                  IN THE UNITED STATES AIR FORCE
                    COURT OF CRIMINAL APPEALS




                                 UNITED STATES
                                    Appellee,

                                             v.

                              Senior Airman (E-4)
                            ANDREW P. WITT, USAF
                                   Appellant.



                      A.F. Ct. Crim. App. No. ACM 36785
                                     (recon)

                              Before the Court En Banc




                         OPINION OF THE COURT
                        UPON RECONSIDERATION




                                        JUDGES



HELGET, HARNEY, SARAGOSA, MARKSTEINER, MITCHELL, and PELOQUIN



          This opinion is subject to editorial correction before final publication.




                                             1                                        ACM 36785 (recon)
                                                              Table of Contents
I. Background............................................................................................................................................... 5
II. Findings Issues ........................................................................................................................................ 8
   A. Qualifications of Trial Defense Counsel ............................................................................................. 8
   B. Challenge for Cause of Colonel DH.................................................................................................. 10
   C. Unlawful Command Influence .......................................................................................................... 13
   D. Findings Argument ........................................................................................................................... 15
   E. Admission of Crime Scene and Autopsy Photographs ...................................................................... 18
   F. Findings Instructions ......................................................................................................................... 19
   G. Impeachment of Staff Sergeant PG ................................................................................................... 21
III. Assistance of Counsel .......................................................................................................................... 26
   A. Counsel’s Performance in Findings .................................................................................................. 26
       1. Military Judge’s Sentencing Comments During Voir Dire............................................................ 27
       2. Trial Counsel’s Voir Dire Questions.............................................................................................. 28
       3. Peremptory Challenge of Colonel DC ........................................................................................... 28
       4. Courtroom Security ........................................................................................................................ 29
       5. Promises Made During Opening Statement ................................................................................... 30
       6. Witnesses’ Sequestration ............................................................................................................... 33
       7. Mental Health Issues ...................................................................................................................... 35
   B. Counsel’s Performance in Sentencing............................................................................................... 37
       1. Motorcycle Accident Injury ........................................................................................................... 40
       2. Mental Health Records of the Appellant’s Mother ........................................................................ 52
       3. Evidence of Remorse ..................................................................................................................... 68
       4. Failure to Offer Evidence of Future Violence Risk ....................................................................... 75
       5. Failure to Offer Testimony of SP and KP ...................................................................................... 75
       6. Failure to Object to Inadmissible Victim Impact Evidence and Argument, and Failure to Request
       Appropriate Curative Instruction ........................................................................................................ 76
IV. Additional Sentencing Issues................................................................................................................ 80
   A. Sentencing Argument ........................................................................................................................ 80
   B. Military Judge’s Instructions ............................................................................................................. 81
       1. Voir Dire Reference to Sentencing Procedure ............................................................................... 81




                                                                             2                                                 ACM 36785 (recon)
       2. Presentencing Instructions on Voting Procedure ........................................................................... 83
       3. Presentencing Instruction on Members’ Duty – Community Expectations ................................... 85
   C. Other Impermissible Trial Counsel Sentencing Arguments .............................................................. 92
   D. Erroneously Admitted Victim Impact Testimony ............................................................................. 93
V. Cumulative Error................................................................................................................................... 94
VI. Post-Trial Issues................................................................................................................................... 94
   A. Post-Trial Challenge of Military Judge ............................................................................................. 94
   B. Assistant Trial Counsel’s Authentication of the Record ................................................................... 95
   C. Post-Trial Delay ................................................................................................................................ 95
VII. Assignments of Error Regarding New Convening Authority Action................................................... 96
VIII. Systemic Issues ................................................................................................................................ 105
IX. Summary Assignments of Error.......................................................................................................... 112
X. Proportionality Review........................................................................................................................ 113
XI. Conclusion.......................................................................................................................................... 113




                                                                            3                                                ACM 36785 (recon)
    UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS



                                  UNITED STATES

                                              v.

                       Senior Airman ANDREW P. WITT
                             United States Air Force

                                       ACM 36785
                                        (recon)

                                      30 June 2014

                                     ____ M.J. ____

   Sentence adjudged 13 October 2005 by GCM convened at Bibb County
   Courthouse, Georgia. Military Judge: W. Thomas Cumbie.

   Approved Sentence: To be put to death.

   Appellate Counsel for the Appellant: Dwight H. Sullivan, Esquire (argued);
   Major Daniel E. Schoeni (argued); Colonel Nikki A. Hall; Lieutenant
   Colonel Shannon A. Bennett; Major Michael A. Burnat; Major Timothy M.
   Cox; Major Michael S. Kerr; Major Matthew T. King; Major Nicholas W.
   McCue; and Captain Tiaundra D. Sorrell.

   Appellate Counsel for the United States: Major Charles G. Warren
   (argued); Gerald R. Bruce, Esquire (argued); Colonel Don M. Christensen;
   Colonel Douglas P. Cordova; Colonel Martin J. Hindel; Colonel Matthew S.
   Ward; Lieutenant Colonel Linell A. Letendre; Lieutenant Colonel Jeremy S.
   Weber; Lieutenant Colonel Nurit Anderson; Major Deanna Daly; Major
   Jason M. Kellhofer; Major G. Matt Osborn; Major Donna S. Rueppell;
   Major Roberto Ramirez; and Major Ryan N. Hoback.

                                        EN BANC

HELGET, HARNEY, SARAGOSA, MARKSTEINER, MITCHELL, and PELOQUIN
                     Appellate Military Judges

                             OPINION OF THE COURT
                            UPON RECONSIDERATION

           This opinion is subject to editorial correction before final publication.




                                              4                                        ACM 36785 (recon)
MARKSTEINER, S.J., delivered the opinion of the Court, in which HELGET, C.J., 1 and
HARNEY, S.J., join.        MITCHELL, J., filed an opinion concurring dubitante.
SARAGOSA, J., with whom PELOQUIN, J., 2 joins, filed an opinion concurring in part
and dissenting in part. PELOQUIN, J., filed an opinion concurring in part and dissenting
in part.

MARKSTEINER, Senior Judge: 3

       The appellant was tried by a general court-martial composed of twelve officers,
between April and October 2005. He was found guilty of the premeditated murders of
Senior Airman (SrA) AS and his wife JS, as well as the attempted premeditated murder
of (then) SrA JK, in violation of Articles 118 and 80, UCMJ, 10 U.S.C. §§ 918, 880,
respectively. On 13 October 2005, the members sentenced the appellant to death. The
convening authority approved the findings and sentence as adjudged.

       On appeal, the appellant has raised 89 issues which relate to the findings of guilty,
the sentence, post-trial processing, and other miscellaneous systemic errors. In a
previous decision, this Court affirmed the findings but set aside the sentence, ordering the
record of trial to be returned to The Judge Advocate General for remand to the convening
authority. United States v. Witt, 72 M.J. 727 (A.F. Ct. Crim. App. 2013). Following our
decision, the Government motioned the Court, inter alia, for reconsideration and
reconsideration en banc, opposed by the appellant. On 21 October 2013, we granted the
Government’s motion, vacating our previous opinion, and on 28 January 2014 heard oral
argument on a specified issue relating to three of the appellant’s ineffective assistance of
counsel claims.

       For the reasons set forth below, we now affirm the approved findings and
sentence.

                                               I. Background

      On the evening of 4 July 2004, SrA AS and his wife, JS, arrived at the on-base
home of SrA JK and his wife to celebrate Independence Day. SrA JK’s wife went to bed
1
  The Judge Advocate General of the Air Force designated Senior Judge Helget as Chief Appellate Military Judge
for United States v. Witt, ACM 36785 (recon), via memorandum dated 18 October 2013, due to the recusal of Chief
Judge Roan.
2
  Judge Peloquin was a member of the Court when it heard oral argument en banc and participated in the decision
before his retirement on 1 June 2014.
3
  Although it is customary for the opinion of the Court to appear after the name of a single author judge, we note
that significant portions of this opinion—in particular Parts I, II.D–G, III.A, IV.A–B, VI, and IX—represent the
original authorship of Judge Saragosa, who wrote the Court’s majority opinion when it first considered this case.
See United States v. Witt, 72 M.J. 727 (A.F. Ct. Crim. App. 2013). As much of that opinion was left unchanged by
our reconsideration, it was unnecessary to refashion those sections previously authored by Judge Saragosa.




                                                       5                                   ACM 36785 (recon)
at approximately 0100 hours on 5 July 2004. At some point in the morning hours, JS told
her husband and SrA JK that on the evening of 3 July 2004, when the appellant was a
guest at her home, the appellant had made a sexual advance toward her. This disclosure
made her husband angry, so he called and confronted the appellant at 0137 hours. He
followed up with two additional completed phone calls to the appellant and nine
additional unanswered calls. The last call originating from either SrA AS or SrA JK was
at 0212 hours. At 0221, the appellant called SrA AS, and they spoke for 33 minutes.

        At some point during the phone call exchanges, the appellant changed into his
battle dress uniform (BDU). He retrieved a knife from his closet, placed the knife in the
trunk of his car, and drove onto Robins Air Force Base, Georgia, arriving at
approximately 0315. He would later write in a statement to the Air Force Office of
Special Investigations (AFOSI) that he wore his BDU because he “wanted to observe
them unseen to see what was going on.” He also told his roommate he wore the BDU so
“they wouldn’t see [him].” He further told his roommate that SrA AS had threatened to
get him into trouble by disclosing his advance toward JS and an affair he was having. In
his written statement, the appellant stated that SrA AS was yelling at him during the
phone calls and threatened his career.

       After arriving on base, the appellant parked his car in base housing about 50 yards
from SrA JK’s residence. From there, he went to the residence and observed SrA JK,
SrA AS, and JS from behind the bushes and the trees. There were additional heated
phone calls between the appellant and SrA JK after the appellant arrived on base. There
were also phone calls in which the appellant was apologetic or told SrA JK that he and
SrA AS “should come over here and kick [his] ass.” SrA JK responded with words to the
effect of, “You need your ass kicked.”

       At approximately 0400 hours, SrA JK, SrA AS, and JS drove from SrA JK’s
house to SrA AS’s house, approximately 0.2 miles away and still in base housing. The
appellant watched the three get into a vehicle and drive away. He then traveled to
SrA AS’s house by foot. The trio was already inside the home when the appellant let
himself in and found SrA AS in the kitchen. SrA AS yelled at the appellant to get out of
his house, and a scuffle ensued between them. SrA JK came in and tried to get the
appellant off of SrA AS by putting him in a headlock. The appellant took out his knife
and stabbed SrA JK in the chest. As SrA JK backed up, JS screamed, “Oh my God,
you’re bleeding!” The appellant stabbed SrA AS, who “fell to the floor,” as one of the
wounds rendered SrA AS paralyzed from the upper waist down. JS fled to a bedroom
where she locked herself in. SrA JK attempted to run out of the house through a kitchen
door, but as he struggled with a deadbolt the appellant stabbed him again. SrA JK was
eventually able to get outside, where he ran for “the first house [he] could see that had a
light on.” SrA JK ultimately reached the neighbor’s home, bleeding profusely, and the
neighbor called for help.




                                            6                            ACM 36785 (recon)
       Not wanting “to leave any evidence,” the appellant returned to SrA AS’s house
and found SrA AS on the phone with 911. He went to the bedroom where JS had locked
herself in and broke through the door. He found JS in a fetal position and, “scared to
leave a witness,” he broke her arm and stabbed her multiple times. He then returned to
SrA AS, stabbing him in the ribs and the heart.

       During the AFOSI’s investigation, the appellant led the special agents to the
location where he disposed of the knife he used in the crimes, as well as his BDU cap and
boots. DNA analysis revealed blood stains from the appellant’s BDU blouse, BDU pants,
BDU hat, and boots matched the DNA profile of JS. Trace evidence in the form of red
fibers were recovered from the knife. Microscopic analysis showed the fibers were
consistent with the characteristics and color of the fibers in the shirts worn by SrA AS
and SrA JK, who were both wearing red shirts on the night of 4 July 2004.

       SrA JK was stabbed four times and sustained a laceration to his arm. Three of
these stab wounds were potentially life-threatening. He suffered a stab wound to the
chest that punctured his left lung and nearly went through his entire chest cavity. He also
suffered stab wounds to his back—one to the splenic hilum that cut the splenic artery and
a second to the kidney. He underwent emergency surgery and was hospitalized for 15
days. He also underwent four to five follow-up surgeries, spending over 30 cumulative
days in the hospital.

        SrA AS suffered three stab wounds. The first of these wounds was to the left side
of his back. The knife entered the right chest cavity, penetrated his diaphragm and went
into his liver. A second wound cut through SrA AS’s backbone at the thoracic vertebrae
and severed his spinal cord. This wound left him instantly paralyzed from his upper
waist down. While these two wounds were medically significant, they were not lethal or
life-threatening. The final stab wound was to his chest, piercing the front and back of the
left ventricle of his heart. This wound was immediately lethal and delivered after the
previously described paralyzing wound.

        JS was stabbed a total of five times, four of which were to her back. One of these
wounds was to her left chest cavity, through her diaphragm, and into her spleen, causing
her left lung to collapse. A second wound entered the side of her body, going into the
abdomen and spleen. A third wound was to her lower back, entering into her kidney and
liver. The fourth wound was to the right edge of her back, entering her right chest wall
and collapsing her right lung. She also suffered an incised wound to the back, cutting
into her sixth, seventh, and eighth ribs. Her final stab wound was located beneath her
right armpit, piercing the soft tissue of her breast and entering her chest cavity.

       The court-martial convicted the appellant of all the charges and specifications; the




                                            7                            ACM 36785 (recon)
findings of guilty of the capital offenses, the premeditated murders of SrA AS and JS,
were announced as unanimous. A sentencing hearing was conducted pursuant to Rule for
Courts-Martial (R.C.M.) 1004, after which the court-martial, by unanimous vote,
sentenced the appellant to be put to death. 4

    Additional relevant facts are set out below in connection with specific issues.

                                               II. Findings Issues

       We begin our analysis by addressing the various issues the appellant has raised
related to the findings portion of the case.

                              A. Qualifications of Trial Defense Counsel

       As a preliminary issue, the appellant argues that his three trial defense counsel
were not qualified to represent him because they did not satisfy the American Bar
Association Guidelines for the Appointment and Performance of Counsel in Death
Penalty Cases (rev. ed. 2003), reprinted in 31 Hofstra L. Rev. 913 (2003) [hereinafter
“ABA Guidelines”]. Relying on various policy memoranda to support his argument, the
appellant asserts that the ABA Guidelines are binding on military and civilian trial
defense counsel in Air Force courts. In 2005, The Judge Advocate General (TJAG) of
the Air Force issued TJAG Policy Memorandum TJS-3, Air Force Standards for
Criminal Justice (AFSCJ) (15 May 2005). That memorandum states, in part, that the
AFSCJ “were adapted from the American Bar Association Standards for Criminal Justice
[hereinafter “ABA Standards”].” Id. at ¶ 2. Because paragraph 4-1.2(c) of the
ABA Standards incorporates the ABA Guidelines, 5 the appellant argues that the
ABA Guidelines are binding upon Air Force practitioners through the AFSCJ. We
disagree.

       We review questions of regulatory construction de novo. United States v. Estrada,
69 M.J. 45, 47 (C.A.A.F. 2010) (citing United States v. McCollum, 58 M.J. 323, 340
(C.A.A.F. 2003); United States v. Phillips, 39 C.M.R. 230, 234 (C.M.A. 1969)). When
interpreting regulations, we will apply normal rules of statutory construction. Id. (citing
United States v. Custis, 65 M.J. 366, 370 (C.A.A.F. 2007)). In our view, the
ABA Standards, including those that refer to the ABA Guidelines, are only recommended

4
   A sentence of death includes a dishonorable discharge and, as a necessary incident of the sentence, confinement.
Rule for Courts-Martial (R.C.M.) 1004(e). By operation of Article 58b, UCMJ, 10 U.S.C. § 858b, such a sentence
also results in forfeiture of pay and allowances during that confinement.
5
   Paragraph 4-1.2(c) of the American Bar Association Standards for Criminal Justice states, in part: “Since the
death penalty differs from other criminal penalties in its finality, defense counsel in a capital case should respond to
this difference by making extraordinary efforts on behalf of the accused. Defense counsel should comply with the
[American Bar Association] Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases.”




                                                          8                                     ACM 36785 (recon)
guidelines and not mandatory rules. Here, the ABA Standards state that they are
“intended to be used as a guide to professional conduct and performance” and not as
criteria for the “judicial evaluation of alleged misconduct of defense counsel to determine
the validity of a conviction.” ABA Standards, ¶ 4-1.1. Moreover, the ABA Standards
state only that defense counsel “should comply with the ABA Guidelines.”
ABA Standards, ¶ 4-1.2(c). The AFSCJ also provides a means for resolving any conflict
between the AFSCJ and any standard or guideline inconsistent with legal precedent:
“[I]n the event of conflict, the [UCMJ, Manual for Courts–Martial, United States
 (MCM)], Air Force Instructions (AFI), the Air Force Rules of Professional Conduct
 [(AFRPC)], case law, and the Air Force Uniform Code of Judicial Conduct (AFUCJC)
will control.” See TJS-3, Attachment 1 (15 October 2002).

        We also note that our superior court has declined to mandate compliance with the
ABA Guidelines. United States v. Loving, 41 M.J. 213, 300 (C.A.A.F. 1994). That Court
has also noted that limited experience does not raise a presumption of ineffectiveness.
Id. (citing United States v. Cronic, 466 U.S. 648, 665 (1984)). See also United States v.
Murphy, 50 M.J. 4, 9-10 (C.A.A.F. 1998) (citation omitted). Instead, the “quality of legal
representation” is determined under the standards set by Strickland v. Washington,
466 U.S. 668 (1984), as analyzed below.

       More practically, the absence of enumerated qualifications does not equate to
deficient performance in a particular case. This is not a case where trial defense counsel
“put on a halfhearted mitigation case” or “abandoned their investigation of [appellant’s]
background after having acquired only rudimentary knowledge of his history from a
narrow set of sources.” See Wiggins v. Smith, 539 U.S. 510, 526 (2003) (holding trial
defense counsel rendered constitutionally deficient performance by failing to investigate
petitioner’s life history beyond the presentence investigation report, notwithstanding
availability of funds to conduct thorough social history investigation). Similarly,
counsel’s performance in the case at bar does not resemble the conduct of counsel in
cases where the courts have specifically recognized pronounced shortcomings in attorney
performance. See Sears v. Upton, 561 U.S. 945 (2010) (trial defense counsel spent a
single day on sentence preparation and failed to discover voluminous non-speculative
information about severe privation and mental illness); Porter v. McCollum, 558 U.S. 30
(2009) (trial defense counsel failed to obtain any school, medical, or military service
records, and to interview any members of Porter’s family); Rompilla v. Beard,
545 U.S. 374 (2005) (trial defense counsel failed to retrieve and examine an easily
obtainable file pertaining to appellant’s prior conviction, which he was clearly on notice
the prosecutor intended to reference); Williams v. Taylor, 529 U.S. 362 (2000) (trial
defense counsel’s one-week preparation for sentencing case failed to uncover extensive
records of a “nightmarish” childhood).

       The appellant was represented by three counsel in this case:        two appointed




                                            9                            ACM 36785 (recon)
military counsel and a civilian of his own selection. His civilian counsel, FS, who was
lead counsel on the case, was a retired judge advocate. Though FS had no capital
experience, he did have experience defending many complex military cases. At the time
of trial, he had been practicing military law for over twenty-five years, having spent most
of that time as a defense counsel working at both the trial and appellate levels. He had
represented hundreds of military members at trial and on appeal, and taught military law
for four years at the United States Air Force Academy. He also served on the adjunct
faculty at the Air Force Judge Advocate General’s School, where he taught basic and
advanced trial advocacy.

        One of the appellant’s two military counsel, Captain (Capt) DR, was, at the time
of trial, a Circuit Defense Counsel. A graduate of Cornell Law School and licensed in
Massachusetts, Capt DR served as the Chief of Military Justice at Rhein-Main Air Base,
Germany, the Area Defense Counsel (ADC) at Kunsan Air Base, Korea, and was newly
appointed as a Circuit Defense Counsel (CDC) roughly the month before the appellant’s
crimes. By the start of the appellant’s trial, Capt DR had defended thirteen non-capital
cases in his capacity as a CDC. He attended three separate advocacy courses between
Spring 2003 and Spring 2004, plus an additional three-day course sponsored by the
National Association of Criminal Defense Lawyers entitled “Making the Case for Life.”
The focus of this law course, which Capt DR attended in Fall 2004, was on jury selection,
developing mitigation evidence, and working mitigation into the findings case. In
addition to his formal training, he visited the Navy-Marine Corps Death Penalty Resource
Center and reviewed a substantial number of files, which at the time consisted mostly of
records of trial from the various Navy-Marine Corps death penalty cases as well as the
appellant briefs that had been filed in those cases. Further, he regularly communicated
with the Navy appellate judge advocate who was assigned to the Navy-Marine Corps
Death Penalty Resources Center as he and the trial defense team worked the case.

       FS and Capt DR worked with the base ADC, who was admittedly very
inexperienced in defense work at the time. In short order, they had retained a mitigation
expert and a highly-recommended expert forensic psychologist to augment their trial
defense team. Although it is true that none of the appellant’s trial defense counsel had
ever defended a capital case prior to representing the appellant at trial, their combined
qualifications and demonstrated performance at trial do not reveal them to have been per
se unqualified or otherwise substantively unqualified to represent the appellant, as our
dissenting colleague argues.

      Accordingly, we find this alleged error to be without merit.

                         B. Challenge for Cause of Colonel DH

      The appellant argues that the military judge abused his discretion by denying the




                                            10                            ACM 36785 (recon)
defense challenge for cause against Colonel (Col) DH. The appellant asserts that the
military judge (1) failed to grant the challenge on implied bias and (2) failed to refer to
the liberal grant mandate in his ruling. We disagree on both counts.

       Rule for Courts-Martial 912 includes challenges based upon the concepts of both
actual and implied bias. United States v. Moreno, 63 M.J. 129, 133 (C.A.A.F. 2006)
(citing United States v. Napoleon, 46 M.J. 279, 283 (C.A.A.F. 1997); United States v.
Minyard, 46 M.J. 229, 231 (C.A.A.F. 1997)). The issue sub judice concerns implied bias.
Rule for Courts-Martial 912(f)(1)(N) provides that a member shall be excused for cause
whenever it appears that the member “[s]hould not sit as a member in the interest of
having the court-martial free from substantial doubt as to legality, fairness, and
impartiality.”

       The test for implied bias is objective, viewed through the eyes of the public, and
focuses on the appearance of fairness in the military justice system. United States v.
Leonard, 63 M.J. 398, 402 (C.A.A.F. 2006) (citations omitted); Moreno, 63 M.J. at 134;
United States v. Rome, 47 M.J. 467, 469 (C.A.A.F. 1998); United States v. Daulton,
45 M.J. 212, 217 (C.A.A.F. 1996). If the public perceives that an accused received less
than a court composed of fair, impartial, and equal members, our superior court has not
hesitated to set aside the affected findings and/or sentence. See Leonard, 63 M.J. at 403;
Moreno, 63 M.J. at 135; United States v. Wiesen, 56 M.J. 172, 176-77 (C.A.A.F. 2001).
However, implied bias should be relied upon sparingly. United States v. Strand,
59 M.J. 455, 458 (C.A.A.F. 2004).

       We review rulings on challenges for implied bias under a standard that is less
deferential than abuse of discretion, but more deferential than de novo review. Moreno,
63 M.J. at 134; United States v. Armstrong, 54 M.J. 51, 54 (C.A.A.F. 2000); Napoleon,
46 M.J. at 283. Military judges are required to follow the liberal-grant mandate in ruling
on challenges for cause made by an accused. Moreno, 63 M.J. at 134 (citing
United States v. James, 61 M.J. 132, 139 (C.A.A.F. 2005)); United States v. Downing,
56 M.J. 419, 422 (C.A.A.F. 2002); United States v. White, 36 M.J. 284, 287 (C.M.A.
1993). “[I]n the absence of actual bias, where a military judge considers a challenge
based on implied bias, recognizes his duty to liberally grant defense challenges, and
places his reasoning on the record, instances in which the military judge’s exercise of
discretion will be reversed will indeed be rare.” United States v. Clay, 64 M.J. 274, 277
(C.A.A.F. 2007).

       The defense challenged Col DH based upon his relationships with the convening
authority and the staff judge advocate (SJA), Col JR. During individual voir dire,
Col DH stated that his relationship with the convening authority consisted of attending
church and Sunday school together and having an occasional lunch together after church.
Col DH stated he had never been to the convening authority’s house, and that the




                                            11                            ACM 36785 (recon)
convening authority had been to his house on two occasions: once for a birthday
celebration and the other to offer condolences after Col DH had been injured.

       Col DH also stated he knew the SJA, Col JR, and that he and Col JR interacted
together at social activities and at the gym: “We basically only see each other in the
locker room. We do not work out together. We see each other in the locker room, we
have normal conversation for literally a matter of minutes and that’s the extent of our
normal relationship.” He also stated that he and Col JR had never been to each other’s
house for dinner, but he had on two occasions sought legal advice from Col JR, though he
interacted mostly with Col JR’s subordinate attorneys.

       We find that the military judge did not abuse his discretion in denying the
challenge for cause against Col DH and that he applied the correct legal standard. Prior
to issuing his ruling on all the challenges for cause, both for the Government and the
defense, the military judge set forth legal standards governing bias and the liberal-grant
mandate:

      In making my determination on the challenges for cause, there are two
      potential bias standards that I’m required to look at. One is actual bias,
      which involves an allegation that the member’s bias will not yield to the
      military judge’s instructions, and that is a subjective determination on my
      part. The second test is implied bias, which indicates would a reasonable
      member of the public have substantial doubt as to the legality, fairness, and
      impartiality of the proceedings if the challenge for cause were not granted,
      and again, an objective test of the public—through the eyes of the public.
      The court is also mindful of our appellate court’s direction that challenges
      for cause be granted liberally.

        In his ruling denying the challenge for cause against Col DH, the military judge
stated the following:

      As to [Col DH], the defense challenge for cause appears to be based
      primarily on the implied bias standard based on his relationships with the
      convening authority and/or [Col JR]. In that regard, the defense challenge
      for cause is denied. While [Col DH] attends Sunday school and church
      with the convening authority, he is not a close friend. Further, he has not
      discussed the case with the convening authority, nor has the convening
      authority mentioned the case to him. The relationship in this case is much
      less close than many of the other panel members. The fact that [Col DH]
      sees [Col JR] in the gym—or [Col DH] sees [Col JR] in the gym but does
      not work out with him, nor have they discussed the case. Neither of these
      relationships arise to the level of actual or implied bias. His answers and




                                            12                           ACM 36785 (recon)
       the answers of [another court member] in voir dire gave me no indication
       that they would be unable to give fair and balanced consideration to all of
       the evidence presented by both sides and clearly indicated that they could
       follow my instructions.

       Viewing the ruling through the eyes of the public and focusing on the appearance
of fairness in the military justice system, we also find that the military judge did not err.
He considered the challenge based upon implied bias, recognized his duty to liberally
grant defense challenges, and placed his rationale on the record. Under the “totality of
the circumstances particular to [this] case,” we find no reason to disturb his ruling.
United States v. Terry, 64 M.J. 295, 302 (C.A.A.F. 2007) (citing Strand, 59 M.J. at 456).
See also United States v. Bagstad, 68 M.J. 460, 463 (C.A.A.F. 2010).

                            C. Unlawful Command Influence

       The appellant argues that Col JR exercised Unlawful Command Influence (UCI)
throughout the court-martial, based on his role as the SJA for the convening authority.
He alleges three ways the actions of the SJA amounted to UCI: (1) the SJA attended
most days of the court-martial; (2) the SJA sat in the immediate vicinity of the victims’
families and the prosecution’s paralegals; and (3) the SJA engaged in communications
with the prosecutors during the court-martial proceedings. We find no UCI.

        We review allegations of UCI de novo. United States v. Wallace, 39 M.J. 284,
286 (C.M.A. 1994). Article 37(a), UCMJ, 10 U.S.C. § 837(a), states in part, “No person
subject to this chapter may attempt to coerce or, by any unauthorized means, influence
the action of a court-martial or any other military tribunal or any member thereof, in
reaching the findings or sentence in any case . . . .” The appellant has the initial burden
of raising UCI. United States v. Stombaugh, 40 M.J. 208, 213 (C.M.A. 1994). Once the
issue of command influence is properly placed at issue, “no reviewing court may properly
affirm findings and sentence unless [the court] is persuaded beyond a reasonable doubt
that the findings and sentence have not been affected by the command influence.”
United States v. Thomas, 22 M.J. 388, 394 (C.M.A. 1986). At the appellate level, we
evaluate UCI in the context of a completed trial using the following factors: “[T]he
defense must (1) show facts which, if true, constitute [UCI]; (2) show that the
proceedings were unfair; and (3) show that [UCI] was the cause of the unfairness.”
United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 2003) (citing Stombaugh, 40 M.J. at
213). See also United States v. Simpson, 58 M.J. 368, 374 (C.A.A.F. 2003);
United States v. Reynolds, 40 M.J. 198, 202 (C.M.A. 1994).

       Both the appellant and the Government submitted affidavits addressing this issue.
After reviewing the record, to include these affidavits, we find the SJA did not exert UCI.




                                             13                            ACM 36785 (recon)
       With respect to Col JR’s presence at the court-martial, the record merely shows
that he attended the trial but is silent on how his presence created actual or apparent UCI.
In his post-trial affidavit, Col JR states that he “attended most days of the trial.” He
further states that “Public Affairs asked that I be the spokesperson to the media in
attendance to answer their questions and provide sound bites.” Other trial participants,
however, only recall Col JR attending portions of the trial. For example, the lead
prosecutor, then-Major VS, recalls that Col JR “attended portions of voir dire, opening
statement, maybe a day or so of testimony, closing argument, and sentencing argument.”
This is corroborated by assistant trial counsel, Capt SW, who states in his affidavit,
“[Col JR] did attend portions of the trial, but I do not believe it was on a regular basis.”
Affidavits from the appellant affirm that Col JR attended the court-martial but shed no
light on how his presence created UCI. The defense paralegal states, “I recall [Col JR]
attending portions of [the appellant’s] court-martial.” Likewise, another affiant states
that Col JR would “make an appearance” at the courthouse but would “not always stay
the entire day.”

       With respect to Col JR sitting near the victims’ families when he attended the
court-martial, the record convinces us that where he sat was a matter of logistics, not a
conscious decision to deliberately align himself with the victims or the prosecution. The
record indicates that the courtroom gallery held between 175-200 persons. The
appellant’s family and friends sat on the side of the courtroom nearest the court members
and farthest from the courtroom entrance. The victims’ families and friends sat on the
side of the courtroom nearest the prosecution, as well as the main entrance and exit to the
courtroom, and typically sat in the second and third rows. If someone entered the
courtroom during a session, as did Col JR, they would “naturally gravitate” towards the
seats nearest the entrance and exit to the courtroom, which happened to be closest to the
prosecution and the victims’ families. We find no actual or apparent UCI stemming from
where Col JR sat during the court-martial.

