assuming, appellant try tion him. to complain exercise standing has to about the Third, argues clearly he appellant that was jurisdiction by Army, over him the U.S. he of regard, appellant con- prejudiced. In this Supreme in loses. Court nevertheless that a letter from German Minister tends States, 435, 107 v. 483 U.S. Solorio United Attorney of to the General Justice (1987), 2924, 364 held that S.Ct. 97 L.Ed.2d clearly States shows that German United military for a court-martial the test whether jurisdiction authorities would have exercised jurisdiction try to an is the has accused they if had not been about the true mistaken military Lov status the accused. But cf. facts. States, 774, 748, ing 517 116 v. United U.S. argu- Government counsel counter these (1996) 1737, (Stevens, L.Ed.2d S.Ct. 36 (a) ways. They in ments several assert that: J., concurring); compare with Relford issue; appellant standing no raise the has to Barracks, Commandant, Disciplinary U.S. (b) any appellant claim for relief be- waived Leavenworth, 355, 365, 91 Ft. 401 U.S. S.Ct. object prior he did not to the trial cause (1971) 649, (query whether 28 L.Ed.2d 102 (e) court-martial; in completion of the all twelve factors to defeat satisfies event, any any to the extent that claim for court-martial). jurisdiction military upon mis- relief must be based Government that, perti- at all times It is uncontested conduct, was the United States free case, appellant a member of nent to wrongdoing here. subject jurisdiction Army and U.S. against claims 2, UCMJ, We resolve all these court-martial. Art. 10 USC of the agree Army appellant. with the Court of Furthermore, We § he was taken into cus- Military appellant has stand Review that no tody in United States and was never 201(d)(3), object ing process. to the RCM custody to the and control of Ger- released amended, Manual, provides: as supra, many. Accordingly, even if the conduct of military subject authorities Germa- or to trial United States an act omission is

Where ny authorities into a decision or more civil misled German by court-martial and one not to seek the return adopted two-pronged test articulated custody 668, Germany prosecution, appel- Washington, Strickland v. 466 U.S. (1984). nevertheless, was, lawfully subject S.Ct. 80 L.Ed.2d 674 lant See Unit (1994), Loving, ed States v. 41 MJ jurisdiction of person- the court-martial. grounds, on other jurisdiction U.S. am over him existed because of aff'd (1996). 1737, 135 S.Ct. L.Ed.2d 36 Army, his status as soldier not as a First, person the defendant must coun- being result turned show that over to the performance sel’s foreign government deficient. This re- pur- United States quires showing that counsel made errors treaty. Therefore, suant an extradition functioning so serious that counsel was not reliance United States v. Rauscher is guaranteed as the “counsel” the defendant misplaced. Second, by the Sixth Amendment. Logan We need decide whether the defendant must show that the deficient Army Europe Regulation Act the U.S. can performance prejudiced the defense. This prevent indeed a defense counsel from com- requires showing that counsel’s errors municating with prosecutors. German Nor deprive were so serious as the defen- by holding do we the issue ap- resolve trial, dant of a fair trial whose result pellant right jurisdic- waived his to contest reliable. merely questions tion. That raises other 2052; 466 U.S. at 104 S.Ct. See United competence attorneys, to the of his which we Scott, v. supra. States discuss next. We wish to make it clear at the outset that performance our review of defense counsels’ of Claims Ineffective in this trial does not anything reveal which Assistance of Counsel suggests they totally were than less Appellant makes broad-based attack Murphy. dedicated to the defense of SGT upon actions, performance decisions, the of his trial defense Our review of the or inac of properly counsel. In order to tions defense is ap- evaluate counsel conducted the pellant’s multiple claims, atmosphere appellate calm of Our necessary it is first review. battle, fog us vision considers the of but it is put perspective. for case into the by Thus, guiding lights also carefully aggres clarified the aspect we must every review appellate sive counsel. alsoWe have the against of the case and balance claims having benefit reviewed numerous cases the total record before us. That review in- years developed a over the sense of the training, experi- cludes consideration performance standards of can ence, reason counsel; and abilities trial defense ably expected be of defense counsel. We are pretrial proceedings; investigative perfection, looking not but rather we are team; efforts of the defense selection of seeking military to ensure that accused are members; strategy; the court the trial represented by “reasonably competent” trial; performance during of counsel counsel, and that the results obtained at trial case; sentencing posttrial proceed- and the are v. Washington, reliable. Strickland su ings. (CMA Polk, pra; United v. 32 MJ States beyond dispute military It that a 1991). thoughts, With these first at we look member is entitled to effective assistance of the defense counsel in this case. Scott, counsel. States v. 24 MJ United (CMA 1987). When we look for effective Defense Counsel assistance, however, we Advocates, do not scrutinize Army Judge Captains Two U.S. every or (CPT) each and statement of Sehneller, movement Richard Vitaris and William Rather, satisfy Vitaris, counsel. we ourselves that by were “detailed” CPT Senior who, by Counsel, an accused has had Office, counsel or Defense Hanau Field U.S. representation, Service, her made the Army represent adversarial Trial Defense proceedings DiCupe, only work. United States at trial. The statement on the 1986). (CMA evaluating qualifications 21 MJ In claims record to the of these attor- counsel, case, neys appellant, capital of ineffective assistance of to defend we have nothing about us almost by The record tells Vitaris: “We are both was made CPT by investigation preparation or pretrial qualified with Ar- and certified accordance through Again, the above-men- counsel. 827(b)].” [UCMJ, 27(b), § ticle 10 USC affidavits, that both posttrial we learn tioned Nothing gives any trial in the record of indi- were “bur- Captains and Schneller Vitaris training, experience, or abilities cation of the ser- from the trial defense dened tasks of trial does these counsel. The record go not to North vice.” Counsel did Carolina tell the number of cases each counsel us sentencing portion of the investigate tried, long how had admit- had counsel been case, expert employed and no witnesses were bar, whether either had ted a state or by the defense. actually represented in a contested a client felony involving case voir dire examination of summary, and the In the record of trial cross-examination, witnesses, opening posttrial or us one affidavits leave with Murphy de- closing conclusion: SGT statements. Neither does the record rational attorneys were neither fended two who indicate whether either counsel had ever re- capi- experienced defending educated nor of a quested a mental health examination cases, they provided tal either were not psychia- or client consulted with forensic expertise or to enable them to the resources trist; investigative what kinds assistance deficiencies, they these or did not overcome available; or other resources were or wheth- request same. any knowledge experience er had counsel in the use of collateral resources.1 expressly Loving, 41 MJ at we military declined to mandate that defense Posttrial affidavits us more about the tell counsel meet the American Bar Association attorneys. example, two For from CPT Vi- Appointment for the and Perfor- Guidelines taris, counsel, the lead we learn: “Prior to Penalty in Death Cases mance of Counsel my representation Murphy, I never SGT (ABA Guidelines) 1989). (February Nor represented or served as associate counsel on § applies 18 to have we held that USC 3005 sentencing capital proceed- a case before law, provision That of courts-martial. ing.” he Also we learn that “did not attend 1994, that, requires capital in amended in capital training prior seminars to ... case, shall, judge “upon the the defendant’s representation Murphy.” of [his] SGT counsel, request, assign 2 of such whom at applicable least 1 shall be learned in the law Schneller, CPT the assistant defense coun- capital to cases.” But the ABA Guide- both sel, “responsible for the voir dire and lines and federal law are instructive. Coun- case,” portions sentencing of the of the two applicable who are “learned in the law to sel aspects any capital important most case. likely provide capital are an cases” less responsibility This division was made de- inadequate or ineffective defense than those spite fact CPT the Schneller had been a in law. “not learned” only prior 4 defense counsel months being in “detailed” CPT Vitaris assist looking perfor In counsels’ at defense appellant’s had no defense. CPT Schneller trial, mance at we have chosen the route cases, experience capital in defending and he Supreme illuminated Court United any training Cronic, 648,104 2039, not area had received v. 466 States U.S. S.Ct. (1984). 657 v. practice. 80 L.Ed.2d See United States calls, enlightening exchange place although he An Schneller to make stated that 1. took between (one appellant’s CPT Schneller trial defense "knowing personally did full well that I he so counsel), (MAJ) (the counsel), Major Pianelli trial pay probably for the call would have to because military judge, involving the use of the Signal proper Com- authorization from Fifth telephone by summary, the defense counsel. In mand had not been obtained.” It difficult to having a time the defense counsel was difficult capital a defense counsel in a case believe that using ordinary telephone military channels to permission prosecu- get from the would have States. In order contact witnesses to use the commercial German the United telephone, less tor to use the much telephone system, pay prosecutor would have to for the calls out of permission military he had to obtain from au- pocket. his own finally CPT thorities. MAJ Pianelli authorized 10

Loving, Offill, supra. compels That route us an conversation with inmate named adequacy perfor- look of counsels’ which incriminating made certain mance, viewing than expe- rather the limited allegedly statements. PVT French over- deficiency. rience of counsel as an inherent heard this and related he conversation what Fretwell, 364, lawyer See Lockhart v. 506 had heard to U.S. Schneller. —CPT (1993); later, S.Ct. L.Ed.2d 180 Some weeks after had Strick- CPT Schneller Washington negotiated pretrial agreement v. land and United States v. for PVT Scott, French, course, formally both CPT supra. Of as the ABA Schneller moved to military § Guidelines from implicitly sug- and USC 3005 withdraw French’s case. The noted, gest, just judge granted inexperi- as we have who the motion to withdraw per might military ence—even if not a judge presided flaw was the same well who se— inadequate trial, representation. appellant’s appellant’s lead over trial. At analysis, gave testimony regarding final what French we must consider is confession, objection by performance appellant’s whether without counsels’ was “defi- cient” and whether “counsels’ defense counsel. French errors were so cross-ex- deprive concerning serious as to of a amined the confession. Defense the defendant fan- trial,” impeach one counsel made [of where the “result no effort to the testi- trial] is Fretwell, French, mony supra although recently reliable.” at he S.Ct. had involving been convicted of several crimes

