

   
   
   
   U.S. v. Murphy



UNITED STATES, Appellee
v.
James T. MURPHY, Sergeant
U.S. Army, Appellant
 
 
No. 64,926
CMR No. 8702873
 
 
United States Court of Appeals for the Armed
Forces
Argued May 15, 1997
Decided December 16, 1998

COX, C.J., delivered the opinion of the
Court, in which GIERKE and EFFRON, JJ., joined. SULLIVAN and CRAWFORD,
JJ., each filed separate dissenting opinions.
 


Counsel
For Appellant: Captain Richard E. Burns,
Captain
Mark I. Goodman, and Captain Kurt Mayer, USAR (argued);
Colonel
John T. Phelps, Major Fran W. Walterhouse, Captain Beth G.
Pacella, and Captain Victor A. Tall (on brief); Captain Arden
B. Levy.
For Appellee: Major Lyle D. Jentzer
and Captain Steven H. Levin (argued); Colonel John M. Smith,
Lieutenant
Colonel Eva M. Novak, Captain Michael E. Mulligan, and Captain
Kenneth G. Wilson (on brief); Lieutenant Colonel James L. Pohl.
Amicus Curiae urging reversal: Sandra
Tvarian (law student) (argued); Richard J. Wilson and David
M. Vaughn (law student) (on brief); Elliott S. Milstein.
Military Judge: Craig C. Jacobsen
 
 


THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION
BEFORE FINAL PUBLICATION.
Opinion as amended Apr 9, 1999

Chief Judge COX delivered the opinion of the
Court.
Appellant, Sergeant (SGT) James T. Murphy,
stands convicted of three specifications of premeditated murder, in violation
of Article 118, Uniform Code of Military Justice, 10 USC § 918, and
single specifications of larceny, bigamy, and false swearing, in violation
of Articles 121 and 134, UCMJ, 10 USC §§ 921 and 934, respectively.
He was sentenced by a general court-martial to death. The Court of Military
Review (now the Court of Criminal Appeals) affirmed his convictions and
sentence to death. 36 MJ 1137 (1993). His appeal is mandated by Article
67(a)(1), UCMJ, 10 USC § 867(a)(1).
Appellant has raised numerous issues in his
appeal, many of which are classic appellate issues relating to the trial,
the jurisdiction of the court-martial, evidentiary rulings, discovery questions,
and the like. However, interspersed among these are numerous collateral
attacks on his conviction, primarily based upon his claims of ineffective
assistance of counsel. See Appendix for a complete
list of the issues raised by appellant.
Upon careful consideration of appellants claims,
we agree that he received ineffective assistance of counsel as to his sentencing
case. Accordingly, we set aside the decision of the Court of Military Review
and return the record to the Judge Advocate General of the Army for further
action consistent with the decretal paragraph of this opinion.
Unlike the practice in the United States Circuit
Courts of Appeal and District Courts, neither the UCMJ nor the Manual for
Courts-Martial, United States, 1984, provides procedures for collateral,
post-conviction attacks on guilty verdicts. See 28 USC § 2255,
et
seq. Nevertheless, we have relied upon a variety of procedures to
ensure that a military accuseds rights are fully protected. See,
e.g.,
United States v. Henry, 42 MJ 231, 238 (1995) (remanded to Court
of Criminal Appeals for consideration of affidavits of respective parties);
United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967) (evidentiary
hearing). In this case, we have elected to consider not only the record
of trial, but also numerous affidavits filed subsequent to the trial in
order to determine if appellant has shown good cause for relief to be granted.
Arts. 67 and 59(a), UCMJ, 10 USC §§ 867 and 859(a), respectively.
In so doing, we have carefully considered all of the issues raised by appellant
before the Court. However, we will discuss only two general areas of concern:
one of these, in personam jurisdiction of the court-martial
to try him, by its very nature must be resolved at the threshold; the other,
in our view, is dispositive of his appeal.
First, we will consider whether there was jurisdiction,
under principles of international law, to try appellant in Germany, by
United States General Court-Martial, for the murder of his former wife
and former stepson, who were German citizens and were not his "dependents"
at the time of the homicide. Second, we will consider whether appellant
is entitled to a new trial on the ground that he did not receive effective
assistance of counsel.

The Facts
Petra Murphy, a citizen and resident of Germany,
had been married to appellant. She had a 5-year-old son, Tim, before she
married appellant, and she had a second son, James, Jr., by appellant.
During the months prior to the murders, she and appellant had an ongoing,
acrimonious divorce proceeding pending in the German courts. In June l987,
appellant married Beate, another German citizen, although he had not yet
divorced Petra. In July l987, appellant visited North Carolina, where he
obtained a divorce from Petra on the grounds of a 1-year separation. In
August l987, appellant received military orders requiring him to transfer
to Redstone Arsenal, Alabama.
Sometime between August 16, when Petra was
last seen alive by a fellow church member, and August 20, when appellant
left Germany, appellant went to Petras apartment. There, according to
his confessions, he killed her by smashing in her head with a hammer. He
also admitted that he killed Tim and James, Jr.
The bodies were discovered on August 23, when
Petras pastor, Chief Warrant Officer Two Smith, tried to ascertain why
she had missed several church activities. Smith went to her apartment,
where he encountered an unusual odor. He reported his findings to the German
police. They investigated and discovered the bodies of the three victims.
This discovery precipitated an investigation
by both the German authorities and the U.S. Army Criminal Investigation
Command (CID). On August 27, l987, appellant gave the first of several
confessions to the authorities. Ultimately, he gave a written statement
to the CID, in which he admitted that he had killed his former wife and
the two children.
Appellant was taken into custody at Redstone
Arsenal and was returned to Germany, where he was placed in pretrial confinement
by the U.S. Army in the Mannheim Confinement Facility, Germany. While there,
he also confessed his guilt to two fellow inmates, and he made incriminating
statements to Sergeant First Class James Marek.

The Jurisdictional Questions
The Constitution of Germany prohibits imposition
of the death penalty. From that vantage point, appellant now asserts that
he was "100 percent" in favor of having the German Government exercise
jurisdiction over the offenses in question. His basic premise is that primary
jurisdiction over the homicides of his former wife and her son was with
the German Government, and that the German Government would have exercised
jurisdiction over this case had the German authorities realized they had
primary jurisdiction. See Art. VII.3, North Atlantic Treaty Organization
Status of Forces Agreement (NATO SOFA), 4 UST 1800, as applicable to Germany
effective July 1, 1963, 14 UST 531. More specifically, his attack is three-fold.
First, he asserts that, by operation of certain
laws and regulations, he was denied effective assistance of counsel in
presenting his views to the German authorities. Specifically, he claims
that his detailed defense counsel were prohibited by law, the Logan Act,
18 USC § 953 (1982), and by military regulation, U.S. Army Europe
Regulation 550-56, from actively representing him in the negotiations with
the local German prosecutors concerning the question of jurisdiction.
Second, he contends that the German prosecutors
were acting under a false belief that the United States had primary jurisdiction
over the case under the existing NATO SOFA, and he argues that American
authorities had either mistakenly or purposely informed the German prosecutor
that all of the victims in the case were "dependents" within the meaning
of the treaty when, in fact, they were not. If this is the case, argues
appellant, jurisdiction over him was acquired in contravention of a treaty,
the NATO SOFA. Relying on the distinctions made by the Supreme Court in
two landmark cases, Ker v. Illinois, 119 U.S. 436 (1886), and United
States v. Rauscher, 119 U.S. 407 (1886), appellant argues that, if
he is correct, then the United States was without jurisdiction to try him.
Third, appellant argues that he was clearly
prejudiced. In this regard, appellant contends that a letter from the German
Minister of Justice to the Attorney General of the United States clearly
shows that German authorities would have exercised jurisdiction if they
had not been mistaken about the true facts.
Government counsel counter these arguments
in several ways. They assert that: (a) appellant has no standing to raise
the issue; (b) appellant waived any claim for relief because he did not
object to the trial prior to completion of the court-martial; and (c) in
any event, to the extent that any claim for relief must be based upon Government
misconduct, the United States was free of any wrongdoing here.
We resolve all of these claims against appellant.
We agree with the Army Court of Military Review that appellant has no standing
to object to the process. RCM 201(d)(3), Manual, supra, as amended,
provides:



Where an act or omission is subject to trial
by court-martial and by one or more civil tribunals, foreign or domestic,
the determination which nation, state, or agency will exercise jurisdiction
is a matter for the nations, states, and agencies concerned, and is not
a right of the suspect or accused.



This provision is based upon principles of sovereignty
long recognized by the Supreme Court. See Ponzi v. Fessenden,
258 U.S. 254, 260 (1922), which states:



One accused of crime has a right to a full
and fair trial according to the law of the government whose sovereignty
he is alleged to have offended, but he has no more than that . . . . 
He may not complain if one sovereignty waives its strict right to exclusive
custody of him for vindication of its laws in order that the other may
also subject him to conviction of crime against it.



See also Wilson v. Girard,
354 U.S. 524 (1957).
Assuming, however, that appellant has standing
to complain about the exercise of jurisdiction over him by the U.S. Army,
he nevertheless loses. The Supreme Court in United States v. Solorio,
483 U.S. 435 (1987), held that the test for whether a military court-martial
has jurisdiction to try an accused is the military status of the accused.
But
cf. Loving v. United States, 517 U.S. 748, 774 (1996) (Stevens,
J., concurring); compare with Relford v. Commandant, U.S.
Disciplinary Barracks, Ft. Leavenworth, 401 U.S. 355, 365 (1971) (query
whether appellant satisfies all twelve factors to defeat jurisdiction in
military court-martial).
It is uncontested that, at all times pertinent
to this case, appellant was a member of the U.S. Army and subject to the
jurisdiction of the court-martial. Art. 2, UCMJ, 10 USC § 802. Furthermore,
he was taken into custody in the United States and was never released to
the custody and control of Germany. Accordingly, even if the conduct of
United States military authorities in Germany misled German authorities
into a decision not to seek the return of appellant to the custody of Germany
for prosecution, appellant was, nevertheless, lawfully subject to the jurisdiction
of the court-martial. In personam jurisdiction over him existed
because of his status as a soldier in the Army, not as a result of his
person being turned over to the United States by a foreign government pursuant
to an extradition treaty. Therefore, his reliance on United States v.
Rauscher is misplaced.
We need not decide whether the Logan Act or
the U.S. Army Europe Regulation can indeed prevent a defense counsel from
communicating with German prosecutors. Nor do we resolve the issue by holding
that appellant waived his right to contest jurisdiction. That merely raises
other questions as to the competency of his attorneys, which we
discuss next.

The Claims of Ineffective Assistance of
Counsel
Appellant makes a broad-based attack upon the
performance of his trial defense counsel. In order to evaluate properly
appellants multiple claims, it is first necessary for us to put the case
into perspective. Thus, we must carefully review every aspect of the case
and balance the claims against the total record before us. That review
includes consideration of the training, experience, and abilities of trial
defense counsel; the pretrial proceedings; the investigative efforts of
the defense team; the selection of the court members; the trial strategy;
the performance of counsel during the trial; the sentencing case; and the
posttrial proceedings.
It is beyond dispute that a military member
is entitled to effective assistance of counsel. United States v. Scott,
24 MJ 186 (CMA 1987). When we look for effective assistance, however, we
do not scrutinize each and every movement or statement of counsel. Rather,
we satisfy ourselves that an accused has had counsel who, by his or her
representation, made the adversarial proceedings work. United States
v. DiCupe, 21 MJ 440 (CMA 1986). In evaluating claims of ineffective
assistance of counsel, we have adopted the two-prong test articulated in
Strickland
v. Washington, 466 U.S. 668 (1984). See United States v.
Loving, 41 MJ 213, 241 (1994); United States v. Scott,
supra.



First, the defendant must show that counsels
performance was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the "counsel" guaranteed
the defendant by the Sixth Amendment. Second, the defendant must show that
the deficient performance prejudiced the defense. This requires showing
that counsels errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.



466 U.S. at 687.
We wish to make it clear at the outset that
our review of defense counsels performance in this trial does not reveal
anything which suggests that they were less than totally dedicated to the
defense of SGT Murphy. Our review of the decisions, actions, or inactions
of defense counsel is conducted in the calm atmosphere of appellate review.
Our vision considers the fog of battle, but it is also clarified
by the guiding lights of aggressive appellate counsel. We also have the
benefit of having reviewed numerous cases over the years and developed
a sense of the standards of performance that can reasonably be expected
of defense counsel. We are not looking for perfection, but rather we are
seeking to ensure that military accused are represented by "reasonably
competent" counsel, and that the results obtained at trial are reliable.
Strickland
v. Washington, supra; United States v. Polk, 32 MJ 150
(CMA 1991). With these thoughts, we first look at the defense counsel in
this case.