       Finally, with respect to Col JR communicating with the prosecution during the
court-martial, we also find no actual or apparent UCI. The record demonstrates that
Col JR sometimes, but not often, spoke to both the prosecution and trial defense counsel
during recesses in the court-martial and did so outside the presence of the members.
Col JR characterized the conversations as “light in nature, but when official would
usually deal with the logistics of the proceeding.” He periodically sent updates to the
convening authority but only asked assistant trial counsel for information on one
occasion. The lead prosecutor also stated that it is “simply inaccurate” that Col JR sent
notes to the prosecution or frequently gave them trial advice. He notes that “[Col JR]
gave us remarkably little advice on the course of the trial. He was hands off on the
strategy decisions, list of witnesses, selection of exhibits, and the like. He left those
decisions completely in the hands of the trial team.”




                                            14                            ACM 36785 (recon)
       There must be more than “[command influence] in the air” to justify action by an
appellate court. United States v. Allen, 33 M.J. 209, 212 (C.M.A. 1991) (alteration in
original). The appellant has failed to show facts which, if true, constituted UCI by
Col JR. The facts instead only show that he attended the trial, sat near the victims’
families, and sometimes interacted with counsel for both sides. Having reviewed the
appellant’s claim, we also conclude that a fact-finding hearing is not necessary.
United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997).

                                 D. Findings Argument

      The appellant asserts trial counsel committed plain error during his closing
argument of the findings portion of the court-martial by “seeking vindication for family
members of the victims.” The appellant highlights several passages from the argument in
support of his position. First, trial counsel stated:

               As has become apparent, Mr. President, Members of the Court, evil
       does exist in this world. And it didn’t take your week here, when we were
       putting on our case, to learn that very fact. All you have to do is read a
       newspaper, watch a movie, or watch the news. The hard part for people to
       recognize is that evil can walk through anyone’s door at anytime, for the
       most senseless of reasons. That’s the part that people would struggle with,
       that’s the part that those families struggle with every day.

              At times, this argument may sound like it’s going to go long and I
       apologize for that, but I think they deserve to hear what happened that
       night, because what you’re going to find out is that the [G]overnment has to
       prove what you see on that screen, the specifications, beyond a reasonable
       doubt. But as many of your questions have already shown, you all have
       questions well beyond the elements.

Trial counsel further argued:

              And I’m going to tell you members, some of those things you will
       never know when you deliberate. You will guess, you will talk about, you
       will theorize about. And another thing you will do, besides just deal with
       whether or not these things happened, is you’re going to want to try to put
       what happened in the house, blow by blow, stab by stab and you already
       know you can’t; just from hearing the evidence here, you know you will not
       be able to, because that man killed two of the witnesses.

             He chased one of the witnesses out of the house, who, by all
       accounts—his doctor, himself, EMT and everybody—should have been




                                            15                           ACM 36785 (recon)
       dead. Evil exists, and for those families evil exists right here, he sits right
       here.

At a later point in the argument, trial counsel argued:

              The defense will suggest to you that adrenaline, adrenaline can cause
       this. And you heard from [Dr. BM] in the Stipulation of Testimony, we all
       have it. Members, I would suggest that getting up to give a closing
       argument in a case with all of the family members here watching can cause
       a rush of adrenaline. My memory feels fine.

In his closing remarks, trial counsel stated:

              When you go back and deliberate and you look at the evidence and
       the premeditation, it is so very obvious. Talk about the crime, go through
       the order of the crime, understand the order as best you can with the
       knowledge that you will never have all of your answers. We have struggled
       to give you as many as we can and the families as many as we can, but at
       the end of this go back and deliberate on the elements of premeditation and
       use your common sense and your knowledge of human nature and your
       understanding of the facts of this case. And take a reasonable doubt
       instruction that you’ve now heard and you apply this one that’s so obvious
       and so clear, while sad, and while tragic, and while difficult to comprehend
       a man like that in the Air Force. You know what he did. You know his
       purpose. You know his plan. You know his method. Now convict him of
       premeditated murder and attempted premeditated murder.

      Finally, trial counsel’s references to the victim’s family members in rebuttal
argument included:

       [T]hroughout this process we’ve tried to give you the facts. That does not
       just mean the facts that prove our case beyond a reasonable doubt. We
       gave you those facts because you need those for us, the [G]overnment, to
       satisfy our burden. We gave you others because you all have the same
       questions the families grapple with every day, every night.

       ....

             The prosecution agrees that justice is what we require. Premeditated
       murder is, by its nature, the hardest thing to understand. But do not
       cheapen it by finding passion where there’s none, by finding passion where
       you see planning, by finding passion where you see motive, by finding




                                                16                         ACM 36785 (recon)
       passion where you see opportunity, ruins what we have set up to protect our
       citizens. We do demand justice. Those families have waited 15 months for
       their day for their kids, because [SrA AS] and [JS] aren’t here to tell you
       they need justice. Your common sense tells you what happened to them.

        The standard of review for determining the propriety of counsel’s argument is
whether the statement is erroneous and materially prejudices substantial rights of the
accused. Article 59(a), UCMJ, 10 U.S.C. § 859(a); United States v. Baer, 53 M.J. 235,
237 (C.A.A.F. 2000). Failure to make a timely objection to matters raised in argument
constitutes waiver in the absence of plain error. United States v. Ramos, 42 M.J. 392, 397
(C.M.A. 1995). “To establish plain error, an appellant must satisfy a four-pronged test.
There must (1) be error (2) that is plain (3) that affects substantial rights of an accused.”
United States v. Roberson, 46 M.J. 826, 828 (A.F. Ct. Crim. App. 1997) (citing United
States v. Olano, 507 U.S. 725, 732 (1993)), aff’d, 48 M.J. 411 (C.A.A.F. 1997). “Once
these first three criteria are met, an appellate court may exercise its discretion to notice a
forfeited error only if (4) the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. In the case at hand, trial defense counsel did not
object to the passages of trial counsel’s arguments laid out above. As such, we embark
upon the plain error analysis by first asking if these remarks were error at all.

       “Argument must be limited to evidence of record and to the fair inferences that
can be drawn from that evidence.” United States v. Edmonds, 36 M.J. 791, 792
(A.C.M.R. 1993) (citing United States v. Nelson, 1 M.J. 235 (C.M.A. 1975)). It is
appropriate for trial counsel—who is charged with being a zealous advocate for the
Government—to argue the evidence of record, as well as all reasonable inferences fairly
derived from such evidence. Nelson, 1 M.J. at 239. However, arguments designed by
trial counsel to inflame the passions or prejudices of the court members are clearly
improper. United States v. Clifton, 15 M.J. 26, 30 (C.M.A. 1983).

       With respect to arguments pertaining to a victim or victim’s family, military courts
have long held that “Golden Rule” arguments asking the court members to place
themselves in the position of a near relative of the victim are improper. United States v.
Shamberger, 1 M.J. 377 (C.M.A. 1976) (trial counsel asked members to place themselves
in the position of rape victim’s husband, who was restrained and watched as his wife was
repeatedly raped); United States v. Wood, 40 C.M.R. 3 (C.M.A.1969) (trial counsel asked
members to sentence accused from the perspective that their own sons had been the
victims of indecent liberties by the accused); see also United States v. Teslim,
869 F.2d 316, 328 (7th Cir. 1989) (“A ‘Golden Rule’ appeal in which the jury is asked to
put itself in the plaintiff’s position ‘is universally recognized as improper because it
encourages the jury to depart from neutrality and to decide the case on the basis of
personal interest and bias rather than on the evidence.’” (citations omitted)).




                                             17                             ACM 36785 (recon)
        Nothing about the arguments posed by trial counsel in this case asked the
members to place themselves in the position of a near relative of the victims. Instead, the
arguments made reference to the presence of the victims’ family members throughout the
trial and their lingering questions about what happened the night of the murders. The
appellant argues these passages in trial counsel’s argument were presented with the
singular purpose of highlighting “the families and their pain.” We disagree.

        As a threshold matter, the argument by a trial counsel must be viewed within the
context of the entire court-martial. The focus of our inquiry should not be on words in
isolation but on the argument as “viewed in context.” United States v. Young,
470 U.S. 1, 16 (1985). See also Dunlop v. United States, 165 U.S. 486, 498 (1897) (“If
every remark made by counsel outside of the testimony were ground for a reversal,
comparatively few verdicts would stand, since, in the ardor of advocacy, and in the
excitement of trial, even the most experienced counsel are occasionally carried away by
this temptation.”). In this regard, we are not swayed by the handful of passing comments
in a rather lengthy argument. We note:

       In reviewing criminal cases, it is particularly important for appellate courts
       to relive the whole trial imaginatively and not to extract from episodes in
       isolation abstract questions of evidence and procedure. To turn a criminal
       appeal into a quest for error no more promotes the ends of justice than to
       acquiesce in low standards of criminal prosecution.

Johnson v. United States, 318 U.S. 189, 202 (1943) (Frankfurter, J., concurring).

       An overall review of the record of trial, including consideration of the gruesome
nature of the offenses themselves, and the entire findings argument, leaves no basis for us
to conclude that trial counsel’s argument was calculated to inflame the members’
passions or possible prejudices. We find no error.

                E. Admission of Crime Scene and Autopsy Photographs

       The appellant further alleges the military judge committed error by admitting
crime scene and autopsy photographs over defense objection. We review a military
judge’s ruling on the admissibility of evidence for abuse of discretion. United States v.
Holt, 58 M.J. 227, 230-31 (C.A.A.F. 2003). A decision to admit or exclude evidence
based upon the balancing test set forth in Mil. R. Evid. 403 is within the sound discretion
of the military judge. United States v. Smith, 52 M.J. 337, 344 (C.A.A.F. 2000);
United States v. Phillips, 52 M.J. 268, 272 (C.A.A.F. 2000). “To reverse for ‘an abuse of
discretion involves far more than a difference in opinion. The challenged action must be
found to be ‘arbitrary, fanciful, clearly unreasonable,’ or ‘clearly erroneous’ in order to
be invalidated on appeal.’” United States v. Travers, 25 M.J. 61, 62 (C.M.A. 1987)




                                             18                            ACM 36785 (recon)
(citations and ellipses omitted). “An abuse of discretion arises in cases in which the
judge was controlled by some error of law or where the order, based upon factual, as
distinguished from legal, conclusions, is without evidentiary support.” Id. (citation and
internal quotation marks omitted).

       The exhibits at issue included autopsy photographs for JS and SrA AS, and
29 photographs of the crime scene. Before trial, the defense moved to exclude 18 of
these photographs. A full hearing was held on the motion, wherein the military judge
heard testimony from Dr. (Lt Col) ER, the medical examiner who conducted the
autopsies, and Mr. PK, an expert witness who examined the blood spatter evidence at the
crime scene. The witnesses each articulated why every one of the proposed photographs
was necessary and helpful to the presentation of their prospective testimony and
explanation to the members.

       In ruling on the motion to suppress, the record reflects the military judge
considered the expert witness testimony, written pleadings, proposed exhibits, as well as
a full set of autopsy and crime scene photographs, including those not offered into
evidence. The military judge took the matter under advisement, returning to deliver his
ruling on the motion nearly two hours after the close of the hearing. He presented an
accurate recitation of the applicable rules, Mil. R. Evid. 401, 402, and 403, and gave
detailed findings as to why each of the challenged photographs satisfied evidentiary
relevance. He granted the motion to suppress four photographs. He found that all of the
other 14 photographs had probative value that was not substantially outweighed by
prejudicial impact.

        “Photographs, although gruesome, are admissible if used to prove time of death,
identity of the victim, or exact nature of wounds.” United States v. Gray, 37 M.J. 730,
739 (A.C.M.R. 1992), aff’d, 51 M.J. 1 (C.A.A.F. 1999). “It is not a matter of whether the
photographs were inflammatory but whether they served a legitimate purpose.” Id.
(citing United States v. Whitehead, 30 M.J. 1066, 1070 (A.C.M.R. 1990); United States v.
Bartholomew, 3 C.M.R. 41, 48 (C.M.A. 1952)).

       In this case, the testimony of the expert witnesses clearly established the need for
the photographs in order to convey the exact nature of the wounds and the crime scene.
The probative value of the photographs was not substantially outweighed by any
prejudicial effect. The proper law with respect to relevancy and admissibility was
applied. We find the military judge did not abuse his discretion in admitting these
photographs.

                                 F. Findings Instructions

       The appellant asserts the military judge committed reversible error by denying two




                                            19                            ACM 36785 (recon)
of their requested instructions. Reviewing the military judge’s decision not to give a
requested instruction under an abuse of discretion standard, we note that the test to
determine if denial of a requested instruction constitutes reversible error is whether:
(1) the charge is correct; (2) it is not substantially covered in the main charge; and (3) it is
on such a vital point in the case that the failure to give it deprived the accused of a
defense or seriously impaired its effective presentation. United States v. Damatta-
Olivera, 37 M.J. 474, 478 (C.M.A. 1993).

       The first proposed instruction was tailored from the standard instruction regarding
evidence negating mens rea. 6 See Department of the Army Pamphlet (D.A. Pam.) 27-9,
Military Judges’ Benchbook [hereinafter “Benchbook”], ¶ 5-17 (1 April 2001). Trial
defense counsel argued the proposed instruction was proper because the evidence raised
an “issue of whether the accused had an emotional or cognitive impairment that
interfered with his ability to form specific intent.” Specifically, the defense relied on
Dr. BM’s stipulation of expected testimony to argue that recent scientific studies have
shown “there is an impairment that arises in the ability to plan, to think, to control
impulses, when a stressor is presented,” and that rises to an “emotional condition of the
kind that could impact or impair the ability to premeditate.”

       The military judge questioned whether the law intended for an instruction to be
given on a mental condition when “everybody in the entire world” has the ability to or
will naturally produce adrenaline. The military judge initially ruled that he would not
give the proposed instruction because he felt the mens rea issue had not been raised by
the evidence. After further deliberation on the matter overnight, the issue was again
argued and the military judge ruled as follows:

                 Okay. I have carefully considered the defense’s request and did so
          at length last evening after we first talked about it and I do not believe that

6
    The proposed language of the appellant’s mens rea instruction was as follows:

          The evidence in this case has raised an issue whether the accused had an emotional and/or
          cognitive impairment and the required state of mind with respect to the offenses of premeditated
          murder and attempted premeditated murder. In determining this issue, you must consider all the
          relevant facts and circumstances. One of the elements of [these] offenses is the requirement of
          premeditation. You are advised that an accused, because of some underlying impairment, may be
          mentally incapable of entertaining the premeditated design to kill. You should, therefore, consider
          in connection with all relevant facts and circumstances, evidence tending to show that the accused
          may have been suffering from an emotional and/or cognitive impairment of such consequence and
          degree as to deprive him of the ability to entertain the premeditated design to kill. The burden of
          proof is upon the government to establish the guilt of the accused by legal and competent evidence
          beyond a reasonable doubt. Unless in light of all the evidence you are satisfied beyond a
          reasonable doubt that the accused, at the time of the alleged offenses was mentally capable of
          entertaining the premeditated design to kill, you must find the accused not guilty of those offenses.




                                                           20                                     ACM 36785 (recon)
         the mens rea instruction has been reasonably raised by the evidence.
         Obviously, if [Dr. BM] had testified and testified in accordance with his
         testimony during an Article 39(a) Session, my decision would have been
         different, but the evidence before the members shows nothing more than
         one, that people’s ability to remember specific facts are impaired as a result
         of a stressful situation and the adrenaline that arises from that stressful
         situation, and there is evidence before the Court that adrenaline does cause
         stress. The problem here is that there’s no fit, there is no testimony to
         indicate that adrenaline or memory would affect the accused more or less
         than it would affect the average person. And based on the facts of this case,
         as they currently exist, it would seem that [trial defense counsel’s] request
         would require a mens rea instruction in every case where someone acted in
         a violent way as a result of a stressful situation, whether it was caused by
         them or caused by someone else. So I will not give the mens rea
         instruction.

      Within the given instructions regarding heat of passion and the ability to
premeditate, the military judge instructed the members several times, “An accused cannot
be found guilty of premeditated murder if, at the time of the killing, his mind was so
confused by anger, rage, sudden resentment or fear that he could not or did not
premeditate.” In applying the test set forth in Damatta-Olivera, we find that the military
judge did not abuse his discretion. The evidence of adrenaline was properly before the
members for consideration, and the instructions covered the confusion of the mind that
may negate the ability to premeditate. As such, we find this alleged error without merit.

       The second defense-requested instruction also addressed premeditation. 7
However, instead of giving the additional instruction requested, the military judge
properly instructed the members on premeditation from the standard Benchbook
instructions. The definition and requirements for premeditation were substantially
covered in the main instruction given to the members in this case. As such, the members
were properly instructed, and the appellant has failed to meet the second prong of the
Damatta-Olivera test. We find the military judge did not abuse his discretion in giving
only the standard Benchbook instruction on premeditation.

                                 G. Impeachment of Staff Sergeant PG

         The appellant alleges the military judge erred in not allowing the presentation of

7
  The requested instruction read, “Premeditation requires that one with a cool mind did, in fact, reflect on the intent
to kill before committing the lethal act. Intent to kill alone is insufficient to reach a finding of guilty for
premeditated murder. To reach such a finding of guilty, the lethal act must have been committed after reflection on
the consequences by a cool mind.”




                                                          21                                     ACM 36785 (recon)
extrinsic evidence of a prior inconsistent statement of Staff Sergeant (SSgt) PG.
Specifically, the defense wanted to call a witness who had interviewed SSgt PG prior to
trial to testify about SSgt PG’s prior statements regarding whether the door to SrA AS’s
home was open or closed when he arrived to investigate.

       This Court reviews a military judge’s ruling on the admissibility of evidence for
abuse of discretion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010). A trial
judge will typically have a great deal of discretion to determine whether trial testimony is
inconsistent with a prior statement. United States v. Harrow, 65 M.J. 190, 200
(C.A.A.F. 2007).

        Here, SSgt PG was called as a Government witness. When first questioned on
direct examination about the front door to SrA AS’s home, SSgt PG testified:

       Q. When you got there, did you ascertain whether the front door was locked
       or not?

       A. I didn’t.

       Q. Did somebody?

       A. I don’t know.

       Q. What door—well, did you enter the [S]’s residence?

       A. We did.

       Q. What door did you go through?

       A. The side door under the carport.

       Q. And, what room does that lead you into?

       A. The kitchen.

       Q. And, what is your—who was the lead cop?

       A. Sergeant [A] was in the lead.

       Q. All right. What was your understanding as to why you went through that
       door and not another door to the house?




                                             22                           ACM 36785 (recon)
      A. The door was already open.

      Q. So, you did not go through the front door?

      A. I did not go through the front door.

      Q. All right. I’m showing you Prosecution Exhibit 22, picture 066. What is
      that a picture of, Sergeant [PG]?

      A. It appears to be the front door of the residence.

      Q. All right. That is not—that door was not in that configuration. In other
      words, it was not open when you arrived at the house?

      A. No, it wasn’t.

      On cross-examination, trial defense counsel further questioned SSgt PG about his
observations as follows:

      Q. I want to take you to when you first went to the [S] house, excuse me.
      When you got there, were you the person at the front door?

      A. I was.

      Q. You actually knocked on the front door?

      A. I did.

      Q. But you didn’t try to open the front door, is that correct?

      A. I did not.

      Q. Okay. The other three Security Forces members you were with, that was
      Sergeant [A], Sergeant [HA], and Sergeant [G]. Is that correct?

      A. Correct.

      ....

      Q. Okay. And, you did not try the door?

      A. I didn’t.




                                            23                         ACM 36785 (recon)
Q. And, you don’t know if the door was locked or not?

A. I do not know.

....

Q. Okay. And, the door itself was closed?

A. The door is closed.

Q. Okay. Do you remember speaking with the [AFOSI] agents on the 13th
of July, 2004, about what you did that night?

A. Vaguely.

Q. Okay. You spoke with Sergeant, or—Special Agent [N] and Special
Agent [R]?

A. I don’t recall their names.

Q. Okay, but two Special Agents. Do you do [sic] remember that?

A. Yes, sir.

Q. Do you remember them taking notes on that incident?

A. I do.

Q. Okay. During that interview, they took notes that said you said the front
door was opened.

ATC1: I’m going to object as to improper 613.

DC: Your Honor, I’ll rephrase the question.

MJ: Rephrase the question.

Q: If the agents had written that you had seen that the door was opened,
would that have been accurate, inaccurate?

ATC1: Your Honor, that’s not a proper question. There is a procedure for




                                     24                           ACM 36785 (recon)
      doing this. Counsel needs to follow it.

      MJ: Overruled. Go ahead.

      DC: Thank you.

      Q. If the Agents had said that you had said the door was opened in that
      interview, would they have been correct in writing that down?

      A. That would have been correct.

      Q. Okay. So, it’s possible that the door was open—you told them?

      A. I never stated the door was open.

       The process of impeachment by prior inconsistent statement is a tool to attack the
credibility or recollection of a witness. “By showing self-contradiction, the witness can
be discredited as a person capable of error.” United States v. Banker, 15 M.J. 207, 210
(C.M.A. 1983); 3A John H. Wigmore, Evidence § 874 (Chadbourne rev. 1970).
Military Rule of Evidence 613(b) provides that “[e]xtrinsic evidence of a prior
inconsistent statement by a witness is not admissible unless the witness is afforded an
opportunity to explain or deny the same and the opposite party is afforded an opportunity
to interrogate the witness thereon.” If the inconsistency is not admitted, or the witness
equivocates, extrinsic evidence may be admitted, but only for impeachment.
Damatta-Olivera, 37 M.J. at 478 (“[W]hether testimony is inconsistent with a prior
statement is not limited to diametrically opposed answers but may be found as well in
evasive answers, inability to recall, silence, or changes of position.”).

       Here, proper procedure was followed, and a proper foundation was laid for the
appellant to admit extrinsic evidence of the inconsistent statement for impeachment
purposes. The military judge’s evidentiary ruling was an abuse of discretion in that the
findings of fact upon which he predicated his ruling are not supported by the evidence
contained in the record of trial. See United States v. Ellis, 68 M.J. 341, 344
(C.A.A.F. 2010).

        Having found error, “we conduct a de novo review to determine whether this error
had a substantial influence on the members’ verdict in the context of the entire case.”
United States v. Harrow, 65 M.J. 190, 200 (C.A.A.F. 2007) (citing Kotteakos v.
United States, 328 U.S. 750, 764-65 (1946); United States v. Berry, 61 M.J. 91, 97
(C.A.A.F. 2005)). “We consider four factors: (1) the strength of the government’s case;
(2) the strength of the defense case; (3) the materiality of the evidence in question; and
(4) the quality of the evidence in question.” Id. (citing Berry, 61 M.J. at 98).




                                             25                          ACM 36785 (recon)
        In the appellant’s court-martial, the Government’s case was very strong and
included significant admissions by the appellant. Trial defense counsel conceded that the
case was not a question of who committed the crimes, but instead, why the crimes were
committed. The focus of the defense case throughout was the state of mind of the
appellant at the time of the offenses. The inconsistent statement sought to be introduced
in this case would have offered extremely little, if any, impact on the defense’s theory of
the case or presentation of evidence such that it cannot be said to be material to the case.
After full consideration of all of the above factors, as well as the fact that the military
judge gave trial defense counsel an opportunity to recall SSgt PG to confront him with
the prior statement, 8 we find the error was harmless in this case.

                                         III. Assistance of Counsel

       The appellant has asserted numerous allegations that his trial defense counsel were
deficient in their representation of him during the court-martial. He contends he received
ineffective assistance of counsel during both the findings and sentencing phases.

                                 A. Counsel’s Performance in Findings

       The appellant cites Strickland v. Washington, 466 U.S. 668 (1984), to assert that
he was denied his constitutional right to effective assistance of counsel during the
findings phase of the court-martial. He lists seven different areas where he asserts his
counsel were deficient, which prejudiced him and resulted in his conviction. We review
ineffective assistance of counsel claims de novo. United States v. Anderson, 55 M.J. 198,
201 (C.A.A.F. 2001); United States v. Wiley, 47 M.J. 158, 159 (C.A.A.F. 1997).

       In Strickland, the Supreme Court found that the Sixth Amendment 9 entitles
criminal defendants to the “effective assistance of counsel”—that is, representation that
does not fall “below an objective standard of reasonableness” in light of “prevailing
professional norms.” Strickland, 466 U.S. at 686, 688. Inquiry into an attorney’s
representation must be “highly deferential” to the attorney’s performance and employ
“a strong presumption that counsel’s conduct falls within the wide range of professionally
competent assistance.” Id. at 689. Our superior court has applied this standard to
military courts-martial, noting that “[i]n order to prevail on a claim of ineffective
assistance of counsel, an appellant must demonstrate both (1) that his counsel’s
performance was deficient, and (2) that this deficiency resulted in prejudice.”
United States v. Green, 68 M.J. 360, 361 (C.A.A.F. 2010) (citing Strickland, 466 U.S. at

8
  A review of the record of trial reveals trial defense counsel elected not to pursue this opportunity granted by the
military judge.
9
  U.S. CONST. amend. VI.




                                                         26                                    ACM 36785 (recon)
687; United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009)).

       We “must judge the reasonableness of counsel’s challenged conduct on the facts
of the particular case, viewed as of the time of counsel’s conduct.” Strickland,
466 U.S. at 690. In making that determination, we consider the totality of the
circumstances, we bear in mind “that counsel’s function, as elaborated in prevailing
professional norms, is to make the adversarial testing process work,” Id., and we
“recognize that counsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.” Id.
“[T]here is no reason for a court deciding an ineffective assistance claim to approach the
inquiry in the same order [as the Court in Strickland did,] or even to address both
components of the inquiry if the defendant makes an insufficient showing on one.”
United States v. McConnell, 55 M.J. 479, 481 (C.A.A.F. 2001) (alterations in original)
(quoting Strickland, 466 U.S. at 697).

       With these standards in mind, we separately analyze the seven alleged deficiencies
in counsel’s performance during the findings portion of the court-martial.

              1. Military Judge’s Sentencing Comments During Voir Dire

       In his first raised issue, the appellant alleges his trial defense counsel were
constitutionally ineffective when they failed to object to an instruction given by the
military judge during voir dire that commented on sentencing.

       At the outset of voir dire of the initial panel of members detailed by the convening
authority, the military judge instructed:

       This is a capital murder case. I want to direct your attention specifically to
       Specifications 1 and 2 of Charge I, on the copy of the charges that you have
       there. Both are a violation of [A]rticle 118 of the Uniform Code of Military
       Justice, commonly referred to as premeditated murder. If the accused is
       convicted of premeditated murder by a unanimous vote, then the court may,
       but is not required to, impose the death penalty.

        This instruction is adapted from the Benchbook. D.A. Pam. 27-9, ¶ 8-3. The
instruction is accurate and appropriate. Therefore, we find that, given the dual role of the
court-martial panel to decide both the findings of the case as well as an appropriate
sentence, trial defense counsel were not deficient in their performance by failing to
object.




                                             27                            ACM 36785 (recon)
                          2. Trial Counsel’s Voir Dire Questions

        During voir dire, trial counsel individually questioned seven of the members who
were ultimately seated on the appellant’s court-martial panel regarding their views as to
the comparative loss a family with multiple children would feel as opposed to a family
who lost an only child. The appellant argues these questions exceeded the permissible
scope of voir dire and that trial defense counsel were constitutionally ineffective for
failing to object.

        We need not undertake the related inquiry of ruling on whether or not the
questions of counsel were objectionable to resolve the issue in this case. McConnell,
55 M.J. at (C.A.A.F. 2001) (quoting Strickland, 466 U.S. at 697). Instead, we find that
the failure to object to individually posed voir dire questions of this sort is not error that
rises to the level of a constitutional violation because there is no evidence of prejudice
arising from the members’ answering such a question. Thus, the appellant has not met
his burden under the second Strickland prong.

                         3. Peremptory Challenge of Colonel DC

       Trial defense counsel lodged a challenge for cause against potential court-martial
member Col DC, stating they “felt that [Col DC]’s responses [] show a bias and in favor
of the death penalty. And his close relationship to both the convening authority and the
Staff Judge Advocate creates a further implied bias. And the combination of those two is
such that [they] believe[d] he should be challenged for cause.” The military judge denied
this challenge. Subsequently, trial defense counsel exercised their peremptory challenge
against Col DC.

       The appellant argues the use of the peremptory challenge amounts to ineffective
assistance of counsel because, “by voluntarily reducing the panel size, the defense
counsel made the [G]overnment’s burden lighter.” He further asserts that trial defense
counsel’s use of the peremptory challenge “made it measurably easier for the
[G]overnment to obtain a death sentence.”

       Beyond their concerns elucidated on the record at trial, trial defense counsel, in
their post-trial affidavits, articulated that, prior to exercising the peremptory challenge,
they were cognizant that more members on the panel is better. However, they balanced
that against their concerns that this member “would be both unfavorable to our position
and also be a strong advocate to persuade others [sic] members to his position.”
Ultimately, they decided to exercise the challenge.

       Here, trial defense counsel coherently expressed a strategic and tactical basis for
deciding to exercise their peremptory challenge. We will not second guess the strategic




                                             28                             ACM 36785 (recon)
or tactical value of these decisions. Anderson, 55 M.J. at 202; United States v. Morgan,
37 M.J. 407, 410 (C.M.A. 1993). Trial defense counsel were faced with an almost
impossible dilemma. A decision by the appellant’s trial defense counsel not to exercise
their peremptory challenge to excuse Col DC could likely have resulted in a different
claim of ineffective assistance of counsel. We find trial defense counsel were not
deficient in their performance in using the peremptory challenge to remove a member
from the panel whom they believed would be biased against the appellant.

                                   4. Courtroom Security

        The appellant’s trial was held at the Bibb County Courthouse in Macon, Georgia.
The courthouse provided heightened security not typically found in a courtroom at a base
legal office. This included x-ray screening, metal detectors, and armed security present
in the courtroom, in addition to the security forces personnel escorting the appellant. The
appellant argues his counsel should have objected to this additional security and their
failure to do so constitutes ineffective assistance of counsel. In his affidavit, trial defense
counsel explained:

       [The trial defense team] made sure that [the appellant] was never physically
       restrained in front of the members and prevailed upon his escorts to
       minimize their appearance alongside [him] when the members were in the
       courtroom. . . . [W]e did not perceive there was anything excessive about
       the number of uniformed law enforcement personnel present in the
       courtroom during the trial.

       The appellant cites to an excerpt from trial defense counsel’s argument in which
the security is referenced:

       The prosecution made note of the fact that there’s guards in the room, and
       that’s why [the appellant] was conducting himself, conducting himself [sic]
       appropriately. But, I ask you: Are the guards not here as much here [sic] to
       protect him from people who are probably angry at him, as they are from
       stopping him from going anywhere?

        The issue as raised is one of ineffective assistance of counsel during the findings
portion of the court-martial. However, this commentary regarding the guards was made
during counsel’s sentencing argument. Based on the facts presented by both the appellant
and his counsel, we see nothing objectionable about the nature of the courthouse security.
Accordingly, a failure to object to the described security does not meet the Strickland
standard for ineffective assistance of counsel. In addition to finding no deficiency in trial
defense counsel’s decision not to object to the security, we also find no prejudicial impact
to the appellant.




                                              29                             ACM 36785 (recon)
                       5. Promises Made During Opening Statement

       Next, the appellant asserts his trial defense counsel were constitutionally
ineffective when they made promises during the opening statement to produce certain
testimony and then failed to present that testimony. Civilian trial defense counsel gave
the opening statement in the case and explained:

               The defense is going to put on witnesses who will tell you who [the
       appellant] is; where he came from; the Christian home that he was raised
       in; the divorce of two loving parents; the facts that led him into the United
       States Air Force; the environment that created the person who committed
       the acts on the 5th of July. [The appellant] is in his early twenties. For the
       most part, he was raised by [his step father, GP, and his mother, MP].