dishonesty and deceit. trial, At gave CPT no Schneller Claims military judge notice to the that there had Appellant’s claims of ineffective assistance representation by ap- been dual him of both However, of counsel are numerous. we will pellant and French. See Wheat United prin- discuss what we feel are the three States, 486 U.S. 108 S.Ct. claims, cipal as follows: (1988); Breese, L.Ed.2d 140 United States v. 1. That appellant was denied “conflict- (CMA 1981). Although 17MJ it be can Appen- IX, free” counsel. See Issues IV to argued knew, military judge that the or at a dix. known, potential minimum should have 2. That was denied effective as- representa- conflict interest between the sistance of counsel “because his trial defense appellant, military tion of French and to investigate mitigating counsel failed judge inquiry likewise no made the record of family circumstances his traumatic event, regarding any the conflict. In neither Appendix. XVI, history.” social See Issue military judge counsel nor the discussed the potential conflict of interest on record. 3. That received ineffective as- sistance of counsel “his because trial defense Appellant appeal now claims on that he adequately explore counsel failed to mental prejudiced by was this conflict of interest Appendix. XVII, health evidence.” See Issue because his counsel did cross-examine not object any portion French and did not of XV, Related to this last claim is Issue Leeke, testimony. French’s See v. wherein Hoffman Appendix, claims that he (4th Cir.1990); 903 280 F.2d United States v. process was denied “due of law because he (2d Cir.1986). Iorizzo, 786 F.2d 52 competent psychiatric was denied assistance evaluation, preparation, presenta- Appellant correctly that contends tion of case.” he was entitled to have conflict-free counsel. Arkansas, Holloway v. 435 S.Ct. U.S. 98 The Conflict of Interest Questions (1978). 55 L.Ed.2d 426 He is also (PVT) military judge Government called Private correct that sua had a against appellant. duty questions sponte French as a witness resolve conflict Breese, appellant’s pretrial supra. French had been one of the record. United States v. judge cell mates in the Mannheim Correctional Fa- Not was he entitled to have the there, claims, cility. appellant engaged While attor- a sort out conflict-of-interest of water three or four inches it was potential or actual believe neys duty a to discuss had then, bathtub, And I’m not sure. in the him. See RCM of interest with conflicts in the boy’s head down the little 901(d)(4); ratio stuck Henry, 42 at 237. Our MJ drowning him. “to water and he was in Breese was nale for the rule enunciated that, by reason of disarm future contentions testimony Second, provided helpful French has multiple representation, an accused been falsely why appellant would might show that coun assistance of deprived of the effective testimony, killings. This confess to the However, repre multiple sel.” 11 MJ at 23. harmless, follows, certainly if not actual- sentation, unexplained in the record even if ly helpful: se, not, trial, per mandate reversal. of does you of involvement Q. Did he indicate Rather, presumption that con it creates anyone other than himself? existed, can be re flict of interest one that indicate, indi- sir. He didn’t A: He didn’t question by the Id. The butted actual facts. cate, say that He did ah —I asked sir. is, remains, repre multiple whether the States, they him, you came to the “When setting particular in a resulted sentation you, any evidence on so have real didn’t Cuyler conflict of interest.” v. an “actual you easily?” He told why did confess so Sullivan, 335, 348, 446 U.S. S.Ct. somebody protecting me he (1980). 64 L.Ed.2d 333 loved, say name or but he never did her he carefully Military The Court of Review anything else about it. considered, rejected, appellant’s but conflict- Q: [appellant’s] concern that some- Was of-interest claims. 36 at 1143-45. How- MJ falsely body else be accused? Was would ever, below no of the court had record gave? he that the indication that proceeding posttrial trial or on which to base A: Yes. Smith, judgment. its See United States v. (CMA 1993). Rather, MJ the court Regardless, con because the several finding by decided the issue the affida- below by by appellant were corroborated fessions than the vit defense counsel more credible ease, physical in the we con evidence appellant. judg- This affidavit method testimony motive could clude that French’s ing credibility questionable also involves prejudiced appellant as to the find have practice resolving pure disputes of materi- ings guilt in this case. affidavits, practice al which fact mere Nevertheless, question whether recently this Court criticized and con- has any impact on the conflict of interest had this Ginn, v. demned. See United States MJ sentencing proceedings unresolved. remains (1997). law, the court below erred Under our case Likewise, record we have searched the solely resolving question on the basis affidavits, posttrial trial and the and we have contradictory affidavits. United States arguments considered the of counsel the Ginn, supra. This should have and issue Assuming, arguendo, law. that there was a by at trial the could have been resolved interest, that this conflict we conclude reminding of CPT Schneller simple exercise portion impact conflict had on the merits no military judge prior representa the of the testimony trial. PVT was the French’s tion, by judge conducting a suitable and However, mostly provide cumulative. he did inquiry appellant on the rec of counsel and facts, objection by two additional without ord. appellant. counsel Nevertheless, findings, as we are con- to First, testimony appel- French’s sealed beyond any ap- reasonable doubt that vinced killing own lant’s motive for his son: by pellant prejudiced the unresolved was not in of interest because the admission he said it was like a voice that was conflict And mind, corrobo- telling get your multiple him confessions and the his to “Go other his there, However, rating physical we can- you he knew were as a evidence. son because witness,” testi- say not with confidence that French’s so he took his son out of bed and put mony why appellant his son had I about killed took him into the bathroom and impact offense, no constituting on members’ deliberations on mission of the acts record, accused, sentence. From this we a are unable result of a severe mental defect, question to appreciate answer the fail- disease or to whether counsels’ unable quality wrongfulness ure to the nature and or the clearly resolve the conflict resolved (1) key questions, of the acts. Mental or actively disease defect does did “counsel (2) not represent otherwise constitute a conflicting defense. ] interests” or there an “actual conflict of [which] interest psychiatric The reported appel- board that adversely performance.” affected counsel’s lant did not suffer from a severe mental Smith, 36 MJ at In such a circum- defect, or disease and that he was to able stance, compelled we are not appel- to affirm “cooperate intelligently in the defense.” lant’s resolving death sentence without 45(b), UCMJ, 845(b), § Article 10 USC supra Henry, question. conflict-of-interest and Rules for Courts-Martial will not at 238. capital a plead guilty. allow defendant to

Thus, appellant’s attempted defense team to Investigation capital mount a to defense murder Pretrial the Trial charges. light of the numerous confes- turning appellant’s Before to claims sions, inconsistencies, some with the defense counsel, of ineffective assistance in that perhaps tried create the belief that properly defense counsel did prepare not confessions were untrue killings and the try case, necessary it is to look at the actually by appellant’s were committed sec- pretrial setting defense team’s and the trial wife, Beate, person ond appellant whom strategy. foremost, First and coun defense try protect would with his false confes- sel were a gory inexpli confronted with strategy obviously sions. The defense did family cable Appellant’s homicide. first wife work. not had by repeated been killed blows to the sentencing by The case was handled CPT by object, ultimately head a blunt determined Schneller. He did travel to the United hammer, to be a and then drowned in her in States order to personal conduct inter- children, bathtub. small stepson Two with views witnesses hometown son, violently had been killed. The killer had Clinton, Instead, North Carolina. he at- decay left them apartment a civilian develop tempted to an extenuation and miti- Germany. gation by correspondence case and tele- Upon being questioned by police investiga- phone. pretrial The effort is best summed Alabama, guilt tors confessed up CPT in an Schneller affidavit of Janu- subsequently made numerous confes- 28,1993. There, ary he stated: many people. sions to different Confronted I obtained a list of witnesses from SGT evidence, with overwhelming Murphy many and also sent letters out to attempted plead guilty charges. to the friends Murphy’s and relatives in SGT military judge rejected appellant’s guilty responses town. I ... home received pleas because the case had been referred as I responses these letters and from the 910(a)(1). a capital case. ROM phone made calls back to individuals in- Prior proceed- to the commencement of quiring Murphy’s history. into life Based ings, appellant’s requested ap- interviews, counsel I selected individuals pellant sanity board. See be examined thought helpful I would be most to orn- purpose RCM 706. The such a requested they board ease and be flown over government if an capacity expense. Throughout determine accused “lacks my at responsibility any stand trial” mental or “lacked interviews there was never mention of charged.” against for abuse or mistreatment SGT Mur- offense Lack of mental further, phy or responsibility complete is a his mother. And SGT defense under Murphy 50a(a), UCMJ, gave any military never of this information law. Article 10 USC 850a(a), me. § to states: by preparation,

It is an a affirmative defense a trial result of this the As defense that, Murphy’s previous court-martial at time of com- the the offered evidence SGT Although ap- character; to death. a and sentence fact that he was not vietion good Army to soldier; defer man; pellant had asked the Court good a and that he was violent investigation was until after the its decision rehabilitate life. See that he desired to to continue the gave complete, un- that court refused Murphy an 36 MJ at SGT In at addition to mem- 36 MJ 1149-54. in which he asked the case. sworn statement directly life, by Ms. Miller’s expressed produced re- spare and he information bers to investigation investigation, of this the results Murphy also told the members morse. SGT develop way to con- plead guilty. paved the that he had tried to through factual matters affida- new siderable well-prepared a CPT Schneller delivered The unfortunate filed with this Court. vits thoughtful and summation for the members Army unwillingness to of the Court’s result consider, including reminding each mem- however, decision, delay its March 1993 personal a to return ber that it was decision has none this “new matter” been spite death sentence. In of defense coun- a evidentiary hearing, and most of an tested efforts, returned a sels’ the court-martial unchallenged by government evidence. it is including sentence death. non-factfinding this court —is Thus Court —a Military Army Review Court appellant’s claim that upon to evaluate called by sentencing this effort characteriz- blessed a trial sub- he is entitled to new because judg- ing it “trial defense counsel’s tactical as which, convincing, might if evidence stantial cases, might ment.” Id. this effort some result. cause a different trial well satisfy ade- well the Strickland standard for by Complementing assembled the evidence representation. in this quate What follows Miller, appellant additional af- Ms. submitted however, opinion, capital demonstrates a fidavits, including by special- medical several capital at least case —is not case —or Appellant of Dr. retained services ists. “ordinary,” inexperience in this counsels’ O’Connor, psychologist. A. a clinical William litigation factor sort of is a that contributes clinical Dr. O’Connor administered tests in the to our ultimate lack of confidence appel- interviews with appellant, conducted reliability judgment of the of death. result: lant, and much of the evidence examined quarrel Army no with the We have Court sociologist. Dr. gathered the forensic regarding obligation appellate of an court did, Murphy concluded that SGT O’Connor second-guess judgments. not tactical offense, alleged suffer at time of the however, Here, training counsels’ lack of psy- other personality from a disorder and experience questionable tacti- contributed chological dysfunctions would which have judgments, leading cal to the ultimate us thoughts or actions. There affected his conclusion that there are no tactical decisions slight cogni- are indications of minimal or second-guess. dysfunction; neuropsychological tive and however, origin primary or cause of Regarding Posttrial Claims personality with associated disorder Responsibility: Mental specified post-traumatic can be features records, on interview and

based clinical The Facts indicating persistent well as results test traumatic childhood abuse. and severe appellant’s pending While case was before Review, Army Military but Court of conviction, years ap- about 5 after his initial Sanity hearings Board were cor- [T]he obtaining funding pellant was successful required adequate rect based Judge from the Advocate General of methods. assessment Army employ expert of an services Carson, professor of history. psy- Dr. H. posttrial conduct a social The inves- William Miller, chiatry University of tigation completed Jill at the Medical South Ms. Carolina, worker, 1993, just case and April also reviewed forensic social Military psychological sociological evidence. weeks Review the after Court findings. opinion affirming appellant’s con- He concurred with Dr. O’Connor’s issued its 14 (2)