Defense Counsel
Two U.S. Army Judge Advocates, Captains (CPT)
Richard Vitaris and William Schneller, were "detailed" by CPT Vitaris,
the Senior Defense Counsel, Hanau Field Office, U.S. Army Trial Defense
Service, to represent appellant at trial. The only statement on the record
as to the qualifications of these attorneys to defend appellant, in this
capital case, was made by CPT Vitaris: "We are both qualified and certified
in accordance with Art. 27(b), [UCMJ, 10 USC § 827(b)]." Nothing in
the record of trial gives any indication of the training, experience, or
abilities of these counsel. The record of trial does not tell us the
number of cases each counsel had tried, how long counsel had been admitted
to a state bar, or whether either had actually represented a client
in a contested felony case involving voir dire examination
of witnesses, cross-examination, or opening and closing statements.
Neither does the record indicate whether either counsel had ever requested
a mental health examination of a client or consulted with a forensic psychiatrist;
what kinds of investigative assistance or other resources were available;
or whether counsel had any knowledge or experience in the use of collateral
resources.1/
Posttrial affidavits tell us more about the
two attorneys. For example, from CPT Vitaris, the lead counsel, we learn:
"Prior to my representation of SGT Murphy, I never represented or served
as associate counsel on a case before a capital sentencing proceeding."
Also we learn that he "did not attend any capital training seminars prior
to . . . [his] representation of SGT Murphy."
CPT Schneller, the assistant defense counsel,
was "responsible for the voir dire and sentencing portions
of the case," two of the most important aspects of any capital case. This
division of responsibility was made despite the fact that CPT Schneller
had been a defense counsel for only 4 months prior to being "detailed"
by CPT Vitaris to assist in appellants defense. CPT Schneller had no experience
in defending capital cases, and he had not received any training in this
area of practice.
The record tells us almost nothing about the
pretrial investigation or preparation by counsel. Again, through the above-mentioned
posttrial affidavits, we learn that both Captains Vitaris and Schneller
were "burdened by tasks from the trial defense service." Counsel did not
go to North Carolina to investigate the sentencing portion of the
case, and no expert witnesses were employed by the defense.
In summary, the record of trial and the posttrial
affidavits leave us with only one rational conclusion: SGT Murphy was defended
by two attorneys who were neither educated nor experienced in defending
capital cases, and they either were not provided the resources or expertise
to enable them to overcome these deficiencies, or they did not request
same.
In Loving, 41 MJ at 300, we expressly
declined to mandate that military defense counsel meet the American Bar
Association Guidelines for the Appointment and Performance of Counsel in
Death Penalty Cases (ABA Guidelines) (February 1989). Nor have we held
that 18 USC § 3005 applies to courts-martial. That provision of law,
as amended in l994, requires that, in a capital case, the judge shall,
"upon the defendants request, assign 2 such counsel, of whom at least
1 shall be learned in the law applicable to capital cases." But both the
ABA Guidelines and federal law are instructive. Counsel who are "learned
in the law applicable to capital cases" are less likely to provide an inadequate
or ineffective defense than those "not learned" in the law.
In looking at defense counsels performance
at trial, we have chosen the route illuminated by the Supreme Court in
United
States v. Cronic, 466 U.S. 648 (1984). See United States
v. Loving, supra. That route compels us to look to the adequacy
of counsels performance, rather than viewing the limited experience of
counsel as an inherent deficiency. See Lockhart v. Fretwell,
506 U.S. 364 (1993); Strickland v. Washington and United States
v. Scott, both supra. Of course, as the ABA Guidelines and 18
USC § 3005 implicitly suggest, and as we have just noted, inexperience
-- even if not a flaw per se -- might well lead to inadequate
representation. In the final analysis, what we must consider is whether
counsels performance was "deficient" and whether "counsels errors were
so serious as to deprive the defendant of a fair trial," one where the
"result [of the trial] is reliable." Fretwell, supra at 369.

The Claims
Appellants claims of ineffective assistance
of counsel are numerous. However, we will discuss only what we feel are
the three principal claims, as follows:
1. That appellant was denied "conflict-free"
counsel. See Issues IV to IX, Appendix.
2. That appellant was denied effective assistance
of counsel "because his trial defense counsel failed to investigate the
mitigating circumstances of his traumatic family and social history." See
Issue XVI, Appendix.
3. That appellant received ineffective assistance
of counsel because "his trial defense counsel failed to adequately explore
mental health evidence." See Issue XVII, Appendix.
Related to this last claim is Issue XV,
Appendix, wherein appellant claims that he was denied "due process of law
because he was denied competent psychiatric assistance in the evaluation,
preparation, and presentation of his case."

The Conflict of Interest Questions
The Government called Private (PVT) French
as a witness against appellant. French had been one of appellants pretrial
cell mates in the Mannheim Correctional Facility. While there, appellant
engaged in a conversation with an inmate named Offill, in which appellant
made certain incriminating statements. PVT French allegedly overheard this
conversation and related what he had heard to his lawyer -- CPT Schneller.
Some weeks later, after CPT Schneller had negotiated a pretrial agreement
for PVT French, CPT Schneller formally moved to withdraw from Frenchs
case. The military judge who granted the motion to withdraw was the same
military judge who presided over appellants trial. At appellants trial,
French gave his testimony regarding the confession, without objection by
appellants defense counsel. French was not cross-examined concerning the
confession. Defense counsel made no effort to impeach the testimony of
French, although he had recently been convicted of several crimes involving
dishonesty and deceit.
At appellants trial, CPT Schneller gave no
notice to the military judge that there had been dual representation by
him of both appellant and French. See Wheat v. United States,
486 U.S. 153 (1988); United States v. Breese, 11 MJ 17 (CMA 1981).
Although it can be argued that the military judge knew, or at a minimum
should have known, of the potential conflict of interest between the representation
of French and appellant, the military judge likewise made no inquiry on
the record regarding the conflict. In any event, neither counsel nor the
military judge discussed the potential conflict of interest on the record.
Appellant now claims on appeal that he was
prejudiced by this conflict of interest because his counsel did not cross-examine
French and did not object to any portion of Frenchs testimony. See
Hoffman v. Leeke, 903 F.2d 280 (4th Cir. 1990); United States v.
Iorizzo, 786 F.2d 52 (2d Cir. 1986).
Appellant correctly contends that he was entitled
to have conflict-free counsel. Holloway v. Arkansas, 435 U.S. 475
(1978). He is also correct that the military judge had a sua sponte
duty to resolve conflict questions on the record. United States v. Breese,
supra.
Not only was he entitled to have the judge sort out conflict-of-interest
claims, his attorneys had a duty to discuss potential or actual conflicts
of interest with him. See RCM 901(d)(4); Henry, 42 MJ at
237. Our rationale for the rule enunciated in Breese was "to disarm
future contentions that, by reason of multiple representation, an accused
has been deprived of the effective assistance of counsel." 11 MJ at 23.
However, multiple representation, even if unexplained in the record of
trial, does not, per se, mandate reversal. Rather, it creates
a presumption that a conflict of interest existed, one that can be rebutted
by the actual facts. Id. The question is, and remains, whether the
multiple representation in a particular setting resulted in an "actual
conflict of interest." Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).
The Court of Military Review carefully considered,
but rejected, appellants conflict-of-interest claims. 36 MJ at 1143-45.
However, the court below had no record of any trial or posttrial proceeding
on which to base its judgment. See United States v. Smith,
36 MJ 455, 457 (CMA 1993). Rather, the court below decided the issue by
finding the affidavit of defense counsel more credible than the affidavit
of appellant. This method of judging credibility also involves the
questionable practice of resolving pure disputes of material fact by mere
affidavits, a practice which this Court has recently criticized and condemned.
See
United States v. Ginn, 47 MJ 236 (1997).
Likewise, we have searched the record of trial
and the posttrial affidavits, and we have considered the arguments of counsel
and the law. Assuming, arguendo, that there was a conflict of interest,
we conclude that this conflict had no impact on the merits portion of the
trial. PVT Frenchs testimony was mostly cumulative. However, he did provide
two additional facts, without objection by counsel for appellant.
First, Frenchs testimony sealed appellants
motive for killing his own son:



And he said it was like a voice that was
in his mind, telling him to "Go get your other son because he knew you
were there, as a witness," so he took his son out of bed and took him into
the bathroom and put I believe it was three or four inches of water in
the bathtub, Im not sure. And then, stuck the little boys head down in
the water and he was drowning him.



Second, French provided helpful testimony that
might show why appellant would falsely confess to the killings. This testimony,
as follows, was certainly harmless, if not actually helpful:



Q: Did he indicate to you involvement of
anyone other than himself?
A: He didnt indicate, sir. He didnt indicate,
sir. He did say that ah - I asked him, "When you came to the States, they
didnt have any real evidence on you, so why did you confess so easily?"
He told me that he was protecting somebody that he loved, but he never
did say her name or anything else about it.
Q: Was [appellants] concern that somebody
else would be falsely accused? Was that the indication that he gave?
A: Yes.



Regardless, because the several confessions by
appellant were corroborated by the physical evidence in the case,
we conclude that Frenchs motive testimony could not have prejudiced appellant
as to the findings of guilt in this case.
Nevertheless, the question whether this conflict
of interest had any impact on the sentencing proceedings remains unresolved.
Under our case law, the court below erred by resolving this question solely
on the basis of the contradictory affidavits. United States v. Ginn,
supra.
This issue should have and could have been resolved at trial by the simple
exercise of CPT Schneller reminding the military judge of the prior representation,
and by the judge conducting a suitable inquiry of counsel and appellant
on the record.
Nevertheless, as to findings, we are convinced
beyond any reasonable doubt that appellant was not prejudiced by the unresolved
conflict of interest because of the admission of his multiple confessions
and the corroborating physical evidence. However, we cannot say
with confidence that Frenchs testimony about why appellant killed his
son had no impact on the members deliberations on sentence. From this
record, we are unable to answer the question whether counsels
failure to resolve the conflict clearly resolved the key questions, (1)
did "counsel actively represent[] conflicting interests" or (2) was there
an "actual conflict of interest [which] adversely affected counsels performance."
Smith,
36 MJ at 457. In such a circumstance, we are compelled not to affirm appellants
death sentence without resolving the conflict-of-interest question. Henry,
supra at 238.

Pretrial Investigation and the Trial
Before turning to appellants claims of ineffective
assistance of counsel, in that defense counsel did not properly prepare
or try his case, it is necessary to look at the defense teams pretrial
setting and the trial strategy. First and foremost, defense counsel were
confronted with a gory and inexplicable family homicide. Appellants first
wife had been killed by repeated blows to the head by a blunt object, ultimately
determined to be a hammer, and then drowned in her bathtub. Two small children,
a stepson and son, had been violently killed. The killer had left them
to decay in a civilian apartment in Germany.
Upon being questioned by police investigators
in Alabama, appellant confessed his guilt and subsequently made numerous
confessions to many different people. Confronted with this overwhelming
evidence, appellant attempted to plead guilty to the charges. The military
judge rejected appellants guilty pleas because the case had been referred
as a capital case. RCM 910(a)(1).
Prior to the commencement of proceedings, appellants
counsel requested that appellant be examined by a sanity board. See
RCM 706. The purpose of such a board is to determine if an accused "lacks
capacity to stand trial" or "lacked mental responsibility for any offense
charged." Lack of mental responsibility is a complete defense under military
law. Article 50a(a), UCMJ, 10 USC § 850a(a), states:



It is an affirmative defense in a trial by
court-martial that, at the time of the commission of the acts constituting
the offense, the accused, as a result of a severe mental disease or defect,
was unable to appreciate the nature and quality or the wrongfulness of
the acts. Mental disease or defect does not otherwise constitute a defense.



The psychiatric board reported that appellant
did not suffer from a severe mental disease or defect, and that he was
able to "cooperate intelligently in the defense."
The Rules for Courts-Martial will not allow
a capital defendant to plead guilty. Thus, appellants defense team attempted
to mount a defense to the capital murder charges. In light of the numerous
confessions, some with inconsistencies, the defense tried to create the
belief that perhaps the confessions were untrue and the killings were actually
committed by appellants second wife, Beate, a person whom appellant would
try to protect with his false confessions. The defense strategy obviously
did not work.
The sentencing case was handled by CPT Schneller.
He did not travel to the United States in order to conduct personal interviews
with witnesses in appellants hometown of Clinton, North Carolina. Instead,
he attempted to develop an extenuation and mitigation case by correspondence
and telephone. The pretrial effort is best summed up by CPT Schneller in
an affidavit of January 28, l993. There, he stated:



I obtained a list of witnesses from SGT Murphy
and also sent letters out to many friends and relatives in SGT Murphys
home town. I . . . received responses to these letters and from the responses
I made phone calls back to individuals inquiring into Murphys life history.
Based on the interviews, I selected the individuals I thought would be
most helpful to our case and requested that they be flown over at government
expense. Throughout my interviews there was never any mention of abuse
or mistreatment against SGT Murphy or his mother. And further, SGT Murphy
never gave any of this information to me.