       ....

       [Y]ou will hear evidence regarding [the appellant’s] upbringing. You will
       hear from his parents, his natural mother and stepfather, and you will hear
       from his natural father [CW] and [EW], who was married to [CW] at one
       point, but is not married to him today. I also anticipate that you will hear
       from the sister of [MP], [the appellant’s] aunt, [LS]. With their testimony,
       you’re going to learn about those forces that shaped [the appellant] and
       brought him to the point where he was handed over to the Air Force and
       began an Air Force career.

              I anticipate that you’re going to hear from two expert witnesses that
       the defense will call. [Dr. BM] is a forensic psychologist. He has looked at
       the facts of this case; he’s interviewed multiple individuals and witnesses;
       and he will testify regarding [the appellant’s] state of mind on the night of
       the 4th and into the early morning hours of the 5th of July of 2004.

       ....

              [Dr. BM], the forensic psychologist, I anticipate will testify about
       [the appellant’s] state of mind at that point in his life; his state of fear about
       the fact that these people were threatening to ruin his career; the
       provocation that flowed from that.

      In his post-trial affidavit, trial defense counsel states that, at the time the opening
statement was delivered, the trial defense team whole-heartedly intended to present the
evidence alluded to in their opening statement. They understood the risk of making a
promise and not delivering but were confident based upon their lengthy trial preparation




                                              30                              ACM 36785 (recon)
with Dr. BM, that there was “no conceivable reason that [they] would not call [Dr. BM]”
as a witness. Additionally, they fully intended “to call [the] appellant’s family members
to provide the context for Dr. [BM]’s testimony.”

       On 26 September 2005, civilian trial defense counsel announced, at a hearing
outside the presence of the members pursuant to Article 39(a), UCMJ,
10 U.S.C. § 839(a), that the defense had “elected to name [Dr. BM] as an expert witness
based on the opinions he’s formed as a result of performing his duties [as a consultant].”
The findings testimony of Dr. BM was intended to address issues of the appellant’s
ability to premeditate. Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), the defense presented preliminary testimony to establish Dr. BM’s
qualifications as an expert witness.

       Dr. BM testified that he subjected the appellant to a series of psychological tests
when he first met with the appellant in October 2004. Dr. BM subsequently met with the
appellant on 19 June 2005, 23 June 2005, and 10 September 2005. He testified that, as of
17 September 2005, he still had not formulated a psychological diagnosis of the
appellant. It was not until after the trial began that he concluded the appellant had an
Axis II diagnosis of a Personality Disorder, Not Otherwise Specified. During direct
examination at the hearing, he testified that he identified schizoid and borderline traits in
the appellant. He also acknowledged telling the prosecution in an interview that the
appellant displayed schizoid features. However, during cross-examination, he clarified
his testimony, stating the schizoid traits diagnosis was inaccurate, and that his actual
diagnosis included paranoid and borderline traits. Trial defense counsel admitted to the
court that he was surprised at Dr. BM’s direct examination testimony given his previous
discussions with him.

        Due to the late diagnosis, change in diagnosis, and testimony from Dr. BM
regarding other tests that were not administered, the Government argued for an
independent psychological evaluation of the appellant. The defense objected. The
military judge found Dr. BM’s testimony admissible under Daubert but reserved ruling
on the Government’s request for an independent psychological evaluation. Based on
Dr. BM’s testimony at the Daubert hearing, trial defense counsel concluded his ability to
testify in the case had been compromised due to errors and inconsistencies between what
he told the defense and the Government.

       Some time prior to the morning of 28 September 2005, the defense came to an
agreement with the Government to avoid a court-ordered independent psychological
evaluation. They agreed to allow Dr. CR, the Government’s expert consultant, to
conduct further testing of the appellant and to interview the appellant. The results of this
further evaluation would only be revealed to trial defense counsel, but they could
potentially be revealed to the Government under limited circumstances. The appellant




                                             31                            ACM 36785 (recon)
was thoroughly involved in the decision regarding his agreement to subject himself to
this further voluntary evaluation with Dr. CR.

        Trial defense counsel explained that “Dr. [CR]’s opinion countered Dr. [BM]’s
assessment on several points. . . . [Dr. CR identified] that Dr. [BM] had improperly read
the results of at least one personality test . . . [although Dr. CR] did not offer an opinion
that would have assisted [the defense] at trial.” At this critical stage in the proceedings,
trial defense counsel decided they would not call Dr. BM as a witness and reevaluated
their findings strategy, opting to proceed with their theory regarding the effects of
adrenaline. The decision to not call Dr. BM was supported by Dr. BM. As a result, all
sides agreed upon a stipulation of expected testimony for Dr. BM.

       At trial, the defense presented the testimony of Dr. RS, who testified regarding the
physiological and psychological effects of stress, adrenaline, and alcohol on perception
and memory. They further presented two stipulations of expected testimony. The first
was from CC, the appellant’s roommate, who testified that he received a voicemail
message from SrA AS, in the early morning hours of 5 July 2004, telling him that the
appellant had made a pass at his wife and wanting CC to call him back to talk about it.
The second was from Dr. BM, who testified about the physiology of “fight or flight” and
the cognitive effects of stress-induced release of epinephrine from the adrenal glands into
the body. Specifically, he testified these adrenal gland releases can impair cognitive
functions that guide behavior, thoughts, feelings, impulse control, judgment, decision-
making, and insight. Finally, the defense introduced the curriculum vitae of Dr. RS; the
curriculum vitae of Dr. BM; and a timeline of the phone calls made between the
appellant, the victims, and related individuals on the night of 4 July 2004 and early
morning of 5 July 2004. The defense then rested without presenting any of the evidence
referenced in opening statement regarding the appellant’s upbringing, life, family, or
what brought him to the Air Force.

        “‘It is important for counsel to evaluate all of the evidence and determine the
strategy that is most likely to be successful.’” United States v. Christy, 46 M.J. 47, 50
(C.A.A.F. 1997) (quoting United States v. Fluellen, 40 M.J. 96, 98 (C.M.A. 1994)). This
evaluation should include tactical decisions regarding which witnesses to call during the
trial. In this case, those tactical decisions were made and included a reasonable strategy
to call Dr. BM and the appellant’s family members to help explain the mental health
issues the appellant may have been experiencing at the time of the murders in an effort to
dispel premeditation. While there may have been some risk in highlighting this
anticipated testimony during opening statement pending a ruling on its admissibility, that
risk was laid to rest when the military judge ruled the testimony admissible. To the
extent the appellant argues that his counsel were deficient in the presentation of their
opening statement, we disagree.




                                             32                            ACM 36785 (recon)
       “A fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689. Counsel’s performance at the time the opening statement
was delivered was based on a sound theory of the case developed over months of
consultation with Dr. BM. We find no deficient performance by trial defense counsel in
the content of his opening statement.

        Turning to counsel’s decision to not call the witnesses they told the members they
anticipated hearing from, we again find no error. “[U]nexpected events at trial may lead
to changed circumstances or different trial tactics.” Christy, 46 M.J. at 50. This is
exactly the scenario presented in this case. The record establishes the inconsistencies in
Dr. BM’s testimony at the Daubert hearing. Civilian trial defense counsel noted his
surprise at the testimony in an Article 39(a), UCMJ, hearing. Counsel’s affidavits
sufficiently demonstrate their tactical quandary: calling an expert witness who had lost
credibility and who, in their minds, had become at least somewhat unreliable, or limiting
their presentation of witnesses but still presenting some expert testimony as promised.

       The success of the strategy they chose is irrelevant. The question is whether their
strategy was reasonable given an evaluation of “counsel’s perspective at the time.”
Strickland, 466 U.S. at 689. We find the decision to limit Dr. BM’s testimony to the
effects of adrenaline and to present it in the form of a stipulation of expected testimony
was reasonable. We also find that, under the circumstances, the decision not to seek the
testimony of the family members, without the corresponding expert testimony from
Dr. BM, was also reasonable and conclude that such testimony would have likely been
inadmissible. Thus, we find this theory of ineffective assistance of counsel to be without
merit.

                               6. Witnesses’ Sequestration

       The appellant next claims that his counsel were ineffective during the findings
phase of his trial by failing to move the court to sequester the family member witnesses.
In a related issue, the appellant argues that the military judge committed plain error as
well by allowing the family members and friends of the victims to remain in the
courtroom during the entire trial. We will address these related issues together.

       The trial defense team’s decision not to request sequestration of the witnesses
pursuant to Mil. R. Evid. 615 was not an oversight. Rather, as discussed in an
Article 39(a), UCMJ, hearing, it was a conscious decision. Both parties agreed that
family members for both the appellant and the victims would be allowed to remain in the
courtroom. Capt DR noted, “[W]e felt that it was important for our client to have his
family present in the courtroom as a show of support and because they had an obvious




                                             33                            ACM 36785 (recon)
interest in what was being discussed in the trial.” Both Capt DR and Capt DJ recounted
that they reached an agreement with trial counsel that neither side would object to their
sentencing witnesses being in the courtroom.

        The underlying purpose of Mil. R. Evid. 615 is to preclude witnesses from
listening to the testimony of another witness in the trial, then shaping or conforming their
subsequent testimony to match what was heard. United States v. Langston, 53 M.J. 335,
337 (C.A.A.F. 2000). The appellant has made no argument that the witnesses who
remained in the courtroom without sequestration proffered findings testimony that was
fabricated, tainted, or shaped in any way. In fact, JB (victim JS’s father) was the first
witness called by trial counsel. As such, his testimony could not have been tainted in any
way that could be deemed a violation of the policy behind Mil. R. Evid. 615. The second
witness called to testify was DS, who gave limited testimony to identify his son, one of
the victims, from a photograph. The record reflects no evidence that his testimony was
altered in any way by his presence in the courtroom during the prior witness. The third
witness was JPS, the wife of SrA JK. She was the first witness to testify as to her
memory of what transpired on 4 July 2004. SrA JK was the last of the findings witnesses
noted in the appellant’s brief. A review of the record of trial belies any insinuation that
either JPS’s or SrA JK’s testimony was tainted by the testimony that preceded it.

      As previously mentioned, to prevail on a theory of ineffective assistance of
counsel, the appellant must demonstrate both prongs of the Strickland test: (1) that his
counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice.
Green, 68 M.J. at 361 (citing Strickland, 466 U.S. at 687). Thus, we may address these
prongs in any order we choose. Strickland, 466 U.S. at 697; United States v. Loving,
68 M.J. 1, 6 (C.A.A.F. 2009).

       We find that the appellant has failed to meet his burden of demonstrating prejudice
based on his counsel’s decision not to move for sequestration of the witnesses. As such,
an ineffective assistance of counsel claim cannot be sustained.

        Turning to the related issue of the military judge’s failure to sua sponte sequester
the witnesses, we also find no error. To establish plain error by the military judge for
allowing the witnesses to remain in the courtroom, the appellant bears the burden of
demonstrating “(1) there was an error; (2) it was plain or obvious; and (3) the error
materially prejudiced a substantial right [of the appellant].” United States v. Kho,
54 M.J. 63, 65 (C.A.A.F. 2005); United States v. Miller, 64 M.J. 666, 671 (A.F. Ct. Crim.
App. 2007). Once the appellant persuades this Court of the plain error, “the burden
shift[s] to the Government to show that the error was not prejudicial.” United States v.
Powell, 49 M.J. 460, 464-65 (C.A.A.F. 1998). After review of the entire record, we find
no evidence of error, plain or obvious, that violated the appellant’s right to a fair trial.
The military judge accepted the agreement of the parties with respect to the spectators,




                                            34                            ACM 36785 (recon)
and we find no evidence that the appellant suffered a material prejudice to his substantial
rights based upon the presence of the family members of the victims during the findings
phase of this court-martial.

       We also note that while these issues appear under the appellant’s assignments of
errors affecting the findings portion of the trial, the majority of the factual assertions
regarding the emotional display of the victims’ family members occurred during
sentencing. In lieu of addressing the lack of a motion for sequestration on grounds
underlying the policy behind Mil. R. Evid. 615, the appellant instead more plainly argues
counsel were deficient because they should have anticipated and avoided the emotional
displays by the aggrieved family members. Alternatively, the appellant argues that once
emotions were displayed, the military judge’s admonition to the spectators was
insufficient and it amounted to plain error not to force sequestration at that point.
Because these factual allegations took place during the sentencing phase of the
court-martial, neither the spectator’s conduct, whether prejudicial or not, nor counsel’s
performance, whether deficient or not, would have impacted the members’ determination
of guilt.

       Additionally, counsel specifically considered the sequestration issue, weighed the
pros and cons, and made a choice not to request sequestration. Whether the luxury of
hindsight ultimately reveals the choice counsel made to have been the most effective
option is not the standard. “Because of the difficulties inherent in making [such an]
evaluation, a court must indulge a strong presumption that counsel’s conduct f[ell] within
the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Strickland, 466 U.S. at 690 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). Trial defense counsel’s judgment with respect to
sequestration was not unreasonable, and we find no ineffectiveness based on the
approach they chose.

                                          7. Mental Health Issues

       The appellant argues six different areas in which his trial defense counsel were
ineffective with respect to the handling of mental health issues that arose during trial.
The first of these claims is that counsel acted ineffectively by releasing statements made
by the appellant contained within the full sanity board report to the Government.

           Military Rule of Evidence 302(c) 10 clearly provides the accused protection from
10
     The Rule states:

             If the defense offers expert testimony concerning the mental condition of the accused, the




                                                       35                                  ACM 36785 (recon)
the disclosure of statements made during an examination performed pursuant to
R.C.M. 706. This protection does not automatically translate into a corresponding
prohibition on the part of the accused from voluntarily releasing statements for strategic
or tactical purposes.

       The appellant’s allegation that the release of his sanity board statements “played a
significant role in crippling [his] case” is unsupported and merely conclusory. The
appellant’s statements that were disclosed to the Government were not introduced to the
members, none of the witnesses’ testimony was derived from the appellant’s
incriminating statements, and the appellant’s statements were not the subject of any other
testimony presented. As such, we find the appellant has not demonstrated how he was
prejudiced by counsel’s alleged error. Thus, he has not satisfied the second prong of the
Strickland test. We do not address whether counsel’s performance was deficient.
See McConnell, 55 M.J. at 481.

      The next four issues all stem from trial defense counsel’s decision to allow an
independent evaluation of the appellant by Dr. CR, the Government’s expert witness, and
what the appellant believes would have happened had the military judge ordered an
independent evaluation.

       As previously discussed, unexpected things happened during the Daubert hearing
that impacted the defense decision to have Dr. BM provide expert testimony. Dr. BM’s
direct examination testimony regarding his diagnosis of the appellant contradicted his
previously stated diagnosis to trial defense counsel during consultation. This came as a
surprise to the trial defense team, who had intended to use Dr. BM to establish a
psychological diagnosis of the appellant that could have contributed to an inability to
premeditate his actions. On cross-examination, the situation worsened when Dr. BM
changed his testimony, indicating he had inaccurately stated his diagnosis during direct
examination. However, cross-examination revealed that he not only erred in stating the
appellant’s diagnosis during direct examination, but also erroneously conveyed this
inaccurate diagnosis to the prosecution during an interview in the days prior to his
testimony. This unusual situation—arising in the middle of trial—left the defense team
concerned that these obvious inconsistencies could degrade his credibility and their
theory of the case. Additionally, the Government asked for an independent evaluation of

           military judge, upon motion, shall order the release to the prosecution of the full contents, other
           than any statements made by the accused, of any report prepared pursuant to [R.C.M.] 706. If
           the defense offers statements made by the accused at such examination, the military judge may
           upon motion order the disclosure of such statements made by the accused and contained in the
           report as may be necessary in the interests of justice.

Mil. R. Evid. 302(c).




                                                          36                                     ACM 36785 (recon)
the appellant, given Dr. BM’s testimony.

       Viewing the strategic and tactical decisions of counsel in light of the
circumstances at the time of the decision, we find neither deficient performance nor
prejudice after application of the Strickland test. See Strickland, 466 U.S. at 687. Trial
defense counsel was placed between the proverbial rock and a hard place after the
Daubert hearing testimony. They had to decide whether to use Dr. BM as a witness
during the findings phase, whether his credibility issues would hinder or help their theory
of the case, and how to handle the Government’s request for an independent evaluation of
their client. While unorthodox, we cannot find the decision to allow their client to be
evaluated by Dr. CR was deficient given the unique circumstances that surfaced mid-trial.
Concern over Dr. BM’s testimony and his credibility arose unexpectedly during the
Daubert hearing, not due to the evaluation by Dr. CR. Attorneys may disagree with the
approach taken, but counsel’s performance here reflects strategic and tactical decisions
that will not be second-guessed by this Court. Anderson, 55 M.J. at 202.

       Furthermore, the appellant agreed to this approach at the time of trial. He was
present during the Daubert hearing, aware of Dr. BM’s change in testimony regarding his
diagnosis, and knew of the Government’s request for an independent evaluation and the
possibility of the military judge’s granting such request. The record fails to establish that
he was inadequately advised by trial defense counsel. Instead, he was thoroughly
questioned by the military judge regarding the approach and restrictions on Dr. CR’s
evaluation. The record of trial reflects he was in full agreement. His change of heart at
the appellate level does not justify any relief.

        The final issue presented in this area is that it was trial defense counsel’s
mishandling of the mental health issues that caused a “catastrophic decision” to abandon
Dr. BM as a sentencing witness. While raised in the context of ineffective assistance of
counsel during the findings phase of the trial due to alleged mishandling of mental health
issues, in reality this is a claim of ineffective assistance of counsel during sentencing. As
such, we will address this issue further below.

       In accordance with the analysis above, we find that the trial defense counsel were
effective throughout the findings portion of the court-martial.

                         B. Counsel’s Performance in Sentencing

       We turn now to the appellant’s assignments of error alleging ineffective assistance
of counsel in the sentencing phase of the case. We will first examine the three issues this
Court previously found to have constituted ineffective assistance of counsel: (1) the
scope of trial defense counsel’s investigation into, and failure to present evidence
deriving from, a motorcycle accident the appellant was involved in four and a half




                                             37                            ACM 36785 (recon)
months prior to the murders; (2) trial defense counsel’s failure to investigate and obtain
records pertaining to the appellant’s mother’s treatment at an inpatient mental health
facility; and (3) trial defense counsel’s failure to investigate and develop evidence of
remorse through Deputy Sheriff LF. Then we will examine whether counsel were
ineffective in failing to offer evidence of the appellant’s future risk of violence, failing to
offer testimony of SP and KP, and failing to object to inadmissible victim impact
evidence.

        We conclude that although trial defense counsel were deficient in some areas, the
appellant was not prejudiced by these deficiencies, and therefore under the second prong
of Strickland we must resolve these issues against the appellant.

        When the issue is the adequacy of counsel’s investigatory efforts in preparation for
the sentencing phase of a capital trial, “hindsight is discounted by pegging adequacy to
‘counsel’s perspective at the time’ investigative decisions are made, and by giving a
‘heavy measure of deference to counsel’s judgments.’” Rompilla, 545 U.S. at 381 (citing
Strickland, 466 U.S. at 689, 691). To assess the thoroughness of counsel’s investigative
efforts, this Court reviews performance for “reasonableness under prevailing professional
norms.” Wiggins, 539 U.S. at 523 (citing Strickland, 466 U.S. at 688).

       The Supreme Court has historically noted that the ABA Standards for Criminal
Justice are informative guidelines for assessing “prevailing professional norms” and
determining what is reasonable. See Strickland, 466 U.S. at 688-89; Williams,
529 U.S. at 396; Wiggins, 539 U.S. at 524; Rompilla, 545 U.S. at 387. Although these
standards are instructive, it is important to note, as we did earlier, that they are not
mandated for military defense counsel. Murphy, 50 M.J. at 9 (citing Loving, 41 M.J. at
300), quoted in Loving, 68 M.J. at 19-20 (Stucky, J., concurring in part and in the result).

       With respect to investigative efforts, Guideline 10.7 of the ABA Guidelines sets
forth that “[c]ounsel at every stage have an obligation to conduct thorough and
independent investigations relating to the issues of both guilt and penalty.” Id., reprinted
in 31 Hofstra L. Rev. 913, 1015. The Commentary to Guideline 10.7 states counsel need
to explore medical history, including hospitalization, mental illness, family history of
mental illness, physical injury, and neurological damage. Id. at 1022. Guideline 10.11
also sets forth an ongoing duty of counsel to “seek information that supports mitigation or
rebuts the prosecution’s case in aggravation.” Id. at 1055.

          In Lockett v. Ohio, 438 U.S. 586, 604 (1978), the Supreme Court concluded:

          [T]he Eighth and Fourteenth Amendments 11 require that the sentencer . . .
11
     U.S. CONST. amend. VIII, XIV.




                                              38                             ACM 36785 (recon)
      not be precluded from considering, as a mitigating factor, any aspect of a
      defendant’s character or record and any of the circumstances of the offense
      that the defendant proffers as a basis for a sentence less than death.

       Similarly, the sentencer may not “refuse to consider, as a matter of law, any
relevant mitigating evidence.” Eddings v. Oklahoma, 455 U.S. 104, 114 (1982). These
well-established rules necessarily imply that counsel should seek to investigate and
develop any evidence which might mitigate against the appropriateness of the death
penalty. “In assessing the reasonableness of an attorney’s investigation . . . a court must
consider not only the quantum of evidence already known to counsel, but also whether
the known evidence would lead a reasonable attorney to investigate further.” Wiggins,
539 U.S. at 527.

       The case at hand is not one in which trial defense counsel shirked their
responsibility to conduct any investigation into the appellant’s family and social history,
upbringing, or history of mental illness, or utterly failed to present a case in mitigation
and extenuation. To the contrary, prior to the Article 32, UCMJ, 10 U.S.C. § 832,
investigation, trial defense counsel secured the services of a professional mitigation
specialist, CP, whose role was to:

       collect any and all records regarding a criminal defendant [and] interview
       friends, family members, co-workers, acquaintances, teachers, therapists,
       social workers, medical doctors, and anyone who has had contact with the
       defendant[;]

       ....

       obtain all discovery materials from defense attorneys, law enforcement
       agencies [sic] documents, previous criminal history records of the
       defendant, all records from the jail, autopsy report, crime scene pictures and
       videos, defendant’s audio and/or videotaped statement, indictment as well
       as factors that the state intends to use as aggravating factors[; and]

       ....

       research, obtain, evaluate and coordinate the use of any and all information
       from the life of the defendant that may serve in the process of mitigation.

       From August 2004 until 13 October 2005, when the sentence was announced, CP
“collected thousands of pages of documents related to [the appellant] and interviewed
approximately a hundred individuals with the goal of understanding the crime as well as
the person of who [the appellant] was.” Trial defense counsel also retained a forensic




                                            39                             ACM 36785 (recon)
psychologist, Dr. BM, prior to the Article 32, UCMJ, investigation. Consequently, the
question presented in the first three issues is whether, despite the assistance of the
mitigation specialist and forensic psychologist, trial defense counsel’s investigation and
failure to present what the appellant argues would have been mitigating evidence fell
short of the performance expected by reasonably competent counsel.

                              1. Motorcycle Accident Injury

        In August 2004, the trial defense team’s mitigation specialist, CP, sent a
memorandum to the appellant’s military trial defense counsel strongly recommending the
appellant undergo a full battery of psychological testing because he had been involved in
a motorcycle accident four and a half months before the murders. She conveyed her
opinion that the defense team had a responsibility to pursue any possible brain damage
due to the closed head injury and behavioral changes reportedly observed in the appellant
after the accident, and emphasized this was an important area of inquiry. She described
her experience with closed head injuries, opining that often such injuries can explain
aberrant behavior, and made clear her recommendations for further investigation,
neuropsychological testing, and brain scanning.

       In October 2004, the defense forensic psychologist consultant, Dr. BM, spent
between 12 and 14 hours over the course of two days conducting more than a dozen tests
on the appellant, including neuropsychological, intellectual, and personality tests. At
some point, the defense team asked Dr. BM about the mitigation specialist’s suggestion
that additional testing and inquiry be conducted into the possibility of a traumatic brain
injury (TBI). Although trial defense counsel were aware that the Government would
likely fund additional expert assistance if they needed it, they ultimately accepted
Dr. BM’s conclusion that there was no connection between the accident and the murders,
and that there would be no value to be gained by conducting further neuropsychological
testing. Trial defense counsel conducted no further investigation into the possibility of a
TBI and introduced no evidence of the motorcycle accident at the appellant’s trial.

       The appellant asserts trial defense counsel were ineffective when they failed to
investigate and develop potential mitigation evidence related to the motorcycle accident.
The argument can be summarized as follows: (1) the appellant was involved in a
motorcycle accident on 22 February 2004, four and a half months before his crimes;
(2) occurrence of a blow to the head during the accident itself is sufficient to establish the
appellant suffered a traumatic brain injury, and even if it is not, his symptoms
immediately following the accident in combination with a behavioral change noted in the
months following the accident clearly do so; (3) TBIs can cause disinhibited impulse
control and aggressive behavior; (4) therefore, the appellant was prejudiced when his trial
defense counsel did not introduce evidence of the motorcycle accident, because there is a
reasonable probability the panel would have found the injury mitigating on the question




                                             40                             ACM 36785 (recon)
of the appellant’s moral culpability and imposed a sentence other than death.

       In the abstract, and considering only the unrebutted assertions listed above, the
argument sounds reasonable. However, our review is not limited to favorably-presented
assertions. Instead, we “must consider all the evidence—the good and the bad—when
evaluating prejudice.” Wong v. Belmontes, 558 U.S. 15, 26 (2009). “In assessing
prejudice, we reweigh the evidence in aggravation against the totality of available
mitigating evidence.” Wiggins, 539 U.S. at 534. The question is whether if the members
had been able to place the additional evidence “on the mitigating side of the scale, there
is a reasonable probability that at least one [member] would have struck a different
balance.” Wiggins, 539 U.S. at 537.

        Regardless of whether counsel’s performance was deficient, in order for an
appellant to demonstrate prejudice under the second prong of a Strickland analysis, the
appellant bears the burden on appeal of demonstrating a reasonable probability that but
for his counsel’s error(s), there would have been a more favorable outcome. Strickland,
466 U.S. at 694. In other words, it is not enough for the appellant to show that his
counsel overlooked certain mitigation and extenuation evidence and that such evidence
might have made a difference; rather, the appellant must show that such overlooked
evidence would have been sufficiently persuasive to give rise to a reasonable probability
of a different outcome. Id. at 695.

       As discussed below, we agree that a panel member could find a TBI mitigating on
the question of a person’s moral culpability if there were evidence the injury influenced
that person’s behavior. However, the appellant has failed to demonstrate the injuries he
sustained in his motorcycle accident had any impact on his behavior the night of the
murders, or that the members would have considered an unsupported proposition in that
regard to have been sufficiently mitigating to render a more lenient sentence. We
therefore conclude that the appellant was not prejudiced by his counsel’s failure to
introduce evidence of the accident and the appellant’s injuries, because under the facts of
this case we do not find a reasonable probability of a different outcome.

       Because of the volume of after the fact interpretations—and reinterpretations—of
what the evidence actually showed, or should have shown, it is necessary to individually
analyze the assertions made in the appellant’s argument.

                               (a) The motorcycle accident

       There is no dispute the appellant was involved in a motorcycle accident on
22 February 2004. According to Ms. DP (then Technical Sergeant DH), who
encountered the appellant sometime after the accident, the appellant told her he lost
control on a patch of gravel about two blocks from his house. It is also undisputed he




                                            41                            ACM 36785 (recon)
suffered some injuries in the accident. The severity of the accident, however, is difficult
to assess. While the appellant’s post-trial affiants describe the motorcycle he was riding
as “totaled” and his helmet as “badly damaged,” the appellant evidently rode the same
motorcycle two miles to base without incident after the accident, as opposed to the two
blocks to his home. Despite the accident occurring at “the corner of a neighborhood
street,” there was no reported emergency medical or law enforcement response.

        The appellant’s mitigation expert, CP, initially described the damage to the
appellant’s helmet when she wrote, “[Capt DJ] and I noticed numerous scratches on the
helmet and that the front plate was missing.” In subsequent post-trial affidavits, her
descriptions of the damage to the helmet and motorcycle take on a more serious tone.
For example, CP writes, “The helmet was scratched, gouge [sic] in the front, and the
visor was completely missing.” Other post-trial affiants, who never saw the motorcycle
or the helmet, appear to accept as fact CP’s descriptions of the damage to both and
include it in their assessments. For example, relying on CP’s description, Dr. CA writes,
“[The appellant’s] motorcycle was badly damaged, and his helmet was scratched and
gouged in the front.” Similarly, MF writes, “I am aware that [the appellant] was involved
in a serious motorcycle accident that totaled his motorcycle, caused serious damage to his
helmet . . . .”

        Consequently, while the occurrence of the accident is undisputed, the appellant’s
post-trial commentators who describe the accident do so in terms indicating certain
assumptions about its seriousness. The post-trial affidavits establish that an accident
occurred, though the actual severity of the accident is unclear.

                        (b) Evidence the appellant suffered a TBI

      We next examine the appellant’s contention he suffered a TBI in the motorcycle
accident.

       From the opening language of the appellant’s Reply Brief, to his counsel’s oral
argument before us, the appellant argues that the accident and an unspecified period of
unconsciousness that followed are sufficient to establish that he suffered a TBI. In the
“Introduction” section of the brief, the appellant’s counsel unequivocally states an
“effective mitigation case would have included evidence that Appellant suffered a
traumatic brain injury in a motorcycle accident just four-and-a-half months before the
murders.” (emphasis added). The brief continues: “The members would have seen full-
color exhibits showing the regions of Appellant’s brain injured in the motorcycle
accident.” (emphasis added). When questioned about where, precisely, the record
demonstrated that the appellant in fact suffered a TBI, the appellant’s counsel responded,
“The very fact that he suffered from a motorcycle accident and was unconscious, that was
a brain injury of some kind, a traumatic brain injury of some kind.” When asked what he




                                            42                            ACM 36785 (recon)
based that conclusion on, counsel responded, “Your Honor, I think that’s common
knowledge. That traumatic brain injury occurs when people lose consciousness. I think
that’s—any neuropsychologist would tell you that.”

       We are not convinced the record before us provides us with such a concrete
conclusion. In the absence of what Dr. CA described as “gold standard” diagnostic tests
or results generated by his “neuroradiological technique of choice,” we have only the
record and post-trial submissions to discern how the parties would have endeavored to
establish or rebut the existence of a TBI, had trial defense counsel pursued this strategy at
trial.

        The appellant argues that if occurrence of the accident itself is not sufficient to
establish he suffered a TBI, his symptoms immediately following the accident and a
behavioral change noted in the months following the accident clearly do so. Several
critical components of the appellant’s argument—that overlooked mitigation and
extenuation evidence related to the motorcycle accident would have made a difference at
trial—rest on representations made, many now long after the fact, by the defense
mitigation expert, Ms. CP.