Appellant by Newly was also examined Dr. Ed- discovered evidence. new Kirby, psychiatrist ward a granted grounds C. with over trial 33 shall be on the of years practice. Kirby newly of Dr. peti- concluded that unless discovered evidence the Murphy’s SGT severe mental disease or de- tion that: shows fect him requi- rendered unable form the (A) The evidence was discovered after premeditated site commit intent to murder. trial; Importantly, Kirby Dr. also concluded that (B) The not such evidence is it Murphy appreciate SGT was unable to by would been peti- have discovered quality wrongfulness nature and of his tioner at the time of in the trial exercise of acts, moreover, and that he could not have diligence; due requirements conformed his conduct to the of (C) newly evidence, discovered if ques- law at the time of the incident in by light considered a court-martial tion. evidence, pertinent of all prob- other would Appellant also offers the affidavit of Dr. ably produce substantially a more favor- M.D., Merikangas, profes- James R. a clinical for able result the accused. psychiatry University sor of at Yale School of “newly Because the discovered evidence” Medicine, Murphy who concluded that SGT many years expi- this case came after the suffered from severe mental illness and 2-year ration period of the time authorized functioning that his intellectual low was con- 73, by Article has not based his organic damage, sistent with brain perhaps plea trial, petition for on a relief for new syndrome. as a result fetal of alcohol sought utilizing he has not relief the extraor- Appellant together then ties his evidence dinary authority writ Court. All See Aase, M.D., opinion with the of Dr. M. Jon 1651(a). Act, Rather, § Writs appel- 28 USC pediatrician, who concluded the amount sought appeal lant has relief direct claim- allegedly alcohol consumed ing deprivations. constitutional For exam- during pregnancy mother her with ple, appellant claims that he denied the put organic sufficient him at risk of psychiatric assistance experts prep- brain damage persist throughout that would defense, relying aration of his on Ake v. his life. Aase Dr. also concluded that Oklahoma, further 68, 1087, 470 U.S. 105 S.Ct. 84 syndrome (1985). examination for fetal alcohol was L.Ed.2d 53 He also seeks to have his clinically indicated. posttrial through a evidence viewed kaleido- scope ineffective-assistanee-of-counsel summary, appellant’s post- unrebutted earlier, Specifically, claims. as mentioned he submissions, least, very trial at the raise the investigation inadequate focuses on an into question of whether a reasonable finder of sociological background possible ex- fact, evidence, with this would armed come to planations his behavior. for the same conclusions that the court-martial however, helpless, We are not render findings did as to the and sentence. See justice Dock, (ACMR due. when One continuous theme is v. United States MJ 620 26 death-penalty 1988). throughout found cases Supreme handed down Court over the years. reliability last 30 That theme The Law Thus, qua Gregg result. sine non v. 153, 2909, Georgia, U.S. 96 S.Ct. 49 73, UCMJ, 873, § permits Article 10 USC (1976); Mississip L.Ed.2d v. Chambers military petition for a member new trial pi 35 L.Ed.2d U.S. S.Ct. years approv- “[a]t time within two after (1973); Georgia, Furman v. 408 U.S. al ... of a court-martial sentence.” ROM (1972); 33 L.Ed.2d 346 S.Ct. 1210(f) procedures provides grounds Fretwell; and Lockhart Strickland v. relief, for such as follows: Oklahoma, Washington; and Ake v. all su (f) new Grounds trial. pra, Supreme has insisted is that the Court ^[*] K* ^[*] v ^{[*] [*]} there be a proper functioning the adver- (CMA Lilly, reading v. 25 MJ system. A of these cases United States sarial fair 1988). that, Although some dis- in order the adver- there has been demonstrates for key system properly, agreement the in- standard of re- sarial work as to the correct counsel; that, view, full gredients competent agreement are and the clearly is if there 1210(f)(2) opportunity present exculpatory evi- present, fair are requirements of RCM dence; procedures; sentencing individualized to a trial. the is entitled new Com- accused opportunity to obtain the services of fair Van with pare States v. Tassel Unit- United impartial judges experts; fair and and and Young, supra; v. both see also ed States juries. Dock, (compare ma- supra v. United States jority dissenting opinion). As opinion with case, therefore, In test the this we will earlier, appellant’s we cannot review stated against result at trial the entire obtained he claims here under RCM because us record to determine whether we before petition filed for a trial within the no new affirm and can convictions sen- limit, statutory regardless, and it is time must the tence. We be satisfied that adver- the doubtful that he could meet “due-dili- worked, process has sarial and that gence” requirement of the rule. See United complete had and has a fair trial. (1995) Fisiorek, 244, 249 v. 43 MJ States cases, capital As have in other we we done J., Nevertheless, (Crawford, dissenting). which, judg- of in our use a standard review requirement in RCM ultimate found ment, obligation comports with our review 1210(f)(2)(C)provides us with a clear rule sentence, “all in which the as affirmed cases in the testing whether the result obtained Appeals, a Court of Criminal extends to proceeding is a reliable result. court-martial 67(a)(1). follow death.” Art. We will our That test is whether finding statutory mandate that “[a] sen- evidence, newly if consid- [t]he discovered may held tence of court-martial not be incor- light by a court-martial in the of all ered ground on rect of an error of law unless evidence, probably pertinent other would materially prejudices the error the substan- substantially produce a re- more favorable 59(a), rights tial accused.” Art. for the sult accused. 859(a). UCMJ, § doing, in so 10 USC But will we ensure that fundamental notions Id. process, hearings, competent full fair due all the affidavits We have considered all, result,” counsel, and above are “reliable by appellant as a new evidence obtained part equation. analysis, of the final sociologist. the work of his forensic result of examined, we and shall con- have heretofore Likewise, all of the affi- we have considered examine, in capital tinue to the record of trial psychol- and statements of the various davits satisfy military cases to ourselves that ogists, physicians. do psychiatrists, and We member has a fair trial. United received See say they if indeed the true not know what (all fully Loving, supra States v. issues con- affairs, the evidence has state because Curtis, sidered); 32 MJ 252 United States an adversarial been tested the crucible of (CMA (CMA 1991); 1991); 33 MJ MJ proceeding. (1997) (reversed reconsideration). Thus, when the dust settles on record review, we turn to With this standard trial, by the supplemented substantial immediately at hand. are con- case We affidavits, posttrial we find our- number of upon two questions fronted with based First, following position. we in the selves “newly psychiatric evidence. discovered” get full are did not satisfied Historically, and when not restrained sentencing hearing. There too and fair are 2-year given have limitation of Article we questions arising of the conflict of many out question of preferential treatment to the issue, potential mitigating effect interest responsibility for the mental when raised to his mental posttrial of the evidence as appeal. States v. first time on United status, experi- training (1995), lack Young, relying on United 43 MJ 196 (CMA Tassel, 1993); de- his trial defense counsel 38 MJ 91 ence of States v. Van capital of to affirm sonably findings, may fense cases to allow us a result as to then it sentence appellant’s death here. either affirm as to sentence imprisonment life and accessory penalties, or hand, the other we uncertain On are as to may rehearing it death order as to the impact posttrial of on information Curtis, (4) 130; sentence. 46 MJ at If it findings guilt. of There is substantial evi- that a different find- determines verdict on dence record that contradicts ings might reasonably result, it shall then requisite claims he could not form the sentence; rehearing findings order a on premeditation required for Government (5) If Ap- on remand the Court of Criminal prove guilt under murder Art. peals determines that further under review 118(1). impracticable, Article 66 is then the inter- Nonetheless, we recognize must judicial economy, may est of it order forth- information, posttrial as contained the bar- rehearing findings with a on and sentence. Court, rage of affidavits filed with has this by been never tested cross-examination or Appendix contrary testimony government wit- Tassel, nesses. See United Van States v. Issues Presented Therefore, supra. remedy pro- what do we appellant? remedy adjudge vide we I statutory meets the pre- mandate review 59(a). MILITARY DUE scribed Article PROCESS AND ARTI- 67, UCMJ, AND REQUIRE CLES 66 cognizant Judge are further We Sulli- THE OF MILITARY COURT APPEALS dissenting opinion van’s admonition in his AND THE COURTS OF RE- MILITARY Young, United States v. to the effect that the VIEW TO REVIEW ALL CAPITAL proper determining questions court for these VITAE, CASES IN FAVOREM SINCE Court Appeals. is the of Criminal 43 MJ at CAPITAL LITIGATION IN ITS IN- IS 199; Ginn, but see supra. United States v. THE IN FANCY MILITARY JUSTICE evidentiary An is entitled to an AND SYSTEM TRIAL AND APPEL- hearing if posttrial his or her affidavits raise LATE DEFENSE LACK COUNSEL questions might give material of fact that THE TRAINING AND EXPERIENCE event, rise to relief. we will leave it TO THE NECESSARY PRESERVE up Army Appeals Court of Criminal OF ALL PRE- RECORD ISSUES AND if it determine can resolve case on VENT APPLICATION OF WAIVER. it, evidence before or whether new fact hearing necessary. shall be Article

UCMJ, 866(1994). § II USC Army The decision of the United States THE MILITARY JUSTICE SYSTEM (36 1137) Military Court Review is set MJ TREAT SHOULD IN DEATH ISSUES aside. The record of trial is returned to the PENALTY IN THE CASES SAME Judge Army Advocate General of the IT MANNER AS DOES IN- COMMAND Army to the remand United Court of States AND MANDATE DE NOVO FLUENCE Appeals Criminal for further review. That AT ALL AP- LEVELS REVIEW OF (1) may: court Review the evidence to new PEAL. if a findings determine different verdict as reasonably

might light posttrial result in Ill evidence, Tassel, supra; United States v. Van (2) it If determines it that the record before A MILI- FACTFINDING COURT OF inadequate to resolve the factual issues TARY REVIEW MUST UNANIMOUS- regarding findings, may DuBay LY it order AGREE ON BOTH THE FINDINGS hearing to consider the factual issues raised AND THE IN A OF GUILT SENTENCE (3) appeal findings; as to the If it deter- CAPITAL CASE AND APPLY MUST that a mines different verdict would not rea- OF IN FAVOREM POLICY VITAE.

IX MUR- OF SERGEANT BECAUSE ONE IV ATTORNEYS APPELLATE PHY’S DE- MURPHY WAS SERGEANT MUR- SERGEANT REPRESENTED ASSIS- OF EFFECTIVE PRIVED SIMULTA- PHY AND THE “SNITCH” HIS TANCE OF COUNSEL BECAUSE NEOUSLY, REPRE- CONFLICTED PRO- TEAM COULD NOT DEFENSE INTO HAS PERSISTED SENTATION HIM CONFLICT-FREE VIDE WITH APPEAL. MURPHY’S SERGEANT REPRESENTATION. X V JUR- THE LACKED UNITED STATES BY ERRED THE MILITARY JUDGE COURT-MARTIAL ISDICTION TO INQUIRE EX- TO THE FAILING INTO MURPHY FOR SPECIFI- SERGEANT OF A OF IN- CONFLICT ISTENCE I. AND 2 OF CHARGE CATIONS ON DEFENSE TEREST BASED DUAL REPRESENTA- COUNSEL’S XI AAND OF SERGEANT MURPHY TION TES- “SNITCH” WHO GOVERNMENT DENIED MURPHY WAS SERGEANT HIM. TIFIED AGAINST AND EIGHTH AMEND- HIS FIFTH THE UNITED

MENT RIGHTS UNDER A RE- VI AS STATES CONSTITUTION THE UNITED STATES’ SULT OF MURPHY’S DEFENSE SERGEANT PROVIDE ACCURATE FAILURE TO COUNSEL COMMITTED REVERS- INFORMATION TO JURISDICTIONAL IN- IBLE ERROR BY FAILING TO GER- THE FEDERAL REPUBLIC OF THE TRIAL COURT IN WRIT- FORM MANY. AOF OF INTEREST ING CONFLICT OF BETWEEN REPRESENTATION A XII

SERGEANT MURPHY AND GOV- ERNMENT AND BY FAIL- “SNITCH” THE OF THE LOGAN EXISTENCE ING TO OBTAIN SERGEANT MUR- AND REGULATION ACT USAREUR PHY’S WAIVER OF CONFLICT-FREE 550-56 DENIED SERGEANT MURPHY REPRESENTATION ON THE REC- TO HIS CONSTITUTIONAL RIGHTS ORD. THE OF EFFECTIVE ASSISTANCE COUNSEL, PROCESS, EQUAL DUE

VII PROTECTION, AND BE FREE TO AND PUN- FROM CRUEL UNUSUAL THE COURT OF MILITARY REVIEW ISHMENT. BY ERRED FAILING RETURN TO A HEARING THIS CASE FOR DUBAY WHETHER A CON-

TO DETERMINE XIII FLICT OF INTEREST EXISTED. DE- MURPHY’S TRIAL SERGEANT INEF- FENSE COUNSEL PROVIDED VIII COUNSEL FECTIVE ASSISTANCE OF (1) BY TO: A DUBAY REHEARING IS NECES- FAILING CHALLENGE NATURE, THE THE THE OF TO EXPLORE CONSTITUTIONALITY SARY EXTENT, A AND REGU- AND EFFECT CON- LOGAN ACT USAREUR OF (2) 550-56; REQUEST BY THAT OF LATION FLICT INTEREST CAUSED TRI- MILITARY THAT MURPHY’S THE JUDGE ORDER ONE OF SERGEANT BE FORMER SERGEANT MURPHY PROVIDED AL DEFENSE COUNSEL’S THE WHO OF ONE OF WITH GERMAN ATTORNEY REPRESENTATION PROPERLY PROTECT HIS COULD DECEDENTS.

XVIII RIGHTS CONCERNING JURISDIC- TRIAL DEFENSE COUNSEL PROVID- (3) TION; AND ENSURE THAT THE ED INEFFECTIVE OF ASSISTANCE GERMAN GOVERNMENT WOULD BY ADE- COUNSEL FAILING TO WITH COMPLY ITS INTERNATIONAL QUATELY PRE- INTERVIEW AND OBLIGATION TO THE SUPPORT HU- PARE TO CROSS-EXAMINE GOVERN- MAN RIGHTS OF PEOPLE WITHIN MENT WITNESSES AND PREPARE REQUIRED ITS TERRITORY BY AS DEFENSE WITNESSES. THE EUROPEAN CONVENTION.