As a result of this preparation, the defense offered
evidence of SGT Murphys previous good character; the fact that he was
not a violent man; that he was a good soldier; and that he desired to rehabilitate
his life. See 36 MJ at 1146. SGT Murphy gave an unsworn statement
in which he asked the members to spare his life, and he expressed remorse.
SGT Murphy also told the members that he had tried to plead guilty.
CPT Schneller delivered a well-prepared and
thoughtful summation for the members to consider, including reminding each
member that it was a personal decision to return a death sentence. In spite
of defense counsels efforts, the court-martial returned a sentence including
death.
The Army Court of Military Review blessed this
sentencing effort by characterizing it as "trial defense counsels tactical
judgment." Id. In some cases, this effort might well satisfy the
Strickland
standard for adequate representation. What follows in this opinion, however,
demonstrates that a capital case -- or at least this capital case -- is
not "ordinary," and counsels inexperience in this sort of litigation is
a factor that contributes to our ultimate lack of confidence in the reliability
of the result: a judgment of death. We have no quarrel with the Army Court
regarding the obligation of an appellate court not to second-guess tactical
judgments. Here, however, counsels lack of training and experience contributed
to questionable tactical judgments, leading us to the ultimate conclusion
that there are no tactical decisions to second-guess.

Posttrial Claims Regarding Mental Responsibility:
The Facts
While appellants case was pending before the
Army Court of Military Review, but about 5 years after his initial
conviction, appellant was successful in obtaining funding from the Judge
Advocate General of the Army to employ the services of an expert to conduct
a posttrial social history. The investigation was completed by Ms. Jill
Miller, a forensic social worker, in April 1993, just weeks after the Court
of Military Review issued its opinion affirming appellants conviction
and sentence to death. Although appellant had asked the Army Court
to defer its decision until after the investigation was complete, that
court refused to continue the case. 36 MJ at 1149-54. In addition to the
information produced directly by Ms. Millers investigation,
the results of this investigation paved the way for appellant to
develop considerable new factual matters through affidavits filed with
this Court. The unfortunate result of the Army Courts unwillingness to
delay its March 1993 decision, however, is that none of this "new matter"
has been tested in an evidentiary hearing, and most of it is unchallengedby
government evidence. Thus this Court -- a non-factfinding court -- is called
upon to evaluate appellants claim that he is entitled to a new trial because
of substantial evidence which, if convincing, might well cause a different
trial result.
Complementing the evidence assembled by Ms.
Miller, appellant submitted additional affidavits, including several by
medical specialists. Appellant retained the services of Dr. William A.
OConnor, a clinical psychologist. Dr. OConnor administered clinical tests
to appellant, conducted interviews with appellant, and examined much of
the evidence gathered by the forensic sociologist. Dr. OConnor concluded
that SGT Murphy did,



at the time of the alleged offense, suffer
from a personality disorder and other psychological dysfunctions which
would have affected his thoughts or actions. There are indications of minimal
or slight cognitive and neuropsychological dysfunction; however, the primary
origin or cause of the personality disorder with associated post-traumatic
features can be specified based on clinical interview and records, as well
as test results indicating persistent and severe traumatic childhood abuse.

* * *
[T]he Sanity Board hearings were not correct
or based on adequate and required assessment methods.



Dr. William H. Carson, a professor of psychiatry
at the Medical University of South Carolina, also reviewed appellants
case and the psychological and sociological evidence. He concurred with
Dr. OConnors findings.
Appellant was also examined by Dr. Edward C.
Kirby, a psychiatrist with over 33 years of practice. Dr. Kirby concluded
that SGT Murphys severe mental disease or defect rendered him unable to
form the requisite intent to commit premeditated murder. Importantly, Dr.
Kirby also concluded that SGT Murphy was unable to appreciate the nature
and quality or wrongfulness of his acts, and moreover, that he could not
have conformed his conduct to the requirements of the law at the time of
the incident in question.
Appellant also offers the affidavit of Dr.
James R. Merikangas, M.D., a clinical professor of psychiatry at Yale University
School of Medicine, who concluded that SGT Murphy suffered from a severe
mental illness and that his low intellectual functioning was consistent
with organic brain damage, perhaps as a result of fetal alcohol syndrome.
Appellant then ties his evidence together with
the opinion of Dr. Jon M. Aase, M.D., a pediatrician, who concluded that
the amount of alcohol allegedly consumed by appellants mother during her
pregnancy with appellant was sufficient to put him at risk of organic brain
damage that would persist throughout his life. Dr. Aase also concluded
that further examination for fetal alcohol syndrome was clinically indicated.
In summary, appellants unrebutted posttrial
submissions, at the very least, raise the question of whether a reasonable
finder of fact, armed with this evidence, would come to the same conclusions
that the court-martial did as to the findings and sentence. See United
States v. Dock, 26 MJ 620 (ACMR 1988).

The Law
Art. 73, UCMJ, 10 USC § 873, permits a
military member to petition for a new trial "[a]t any time within two years
after approval . . . of a court-martial sentence." RCM 1210(f) provides
the procedures and grounds for such relief, as follows:



(f) Grounds for new trial.

* * *
(2) Newly discovered evidence. A new
trial shall not be granted on the grounds of newly discovered evidence
unless the petition shows that:

(A) The evidence was discovered after the
trial;


(B) The evidence is not such that it would
have been discovered by the petitioner at the time of trial in the exercise
of due diligence; and


(C) The newly discovered evidence, if considered
by a court-martial in the light of all other pertinent evidence, would
probably produce a substantially more favorable result for the accused.





Because the "newly discovered evidence" in this
case came many years after the expiration of the 2-year time period authorized
by Art. 73, appellant has not based his plea for relief on a petition for
new trial, and he has not sought relief utilizing the extraordinary writ
authority of the Court. See All Writs Act, 28 USC § 1651. Rather,
appellant has sought relief on direct appeal claiming constitutional deprivations.
For example, appellant claims that he was denied the assistance of psychiatric
experts in the preparation of his defense, relying on Ake v. Oklahoma,
470 U.S. 68 (1985). He also seeks to have his posttrial evidence viewed
through a kaleidoscope of ineffective-assistance-of-counsel claims. Specifically,
as mentioned earlier, he focuses on an inadequate investigation into his
sociological background and possible explanations for his behavior.
We are not helpless, however, to render justice
when due. One continuous theme is found throughout the death-penalty cases
handed down by the Supreme Court over the last 30 years. That theme is
reliability of result. Thus, the sine qua non of Gregg
v. Georgia, 428 U.S. 153 (1976); Chambers v. Mississippi, 410
U.S. 284 (1973); Furman v. Georgia, 408 U.S. 238 (1972); and Lockhart
v. Fretwell; Strickland v. Washington; and Ake v. Oklahoma,
all supra, is that the Supreme Court has insisted there be a proper
functioning of the adversarial system. A fair reading of these cases demonstrates
that, in order for the adversarial system to work properly, the key ingredients
are competent counsel; full and fair opportunity to present exculpatory
evidence; individualized sentencing procedures; fair opportunity to obtain
the services of experts; and fair and impartial judges and juries.
In this case, therefore, we will test the result
obtained at trial against the entire record before us to determine whether
we can affirm appellants convictions and sentence. We must be satisfied
that the adversarial process has worked, and that appellant has had a fair
and complete trial.
As we have done in other capital cases, we
use a standard of review which, in our judgment, comports with our obligation
to review "all cases in which the sentence, as affirmed by a Court of Criminal
Appeals, extends to death." Art. 67(a)(1). We will follow our statutory
mandate that "[a] finding or sentence of court-martial may not be held
incorrect on the ground of an error of law unless the error materially
prejudices the substantial rights of the accused." Art. 59(a), UCMJ, 10
USC § 859(a). But in so doing, we will ensure that fundamental notions
of due process, full and fair hearings, competent counsel, and above all,
a "reliable result," are part of the equation. In the final analysis, we
have heretofore examined, and shall continue to examine, the record of
trial in capital cases to satisfy ourselves that the military member has
received a fair trial. See United States v. Loving, supra
(all issues fully considered); United States v. Curtis, 32 MJ 252
(CMA 1991); 33 MJ 101 (CMA 1991); 46 MJ 129 (1997)(reversed on reconsideration).
With this standard of review, we turn to the
case at hand. We are immediately confronted with two questions based upon
the "newly discovered" psychiatric evidence. Historically, and when not
restrained by the 2-year limitation of Art. 73, we have given preferential
treatment to the question of mental responsibility when raised for the
first time on appeal. United States v. Young, 43 MJ 196 (1995),
relying on United States v. Van Tassel, 38 MJ 91 (CMA 1993); United
States v. Lilly, 25 MJ 403 (CMA 1988). Although there has been some
disagreement as to the correct standard of review, there clearly is agreement
that, if the requirements of RCM 1210(f)(2) are present, the accused is
entitled to a new trial. Compare United States v. Van Tasselwith
United States v. Young, both supra; see also United
States v. Dock, supra (compare majority opinion with dissenting
opinion). As stated earlier, we cannot review appellants claims here under
RCM 1210, because he filed no petition for a new trial within the statutory
time limit, and regardless, it is doubtful that he could meet the "due-
diligence" requirement of the rule. See United States v. Fisiorek,
43 MJ 244, 249 (1995)(Crawford, J., dissenting). Nevertheless, the ultimate
requirement found in RCM 1210(f)(2)(C) provides us with a clear rule for
testing whether the result obtained in the court-martial proceeding is
a reliable result. That test is whether



[t]he newly discovered evidence, if considered
by a court-martial in the light of all other pertinent evidence, would
probably produce a substantially more favorable result for the accused.



Id.
We have considered all of the affidavits and
new evidence obtained by appellant as a result of the work of his forensic
sociologist. Likewise, we have considered all of the affidavits and statements
of the various psychologists, psychiatrists, and physicians. We do not
know if what they say is indeed the true state of affairs, because the
evidence has not been tested in the crucible of an adversarial proceeding.
Thus, when the dust settles on this record
of trial, as supplemented by the substantial number of posttrial affidavits,
we find ourselves in the following position. First, we are satisfied that
appellant did not get a full and fair sentencing hearing. There are too
many questions arising out of the conflict of interest issue, the potential
mitigating effect of the posttrial evidence as to his mental status, and
the lack of training and experience of his trial defense counsel in the
defense of capital cases to allow us to affirm a death sentence
here.
On the other hand, we are uncertain as to the
impact of the posttrial information on the findings of guilt. There issubstantial
evidence of record that contradicts appellants claims that he could not
form the requisite premeditation required for the Government to prove his
guilt of murder under Art. 118(1).
Nonetheless, we must recognize that the posttrial
information, as contained in the barrage of affidavits filed with this
Court, has never been tested by cross-examination or by the contrary testimony
of government witnesses. See United States v. Van Tassel,
supra.
Therefore, what remedy do we provide appellant? The remedy we adjudge meets
the statutory mandate of review prescribed by Article 59(a).
We are further cognizant of Judge Sullivan's
admonition in his dissenting opinion in United States v. Young,
to the effect that the proper court for determining these questions is
the Court of Criminal Appeals. 43 MJ at 199; but see United
States v. Ginn, supra. An appellant is entitled to an evidentiary
hearing if his or her posttrial affidavits raise material questions
of fact that might give rise to relief. In any event, we will leave it
up to the Army Court of Criminal Appeals to determine if it can resolve
this case on the evidence before it, or whether a new fact hearing shall
be necessary. Art. 66, UCMJ, 10 USC § 866.
The decision of the United States Army Court
of Criminal Appeals is set aside. The record of trial is returned to the
Judge Advocate General of the Army for remand to that court for further
review. That court may: (1) Review the new evidence to determine if a different
verdict as to findings might reasonably result in light of posttrial evidence,
United
States v. Van Tassel, supra; (2) If it determines that the record
before it is inadequate to resolve the factual issues regarding findings,
it may order a DuBay hearing to consider the factual issues raised
on appeal as to the findings; (3) If it determines that a different
verdict would not reasonably result as to findings, then it may either
affirm appellants sentence only as to life imprisonment and accessorypenalties,
or it may order a rehearing as to the death sentence. Curtis, 46
MJ
at 130; (4) If it determines that a different
verdict on findings might reasonably result, then it shall order a rehearing
on findings and sentence; (5) If on remand the Court of Criminal Appeals
determines that further review under Article 66 is impracticable, then
in the interest of judicial economy, it may order forthwith a rehearing
on findings and sentence.
FOOTNOTE:
1/An
enlightening exchange took place between CPT Schneller (one of appellants
trial defense counsel), Major (MAJ) Pianelli (the trial counsel), and the
military judge, involving the use of the telephone by the defense counsel.
In summary, the defense counsel was having a difficult time using ordinary
military telephone channels to contact witnesses in the United States.
In order to use the commercial German telephone system, he had to obtain
permission from military authorities. MAJ Pianelli finally authorized CPT
Schneller to make calls, although he stated that he did so "knowing full
well that I personally would probably have to pay for the call because
proper authorization from Fifth Signal Command had not been obtained."
It is difficult to believe that a defense counsel in a capital case would
have to get permission from the prosecutor to use the telephone, much less
that the prosecutor would have to pay for the calls out of his own pocket.