        Regarding acute symptoms following the accident, Ms. DP would have testified
that when she encountered the appellant after the accident, she noticed he was bleeding
over his left eye, looked disheveled, seemed disoriented, spoke slowly, and walked in a
slow and cautious manner. According to the appellant, he lost consciousness for some
unspecified period of time. After Ms. DP encouraged the appellant to seek medical
attention, medical personnel treated and released the appellant the same day of the
accident. According to the Tricare billing statements, physicians conducted a CT scan
without dye of the appellant’s “head/brain” and another of his “orbit/ear/fossa.” They
also performed an X-ray exam of his hand and “repair[ed] superficial wound(s).” There
is no evidence or suggestion that after the accident he missed work or manifested any
other physical symptoms or limitations relating to his injuries.

       While we agree DP’s observations show the appellant suffered a head injury of
some indeterminate severity, the appellant’s experts base their opinions on that fact in
combination with a reported change in the appellant’s personality to support their
conclusion the appellant suffered a TBI. The evidence in the record of such a personality
change, however, is tenuous and in many respects substantially contradicted. The only
data point for this alleged personality change is a summary of an interview written by CP,
the defense mitigation specialist. After interviewing “approximately a hundred
individuals,” CP found one person who, according to her interview summary, said the
appellant’s behavior changed following the accident. Specifically, CP reported that [the
appellant’s] roommate, EL, said the appellant “became more outspoken. He wouldn’t put
up with anything anymore. After the accident was the first time [EL] saw him in a




                                             43                            ACM 36785 (recon)
fight.” 12

       Relying on CP’s report of EL’s statement, one post-trial affiant—an attorney and
death penalty litigation expert—argues that additional testing was obviously necessary:
“[A]t least one potential witness noted [the appellant’s] personality changed. Where he
had previously not been violent, he was prone to emotional outbursts. . . . ‘When a person
seems to have undergone a sudden personality change . . . possible links to brain injury
should be assessed.’” (emphasis added). Similarly, Dr. FW makes repeated references to
the appellant’s “behavioral changes” as evidence “highly typical of the impairment in
emotional self[-]regulation and impulse control that results from anterior temporal lobe
damage.”

        Neither MF, Dr. CA, nor Dr. FW, however, appear to have considered other
materials within DP’s and CP’s post-trial affidavits that contradict the suggestion the
appellant’s personality changed from a non-confrontational, pleasant co-worker or
acquaintance to someone prone to violence or emotional outbursts. For example, CP
elsewhere states that a correctional officer, who supervised the appellant during his
pretrial detention in the Houston County jail, “spoke very positively” of him and
described him as “dependable and respectful.” CP reports that Deputy LF, who guarded
the appellant during the Article 32, UCMJ, hearing and who maintained contact with him
for some unspecified time thereafter “would have testified to [the appellant’s] good
behavior, readiness to follow instructions, and obedience.” CP additionally states
Airman KL “had never seen him angry,” 13 and Senior Master Sergeant JM “described
[the appellant] as smart and quick, never angry.” 14 Similarly, Ms. DP states in her own
post-trial declaration she would have testified “the [appellant] she knew was good, kind,
funny, and . . . did not have any enemies. [She] also would have testified that [his
crimes] were completely out of character.”

       Aside from the post-trial affidavits, the transcript of the trial includes additional
testimony, apparently not considered by the appellant’s post-trial psychological experts,
that contradicts EL’s opinion, as reported by CP, of the appellant’s personality change.
Most notably, CW, the appellant’s biological father, testified that two weeks prior to the
murders he took the appellant on a week-long golf vacation in Europe. First they visited
Capernwray, a private college the appellant attended after high school, so the appellant
could pick up a copy of his transcripts and show his father around the campus. From
there they “drove to the nearest golf course, played golf. Got up the next morning and
12
   There is no affidavit or statement from EL in the record before us. Rather, the only record of what EL would
have allegedly said is contained in CP’s notes recounting her conversation with him.
13
   CP’s affidavit does not specify whether Airman KL’s observations occurred before or after the accident.
14
   CP’s affidavit does not specify whether Senior Master Sergeant JM’s observations occurred before or after the
accident, but as he was the appellant’s second line supervisor, it is reasonable to assume he was aware of the
appellant’s behavior before and after 22 February 2014.




                                                      44                                   ACM 36785 (recon)
drove to another place, played golf. That’s all [they] did for seven days.” Trial defense
counsel asked CW, “When you were together, did you notice any difference in his
behavior or how he acted and what was the young man you had known all his life?” CW
replied, “Not one bit.” Trial defense counsel pressed, “And so did you notice any
differences in [the appellant] you’d known his whole life and [the appellant] that was
with you—no clue?” CW answered, “No. No. Not one—nothing. No clue.” Although
some witnesses at trial did testify to personality changes in the appellant, these changes
were observed before the motorcycle accident and did not relate to a disposition towards
violence or emotional outbursts. 15

       The appellant also told the Government’s forensic psychologist, Dr. CR, that while
it was true he had been involved in a fight, he became involved only because he was
trying to break it up. While it is not inaccurate to say the appellant was “involved in a
fight” following the accident, his own words explaining his non-violent motivation for
doing so provide an important context for evaluating his proneness toward violent
behavior or emotional outbursts. During the interview with Dr. CR, the appellant also
“denied having experienced any cognitive impairment or behavioral changes at any time
before his arrest and specifically denied having had any difficulty in the areas of
controlling anger, rage or impulsivity.”

       The only data point standing for the proposition that the appellant’s motorcycle
accident changed his personality, then, comes from CP’s recitation of a conversation she
had with EL. CP described EL, moreover, as “arrogant,” “flighty,” and “not happy . . .
quite upset” with her and the defense team because they refused to return the motorcycle
helmet EL had purchased from the appellant’s father. 16 Capt DR describes the following
defense concerns about EL:

         [CP] had interviewed [EL] at least once, possibly multiple times, and
         expressed concerns to us about his possible testimony. We also had
         concerns that [EL] had proven to be an unfaithful friend in the time leading
         up the [sic] trial and had said things negative about [the appellant]. We
         concluded [EL] would have been a risky witness.

15
    For example, MP, the appellant’s mother, spoke of the changes she saw in her son following his entry into the
Air Force, testifying that she had become aware that he had started drinking. MR, a friend with whom the appellant
had started a grass-cutting business in junior high school, testified that when the appellant came home for a visit in
December 2003 he had changed. MR described his surprise at the appellant’s use of swear words, that he had “five
or six” girlfriends, and that he “was bragging about partying and doing all kinds of stuff.” By early 2004, the
appellant—whose parents and friends described him as a teenager as shy and immature around women—had
confided in a close friend, Staff Sergeant PS, that he was having an affair with a married woman who had a 17-year-
old daughter, and that “eventually he was going to try and sleep with the daughter as well as the mother.”
16
   This is also circumstantial evidence that the motorcycle helmet was not badly damaged. We find it improbable
EL would have been upset about relinquishing a badly damaged helmet.




                                                         45                                     ACM 36785 (recon)
       Finally, neither the record nor CP recount that others close to the appellant, such
as SSgt PS, who described herself as the appellant’s “best friend,” Mr. CC, appellant’s
roommate from February through July 2004, or SrA SF, who “was going to have [the
appellant] be his best man at this [sic] wedding,” reported any post-accident personality
change in the appellant. Substantial evidence, including the testimony of CW and
Dr. CR, squarely rebut the assertion that the appellant’s personality dramatically changed
as reported by CP’s characterization of EL’s observation. Consequently, to the extent the
evidence of a TBI is based on purported changes in the appellant’s personality, we find
this point to be resoundingly contradicted by the record.

                     (c) The battle of the experts waged in post-trial affidavits

        We turn now to the competing opinions of the experts submitted by the parties.
Dr. FW, whose declaration was submitted by the appellant, takes issue with what he
describes as numerous errors made by Dr. AM, Dr. BM, and Dr. CR, when they arrived
at their independently derived conclusions that there was no connection between the
motorcycle accident and the appellant’s actions the night of his crimes. Dr. FW goes so
far as to say that, had he been contacted by the defense, he would have told them “with
proper scanning . . . [he] would expect to find not only whether [the appellant] suffered
from a TBI, but [he] would also be able to locate the lesion and identify the specific
behavioral abnormalities associated with the lesion.” In point of fact, Dr. FW, and
another expert, Dr. CA, cannot tell us the appellant actually experienced a TBI; the most
they tell us is that certain behaviors or symptoms exhibited by the appellant are consistent
with a TBI.

        As the appellant’s counsel observed during oral argument, “[t]o what extent that
brain injury affected [the appellant’s] actions on the nights [sic] of the murders is a
separate question and whether that affected the left anterior temporal lobe as [Dr. FW]
said, would require further testing.” Nevertheless, more than two years since Dr. FW’s
first affidavit raised verifiable brain injury as a potentially overlooked mitigating factor,
no such scanning has ever been performed. 17

       Dr. FW and Dr. CA attack the expert opinions supporting the Government by
saying that “gold standard” diagnostic methods were not brought to bear by the first three

17
   The affidavits by Dr. FW and Dr. CA both appear to say that while the symptoms of a TBI may abate over time
as the brain essentially finds a way to create new, usable pathways around brain tissue damaged by a TBI, evidence
of the TBI itself remains detectable if the proper imaging technology is used. According to Dr. FW, “[C]linical and
research experience both teach that even permanent brain damage typically shows some remission in symptoms as
the temporarily dysfunctional areas (surrounding the overtly destroyed areas) recover, and as other initially impaired
functions are re-programmed and re-routed through healthy brain tissue.” If the correct scan or scans were to be
conducted, the threshold issue—whether the appellant suffered a TBI in the motorcycle accident—could have been
conclusively resolved. We have no such evidence before us.




                                                         46                                     ACM 36785 (recon)
forensic psychologists who evaluated the appellant. 18 However, instead of providing
evidence of what such tests—performed by them or others—have subsequently shown,
they appear to aver simply that the right tests, performed correctly, could reveal a TBI
and its effects. Dr. FW also states that the Government’s experts overlooked and misread
tests pertaining to the appellant’s grip strength and apparent disparities between his
verbal and visual memory capacity. But what Dr. FW does not provide us is any sort of
reference by which to assess the diagnostic persuasive weight of those indicators. For
example, though he notes the percentile of visual and verbal memory as being in the top
and bottom tenth percentiles, respectively, he does not say “and X percent of people who
demonstrate such disparities in fact have a TBI in the left temporal lobe.” He says verbal
memory deficits “are typical of left anterior lobe damage.” This raises more questions.
What else are they typical of? If typical of specified conditions, how often? Can such
disparities signal nothing at all? If the appellant’s dominant hand was weaker, how much
weaker was it? How unusual is it for a person to have a weaker dominant hand? Are
there reasons not related to a TBI that a person might have a weaker dominant hand? 19

      At the end of the day, Dr. FW’s conclusions remain, just as Dr. CA described
them when commenting on Dr. FW’s comments, tentative and qualified.

       Under similar circumstances, when addressing how to approach a post-trial battle
of the experts, our superior court has observed,

         “We . . . note that divergence of opinion among psychiatrists is not novel
         and does not provide a legal basis for concluding that one or the other is
         performing inappropriate tests or examinations. In Ake, the Supreme Court
         said: ‘Psychiatry is not, however, an exact science, and psychiatrists
         disagree widely and frequently on what constitutes mental illness, on the
         appropriate diagnosis to be attached to given behavior and symptoms, on
         care and treatment, and on likelihood of future dangerousness.’”

United States v. Gray, 51 M.J. 1, 17 (C.A.A.F. 1999) (quoting Ake v. Oklahoma,
470 U.S. 68, 81 (1985)).

       The opinions proffered by the appellant’s post-trial experts conflict not only with
the opinions of other forensic psychologists who evaluated the appellant, but they also
conflict to some extent with one another. For example, a death-penalty defense expert,
18
   Neither Dr. FW nor Dr. CA have met or evaluated the appellant.
19
    The information we do have before us would seem to suggest the appellant’s right-handed grip strength at the
time of the murders was substantial. Dr. FW states that the appellant is right handed, and the appellant told the
interrogating AFOSI agent he used his right hand to inflict the fatal wound on Senior Airman (SrA) AS. Whatever
grip strength the appellant had in his right hand enabled him to thrust the knife into the victim’s chest with sufficient
force to reach the hilt, leaving visible abrasions noted during the autopsy.




                                                           47                                     ACM 36785 (recon)
MF, filed a post-trial affidavit supporting the appellant. She criticized the methodology
used by Dr. BM, who concluded the accident had no connection to the murders, on the
basis that “only three of [the tests he performed] were designed to identify neurological
dysfunction.” 20 Dr. CA, on the other hand, states “I can attest that the methodology used
by [Dr. BM] . . . is consistent with a standard of practice in the field.”

       The post-trial battle of the experts in the case now before us illustrates precisely
the reason our superior and sister service courts are disinclined to descend into the
“‘psycho-legal’ quagmire of battling psychiatrists and psychiatric opinions, especially
when [as in the case sub judice] one side wages this war against its own experts by means
of post-trial affidavits.” United States v. Gray, 51 M.J. 1, 17 (C.A.A.F. 1999) (citing
Harris v. Vasquez, 949 F.2d 1497, 1518 (9th Cir. 1990)).

       The appellant was evaluated before trial by two forensic psychologists: Dr. AM, a
forensic psychologist, who performed the sanity board; and Dr. BM, a forensic
psychologist and J.D., who was the defense expert consultant. During the trial, following
the Daubert hearing, the appellant was evaluated by a third forensic psychologist,
Dr. CR, pursuant to a joint request by trial and defense counsel. None of these
extensively educated and experientially well-pedigreed specialists believed the appellant
suffered from any mental disease or defect that would operate as a defense or mitigating
factor resulting from the motorcycle accident. Nearly nine years after the date of the
appellant’s crimes—roughly eight from his trial—two other mental health experts,
neither of whom ever met the appellant, let alone evaluated him, have provided written
statements attacking the methodology and diagnoses of three other experts who have.
They do so based on admittedly incomplete information, 21 through the lens of hindsight,
and informed at least in part by surgical extracts from larger conversations presented, or
in some cases subtly reframed, by CP, whose job as she describes it is “to research,
obtain, evaluate and coordinate the use of any and all information from the life of the
defendant that may serve in the process of mitigation.” 22

                                                  (d) Prejudice

20
    The argument raises the question: How many tests specifically designed to identify neurological dysfunction
must a defense team, or a defense-retained expert consultant, conduct to meet an acceptable standard of
investigation? Notwithstanding MF’s criticism of the tests Dr. BM performed as “incomplete,” we note the
Supreme Court has considered two of those tests, the STROOP and Trail Making-B tests, to constitute “clear and
compelling evidence” of an appellant’s frontal lobe brain function. See Sears v. Upton, 561 U.S. 945, __, 130 S. Ct.
3259, 3263 (2010).
21
    Dr. CA points out she bases her conclusions “not on independent review of the underlying facts and testing data
but on the facts as set forth in [Dr. W’s] two declarations and [Ms. DP’s] declaration.” She also characterizes
Dr. FW’s conclusions as “qualified and tentative, as I would expect them to be, given that additional neurological
scans were not performed.”
22
    We do not suggest any willful misrepresentation by any affiant. However, see section III.B.2.(b), post, regarding
trial defense counsel’s description of the reliability of CP’s summaries of potential witness testimony.




                                                         48                                    ACM 36785 (recon)
       Even if we assume, arguendo, that there was sufficient evidence available to the
parties below to establish the appellant sustained a TBI in the motorcycle accident, we
are then bound to inquire: Is there is a reasonable probability that the omitted evidence
would have changed the panel’s conclusion that the aggravating circumstances
outweighed the mitigating circumstances and, hence, the sentence imposed?

       According to Dr. FW, brain damage is “essentially certain” if the unconsciousness
from the trauma lasted as much as five minutes after the blow to the head and is present
in the majority of cases of unconsciousness lasting for less than five minutes. Even so, he
acknowledges that the “severity [of such damage] . . . would still need to be assessed.”
The parties do not dispute that the appellant was rendered unconscious for some period of
time as a result of the motorcycle accident. The unanswered question is the extent to
which this accident impacted the appellant, or if it did so at all.

       While various affidavits and arguments now before us stand for the proposition
that TBIs occurring to a person’s left frontal temporal lobe may be related to increased
aggressiveness and disinhibited impulse and emotional control, other authority cited by
the appellant suggests that is not the norm. The appellant argues “a 2003 study found
that 33.7% of traumatic brain injury patients demonstrated significant aggressive
behavior during the first six months after their injury.” The obvious implication of this
data and the assertion it supports is that the other 66.3% did not. If two out of every three
people suffering a TBI do not demonstrate significant aggressive behavior, what evidence
available to the parties at the trial level would or could have tied such an injury to the
appellant’s actions in the early morning hours of 5 July 2004?

       The crux of appellant’s claim with regard to the accident and a TBI is that his
counsel prejudicially erred by not showing the members the damaged helmet and arguing
the appellant was less culpable for his actions because a brain injury he sustained made
him act impulsively, impaired his cognitive functions, and suppressed his emotional self-
regulation. If they had done so, the appellant argues, there is a reasonable probability the
jury would not have sentenced him to death.

       The Government, however, would have been entitled to marshal evidence to
counter such an argument had trial defense counsel made it. When examining for
prejudice, we look not only at what evidence trial defense counsel could have presented,
but also at how the Government could have responded in light of all the evidence. As
observed by the Supreme Court in Belmontes, “In balancing the mitigating factors against
the aggravators, the [lower court] repeatedly referred to the aggravating evidence the
State presented as ‘scant.’ That characterization misses Strickland’s point that the
reviewing court must consider all the evidence—the good and the bad—when evaluating
prejudice.” 558 U.S. at 26 (citation omitted).




                                             49                            ACM 36785 (recon)
       The appellant’s side of the balance includes CP’s recitation of EL’s observation
about the appellant’s change in personality. That recitation forms the basis for a
substantial portion of the appellant’s post-trial experts’ qualified conclusions 23 that a head
injury reduced the appellant’s ability to refrain from acting impulsively, controlling
violent outbursts, or thinking clearly when he was killing two people and seriously
wounding a third. On the Government’s side of that balance, trial counsel could
reasonably be presumed to have pointed out the other evidence squarely contradicting
any suggestion that the appellant’s actions were impulsive and that he was unable to think
clearly.

       SrA AS first called the appellant at 0137 hrs. Over the course of the next several
hours, when telephone exchanges between the appellant, SrA AS, and SrA JK made it
clear that SrA AS intended to inform the appellant’s supervisory chain about his
lecherous behavior toward JS and with another married woman, the appellant
methodically executed a protracted, multi-step plan to kill the people who threatened to
derail his career. The appellant had an IQ in the top third of the population, there is no
indication his injury impacted his ability to perform his job as an avionics technician in
an acceptable fashion, and Dr. CR observed no deficits in the appellant’s ability to plan,
organize, sequence, or abstract. Based on his two-hour interview with the appellant,
Dr. CR concluded:

        [The appellant] demonstrated meticulous planning, organization skills to
        carry out his plan, a logical sequencing of behavior to accomplish his goals,
        and abstract reasoning.

        ....

               A question arises whether it is clinically possible that [the appellant]
        could have suffered a severe transient cognitive impairment from his
        February 2004 accident that impaired his mental functioning on the night of
        the July 2004 murders, but then totally remitted afterward such that an
        evaluation conducted some fourteen or fifteen months later (September to
        October 2005) might fail to show signs of impairment. While almost
        anything is clinically possible, I consider it extremely unlikely that such a
        sequence of events would occur, especially given [the appellant’s] detailed
        explanations for his behavior. First of all, [the appellant’s] recounting of
        his reasoning and behavior at the time of the offenses, including asocial
        motivation and planning, is not consistent with cognitive impairment nor is
23
   As noted previously, tests or imaging that would meet the confirmatory “gold standard” for appellant’s experts
have never been conducted.




                                                       50                                   ACM 36785 (recon)
       his intact memory for details of those events.

       [The appellant] has provided extensive information inconsistent with
       impulsivity. He was negative for any symptoms of brain impairment . . .
       when evaluated and described no such symptoms occurring while
       committing the underlying offenses. [The appellant] denied having
       experienced any cognitive impairment or behavioral changes at any time
       before his arrest and specifically denied having had any difficulty in the
       areas of controlling anger, rage or impulsivity.

       The results of one component of the Minnesota Multiphasic Personality
Inventory-2 (MMPI-2), which Dr. CR administered during his evaluation, comported
with the appellant’s self-reported assessment that he experienced no change in aggressive
behavior. Dr. CR reports, “Various scale results [from the MMPI-2] indicated no
neurological symptoms . . . no general health concerns . . . nor anger/explosive
behavior . . . .” Dr. CR’s assessment appears to line up with the opinion of another of the
appellant’s post-trial psychological experts, Dr. TR, who opines that group statistical data
applied to the appellant “reveals no known risk factors that would suggest raising his
violence risk estimate above the low cited base rates.” Dr. TR also opines that “[s]everal
factors pointed to [the appellant] having a lower risk for serious prison violence than the
rate of capital offenders in general . . . .” Finally, the testimony of CW stands in stark
contradiction to the after-the-fact suggestion that the motorcycle accident changed the
appellant’s personality.

       “The appellant bears the heavy burden of establishing his trial defense counsel
were ineffective.” United States v. McPherson, 72 M.J. 862, 870 (A.F. Ct. Crim. App.
2013) (citing United States v. McConnell, 55 M.J. 479, 484 (C.A.A.F. 2001)). “There is
no reason for a court deciding an ineffective assistance claim to approach the inquiry in
the same order the Court in Strickland did, or even to address both components of the
inquiry if the defendant makes an insufficient showing on one.” McConnell, 55 M.J. at
481 (quoting Strickland, 466 U.S. at 697) (alterations and quotation marks omitted). “An
error by counsel, even if professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the judgment.”
Strickland, 466 U.S. at 691.

      Although the motorcycle accident is undisputed, it has never been determined that
the appellant sustained a TBI. But even assuming he did, not all TBIs make a person
more prone to violence. More importantly, even if some TBIs do make a person more
prone to violence, the evidence in this case resoundingly contradicts the single data




                                             51                           ACM 36785 (recon)
point 24 suggesting the appellant’s behavior changed following his accident. Simply
raising a possibility of a different outcome, had information about the motorcycle
accident been introduced and argued, is not enough. Strickland places the burden on the
appellant to show a reasonable probability that the result would have been different.
466 U.S. at 694. The appellant has failed to meet that burden.

       We do not dispute the appellant’s assertion that panels find mental disorders
mitigating as to the question of a person’s moral culpability in death cases when the
evidence supports a conclusion that a specific injury influenced a person’s behavior.
Such evidence is simply not present in the case before us.

       Whether trial defense counsel rendered substandard assistance under the
deficiency prong of a Strickland analysis may be subject to debate. Considering the role
of the mitigation specialist in this case, whose sole function was to develop mitigation
evidence, the argument may be made that trial defense counsel were deficient for not
further investigating the possibility of a TBI—in spite of their forensic psychologist’s
conclusion that doing so was unwarranted—when such an investigation could have
produced concrete evidence of an injury through “gold standard” diagnostic testing. One
could also argue that as sentencing in a capital case involves the weighing of mitigating
and aggravating factors, a premature foreclosure of any potentially mitigating factor, no
matter how tenuous, could raise doubts about the professional judgment of the trial
defense counsel. Finally, the very existence of disagreement between two of the defense
team’s experts, CP and Dr. BM, on the question of whether to further investigate the
motorcycle accident, could be argued to support the proposition that further examination
was warranted. Conversely, on the facts now before us, where CP’s investigation on
behalf of the defense produced only one witness in a hundred who observed a personality
change in the appellant following the accident, where there was substantial evidence the
appellant’s personality was not at all affected by the accident, and where the defense’s
forensic psychologist concluded there was no reason to pursue such a theory, counsel
may be deemed to have acted reasonably. We base our holding on the second prong of a
Strickland analysis, finding no prejudice to the appellant.

                      2. Mental Health Records of the Appellant’s Mother

       The appellant asserts his trial defense counsel were ineffective when they failed to
investigate his mother’s mental health history and obtain her mental health records from
an inpatient stay when the appellant was in his early teens.

        As discussed above, trial defense counsel’s rationale for not pursuing the known
24
  The single data point indicating a change in the appellant’s personality is CP’s memorandum recounting EL’s
observations about the appellant.




                                                     52                                 ACM 36785 (recon)
lead of possible traumatic brain injury was because Dr. BM did not believe the accident
contributed to his crimes. Instead, trial defense counsel acknowledged their theory of the
case, based upon Dr. BM’s evaluation, was that the appellant’s actions were directly
influenced by his historical familial experiences, childhood, and the manner and
environment in which he was raised. At least one of the trial defense counsel
acknowledged that “as part of the case theory rested on Dr. [BM]’s assessment of [MP]’s
past mental health concerns . . . we would have wanted these records.” However, none of
the trial defense counsel presented any tactical, strategic, or other reason as to why
investigation into this known lead was not pursued. In addressing this issue, civilian trial
defense counsel stated, “To the extent we did not seek [MP]’s mental health records, in
my mind it was simply that Dr. [BM] did not ask us to obtain them. Had he done so, we
would have had trial counsel obtain them.”

       The appellant argues that although the members were generally aware of MP’s
treatment at Minirith Meier New Life Clinic [hereinafter “MMC”] through “a passing
reference to [MP’s] stay at [MMC] for depression from her husband, [GP], and some
general discussions of [MP’s] family history of mental issues, no witness described,
explained, or discussed in any manner any of the results of [MP’s] psychological testing
from the [MMC] or her doctors’ conclusions.” (record citations omitted). Additionally,
the appellant argues, “No witness suggested that [MP] had struggled with depression for
years, or ‘has trouble with anger and setting boundaries. That she was having many
vegetative signs of depression; hopelessness. Or that she has had some explosive temper
with yelling.’” (internal brackets and alterations omitted).

       CP felt strongly that the defense team should have subpoenaed MP’s mental health
records regarding her treatment at the MMC. In one of her six post-trial affidavits, she
uses the following terms to describe her frustration:

              As part of my investigation, I learned that [MP, the appellant’s]
       mother, had been placed in a mental health facility when he was a young
       boy. I also had learned . . . [the appellant’s] family, on both sides, had a
       history of mental diseases and/or afflictions. I therefore believed obtaining
       as much information as possible about the mental histories of [the
       appellant’s] family was necessary.

              I created a release for [MP] to sign in order for [the defense team] to
       obtain records pertaining to her institutionalization. Despite my repeated
       requests to her, [MP] refused to sign the release. . . .

               [MP’s] refusal to allow us access to her mental health records upset
       me. . . . [B]ecause of her mental health issues, [MP] was removed from the
       home and placed in an institution specifically for mental health




                                             53                            ACM 36785 (recon)
      treatment. . . .

             I told MP that we are trying to save her son’s life and that this
      information can help. This did not seem to have an effect on her. I found
      this appalling and took my concerns to [the appellant’s] defense counsel.

(emphasis added).

        DB, an attorney with expertise defending death penalty cases, observes in a post-
trial affidavit:

      [T]he defendant’s formative environment—not only at the time of his
      mother’s psychiatric hospitalization when he was 14, but throughout his
      short life prior to that time—was marred by circumstances that could have
      been expected to do grave harm to any young child. Specifically, the
      records indicate or suggest the following:

             ....

                   [The appellant’s] biological father was “addicted to alcohol
             and drugs” during the brief time when he was married to [MP] (and
             when [the appellant] was born).

                  The home environment into which [the appellant] was born
             was marked by physical abuse of his mother by his father.

             ....

             . . . [T]he deleterious impact of his mother’s serious mental illness
             would have been exacerbated by his social isolation and lack of peer
             interaction or educational supervision at school.

             ....

      Taken together, these records tend to establish both a genetically-based risk
      that [the appellant] would suffer from substance abuse and major mental
      illness, and also suggested that his childhood, from infancy through early
      adolescence, may have been marked by domestic violence, chronic fear,
      emotional withdrawal, social isolation, and pervasive instability.

(emphasis added).




                                           54                            ACM 36785 (recon)
       Similarly, Dr. RC, a clinical psychiatrist submitted a post-trial affidavit in which
he offers his opinion based on “review[ing] 30 hours of interview with and testing of [the
appellant], psychiatric evaluations (including the original sanity board) of [the appellant]
performed by other mental health professionals, the psychiatric evaluation of [MP] . . .
and the transcripts of the trial,” and meeting with and evaluating the appellant. In his
opinion, the appellant’s “upbringing and biological inheritance severely inhibited his
development.” After reciting his interpretation of what the MMC records said about
MP’s history of depression and emotional difficulties, noting “numerous markers for
profound personality disorder[s],” he writes that “while [MP] completed high school, she
had indulged in alcohol and illegal drugs on a reasonably regular basis.” He eventually
concludes, “It is my professional opinion that [the appellant] was stunted by
environmental and biological factors such that he did not have the emotional capacity
commensurate with his biological age.”

       Such declarations and the appellant’s arguments paint a picture of a child born to
two drug-addled parents, whose upbringing in their care, in combination with other
disadvantaging circumstances, left him with irreparable emotional injuries one would
reasonably expect as a result of severe physical and emotional adversity. But voluminous
other evidence produced at trial painted what can only be described as a markedly
different picture.

                 (a) Evidence in the record regarding MP’s mental health

       MP was the fourth of five children in her family. She had what she described as a
“great relationship” with her mother and denied any history of physical abuse. When her
father began acting violent toward her mother, on occasion requiring police to come to
the home, her family life became difficult. When she was in the eighth grade, her mother
attempted suicide. Shortly thereafter the family split up, and she lived with two sets of
neighbors, the second of whom paid for her college. At trial, MP testified she never
became part of social services, was an avid reader, graduated from high school in 1975,
and went on to earn a bachelor’s degree in Journalism. Following college, she worked in
what she described as “some pretty good jobs.”

        MP met CW in 1980, married him roughly eight months later, then quit her job
three or four months after that when she became pregnant. Prior to the appellant’s birth
in June of 1982, MP and CW split chores in the home and enjoyed many athletic
activities together. CW coached her soccer and softball teams. MP drank socially from
the time she met CW until their divorce a few years later. She tried cocaine once but
denied any other illicit drug or cigarette use. CW testified that after the appellant was
born, MP “spent a lot of time at the tennis club. She went to photography classes, stained
glass classes, woodworking classes, acting classes. She did a lot of that in the evening,




                                            55                             ACM 36785 (recon)
and so [CW] got to be with [the appellant] and change him and feed him and bond with
him.” CW said this experience “was wonderful.”

       When asked to describe her marriage to CW, MP said, “I really appreciated
[CW]’s—at that time CW was gregarious and fun and I was looking for someone to help
me feel secure. And I know . . . I felt very secure with him.” Later she described how,
over time, he became verbally abusive. “So you know, it was disintegrating . . . I didn’t
realize he was an alcoholic. And I didn’t realize that there was a drug problem at that
time too. So, that kind of snuck in the back door as well.” The couple divorced when the
appellant was three years old.

       Between his parents’ divorce in 1985 and about a year and a half later when MP
moved to Wichita with him, the appellant spent Wednesdays and every other weekend
with CW, during which time CW “never missed a [visitation] day” and “never missed a
support check.” MP decided not to go back to work immediately after the divorce, in
order “to stay and just kind of sort things out.” She eventually got a “very good job” as a
copywriter and ended up staying there for another three years. She bought a house and,
with the help of her mother, who by that time had gotten her life back together and had
become a part of the appellant’s life, managed well as a single working mom.

      After MP and the appellant had moved to Wichita, the appellant spent summers
and every other Christmas with CW. CW described himself during that time as “a
Disneyland dad.” He explained:

              I bought [the appellant] a four-wheeler. I had a car and a boat. [The
       appellant] would get out in the backyard and buzz around. . . . He just had a
       ball. We’d take it out to the lake. We went to the lake every Sunday. I
       never could get him to ski, but he sure liked to drive the boat.