XIX XIV APPELLANT’S TRIAL DEFENSE COUNSEL CONDUCTED AN INADE- SERGEANT MURPHY DENIED WAS QUATE AND VOIR INEFFECTIVE PROCESS, HIS RIGHTS TO EF- DUE DIRE, THEREBY DENYING APPEL- ASSISTANCE, FECTIVE CONFRON- LANT HIS THE RIGHTS UNDER TATION, TRIAL, A FAIR AND FREE- FIFTH, SIXTH, AND EIGHTH DOM FROM CRUEL AND UNUSUAL AMENDMENTS TO THE EFFECTIVE PUNISHMENT AT ALL STAGES OF COUNSEL, ASSISTANCE OF AN IM- THE RE- PROCEEDINGS DUE TO PANEL, PROCESS, PARTIAL DUE PEATED INSTANCES OF PROSECU- BE AND TO FREE FROM CRUEL TORIAL MISCONDUCT. AND UNUSUAL PUNISHMENT. XV XX DE- SERGEANT MURPHY’S TRIAL SERGEANT MURPHY WAS CONVICT- FENSE COUNSEL WERE INEFFEC- ED WITHOUT DUE PROCESS OF TIVE FOR FAILING TO OBJECT TO LAW HE BECAUSE WAS DENIED THE ADMISSIBILITY OF PROSECU- COMPETENT PSYCHIATRIC ASSIS- 19, 20, 26, 27, TION EXHIBITS AND 30- EVALUATION, IN THE TANCE PREP- ARATION, AND PRESENTATION OF HIS CASE.

XXI TRIAL DEFENSE COUNSEL WERE XVI BY INEFFECTIVE TO OB- FAILING JECT THE AD- WHEN GOVERNMENT SERGEANT MURPHY WAS DENIED DRESSED DURING ITS OPENING HIS SIXTH RIGHT AMENDMENT TO STATEMENT AND PRESENTED TES- EFFECTIVE OF ASSISTANCE COUN- THE ON TIMONY MERITS CONCERN- TRIAL SEL BECAUSE HIS DEFENSE ING IRRELEVANT AND HIGHLY COUNSEL FAILED TO INVESTIGATE VICTIM EVI- PREJUDICIAL IMPACT THE MITIGATING CIRCUMSTANCES DENCE. HIS OF TRAUMATIC FAMILY AND SOCIAL HISTORY.

XXII MURPHY DENIED SERGEANT WAS XVII THE EFFECTIVE OF ASSISTANCE MURPHY DENIED SERGEANT WAS DE- COUNSEL WHEN HIS TRIAL EFFECTIVE OF ASSISTANCE COUN- FAILED OB- FENSE COUNSEL TO WHERE TRIAL SEL HIS DEFENSE THE JECT TO ADMISSIBILITY OF ADEQUATELY FAILED COUNSEL TO BOTH AN ORAL STATEMENT ALLEG- EXPLORE MENTAL HEALTH EVI- BY APPELLANT TO SA EDLY MADE AND A DENCE. WOODALL WRITTEN STATE-

XXVII MENT PRESENTED AS PROSECU- EFFECTIVE- THE MILITARY JUDGE EXHIBIT 60 THEY TION BECAUSE LY THE PANEL MEM- PRECLUDED OBTAINED OF WERE IN VIOLATION SER- FROM CONSIDERING BERS 31(b), UCMJ, ARTICLE AS SERGEANT GEANT MURPHYS DISADVANTAGED THAT NOT ADVISED MURPHY WAS BACKGROUND, DENYING THEREBY HE OF FALSE WAS SUSPECTED TO CONSTITUTION- HIM HIS RIGHTS SWEARING. AL AND MILITARY DUE PROCESS

AND BE FREE FROM CRUEL TO AND XXIII UNUSUAL PUNISHMENT. THE EF- APPELLANT WAS DENIED XXVIII FECTIVE OF COUNSEL ASSISTANCE TRIAL WHEN HIS DEFENSE COUN- MURPHY IS ENTITLED SERGEANT THE AD- SEL FAILED TO OBJECT TO THE TO A REHEARING BECAUSE OF THE STATEMENTS MISSIBILITY IN- MILITARY IMPROPERLY JUDGE MADE APPELLANT ALLEGEDLY TO THE MEMBERS ON STRUCTED FIRST MAREK SERGEANT CLASS PROCEDURES, THEREBY VOTING AND STAFF SERGEANT LIPSCOMB THE APPELLANT DEPRIVING OF THE MADE AS STATEMENTS WERE PROCEDURAL PRO- SUBSTANTIAL APPELLANT HAVING WITHOUT 51(a), UCMJ, TECTIONS OF ARTICLE BEEN OF HIS RIGHTS UN- ADVISED ON FINDINGS AND SENTENCE. 31(b), DER ARTICLE UCMJ. XXIX

XXIV THE MILITARY COMMITTED JUDGE SERGEANT MURPHY WAS DENIED FAILING PLAIN ERROR BY TO IN- RIGHT HIS SIXTH AMENDMENT TO ON SENTENCING AS TO STRUCT OF EFFECTIVE ASSISTANCE COUN- THE THE MEANING OF TERM “SUB- SEL HIS TRIAL BECAUSE DEFENSE AND STANTIALLY OUTWEIGHED” FAILED COUNSEL TO INTERVIEW IT THE RELA- HOW APPLIES TO AND AVAILABLE MILI- PRESENT BETWEEN MITIGATING TIONSHIP TARY WITNESSES AND MILITARY AND CIRCUMSTANCES AGGRAVA- RECORDS. FACTORS, AND FAILING TO TING AND EXPLAIN THE RELA-

DEFINE TIONSHIP BETWEEN CIRCUM- XXV AND FACTORS. STANCES SERGEANT MURPHY WAS DENIED HIS SIXTH AMENDMENT RIGHT TO XXX ASSISTANCE OF EFFECTIVE COUN- THE ERRED IN MILITARY JUDGE SEL HIS TRIAL DEFENSE BECAUSE THE FIFTH AND VIOLATION OF SEEK, COUNSEL FAILED OB- TO IN FAILING EIGHTH AMENDMENTS TAIN, AND PRESENT FAVORABLE TO EXPLICITLY THAT INSTRUCT THE CLEMENCY MATTERS TO CON- THE EVEN IF MEMBERS UNANI- VENING AUTHORITY. AG- FOUND ONE OR MORE MOUSLY FACTORS, AND IF EVEN GRAVATING XXVI THE MEMBERS DE- UNANIMOUSLY THE THE ERRED TERMINED THAT EXTENUAT- MILITARY JUDGE ADMITTED, DE- WHEN HE OVER ING OR MITIGATING CIRCUM- OBJECTION, FENSE GRUESOME WERE SUBSTANTIALLY STANCES BY THE PHOTOGRAPHS OF THE DECE- OUTWEIGHED AGGRAVA- CIRCUMSTANCES, EACH DENTS. TING WITNESSES, PHY’S MITIGATION DI- MEMBER HAD STILL THE ABSO- MINISHING THE OF THEIR IMPACT LUTE DISCRETION TO DECLINE TO TESTIMONY.

IMPOSE THE DEATH SENTENCE. XXXV

XXXI THE MILITARY DEATH PENALTY THE MILITARY JUDGE ABANDONED SCHEME IS INVALID DUE TO FUR- HIS IMPARTIAL ROLE AND BECAME MAN V. 408 U.S. 92 S.Ct. GEORGIA AN ADVOCATE THE FOR GOVERN- (1972), 33 L.Ed.2d 346 THE AND MENT, THEREBY DENYING SER- SEPARATION OF POWERS DOC- GEANT MURPHY FAIR TRIAL. TRINE. XXXII XXXVI

THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE PERMITTED SERGEANT MURPHY’S CONVICTION GOVERNMENT, THE OVER DE- AND DEATH SENTENCE ARE IN- OBJECTION, FENSE TO INTRODUCE VALID THEY BECAUSE WERE IM- TESTIMONY ON SENTENCING CON- POSED BY A PANEL OF FEWER THE CERNING PERSONAL CHARAC- THAN TWELVE LAY PERSONS. TERISTICS OF A DECEDENT. XXXVII

XXXIII THE STANDARDLESS PROPORTION- SERGEANT MURPHY DID NOT ALITY REVIEW CONDUCTED BY KNOWINGLY AND INTELLIGENTLY THE ARMY COURT OF MILITARY 38(b)(2) WAIVE HIS ARTICLE STATU- REVIEW IS FUNDAMENTALLY TORY RIGHT TO CIVILIAN COUNSEL FLAWED, DEPRIVES THIS COURT 38(b)(3)(B) OR HIS ARTICLE STATU- OF MEANINGFUL APPELLATE RE- TORY RIGHT TO MILITARY COUN- VIEW, AND VIOLATED SERGEANT SEL OF HIS OWN SELECTION MURPHY’S AND CONSTITUTIONAL THE WHERE MILITARY JUDGE MIS- MILITARY RIGHTS TO DUE PROCESS LED SERGEANT MURPHY BY STAT- AND BE TO FREE FROM CRUEL ING THAT HIS COUNSEL WERE AND UNUSUAL PUNISHMENT. QUALIFIED WHEN NEITHER COUN- SEL HAD CAPITAL TRAINING OR

RESOURCE MATERIALS TO ASSIST XXXVIII THEM. SERGEANT MURPHY’S DEATH SEN- TENCE IS DISPROPORTIONATE TO XXXIV OTHER SIMILARLY SITUATED THE MILITARY JUDGE’S PERSIS- DEATH-ELIGIBLE HOMICIDES. TENT INSTRUCTIONS TO SERGEANT MURPHY’S FAMILY AND FRIENDS XXXTX WHO WERE WATCHING THE TRIAL THAT THEY COULD NOT THE DISPLAY PREDOMINANCE OF MISLEAD- ANY AT ALL EMOTION WHILE IN ING IN THE LANGUAGE REASON- THE COURTROOM IMPROPERLY ABLE DOUBT INSTRUCTIONS GIVEN CAUSED THEM TO WITHHOLD BY THE MILITARY JUDGE FOR TIMES, THEIR AT ALL EMOTIONS AND FINDINGS SENTENCING CRE- TESTIFIED, EVEN THEY WHILE ATED A HIGHER DEGREE OF AND THEREBY REQUIRED PREVENTED THE DOUBT THAN IS UNDER PANEL THE FROM SEEING THE TRUE DUE THE PROCESS CLAUSE OF FEELINGS OF SERGEANT FIFTH MUR- AMENDMENT. AND THE

CAUSE CONVICTIONS RENDERED WERE SENTENCE XL CONCERN- UPON MISINFORMATION DEATH MURPHYS SEN- SERGEANT AND MORAL ING HIS CULPABILITY BE ASIDE AND TENCE MUST SET BLAMEWORTHINESS. LIFE AF- A SENTENCE ONLY FIRMED SERGEANT MUR- BECAUSE XLIV IM- PHY’S DEATH SENTENCE WAS WAS DENIED MURPHY SERGEANT A MATTER LAW IN A POSED AS OF AN IMPARTIAL HIS RIGHT TO JURY MAN- PROCEDURALLY INCORRECT IN BY THE ACCEPTED PRACTICE THE OF IM- NER BECAUSE OPTION PAN- THE MILITARY OF ALLOWING LIFE IM- POSING A SENTENCE OF EL MEMBERS TO INTERROGATE WAS GIVEN PRISONMENT NOT ITS WITNESSES. DUE CONSIDERATION.

XLI XLV DEATH SEN- SERGEANT MURPHY’S THE STAFF JUDGE ADVOCATE’S BE AND TENCE MUST ASIDE SET AND INSERTION NOTA- SPECIFIC LIFE AF- ONLY A SENTENCE RACIAL FOR TION OF IDENTIFIERS FIRMED BECAUSE THE DEATH MURPHY AND A PANEL SERGEANT WAS IMPOSED AS SENTENCE THE MEMBER INTO CLEMENCY MATTER OF LAW IN A PROCEDUR- PROCESS VIOLATED SERGEANT ALLY MANNER BE- INCORRECT EQUAL PRO- MURPHYS RIGHTS TO CAUSE THE PANEL FAILED TO AND DUE PROCESS. TECTION VOTE ON WHETHER “ANY EXTENU- ATING OR MITIGATING CIRCUM- XLVI [WERE] STANCES SUBSTANTIALLY BY OUTWEIGHED ANY AGGRAVA- RCM 1004 FAILS TO INCORPORATE TING AND CIRCUMSTANCES” MANDATED CONGRESSIONALLY MEET THE THEREFORE FAILED TO PREVENT RACIAL- PROTECTION TO 1004(b)(4)(C) REQUIREMENT OF RCM LY THE IMPOSITION OF MOTIVATED THAT BE A THERE CONCURRENCE DEATH PENALTY IN VIOLATION OF BY THE ON THE ALL MEMBERS 55, UCMJ, THE AND ARTICLE MATTER. THE EIGHTH AMENDMENT TO CON-

STITUTION.