APPENDIX













ISSUES PRESENTED
I
MILITARY DUE PROCESS AND ARTICLES 66 AND 67,
UCMJ, REQUIRE THE COURT OF MILITARY APPEALS AND THE COURTS OF MILITARY
REVIEW TO REVIEW ALL CAPITAL CASES IN FAVOREM VITAE,
SINCE CAPITAL LITIGATION IS IN ITS INFANCY IN THE MILITARY JUSTICE SYSTEM
AND TRIAL AND APPELLATE DEFENSE COUNSEL LACK THE TRAINING AND EXPERIENCE
NECESSARY TO PRESERVE THE RECORD OF ALL ISSUES AND PREVENT APPLICATION
OF WAIVER.

II
THE MILITARY JUSTICE SYSTEM SHOULD TREAT ISSUES
IN DEATH PENALTY CASES IN THE SAME MANNER AS IT DOES COMMAND INFLUENCE
AND MANDATE DE NOVO REVIEW AT ALL LEVELS OF APPEAL.

III
A FACTFINDING COURT OF MILITARY REVIEW MUST
UNANIMOUSLY AGREE ON BOTH THE FINDINGS OF GUILT AND THE SENTENCE IN A CAPITAL
CASE AND MUST APPLY A POLICY OF IN FAVOREM VITAE.

IV
SERGEANT MURPHY WAS DEPRIVED OF EFFECTIVE ASSISTANCE
OF COUNSEL BECAUSE HIS DEFENSE TEAM COULD NOT PROVIDE HIM WITH CONFLICT-FREE
REPRESENTATION.

V
THE MILITARY JUDGE ERRED BY FAILING TO INQUIRE
INTO THE EXISTENCE OF A CONFLICT OF INTEREST BASED ON DEFENSE COUNSELS
DUAL REPRESENTATION OF SERGEANT MURPHY AND A GOVERNMENT "SNITCH" WHO TESTIFIED
AGAINST HIM.

VI
SERGEANT MURPHYS DEFENSE COUNSEL COMMITTED
REVERSIBLE ERROR BY FAILING TO INFORM THE TRIAL COURT IN WRITING OF A CONFLICT
OF INTEREST BETWEEN REPRESENTATION OF SERGEANT MURPHY AND A GOVERNMENT
"SNITCH" AND BY FAILING TO OBTAIN SERGEANT MURPHYS WAIVER OF CONFLICT-FREE
REPRESENTATION ON THE RECORD.

VII
THE COURT OF MILITARY REVIEW ERRED BY FAILING
TO RETURN THIS CASE FOR A DUBAY HEARING TO DETERMINE WHETHER A CONFLICT
OF INTEREST EXISTED.

VIII
A DUBAY REHEARING IS NECESSARY TO EXPLORE
THE NATURE, EXTENT, AND EFFECT OF A CONFLICT OF INTEREST CAUSED BY ONE
OF SERGEANT MURPHYS TRIAL DEFENSE COUNSELS FORMER REPRESENTATION OF ONE
OF THE DECEDENTS.

IX
BECAUSE ONE OF SERGEANT MURPHYS APPELLATE
ATTORNEYS REPRESENTED SERGEANT MURPHY AND THE "SNITCH" SIMULTANEOUSLY,
CONFLICTED REPRESENTATION HAS PERSISTED INTO SERGEANT MURPHYS APPEAL.

X
THE UNITED STATES LACKED JURISDICTION TO COURT-
MARTIAL SERGEANT MURPHY FOR SPECIFICATIONS 1 AND 2 OF CHARGE I.

XI
SERGEANT MURPHY WAS DENIED HIS FIFTH AND EIGHTH
AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AS A RESULT OF THE
UNITED STATES FAILURE TO PROVIDE ACCURATE JURISDICTIONAL INFORMATION TO
THE FEDERAL REPUBLIC OF GERMANY.

XII
THE EXISTENCE OF THE LOGAN ACT AND USAREUR
REGULATION 550-56 DENIED SERGEANT MURPHY HIS CONSTITUTIONAL RIGHTS TO THE
EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS, EQUAL PROTECTION, AND TO
BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT.

XIII
SERGEANT MURPHYS TRIAL DEFENSE COUNSEL PROVIDED
INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO: (1) CHALLENGE THE CONSTITUTIONALITY
OF THE LOGAN ACT AND USAREUR REGULATION 550-56; (2) REQUEST THAT THE MILITARY
JUDGE ORDER THAT SERGEANT MURPHY BE PROVIDED WITH A GERMAN ATTORNEY WHO
COULD PROPERLY PROTECT HIS RIGHTS CONCERNING JURISDICTION; AND (3) ENSURE
THAT THE GERMAN GOVERNMENT WOULD COMPLY WITH ITS INTERNATIONAL OBLIGATION
TO SUPPORT THE HUMAN RIGHTS OF PEOPLE WITHIN ITS TERRITORY AS REQUIRED
BY THE EUROPEAN CONVENTION.

XIV
SERGEANT MURPHY WAS DENIED HIS RIGHTS TO DUE
PROCESS, EFFECTIVE ASSISTANCE, CONFRONTATION, A FAIR TRIAL, AND FREEDOM
FROM CRUEL AND UNUSUAL PUNISHMENT AT ALL STAGES OF THE PROCEEDINGS DUE
TO REPEATED INSTANCES OF PROSECUTORIAL MISCONDUCT.

XV
SERGEANT MURPHY WAS CONVICTED WITHOUT DUE PROCESS
OF LAW BECAUSE HE WAS DENIED COMPETENT PSYCHIATRIC ASSISTANCE IN THE EVALUATION,
PREPARATION, AND PRESENTATION OF HIS CASE.

XVI
SERGEANT MURPHY WAS DENIED HIS SIXTH AMENDMENT
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS TRIAL DEFENSE COUNSEL
FAILED TO INVESTIGATE THE MITIGATING CIRCUMSTANCES OF HIS TRAUMATIC FAMILY
AND SOCIAL HISTORY.

XVII
SERGEANT MURPHY WAS DENIED EFFECTIVE ASSISTANCE
OF COUNSEL WHERE HIS TRIAL DEFENSE COUNSEL FAILED TO ADEQUATELY EXPLORE
MENTAL HEALTH EVIDENCE.

XVIII
TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE
AS-SISTANCE OF COUNSEL BY FAILING TO ADEQUATELY INTERVIEW AND PREPARE TO
CROSS-EXAMINE GOVERNMENT WITNESSES AND PREPARE DEFENSE WITNESSES.

XIX
APPELLANTS TRIAL DEFENSE COUNSEL CONDUCTED
AN INADEQUATE AND INEFFECTIVE VOIR DIRE, THEREBY DENYING
APPELLANT HIS RIGHTS UNDER THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS TO THE
EFFECTIVE ASSISTANCE OF COUNSEL, AN IMPARTIAL PANEL, DUE PROCESS, AND TO
BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT.

XX
SERGEANT MURPHYS TRIAL DEFENSE COUNSEL WERE
INEFFECTIVE FOR FAILING TO OBJECT TO THE ADMISSIBILITY OF PROSECUTION EXHIBITS
19, 20, 26, 27, AND 30-52.

XXI
TRIAL DEFENSE COUNSEL WERE INEFFECTIVE BY FAILING
TO OBJECT WHEN THE GOVERNMENT ADDRESSED DURING ITS OPENING STATEMENT AND
PRESENTED TESTIMONY ON THE MERITS CONCERNING IRRELEVANT AND HIGHLY PREJUDICIAL
VICTIM IMPACT EVIDENCE.

XXII
SERGEANT MURPHY WAS DENIED THE EFFECTIVE ASSISTANCE
OF COUNSEL WHEN HIS TRIAL DEFENSE COUNSEL FAILED TO OBJECT TO THE ADMISSIBILITY
OF BOTH AN ORAL STATEMENT ALLEGEDLY MADE BY APPELLANT TO SA WOODALL AND
A WRITTEN STATEMENT PRESENTED AS PROSECUTION EXHIBIT 60 BECAUSE THEY WERE
OBTAINED IN VIOLATION OF ARTICLE 31(b), UCMJ, AS SERGEANT MURPHY WAS NOT
ADVISED THAT HE WAS SUSPECTED OF FALSE SWEARING.

XXIII
APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE
OF COUNSEL WHEN HIS TRIAL DEFENSE COUNSEL FAILED TO OBJECT TO THE ADMISSIBILITY
OF THE STATEMENTS APPELLANT ALLEGEDLY MADE TO SERGEANT FIRST CLASS MAREK
AND STAFF SERGEANT LIPSCOMB AS THE STATEMENTS WERE MADE WITHOUT APPELLANT
HAVING BEEN ADVISED OF HIS RIGHTS UNDER ARTICLE 31(b), UCMJ.

XXIV
SERGEANT MURPHY WAS DENIED HIS SIXTH AMENDMENT
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS TRIAL DEFENSE COUNSEL
FAILED TO INTERVIEW AND PRESENT AVAILABLE MILITARY WITNESSES AND MILITARY
RECORDS.

XXV
SERGEANT MURPHY WAS DENIED HIS SIXTH AMENDMENT
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS TRIAL DEFENSE COUNSEL
FAILED TO SEEK, OBTAIN, AND PRESENT FAVORABLE CLEMENCY MATTERS TO THE CONVENING
AUTHORITY.

XXVI
THE MILITARY JUDGE ERRED WHEN HE ADMITTED,
OVER DEFENSE OBJECTION, GRUESOME PHOTOGRAPHS OF THE DECEDENTS.

XXVII
THE MILITARY JUDGE EFFECTIVELY PRECLUDED THE
PANEL MEMBERS FROM CONSIDERING SERGEANT MURPHYS DISADVANTAGED BACKGROUND,
THEREBY DENYING HIM HIS RIGHTS TO CONSTITUTIONAL AND MILITARY DUE PROCESS
AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT.

XXVIII
SERGEANT MURPHY IS ENTITLED TO A REHEARING
BECAUSE THE MILITARY JUDGE IMPROPERLY INSTRUCTED THE MEMBERS ON VOTING
PROCEDURES, THEREBY DEPRIVING APPELLANT OF THE SUBSTANTIAL PROCEDURAL PROTECTIONS
OF ARTICLE 51(a), UCMJ, ON FINDINGS AND SENTENCE.

XXIX
THE MILITARY JUDGE COMMITTED PLAIN ERROR BY
FAILING TO INSTRUCT ON SENTENCING AS TO THE MEANING OF THE TERM "SUBSTANTIALLY
OUTWEIGHED" AND HOW IT APPLIES TO THE RELATIONSHIP BETWEEN MITIGATING CIRCUMSTANCES
AND AGGRAVATING FACTORS, AND FAILING TO DEFINE AND EXPLAIN THE RELATIONSHIP
BETWEEN CIRCUMSTANCES AND FACTORS.

XXX
THE MILITARY JUDGE ERRED IN VIOLATION OF THE
FIFTH AND EIGHTH AMENDMENTS IN FAILING TO EXPLICITLY INSTRUCT THAT EVEN
IF THE MEMBERS UNANIMOUSLY FOUND ONE OR MORE AGGRAVATING FACTORS, AND EVEN
IF THE MEMBERS UNANIMOUSLY DETERMINED THAT THE EXTENUATING OR MITIGATING
CIRCUMSTANCES WERE SUBSTANTIALLY OUTWEIGHED BY THE AGGRAVATING CIRCUMSTANCES,
EACH MEMBER STILL HAD THE ABSOLUTE DISCRETION TO DECLINE TO IMPOSE THE
DEATH SENTENCE.

XXXI
THE MILITARY JUDGE ABANDONED HIS IMPARTIAL
ROLE AND BECAME AN ADVOCATE FOR THE GOVERNMENT, THEREBY DENYING SERGEANT
MURPHY A FAIR TRIAL.

XXXII
THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN
HE PERMITTED THE GOVERNMENT, OVER DEFENSE OBJECTION, TO INTRODUCE TESTIMONY
ON SENTENCING CONCERNING THE PERSONAL CHARACTERISTICS OF A DECEDENT.

XXXIII
SERGEANT MURPHY DID NOT KNOWINGLY AND INTELLI-GENTLY
WAIVE HIS ARTICLE 38(b)(2) STATUTORY RIGHT TO CIVILIAN COUNSEL OR HIS ARTICLE
38(b)(3)(B) STATUTORY RIGHT TO MILITARY COUNSEL OF HIS OWN SELECTION WHERE
THE MILITARY JUDGE MISLED SERGEANT MURPHY BY STATING THAT HIS COUNSEL WERE
QUALIFIED WHEN NEITHER COUNSEL HAD CAPITAL TRAINING OR RESOURCE MATERIALS
TO ASSIST THEM.

XXXIV
THE MILITARY JUDGES PERSISTENT INSTRUCTIONS
TO SERGEANT MURPHYS FAMILY AND FRIENDS WHO WERE WATCHING THE TRIAL THAT
THEY COULD NOT DISPLAY ANY EMOTION AT ALL WHILE IN THE COURTROOM IMPROPERLY
CAUSED THEM TO WITHHOLD THEIR EMOTIONS AT ALL TIMES, EVEN WHILE THEY TESTIFIED,
AND THEREBY PREVENTED THE PANEL FROM SEEING THE TRUE FEELINGS OF SERGEANT
MURPHYS MITIGATION WITNESSES, DIMINISHING THE IMPACT OF THEIR TESTIMONY.