       In 1988, MP and the appellant moved to Wisconsin, as MP wanted to put some
distance between the two of them and CW, whose life was starting to spiral downward.
MP took a job with another catalogue, and the appellant attended school during the day.
After school hours, before MP got off work, the appellant spent time with other children
at a church across the street from his school.

       Though CW admitted to having struggled with drugs, he testified that his problem
did not start adversely impacting his life until MP moved to Wisconsin, when the
appellant would have been about six years old. He testified that he started using drugs
during the appellant’s visitations, after the appellant would go to sleep. Later, when the
appellant was eight or nine, CW said he used drugs around the appellant, but added, “He
didn’t know what I was doing. . . . He had his own TV, VCR, Nintendo, and he’d be in
his room playing. That’s what he liked to do. That’s what he basically did.” CW




                                            56                            ACM 36785 (recon)
explained that he tried to make the appellant’s visits with him as enjoyable as possible:
“I wanted to be Disneyland dad. I wanted him to do nothing but have a good time.”

      After MP married Dr. GP, whom she had met in 1988, she again became a stay-at-
home mom. She experienced some frustration associated with the appellant’s visits to
CW. While CW had very few rules and would let the appellant do essentially anything
he wanted, MP’s rules were considerably more strict when the appellant returned
home. 25 MP testified:

        [The appellant] came home usually constipated, you know, just wired up. I
        think they kind [sic] of like go, go, go. It was just not a real restful time. I
        had to like just slow life down a little bit. . . . [H]e loved Legos and so we
        would—I would just buy Legos and we would just sit there together, you
        know, not that we had to talk a lot, but to accomplish something together.
        So, it was just like I had to just slow life down and get reconnected with
        him.

        CW described how at a certain point his drug use got out of control and he fell into
an “abyss” and “hit bottom.” But during that time, when the appellant was about
10 years old, MP discontinued the appellant’s visitations with CW. CW agreed with
MP’s decision: “I totally agreed because I was in no shape to watch a kid. I was in the
abyss.” As the appellant’s biological father, CW stated he was never violent during the
entire course of their relationship, but he believed he was verbally abusive. He described
an occasion when he found the appellant, at the age of six or seven, “covered in blood,”
so he rushed him to the hospital. The doctor explained to CW “[the appellant] just had a
nose bleed, and he swallowed the blood and he just regurgitated.” Nevertheless, CW was
concerned that his verbal abuse was causing the appellant to have recurrent nose bleeds,
so “from that day on, [he] never yelled at him. [He] never verbally abused him again.”

       CW explained that during the time he was getting cleaned up and going through
rehab, MP and her new husband, Dr. GP, were very accommodating. “Once I got to
rehab, I didn’t hide anything, and we talked about the child support and they were so
happy that I was trying to get well, that they said, ‘Don’t worry about it. We’re just
happy you’re there.’” When the appellant was 12 years old, CW started seeing the
appellant again for 10-day visitation periods. By that time CW had remarried, and the
appellant did not mesh well with his new wife’s children.

      Describing her relationship with the appellant during the years they spent together
in Wisconsin, MP testified:
25
   MP also described that on one occasion the appellant returned from a visit with CW with a knife she believed to
be inappropriate for a nine year old, so she took it away from him.




                                                        57                                    ACM 36785 (recon)
      [H]e was so much fun. I loved being his mom [crying]. There would be
      times that—many days I would just think these are just golden days. I
      taught him how to drive the stick shift and I mean we—it’s not like we
      didn’t have sparks fly, but it was, you know, he got frustrated because he
      couldn’t do the gear shifts, but, you know, that’s what it takes, but then you
      just practice and you keep going and you learn and all of a sudden, boom, it
      all fits together.

      She recounted how she helped the appellant start his own lawn mowing business
in 1986, and how she mentored him through the process:

      I worked with him, we did the books together, I took him through every
      different, you know, the stages so that he could, maybe, be later on his own
      business person. So I didn’t just do it. I took him along side and showed
      him how to do a slogan, how to present yourself to the families, and it was
      very successful. He did it for two years, employed a couple of his friends,
      saved up enough money to buy his truck that he purchased by his eleventh
      grade year.

       The same year MP helped the appellant launch his lawn business, she began to
experience difficulties coping with her family situation. After learning about the MMC,
she and Dr. GP decided it would be a good option for her to get treatment there for the
emotional difficulties she was experiencing.         She checked into the MMC on
18 September 1996 and “reported that she had been stressed out by issues related to a
summer job, teaching Vacation Bible School, and the requirements of home schooling
her children.”

       Dr. GP elaborated on what he believed were sources of friction in the home,
explaining that in addition to the long hours he worked, MP was “more free-wheeling in
terms of credit card spending.” He added:

             I’m [“]get the credit cards paid off.[”] And that has been a real
      source of problems, I guess. She likes to—she likes horses and we have
      spent a lot of money with the horses and I have not been on board at some
      points in our decision—in the decision-making to do that, and that’s been a
      source of great annoyance, at the very least, and bitterness in part.

       After the appellant was home-schooled in the seventh and eighth grades, MP and
Dr. GP sent him to Coulee, a nearby private high school. After one year at Coulee, they
sent him to Aquinas High School, “one of the best, if not the best” high schools in the
area, with “nice computer labs, good curriculum, [and] good quality teachers.” During




                                            58                            ACM 36785 (recon)
high school, where he was described as a “very fine student,” the appellant had friends,
was in the jazz band, and played numerous sports, particularly excelling in golf. His golf
coach observed:

      As the years went on, in junior year, he got better, and by the time he was a
      senior, he had improved his game quite a bit, so he played part-time varsity
      and part-time JV, so I saw a lot of improvement in his game in the next
      three years.

      ....

      I had some pretty quality golfers. It was pretty hard to crack the top five, so
      he spent his time, you know, working on his game, and eventually, when
      the opportunity came, he took advantage of it.

       Following high school graduation, the appellant spent nine months at Capernwray
Bible School, a private college in England. Dr. GP and MP paid his tuition, and the
appellant paid his travelling expenses while he was in Europe with money he had earned
at various jobs while in junior high school and high school. During his time at
Capernwray, the appellant and friends spent weekends seeing local sights, took a
week-long trip to the Canary Islands, visited Scotland, and attended a concert in London
by the musical group Smashing Pumpkins. Describing life at Capernwray, the
appellant’s friend, TW, recalled:

      It is in the lakes district and there is . . . lots of green hills and sheep, and
      we’d take walks and talk about all sorts of things. We both loved literature,
      and we talked about books, and we talked about the Bible and whatever. . . .
      We were running buddies for a while too.

       TW also described the appellant as “a good student, a deep thinker” who
“interacted well” with his peer group.

       The appellant did not appear to be suffering financial challenges. When the
appellant turned 18 years old, he also came into free and clear possession of $30,000
worth of oil well stock CW had placed into conservatorship in the appellant’s name after
the divorce.

       CW and Dr. GP both commented about the appellant’s atypical clarity of focus on
his plans for the future. Dr. GP noted, “I think he thought about being some kind of
person in the armed services who would do—he didn’t just want a desk job or a factory
job, he wanted some action.” Speaking of his son’s long term goals, CW recounted:




                                             59                             ACM 36785 (recon)
       I never met a 19-year-old so entrenched in what he—had his life all planned
       out. He not only was going to join the Air Force, he was going to work on
       his schooling and then work with the Air Force to get out, to go to college,
       come back in as an officer. He wanted to be a pilot, and eventually, maybe
       work into the astronaut program. . . . [I]t was just so strange for a 19-year
       old to have all this planned and how he was going [to] do it. He even had
       his retirement planned. He told me not to worry about his retirement—that
       he had it all taken care of. He wanted to retire in Italy, and he was already
       studying Italian.

       Based on the foregoing, there is no dispute that CW and MP came from
upbringings troubled in various ways, and that MP was diagnosed with depression and
suffered from stress at various points in her life. Likewise, it is factually accurate to say
that CW struggled with drugs, that he and MP divorced when the appellant was very
young, and that MP received treatment for stress at an in-patient counselling facility for
17 days when the appellant was a teenager. It is quite another matter, however, to
suggest that these facts, had they only been correctly presented to the members, would
have made the difference between a life and death sentence.

       Addressing whether pursuing a theory related to, or actually introducing, MP’s
mental health records would have made a difference in the appellant’s sentence is similar
to our discussion of the TBI issue above to the extent that much of the post-trial
discussion of the issues turns on the affiants’ framing of those issues.

         (b) CP and other affiant’s representations of the mental health evidence

        CP’s representations about who would have said what, if only they had been
interviewed or testified, merits comment. Some witnesses, because of affinity with a
litigant, or relationship to an issue or cause presented in a given case, may view the utility
of one theory or another, or the persuasive impact of certain evidence, differently than
counsel. In the appellant’s case, it is quite apparent that CP felt strongly about certain
components of the case that trial defense counsel chose not to pursue.

       In fact, the strength of CP’s opinions about MP’s upbringing and mental health
records created an entirely separate challenge for the trial defense team to deal with.
Capt DJ, one of the appellant’s trial defense counsel, notes that CP’s disagreement with
MP over the mental health records issue created “a growing tension between [CP] and
[MP]. The tension grew to a point that [FS] would have to serve as a messenger between
CP and MP.” Capt DR relates a similar recollection:

       I do not recall why the [mental health] records were not obtained but
       believe it very possible that [MP] would have refused to sign a consent




                                             60                             ACM 36785 (recon)
       form. This was particularly likely if [MP] had been asked to do so by [CP]
       – these two people did not seem to get along and this created some friction
       during the trial preparation.

       Discussing the divergence of opinion between himself and CP about how certain
testimony or evidence should be presented in the case, FS added:

       [I]t must be noted that while I valued [CP’s] work and input, I felt that she
       did not fully appreciate the unique challenges of defending military cases
       with members senior in rank to the accused as opposed to trying a case
       before a civilian jury. I spent most of my entire professional life defending
       military cases in front of members. My approach is to be focused in
       presenting a defense or a sentencing case. In other words, I do not as a rule
       call marginal witnesses or raise marginal issues before members. In my
       opinion there is too much risk they will ultimately hurt your case. [CP]
       seemed to be more willing to throw everything against the wall and hope
       that at least one member would respond. . . . I did not want lukewarm
       witnesses or uncharged misconduct coming before the members. In [the
       appellant’s] case, I believed we should go with our strongest witnesses and
       stay focused.

       While it may be true that CP had more experience in capital cases than the defense
lawyers who represented the appellant at trial, that is not the same thing as saying she
was in the best position to assess the pros and cons of various litigation strategies.
Moreover, we note the difficulties that could be expected to arise if a mitigation specialist
were to allow her personal disagreement with the attorneys over litigation strategy to
alienate quite possibly the most sympathetic witness available—so much so that one of
the appellant’s attorneys had to act as a messenger between the two.

      When commenting about CP’s role in helping to identify potential sentencing
witnesses, Capt DR notes that he and FS initially intended to call two witnesses based on
CP’s recommendation. However, when preparing the first of the two to testify, Capt DR
recounts:

       [I]t became clear in speaking with [the witness] that [CP] had not made him
       aware of the details of the allegations against [the appellant] when she
       interviewed him. Once we told him about the findings of the court in
       anticipation of the trial counsel’s likely cross-examination, he was no
       longer interested in helping us by testifying.




                                             61                            ACM 36785 (recon)
        When preparing the second witness, Capt DR states:

        [W]e found that [the witness] did not offer information consistent with
        what [CP] had documented in her notes. [The witness] was particularly
        “wishy-washy,” and not nearly as definitive or helpful with her opinion
        evidence as she was previously documented being according to [CP’s]
        notes. Ultimately, we decided not to call what we deemed as a weak
        witness.

       CP’s interactions with trial defense counsel and potential witnesses provide an
important background for assessing counsel’s performance. Our assessment of counsel’s
performance includes a “context-dependent consideration of the challenged conduct as
seen from counsel’s perspective at the time” and “[e]very effort must be made to
eliminate the distorting effects of hindsight.” Wiggins, 539 U.S. at 523 (internal
quotations marks and citations omitted). Though dramatic flair and passionate
presentation skills are undoubtedly useful in a mitigation specialist’s line of work, they
are less so when attempting to objectively evaluate, after the fact, the wisdom of a trial
attorney’s tactical choices or the persuasive impact of evidence he decided to use—or to
forego.

       For example, although it is a compelling sound bite in a written memo for CP to
describe MP’s mental health counseling in 1986 as “remov[al] from the home and
place[ment] in an institution,” we can be assured such a dramatic characterization would
not have gone unchallenged at trial. 26 In point of fact, MP was not removed from the
home in any sense of the word. MP and GP jointly decided she would seek treatment
there, of her own volition, because they had heard good things about the facility on a
Christian radio show and “it appeared to be a good fit for [them].” Saying a parent is
removed from a home conjures up a collection of images of parents being separated from
their children as a result of state intervention to protect endangered children. That simply
was not the case in the young life of the appellant.

       Similarly, DB concludes the records he reviewed “indicate or suggest . . . physical
abuse of [the appellant’s] mother by his father . . . [and] lack of peer interaction or
educational supervision at school,” and further, “that [the appellant’s] childhood, from
infancy through early adolescence, may have been marked by domestic violence, chronic
fear, emotional withdrawal, social isolation, and pervasive instability.”             These
observations, and by implication their utility as part of a sentencing mitigation theory, are


26
    Government counsel’s cross examination of Dr. BM at the Daubert hearing provides an informative example of
their preparedness to vigorously challenge appellant’s expert psychiatric and psychological evidence in the crucible
of focused, spirited cross-examination.




                                                        62                                    ACM 36785 (recon)
either specifically contradicted or persuasively rebutted by the testimony of numerous
witnesses at trial, the substance of which DB appears not to have considered.

       Along similar lines, Dr. RC’s statement that MP “indulged in alcohol and illegal
drugs on a reasonably regular basis” is nowhere mentioned in the mental health records
the appellant now argues should have been admitted. In fact, those records contradict
Dr. RC’s assertion; they note, “Alcohol use has been limited, not problematic at any time.
No drug or smoking history. . . . [MP] had used alcohol ‘socially’ when she was ages
23-28. She tried cocaine on one occasion and denied other illicit drug or cigarette use.”
After briefly recounting his own interpretation of the records he reviewed regarding MP’s
upbringing and social history, Dr. RC states his professional opinion that the appellant
“did not have the emotional capacity commensurate with his biological age” and
diagnoses the appellant “as suffering from a chronic dysthymia disorder.” We note that
even if we were to accept Dr. RC’s diagnosis as accurate, we would still have nothing to
suggest any relationship, in any causal or mitigating fashion, between the diagnosis and
the appellant’s crimes.

       We do not recount these lengthy record-based observations in an effort to nit-pick
minor discrepancies between the documents now before us as they relate to the
appellant’s arguments regarding a TBI or the handling of his mother’s mental health
treatment records. Indeed, the appellant’s appellate counsel have meticulously gathered
evidence and advocated vigorously in as convincing a fashion as possible. Rather, we
carefully scrutinize the appellant’s submissions in furtherance of our charge to review the
record in its totality—both the good and the bad—when assessing whether trial defense
counsel were ineffective as the appellant alleges.

                                       (c) Analysis

       The gravamen of the appellant’s argument is that if trial defense counsel would
have presented evidence or information about MP’s mental health records, there is a
reasonable probability the appellant would not have been sentenced to death. Based on
our review of the entire record and the law governing the conduct of our analysis, we
disagree.

        Again, we must look first at what the defense could have done or said in relation
to the mental health records, and second to how the prosecution could have responded in
light of all the evidence, ultimately asking whether the overlooked mitigation and
extenuation evidence, if presented, would have made a reasonably probable difference in
light of all the aggravating evidence. As to MP’s mental health records, the members
were generally aware that the appellant’s parents had what could certainly be referred to
as difficult or challenging upbringings. What the record squarely rebuts, however, is any
reasonable assertion that either of their childhoods or life experiences prior to the




                                            63                            ACM 36785 (recon)
appellant’s birth adversely impacted the appellant in a way that would have made a
difference in his court-martial. Despite the members’ general awareness of these issues,
he contends MP’s mental health records constitute the same sort of overlooked sympathy-
evoking social history and privation evidence upon which courts in other cases have
based findings of prejudicial ineffectiveness. We disagree.

       As a preliminary matter, evidence adduced at trial undercuts the appellant’s
experts’ post-trial opinions about MP’s mental health and the appellant’s parents’
backgrounds. Moreover, even if that were not the case, we would still find the
significance of MP’s mental health records pales in comparison to similar evidence other
courts have considered persuasive in capital cases where trial defense counsel were
alleged to be ineffective. 27

        A decision from our superior court, United States v. Curtis, 44 M.J. 106 (C.A.A.F.
1997), warrants some discussion. In Curtis the Court of Appeals for the Armed Forces,
in pertinent part, affirmed the findings and sentence of a Marine convicted of stabbing his
company commander and his wife to death in their home. Evidence at trial established

27
    See, e.g., Sears, 561 U.S. 945 (defendant performed at or below first (lowest) percentile in several categories of
cognitive function; suffered sexual abuse at hands of an adolescent male cousin; struggled in school demonstrating
substantial behavior problems from a very young age; failed second grade; was referred to a local health center for
evaluation at age nine, and by the time he reached high school was “described as severely learning disabled and as
severely behaviorally handicapped”; his mother’s favorite word for referring to her sons was “little mother
f[**]kers” and father was verbally abusive; his father disciplined him with “age-inappropriate military-style drills”;
and two different psychological experts testified that he had substantial deficits in mental cognition and reasoning,
that is, “problems with planning, sequencing and impulse control,” and “was among the most impaired individuals
in the population in terms of ability to suppress competing impulses and conform behavior only to relevant
stimuli”); Porter v. McCollum, 558 U.S. 30 (2009) (defendant had been placed in classes for “slow learners” and left
school at age 12 or 13; his father shot at him for coming home late once and, when he missed, beat him instead; after
enlisting in the military to get away from a disturbed home life, he fought heroically in two Korean War battles
described as “very trying, horrifying experiences” by his company commander, got shot in the leg, and came home
plagued by nightmares; he was diagnosed with post-traumatic stress disorder, had drinking problems, and was
diagnosed by a doctor who examined him as suffering from brain damage that could manifest in impulsive, violent
behavior); Rompilla v. Beard, 545 U.S. 374 (2005) (defendant’s parents were both severe alcoholics who drank
constantly; his mother drank during her pregnancy; he and his brothers eventually developed serious drinking
problems; his father frequently beat his mother, leaving her bruised and black-eyed, and bragged about his cheating
on her; on at least one occasion his mother stabbed his father; his father beat him when he was young with his hands,
fists, leather straps, belts, and sticks; his father locked him and his brother in a small wire mesh dog pen that was
filthy and excrement-filled; he had no indoor plumbing in the house; he slept in the attic with no heat; and post-trial
experts found he “suffer[ed] from organic brain damage, an extreme mental disturbance significantly impairing
several of his cognitive functions”); Wiggins v. Smith, 539 U.S. 510 (2003) (defendant had an alcoholic absentee
mother; suffered physical torment, sexual molestation, and repeated rape during years in foster care; experienced
frequent lengthy absences from school; and on at least one occasion, his mother left him and his siblings at home
alone for days without food.); Williams v. Taylor, 529 U.S. 362 (2000) (defendant had extensive records of
“nightmarish childhood,” was “borderline mentally retarded,” was committed at age 11 to state custody for two
years after his parents were prosecuted for criminal neglect of him and his siblings, and suffered repeated head
injuries as a child).




                                                          64                                    ACM 36785 (recon)
that the appellant drank at least a pint of gin within roughly half an hour before the
killings. On appeal, the appellant claimed his defense counsel were ineffective at trial,
inter alia, by (1) failing to argue his voluntary intoxication as a mitigating factor and
(2) by failing to hire a mitigation specialist or to conduct an adequate background
investigation, which would have uncovered mitigating evidence regarding the appellant’s
social history. On first review, the Court found error in neither instance. Regarding the
background investigation, the Court observed that, in light of defense’s theory pursued at
trial, “[i]t is therefore inconsequential to [the Court’s] review of ineffectiveness that an ex
parte post-trial background investigation revealed that appellant was physically,
mentally, and sexually abused as a child and had a ‘genetic predisposition to alcohol
abuse.’” Id. at 122 (emphasis added).

       On reconsideration of the case, the Court ultimately overturned Curtis’ death
sentence, holding, “We conclude that trial defense counsel’s performance during the
sentencing hearing was deficient and that there is a reasonable probability that there
would have been a different result if all available mitigating evidence had been exploited
by the defense.” United States v. Curtis, 46 M.J. 129, 130 (C.A.A.F. 1997) (emphasis
added). The majority did not further specify what the overlooked “available mitigating
evidence” would have been, but the dissenters’ comments focus exclusively on trial
defense counsel’s failure to pursue the voluntary intoxication theory. Id. at 130-32
(Sullivan, J., Crawford, J., dissenting). In isolation, Curtis could be argued to stand for
the proposition that if overlooked evidence of voluntary intoxication was sufficient to set
aside a sentence in that case, overlooking the potential existence of a TBI and MP’s
mental health records in the appellant’s case should justify such a result in his case as
well.

       As a threshold matter, we would distinguish the overlooked potentially mitigating
evidence in Curtis as less speculative than the potentially mitigating evidence the
appellant argues was overlooked in his case. Curtis was a 185-pound male who
consumed a pint of gin within a half hour prior to committing his crimes. The effects of
alcohol are, one could reasonably argue, considerably more universally understood than
the connections between the psychological impacts of a person’s social history on his
participation in an act of criminal violence. Accordingly, the potential mitigating impact
of voluntary intoxication in Curtis was significantly less attenuated than the potential
mitigating impact of a possible TBI or MP’s mental health treatment history in the
appellant’s case.

       Our understanding of Curtis is also informed by United States v. Gray, 51 M.J. 1
(C.A.A.F. 1999), in which our superior court rendered a decision two years after Curtis.
Gray was convicted and sentenced to death for a number of violent, heinous crimes,
including two premeditated murders, rapes, and forcible sodomies. Post-trial, he
attempted to raise an insanity defense and introduce additional mental-state mitigation




                                              65                             ACM 36785 (recon)
evidence via the written statements of two psychiatrists and the results of additional
sanity boards and neurological testing ordered by the then-Army Court of Military
Review. Id. at 13.

        One of the post-trial sanity boards found evidence of undifferentiated brain
damage, but the evaluating psychologist stated “despite appellant’s mild organic brain
damage, the appellant is now, and [the psychologist] believe[d] was at the time of the
offenses, able fully to appreciate the nature and quality of his acts and the wrongfulness
of his acts.” Id. at 14. On appeal, Gray challenged his death sentence alleging he was not
provided competent psychiatric assistance at his court-martial because, according to his
post-trial submissions, the doctors who previously evaluated him misdiagnosed him as
having an unspecified personality disorder instead of organic brain damage. Rejecting
his claim, our superior court noted that “the establishment of conflicting expert opinion
on an accused’s mental state does not necessarily require a rehearing.” Id. Moreover, the
Court explained, “[T]he post-trial evidence as to the extent of the organic brain damage
and its impact on appellant’s mental responsibility at the time of the offenses was
speculative and disputed.” Id. at 15.

        Gray also alleged his counsel were ineffective because, among other allegations,
they failed to challenge the professional competence of the mental health professionals
who evaluated him before trial, and because they failed to ensure a “complete and
competent mental health evaluation of appellant was performed before trial.” Id. at 19
(internal quotation marks omitted). Our superior court rejected the appellant’s attack on
his trial counsel’s performance, finding there was nothing professionally inadequate in
his counsel’s reliance at trial on the work of three mental-status experts. Id.
Additionally, the Court denied his request for a new trial, holding:

       Organic brain damage by itself does not equate to lack of mental
       responsibility for one’s crimes, and its discovery after trial does not
       necessarily require a new trial. . . . [T]he post-trial evidence was disputed as
       to the extent of this damage. More importantly, the post-trial evidence was
       somewhat speculative on the effect of this mental condition on appellant at
       the time of these offenses and it too was disputed.

Gray, 51 M.J. at 14 (citations and emphasis omitted).

       We recognize that some of the language excerpted above is taken from the portion
of the Gray decision addressing the Court’s denial of his request for a new trial, and we
do not imply that the tests or standards for evaluating such a request are the same as those
applicable when evaluating a complaint of ineffective assistance of counsel. Rather, we
cite that portion of Gray for the proposition that, read in context, to meet his burden




                                             66                             ACM 36785 (recon)
under the prejudice prong of a Strickland analysis, the appellant must produce more than
the type of “qualified and tentative” 28 assertions argued to us at this juncture.

       Courts have repeatedly found evidence of mental problems or infirmities to
constitute persuasive mitigation. “[E]vidence about the defendant’s background and
character is relevant because of the belief, long held by this society, that defendants who
commit criminal acts that are attributable to a disadvantaged background, or to emotional
or mental problems, may be less culpable than defendants who have no such excuse.”
Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (quoting California v. Brown, 479 U.S. 538,
545 (1987) (O’Connor, J., concurring)), overruled on other grounds by Atkins v. Virginia,
536 U.S. 304 (2002); see also Allen v. Woodford, 395 F.3d 979, 1006 (9th Cir. 2005)
(noting that “explanatory” mitigating evidence often bears more weight than
“humanizing” evidence); Cannon v. Gibson, 259 F.3d 1253, 1277-78 (10th Cir. 2001)
(finding omitted mitigation information of “serious brain damage” and lack of impulse
control would have displaced mitigation information portraying the petitioner as a “kind,
compliant, and responsible individual whose involvement in the murder was an
aberration”).

       While this case law establishes that mental disorders and a person’s disadvantaged
upbringing can be persuasive components of a mitigation case, the simple mention of
such evidence—let alone the mere possibility of the existence of such evidence—is not
presumed to be talismanic. The fact that a person’s parents suffered from depression or
substance abuse, or that he himself sustained a head injury that might have affected his
behavior, does not carry the day for a party bearing the evidentiary burden defined in
Strickland and further fleshed out in cases applying Strickland in this context. Rather, an
appellant must demonstrate how these data points impacted his case in a way that the
sentencing authority would have found sufficiently persuasive to impose a different
sentence.

        Though reasonable minds may differ with regard to whether trial defense
counsel’s election to forego additional investigation into MP’s mental health or
upbringing amounted to deficiency, the weight of the evidence adduced at trial suggests
this theme would have been an even harder sell than the one involving the motorcycle
accident and the possibility of a TBI. We find that appellant has failed to demonstrate a
reasonable probability that, but for trial defense counsel’s failure to obtain and present
this evidence, the result of his sentencing proceeding would have been any different.
Therefore, we hold that the appellant’s trial defense counsel were not ineffective for
failing to investigate and introduce the mental health records of the appellant’s mother.



28
     See note 21.




                                            67                            ACM 36785 (recon)
        Although the appellant also questions the decision not to present testimony from
Dr. BM, as analyzed previously in addressing the findings phase issues, we find this
decision tactical and strategic under the unusual circumstances presented. Dr. CR was
not a substitute for Dr. BM’s anticipated testimony. Instead, his evaluation was intended
to avoid the court-ordered evaluation and ultimately confirmed Dr. BM’s deficiencies
with respect to his diagnosis of appellant. However, it is not clear that Dr. CR was ever
specifically asked about the motorcycle accident and the possibility of traumatic brain
injury. On these facts, we do not find trial defense counsel’s decision to abandon their
earlier plans to use Dr. BM as an expert witness to have been ineffective.

                                  3. Evidence of Remorse

      The appellant further asks this Court to find ineffective assistance of his trial
defense counsel based on their failure to investigate the potential remorse testimony of
Deputy Sheriff LF.

                                       (a) Background

       At least one of the appellant’s military trial defense counsel, Capt DR, witnessed
the appellant become extremely upset during the pretrial Article 32, UCMJ, hearing,
when he saw the crime scene evidence for the first time. The appellant began to cry and
was consoled by Deputy Sheriff LF during a subsequent recess. Ultimately, the appellant
did not return to the proceeding that day. In his post-trial declaration, Capt DR concedes
the mitigation specialist recommended pursuing Deputy Sheriff LF as a potential witness
and remembers asking her to obtain the sheriff’s contact information. While Capt DR
does not recall receiving the contact information or attempting to make any contact with
the sheriff on his own, he acknowledges he and FS “were very interested in presenting
any evidence of remorse [they] could find, as well as evidence that showed [the
appellant’s] good conduct since his confinement.” In that counsel’s opinion, “Deputy
[LF] could have been a good witness on both issues.”

       In a post-trial declaration, CP also criticizes trial defense counsel’s failure to call a
correctional officer, LS, who, according to CP, would have testified as to the appellant’s
good behavior in pretrial confinement. She alleges FS declined to call Correctional
Officer LS because he “thought it might jeopardize Correctional Officer [LS’s] standing
as a confinement official testifying on behalf of a convicted murderer” and that, in
response to hearing this, CP told FS “he needed to stop worrying about winning
popularity contests and do what is right for his client.”

        With regard to the possibility of calling law enforcement witnesses in general, FS
offers in his post-trial declaration:




                                              68                              ACM 36785 (recon)
       [I] did not trust that the potential sentencing witnesses who worked for law
       enforcement would hold up under cross-examination. For the marginal
       value they added, the risk was too great that they would not deliver on the
       stand, whether because they feared getting in trouble or because the
       government found out about facts that could have undermined their
       testimony. I had great respect for the prosecutors in terms of their ability to
       dig up dirt and to impeach potential defenses witnesses. Because the stakes
       were so high, I needed complete confidence in our sentencing witnesses.
       To the extent we did not call law enforcement officers or guards, it was
       based on a thorough vetting of each potential witness, with an appreciation
       that the government would be prepared to impeach them with information
       we may or may not have possessed.

       CP observed, in her notes following her interview with Correctional Officer LS:

       [LS] is a very sensitive individual. When asked if he would be willing to
       tell the jury what he had told us, he covered his face, his face reddened and
       eyes watered. I purposefully changed the subject to give him time to calm
       down.

       ....

       [LS] has agreed to testify for [the appellant.]

        Capt DR recounts his specific recollection of CP’s recommendation regarding a
witness who, according to her, would testify about the appellant’s good behavior in
pretrial confinement. He recalls, “We were very interested in this idea and asked her to
spend time finding someone who could help with this.” Capt DR additionally states:

       [CP] reported that she had run into some problems with at least one of the
       people she spoke with; apparently this person expressed concern about his
       own career prospects if he assisted us. I do not, however, ever remember
       [FS] saying he did not want to call one of the correctional officers out of
       concern for that person’s career.

       Capt DR also notes that the trial defense team had reservations about calling
witnesses to testify about the appellant’s good behavior in pretrial confinement because
of concerns about the Government’s ability to impeach those witnesses with specific
instances of the appellant’s misconduct. This included their understanding that “[the
appellant] had violated the facility’s rules by hoarding pills, which the correctional staff
thought he was going to use to commit suicide” and “may have also had some other
minor incidents in pre-trial confinement.” Id. Specifically with regard to Correctional




                                              69                           ACM 36785 (recon)
Officer LS, Capt DR reported, “I think he may have also been the person who
subsequently voiced concerns for his own career if he were to testify.” Id.