XLII DEATH SERGEANT MURPHYS SEN- XLVII TENCE BE AND MUST SET ASIDE THE MILITARY JUDGE COMMITTED ONLY A LIFE AF- SENTENCE HE ERROR FAILED TO PLAIN WHEN THE DEATH FIRMED BECAUSE SUA THE PANEL SPONTE INSTRUCT WAS AS A SENTENCE IMPOSED THAT RACE NOT MEMBERS COULD A MATTER OF LAW IN PROCEDUR- BE A IN AS FACTOR CONSIDERED ALLY MANNER BE- INCORRECT THE SENTENCING PROCESS. DID NOT CAUSE THE PANEL PRO- POSE SENTENCES IN WRITING BUT XLVIII DID SO ORALLY. THE PEREMPTORY CHALLENGE

XLIII IN THE MILITARY JUS- PROCEDURE SYSTEM, THE TICE MURPHY CONVICT- WHICH ALLOWS SERGEANT WAS ANY DEATH IN TO REMOVE ED AND TO GOVERNMENT SENTENCED CAUSE, FIFTH, SIXTH, ONE IS THE JUROR WITHOUT VIOLATION OF BE- AND TO AND AMENDMENTS UNNECESSARY SUBJECT EIGHTH

CUMSTANCES IS IN VIOLATION OF ABUSE IN ITS APPLICATION AND THE FIFTH AND EIGHTH AMEND- WAS ABUSED IN SERGEANT MUR- MENTS IN THAT THE ONLY AC- PHY’S CASE. CEPTABLE STANDARD BE MUST

“BEYOND A REASONABLE DOUBT.” 59(a), SEE ALSO ARTICLE UCMJ. XLIX THE PRETRIAL ADVICE IN SER- LIV

GEANT MURPHYS CASE DE- WAS FECTIVE THE BECAUSE STAFF THE AGGRAVATING FACTOR STAT- JUDGE ADVOCATE FAILED TO ENU- 1004(c)(7)(I) ED VAGUE, IN RCM IS MERATE ANY MITIGATING CIRCUM- FAILS TO SUFFICIENTLY CLARIFY STANCES THE CONVENING AU- INVOLVED, THE FACTOR DOES NOT THORITY COULD BALANCE NARROW THE CLASS OF PERSONS THE AGAINST AGGRAVATING CIR- ELIGIBLE THE FOR DEATH PENAL- CUMSTANCES TO MAKE AN IN- TY, AND IS THEREFORE INVALID FORMED DECISION WHETHER TO UNDER THE EIGHTH AMENDMENT REFER THIS CASE CAPITAL. TO THE CONSTITUTION. L LV THE STAFF JUDGE ADVOCATE WAS COURT-MARTIAL PROCEDURES DE- DISQUALIFIED FROM PARTICIPAT- NIED SERGEANT MURPHY AR- HIS THE ING IN PROCEEDINGS AFTER TICLE III RIGHT TO A JURY TRIAL. THE INITIAL PRETRIAL ADVICE AND CAPITAL REFERRAL WERE

CHALLENGED AS DEFECTIVE. LVI 18, UCMJ, ARTICLE AND RCM LI 201(f)(1)(C), REQUIRE WHICH TRIAL THE CONVENING AUTHORITY WAS BY CASE, MEMBERS IN A CAPITAL DISQUALIFIED FROM PARTICIPAT- VIOLATE THE FIFTH AND EIGHTH THE ING IN PROCEEDINGS AFTER AMENDMENT OF GUARANTEES THE INITIAL PRETRIAL ADVICE DUE PROCESS AND RELIABLE AND CAPITAL REFERRAL WERE VERDICT. CHALLENGED AS DEFECTIVE. LVII LII RCM 1004’S PROHIBITION AGAINST THE FINDINGS MUST EX- STATE GUILTY IN PLEAS CAPITAL CASES PLICITLY THAT ALL MEMBERS DEPRIVED SERGEANT MURPHY OF CONCUR THAT ANY EXTENUATING A CRITICAL MITIGATING FACTOR OR MITIGATING CIRCUMSTANCES AND CAUSED OTHER IRREPARABLE ARE SUBSTANTIALLY OUT- PREJUDICE. WEIGHED BY THE AGGRAVATING CIRCUMSTANCES BY FOUND THE

MEMBERS. LVIII SERGEANT MURPHY IS ENTITLED

LIII QUALI- TO BY REPRESENTATION THE DEATH PENALTY SENTENC- FIED AND COMPETENT CAPITAL REQUIRING ING STANDARD AG- COUNSEL AND TO UNINTERRUPT- GRAVATING CIRCUMSTANCES TO ED CONTINUITY OF COUNSEL “SUBSTANTIALLY EX- OUTWEIGH” BY UNAFFECTED PEACETIME MILI- TENUATING OR MITIGATING CIR- TARY PERSONNEL DECISIONS. IN VIO-

PREMEDITATED MURDER FIFTH, SIXTH, AND THE OF LATION LIX AND ARTI- AMENDMENTS EIGHTH THE THIS NOR NEITHER COURT 55, UCMJ. CLE HAS THE JURISDIC- ARMY COURT RE- THE TO OR AUTHORITY TION LXIII OF THE CONSTITUTIONALITY VIEW THE RULES FOR COURTS-MARTIAL INSTRUC- MILITARY THE JUDGE’S MILI- OF AND THE UNIFORM CODE RESTRICTED FREE CONSID- TIONS THIS TARY BY RE- JUSTICE BECAUSE THE ERATION OF EVIDENCE COURT, AN I COURT IS ARTICLE QUIRING THE MEMBERS TO VOTE AN ARTICLE III WHICH NOT COURT THE MOST SERIOUS OFFENSE ON THE CON- HAS POWER TO CHECK FIRST. THE UN- AND EXECUTIVE

GRESS (1 MADISON, 5 U.S.

DER MARBURYV. LXIV CRANCH) (1803). 137, 2 L.Ed. THE OF SENIOR

THE DESIGNATION THE OFFI- LX AS PRESIDING MEMBER ESTAB- DELIBERATIONS CER FOR ERRED IN THE MILITARY JUDGE MEMBER’S THE LISHED SENIOR FIFTH AND VIOLATION OF THE OF IN AND CONTROL SUPERIORITY AND ARTI- EIGHTH AMENDMENTS AND THE PROCESS DELIBERATION UCMJ, BY TO IN- CLE FAILING DUE DENIED SERGEANT MURPHY THE MEMBERS STRUCT PANEL LAW A FAIR AND PROCESS OF AND THE THAT ONLY OFFENSE FOR OF IMPARTIAL CONSIDERATION COULD WHICH SERGEANT MURPHY MEMBERS. THE EVIDENCE BY THE PRE- BE DIE WAS SENTENCED TO MEDITATED MURDER AND THAT BE MURPHY NOT

SERGEANT COULD LXV TO DIE THE BASIS SENTENCED ON THE MILITARY JUDGE’S INSTRUC- THE AGGREGATE OF OR CUMULA- AD- THAT MAY NOT TION ‘YOU EFFECT OF ALL THE OF- TIVE DEATH UN- A SENTENCE OF JUDGE FENSES. AND ALL YOU FIND THAT ANY LESS EXTENUATING OR MITIGATING CIR- LXI ARE SUBSTANTIALLY CUMSTANCES THERE DIS- IS NO MEANINGFUL BY OUTWEIGHED ANY AGGRAVA- TINCTION BETWEEN PREMEDITAT- TING FACTORS” DID NOT SUFFI- ED AND UNPREMEDITATED MUR- THE MEMBERS CIENTLY INFORM n DER ALLOWING DIFFERENTIAL BE THAT THIS MUST FINDING TREATMENT AND SENTENCING UNANIMOUS. THE IN OF DISPARITY VIOLATION SIXTH, FIFTH, AND EIGHTH LXVI AMENDMENTS AND ARTICLE UCMJ. DEATH THE IMPOSITION THE OF PENALTY VIOLATED SERGEANT

LXII EQUAL PRO- RIGHT TO MURPHY’S FIFTH THE THE MILITARY INSTRUC- TECTION UNDER JUDGE’S BLURRED ANY DISTINCTION AMENDMENT BECAUSE RCM TIONS MURPHY, THE PRE- OFFENSES OF SUBJECTED SERGEANT BETWEEN AND A MEMBER THE ARMED MEDITATED AS OF UNPREMEDITAT- FORCES, THE A IS ED MURDER AND DELETED TO PENALTY WHICH REQUIRED UN- ELEMENT OF “PREMED- NOT OTHERWISE AVAILABLE THE THE ITATION” FROM THE OFFENSE OF DER CRIMINAL CODE OF THAT BERS THEY COULD NOT CON- UNITED STATES FOR IDENTICAL SIDER THAT THE INCIDENT IN CRIMINAL QUESTION CONDUCT. WAS PRECEDED BY A

HEATED ARGUMENT.

LXVTI LXXII THE TRIAL COUNSEL COMMITTED PROSECUTORIAL MISCONDUCT BY SERGEANT MURPHY’S DEATH SEN- PRESENTING CONTRARY ARGU- TENCE THE VIOLATES EIGHTH MENTS ON THE MERITS AND SEN- AMENDMENT’S PROHIBITION TENCING CONCERNING WHETHER AGAINST CRUEL AND UNUSUAL AN AGGRAVATING CIRCUMSTANCE PUNISHMENT BECAUSE THE CAPI- APPLIED IN THIS CASE. TAL REFERRAL SYSTEM OPERATES

IN AN ARBITRARY AND CAPRICIOUS LXVIII MANNER.

A DUBAY HEARING IS NECESSARY LXXIII NATURE,

TO EXPLORE THE EX- TENT, AND EFFECT OF CONFLICT SERGEANT MURPHY DENIED WAS OF INTEREST CAUSED BY ONE OF EQUAL HIS RIGHTS TO PROTEC- SERGEANT MURPHY’S TRIAL DE- TION, PROCESS, DUE THE EFFEC- FENSE COUNSEL’S FORMER REP- COUNSEL, TIVE ASSISTANCE OF RESENTATION OF ONE OF THE DE- AND TO BE FREE FROM CRUEL CEDENTS. AND UNUSUAL PUNISHMENT FIFTH,

GUARANTEED BY THE LXIX SIXTH, AND EIGHTH AMENDMENTS THE TO CONSTITUTION HE WHEN THE SECRETARY OF STATE AND WAS REPRESENTED ON REMAND OTHER AT THE OFFICIALS DEPART- THE TO ARMY BY COURT APPEL- STATE, MENT OF AS AGENTS AND LATE COUNSEL WHO WERE BEING THE REPRESENTATIVES OF PRESI- SENIOR-RATED BY THE OFFICER STATES, DENT OF THE UNITED WHO RECOMMENDED A CAPITAL GUARANTEED HIGH OFFICIALS OF REFERRAL, APPROVAL OF THE THE GERMAN GOVERNMENT THAT FINDINGS, AND THE DEATH SEN- THE DEATH SENTENCE WILL BE TENCE IN SERGEANT MURPHY’S COMMUTED IN APPELLANT’S CASE CASE. AND GAVE A MINISTERIAL COMMIT- MENT THAT BE CLEMENCY WOULD

RECOMMENDED. LXXIV MILITARY DUE PROCESS AND FUN-

LXX DAMENTAL NOTIONS OF FAIRNESS REQUIRE THAT EACH MEMBER OF APPELLANT’S CONSTITUTIONAL THE COURT-MARTIAL SIGN HIS OR RIGHTS TO DUE PROCESS AND TO HER NAME THE TO DEATH-SEN- BE FREE FROM CRUEL AND UN- TENCE WORKSHEET THAT THE OR USUAL PUNISHMENT WERE DE- BE CONDEMNED ACCUSED AF- COUNSELS’, NIED BY THE TRIAL FORDED THE RIGHT AND OPPORTU- JUDGE’S, MILITARY AND PANEL’S NITY THE TO POLL MEMBERS. RUSH TO COMPLETE THE APPEL- LANT’S COURT-MARTIAL.