XXXV
THE MILITARY DEATH PENALTY SCHEME IS INVALID
DUE TO FURMAN V. GEORGIA, 408 U.S. 238 (1972), AND THE SEPARATION
OF POWERS DOCTRINE.

XXXVI
SERGEANT MURPHYS CONVICTION AND DEATH SENTENCE
ARE INVALID BECAUSE THEY WERE IMPOSED BY A PANEL OF FEWER THAN TWELVE LAY
PERSONS.

XXXVII
THE STANDARDLESS PROPORTIONALITY REVIEW CONDUCTED
BY THE ARMY COURT OF MILITARY REVIEW IS FUNDAMENTALLY FLAWED, DEPRIVES
THIS COURT OF MEANINGFUL APPELLATE REVIEW, AND VIOLATED SERGEANT MURPHYS
CONSTITUTIONAL AND MILITARY RIGHTS TO DUE PROCESS AND TO BE FREE FROM CRUEL
AND UNUSUAL PUNISHMENT.

XXXVIII
SERGEANT MURPHYS DEATH SENTENCE IS DISPROPORTIONATE
TO OTHER SIMILARLY SITUATED DEATH-ELIGIBLE HOMICIDES.

XXXIX
THE PREDOMINANCE OF MISLEADING LANGUAGE IN
THE REASONABLE DOUBT INSTRUCTIONS GIVEN BY THE MILITARY JUDGE FOR FINDINGS
AND SENTENCING CREATED A HIGHER DEGREE OF DOUBT THAN IS REQUIRED UNDER
THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.

XL
SERGEANT MURPHYS DEATH SENTENCE MUST BE SET
ASIDE AND ONLY A LIFE SENTENCE AFFIRMED BECAUSE SERGEANT MURPHYS DEATH
SENTENCE WAS IMPOSED AS A MATTER OF LAW IN A PROCEDURALLY INCORRECT MANNER
BECAUSE THE OPTION OF IMPOSING A SENTENCE OF LIFE IMPRISONMENT WAS NOT
GIVEN ITS DUE CONSIDERATION.

XLI
SERGEANT MURPHYS DEATH SENTENCE MUST BE SET
ASIDE AND ONLY A LIFE SENTENCE AFFIRMED BECAUSE THE DEATH SENTENCE WAS
IMPOSED AS A MATTER OF LAW IN A PROCEDURALLY INCORRECT MANNER BECAUSE THE
PANEL FAILED TO VOTE ON WHETHER "ANY EXTENUATING OR MITIGATING CIRCUMSTANCES
[WERE] SUBSTANTIALLY OUTWEIGHED BY ANY AGGRAVATING CIRCUMSTANCES" AND THEREFORE
FAILED TO MEET THE REQUIREMENT OF RCM 1004(b)(4)(C) THAT THERE BE A CONCURRENCE
BY ALL THE MEMBERS ON THE MATTER.

XLII
SERGEANT MURPHYS DEATH SENTENCE MUST BE SET
ASIDE AND ONLY A LIFE SENTENCE AFFIRMED BECAUSE THE DEATH SENTENCE WAS
IMPOSED AS A MATTER OF LAW IN A PROCEDURALLY INCORRECT MANNER BECAUSE THE
PANEL DID NOT PROPOSE SENTENCES IN WRITING BUT DID SO ORALLY.

XLIII
SERGEANT MURPHY WAS CONVICTED AND SENTENCED
TO DEATH IN VIOLATION OF THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS BECAUSE
THE CONVICTIONS AND SENTENCE WERE RENDERED UPON MISINFORMATION CONCERNING
HIS CULPABILITY AND MORAL BLAME-WORTHINESS.

XLIV
SERGEANT MURPHY WAS DENIED HIS RIGHT TO AN
IMPARTIAL JURY BY THE ACCEPTED PRACTICE IN THE MILITARY OF ALLOWING PANEL
MEMBERS TO INTER-ROGATE WITNESSES.

XLV
THE STAFF JUDGE ADVOCATES SPECIFIC INSERTION
AND NOTATION OF RACIAL IDENTIFIERS FOR SERGEANT MURPHY AND A PANEL MEMBER
INTO THE CLEMENCY PROCESS VIOLATED SERGEANT MURPHYS RIGHTS TO EQUAL PROTECTION
AND DUE PROCESS.

XLVI
RCM 1004 FAILS TO INCORPORATE CONGRESSIONALLY
MANDATED PROTECTION TO PREVENT RACIALLY MOTIVATED IMPOSITION OF THE DEATH
PENALTY IN VIOLATION OF ARTICLE 55, UCMJ, AND THE EIGHTH AMENDMENT TO THE
CONSTITUTION.

XLVII
THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN
HE FAILED TO SUA SPONTE INSTRUCT THE PANEL MEMBERS THAT RACE
COULD NOT BE CONSIDERED AS A FACTOR IN THE SENTENCING PROCESS.

XLVIII
THE PEREMPTORY CHALLENGE PROCEDURE IN THE MILITARY
JUSTICE SYSTEM, WHICH ALLOWS THE GOVERNMENT TO REMOVE ANY ONE JUROR WITHOUT
CAUSE, IS UNNECESSARY AND SUBJECT TO ABUSE IN ITS APPLICATION AND WAS ABUSED
IN SERGEANT MURPHYS CASE.

XLIX
THE PRETRIAL ADVICE IN SERGEANT MURPHYS CASE
WAS DEFECTIVE BECAUSE THE STAFF JUDGE ADVOCATE FAILED TO ENUMERATE ANY
MITIGATING CIRCUMSTANCES THE CONVENING AUTHORITY COULD BALANCE AGAINST
THE AGGRAVATING CIRCUMSTANCES TO MAKE AN INFORMED DECISION WHETHER TO REFER
THIS CASE CAPITAL.
 
 


L
THE STAFF JUDGE ADVOCATE WAS DISQUALIFIED FROM
PARTICIPATING IN THE PROCEEDINGS AFTER THE INITIAL PRETRIAL ADVICE AND
CAPITAL REFERRAL WERE CHALLENGED AS DEFECTIVE.

LI
THE CONVENING AUTHORITY WAS DISQUALIFIED FROM
PARTICIPATING IN THE PROCEEDINGS AFTER THE INITIAL PRETRIAL ADVICE AND
CAPITAL REFERRAL WERE CHALLENGED AS DEFECTIVE.

LII
THE FINDINGS MUST STATE EXPLICITLY THAT ALL
MEMBERS CONCUR THAT ANY EXTENUATING OR MITIGATING CIRCUMSTANCES ARE SUBSTANTIALLY
OUTWEIGHED BY THE AGGRAVATING CIRCUMSTANCES FOUND BY THE MEMBERS.

LIII
THE DEATH PENALTY SENTENCING STANDARD REQUIRING
AGGRAVATING CIRCUMSTANCES TO "SUBSTANTIALLY OUT-WEIGH" EXTENUATING OR MITIGATING
CIRCUMSTANCES IS IN VIOLATION OF THE FIFTH AND EIGHTH AMENDMENTS IN THAT
THE ONLY ACCEPTABLE STANDARD MUST BE "BEYOND A REASONABLE DOUBT." SEEALSO
ARTICLE 59(a), UCMJ.

LIV
THE AGGRAVATING FACTOR STATED IN RCM 1004(c)(7)(I)
IS VAGUE, FAILS TO SUFFICIENTLY CLARIFY THE FACTOR INVOLVED, DOES NOT NARROW
THE CLASS OF PERSONS ELIGIBLE FOR THE DEATH PENALTY, AND IS THEREFORE INVALID
UNDER THE EIGHTH AMENDMENT TO THE CONSTITUTION.

LV
COURT-MARTIAL PROCEDURES DENIED SERGEANT MURPHY
HIS ARTICLE III RIGHT TO A JURY TRIAL.

LVI
ARTICLE 18, UCMJ, AND RCM 201(f)(1)(C), WHICH
REQUIRE TRIAL BY MEMBERS IN A CAPITAL CASE, VIOLATE THE FIFTH AND EIGHTH
AMENDMENT GUARANTEES OF DUE PROCESS AND A RELIABLE VERDICT.

LVII
RCM 1004S PROHIBITION AGAINST GUILTY PLEAS
IN CAPITAL CASES DEPRIVED SERGEANT MURPHY OF A CRITICAL MITIGATING FACTOR
AND CAUSED OTHER IRREPARABLE PREJUDICE.

LVIII
SERGEANT MURPHY IS ENTITLED TO REPRESENTATION
BY QUALIFIED AND COMPETENT CAPITAL COUNSEL AND TO UNINTERRUPTED CONTINUITY
OF COUNSEL UNAFFECTED BY PEACETIME MILITARY PERSONNEL DECISIONS.

LIX
NEITHER THIS COURT NOR THE ARMY COURT HAS THE
JURISDICTION OR THE AUTHORITY TO REVIEW THE CONSTITUTIONALITY OF THE RULES
FOR COURTS-MARTIAL AND THE UNIFORM CODE OF MILITARY JUSTICE BECAUSE THIS
COURT IS AN ARTICLE I COURT, NOT AN ARTICLE III COURT WHICH HAS THE POWER
TO CHECK CONGRESS AND THE EXECUTIVE UNDER MARBURY V. MADISON, 5
U.S. (1 CRANCH) 137 (1803).

LX
THE MILITARY JUDGE ERRED IN VIOLATION OF THE
FIFTH AND EIGHTH AMENDMENTS AND ARTICLE 55, UCMJ, BY FAILING TO INSTRUCT
THE PANEL MEMBERS THAT THE ONLY OFFENSE FOR WHICH SERGEANT MURPHY COULD
BE SENTENCED TO DIE WAS PREMEDITATED MURDER AND THAT SERGEANT MURPHY COULD
NOT BE SENTENCED TO DIE ON THE BASIS OF THE AGGREGATE OR CUMULATIVE EFFECT
OF ALL THE OFFENSES.

LXI
THERE IS NO MEANINGFUL DISTINCTION BETWEEN
PRE- MEDITATED AND UNPREMEDITATED MURDER ALLOWING DIFFERENTIAL TREATMENT
AND SENTENCING DISPARITY IN VIOLATION OF THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS
AND ARTICLE 55, UCMJ.

LXII
THE MILITARY JUDGES INSTRUCTIONS BLURRED ANY
DISTINCTION BETWEEN THE OFFENSES OF PREMEDITATED AND UNPREMEDITATED MURDER
AND DELETED THE REQUIRED ELEMENT OF "PREMEDITATION" FROM THE OFFENSE OF
PREMEDITATED MURDER IN VIOLATION OF THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS
AND ARTICLE 55, UCMJ.

LXIII
THE MILITARY JUDGES INSTRUCTIONS RESTRICTED
FREE CONSIDERATION OF THE EVIDENCE BY REQUIRING THE MEMBERS TO VOTE ON
THE MOST SERIOUS OFFENSE FIRST.

LXIV
THE DESIGNATION OF THE SENIOR MEMBER AS THE
PRESIDING OFFICER FOR DELIBERATIONS ESTABLISHED THE SENIOR MEMBERS SUPERIORITY
IN AND CONTROL OF THE DELIBERATION PROCESS AND DENIED SERGEANT MURPHY DUE
PROCESS OF LAW AND A FAIR AND IMPARTIAL CONSIDERATION OF THE EVIDENCE BY
THE MEMBERS.

LXV
THE MILITARY JUDGES INSTRUCTION THAT "YOU
MAY NOT ADJUDGE A SENTENCE OF DEATH UNLESS YOU FIND THAT ANY AND ALL EXTENUATING
OR MITIGATING CIRCUMSTANCES ARE SUBSTANTIALLY OUTWEIGHED BY ANY AGGRAVATING
FACTORS" DID NOT SUFFICIENTLY INFORM THE MEMBERS THAT THIS FINDING MUST
BE UNANIMOUS.

LXVI
THE IMPOSITION OF THE DEATH PENALTY VIOLATED
SERGEANT MURPHYS RIGHT TO EQUAL PROTECTION UNDER THE FIFTH AMENDMENT BECAUSE
RCM 1004 SUBJECTED SERGEANT MURPHY, AS A MEMBER OF THE ARMED FORCES, TO
A PENALTY WHICH IS NOT OTHERWISE AVAILABLE UNDER THE CRIMINAL CODE OF THE
UNITED STATES FOR IDENTICAL CRIMINAL CONDUCT.

LXVII
THE TRIAL COUNSEL COMMITTED PROSECUTORIAL MISCONDUCT
BY PRESENTING CONTRARY ARGUMENTS ON THE MERITS AND SENTENCING CONCERNING
WHETHER AN AGGRAVATING CIRCUMSTANCE APPLIED IN THIS CASE.

LXVIII
A DUBAY HEARING IS NECESSARY TO EXPLORE
THE NATURE, EXTENT, AND EFFECT OF A CONFLICT OF INTEREST CAUSED BY ONE
OF SERGEANT MURPHYS TRIAL DEFENSE COUNSELS FORMER REPRESENTATION OF ONE
OF THE DECEDENTS.