        Capt TS, an appellate defense counsel, avers in a post-trial affidavit that during a
telephone interview Capt DR said the reason the trial defense team did not contact
Deputy LF was because they “did not have contact information for him.” According to
Deputy LF, his phone number was publicly listed in the phone book in the county where
the trial was taking place at the time of the appellant’s trial.

                      (b) Whether trial defense counsel were deficient

        Examining the record before us, we are mindful of our obligation to make “every
effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct . . . to evaluate the conduct from counsel’s perspective at
the time,” and to “indulge a strong presumption that counsel’s conduct f[ell] within the
wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689; see also
Rompilla, 545 U.S. at 381 (citing Strickland, 466 U.S. at 689). Applying these principles,
we do not find FS’s stated reason underlying the decision not to investigate further the
possibility of using Deputy Sheriff LF or Correctional Officer LS as mitigation witnesses
to have fallen below an objective standard of reasonableness.

       That said, the appellant points out that Capt DR’s stated rationale for not calling
Deputy Sheriff LF is not consistent with FS’s. Specifically, he notes Capt DR states that
they wanted remorse evidence if they could find it, and the only reason Capt DR offers
for not calling Deputy Sheriff LF is that he could not find his phone number, which
according to Deputy Sheriff LF was right in the phone book.

       Considering all the evidence now before us, including the disparity between
Capt DR’s and FS’s explanations of how this issue was handled, we find Capt DR’s
failure to further investigate whether Deputy Sheiff LF could have offered helpful
remorse evidence to constitute deficient performance under the first prong of a Strickland
analysis.

                                        (c) Prejudice

       Having found deficient performance in trial defense counsel’s failure to
investigate Deputy LF’s potential testimony regarding the appellant’s remorse, we must
now turn to the issue of prejudice. To prevail on an ineffective assistance of counsel
claim, the appellant must show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. If the ineffectiveness occurred during the




                                              70                             ACM 36785 (recon)
sentencing phase, the defendant must demonstrate “a reasonable probability that, absent
the errors, the sentencer—including an appellate court, to the extent it independently
reweighs the evidence—would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” Id. at 695.

       There is no question that the underlying facts of this case present a strong case in
aggravation. Overall, the Government’s case focused heavily on significant emotional
victim impact evidence and a purported callousness or lack of remorse by the appellant.
The Government argued, in part, that the appellant committed these offenses because he
was “evil” or “just bad.” During the presentencing hearing, the prosecution presented
evidence that included the appellant’s personal data sheet and enlisted performance
reports, photographs, and a series of letters the appellant wrote to Ms. SF, a high school
youth volunteer at the appellant’s church. In these letters the appellant commented on,
among other things, the lack of fairness to him, given his incarceration, and anger at God
for not intervening and stopping him.

      Additionally, the Government placed a great deal of emphasis on victim impact by
way of testimony from 14 friends and family members of the victims, SSgt JK, and
Dr. CR. Dr. CR evaluated the family members of the victims and testified as to his
diagnoses of mental health issues ranging from bereavement and anxiety disorder, to
major depression, depressive disorder, and post-traumatic stress disorder.

       Finally, the prosecution submitted five stipulations of expected testimony from
various witnesses demonstrating the appellant’s lack of remorse. Four of these witnesses
were friends of the appellant whose expected testimony revealed, on the day following
the offenses, the appellant was talking to them on the telephone at various times and
making plans for lunch, dinner, and meeting for drinks. One of these witnesses, the
appellant’s roommate, also referenced a comment from the appellant on
5 July 2004 that “[SrA AS] did not want to be friends anymore.” When the appellant and
his roommate drove by the crime scene on 5 July 2004, the appellant reportedly said, “I
can’t be here, I have to go,” and began to get out of the vehicle. This was just prior to his
detention.

       The last stipulation of expected testimony presented was from Dr. VM, who was
SSgt JK’s treating surgeon. His expected testimony outlined the extensive damage
SSgt JK had to his internal organs, the multiple surgeries required to treat his injuries,
and the significant scarring as a result of the crime and medical intervention.

       On the mitigation side of the scale, trial defense counsel called 15 witnesses,
including the appellant’s family members, friends, teachers, coach, church volunteers,
and former employer, who testified that the appellant was a respectful, happy, polite
young man who was never violent. He was described as a good big brother who was




                                             71                            ACM 36785 (recon)
raised in a somewhat restrictive, over-protective home with strong religious beliefs.
Although he was depicted as having limited social skills, he was also active in a number
of sports, and several witnesses discussed their friendships and associations with him.
The witnesses expressed their understanding of the crime committed and their
willingness to extend the appellant their ongoing love and support. The majority of these
witnesses knew the appellant during or prior to high school. The defense also introduced
22 character letters in support of the appellant, 12 certificates of awards and decorations,
28 exhibits regarding his educational history, including report cards dating back to
middle school, 16 pages of photographs, and a four-page unsworn statement. The
mitigation evidence presented the appellant as a basically good person with much
promise and ability, who had done a terrible thing, and that while punishment—stern
punishment—would be appropriate, death would not.

        In light of the aggravating evidence in this case, we are unconvinced there is any
reasonable probability the outcome would have been different if Deputy LF had testified
about the appellant’s emotional breakdown during the Article 32, UCMJ, hearing. The
overwhelming weight of the evidence paints a picture of a cold, calculated, vicious crime,
carried out in the furtherance of a purely protectionist and self-serving objective. At trial,
when the appellant chose to make written and verbal unsworn statements, he expressed
remorse for his victims and their families in two paragraphs of his written statement and
the following exchange during his oral statement:

       Q: And, have you felt remorse about what you did that night?
       A. Yes.
       Q. And, is there anything you want to say to the families today?
       A. Yes. To the families, the Schliepsieks and the Bielenbergs, I am so
       sorry. I am. From the bottom of my being, I am. I’m so sorry that I took
       your son and your daughter away from you. And, also to Mr. King, I’m so
       sorry for hurting you.

        The Government had ample evidence on which to base an argument that any
remorse exhibited by the appellant at the Article 32, UCMJ, hearing was more a matter of
self-pity than sorrow for his victims and their families. Prosecution Exhibits 76 and 77,
which consist of letters the appellant wrote from jail to friends, provide insight into the
issues weighing on the appellant’s mind during his pretrial confinement. The following
excerpts reflect an overarching theme of self-concern:

               Another thing that bothers me is this prison thing. I have read
       stories that guys do small time first and then work up to the “hard time.”
       Me? I jump straight to hard time. This is a wake up call that is just too
       long. . . . The Bible says that God won’t let you be tempted more than you
       can bear, and he will provide an escape. I have wracked my brain, and I




                                             72                             ACM 36785 (recon)
still can’t find what my escape route was. I suppose I could argue “why
me” but you could counter “well why not?” It’s just not fair. There I said
it. But who said life is fair? These are the thoughts I have daily.

....

. . . Why do I have to be punished this way? I wasn’t a hellion. . . . Now I
don’t know if I’ll ever get over this or trust God or anyone again.
Someone, actually a lot of people, have told me I could be a “good witness”
in prison. No one understands . . . . I barely know who I am in the first
place, not to mention betrayed by my own mind. And to top it off I had
absolutely no help in my time of need. Oh I get plenty of help now, but at
the crucial time I got zip. So why should I be inclined to do anything
anymore? I look forward to my death, so I can get out of this hell we call
life. Besides, I never asked to be born, and this is what I get. So there, I
have vented. I am angry, bitter, and probably resentful to the point of
hatred in the future. I expect to get that glassy eyed look like the lion in the
zoo in a few years. Now you know what I’ve been thinking these past few
weeks. So there.

....

. . . I was so happy to leave home and embark on my journey and go places
I wanted and experience things and generally enjoy life. Now, I’m back
where I started. Before I had a light at the end of the tunnel. I just had to
bide my time. Now I have no chance. I have nothing. This is the worst
thing that could have happened to me. . . . I used to love life and now I hate
it. I hate everything.

....

       I’m glad you think the question “How are you doing?” is silly. I
loathe that question. It’s obvious people are oblivious to how I feel when
they ask me that. Or they haven’t been listening to me, which is
common. . . .

        Another thing I am ‘trying to get through’ is my life’s sentence
description. What I mean is one sentence to sum up my life. That sentence
would be “Shut up and take it.” I had been waiting a long time for the
chance to strike out on my own. I was doing well until I got manipulated
into this situation. . . .




                                      73                             ACM 36785 (recon)
       ....

       Anyway, I don’t know why I complain it doesn’t do any good, and as
       someone (who has a nice comfy house and a nice comfy job) will
       inevitably say “someone has it worse than you.” So like I said, “Shut up
       and take it.” My life’s story.

       In Belmontes, the appellant was sentenced to death for brutally murdering a
woman who interrupted his botched burglary attempt. He subsequently alleged his trial
defense counsel were ineffective for failing, among other things, to offer evidence about
his difficult childhood and “‘extended bout with rheumatic fever,’ which led to
‘emotional instability, impulsivity, and impairment of the neurophysiological
mechanisms for planning and reasoning.’” 558 U.S. at 24-25. His counsel, however, had
called several witnesses to humanize him during his sentencing case, and had to carefully
avoid “opening the door” to facts associated with a prior, execution-style murder
Belmontes had bragged about. Id. at 17-19. In finding no ineffective assistance of
counsel, the Supreme Court reasoned:

       [T]he cold, calculated nature of the [previous] murder and Belmontes’
       subsequent bragging about it would have served as a powerful
       counterpoint. The type of “more-evidence-is-better” approach advocated
       by Belmontes and the Court of Appeals might seem appealing—after all,
       what is there to lose? But here there was a lot to lose. A heavyhanded case
       to portray Belmontes in a positive light, with or without experts, would
       have invited the strongest possible evidence in rebuttal—the evidence that
       Belmontes was responsible for not one but two murders.

Id. at 25.

        We recognize Belmontes presents a different set of facts from this case, in that the
appellant’s letters—which the Government could have more vigorously argued
demonstrate a lack of remorse—were already in evidence, whereas information about
Belmontes’ prior murder was not in evidence in his case. But Belmontes also supports
the principle that where the facts of a case are sufficiently egregious, we may reject an
argument that a trial counsel’s decision to forego a “shotgun” approach at trial amounted
to ineffectiveness. See Id. at 27-28.

       Every crime meriting a potential death sentence is a “crime of one,” and it would
be impossible to establish a mathematical equivalency between any two. But just as in
Belmontes, where the court found it “hard to imagine expert testimony and additional
facts about Belmontes’ difficult childhood outweighing the facts of [the victim’s]
murder,” Id. at 27-28, we find it similarly hard to imagine that the appellant’s emotional




                                             74                           ACM 36785 (recon)
reaction during the Article 32, UCMJ, hearing would have tipped the Strickland balance
in any appreciable way in favor of the appellant.

                  4. Failure to Offer Evidence of Future Violence Risk

       The appellant alleges his trial defense counsel were ineffective for failing to
present evidence to the members indicating he “posed an extremely low risk of future
violence.” Specifically, he argues his counsel were ineffective because the ABA
Guidelines state that “future dangerousness is on the minds of most capital jurors, and is
thus at issue in virtually all capital trials,” and because the post-trial submission of
Dr. TR opined that the appellant had a low probability of future violence in prison.

        First, as noted above, the ABA Guidelines are helpful but not binding on
practitioners in military courts-martial. Second, Dr. TR’s declaration is, by all
indications, a comprehensive literature review on the subject of future dangerousness of
capital offenders in general. Notwithstanding his proffered “personal knowledge of the
facts contained in []his declaration and . . . competen[ce] to testify about them,” his
declaration is quite speculative as applied to the appellant. Two forensic psychologists
who evaluated the appellant, Dr. BM and Dr. CR, both informed the defense team that
they would be unable to testify as to the appellant’s future likelihood of non-violence
based on their evaluations of him. Additionally, the Government was prepared to
affirmatively call Dr. CR to rebut any assertions regarding the appellant’s future
likelihood of non-violence. We therefore find no ineffectiveness in trial defense
counsel’s informed choice not to pursue this theory in the appellant’s case.

                       5. Failure to Offer Testimony of SP and KP

       The appellant avers his trial defense counsel were ineffective for not offering the
testimony of his half-brother and half-sister, SP and KP, during the sentencing case. SP
and KP were 11 and 14 years old, respectively, at the time of trial. In a post-trial
declaration, KP says she “very much wanted to testify on behalf of [her] brother, was
willing to do so, and was not worried about the prosecutors.” Similarly, SP “would have
told the court that [he] loved [his] brother very much.” The trial defense team had
originally intended to offer the testimony of both children but later decided not to in order
to avoid the appearance of trying to evoke sympathy in a way that could potentially
backfire.

        We find trial defense counsel articulated a strategic and tactical basis for deciding
not to call SP and KP and will not second-guess that decision at this juncture. We find no
ineffectiveness in their decision not to call SP and KP.




                                             75                            ACM 36785 (recon)
6. Failure to Object to Inadmissible Victim Impact Evidence and Argument, and Failure
                       to Request Appropriate Curative Instruction

        The appellant avers his counsel were ineffective by failing to object to
inadmissible evidence in aggravation, in the form of testimony from members of the
victims’ families, regarding, inter alia, the nature of the offenses the appellant committed
and their characterizations of the appellant individually. During sentencing the fathers of
SrA AS and JS testified, sometimes tearfully, about the emotional loss they experienced
from the appellant’s crimes. In portions of each of their testimonies, they explained how
the manner of their children’s deaths punctuated their ongoing mental suffering,
recounting in some detail facts previously made clear to the members. For example, JA’s
father, JB, noted at one point, “[I]t is bad enough that they are gone and you are going to
never be with them. But, that you have to live with the way that she died. This is the part
that I just cannot – I can’t understand. I cannot tolerate. Society should not tolerate it.”
He further testified:

       And, I just wanted to be there. If I could have been there in that door when
       that thing got knocked down. I mean, can you imagine? This is not some
       strong, muscular person who could defend herself. This is just the biggest
       act of cowardice to go and do that to a young lady. I can’t—this is just—I
       mean, she is sitting back behind that door knowing that she is going to die.
       And, I’ve got to live with that the rest of my life . . . .

       JS’s younger sister testified:

       [I] just kept saying it over and over, “I know she suffered, I know she
       suffered.” And, all that I had heard was that they were dead in their home.
       But, I just knew it. And, that is the major thing, is knowing that those
       two—there are so many people out there that loved them, and there are so
       many people out there that could have been with them that night and
       comforted them, and they had no one. They died alone, suffering . . .

       The appellant concedes that Payne v. Tennessee, 501 U.S. 808 (1991), overturned
that portion of Booth v. Maryland, 482 U.S. 496 (1987), that had previously held
evidence and argument relating to the victim and the impact of the victim’s death on the
victim’s family to be inadmissible at a capital sentencing hearing. He argues, however,
that his trial defense counsel were ineffective when they failed to attempt to limit the
testimony of CB, JB, and DS, which came before the members. This testimony, the
appellant contends, violated other portions of Booth that still prohibit the admission of a
victim’s family members’ characterizations of, and opinions about, the crime and the
defendant.




                                             76                           ACM 36785 (recon)
       The appellant cites the ABA Guidelines and post-trial affidavits submitted by two
attorneys with military experience in capital litigation for the proposition that failure to
zealously limit victim impact evidence in a capital trial amounts to an error falling
outside the wide range of professionally competent assistance demanded by the Sixth
Amendment under Strickland. Moreover, trial defense counsel moved in limine to
exclude victim impact testimony, evincing their awareness of the importance of limiting
such information where possible.

        Addressing their rationale for not objecting to victim-impact testimony during
trial, FS states he believed they faced a “no win” situation. He explains:

        [W]e raised this concern with the trial judge during an R.C.M. 802 session.
        We knew the government would push the limits and feared that if we made
        multiple objections that were overruled, it would be held against [the
        appellant] by the members. We face [sic] the Hobson’s choice of either
        highlighting unduly prejudicial testimony or losing credibility with the
        members. Thus, we asked the judge to exercise control over the process
        under Mil. R. Evid. 403.

        Capt DR’s explanation tracks with FS’s, noting:

        [FS] felt that objecting in front of the members would have a negative
        impact on how they viewed us and our case and so decided not to object
        during the testimony of any of their witnesses. After some of the witnesses
        had testified, we did have an off-the-record RCM 802 session in which we
        raised our concerns about the testimony of the government witnesses to the
        military judge and expressed our frustration at the fact that we felt we could
        not object in front of the members without risking highlighting their
        improper testimony. 29

       Limiting victim impact testimony is an important consideration in capital
sentencing proceedings, with federal courts recognizing Payne left intact one significant
portion of Booth. See, e.g., Humphries v. Ozmint, 397 F.3d 206, 217-18 (4th Cir. 2005)
(en banc) (noting Payne did not alter Booth’s holding that admission of victims’ opinions
of crime and appropriate punishment violates the Eighth Amendment); United States v.
Bernard, 299 F.3d 467, 480-81 (5th Cir. 2002); Fautenberry v. Mitchell, 515 F.3d 614,
638 (6th Cir. 2008) (“The [Payne] Court did not disturb that portion of Booth that forbids
‘a victim’s family members’ characterization and opinions about the crime, the

29
    Given the trial defense team’s awareness of the importance of limiting victim impact testimony during
sentencing, it would have been a far better practice to have resolved the issue on the record rather than in a
R.C.M. 802 conference, as no on-the-record summary of such a conference appears to discuss the issue.




                                                     77                                  ACM 36785 (recon)
defendant, and the appropriate sentence.”); Parker v. Bowersox, 188 F.3d 923, 931
(8th Cir. 1999) (“[F]amily members of the victim may not state ‘characterizations and
opinions about the crime, the defendant, and the appropriate sentence’ at the penalty
phase . . . .”); United States v. Mitchell, 502 F.3d 931, 990 (9th Cir. 2007) (noting under
Booth family members opinions and characterizations of the crimes and the defendant are
irrelevant to a capital sentencing decision); United States v. Brown, 441 F.3d 1330, 1351
(11th Cir. 2006) (“[T]he Booth prohibition against evidence of family members’ opinions
and characterizations of the crime, the defendant, and the appropriate sentence remains
good law.”). The appellant’s trial defense counsel appeared to be at least generally aware
of this issue, as evinced by their motion in limine. However, that said, the motion they
submitted was focused on limiting the quantity of victim impact testimony they
anticipated the Government would seek to admit. It did not address the substance of the
testimony they sought to limit with reference to Booth or Payne. 30

        FS’s stated rationale for not objecting during the testimony of the Government’s
victim impact witnesses, on its face, falls within the wide range of professionally
competent assistance contemplated in Strickland. However, our review of the sentencing
proceedings reveals no clear discussion regarding trial defense counsel’s objection to any
such testimony as described by FS in his declaration. Moreover, the fact that they had
been sufficiently concerned with the issue to file a motion in limine suggests their
awareness of the importance of appropriately limiting such testimony during the
sentencing phase of the trial. The following discussion of the motion occurred on the
record:

          MJ: [T]hat leaves us with the defense motion to exclude the government
          victim impact evidence. . . . Mark the defense motion as Appellate Exhibit
          XXIV and the government response is XXV.

          [The documents were marked.]

          MJ: Other than marking those documents, is there really anything that we
          can do with this motion?

          CIV DC [FS]: No, sir. I think where we are on this one is we’ve set the
          deadline where the government has to give us notice of their findings and
          sentencing witnesses, as I recall the 15th of August. Once we have an idea
          of how many witnesses they intend to call in sentencing and the length of
          time that they want to use to present that evidence, then at that point we
          will be in a better position perhaps to articulate specifically what we’re
          objecting to, Your Honor. I think this motion was more on the lines of
30
     The Government’s response, however, did reference both of these cases.




                                                         78                   ACM 36785 (recon)
        putting you on notice that we anticipate there’s going to be an issue here
        and we do intend to challenge it based on just initial representations made
        by the government. Again, this is one of those motions that I do not think
        is ripe at this time, but we will address it later on.

        MJ: And that’s the way I took your motion was exactly that. Is [sic] this is
        coming down the line, please be ready for it and I appreciate both sides
        providing the information to me in as timely a fashion as you have thus far.
        It’s extremely helpful.

       In his post-trial declaration, Capt DR states that he “drafted and filed [the] motion
to limit the victim impact evidence,” but “[t]his motion was not taken up the [sic] judge
and was never resolved.” Capt DJ does not “recall any specific discussions the defense
had concerning the government’s impact evidence and witnesses.” He does recall “there
was some debate among the three of [them] and ultimately a decision was made not to
object to the majority of the witness testimony.”

        The Supreme Court observed in Strickland that “strategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments support the
limitations on investigation.” 466 U.S. at 690-91. Irrespective of how the outstanding
motion in limine was resolved, 31 a reasonable attorney acting on behalf of a client in a
capital sentencing case would have researched and understood the extent to which they
may have made arguments to limit the substance, as well as the quantity, of victim impact
testimony offered by the Government’s sentencing witnesses at trial. We find trial

31
   Whatever remains of Booth v. Maryland, 482 U.S. 496 (1987), in the wake of Payne v. Tennessee, 501 U.S. 808
(1991), and footnote two of that decision, we note that certain of the Supreme Court’s observations in Booth would
have limited applicability to the case now before us. In Booth, the Court explained that victim impact testimony
may be irrelevant because it did not relate to the defendant’s culpability:

        The focus of a [victim impact statement], however, is not on the defendant, but on the character
        and reputation of the victim and the effect on his family. These factors may be wholly unrelated
        to the blameworthiness of a particular defendant. As our cases have shown, the defendant often
        will not know the victim, and therefore will have no knowledge about the existence or
        characteristics of the victim’s family. . . . Allowing the jury to rely on a [victim impact statement]
        could result in imposing the death sentence because of factors about which the defendant was
        unaware, and that were irrelevant to the decision to kill.

In the case now before us, the appellant was indisputably aware that SrA AS and JS were, by all accounts, in love
and happily married. With that knowledge, the appellant stabbed JS to death while SrA AS lay paralyzed, feet
away, pleading for mercy. Although the cited language is not controlling, this is not a case where the appellant was
ignorant of his victims’ relationship—at least to one another—or where that relationship was irrelevant to his
decision to kill.




                                                         79                                     ACM 36785 (recon)
defense counsel’s failure to do so in this case to constitute error under prong one of
Strickland.

       However, we do not find their failure in this regard to have resulted in prejudice
on the facts of this case. We do not doubt that emotional testimony from the family of
murdered victims can be powerful. But “it was never held or even suggested in any . . .
cases preceding Booth that the defendant, entitled as he was to individualized
consideration, was to receive that consideration wholly apart from the crime which he
had committed.” Payne, 501 U.S. at 822 (emphasis added). Moreover, in the case now
before us, the family members’ “characterizations” and “opinions” about the crime were
offered not in the abstract, but as integral components of the descriptions of their own
emotional injuries—“about the specific harm caused by the crime in question, evidence
of a general type long considered by sentencing authorities.” Id. at 825. We, therefore,
do not consider the comments the appellant now challenges, which were isolated and
very brief in the overall context of the Government’s lengthy sentencing case, to be so
unduly prejudicial that they rendered the trial fundamentally unfair. Id. More
importantly, under the prejudice prong of a Strickland analysis, we find no reasonable
probability that but for their admission, and trial defense counsel’s failure to request a
curative instruction, the sentence would have been more favorable to the appellant.

                            IV. Additional Sentencing Issues

      The appellant raises several other issues relating to the sentencing portion of the
court-martial, some of which we address below.

                                A. Sentencing Argument

       The appellant asserts that trial counsel’s comments during the sentencing
argument were improper in that they misled the jury to believe that the responsibility for
the ultimate sentencing decision lay elsewhere. His position with respect to this issue
relies upon the Supreme Court’s decision in Caldwell v. Mississippi, 472 U.S. 320
(1985), which held that the jury must not be misled regarding the role it plays in the
sentencing decision. However, the decision in that case was a plurality opinion where
Justice O’Connor was the concurring vote on grounds narrower than those articulated by
the plurality. The Supreme Court has since held “her position is controlling.” Romano v.
Oklahoma, 512 U.S. 1, 9 (1994). Therefore, “[t]o establish a Caldwell violation, a
defendant necessarily must show that the remarks to the jury improperly described the
role assigned to the jury by local law.” Id. (quoting Dugger v. Adams, 489 U.S. 401, 407
(1989)) (alteration in original) (internal quotation marks omitted).

       After full review of trial counsel’s comments during the sentencing argument, we
do not find the comments were false, inaccurate, or misleading. The argument accurately




                                            80                           ACM 36785 (recon)
pointed out, in three passing comments, that there is an appellate process following the
verdict, but did not contravene the principle established in Caldwell as limited by the
concurring opinion.

                              B. Military Judge’s Instructions

       The appellant argues that the military judge erred on several instructional matters.
Whether a military judge properly instructs the court members is a question of law we
review de novo. United States v. Hibbard, 58 M.J. 71, 75 (C.A.A.F. 2003). A military
judge’s decision to give, or not give, an instruction is reviewed for an abuse of discretion.
United States v. Maxwell, 45 M.J. 406, 424 (C.A.A.F. 1996).

        As previously mentioned, we review new issues raised after a failure to object at
trial for plain error, which requires (1) error, (2) that is plain or obvious, and (3) that
impacts a substantial right of the appellant. See Kho, 54 M.J. at 65; United States v.
Finster, 51 M.J. 185, 187 (C.A.A.F. 1999) (citing Powell, 49 M.J. at 463). The appellant
bears the burden of persuading this Court of the plain error, after which the burden shifts
to the Government to show that error is not prejudicial. Powell, 49 M.J. at 464-65.

        When the sufficiency of instructions is attacked, “[t]he ultimate question is
whether there is a reasonable possibility that the jury understood the instructions in an
unconstitutional manner.” Loving, 41 M.J. at 277-78 (alteration in original) (internal
quotation marks and citation omitted). Additionally, “there is a heightened need for
reliability in capital punishment cases.” Id. On this issue, our superior court has noted
that appellate service courts have plenary review authority and “[a] clearer carte blanche
to do justice would be difficult to express.” United States v. Claxton, 32 M.J. 159, 162
(C.M.A. 1991).

         With these concepts in mind, we review the military judge’s instructions in three
areas.

                      1. Voir Dire Reference to Sentencing Procedure

       During voir dire, the military judge instructed the members that the death penalty
was a potential sentence only if the members convicted the appellant of premeditated
murder by a unanimous vote. As part of that instruction, the military judge advised the
members that the accused was presumed innocent; the Government had the burden to
prove his guilt beyond a reasonable doubt; and, since death was a possible punishment
option, it was necessary to ask them questions about their views on the death penalty
during voir dire. The judge cautioned that the inquiry into their views on the death




                                             81                            ACM 36785 (recon)
penalty “has no relation at all to whether the accused is guilty or not guilty of any
offense.” 32 The appellant argues the military judge committed plain error in so
instructing the members because knowing about the unanimity requirement “undoubtedly
influenced” the members’ findings deliberations.

       We find the military judge did not commit error, plain or otherwise. The military
judge acted appropriately when he instructed the members during voir dire that death was
a potential penalty only by unanimous vote. By doing so, the military judge ensured that
the members who sat on the appellant’s court-martial panel were “free from conflict and
bias.” United States v. Gooch, 69 M.J. 353, 357 (C.A.A.F. 2011). The questioning of
panel members allows the parties to intelligently exercise challenges for cause and
peremptory challenges. R.C.M. 912(d), Discussion (“The opportunity for voir dire
32
   The military judge instructed the members using the standard preliminary instructions for death penalty cases set
forth in the Department of the Army Pamphlet 27–9, Military Judges’ Benchbook [hereinafter “Benchbook”], ¶ 8–3
(1 April 2001). The military judge instructed the members as follows:

           And before I ask you questions or let counsel do so, it’s appropriate that I give you some
           additional instructions.

           This is a capital murder case. I want to direct your attention specifically to Specifications 1 and
           2 of Charge I, on the copy of the charges that you have there. Both are a violation of
           Article 118 of the Uniform Code of Military Justice commonly referred to as premeditated
           murder. If the accused is convicted of premeditated murder by a unanimous vote, then the court
           may, but is not required to, impose the death penalty. In the sentencing phase of this trial the
           death penalty is a permissible punishment only if:

           One, the court members unanimously find beyond a reasonable doubt that an aggravating factor
           exists;

           Two, that the court members unanimously find that any and all extenuation and mitigation
           circumstances are substantially outweighed by any aggravating circumstances to include any
           aggravating factor. If you unanimously find these two items, then the death penalty will be a
           possible punishment, but only if you vote unanimously to impose death.

           You must bear in mind that even if the death penalty is a possible sentence, the sentence or
           whether or not to vote for the death penalty is within the sole discretion of each court member.
           If the accused is convicted of premeditated murder, but the vote for conviction was not
           unanimous, then the death penalty may not be adjudged. However, you will be required to
           determine whether the mandatory minimum of life imprisonment or whether confinement for
           life without the eligibility for parole will apply. Should it become necessary, I’ll explain your
           options to you in much greater detail later in this trial.

           Remember, as I previously instructed you, the accused is presumed to be innocent and the
           burden is on the government to prove his guilt beyond a reasonable doubt. Because one
           possible punishment in this case is death, it will be necessary to ask you questions regarding
           your views concerning the death penalty. This inquiry has no relation at all to whether or not
           the accused is guilty or not guilty of any offense. As I stated before, the accused is presumed
           not guilty of all of these offenses.




                                                          82                                     ACM 36785 (recon)
should be used to obtain information for the intelligent exercise of challenges . . . .”). An
inelastic predisposition towards a particular punishment is a valid basis for a challenge
for cause. R.C.M. 912(f)(1)(N), Discussion; see United States v. Sonego, 61 M.J. 1, 4
(C.A.A.F. 2005). This is especially true in a capital case. See Gray v. Mississippi,
481 U.S. 648, 658 (1987) (finding the test for the removal of a juror who opposes the
death penalty is “whether the juror’s views would prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his oath.”
(citation and internal quotation marks omitted)).

       We also disagree that knowledge of the unanimity requirement would have
influenced the members during their findings deliberations to the prejudice of the
appellant, and the appellant offered no insight into how this may have influenced the
members other than to say that it did so “undoubtedly.” We refuse to speculate on this
matter. What we do know is the military judge told the members it was necessary to ask
them questions about their views of the death penalty because the appellant was charged
with a capital offense. Using the Benchbook instruction, the military judge cautioned the
members that the appellant was innocent of the offenses and that the Government had the
burden to prove his guilt beyond a reasonable doubt. He explained that any vote on the
death penalty had to be unanimous if the appellant was convicted of the charged offenses.
This laid the groundwork for the individual voir dire of the members by the military
judge, trial counsel, and trial defense counsel about their opinion of the death penalty and
their ability to be fair and impartial. As such, we find no error.

                    2. Presentencing Instructions on Voting Procedure

        The appellant next argues that the military judge improperly instructed the
members on sentencing deliberation procedures. The appellant relies on our superior
court’s decision in United States v. Simoy, 50 M.J. 1 (C.A.A.F. 1998), to essentially argue
that, if there is not unanimous concurrence the first and only time the members vote on a
proposed sentence of death, it is permanently eliminated as an option.