LXXV LXXI THE CAPITAL SENTENCING PROCE- THE MILITARY JUDGE ERRED BY IN THE DURE MILITARY IS UNCON- THE PANEL INSTRUCTING MEM- THE MILI- STITUTIONAL BECAUSE GOOD OF ORDER

“PRESERVATION DISCIPLINE,” AND SPECIFIC THE POWER AND TARY JUDGE LACKS TO DE- A DETERRENCE IN SENTENCING SUSPEND SENTENCE ADJUST OR DEATH IMPROPERLY LIBERATIONS. OF WHICH IS IMPOSED. LXXXI

LXXVI THE FAILURE TO GOVERNMENT’S DE- COURT-MARTIAL PROCEDURES THE GIVE NOTICE OF AGGRAVA- OF NIED SERGEANT MURPHY HIS IT INTEND- TING CIRCUMSTANCES AMENDMENT RIGHT TO SIXTH PROVE, ED OTHER THAN THOSE TO AND IMPARTIAL JURY TRIAL AN IN LISTED RCM SPECIFICALLY OF THE CROSS-SECTION COMMUNI- FIFTH, SIXTH, AND THE VIOLATED TY. AMENDMENTS, AND ARTI- EIGHTH CLE UCMJ. LXXVII DEATH SEN- SERGEANT MURPHY’S LXXXII EIGHTH TENCE THE VIOLATES AMENDMENT’S PROHIBITION ERRED IN THE MILITARY JUDGE AGAINST CRUEL AND UNUSUAL MUR- INSTRUCTING SERGEANT PUNISHMENT. PANEL THAT PHYS SENTENCING

THEY COULD CONSIDER AGGRAVA- LXXVIII CIRCUMSTANCES OF WHICH TING THE DEFENSE HAD BEEN GIVEN SERGEANT MURPHY’S RIGHTS TO TRIAL, IN VI- NO NOTICE PRIOR TO AND BE DUE PROCESS TO FREE FIFTH, SIXTH, OF THE OLATION AND FROM CRUEL PUN- UNUSUAL AMENDMENTS, AND AND EIGHTH VIOLATED BY THE ISHMENT WERE ARTICLE UCMJ. REQUIREMENT ARMY COURT’S THAT APPELLATE DEFENSE COUN- INVESTIGATE, RESEARCH, SEL LXXXIII

BRIEF, FILE, AND ARGUE ISSUES DEFENSE TRIAL COUNSEL PROVID- GERMANE HIS TO CASE WITHOUT ED OF INEFFECTIVE ASSISTANCE THE HAVING ALL REL- AVAILABLE BY FAILING TO COUNSEL OBJECT EVANT MITIGATION EVIDENCE. THE IMPROP-

WHEN GOVERNMENT ERLY AGGRAVATING SPLIT ONE LXXIX FACTOR INTO TWO. THE BY ARMY COURT ERRED DE- AN CIDING AND ISSUING OPINION LXXXIV

IN THIS CASE WITHOUT WAITING THE RELEVANT FOR AVAILABLE DE- MURPHY HAS BEEN SERGEANT MITIGATION EVIDENCE. EQUAL NIED UNDER PROTECTION IN THE THE LAW VIOLATION OF

LXXX IN THAT FIFTH AMENDMENT OTH- THE DEATH ER IN SERGEANT MURPHY’S SEN- CIVILIANS UNITED THE ARE AFFORDED THE OP- TENCE IS INVALID UNDER STATES FIFTH TO THEIR AND EIGHTH AMENDMENTS PORTUNITY HAVE CASES BY III THE AND ARTI- AN TO CONSTITUTION REVIEWED ARTICLE 55, UCMJ, COURT, THE THE CLE SEN- BUT MEMBERS OF BECAUSE ARMY, BY TENCING PANEL IMPROPER- UNITED STATES VIRTUE WAS LY OF THEIR STATUS AS SERVICE- PERMITTED TO CONSIDER REHABILITATION,” MEMBERS, ARE “LACK NOT. OF

FERING,” THAT GIVEN SERGEANT MURPHY HAD BEEN BY ATTACKED LXXXV PETRA MURPHY AWITH KNIFE BE- SERGEANT MURPHY DID NOT FORE HE STRUCK HER WITH THE KNOWINGLY AND INTELLIGENTLY HAMMER. 38(b)(2) WAIVE HIS ARTICLE STATU- TORY RIGHT TO CIVILIAN COUNSEL LXXXIX 38(b)(3)(B) OR HIS ARTICLE STATU- ASSUMING, ARGUENDO, THAT THE TORY RIGHT TO MILITARY COUN- NUMBER OF ERRORS WHICH OC- SEL OF HIS OWN BE- SELECTION CURRED IN THE INSTANT CASE CAUSE THE TRIAL DEFENSE ARE NOT INDIVIDUALLY SUFFI- COUNSEL FAILED TO ADVISE SER- REQUIRE REVERSAL, CIENT TO GEANT MURPHY OF THEIR CAPI- THESE BE ERRORS CANNOT FOUND TAL LITIGATION DEFICIENCIES BE TO (WHICH HARMLESS BEYOND REA- INCLUDED NO CAPITAL SONABLE DOUBT WHEN CONSID- TRAINING AND NO EXPERIENCE IN ERED COLLECTIVELY. CASE) PRESENTING A CAPITAL AND THE LEAD COUNSEL FAILED TO ADVISE SERGEANT MURPHY SUPPLEMENTAL I ISSUE THAT HE HAD DETAILED HIMSELF WHETHER APPELLANT’S COURT-

TO THE CASE. MARTIAL LACKED JURISDICTION TO TRY HIM IN THE FEDERAL RE- LXXXVI PUBLIC OF GERMANY FOR CAPITAL SERGEANT MURPHY WAS DENIED MURDER COMMITTED THERE DUR- HIS FIFTH AMENDMENT RIGHT TO ING PEACETIME. A GRAND JURY PRESENTMENT OR INDICTMENT. SUPPLEMENTAL II ISSUE

LXXXVII WHETHER DE- APPELLANT WAS NIED DUE PROCESS OF LAW IN VIO- THE MILITARY JUDGE ABUSED HIS FIFTH, SIXTH, THE LATION OF AND DISCRETION BY REFUSING TO OR- EIGHTH AMENDMENTS BECAUSE DER THE PRODUCTION OF FIVE OF HE TRIED WAS BY COURT-MARTIAL THE ELEVEN SENTENCING WIT- FOR CAPITAL MURDER IN THE REQUESTED NESSES BY THE DE- FEDERAL REPUBLIC OF GERMANY FENSE. IN PEACETIME. SULLIVAN, Judge LXXXVIII (dissenting): THE MILITARY ERRED Murphy JUDGE BY In problem— James had a NOT SUA SPONTE Initially, INSTRUCTING he had two wives. he was married woman, THE MEMBERS ON Murphy, SENTENCING to a German Petra and he THAT THEY living Germany COULD CONSIDER THE with her and two FACT THAT year-old boy SERGEANT small MURPHY children —a 5 named Tim (Petra’s James) WAS ACTING IN SELF-DEFENSE son before married she (his namesake). James, WHEN THE PANEL DELIBERATED Jr. natural son and QUESTION However, THE OF WHETHER marriage TO James’ Petra’s rocks, FIND AS AN proceedings AGGRAVATING FAC- on the and divorce had THAT TORES] “THE PE- MURDER OF been started a German court. James TRA BY Murphy MURPHY WAS PRECEDED decided mar- he wanted out of this THE riage quickly. INTENTIONAL INFLICTION OF In he June married woman, July SUBSTANTIAL PHYSICAL HARM OR another German Beatra. In PROLONGED, state, SUBSTANTIAL MEN- visited home North Carolina, TAL OR PHYSICAL PAIN AND SUF- where he obtained a divorce from murders, Now, years these knowledge. August without her Petra after penalty majority death because Germany and re- reverses the back James was experience” training transferring the “lack him to Redstone ceived orders capital in the defense of Arsenal, Au- defense counsel between trial Alabama. Sometime doctors, cases, 13, 20th, at because 3 left 50 MJ and August he gust 16th and when money appellate by the defense States, Mur- hired for Germany for the James United conviction, years Murphy’s apart- 5 after and went the team over phy took a hammer that, opinion, in in their living. apart- have stated affidavits where Petra was At that ment intent Murphy the could not have formed the he Petra’s with ment smashed head necessary premeditated of for murder. One hammer and killed her. appellant, a doctors also held these problem. The Murphy another Now had defect, mentally was of that mental not result apartment boys in the and would two were doc- responsible for crimes. Two other report him of mother. for the murder their Murphy the would not hold liable for tors boys in Murphy each James drowned much crimes because his mother drank too apartment tub he left. the bath at the before in on this when he was her womb. Based 23rd, August The were discovered on bodies material, majority sets aside the death part, the most because of the unusual for penalty in this case. coming I apartment. the hot odor from I, appellate judge, prob- an a primarily through Mur- Now as have know above facts upon legal confes- I see no basis which phy’s several confessions. those lem. sions, separate majority he three murders us- can reverse this case because details ing separate killing. attorneys might have better two modes defense been Moreover, agree trained. I do not with attorneys military assigned The defend remanded, majority that should be this case Murphy problem. now a de- had Several doctors, just because some defense-selected confessions, tailed and corroborated as well many years pre- and after the crime a valid incriminating showing as a series acts sanity Manual trial board under RCM client, gave them motive intent of their Courts-Martial, States, 1984, say United uphill in a Murphy’s an battle to save life Murphy premedi- not did intend to commit capital murder case. in the tated murder. The facts record First, attempted attorneys to use justify not the law do a reversal and remand insanity, Murphy affirmative defense after Young, 43 this basis. See States v. on United However, mentally sanity (1995) was examined. (newly acquired psychiatric 196MJ (one Ph.D.) medical doctor and a re board require not remand evidence does to Court ported Murphy mentally responsi supra Appeals); Vasquez, at 1515- Criminal ble at the time of the and had the (post-trial psychiatric crimes in defense evidence capacity in mental to stand trial. Without capital case where defense of remorse relied defense, sanity doing they as a the best does show- on at trial not constitute colorable innocence). overwhelming against ing could with an case of factual record over- them, case, Murphy’s lawyers whelmingly tried the ulti demonstrates a cold and calculat- mately ing by Murphy, which show no relying on a defense to the death series acts Murphy Murphy’s defect of reason. The acts of show penalty based on utter remorse. planned and understood the nature and 1524 he Vasquez, Harris F.2d See Cir.1990) (9th (within killing humans. quality of his acts three range profes wide competent sionally present assistance record, First, us tells let look at the which theory rely psychiatric defense but following us the facts: denied, case), in capital remorse cert. Sergeant, Murphy was a a non- 1. James L.Ed.2d 501 U.S. S.Ct. Army. in the commissioned officer U.S. (1992). guilty by jury He was found Murphy good serving in penalty in December of 2. was a soldier received death Germany. 1987. Murphy participated legal However,