LXIX
THE SECRETARY OF STATE AND OTHER OFFICIALS
AT THE DEPARTMENT OF STATE, AS AGENTS AND RE-PRESENTATIVES OF THE PRESIDENT
OF THE UNITED STATES, GUARANTEED HIGH OFFICIALS OF THE GERMAN GOVERNMENT
THAT THE DEATH SENTENCE WILL BE COMMUTED IN APPELLANTS CASE AND GAVE A
MINISTERIAL COMMITMENT THAT CLEMENCY WOULD BE RECOMMENDED.

LXX
APPELLANTS CONSTITUTIONAL RIGHTS TO DUE PROCESS
AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT WERE DENIED BY THE TRIAL
COUNSELS, MILITARY JUDGES, AND PANELS RUSH TO COMPLETE THE APPELLANTS
COURT-MARTIAL.

LXXI
THE MILITARY JUDGE ERRED BY INSTRUCTING THE
PANEL MEMBERS THAT THEY COULD NOT CONSIDER THAT THE INCIDENT IN QUESTION
WAS PRECEDED BY A HEATED ARGUMENT.

LXXII
SERGEANT MURPHYS DEATH SENTENCE VIOLATES THE
EIGHTH AMENDMENTS PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT BECAUSE
THE CAPITAL REFERRAL SYSTEM OPERATES IN AN ARBITRARY AND CAPRICIOUS MANNER.

LXXIII
SERGEANT MURPHY WAS DENIED HIS RIGHTS TO EQUAL
PROTECTION, DUE PROCESS, THE EFFECTIVE ASSISTANCE OF COUNSEL, AND TO BE
FREE FROM CRUEL AND UNUSUAL PUNISHMENT GUARANTEED BY THE FIFTH, SIXTH,
AND EIGHTH AMENDMENTS TO THE CONSTITUTION WHEN HE WAS REPRESENTED ON REMAND
TO THE ARMY COURT BY APPELLATE COUNSEL WHO WERE BEING SENIOR-RATED BY THE
OFFICER WHO RECOMMENDED A CAPITAL REFERRAL, APPROVAL OF THE FINDINGS, AND
THE DEATH SENTENCE IN SERGEANT MURPHYS CASE.

LXXIV
MILITARY DUE PROCESS AND FUNDAMENTAL NOTIONS
OF FAIRNESS REQUIRE THAT EACH MEMBER OF THE COURT-MARTIAL SIGN HIS OR HER
NAME TO THE DEATH-SENTENCE WORKSHEET OR THAT THE CONDEMNED ACCUSED BE AFFORDED
THE RIGHT AND OPPORTUNITY TO POLL THE MEMBERS.

LXXV
THE CAPITAL SENTENCING PROCEDURE IN THE MILITARY
IS UNCONSTITUTIONAL BECAUSE THE MILITARY JUDGE LACKS THE POWER TO ADJUST
OR SUSPEND A SENTENCE OF DEATH WHICH IS IMPROPERLY IMPOSED.

LXXVI
COURT-MARTIAL PROCEDURES DENIED SERGEANT MURPHY
OF HIS SIXTH AMENDMENT RIGHT TO A JURY TRIAL AND AN IMPARTIAL CROSS-SECTION
OF THE COMMUNITY.

LXXVII
SERGEANT MURPHYS DEATH SENTENCE VIOLATES THE
EIGHTH AMENDMENTS PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT.

LXXVIII
SERGEANT MURPHYS RIGHTS TO DUE PROCESS AND
TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT WERE VIOLATED BY THE ARMY
COURTS REQUIREMENT THAT APPELLATE DEFENSE COUNSEL INVESTIGATE, RESEARCH,
BRIEF, FILE, AND ARGUE ISSUES GERMANE TO HIS CASE WITHOUT HAVING ALL THE
AVAILABLE RELEVANT MITIGATION EVIDENCE.

LXXIX
THE ARMY COURT ERRED BY DECIDING AND ISSUING
AN OPINION IN THIS CASE WITHOUT WAITING FOR THE AVAILABLE RELEVANT MITIGATION
EVIDENCE.

LXXX
SERGEANT MURPHYS DEATH SENTENCE IS INVALID
UNDER THE FIFTH AND EIGHTH AMENDMENTS TO THE CONSTITUTION AND ARTICLE 55,
UCMJ, BECAUSE THE SENTENCING PANEL WAS IMPROPERLY PERMITTED TO CONSIDER
"LACK OF REHABILITATION," "PRESERVATION OF GOOD ORDER AND DISCIPLINE,"
AND SPECIFIC DETERRENCE IN SENTENCING DELIBERATIONS.

LXXXI
THE GOVERNMENTS FAILURE TO GIVE NOTICE OF
THE AGGRAVATING CIRCUMSTANCES IT INTENDED TO PROVE, OTHER THAN THOSE SPECIFICALLY
LISTED IN RCM 1004, VIOLATED THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS, AND
ARTICLE 55, UCMJ.

LXXXII
THE MILITARY JUDGE ERRED IN INSTRUCTING SERGEANT
MURPHYS SENTENCING PANEL THAT THEY COULD CONSIDER AGGRAVATING CIRCUMSTANCES
OF WHICH THE DEFENSE HAD BEEN GIVEN NO NOTICE PRIOR TO TRIAL, IN VIOLATION
OF THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS, AND ARTICLE 55, UCMJ.

LXXXIII
TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO OBJECT WHEN THE GOVERNMENT IMPROPERLY
SPLIT ONE AGGRAVATING FACTOR INTO TWO.

LXXXIV
SERGEANT MURPHY HAS BEEN DENIED EQUAL PROTECTION
UNDER THE LAW IN VIOLATION OF THE FIFTH AMENDMENT IN THAT OTHER CIVILIANS
IN THE UNITED STATES ARE AFFORDED THE OPPORTUNITY TO HAVE THEIR CASES REVIEWED
BY AN ARTICLE III COURT, BUT MEMBERS OF THE UNITED STATES ARMY, BY VIRTUE
OF THEIR STATUS AS SERVICEMEMBERS, ARE NOT.

LXXXV
SERGEANT MURPHY DID NOT KNOWINGLY AND INTELLI-GENTLY
WAIVE HIS ARTICLE 38(b)(2) STATUTORY RIGHT TO CIVILIAN COUNSEL OR HIS ARTICLE
38(b)(3)(B) STATUTORY RIGHT TO MILITARY COUNSEL OF HIS OWN SELECTION BECAUSE
THE TRIAL DEFENSE COUNSEL FAILED TO ADVISE SERGEANT MURPHY OF THEIR CAPITAL
LITIGATION DEFICIENCIES (WHICH INCLUDED NO CAPITAL TRAINING AND NO EXPERIENCE
IN PRESENTING A CAPITAL CASE) AND THE LEAD COUNSEL FAILED TO ADVISE SERGEANT
MURPHY THAT HE HAD DETAILED HIMSELF TO THE CASE.

LXXXVI
SERGEANT MURPHY WAS DENIED HIS FIFTH AMENDMENT
RIGHT TO A GRAND JURY PRESENTMENT OR INDICTMENT.

LXXXVII
THE MILITARY JUDGE ABUSED HIS DISCRETION BY
REFUSING TO ORDER THE PRODUCTION OF FIVE OF THE ELEVEN SENTENCING WITNESSES
REQUESTED BY THE DEFENSE.

LXXXVIII
THE MILITARY JUDGE ERRED BY NOT SUA SPONTE
INSTRUCTING THE MEMBERS ON SENTENCING THAT THEY COULD CONSIDER THE FACT
THAT SERGEANT MURPHY WAS ACTING IN SELF-DEFENSE WHEN THE PANEL DELIBERATED
THE QUESTION OF WHETHER TO FIND AS AN AGGRAVATING FACTOR[S] THAT "THE MURDER
OF PETRA MURPHY WAS PRECEDED BY THE INTENTIONAL INFLICTION OF SUBSTANTIAL
PHYSICAL HARM OR PROLONGED, SUBSTANTIAL MENTAL OR PHYSICAL PAIN AND SUFFERING,"
GIVEN THAT SERGEANT MURPHY HAD BEEN ATTACKED BY PETRA MURPHY WITH A KNIFE
BEFORE HE STRUCK HER WITH THE HAMMER.

LXXXIX
ASSUMING, ARGUENDO, THAT THE NUMBER OF ERRORS
WHICH OCCURRED IN THE INSTANT CASE ARE NOT INDIVIDUALLY SUFFICIENT TO REQUIRE
REVERSAL, THESE ERRORS CANNOT BE FOUND TO BE HARMLESS BEYOND A REASONABLE
DOUBT WHEN CONSIDERED COLLECTIVELY.

SUPPLEMENTAL ISSUE I
WHETHER APPELLANT'S COURT-MARTIAL LACKED JURISDICTION
TO TRY HIM IN THE FEDERAL REPUBLIC OF GERMANY FOR CAPITAL MURDER COMMITTED
THERE DURING PEACETIME.

SUPPLEMENTAL ISSUE II
WHETHER APPELLANT WAS DENIED DUE PROCESS OF
LAW IN VIOLATION OF THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS BECAUSE HE
WAS TRIED BY COURT-MARTIAL FOR CAPITAL MURDER IN THE FEDERAL REPUBLIC OF
GERMANY IN PEACETIME.
 
 



SULLIVAN, Judge (dissenting):
In 1987, James Murphy had a problem--he had
two wives. Initially, he was married to a German woman, Petra Murphy, and
he was living in Germany with her and two small children--a 5-year old
boy named Tim (Petras son before she married James) and James, Jr. (his
natural son and namesake). However, James and Petras marriage was on
the rocks, and divorce proceedings had been started in a German court.
James Murphy decided he wanted out of this marriage quickly. In June 1987,
he married another German woman, Beatra. In July 1987, appellant visited
his home state, North Carolina, where he obtained a divorce from Petra
without her knowledge. In August 1987, James was back in Germany and received
orders transferring him to Redstone Arsenal, Alabama. Sometime between
August 16th and August 20th, when he left Germany
for the United States, James Murphy took a hammer and went to the apartment
where Petra was living. At that apartment he smashed Petras head with
the hammer and killed her.
Now Murphy had another problem. The two boys
were in the apartment and would report him for the murder of their mother.
James Murphy drowned each of the boys in the bath tub at the apartment
before he left. The bodies were discovered on August 23rd, for
the most part, because of the unusual odor coming from the hot apartment.
I know the above facts primarily through Murphys several confessions.
In those confessions, he details three separate murders using two separate
modes of killing.
The military attorneys assigned to defend Murphy
now had a problem. Several detailed and corroborated confessions, as well
as a series of incriminating acts showing the motive and intent of their
client, gave them an uphill battle to save Murphys life in a capital
murder case.
First, the attorneys attempted to use the affirmative
defense of insanity, after Murphy was mentally examined. However, a sanity
board (one medical doctor and a Ph.D.) reported that Murphy was mentally
responsible at the time of the crimes and had the mental capacity to stand
trial. Without insanity as a defense, and doing the best they could with
an overwhelming case against them, Murphys lawyers tried the case, ultimately
relying on a defense to the death penalty based on Murphys utter remorse.
See
Harris v. Vasquez, 949 F.2d 1497, 1524 (9th Cir. 1990),
cert. denied, 503 U.S. 910 (1992) (within wide range of professionally
competent assistance to not present a psychiatric defense theory but to
rely on remorse in capital case). He was found guilty by a jury and received
the death penalty in December of 1987.
Now, 11 years after these murders, the
majority reverses the death penalty because of the "lack of training and
experience" of his trial defense counsel in the defense of capital cases,
___ MJ (21), and because 3 doctors, hired for money by the defense
appellate team over 5 years after Murphys conviction, have stated in affidavits
that, in their opinion, Murphy could not have formed the intent necessary
for premeditated murder. One of these doctors also held that appellant,
as a result of that mental defect, was not mentally responsible for his
crimes. Two other doctors would not hold Murphy liable for the crimes because
his mother drank too much when he was in her womb. Based on this material,
the majority sets aside the death penalty in this case.
Now I, as an appellate judge, have a problem.
I see no legal basis upon which the majority can reverse this case because
the defense attorneys might have been better trained. Moreover, I do not
agree with the majority that this case should be remanded, just because
some defense-selected doctors, many years after the crime and a
valid pretrial sanity board under RCM 706, Manual for Courts-Martial, United
States, 1984, say Murphy did not intend to commit premeditated murder.
The facts in the record and the law do not justify a reversal and remandon
this basis. See United States v. Young, 43 MJ 196 (1995)
(newly acquired psychiatric evidence does not require remand to Court
of Criminal Appeals); Vasquez, supra at 1515-16 (post-trial
defense psychiatric evidence in capital case where defense of remorse relied
on at trial does not constitute colorable showing of factual innocence).
The record overwhelmingly demonstrates a cold and calculating series of
acts by Murphy, which show no defect of reason. The acts of Murphy show
he planned and understood the nature and quality of his acts in killing
three humans.
First, let us look at the record, which tells
us the following facts:



1. James Murphy was a Sergeant, a non-commissioned
officer in the U.S. Army.
2. Murphy was a good soldier serving in Germany.
3. Murphy participated in legal divorce proceedings
in a German court.
4. Murphy planned and executed international
travel to procure a divorce in a North Carolina court.
5. Murphy traveled back to Germany to successfully
out-process his unit.
6. Murphy took a hammer to meet with Petra,
right before he was about to leave Germany.
7. Murphy successfully killed three people
using two modes of killing, and successfully escaped the scene of the crime.
8. Murphy left the scene in such a manner that
the murders were not discovered until 3 days after he left Germany.
9. Murphys defense counsel successfully pursued
and were granted a sanity board before the trial.
10. Despite several confessions and much incriminating
evidence of motive, intent, and execution of planning the murders, the
defense team mounted a reasonable and credible defense, attempting to put
suspicion on Murphys 2nd wife, Beatra Murphy.
11. The defense called no witnesses on findings,but
called 7 witnesses and offered 28 exhibits on sentencing, including
appellants unsworn statement of remorse.