        Our superior court reversed our decision in Simoy in part because the judge failed
to instruct the members to vote on potential sentences from those least severe to those
most severe. Our superior court discussed the requirement for unanimous findings of the
members at each of the four gates of a capital sentence deliberation. Simoy, 50 M.J. at 2.
Those gates are:

       (1) Unanimous findings of guilt of an offense that authorizes the imposition
       of the death penalty, R.C.M. 1004(a)(2);

       (2) Unanimous findings beyond a reasonable doubt that an aggravating
       factor exists, R.C.M. 1004(b)(7);




                                             83                            ACM 36785 (recon)
      (3) Unanimous concurrence that aggravating factors substantially outweigh
      mitigating factors, R.C.M. 1004(b)(4)(C); and

      (4) Unanimous vote         by    the   members    on   the   death    penalty,
      R.C.M. 1006(d)(4)(A).

Id.

After reciting those gates, the Court noted, “If at any step along the way there is not a
unanimous finding, this eliminates the death penalty as an option.” Id. (emphasis
added).

       Contrary to the appellant’s argument, we do not interpret this passage in Simoy as
a substantive limitation on the number of times the members may propose or vote on a
proposed death sentence. R.C.M. 1006(d)(3)(A) reads, in pertinent part, “The process of
proposing sentences and voting on them may be repeated as necessary until a sentence is
adopted.” See also United States v. Thomas, 46 M.J. 311, 312 (C.A.A.F. 1997). The
appellant’s construction of Simoy theorizes that, although the members failed to reach a
required concurrence on any potential sentence, they may “repeat the process of
discussion, proposal and voting” only with respect to the potential sentences of life, or
life without the possibility of parole. The appellant cites no other support for his
proposition, and this Simoy interpretation conflicts with the plain wording of
R.C.M. 1006(c).

       We interpret the Simoy language upon which the appellant relies as pertaining to
the unanimity required before members may progress from one gate to the next in capital
sentence deliberations, not the process of proposing and voting on sentences, which “may
be repeated as necessary until a sentence is adopted” after members have already
appropriately arrived at the fourth gate of such deliberations. R.C.M. 1006(d)(3)A).
Thus, if at the first gate the members do not unanimously find an accused guilty of an
offense that authorizes the imposition of the death penalty, then death is no longer an
optional sentence. Likewise, if at the second gate the members do not unanimously find
beyond a reasonable doubt the existence of at least one common aggravating factor, then
death is no longer an option. If at the third gate the members do not unanimously concur
that aggravating factors substantially outweigh mitigating factors, then death is no longer
an option. Finally, after having appropriately arrived at the fourth gate in sentence
deliberations in a capital case, an accused may be sentenced to death only on unanimous
vote of all members. That said, after appropriately arriving at the fourth gate of sentence
deliberations in a capital case and properly considering proposed sentences, members
may repeat the process of proposing and voting on sentences, from least to most severe,
including a death sentence, until a sentence is adopted by the concurrence required under




                                             84                            ACM 36785 (recon)
R.C.M. 1006(d)(4).

       With the proper procedure clear, we consider the adequacy of the military judge’s
instructions to the members. The appellant argues “under the instructions as given, the
members would likely believe that provided they did not vote for sentence of
confinement for life or confinement for life without eligibility for parole, they could
continue to vote on a death penalty repeatedly until they finally reached a unanimous
vote.” We disagree. In the most pertinent passage, the military judge instructed:

                 When you have completed your discussions, any member who
         desires to do so may propose a sentence. You do that by writing it out on a
         slip of paper, a complete sentence. The junior member then collects the
         proposed sentences and submits them to the president, who will arrange
         them in their order of severity. The court will then vote by secret written
         ballot on each proposed sentence in its entirety, beginning with the least
         severe and continuing to the next least severe, until a death 33—until a
         sentence is adopted by the required concurrence. You are reminded that the
         most severe punishment is the death penalty. To adopt a sentence that does
         not include the death penalty, the required concurrence is three-fourths; that
         is, nine of the twelve members present. Members, in this connection,
         you’re again advised that the mandatory minimum sentence is confinement
         for life. The junior member will then collect and count the votes, the count
         will then be checked by the president, who will immediately announce the
         result of the ballot to the other members. If you vote on all of the proposed
         sentences without reaching the required concurrence, repeat the process of
         discussing, proposal and voting.

       Consistent with our analysis above, we find no error, as these instructions were in
conformity with the applicable Rules for Courts-Martial and case law. Accordingly, we
likewise find no ineffectiveness in trial defense counsel’s failure to request a sentencing
instruction that a non-unanimous vote for a death sentence during the Gate Four voting
eliminates death as a potential sentence.

         3. Presentencing Instruction on Members’ Duty – Community Expectations

       The appellant argues that the military judge erred by not instructing the members
that they could not consider the “alleged desires of society or any particular segment of
society” when determining an appropriate sentence in the appellant’s case. The appellant

33
    The military judge appeared to misspeak when saying “. . . until a death” but corrected himself immediately,
saying “. . . until a sentence is adopted by the required . . . .” The instruction was correctly recited on the written
instructions provided to the members.




                                                          85                                     ACM 36785 (recon)
grounds his argument on the various societal references in trial counsel’s sentencing
argument. In support of this argument, the appellant relies on United States v. Pearson,
17 M.J. 149 (C.M.A. 1984). We disagree.

       At the conclusion of the sentencing case, the military judge instructed the
members on the law applicable to the charges before them for sentencing. The military
judge instructed, in part, as follows:

             In adjudging a sentence, there are several matters which you should
      consider in determining an appropriate sentence. Bear in mind that our
      society recognizes five principal reasons for the sentence of those who
      violate the law. They are: rehabilitation of the wrongdoer, punishment of
      the wrongdoer, protection of society from the wrongdoer, preservation of
      good order and discipline in the military, and deterrence of the wrongdoer
      and those who know of his crimes and his sentence from committing the
      same or similar offenses. The weight to be given to any or all of these
      reasons, along with all other sentencing matters in this case, rests solely
      within your discretion.

(emphasis added).

        Trial counsel then presented the Government’s sentencing argument. In his
argument, trial counsel referred to society and victim impact. The relevant portions are
as follows:

             The community looks at this community, the Air Force, as
      something different, as we know. And, the Bibb County community has
      taken us in for this trial, of what is one of the most serious cases you’re
      ever going to find in the Air Force. People have been here every day and
      seen different parts of this trial. People have seen the destruction and
      devastation that an Airman brought upon a family, upon a community, and
      on the Air Force. He even wore his uniform to commit the offenses. As
      you think about it, what kind of crime could bring the death penalty in the
      military? Try to think of one more serious than this, where it wouldn’t be
      authorized.

      ....

      . . . A community has watched how the Air Force has dealt with it, and the
      community deserves to hear and see what he did.

      Later, trial counsel referred to society and community in the context of the




                                           86                          ACM 36785 (recon)
members’ debate about the sentence:

      And, when you have that discussion, it only takes one to say no. You all
      should talk about death and life without parole. You should debate them,
      and you should all try to come to a unanimous agreement. Even though the
      law doesn’t require it, you all should, because you’ll then be unanimous
      throughout this process. You should talk about it. You should debate it.
      You should discuss it always in the context of is it appropriate for this case
      and come to a decision. I’m not going to spend much time talking about
      life with the possibility of parole. I cannot imagine how you can sentence
      an accused who kills two people, almost kills a third, walks out of a jail,
      someday to return to his life, and those two people never will. Those
      families will never forget this. This community will never forget this. The
      Air Force will never forget this. But, that should be your debate.

(emphasis added).

      At another point, trial counsel argued the far-ranging impact of the case:

      But, what about the communities who are looking to the Air Force for
      justice in this case? Because this isn’t just an Air Force case. This isn’t an
      Airman who stole from the BX, and you only have to deal with it—the
      impact on that base. This case has far-ranging impact. As Houston, Peoria,
      and everyone else looks to see what the Air Force, what the Air Force [sic]
      views as the right answer when their Airman, and a wife of their Airman, is
      attacked and killed in base housing by another Airman. You’ve seen the
      impact on them, and you’ve heard about the impact on everybody else.

      ....

             . . . All of the 1500 that showed up to the memorial in Peoria.
      Imagine that number. Thirty or so from here, military members. You’ve
      heard about the impact on wives, sisters, brothers, friends, nephews,
      military members. The list goes on and on. And, [SrA JK] and his family
      lost two friends that night. You see the impact on him, and you heard about
      it.

      In rebuttal, trial counsel once again argued the needs of society and the impact on
the community:

      [I]n arriving at your determination, select the sentence which best serves
      the ends of good order and discipline, the needs of the accused, and the




                                           87                             ACM 36785 (recon)
         welfare of society. Society is watching this case.

         ....

                . . . As eyes turn here to see what justice in the Air Force is, I would
         suggest that the Air Force, for all the reasons we’ve talked about—good
         order and discipline, punishment, his rehabilitation, protection of society
         from that man who sits behind me.

         ....

                Offer the families a chance to see justice in our community. Offer
         the families a chance to see [SrA AS] and [JS] redeemed. Their lives were
         taken for really no reason. . . . And now you have everybody wondering
         what is Air Force justice?

       At the conclusion of the arguments, the military judge instructed the members on
the procedures for their deliberations. He cautioned the members that “[t]he arguments
of counsel and their recommendations are only their individual suggestions and may not
be considered as a recommendation or opinion from anyone other than counsel.” After
instructing the members, the military judge asked both trial counsel and trial defense
counsel if they had any objections to his instructions or requested additional instructions.
Neither side objected, and neither side requested additional instructions.

       After reviewing the facts, law, and arguments of both sides, we find that this
assignment of error does not present a case of plain error. First, the military judge
properly instructed the members on all the required sentencing factors, as well as the
societal factors for them to consider during their sentencing deliberations. In this regard,
he did not abuse his discretion. The Rules for Courts-Martial and case law permit
evidence about how crime impacts society. See R.C.M. 1001(b)(4); R.C.M. 1005(e)(1)-
(5); Payne v. Tennessee, 501 U.S. 808 (1991); United States v. Stephens, 67 M.J. 233
(C.A.A.F. 2009). 34

34
    R.C.M. 1005(a) states that the military judge “shall give the members appropriate instructions on sentence.”
R.C.M. 1005(e)(1)-(5) sets forth the required instructions on sentence, which include (1) a statement of the
maximum authorized punishment and mandatory minimum punishment, if any; (2) a statement of the effect of any
sentence announced will have on the accused’s entitlement to pay and allowances; (3) a statement of the procedures
for deliberation and voting on the sentence; (4) a statement that the members are solely responsible for selecting an
appropriate sentence; and (5) a statement that the members should consider all matters in extenuation, mitigation,
and aggravation. Additionally, the Benchbook contains a specific instruction setting forth the reasons for sentencing
those who violate the law: (1) rehabilitation of the wrongdoer; (2) punishment of the wrongdoer; (3) protection of
society from the wrongdoer; (4) preservation of good order and discipline in the military; and (5) deterrence of the
wrongdoer and those who know of his crimes and sentence from committing the same or similar offenses.




                                                         88                                    ACM 36785 (recon)
        The appellant grounds the bulk of his argument on Pearson. In Pearson, a Marine
was tried and convicted of negligent homicide of another Marine. After findings, the
prosecution stated it intended to offer matters in aggravation. After the military judge
overruled the defense objection, the prosecution called two witnesses. The first witness
was a gunnery sergeant for whom the victim had worked. He testified, inter alia, that the
decedent was a “great worker, he was loyal, consistent, hard-working, just a definite asset
both to the squadron and to the Marine Corps.” Pearson, 17 M.J. at 150. He also
testified that the decedent had intended to stay in the Marine Corps, that 240 enlisted
personnel were in the squadron, and that the majority of them were aware of the court-
martial. Then, the prosecutor engaged in the following colloquy with the gunnery
sergeant:

        Q. What has the impact been on the squadron, with the death of [the
        victim]?

        A. The—immediately upon the death of [the victim], it seemed as though
        the whole squadron had been shaken apart. We couldn’t understand how
        such a tragedy could come to take place within the command, and in the
        senseless way that it did. Since his death, and from that date to this, the
        whole squadron has been waiting to find out the verdict of this court, and to
        see how his killer was going to be treated.

Id. at 151. Trial defense counsel did not cross-examine the gunnery sergeant nor did he
object to the testimony. The military judge did not give any cautionary instructions about
the gunnery sergeant’s testimony nor was he asked to do so.

       The Pearson prosecution then called the decedent’s father to testify. He
characterized his son as a “perfect son.” The prosecutor then had this exchange with the
victim’s father:

        Q. . . . [W]hat’s the impact of [the victim]’s death been on the community
        of Reeseville?

        A. The only word I can use, that doesn’t even describe it, is devastating. I
        don’t know—I’ve been sitting over there trying to think how I can go back
        home, how I can call my wife tonight, and how I can go back home to
        Reeseville, and tell them that the verdict was negligent homicide.


Benchbook, ¶ 8–3–21. See also United States v. Lania, 9 M.J. 100 (C.M.A.1980) (holding that general deterrence is
a relevant factor to consider in sentencing).




                                                       89                                   ACM 36785 (recon)
Id. During an Article 39(a), UCMJ, session, the military judge admonished the witness
that he could not criticize the verdict of the court-martial or suggest that they reached the
wrong verdict. Neither side questioned the witness any further, the defense did not
request any cautionary instructions, and the military judge did not give any. Id. at 151-
52.

       In its decision, our superior court discussed the importance of victim impact
testimony but cautioned that it must be factual, non-inflammatory, and non-
argumentative: “We never want to be guilty of waving the bloody shirt; neither are we to
bury the bloody shirt with the victim still in it.” Id. at 152 (quoting Falconer, Paul R. and
Northrop, Edward S., S. Rep. No. 97–532, 97th Cong., 2nd Sess. 13, reprinted in 1982
U.S. Code Cong. & Ad. News 2515, 2517). The Court also noted that “[e]motional
displays by aggrieved family members, though understandable, can quickly exceed the
limits of propriety and equate to the bloody shirt being waved.” Id. at 153. The Court
found that the military judge did not abuse his discretion by permitting evidence of the
victim’s character and the loss felt by his family and community. The Court, however,
also ruled that the alleged desires of society may not be allowed to interfere with the
court’s independent function. Thus, the Court found that the “fundamental sanctity” of
the court-martial was violated by (1) the testimony of the victim’s father that commented
on the court’s finding, and (2) the testimony of the gunnery sergeant that implied the
“unit was hanging on the outcome of the trial.” In the Court’s view, curative instructions
were required despite the lack of a defense objection. Id.

       We find Pearson distinguishable from this case. In Pearson, our superior court
rested its decision on the value and role of victim impact testimony. Unlike this case, the
appellant in Pearson challenged evidence presented during sentencing via testimony of
the victim’s father and the gunnery sergeant. He did not challenge the trial counsel’s
argument, as in this case. Moreover, the testimony of both individuals in Pearson
questioned the actual findings of the court-martial, whereas trial counsel’s argument in
this case focused on the relevant sentencing factors for the members to consider during
their deliberations. Even so, the appellant asserts that trial counsel’s arguments “waved
the bloody shirt” such that the military judge was required to give a curative instruction.
When read in its entirety, however, trial counsel’s argument was not inflammatory but
was within the bounds of delivering hard, but fair blows. United States v. Doctor,
21 C.M.R. 252, 259 (C.M.A. 1956) (holding that although it is permissible for trial
counsel to “strike hard blows” during argument, they must be “fair”). Trial counsel’s
sentencing argument referenced society consistent with the military judge’s instructions.
Trial counsel argued that it was the members’ job to determine the appropriate sentence,
such as when he argued along the lines of (1) “The weight to be given to any or all of
these reasons, along with all other sentencing matters in this case, rests solely within your
discretion”; (2) “You should talk about it. You should debate it. You should discuss it
always in the context of is it appropriate for this case and come to a decision”; and




                                             90                            ACM 36785 (recon)
(3) conceding, “But, that should be your debate.”

        Moreover, when compared to the sentencing argument in other military death
penalty cases, we find trial counsel’s argument was limited in scope and the military
judge did not err by failing to give a sua sponte cautionary instruction. See United States
v. Quintanilla, 63 M.J. 29 (C.A.A.F. 2006), aff’g in part and rev’g in part United States
v. Quintanilla, 60 M.J. 852 (N.M. Ct. Crim. App. 2005); United States v. Loving,
34 M.J. 956, 962-63 (A.C.M.R. 1992), aff’d, 41 M.J. 213. In Quintanilla, trial counsel
gave a highly-charged sentencing argument. He engaged in tactics such as sitting on the
witness stand, screaming at the appellant, and using words such as “bad hombre,”
“animal,” and “gang-banging.” Trial defense counsel objected and the military judge
gave a curative instruction. The Navy Court concluded that trial counsel and assistant
trial counsel crossed the line “between zealous prosecution infused with righteous
indignation . . . and unethical conduct” and in doing so “jeopardized the integrity of the
trial proceedings.” Quintanilla, 60 M.J. at 867. Even so, the Navy-Marine Corps Court
of Criminal Appeals held that the argument did not impact the sentence because of the
instruction. Id. On review, our superior court affirmed and ruled that the argument did
not prejudice the findings because it was made after findings were entered. Quintanilla,
63 M.J. at 39. In Quintanilla, the cautionary instruction most certainly saved the case in
light of the egregious nature of the argument. Trial counsel’s argument in the appellant’s
case pales in comparison to that in Quintanilla.

       In Loving, trial counsel argued societal factors during his sentencing argument.
That appellant challenged the following passage:

       What the defense has glossed over in their entire argument is justice. What
       sentence serves justice? Crimes, when they’re committed, demand
       punishments that fit them. The message that you send out, and you will
       send out a message with your sentence today, that message is not going to
       go just over this installation, but it is going to go across the United States.
       There’s going to be a message that’s going to be heard by working people.
       They need to know that they will not be terrorized in their work places.
       Americans, members of society, need to know that they will be protected
       and that they will be protected [sic] and that we will protect and we will
       vindicate society’s victims.

Loving, 34 M.J. at 965. The defense objected to the argument, but the judge overruled
the objection and proceeded to give the required instructions on sentencing. Id. On
appeal, the appellant asserted that trial counsel erred in arguing general deterrence. The
Army court found no error, holding that the military judge properly instructed the
members to take into account the circumstances of the case and the character and
propensities of the accused. Id. (citing United States v. Lania, 9 M.J. 100 (C.M.A.1980))




                                             91                            ACM 36785 (recon)
(holding that general deterrence is a relevant factor when determining a just sentence so
long as the military judge instructs the members on other factors, such as rehabilitation,
the circumstances of the case, and the character and propensity of the accused).

       Here, trial counsel’s argument was more limited in scope than that in Loving and
Quintanilla. Although the defense did not object, the military judge did not err by failing
to give a sua sponte curative instruction. In fact, the military judge properly instructed
the members absent a curative instruction, and trial counsel’s argument stayed within the
bounds of those instructions.

              C. Other Impermissible Trial Counsel Sentencing Arguments

        The appellant also alleges that his trial defense counsel ineffectively stood silent in
the face of unlawful argument by trial counsel and ineffectively failed to request curative
instructions following such arguments. More specifically, he argues (1) trial counsel
improperly referred to whether anyone from the appellant’s family or others in the
courtroom gallery had ever tried to apologize to the victims’ families, and (2) that trial
counsel improperly discussed the appellant’s opportunity to pursue an appeal if the
members sentenced him to death. Trial defense counsel objected to the comments about
the conduct of members of the appellant’s family, who were in the gallery throughout the
trial, on the grounds that there were no facts in evidence on such matters, and that trial
counsel was mischaracterizing facts, but did not object to comments relating to the other
issue.

       As the appellant did not object to the argument about the possibility of an appeal,
we review the propriety of that argument for plain error, pursuant to which the appellant
must show, to prevail, that the alleged error materially prejudiced a substantial right. To
assess prejudice under plain error review “where prosecutorial misconduct has been
alleged: ‘[W]e look at the cumulative impact of any prosecutorial misconduct on the
accused’s substantial rights and the fairness and integrity of his trial.’” Erickson,
65 M.J. at 224 (quoting United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005)).
Following our superior court’s analysis in Fletcher, we evaluate prejudice with reference
to three factors: “(1) the severity of the misconduct, (2) the measures adopted to cure the
misconduct, and (3) the weight of the evidence supporting the conviction.”
62 M.J. at 184. In the case now before us, and based on the evidence before the members
when they sentenced the appellant, the third Fletcher factor weighs so heavily in favor of
the Government we are confident that the appellant was sentenced on the basis of the
evidence alone. Id.

       We need not address the waived errors separately from the non-waived error as the
appellant was not prejudiced by trial counsel’s sentencing arguments. Accordingly, he
therefore was likewise not prejudiced by the military judge’s failure to interrupt the




                                              92                             ACM 36785 (recon)
arguments or issue a curative instruction or by his trial defense counsel’s failure to object
to these arguments. See Strickland, 466 U.S. at 687.

                   D. Erroneously Admitted Victim Impact Testimony

       Apart from his trial defense counsel’s failure to object to victim impact testimony
during sentencing, the appellant also alleges that the military judge committed plain error
by admitting testimony in the form of characterizations of the offenses of which the
appellant was convicted. Because no objection was raised at trial, we review a claim of
erroneous admission of evidence for plain error. United States v. Hardison, 64 M.J. 279,
281 (C.A.A.F. 2007). “The plain error standard is met when ‘(1) an error was committed;
(2) the error was plain, or clear, or obvious; and (3) the error resulted in material
prejudice to substantial rights.’” United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F.
2008) (citing Hardison, 64 M.J. at 281). The appellant bears the burden of demonstrating
the three prongs of the test are met. Id.

       Pursuant to R.C.M. 1001(b)(4), trial counsel may present evidence as to any
aggravating circumstances directly relating to or resulting from the offenses of which the
accused has been found guilty. As previously discussed in the related ineffective
assistance of counsel issue, the family members of the deceased victims testified at length
regarding the emotional impact of the appellant’s crimes. In a few isolated comments—
made in the context of describing their own emotional pain—some family members
characterized the appellant’s crimes. JS’s sister, CB, for example, described her pain at
knowing “[t]hey died alone, suffering,” while JS’s father at one point referred to the
appellant’s crimes as “the biggest act of cowardice.” Regarding his own mental anguish,
JS’s father added: “No human being ought to die that way. No human being deserves
this. Not in a civil society. This is unacceptable.”

       Admission of the statements characterizing the appellant’s crimes constituted error
under Booth and Payne, even though they were relatively brief and made in the context of
the witnesses describing how the appellant’s crimes impacted them. We assume, without
specifically finding, that the error was plain and obvious. Compare People v. Martinez,
224 P.3d 877, 960 (Cal. 2010) (finding no error in admission of deceased victim’s sister’s
testimony that “what hurt her most was thinking of ‘all that [deceased victim] went
through’ and how she ‘suffered that night’ before her death”), with Bernard, 299 F.3d at
480-81 (finding error, though no prejudice, in admission of deceased victim’s mother’s
testimony, directed at defendants, that “you couldn’t even see the innocence of the two
you’ve killed” and father’s testimony that the victims “were tragically and recklessly
stolen” and “it was just a useless act of violence and a total disregard of life”).

      Nevertheless, the appellant has failed to demonstrate these comments resulted in
any material prejudice. Cf. Payne, 501 U.S. at 832 (“[S]urely this brief statement did not




                                             93                            ACM 36785 (recon)
inflame [the jury’s] passions more than did the facts of the crime . . . .”) (O’Connor, J.,
concurring). Consequently, we find relief on these grounds unwarranted.

                                            V. Cumulative Error

       We review de novo the cumulative effect of all plain errors and preserved errors.
United States v. Pope, 69 M.J. 328, 335 (C.A.A.F. 2011) (citing United States v. Gray,
51 M.J. 1, 61 (C.A.A.F. 1999)). “Under the cumulative-error doctrine, ‘a number of
errors, no one perhaps sufficient to merit reversal, in combination necessitate the
disapproval of a finding.’” Id. (citing United States v. Banks, 36 M.J. 150, 170-71
(C.M.A.1992)). We are to reverse only if we find any cumulative errors to have denied
the appellant a fair trial. Pope, 69 M.J. at 335.

       In the case before us, the evidence in aggravation was powerful, plentiful, and
persuasive. Against that overwhelming evidence, we balance the errors identified herein.
On balance, we find the impact of such errors, considered cumulatively, along with all
argued deficiencies in trial defense counsel’s effectiveness, not to have denied the
appellant a fair trial. See United States v. Dollente, 45 M.J. 234, 242 (C.A.A.F. 1996)
(“Courts are far less likely to find cumulative error . . . when a record contains
overwhelming evidence of a defendant’s guilt.”).

                                            VI. Post-Trial Issues

                              A. Post-Trial Challenge of Military Judge

       The appellant asserts that the military judge erred in denying a post-trial motion
challenging the military judge for cause. One basis for the post-trial challenge was that
the military judge did not satisfy the regulatory requirements to sit as an Air Force
military judge. The crux of the appellant’s argument is that, because the military judge
failed to maintain his authority to practice law in Florida, he was not qualified to be
designated as a Judge Advocate under AFI 51-103, Designation and Certification of
Judge Advocates, ¶ 2.1 (7 December 2004). 35

       Consistent with our ruling in United States v. Maher, 54 M.J. 776 (A.F. Ct. Crim.
App. 2001), aff’d, 55 M.J. 361 (C.A.A.F. 2001), and our previous Order denying the
appellant’s Motion to Compel Documents relating to the military judge’s licensing status,
we find the appellant’s claim to be meritless.



35
   In consideration of this issue, this court has taken judicial notice of Air Force Instruction 51-103, Designation
and Certification of Judge Advocates (7 December 2004), and the Rules Regulating the Florida Bar.




                                                        94                                    ACM 36785 (recon)
                     B. Assistant Trial Counsel’s Authentication of the Record

        The appellant asserts that remand of the case is necessary to correct what is
alleged to be an error in the record of trial appearing in the certificate of compliance
authenticating the record of the post-trial Article 39(a), UCMJ, hearing. Specifically, the
appellant alleges Capt RH improperly signed the certificate as “trial counsel,” when in
reality, his role was as an assistant trial counsel during a post-trial Article 39(a), UCMJ,
session. Additionally, the appellant alleges that Capt RH improperly backdated his
signature to reflect a date of “7 Jul 09,” when he believes Capt RH’s review of the record
was not complete at that time.

        The appellant previously raised this exact issue in a post-trial motion to remand
the record of trial for correction of the certificate of compliance with
R.C.M. 1103(i)(1)(A). With respect to this issue, the appellant asserts the panel ignored
certain facts. We disagree. Having reviewed the record of trial again and in accordance
with our previous ruling on this issue, we find Capt RH was an assistant trial counsel at
the post-trial Article 39(a), UCMJ, session and thus was a proper party to sign the
certificate of review. R.C.M. 502(d)(5); R.C.M. 1103(i)(1)(A); Air Force Manual
51-203, Records of Trial, ¶ 12.1 (17 November 2009); United States v. Credit,
4 M.J. 118, 119 n.5 (C.M.A. 1977). We further find the record indicates Capt RH’s
review was completed on 7 July 2009. The e-mail traffic presented between Capt RH
and trial defense counsel fails to establish the contrary. As such, we find no error.

                                          C. Post-Trial Delay

       The appellant alleges three errors relating to the post-trial processing of his case
and seeks relief in the form of affirming a sentence of life without the possibility for
parole, total forfeitures, reduction to the grade of E–1, and a dishonorable discharge. We
find no error.

        First, the appellant asserts that a lengthy period of confinement on death row
followed by execution constitutes cruel and unusual punishment in violation of the Eighth
Amendment and Article 55, UCMJ, 10 U.S.C. § 855. Essentially he argues that the
mental anxiety felt during the delay, the anticipation of execution, and his inability to
avoid appellate review of his sentence 36 have served to increase his sentence to a degree
that is unconstitutional. We disagree.

       Whether a punishment constitutes cruel and unusual punishment under the Eighth
Amendment or cruel or unusual punishment under Article 55, UCMJ, is a question of law
this Court reviews de novo. United States v. White, 54 M.J. 469, 471 (C.A.A.F. 2001).
36
     Article 61, UCMJ, 10 U.S.C. § 861.




                                                  95                         ACM 36785 (recon)
While this Court recognizes there has been a lengthy delay between the convening
authority’s approval of his sentence and our ruling on the appellate issues, we find this
delay harmless beyond a reasonable doubt. As appellant points out in his brief, no
American court has ruled that a lengthy period of confinement followed by execution is
impermissible, and we decline to adopt such a standard based upon the delay in this case.

        Second, the appellant asserts that his Fifth Amendment 37 right to be free from
unreasonable post-trial delay has been violated. The Fifth Amendment requires that
“[n]o person shall be . . . deprived of life, liberty, or property, without due process of
law.” We note that the overall delay between the time the case was docketed at the Air
Force Court of Criminal Appeals and completion of review by this Court is facially
unreasonable. Because the delay is facially unreasonable, we examine the four factors set
forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(1) the length of the delay; (2) the
reasons for the delay; (3) the appellant’s assertion of the right to timely review and
appeal; and (4) prejudice.” United States v. Moreno, 63 M.J. 129, 136 (C.A.A.F. 2006).
When we assume error but are able to directly conclude that any error was harmless
beyond a reasonable doubt, we do not need to engage in a separate analysis of each
factor. See United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006). This approach is
appropriate in the appellant’s case. The post-trial record contains no evidence that the
delay has had any negative impact on the appellant. Having considered the totality of the
circumstances and the entire record, we conclude that any denial of the appellant’s right
to speedy post-trial review and appeal was harmless beyond a reasonable doubt. Finally,
the appellant argues the excessive post-trial delay in this case warrants relief under
United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002). While we acknowledge this
authority to grant relief absent prejudice to the defense, we decline to do so.

             VII. Assignments of Error Regarding New Convening Authority Action

       The appellant alleges four errors each requiring a new convening authority action
be issued in this case. The appellant first asserts that a new convening authority action is
required because the original convening authority’s action was based on a non-verbatim
record of trial.

       Whether a record of trial is substantially verbatim is a question of law this Court
reviews de novo. United States v. Henry, 53 M.J. 108, 110 (C.A.A.F. 2000). “A
substantial omission renders a record of trial incomplete and raises a presumption of
prejudice that the Government must rebut.” Id. at 111 (citations omitted). Minor errors
and omissions in a record of trial are not prejudicial and do not require a new staff judge
advocate recommendation (SJAR) or action by the convening authority. United States v.
Loving, 41 M.J. 213, 289 (C.A.A.F. 1994). Whether errors require a new SJAR and
37
     U.S. CONST. amend. V.




                                             96                           ACM 36785 (recon)
action turns on the nature of the errors and whether the errors raise a “reasonable
possibility” that the errors affected the convening authority’s decision or the SJAR. Id.

        In preparing the SJAR pursuant to R.C.M. 1106, the SJA indicated that he had
“considered all matters in the record of trial.” In the Addendum to the SJAR, the SJA
advised the convening authority that he “may consider the record of trial.” In taking his
action, the convening authority noted that he “carefully considered the attached matters,”
which included the record of trial. Trial defense counsel did not challenge the accuracy
of the record of trial.

       When this case was originally before this Court, the appellant identified more than
4,000 errors in the trial transcript. The Government subsequently had the record
reviewed by two court reporters who identified over 5,000 errors in the trial transcript.
On 20 March 2008, this Court ordered the case remanded to the convening authority for
correction of the trial transcript. In the same order, this Court denied the appellant’s
motion to set aside the convening authority’s action and specifically commented:

      We would note that not all omissions in the record require a new
      recommendation and action. This question will turn on the nature of the
      omission and whether the defects raise a ‘reasonable possibility’ that the
      defect affected the convening authority’s decision or the SJA
      recommendation. See United States v. Loving, 41 M.J. 213, 289 (C.A.A.F.
      1994). This question is best answered by the convening authority and his
      SJA after the record is corrected in accordance with R.C.M. 1104(d)(2).