3. appellant’s case, divorce sanity issue proceedings in a German court. pretrial. raised and settled See RCM 706. The record of trial in this ease shows Murphy planned 4. and executed interna- Murphy no evidence that way failed procure tional travel a divorce in a appreciate the quality nature and of his acts North Carolina court. trial, of murder. At there was no hint of Murphy 5. Germany traveled back to capacity defect in Finally, to reason. no successfully out-process his unit. contrary, post-trial brought evidence was Murphy took a hammer to meet with 2-year period within the “newly allowed for Petra, right before he was about to leave 1210(f). discovered” evidence. See RCM Germany. Now, majority suddenly exalts defense- Murphy 7. successfully peo- killed three psychiatric brought selected evidence in ple using two killing, modes of and suc- years crime, ignoring after the while facts cessfully escaped the scene of the crime. clearly did, which show that Murphy in a cold Murphy 8. left the scene in such a man- manner, calculating plan and and execute ner that the murders were not discovered Delo, three murders. See Shaw v. supra at days until Germany. 3 after he left (appellate 186 court can consider accuser’s day actions on of in determining murder Murphy’s 9. successfully defense counsel juror whether a reject reasonable could still pursued granted sanity and were a board evidence). psychiatric new before the trial. majority The law that establishes in Despite several confessions and much generally this case responsibil- allows mental incriminating motive, intent, evidence of ity open question, practically to be an forev- murders, planning execution of Harris, 1517-18, er. Contra supra quot- at defense team mounted a reasonable and Peters, (7th ing 986, Silagy v. defense, 905 F.2d 1013 attempting put credible suspi- to Cir.1990). paid Could we not find a Murphy’s wife, doctor cion on Murphy. 2d Beatra today give prove to an affidavit to John 11. The defense called no witnesses on Wilkes Booth did not intend to murder Presi- findings, but called 7 witnesses and offered dent Murphy Lincoln? What if is sent back sentencing, 28 exhibits on including appel- judge jury to a new and sentenced to lant’s unsworn statement of remorse. again? death sanity Would we allow another light above, In of the the entire record post-trial attack to post- be mounted counsel, competent shows a defense and a period newly-acquired of evidence? Death proper resolution Murphy’s of the issue of must, penalty course, cases closely be sanity at the time of the offenses. Federal scrutinized; however, they should not be al- civilians, case, law for under the facts in this lowed to continue forever. partisan would not medical-opinion allow evi- majority opinion particularly more controlling stage dence to be at this late unqualified military holds that had appellate process, so reverse a lawyers representing capital him in this case. penalty Ward, death case. Sellers v. 135 It representation also holds that their raised (10th 1333, Cir.1998); F.3d 1339 Shaw v. many questions” respect “too with to his Delo, (8th Cir.1992); 971 F.2d 187 Har- Finally, death sentence. 50 MJ at 15. it Vasquez, supra; ris v. Moody see also v. post-trial holds that the in information filed Johnson, (5th Cir.1998). 139 F.3d impact this case has an uncertain on the Neither Young, does our own case law. In findings guilt. The bottom line (Sullivan, J., at 199 dissenting), MJ I majority justify is that these a circumstances might indicated that it proper be to remand a Appeals, remand to the Court Criminal Appeals ease the Court of Criminal when strong suggestion findings with a that a appellant’s such evidence an could bear on rehearing sentence be ordered. responsibility lack of mental at the time of offenses, if disagreed majority’s position but this issue was raised I with the Curtis, (1997), appeal for the first time on in our Court. United States v. 46 MJ 129 Curtis, 46 effect, States v. MJ are, death. See United military lawyers unquali- that (1997) (Crawford, J., dissenting). 129, 131 disagree capital I with fied act in cases. 668, 687, Washington, v. 466 U.S. today same effect. Strickland holding its here to the (1984), a Moreover, 80 L.Ed.2d 674 light of the cumulative-evidence 104 S.Ct. case, Supreme set forth a questions capital Court holding majority, what are assistance respect two-pronged that are not test for ineffective sentence raised with counsel, adopted in United respect findings? I this Court do which also raised with 1987). Scott, (CMA Our evidence of MJ not understand how cumulative States consistently applied have that two- confessing opinions appellant’s good motive in would now, and, test, Murphy. impact way. pronged until Curtis his death sentence majority’s By concluding counsel disagree I with the “too also ineffective, many majority attempts re to fit questions” standard of were upon entirely square in round It relies peg view. This standard is inconsistent hole. UCMJ, (cf. re- with law Art. information in the record federal USC the absence of 836), requires § garding an accused meet a trial defense counsels’ courts-martial which ap- its higher experience support much standard to reverse convic contention post-trial at pellant’s tion or death sentence based on counsel were ineffective defense Harris, acquired recognize presump- psychiatric evidence. See trial. It also fails 1515; Sellers, counsel, supra high at competence at 135 F.3d 1339 tion of (considering with must in order appellant the new evidence the old hurdle an overcome evidence, juror prejudice. no reasonable would still con to establish vict). Moreover, majori it with the conflicts ty opinion Young, in because it avoids FACTS

requirement for a evaluation of the careful telling majority gives I find it proffered light in quality of the evidence in short shrift to a discussion of the evidence already in record of trial. evidence See Determining an attor- this case. whether (evidence showing 43 at 199 in record MJ ney’s objective stan- falls below an offense). conduct Finally, mental state at time of reasonableness, ap- an dard and whether particular view of the factual record before attorney’s pellant (see prejudiced by that Cosner, us MJ United States v. 35 conduct, requires analysis an the factual 1992) (no (CMA person reasonable evidence at trial. introduced verdict)), change would I conclude be yond a reasonable that no different doubt Assuming argument for the sake of case, result would be obtained this based prong the first of the ineffective assistance of post-trial psychiatric on the defense materia met, must still counsel test has been one Young, ls.* supra See United States prejudice prong. prejudice consider the (newly acquired psychiatric evidence not suf analysis encompass all a review of should result); produce ficient more favorable reason, presented at evidence trial. For Vasquez, (newly supra acquired Harris v. begin I shall with a of the facts. discussion psychiatric proba evidence sufficient to murders, Prior was in- appellant to the bly produce acquittal). an lengthy, pro- volved acrimonious divorce I Accordingly, dissent. ex-wife, ceeding Murphy, in which Petra Ap- demanding support. more financial

CRAWFORD, Judge (dissenting): pellant if he had told fellow soldiers “that pay alimony going kill her.” he was again majority, explana- without Once that, justification, Supreme Appellant approximately tion to follow admitted fails murders, concerning prior to the he took precedent days Court the effective as- or apartment complex taxi to because he sistance of counsel when the sentence is Petra’s material, course, States, *. ond Circuits. United This could be submitted to and Tenth Torres v. (2d Cir.1998); Executive or authorities 405 n. 7 Sellers v. Chief other for con- F.3d Ward, (10th Cir.1998). clemency by suggested sideration in the Sec- 135 F.3d 1339-40 did not know its exact location. Germany days. When he leave in a few The bodies arrived, cab, he did not exit the days but had the were appellant discovered several after cab driver return him to his own car. Then returned to the United States. he drove his own apartment car back to the Appellant provided police with four complex and couple circled around it a separate versions of events. Each version is

times to see if Petra and the children were progressively incriminating more and more Although there. appellant claimed to have physical consistent with the evidence in the so, an doing innocent intent in it is a reason- Appellant initially case. denied involve- able inference prelude that his actions were a ment the murders. He then claimed that to the murders. he killed Petra because she killed the chil- Appellant’s dren. claim third was that he night murders, On the step-son killed Petra and his because Petra apartment drove to parked Petra’s Finally, appellant killed his son. admitted yards apartment complex from the so that no that he murdered all Appel- three of them. one would associate his car complex. with the lant police, confessed not but to three He p.m. arrived at 11:15 In his car he had others as well. (the both gloves the hammer and murders in August) occurred that he would use for the Appellant demonstrated that he was inti- murder. mately familiar with the providing crimes diagrams numerous apartment of Petra’s be- The victims in this ease were fore and after the diagrams murders. These wife, Murphy,

former Petra Petra’s five- accurately reflected the crime scene. Police year-old son marriage, former Tim gloves also located the and hammer Herkstroeter, appellant’s twenty-one- during stated that he used the murders. son, Murphy. month-old James The bod- ies of the victims were found in the bath- days room several after their murders. DEFENSE COUNSELS’ EXPERIENCE lay The bodies of the partially children in a attorney’s experience An lack of not a is bathtub; filled Tim lying up, face per trying capital se bar to cases. United patholo- James face down. The forensic Cronic, 648, 104 2039, States v. 466 U.S. S.Ct. gist testified at trial that the children were (1984). 80 L.Ed.2d 657 See also Wisehart v. alive and conscious at the time of drown- State, (Ind.1998). Admittedly, N.E.2d 23 ing. kneeling Petra was found beside the preferable it is attorney for a defense to have tub, draped her head into the water. The experience felony jury extensive in cases and pathologist forensic testified at trial that that, majority trials. The concludes because by drowning Petra died but had also suf- (CPT) counsel, Captains trial defense Vitaris fered at least four severe blows to her Schneller, experience trying capi and lacked prior death, head one of which fractured cases, tal request and did not the use of skull, injuries her and had on her neck experts sentencing, they in must have been choking. may indicative of Petra have ineffective. 50 MJ at 9. Case law does not been unconscious when she was drowned. support holding. such a (Crawford, J.,

Murphy, dissenting). 36 MJ 8 Supreme rejected The Court in Cronic murders, committing After experience idea that of counsel deter- wiped house, fingerprints case, off all the in the mines effectiveness. In that the Su- arranged preme the crime scene to make it look like Court reversed a lower court decision crime, someone else appointed had committed the and which found an defense counsel disposed then removed and of all young the incrimi- ineffective because he was a real es- evidence, nating including lawyer the towel he used tate participated and had never in a wipe away fingerprints, key, jury Petra’s trial. 466 at U.S. S.Ct. 2039. military dependent and Petra’s identification The Court held that character of a “[t]he key card. particular lawyer’s experience may light He locked the door and threw the shed away, knowing get that no performance, one could into the in an evaluation of his actual apartment justify and that he presumption was scheduled to but it does not of inef- Cronic, Rather, such evidence would an evalua- under in the absence of such fectiveness determining in experi- factor consider “[e]very be noted that tion.” The Court effectiveness. attorney once the defense counsels’ criminal defense tried enced Id. at 104 S.Ct. his first criminal case.”