In light of the above, the entire record shows
a competent defense by counsel, and a proper resolution of the issue of
Murphys sanity at the time of the offenses. Federal law for civilians,
under the facts in this case, would not allow partisan medical-opinion
evidence to be controlling at this late stage of the appellate process,
so as to reverse a death penalty case. Sellers v. Ward, 135 F.3d
1333, 1339 (10th Cir. 1998); Shaw v. Delo, 971 F.2d 181,
187 (8th Cir. 1992); Harris v. Vasquez, supra;
see
also Moody v. Johnson, 139 F.3d 477, 482 (5th
Cir. 1998). Neither does our own case law. In Young, 43 MJ at 199
(Sullivan, J., dissenting), I indicated that it might be proper to remand
a case to the Court of Criminal Appeals when such evidence could bear on
an appellants lack of mental responsibility at the time of the offenses,
but only if this issue was raised for the first time on appeal in our Court.
However, in appellants case, the sanity issue was raised and settled pretrial.
See
RCM 706. The record of trial in this case shows no evidence
that Murphy failed in any way to appreciate the nature and quality of his
acts of murder. At trial, there was no hint of defect in his capacity to
reason. Finally, no contrary, post-trial evidence was brought within
the 2-year period allowed for "newly discovered" evidence.
See RCM
1210(f).
Now, the majority suddenly exalts defense-selectedpsychiatric
evidence brought in years after the crime, while ignoring facts
which clearly show that Murphy did, in a cold and calculating
manner, plan and execute three murders. See Delo, supra at
186 (appellate court can consider accusers actions on day of murder in
determining whether a reasonable juror could still reject new psychiatric
evidence).
The law that the majority establishes in this
case generally allows mental responsibility to be an open
question, practically forever. Contra Harris, supra
at 1517-18, quoting Silagy v. Peters, 905 F.2d 986, 1013
(7th Cir. 1990). Could we not find a paid doctor today
to give an affidavit to prove John Wilkes Booth did not intend to murder
President Lincoln? What if Murphy is sent back to a new judge and jury
and sentenced to death again? Would we allow another sanity attack to be
mounted post-trial and post-period of newly-acquired evidence? Death penalty
cases must, of course, be closely scrutinized; however, they should not
be allowed to continue forever.
The majority opinion more particularly holds
that appellant had unqualified military lawyers representing him in this
capital case. It also holds that their representation raised "too many
questions" with respect to his death sentence. ___ MJ (27). Finally,
it holds that the post-trial information filed in this case has an uncertain
impact on the findings of guilt. The bottom line of the majority
is that these circumstances justify a remand to the Court of Criminal
Appeals, with a strong suggestion that a findings and sentence rehearing
be ordered.
I disagreed with the majoritys position in
United
States v. Curtis, 46 MJ 129 (1997), that military lawyers are, in effect,
unqualified to act in capital cases. I disagree with its holding here today
to the same effect. Moreover, in light of the cumulative-evidence holding
of the majority, what questions are raised with respect to sentence that
are not also raised with respect to findings? I do not understand
how cumulative evidence of appellants good motive in confessing
would impact on his death sentence in any way.
I also disagree with the majoritys "too many
questions" standard of appellant review. This standard is entirely inconsistent
with federal law (cf. Art. 36, UCMJ, 10 USC §
836), which requires an accused to meet a much higher standard to reverse
a conviction or death sentence based on post-trial acquired psychiatric
evidence. See Harris, supra at 1515; Sellers,
135 F.3d at 1339 (considering the new evidence with the old evidence, no
reasonable juror would still convict). Moreover, it conflicts with the
majority opinion in Young, because it avoids the requirementfor
a careful evaluation of the quality of the proffered evidence in light
of evidence already in the record of trial. See 43 MJ at 199 (evidence
in record showing mental state at time of offense). Finally, in view of
the particular factual record before us (see United States v.
Cosner, 35 MJ 278, 280 (CMA 1992) (no reasonable person would change
his verdict)), I conclude beyond a reasonable doubt that no different result
would be obtained in this case, based on the defense post-trial psychiatric
materials.1See
United States v. Young, supra (newly acquired psychiatric
evidence not sufficient to produce more favorable result);
Harris v.
Vasquez, supra (newly acquired psychiatric evidence not sufficient
to probably produce an acquittal).
Accordingly, I dissent.
FOOTNOTE:
1 This material, of
course, could be submitted to the Chief Executive or other authorities
for consideration in clemency as suggested by the Second and Tenth Circuits.
Torres
v. United States, 140 F.3d 392, 405 n.7 (2d Cir. 1998); Sellers
v. Ward, 135 F.3d 1333, 1339-40 (10th Cir. 1998).
 
 
CRAWFORD, Judge (dissenting):
Once again the majority, without explanation
or justification, fails to follow Supreme Court precedent concerning the
effective assistance of counsel when the sentence is death. SeeUnited
States v. Curtis, 46 MJ 129, 131 (1997) (Crawford, J., dissenting).
In Strickland v. Washington, 466 U.S. 668, 687 (1984), a capital
case, the Supreme Court set forth a two-pronged test for ineffective assistance
of counsel, which this Court adopted in United States v. Scott,
24 MJ 186 (CMA 1987). Our opinions consistently have applied that two-pronged
test, until Curtis and, now, Murphy.
By concluding that appellants counsel were
ineffective, the majority attempts to fit a square peg in a round hole.It
relies upon the absence of information in the record regarding trial defense
counsels courts-martial experience to support its contention that appellants
defense counsel were ineffective at trial. It also fails to recognize the
presumption of competence of counsel, and the high hurdle an appellant
must overcome in order to establish prejudice.

FACTS
I find it telling that the majority gives short
shrift to a discussion of the evidence in this case. Determining whether
an attorneys conduct falls below an objective standard of reasonableness,
and whether an appellant was prejudiced by that attorneys conduct, requires
an analysis of the factual evidence introduced at trial.
Assuming for the sake of argument that the
first prong of the ineffective assistance of counsel test has been met,
one must still consider the prejudice prong. A prejudice analysis should
encompass a review of all the evidence presented at trial. For this reason,
I shall begin with a discussion of the facts.
Prior to the murders, appellant was involved
in a lengthy, acrimonious divorce proceeding in which his ex-wife, Petra
Murphy, was demanding more financial support. Appellant told fellow soldiers
"that if he had to pay alimony he was going to kill her."
Appellant admitted that, approximately 10 or
11 days prior to the murders, he took a taxi to Petra's apartment complex
because he did not know its exact location. When he arrived, he did not
exit the cab, but had the cab driver return him to his own car. Then he
drove his own car back to the apartment complex and circled around it a
couple of times to see if Petra and the children were there. Although appellant
claimed to have an innocent intent in doing so, it is a reasonable
inference that his actions were a prelude to the murders.
On the night of the murders, appellant drove
to Petras apartment and parked 100 yards from the apartment complex so
that no one would associate his car with the complex. He arrived at 11:15
p.m. In his car he had both the hammer and gloves (the murders occurred
in August) that he would use for the murder.



The victims in this case were appellants
former wife, Petra Murphy, Petras five-year-old son by a former marriage,
Tim Herkstroeter, and appellants twenty-one-month-old son, James Murphy.
The bodies of the victims were found in the bathroom several days after
their murders. The bodies of the children lay in a partially filled bathtub;
Tim was lying face up, James face down. The forensic pathologist testified
at trial that the children were alive and conscious at the time of drowning.
Petra was found kneeling beside the tub, her head draped into the water.
The forensic pathologist testified at trial that Petra died by drowning
but had also suffered at least four severe blows to her head prior to death,
one of which fractured her skull, and had injuries on her neck indicative
of choking. Petra may have been unconscious when she was drowned.



Murphy, 36 MJ 8 (Crawford, J., dissenting).
After committing the murders, appellant wiped
off all the fingerprints in the house, arranged the crime scene to make
it look like someone else had committed the crime, and then removed and
disposed of all the incriminating evidence, including the towel he used
to wipe away his fingerprints, Petras key, and Petras military dependent
identification card. He locked the door and threw the key away, knowing
that no one could get into the apartment and that he was scheduled to leave
Germany in a few days. The bodies were discovered several days after
appellant returned to the United States.
Appellant provided the police with four separate
versions of events. Each version is progressively more incriminating and
more consistent with the physical evidence in the case. Appellant initially
denied any involvement in the murders. He then claimed that he killed Petra
because she killed the children. Appellants third claim was that he killed
Petra and his step-son because Petra killed his son. Finally, appellant
admitted that he murdered all three of them. Appellant confessed not only
to police, but to three others as well.
Appellant demonstrated that he was intimately
familiar with the crimes by providing numerous diagrams of Petras apartment
before and after the murders. These diagrams accurately reflected the crime
scene. Police also located the gloves and hammer appellant stated that
he used during the murders.

DEFENSE COUNSELS EXPERIENCE
An attorneys lack of experience is not a perse
bar to trying capital cases. United States v. Cronic, 466 U.S. 648
(1984). See also Wisehart v. State, 693 N.E.2d 23
(Ind. 1998). Admittedly, it is preferable for a defense attorney to have
extensive experience in felony cases and jury trials. The majority concludes
that, because trial defense counsel, Captains (CPT) Vitaris and Schneller,
lacked experience trying capital cases, and did not request the use of
experts in sentencing, they must have been ineffective. ___ MJ (12).
Case law does not support such a holding.
The Supreme Court in Cronic rejected
the idea that the experience of counsel determines effectiveness. In that
case, the Supreme Court reversed a lower court decision which found an
appointed defense counsel ineffective because he was a young real estate
lawyer and had never participated in a jury trial. 466 U.S. at 649. The
Court held that "[t]he character of a particular lawyer's experience may
shed light in an evaluation of his actual performance, but it does not
justify a presumption of ineffectiveness in the absence of such an evaluation."
The Court noted that "[e]very experienced criminal defense attorney once
tried his first criminal case." Id. at 665.
The majority emphasizes that trial defense
counsel did not list their qualifications and experience on the record.
___ MJ (10). However, there is no requirement that defense counsel
do so. This Court should not imply that defense counsels failure to reveal
their experience and qualifications in any way strengthens appellants
claim of ineffective assistance of counsel. Absent evidence to the contrary,
we presume counsel is competent. Strickland, 466 U.S. at 689.
Further, the lead defense counsel in appellants
trial was the Senior Defense Counsel of the Hanau Field Office, Trial Defense
Service. A military attorney does not ascend to this position without extensive
court-martial experience and strong qualifications.
Appellant was represented by two military lawyers
who were not associated with appellants command, but were part of a separate
defense counsel organization with its own training, supervision, and headquarters
in Washington, D.C. Both attorneys were members of the Judge Advocate General's
Corps selected in a highly competitive atmosphere. Upon being selected
and commissioned, they received training at the Army Judge Advocate General's
School, an American Bar Association approved law school which Congress
approved to award a Master of Laws degree (LL.M.). At that school, they
received specialized training in litigation, trial practice, and criminal
law. Additionally, they were members of a separate public defender organization
that conducts periodic training.
Given the common experience of all judge advocates,
and what we know of the experience of the lead defense counsel in this
case, there is no reason to infer a lack of experience or qualifications
absent some showing by appellant. Even if appellant were to present evidence
of his trial defense counsels inexperience or lack of training, this would
not be a per se showing of ineffectiveness. Rather, under
Cronic,
such evidence would be only a factor to consider in determining the defense
counsels effectiveness.

CONFLICT-FREE COUNSEL
RCM 901(d)(4), Manual for Courts-Martial, United
States, 1984, based on Fed. R. Crim. P. 44(c) and United States v. Breese,
11 MJ 17 (CMA 1981), provides:

The military judge shall, in open session:

* * *

(D) Promptly inquire, whenever two
or more accused in a joint or common trial
are represented by the same detailed or
individual military or civilian counsel,
or by civilian counsel who are associated
in the practice of law, with respect to such
joint representation and shall personally
advise each accused of the right to effective
assistance of counsel, including separate
representation. Unless it appears that
there is good cause to believe no conflict
of interest is likely to arise, the military
judge shall take appropriate measures to
protect each accused's right to counsel[.]



The Discussion to RCM 910 states:



Whenever it appears that any defense counsel
may face a conflict of interest, the military
judge should inquire into the matter, advise
the accused of the right to effective assistance
of counsel, and ascertain the accused's choice
of
counsel. When defense counsel is aware of
a
potential conflict of interest, counsel should
discuss the matter with the accused. If the
accused elects to waive such conflict, counsel
should inform the military judge of the matter
at an Article 39(a) session so that an appropriate
record can be made.



When a conflict appears on the record, the judge
should conduct an inquiry.
In his affidavit, appellant denies that his
lawyers discussed representation of Private (PVT) French or advised him
of any potential conflict. Now he indicates that, had he been so advised,
he would not have consented to representation by CPT Vitaris or CPT Schneller.
The military judge stated in his affidavit
that PVT French's case was one of a number of trials that he presided over
between July and December of 1987. He indicated that he did not remember,
during appellants trial, that CPT Schneller had represented PVT French.
There was no indication on the record of the prior representation of PVT
French.
CPT Schneller states in his affidavit that
the representation of PVT French was discussed with appellant. He asserts
that appellant agreed that he would continue to represent appellant and
would seek release from representing PVT French.
In his affidavit, CPT Schneller states:



Due to [appellant's] irresistible impulse
to confess his alleged crimes to anyone who
would listen, CPT Vitaris and I, on our own, developed the theory that
"Beata [sic] might have done it" and [appellant] was protecting her....
[PVT] French's testimony fit the theory of our case.
CPT Vitaris was in charge of the trial of the
case in chief. That is, I handled the opening statement and CPT Vitaris
handled all matters thereafter through a verdict by the panel. It was our
decision that should the panel not believe our theory that "Beata [sic]
might have done it," they
would not be in any mood to listen to CPT
Vitaris plea for [appellant's] life. Therefore it was felt that it would
be better if we separated the case and I presented the sentencing, as I
might have more credibility than CPT Vitaris, at that time, with the panel.
I can say ... that CPT Vitaris and I were totally devoted to [appellant]
and were determined to obtain an acquittal. There was no thought given
to a possible conflict of interest with [PVT] French after I was relieved
from his case. The decision not to cross-examine [PVT] French had nothing
to do with my prior representation and to the best of my knowledge was
due solely to the fact that the information to be obtained from cross-examination
would have been detrimental to [appellant's] case.



CPT Vitaris corroborates CPT Schnellers affidavit
and remembers admonishing appellant to remain silent because PVT French's
testimony was consistent with their trial strategy. There was no need or
advantage to be gained by cross-examination.
No inquiry was required by the judge under
RCM 901(d)(4), because there was not a joint or common trial involving
the accused. Nor was the judge unreasonable in failing to remember one
of many trials, in fact, a snapshot of one of many trials he presided over
while "riding" a trial circuit in Europe during a 6-month period of time.
Defense counsel, after they obtained appellants consent for CPT Schneller
to continue his representation, should have informed the judge pursuant
to the non-binding discussion to RCM 901(d)(4). However, contrary to the
majoritys holding, this conflict had no impact on appellants trial.
As the majority acknowledges, PVT French primarily
reiterated information contained in appellants confessions. ___ MJ (16).
Defense counsel are not required to cross-examine a witness. Indeed, they
are only ineffective if their failure to cross-examine falls below the
standards set forth under Strickland. See Brown v. United
States, 625 F.2d 210 (9th Cir. 1979); Sallie v. State,
587 F.2d 636 (4th Cir. 1978). As the majority notes, some of
PVT Frenchs testimony was helpful to appellant, which may be why PVT French
was not impeached on the stand. ___ MJ (17).
On findings, the theory of the case was that
appellant confessed repeatedly, to all who would listen, because he was
protecting the real perpetrator, his wife Beate. In this context, PVT Frenchs
testimony supported the defense theory.
An attorneys conflict of interest does not
amount to ineffective assistance of counsel unless an appellant was prejudiced
by the conflict of interest. Burger v. Kemp, 483 U.S. 776, 785 (1987).
The majority determines that appellant may have been prejudiced by the
witness testimony that appellant stated he murdered his son because he
did not want to leave any witnesses to the murder. ___ MJ (17).
I disagree.
Similar evidence was presented at trial by
a different source and, thus, the challenged testimony could not have prejudiced
appellant. During a police interrogation, appellant informed Special Agent
Woodall that he killed James, his 2-year-old son, because "the authorities
would automatically assume that he was the perpetrator if James survived."
See
36 MJ at 1141 (quoting R. 425).
Further, a reasonable member could reach this
conclusion from the mere fact that appellant murdered everyone in the home.
Appellants reason for murdering his son did not tip the scales
toward the death penalty in this case. Rather, the fact that appellant
murdered a toddler, a 5-year-old, and his ex-wife, in a clearly premeditated
act, convinced the members to sentence appellant to death. Further, PVT
Frenchs testimony did not undercut appellants contention that he felt
remorse for his crime afterwards.

INVESTIGATION AND EXPLORATION OF APPELLANTS
MENTAL HEALTH AND ABUSE AS A CHILD
An appellant may not raise an ineffective assistance
of counsel claim based on actions taken as part of a reasonable trial strategy.
United
States v. Curtis, 44 MJ 106, 119 (1996). A defense counsels selection
of witnesses and introduction of evidence are generally issues of trial
strategy and "virtually unchallengeable." Leisure v. State, 828
S.W.2d 872, 875 (Mo. 1992), cert. denied, 506 U.S. 923 (1992).
"In any ineffectiveness case, a particular
decision not to investigate must be directly assessed for reasonableness
in all the circumstances, applying a heavy measure of deference to counsel's
judgments." Strickland, 466 U.S. at 691. "[T]he defendant must overcome
the presumption that, under the circumstances, the challenged action might
be considered sound trial strategy." Id. at 689 (citation omitted).
"A criminal attorney has the duty to investigate, but the scope of investigation
is governed by a reasonableness standard." Mitchell v. Kemp, 762
F.2d 886, 888 (11th Cir. 1985). "[C]ounsels duty to investigate
depends critically on the information furnished by the defendant and his
family." Curtis, 44 MJ at 121.
If there is compelling evidence of mitigation
that, for no valid reason, an attorney failed to investigate, an 8th
Amendment or a 6th Amendment claim may lie. See May
v. Collins, 904 F.2d 228 (5th Cir. 1990); Jones v. Thigpen,
788 F.2d 1101 (5th Cir. 1986); and Blake v. Kemp, 758
F.2d 523 (11th Cir. 1985). However, a tactical decision to forgo
introducing mitigating evidence will not support a claim. May v. Collins,
supra
(8th Amendment); Middleton v. Dugger, 849 F.2d 491, 493-4
(11th Cir. 1988)(6th Amendment).
The Supreme Court in Strickland warned
that it is "tempting to second-guess" a lawyer's performance, but that
a courts assessment of an ineffectiveness claim should try to "eliminate
the distorting effects of hindsight." 466 U.S. at 689. As the Supreme Court
stated in Burger:

[Defense counsel] could well have made a
more thorough investigation than he did.
Nevertheless, in considering claims of
ineffective assistance of counsel, "[w]e
address not what is prudent or appropriate,
but only what is constitutionally com-
pelled." ... We have decided that "strategic
choices made after less than complete in-
vestigation are reasonable precisely to the
extent that reasonable professional judgments
support the limitations on investigation.

483 U.S. at 794, quoting Cronic, 466 U.S.
at 665 n.38, and Strickland, 466 U.S. at 690-691.
Strickland was a capital case involving
some of the same allegations as here, that is, ineffectiveness in failure
to investigate and produce mitigating evidence at the penalty stage. Strickland's
defense counsel did not produce pre-sentencing evidence because "his conversations
with his client gave no indication that [Strickland] had psychological
problems." 466 U.S. at 673. The Court found that there was not a violation
of the Strickland two-pronged test. Id. at 700. The Court
did not, as the majority would, impose a more rigorous standard on the
conduct of defense counsel in death penalty cases.
The majority opinion criticizes defense counsel
for not meeting face-to-face with appellants character witnesses. ___
MJ (20). There is no requirement that defense counsel interview
witnesses in such a manner. Indeed, such a requirement would place an unreasonable
burden upon defense attorneys. It is entirely possible to acquire necessary
and relevant information from witnesses over the telephone. I know of no
case law suggesting that telephonic interviews are unacceptable methods
of communication, and the majority has not cited any.
Defense counsel in this case obtained the names
of potential witnesses from appellant, contacted those witnesses, and asked
those witnesses for information and names of other witnesses that might
be helpful. He then contacted those potential witnesses. During the sentencing
stage, seven witnesses from North Carolina testified for appellant. Additionally,
there was a stipulation of expected testimony of seven others who were
relatives and friends of appellant. These stipulations addressed appellant's
hometown, his childhood, and his background. Numerous exhibits were introduced
into evidence which favorably showed appellant's childhood background and
good character.
Counsel is not ineffective simply because he
or she relied on a less than complete psychiatric evaluation. State
v. Sireci, 502 So.2d 1221, 1223 (Fla. 1987). Further, the fact that
an accused recently has secured a more favorable expert opinion is an insufficient
basis for relief. Provenzano v. Dugger, 561 So.2d 541, 546 (Fla.
1990). "Disagreements among professionals do not per se show
incompetence." United States v. Loving, 41 MJ 213, 241 (1994). "[D]efense
counsel is not obligated to shop for an expert witness who might provide
more favorable testimony." State v. Kenley, 952 S.W.2d 250, 268
(Mo. 1997)(holding that, in light of aggravating evidence, there was no
reasonable probability the sentence would be different).
In Riley v. State, 878 P.2d 272 (1994),
the Supreme Court of Nevada held that a defense attorney was not ineffective
for failing to hire an expert to examine the appellants mental and physical
health, where a pretrial evaluation report gave no indication that the
appellant had a mental or physical illness, but only noted the appellants
extensive drug use. The court said, "As a result, we hold that it was not
ineffective assistance of counsel, without stronger indications, for [defense
counsel] to have failed to order a psychiatric evaluation of [the appellant]
based on the information contained in the pretrial evaluation." Id.
at 280.
Appellant underwent a pretrial RCM 706 sanity
board hearing. The sanity board found that he was competent to stand trial
and was sane when he murdered his son, stepson, and ex-wife. The sanity
board consisted of a psychiatrist and a psychologist, who concluded that
appellant was able to "appreciate the nature and quality or wrongfulness
of his conduct" and did not have "a severe mental disease or defect" at
the time of the murders.
Neither appellant nor any of his character
witnesses informed defense counsel that appellant or his mother had been
victims of abuse. Thus, appellants defense attorneys had no reason to
investigate further appellants childhood background or his mental health
for either the findings or sentencing portion of the trial. Their failure
to investigate further these claims was reasonable, based upon the information
provided to them by appellant and his witnesses.
Even if defense counsel were ineffective during
findings or sentencing for failing to investigate appellants recently
discovered childhood abuse and mental health evidence, there was no prejudice.
In Buenoano v. Dugger, 559 So.2d 1116, 1119 (1990), the Florida
Supreme Court held that appellants mental health and childhood abuse "in
no way would be sufficient to overcome the overwhelming evidence presented
against her at trial." See also People v. Lear, 677
N.E.2d 895, 902 (Ill. 1997) (appellant not prejudiced by counsels failure
to present evidence of psychological and physiological defects because
aggravating evidence was overwhelming and mitigation evidence was weak);
Johnston
v. Dugger, 583 So.2d 657 (Fla. 1991)(defense attorney was not ineffective
for failing to pursue insanity defense where the court found the pretrial
competency examination of appellant was adequate).
Given the strong evidence of appellants sanity,
it is unlikely that the post-trial psychiatric report would have convinced
the members to acquit him, even if it had been presented to them. SeeCoogan
v. McCaughtry, 958 F.2d 793, 795 (7th Cir. 1992) (appellant
did not demonstrate that new psychiatric evidence "would probably result
in an acquittal"); United States v. Massa, 804 F.2d 1020, 1022 (8th
Cir. 1986)(jury was unlikely to acquit appellant based on new psychiatric
report). Thus, even if defense counsel were ineffective in failing to investigate
further appellants mental health, there was no prejudice on findings.
Evidence of appellants guilt for these atrocious crimes was overwhelming.
Even if he had presented evidence that he was abused as a child and suffers
from a mental illness, it is hard to find any prejudice to appellant.

CONCLUSION
The majoritys decision lowers an appellants
burden in ineffective assistance of counsel cases in which the death penalty
has been imposed. Regardless of whether trial defense counsels conduct
was below an objective standard of reasonableness during some phase of
appellants trial, there was no prejudice to appellant given the overwhelming
evidence of his guilt. Even absent these alleged errors, the members would
have found appellant guilty of the capital offenses and sentenced him to
death. I would affirm appellants conviction and sentence.
For the above reasons, I dissent.
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