2039. COUNSEL CONFLICT-FREE majority emphasizes The that trial defense 901(d)(4), Manual for Courts-Mar- RCM qualifications not list their counsel did tial, States, on Fed. based United at experience on the record. MJ 8-9. 44(c) Breese, R.Crim.P. and United States However, requirement there is no de- (CMA1981), provides: 11 MJ 17 so. This Court should not fense counsel do shall, military open judge session: imply failure to reveal that defense counsels’ * * * any experience qualifications their (D) Promptly inquire, or whenever two way strengthens appellant’s claim of ineffec- joint in a common trial more accused or tive assistance of counsel. Absent evidence represented are the same detailed or contrary, presume we is com- counsel counsel, military or individual civilian Strickland, petent. 466 U.S. at civilian counsel who are associated in S.Ct. law, respect joint practice of to such with Further, appel- the lead defense counsel personally representation and shall advise lant’s was the Counsel of trial Senior Defense right each accused of the to effective assis- Office, Trial the Hanau Field Defense Ser- counsel, including separate repre- tance military attorney does not ascend to vice. appears is Unless it that there sentation. position without extensive court-martial good no cause believe conflict interest experience strong qualifications. arise, military judge likely shall Appellant represented by military appropriate protect two measures to each take lawyers appel- right who were not associated with counsel[.] accused’s command, part separate lant’s but were aof The Discussion to RCM 910 states: organization its defense counsel with own appears it defense Whenever training, supervision, headquarters interest, may a conflict of counsel face Washington, attorneys D.C. Both were military judge inquire should into the mat- Judge members of Advocate General’s ter, right advise the accused of the to Corps highly in a competitive selected atmo- counsel, and effective assistance of ascer- sphere. Upon being and selected commis- tain the accused’s choice of counsel. When sioned, they training Army received at the potential a defense counsel is aware of School, Judge Advocate General’s an Ameri- interest, conflict of counsel should discuss approved Bar can Association law school If the ac- the matter with the accused. approved a Congress which to award Master conflict, to such elects waive counsel cused (LL.M.). school, degree of Laws At that judge military inform of the should they specialized training litiga- in received 39(a) an so that matter at Article session tion, practice, trial and criminal law. Addi- appropriate an can be made. record tionally, they separate were members of record, on the appears When a conflict public organization that conducts defender judge inquiry. an should conduct training. periodic affidavit, appellant denies that his his experience judge common of all Given the lawyers representation of discussed Private advocates, experi- and what we know of the (PVT) any potential or him French advised case, in this ence of the lead defense counsel that, indicates had he been conflict. Now he experi- reason infer a lack of there no to advised, so he would not have consented showing qualifications ence or absent some representation by CPT CPT Vitaris by appellant. appellant if were Even Schneller. present trial counsels’ evidence his defense military his judge in affidavit inexperience training, or lack of this would stated a number showing that French’s case was one of per not be a se of ineffectiveness. PVT presided trials July strategy. advantage that he over between was There no need or gained by December of He and 1987. indicated that he be cross-examination. remember, trial, during not appellant’s did inquiry required by judge No un- was represented that CPT Schneller had PVT 901(d)(4), der RCM because there not a was French. There no was indication on the joint or trial involving common the accused. prior representation record of PVT Nor judge failing was the unreasonable French. trials, many fact, snap- remember one of many shot presided of one of trials he over CPT Schneller states affidavit that “riding” during while in Europe a trial circuit representation of PVT French was dis- counsel, period 6-month time. Defense appellant. cussed with He ap- asserts that they appellant’s after obtained for consent pellant agreed that would he continue to representa- CPT Schneller to continue his represent would seek release tion, pursu- judge should have informed the representing from French. PVT non-binding ant to the discussion to RCM affidavit, In his CPT states: Schneller 901(d)(4). However, contrary majori- to the ty’s holding, conflict on impact had no [appellant’s] Due to impulse irresistible appellant’s trial. alleged to confess his anyone crimes to listen, I, would who Vitaris CPT on majority As acknowledges, PVT own, developed theory our that “Beata French primarily reiterated con information might [appellant] have it” [sic] done tained in confessions. MJ at protecting was [PVT] her.... French’s 11. required Defense counsel are not testimony theory fit the of our case. Indeed, they cross-examine a witness. are if their failure ineffective to cross-exam charge CPT Vitaris was in of the trial of ine falls below the standards set forth under is, the case in chief. That I handled the Brown, States, Strickland. v. United See opening CPT statement and Vitaris han- (9th State, Cir.1979); F.2d 210 Sallie all through dled matters thereafter a ver- (4th Cir.1978). majority F.2d 636 As the panel. dict was our It decision that notes, testimony some of French’s PVT panel should the theory not believe our helpful appellant, may why which PVT be it,” that “Beata have might they [sic] done impeached French was not the stand. would be mood to listen to CPT atMJ plea [appellant’s] Vitaris life. There- it findings, theory fore was felt would that it be better if we On of the case separated presented I repeatedly, the case and confessed to all listen, sentencing, who might protecting as I have would because he was more credibili- Vitaris, time, perpetrator, the real ty than wife Beate. In this CPT at with the context, testimony say supported I PVT French’s panel. can ... that CPT Vitaris and theory. totally defense [appellant] I were devoted acquittal. were determined to obtain an An attorney’s not conflict interest does given There thought possible was no to a amount to ineffective assistance counsel [PVT] conflict of interest with French after appellant prejudiced unless an was the was I relieved from his case. The decision Burger Kemp, conflict of interest. v. 483 to not cross-examine French [PVT] had 776, 3114, 785, U.S. S.Ct. 97 638 107 L.Ed.2d nothing prior my representation to do with (1987). appel- majority The determines that my knowledge to the best of was due may prejudiced by lant have the wit- been solely to the fact the that information to be appellant testimony ness’ mur- that stated he from obtained cross-examination would dered his son because he did not want [appellant’s] have been detrimental case. any leave to the MJ at witnesses murder. 50 11. I disagree. Vitaris CPT CPT corroborates Schneller’s admonishing affidavit and appel- presented remembers was Similar evidence at trial and, thus, challenged to remain silent PVT lant because French’s a different source testimony testimony prejudiced appel- with their trial could not have consistent

33 lant, mitiga- compelling If evidence of During interrogation, appel- there is police a reason, attorney that, an Agent that he tion for no valid Special informed Woodall lant James, son, 2-year-old because a investigate, killed Amendment or failed an 8th ‘automatically assume’ may May “the authorities would v. 6th claim lie. See Amendment sur- perpetrator (5th if James Collins, Cir.1990); that he v. F.2d 228 Jones 904 425). R. (quoting at 1141 (5th vived.” See 36 MJ Cir.1986); and Thigpen, F.2d 1101 788 (11th Cir.1985). Kemp, Blake v. 758 F.2d 523 Further, a could reach reasonable member However, forgo intro- a tactical decision appel- conclusion from the mere fact that a ducing mitigating support will not evidence Appel- in everyone murdered home. lant (8th Collins, supra Amend- May claim. v. murdering son did not lant’s reason for 491, ment); Dugger, 849 F.2d penalty in Middleton tip the scales toward death (11th Cir.1988) Amendment). (6th Rather, this case. that 493-4 fact toddler, 5-year-old, a a and his murdered ex- Supreme Court Strickland warned wife, act, clearly premeditated in a convinced second-guess” “tempting that it a law- is members to death. to sentence yer’s performance, but that a court’s assess- Further, testimony did PVT French’s not try to ment of an ineffectiveness claim should that he undercut contention felt distorting effects hind- “eliminate for remorse his crime afterwards. 689, sight.” at 104 S.Ct. As 466 U.S. 2052. Supreme Burger: Court stated AND INVESTIGATION EXPLORATION HEALTH OF APPELLANT’S MENTAL a [Defense counsel] could well have made AND ABUSE AS CHILD thorough investigation more did. than he Nevertheless, considering inef- claims of appellant may An not an ineffective raise counsel, “[w]e fective assistance of address assistance of counsel claim based on actions appropriate, prudent not what is but part strategy. taken as of a trial reasonable Curtis, 106, constitutionally compelled.” States v. 44 MJ 119 what United (1996), recon., “strategic rev’d 46 as sentence on MJ have We decided (1997). 129 A defense selection counsel’s in- complete made after less than choices witnesses and introduction of evidence are precisely vestigation are to the reasonable generally strategy issues of trial and “virtual judg- professional extent that reasonable State, ly unchallengeable.” Leisure v. 828 support investiga- ments limitations 872, (Mo.1992), denied, S.W.2d 875 cert. 506 tion.” 923, 343, 113 121 L.Ed.2d U.S. S.Ct. 3114, quoting at U.S. 107 S.Ct. (1992). Cronic, 38, 104 at 466 U.S. 665 n. S.Ct. case, particular “In ineffectiveness Strickland, 690-691, at U.S. investigate directly decision not to be must S.Ct. 2052. assessed reasonableness in all the circum- capital involving Strickland was case stances, applying heavy measure defer- here, is, allegations some of the same Strickland, judgments.” ence counsel’s investigate ineffectiveness failure to U.S. at 104 S.Ct. “[T]he de- mitigating produce penalty at evidence presumption fendant must overcome the stage. Strickland’s defense counsel did that, circumstances, challenged under the produce presentencing evidence because “his ‘might trial action be considered sound strat- ” gave conversations with his client no indica (citation egy.’ Id. at S.Ct. 2052 prob psychological tion that had [Strickland] omitted). “A attorney duty criminal has the 673, 104 lems.” at The 466 U.S. S.Ct. 2052. investigate, scope investigation but the to Court that there was not a violation of found governed a reasonableness standard.” is 700, (11th two-pronged the Strickland test. Id. at 886, Kemp, v. 762 F.2d 888 Mitchell not, Cir.1985). “[Cjounsel’s 104 2052. did the S.Ct. The Court duty investigate would, majority impose rigorous a more stan depends critically the fur- information dard conduct family.” on the of defense counsel nished the defendant and Curtis, penalty 44 MJ at 121. death cases.

34 health, opinion appellant’s physical majority

The criticizes defense the mental and meeting ap- pretrial a report gave counsel for not face-to-face with where no evaluation pellant’s 12- appellant character witnesses. 50 MJ at indication that the had a or mental requirement illness, physical appel- There is no that defense but noted the said, drug counsel witnesses in a man- extensive use. interview such lant’s The court Indeed, result, requirement ner. a would it such “As a we hold that was not ineffec- place counsel, an upon stronger unreasonable burden defense tive assistance of without attorneys. indications, entirely possible acquire It for [defense counsel] have necessary psychiatric and from relevant information wit- failed order a evaluation of [the telephone. appellant] nesses over I of no know case based on the information con- suggesting telephonic law pretrial interviews are tained evaluation.” Id. at 280. communication, unacceptable methods and pretrial Appellant underwent 706 RCM majority any. not cited has sanity hearing. sanity board board Defense counsel this case that he competent obtained found was to stand trial appellant, son, potential names of witnesses from and was sane when he murdered his witnesses, sanity contacted those those stepson, and asked and ex-wife. The board con- psychiatrist witnesses for information and names of oth- of a psychologist, sisted and a might helpful. er witnesses that be He who concluded that was able potential then those “appreciate quality wrong- contacted witnesses. the nature and or During sentencing stage, wit- of his and did “a seven fulness conduct” not have ap- nesses from Carolina for North testified severe mental disease defect” at the time or pellant. Additionally, stipula- there was of murders. expected testimony tion of of seven others Neither nor his character appellant.

who were relatives friends of ap- witnesses informed counsel that defense stipulations appellant’s These addressed pellant or his mother had been victims hometown, childhood, and his back- Thus, attorneys appellant’s abuse. defense ground. Numerous exhibits were intro- investigate appel- had no reason to further favorably duced into which evidence showed background lant’s childhood or his mental appellant’s background good childhood findings sentencing for either health or character. portion of the Their trial. failure to investi- reasonable, gate simply Counsel is not ineffective because further these claims complete upon he or provided she on a less than relied based information to them Sireci, psychiatric by appellant evaluation. State v. 502 and his witnesses. (Fla.1987). 1221, Further, So.2d 1223 if Even defense counsel were ineffective recently fact that an accused has secured findings sentencing during failing expert opinion more favorable is an insuffi- investigate appellant’s recently discovered Dugger, cient basis for relief. Provenzano v. evidence, childhood abuse and mental health (Fla.1990). 541, “Disagree- 561 546 So.2d In prejudice. was no v. there Buenoano per among professionals ments do not se 1116, (1990), Dugger, 559 So.2d incompetence.” show v. United States Lov- Supreme held that Florida Court (1994). “[Djefense 213, ing, 41 MJ coun- health “in no mental and childhood abuse expert obligated shop sel is not for an way would be sufficient to overcome the provide might witness who favorable more overwhelming presented against evidence 250, testimony.” Kenley, v. State 952 S.W.2d Lear, People trial.” v. her at See also (Mo.1997) that, (holding light aggra- 222 Ill.Dec. 677 N.E.2d Ill.2d evidence, vating there was no reasonable (1997) (appellant prejudiced by coun different). probability the would be sentence present psycho failure to evidence of sel’s State, ag Riley logical physiological 878 P.2d v. 110 Nev. defects because (1994), Supreme gravating overwhelming Nevada evidence Court of weak); attorney mitigation held that a was not ineffec- evidence was Johnston defense (Fla.1991) (defense failing expert Dugger, tive for hire an examine 583 So.2d 657 at to as a child and pur he was abused failing to dence that torney was ineffective for illness, insanity court found it is defense where the a mental hard sue from suffers ap pretrial competency examination any prejudice appellant. find adequate). pellant strong appellant’s evidence of Given CONCLUSION unlikely psy sanity, post-trial it is appel- an report majority’s convinced the decision lowers chiatric would have him, it had acquit even if been members assistance of lant’s ineffective burden McCaugh Coogan See v. presented them. penalty has in which the death counsel cases Cir.1992) (7th (appel try, 958 F.2d Regardless trial imposed. of whether been psychiatric did not that new lant demonstrate an ob- was below defense counsels’ conduct acquit in an probably “would result evidence during jective of reasonableness standard Massa, tal”); United States F.2d trial, no phase appellant’s there was some (8th Cir.1986) (jury unlikely to ac prejudice appellant given the overwhelm- psychiatric re quit based new guilt. ing of his Even absent these evidence Thus, port). even if defense counsel were errors, alleged the members would have failing investigate further ineffective guilty capital found of the offenses health, prej no appellant’s mental there was him to I affirm and sentenced death. would findings. udice on Evidence of appellant’s conviction and sentence. guilt for was over these atrocious crimes reasons, whelming. For I presented Even if he had evi- the above dissent.

Case Details

Case Name: United States v. Murphy

Court Name: Court of Appeals for the Armed Forces

Date Published: Dec 16, 1998

Citation: 1998 CAAF LEXIS 1788

Docket Number: 64-926/AR

Court Abbreviation: C.A.A.F.