Upon remand, the trial transcript was corrected by the preparation of an entirely new
transcript. The military judge adopted this new transcript by means of a certificate of
correction.

       Upon review of the errors and corrections to the transcript, on 5 October 2009
both the new SJA and convening authority determined that no new recommendation or
action was necessary. The convening authority purported:

      I have determined that any omissions or defects found in the original
      transcript of the original proceedings . . . do not raise a reasonable
      possibility that any such omissions or defects affected the original
      convening authority’s decision or the Staff Judge Advocate
      Recommendation.         Accordingly, I have determined that no new
      recommendation or action is necessary in this case, and that the Record of
      Trial is substantially verbatim.




                                            97                           ACM 36785 (recon)
       The appellant claims the errors in the original transcript were both quantitatively
and qualitatively substantial, rendering the original transcript non-verbatim. We
disagree. Considering our review of the errors in the original transcript, just about all of
them were minor, inconsequential errors such as grammatical and spelling errors.
Despite the relatively large number of errors, they did not change the overall substance of
the transcript nor did they affect the ability to ascertain the witnesses’ testimony,
objections and arguments of counsel, or the military judge’s rulings and instructions.

       Further, although the SJA was required to use the record of trial in the preparation
of the SJAR, the SJA was not required to examine the record for legal errors.
R.C.M. 1106. Additionally, as noted in Loving, although the convening authority
indicated that he reviewed the record of trial, he was not required to do so. Loving,
41 M.J. at 289; R.C.M. 1107(b)(1); R.C.M. 1107(c), Discussion.

       Although there were numerous minor errors in the original trial transcript, the
transcript was still substantially verbatim. Considering the heinous nature of the
appellant’s crimes, there was no reasonable possibility that the errors affected the
convening authority’s decision to approve the adjudged sentence. Finally, having
reviewed the revised transcript, both the new SJA and convening authority determined
that a new SJAR and action were not necessary. Accordingly, the appellant was not
prejudiced by these errors and his request for a new action is without merit.

        The appellant next claims that a new convening authority action is required
because the original SJA, Col JR, who prepared the SJAR, was not disinterested and
should not have prepared the SJAR. The specific bases for his claim that the SJA was not
disinterested are: (1) the SJA made a silent promise to himself for justice after viewing
the murder scene; (2) the SJA was present at trial, communicated with trial counsel, and
sat in a particular place in the courtroom; and (3) the SJA had a desire to issue the SJAR
before he retired.

        Whether a staff judge advocate is disqualified from participating in the post-trial
review process is a question of law that we review de novo. United States v. Taylor,
60 M.J. 190, 194 (C.A.A.F. 2004). The appellant “has the initial burden of making a
prima facie case for disqualification.” Id. (internal quotation marks and citation
omitted). Our court has previously explained that an “SJA is disqualified if she or he has
previously served in a conflicting capacity or has other than an official interest in the
same case.”        United States v. Womack, ACM S31212, unpub. Op. at 1
(A.F. Crim. Ct. App. 3 October 2007) (internal quotation marks and citation omitted).
Our Court also explained that the “SJA, or legal officer, may supply general information
to the trial counsel, without having such advice transform him into a prosecutor so as to
make him ineligible thereafter to advise the convening authority.” Id. It is only when
“there is extensive participation in a trial that would cause a disinterested observer to




                                            98                            ACM 36785 (recon)
doubt the fairness of the post-trial proceedings, that person is disqualified.” Id. The
phrase “other than an official interest” has been interpreted to mean “a personal interest
or feeling in the outcome of a particular case.” United States v. Sorrell, 47 M.J. 432, 433
(C.A.A.F. 1998) (internal quotation marks and citation omitted). As it relates to
allegations of a disinterested SJA, our superior court has stated it has “no illusions that a
staff judge advocate as the legal adviser to the convening authority is disinterested in the
successful prosecution of those cases referred by the convening authority for trial.”
United States v. Caritativo, 37 M.J. 175, 181 (C.M.A. 1993). However, if the SJA’s
“conduct cannot reasonably be construed as constituting an improper influence or is
otherwise ineffectual, no corrective action is normally required.” Id.

        Concerning the silent promise of the SJA, the appellant relies on an excerpt from
an article written after completion of the trial which read: “Col [JR], the Staff Judge
Advocate, Warner Robins Air Logistics Center, vividly remembers examining the crime
scene that morning and silently promising that the perpetrator would be brought to
justice.” In a post-trial declaration, lead trial counsel, Col VS, 38 states, “During our brief
interview with Col [JR], he did comment on his promise for justice. During our
conversation, he did not define what justice was and he did not state what he thought the
outcome of any potential case should be. . . . I would note when the comment was made
by Col [JR], no-one had identified [the appellant] as a suspect and he had not been
apprehended.” Col JR states in his post-trial declaration, “In any event, I certainly did
not make a crime scene vow to avenge persons then dead, whom I had never known, and
at the time and place had very little idea about what had happened to them or where
culpability rested. I certainly did not presuppose that justice would include pursuit of a
capital case.” Col VS confirms in his declaration that Col JR always maintained he did
not know if he would recommend the case be referred as capital or otherwise. Likewise,
regarding post-trial, Col VS states that Col JR maintained he did not know what his
ultimate recommendation would be to the convening authority.

       The second alleged basis that Col JR was not a disinterested party is that he
attended most days of the trial, communicated with trial counsel, and sat near the victims’
family members. According to the post-trial declarations, the appellant is correct that
Col JR attended significant portions of the trial, although the exact number of days is
unknown. When he was in attendance, Col JR sat on trial counsel’s side of the
courtroom, near the families of the victims. Col JR also consulted with trial counsel
during breaks and was observed tasking one of the prosecutors. However, according to
his post-trial declaration, Col JR attended the trial because Public Affairs asked that he be
the spokesperson to the media attending the trial and to answer any questions that they
may have. He sat on the prosecution side of the courtroom because the courtroom
doorway to the hall was on that side and he could discretely enter or leave the courtroom,
38
     Colonel VS was a Lieutenant Colonel at the time this declaration would have been made.




                                                         99                                   ACM 36785 (recon)
as necessary. Further, he did consult with trial counsel during recesses, but it was usually
to address logistical issues and did not involve trial strategy. He did on one occasion
hand a note to Col VS to let him know that he was leaving for the day, and he tasked
Capt JW to provide him with daily updates.

        The final allegation that Col JR was not disinterested is that he requested the
record of trial be completed in an expedited fashion so that he could issue the SJAR prior
to his retirement. The appellant was sentenced on 13 October 2005. According to the
post-trial declaration of the court reporter, Ms. HS, sometime around the spring of 2006,
Col JR announced that he would be retiring, and the convening authority would be
reassigned that summer. Once this announcement was made, Ms. HS states that the
transcript became a much higher priority, and it was discussed during weekly meetings.
Col JR set a deadline of 8 May 2006 for completion of the record of trial, which was
forwarded to the military judge on 13 May 2006. The SJAR was issued by Col JR on
30 May 2006.

       In his post-trial declaration, Col JR disputes the appellant’s assertion that his
desire for completion of the record of trial was for anything other than official reasons.
Col JR explained, “I am confident that I never asked or wanted anyone post-trial to
accelerate the record of trial at the compromise of quality, nor would I have tolerated the
idea.” He further explained:

       I would have willingly let another SJA make the recommendation in this
       case. I gave the deepest and fullest consideration I could muster to each
       and every decision, recommendation, and advice I made or gave, and would
       have avoided the occasions to do so had I not been duty bound to do that
       which is required of an SJA at the times I had that appointment.

Col JR ultimately denies having a personal interest in this case.

       We have reviewed the appellant’s allegations and find that the bases neither
independently nor collectively establish that Col JR had other than an official interest in
this case and that he was not disqualified from making his required R.C.M. 1106
recommendation. Although upon viewing the crime scene, Col JR silently promised the
perpetrator would be brought to justice, the appellant has not shown that Col JR caused
him to be wrongfully charged for his crimes, unfairly denied his requests for witnesses, or
that “justice” necessarily meant the pursuit of a capital case. Likewise, we do not find
that Col JR’s attendance at the appellant’s trial indicates he had a personal interest in the
outcome of this case. Considering the media interest surrounding the appellant’s trial, it
was reasonable for Col JR to attend the trial. Also, he discretely sat near the exit door
and did not direct the prosecution on its trial strategy. Finally, Col JR’s desire to have the
record of trial completed and the SJAR issued prior to his retirement is likewise




                                             100                             ACM 36785 (recon)
reasonable under the circumstances of this case. We note that the record of trial was not
completed until seven months after completion of the trial. Further, the Addendum to the
SJAR, which was the ultimate recommendation made to the convening authority, was not
signed by Col JR, but rather by his successor, Col WM, on 6 July 2006.

       We further find that a post-trial hearing pursuant to United States v. Ginn,
47 M.J. 236 (C.A.A.F. 1997) is not warranted as this issue can be resolved from the
record of trial and the post-trial declarations.

       In conclusion, the appellant has failed to show that a new convening authority’s
action is required as a result of the alleged actions of Col JR.

       The appellant next asserts that a new convening authority’s action is required
because the original convening authority’s action was based on a different jurisdictional
vehicle than is currently before this Court.

      Jurisdiction is a legal question we review de novo.           United States v. Daly,
69 M.J. 485, 486 (C.A.A.F. 2011).

        The essence of the appellant’s assertion is that the original record of trial prepared
under Article 54, UCMJ, 10 U.S.C. § 854, which was used by the SJA to prepare his
recommendation under Article 60, UCMJ, 10 U.S.C. § 860, which was subsequently
transmitted to TJAG pursuant to Article 65, UCMJ, 10 U.S.C. § 865, and then referred to
this Court pursuant to Article 66(b), UCMJ, 10 U.S.C. § 866(b), is not the same record of
trial that this Court has now used to perform our Article 66(c), UCMJ, 10 U.S.C. § 866(c)
review. Therefore, the appellant claims that we do not have jurisdiction to exercise our
Article 66(c), UCMJ, authority. We disagree.

        As stated above, when this Court remanded the case for correction of the original
record of trial, the decision regarding whether a new action was required was left to the
convening authority. As stated above, almost all of the errors were minor in nature. On
18 May 2009, after the record of trial was corrected, the military judge conducted a
post-trial Article 39(a), UCMJ, hearing to resolve any outstanding discrepancies in the
record of trial. On 20 August 2009, the military judge issued a Certificate of Correction.
Thereafter, the new SJA and convening authority determined a new SJAR and action
were not required because “any omissions or defects found in the original transcript of
the original proceedings . . . do not raise a reasonable possibility that any such omissions
or defects affected the original convening authority’s action or Staff Judge Advocate’s
Recommendation.”

      Contrary to the appellant’s assertion, the Government did not create an entirely
new transcript, but instead, created a new transcript incorporating the changes agreed




                                             101                             ACM 36785 (recon)
upon by the parties and ultimately resolved and approved by the military judge. As we
held above, despite all of the errors and discrepancies, the original record of trial was
substantially verbatim, and the errors did not affect the convening authority’s decision to
approve the adjudged sentence. Therefore, no new action was required as a result of the
corrected record, and this Court maintains jurisdiction to conduct our review under
Article 66(c), UCMJ.

       The appellant’s fourth and final asserted error which he alleges requires a new
convening authority action is that trial defense counsel provided ineffective assistance of
counsel during the post-trial clemency phase. Specifically, trial defense counsel failed to
investigate the appellant’s closed head injury and failed to present evidence of the
motorcycle accident and corresponding head injury to the convening authority. In this
assignment of error, the appellant essentially renews his previous argument that trial
defense counsel were ineffective in not presenting evidence of the motorcycle accident
and a possible TBI. The appellant again argues that because the appellant’s expert
psychologist, Dr. BM, performed poorly during the Daubert 39 hearing, this should have
given his trial defense counsel cause to doubt his earlier advice that further testing
concerning a TBI would not reveal potentially mitigating evidence. Instead, his trial
defense counsel should have revisited this issue. According to the appellant, his trial
defense counsel should have heeded the advice of the defense mitigation specialist,
Ms. CP, who recommended that they contact Dr. FW, who has opined in a post-trial
declaration that he believes that there is a reasonable possibility that the appellant
suffered a TBI.

       We review claims of ineffective assistance of counsel de novo. Anderson,
55 M.J. at 201. To prevail on a claim of ineffective assistance of counsel, an appellant
must show both that the counsel’s performance was deficient and that the deficiency
resulted in prejudice. Strickland, 466 U.S. at 687. “The benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.” Id. at 686. A successful ineffectiveness claim requires a finding
of both deficient performance and prejudice; there is no requirement that we address
“both components of the inquiry if the defendant makes an insufficient showing on one.”
Id. at 697. We are not to assess counsel’s actions through the distortion of hindsight;
rather we are to consider counsel’s actions in light of the circumstances of the trial and
under the “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action might be considered sound trial
strategy.” Id. at 689 (internal quotation marks and citation omitted).

39
     See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, (1993).




                                                         102               ACM 36785 (recon)
        The prejudice prong is lower in a post-trial ineffective assistance of counsel
context than for allegations of ineffective assistance of counsel during trial. United States
v. Lee, 52 M.J. 51, 53 (C.A.A.F. 1999). Because the convening authority’s clemency
power is highly discretionary, an appellant gets the benefit of the doubt and need only
make “some colorable showing of possible prejudice.” Id. (internal quotation marks and
citation omitted).

        The Government likewise renews its position that the appellant’s trial defense
counsel did not provide ineffective assistance of counsel. The Government reiterates its
position that Dr. BM’s performance during the Daubert hearing did not give trial defense
counsel cause to doubt his earlier advice concerning a TBI. The Daubert hearing focused
on Dr. BM’s qualifications to testify as an expert regarding the impact of adrenaline upon
the appellant’s ability to premeditate the charged murders. Although the military judge
ruled that Dr. BM was qualified to testify on the subject, the trial counsel was able to
elicit from Dr. BM that there were limited studies to support his theory. However, the
Daubert hearing had nothing to do with the motorcycle accident and is separate and
distinct from his opinion on TBIs.

       The Government likewise argues that both Dr. AM, a board certified forensic
psychiatrist who conducted the sanity board to assess the appellant’s mental capacity, and
Dr. CR, the Government’s expert psychologist, supported Dr. BM’s opinion that the
appellant’s motorcycle accident did not result in any cognitive impairment. In his report
from the sanity board evaluation, Dr. AM wrote:

       [The appellant] has no current medical concerns. He does have a history of
       a closed head injury on February 23, 2004 from a motorcycle accident.
       However, a medical record review indicates that the CT scan of the brain
       was negative for any significant changes. [The appellant] reports no
       significant problems after the accident.

       As previously discussed, Dr. CR evaluated the appellant during the trial to prepare
the Government to counter any testimony offered by Dr. BM. From this evaluation,
Dr. CR found no signs of any cognitive impairment or neurological impairment.
Additionally, according to Dr. CR, the appellant denied ever having had difficulty with
anger, rage, aggressive behavior, or impulse control. The appellant attributed his “life
problems” to an overly controlling mother and his disciplinarian-lax father.

      The Government also submitted the post-trial declaration of then Capt DW, who
was the trial defense counsel primarily responsible for preparing the appellant’s clemency
submission. According to Capt DW:




                                             103                            ACM 36785 (recon)
       When I was preparing [the appellant’s] clemency case, I focused entirely on
       providing evidence of [the appellant’s] remorse and rehabilitation potential
       since I believed this was our most likely method of obtaining relief from
       the convening authority. My strategy was to humanize [the appellant] and
       demonstrate that he was someone who had acted out of character that
       evening of the murders. I also wanted to show the convening authority the
       vast support network [the appellant] had available to help him be
       rehabilitated if he were given the chance to spend life in prison rather than
       sentenced to death.

Concerning the motorcycle accident, Capt DW states:

       I did not consider using or raising the motorcycle accident as part of the
       clemency submission. In dealing with convening authorities as both a chief
       of military justice advising on clemency as well as a defense counsel
       requesting relief, I found that convening authorities were particularly
       dismissive of arguments that included anything they might view as an
       attempt to make excuses. I did not want to include arguments in my
       personal memorandum that could possibly undermine the effort to
       demonstrate [the appellant’s] remorse and rehabilitative potential. The
       character witnesses who provided letters could have discussed the accident,
       however, if they felt they wanted to in the course of writing their letters.

        Consistent with his stated objective, Capt DR submitted 43 character letters from
the appellant’s family, relatives, friends, and former teachers. All of the letters requested
that the convening authority grant clemency by reducing his sentence to confinement for
life. The letters characterized the appellant as a loving brother and son and someone who
felt religion was important. Many of the letters indicated the appellant was raised in a
good family with strong Christian values and that he would be a positive influence on
others in confinement.

       We find that the appellant has not shown he was prejudiced by his trial defense
counsel’s failure to submit evidence of his motorcycle accident to the convening
authority. Similar to their sentencing strategy, trial defense counsel tried to humanize the
appellant and show he had some rehabilitative potential preventing death. Despite this
sound and reasonable approach, the members sentenced him to death, and the convening
authority elected not to grant clemency. Considering the totality of the clemency
submission, along with the post-trial declarations and the overwhelming evidence of the
horrific murders and attempted murder committed by the appellant, even under the lesser
standard of “making some colorable showing of possible prejudice,” evidence of a
possible TBI would not have changed the convening authority’s decision in this case.




                                             104                            ACM 36785 (recon)
                                   VIII. Systemic Issues

       The appellant next raises the four following “systemic” issues: (1) the Supreme
Court’s decision in Ring v. Arizona requires that the members find that aggravating
circumstances substantially outweigh mitigating circumstances beyond a reasonable
doubt; (2) based on the Supreme Court’s reasoning in Ring v. Arizona, Congress
unconstitutionally delegated to the President the power to enact the functional equivalent
of elements of capital murder, a purely legislative function; (3) the standard of proof for
aggravating circumstances in R.C.M. 1004(b)(4) violates the appellant’s right to due
process under the Fifth, Sixth, and Eighth Amendments because the facts that form the
basis for a determination that leads to the death sentence must be determined by the
members beyond a reasonable doubt; and (4) the sentence of death is unlawful because
no statute or regulation prescribes a method of execution.

       We have reviewed these issues and find them to be without merit.

       The Supreme Court decided Ring v. Arizona, 536 U.S. 584 (2002), three years
prior to the appellant’s court-martial. In Ring, the defendant was convicted in Arizona
state court of first-degree murder, armed robbery, and related charges. Under Arizona
law, Ring could not be sentenced to death, the statutory maximum penalty for first-degree
murder, unless further findings were made by a judge conducting a separate sentencing
hearing. The judge at that stage must determine the existence or nonexistence of
statutorily enumerated “aggravating circumstances” and any “mitigating circumstances.”
A sentence to death could be imposed only if the judge found at least one aggravating
circumstance and no mitigating circumstances sufficiently substantial to call for leniency.
The sentencing judge in Ring, after conducting such a hearing, imposed the death
sentence. The judge found two aggravating factors; one, that the offense was committed
for pecuniary gain, and two, that it was committed in an especially heinous, cruel, or
depraved manner. The judge found one mitigating factor, Ring’s minimal criminal
record, and ruled that it did not call for leniency.

        Ring appealed, and the Arizona Supreme Court affirmed his conviction and
sentence. The Supreme Court then granted his petition for writ of certiorari. The Court
held that the Arizona statute, which allowed a sentencing judge to find an aggravating
circumstance necessary to impose the death penalty, violated the Sixth Amendment right
to a jury trial in capital prosecutions. Ring, 536 U.S. at 609. In reaching this holding, the
Court stated: “The right to trial by jury guaranteed by the Sixth Amendment would be
senselessly diminished if it encompassed the factfinding necessary to increase a
defendant’s sentence by two years, but not the factfinding necessary to put him to death.
We hold that the Sixth Amendment applies to both.” Id. The Court further stated that
because “Arizona’s enumerated aggravating factors operate as ‘the functional equivalent




                                             105                            ACM 36785 (recon)
of an element of a greater offense,’ the Sixth Amendment requires that they be found by a
jury.” Id. (quoting Apprendi v. New Jersey, 530 U.S. 466, 494 (2000)).

        In addition to Ring, the appellant’s arguments implicate certain sentencing
provisions of the Rules for Courts-Martial. Rule for Courts-Martial 1004(b)(4) states, in
part, that a sentence of death may not be adjudged unless:

         (A) The members find that at least one of the aggravating factors under
         subsection (c) existed;

         (B) Notice of such factor was provided in accordance with paragraph (1) of
         this subsection 40 and all members concur in the finding with respect to such
         factor; and

         (C) All members concur that any extenuating or mitigating circumstances
         are substantially outweighed by any aggravating circumstances admissible
         under R.C.M. 1001(b)(4), including the factors under subsection (c) of this
         rule.

      R.C.M. 1004(c) requires that before adjudging a sentence of death, the members
must find, beyond a reasonable doubt, one or more of the aggravating factors listed in
subsections (1) – (11) of that rule.

      In addition, R.C.M. 1001(b)(4) sets forth the aggravating circumstances trial
counsel may present during sentencing and states, in part:

         Evidence in aggravation includes, but is not limited to, evidence of
         financial, social, psychological, and medical impact on or cost to any
         person or entity who was the victim of an offense committed by the
         accused and evidence of significant adverse impact on the mission,
         discipline, or efficiency of the command directly and immediately resulting
         from the accused’s offense. In addition, evidence in aggravation may
         include evidence that the accused intentionally selected any victim or any
         property as the object of the offense because of the actual or perceived race,
         color, religion, national origin, ethnicity, gender, disability, or sexual
         orientation of any person.

40
     At the time of trial, R.C.M. 1004(b)(1) required trial counsel to give the defense written notice, prior to
arraignment, of which aggravating factors the prosecution intended to prove. The rule was later amended to further
provide that the convening authority “shall indicate” in the referral block of the charge sheet that the case will be
tried as a capital case. See Historical Executive Orders, Manual for Courts-Martial, United States, A25-79 (2008
ed.).




                                                         106                                    ACM 36785 (recon)
       We first address issues 1 and 3 because the appellant raises similar arguments to
support his positions. In accordance with R.C.M. 1001(b)(4) and 1004(b)(4), the military
judge instructed the members as follows:

             All of the members of the court must agree beyond a reasonable
      doubt that one or more of the aggravating factors existed at the time of the
      offenses or resulted from the offenses. . . .

             . . . If you fail to find unanimously that at least one aggravating
      factor existed, then you may not adjudge a sentence of death. However, if
      you do find by unanimous vote that at least one aggravating factor existed,
      then you proceed to the next step.

             In this next step, you may not adjudge a sentence of death unless you
      unanimously find that any and all extenuating and mitigating circumstances
      are substantially outweighed by any aggravating circumstances, including
      the factor or factors as you have found existed in the first step of this
      procedure. Thus, in addition to the aggravating factors that you have found
      by unanimous vote, you may consider but are not limited to considering the
      following aggravating circumstances: Testimony concerning the mental
      and physical pain suffered by [SrA AS and JS] during the crimes; testimony
      concerning the physical and mental pain suffered by [SSgt JK] while
      recovering from his injuries; testimony concerning the mental, physical,
      and emotional impacts the crimes had on the victims, their families, and
      their friends; the nature of the weapon used in the commission of the
      offense; the fact that the offense occurred on base and in base housing; and
      the fact that the accused wore his military battle dress uniform to commit
      the crime.

             You must also consider all evidence in extenuation and mitigation
      and balance them against the aggravating circumstances, using the test that
      I’ve previously instructed you on. Thus, you should consider but are not
      limited to considering the following extenuating and mitigating
      circumstances: The accused’s age and maturity at the time of the
      court-martial; the accused’s military records as described in his Enlisted
      Performance Reports and in the Personal Data Sheet, which is Prosecution
      Exhibit 62; the accused’s unsworn statement; the accused’s background as
      described in character statements and witness testimony submitted on
      behalf of the accused; the duration and condition of the accused’s pretrial
      confinement since being placed into pretrial confinement; the accused’s
      express desire to live and for future rehabilitation; the accused’s religious




                                           107                            ACM 36785 (recon)
        beliefs; that the accused had no history of physical violence before this
        case; and that the accused has entered into Stipulations of Fact and
        Testimony which save the government time and expense during the course
        of this trial.

       We review the completeness of a military judge’s sentencing instructions de novo.
United States v. Forbes, 61 M.J. 354, 357 (C.A.A.F. 2005); see also United States v.
Miller, 58 M.J. 266, 268 (C.A.A.F. 2003). Such instructions are examined as a whole to
determine if they pass constitutional muster. United States v. Simoy, 46 M.J. 592, 613
(A.F. Ct. Crim. App. 1996), rev’d in part on other grounds, 50 M.J. 1 (C.A.A.F. 1998).

       The appellant argues that the military judge improperly instructed the members.
He asserts that the Supreme Court’s decision in Ring required the members to find that
the aggravating circumstances substantially outweighed mitigating circumstances beyond
a reasonable doubt because the members are making a “finding of fact.” The appellant
also extends this argument to say that Ring further requires the members to first find the
aggravating circumstances exist beyond a reasonable doubt before they can even be
weighed against the mitigating circumstances. 41 We disagree with the appellant.

        We do not read Ring as broadly as does the appellant. In Ring, the Supreme Court
addressed a statutory aggravating circumstance, concluding it was a functional element
that must be proven to the jury beyond a reasonable doubt. The statutory factors in this
case are those set forth in R.C.M. 1004(c). Ring does not require the jury, or in our case
the members, to apply the reasonable doubt standard to the balancing or weighing of
aggravating and mitigating circumstances as set forth in R.C.M. 1004(b)(4)(C) or to
initially find that the aggravating circumstances admissible under R.C.M. 1001(b)(4)
exist beyond a reasonable doubt before they are weighed against the mitigating factors.
This conclusion is consistent with cases from our superior court and from this Court, and
we find nothing in the Supreme Court’s decision in Ring that requires us to extend its
holding beyond the statutory aggravating factors when conducting the
weighing/balancing test. See United States v. Loving, 41 M.J. 213, 278-79, 291
(C.A.A.F. 1994); Simoy, 46 M.J. at 613. 42 Thus, we find the standard for considering and
41
    The relevant language of R.C.M. 1004(b)(4) provides that death may not be adjudged unless, inter alia, “All
members concur that any extenuating or mitigating circumstances are substantially outweighed by any aggravating
circumstances admissible under R.C.M. 1001(b)(4), including the factors under subsection (c) of this rule.”
R.C.M. 1004(b)(4)(C).
42
    In United States v. Simoy, 46 M.J. 592 (A.F. Ct. Crim. App. 1996), rev’d in part on other grounds, 50 M.J. 1
(C.A.A.F. 1998), this Court distinguished between the greater burden of proof required for the statutory aggravating
factors under R.C.M. 1004(b)(2) and the absence of such a requirement for aggravating circumstances under R.C.M.
1001(b)(4):

        Under R.C.M. 1001(b)(4), the prosecution may always present evidence of aggravating
        circumstances directly relating to or resulting from the offenses of which the accused is convicted.




                                                        108                                     ACM 36785 (recon)
weighing aggravating and mitigating circumstances found in R.C.M. 1001(b)(4) and
1004(b)(4)(C) is valid. As such, we find the military judge properly instructed the
members consistent with R.C.M. 1004(b)(4), conclude that the holding in Ring is not
dispositive of these issues, and find no error, plain or otherwise.

       Relying on Ring, the appellant next asserts that Congress unconstitutionally
delegated to the President the power to enact the functional equivalent of elements of
capital murder, as set forth in R.C.M. 1004. He asserts that the entire capital sentencing
procedure in the military must be re-evaluated in light of Ring because the aggravating
factors must now be treated as elements of the capital murder offense, which must be set
forth by Congress, not the President. We disagree.

       We review de novo whether the President’s promulgation of R.C.M. 1004 violates
separation of power. See Mistretta v. United States, 488 U.S. 361 (1989). The
United States Supreme Court addressed the power of Congress to delegate to the
President its power to establish aggravating factors as part of the military capital
sentencing scheme. Loving v. United States, 517 U.S. 748, 756-74 (1996). Loving, an
Army private, murdered two taxicab drivers and attempted to murder a third, who
escaped. A general court-martial convicted him of premeditated murder and felony
murder under Article 118, UCMJ. During the sentencing phase of the trial, the members
found three aggravating factors and sentenced Loving to death. The Army Court of
Criminal Appeals (formerly the Army Court of Military Review) and the United States
Court of Appeals for the Armed Forces affirmed. United States v. Loving, 41 M.J. 213
(C.A.A.F. 1994). Relying on United States v. Curtis, 32 M.J. 252 (C.M.A. 1991), our
superior court rejected Loving’s arguments that the President lacked authority to



         In a capital case, the prosecution also presents evidence under R.C.M. 1004(b)(2) of any
         aggravating factor which authorizes the death penalty. While these two types of evidence
         sometimes intertwine . . . they do not conflict or amount to a “double counting” of factors.

         The aggravating factors of R.C.M. 1004(c) identify the class of murderers eligible for the death
         penalty in courts-martial. The members must unanimously find beyond a reasonable doubt that the
         accused fits within that class by finding at least one aggravating factor before it may even consider
         death. However, once the members find an accused fits within the class eligible for the death
         penalty, they may also constitutionally consider other aggravating circumstances of the case under
         R.C.M. 1001(b)(4) in determining whether the accused should be sentenced to death, including the
         circumstances surrounding any aggravating factors.

         Unlike aggravating factors, the members do not have to make findings on whether a particular
         circumstance is aggravating, extenuating or mitigating. Instead, the trial judge highlights for them
         various items of evidence which they may consider in determining within which category a
         particular circumstances falls . . . .

Simoy, 46 M.J. at 613 (citations omitted).




                                                          109                                     ACM 36785 (recon)
promulgate the aggravating factors that enabled the court-martial to sentence him to
death. Id. at 293. The Supreme Court accepted the case on certiorari and affirmed.

        On review before the Supreme Court, Loving argued that the military death
penalty scheme exceeded the limits of the delegation doctrine under separation of
powers. He posited three arguments: (1) that Congress could not delegate to the
President the authority to prescribe aggravating factors in capital murder cases; (2) that
even if Congress could delegate such authority, it did not do so by implicit or explicit
action; and (3) even if certain actions could be construed as delegations, they lacked an
intelligible principle to guide the President’s discretion. Loving, 517 U.S. at 759.

        The Supreme Court rejected Loving’s arguments. The Court held that Congress
had the flexibility to exercise or share power in certain circumstances, such as when
Congress “makes the violation of regulations a criminal offense and fixes the
punishment, and the regulations ‘confine themselves within the field covered by the
statute.’” Id. at 768 (citations and alteration omitted). The Court continued: “In the
circumstances presented here, so too may Congress delegate authority to the President to
define the aggravating factors that permit imposition of a statutory penalty, with the
regulations providing the narrowing of the death-eligible class that the Eighth
Amendment requires.” Id.

        In addition, the Court also rejected Loving’s argument that Congress did not take
implicit or explicit action when it delegated authority to the President. In fact, the Court
held that Congress exercised its power of delegation in 1950 when it enacted Articles 18,
36(a), and 56, UCMJ, 10 U.S.C. §§ 818, 836(a), 856. The Court found that these Articles
“together give clear authority to the President for the promulgation of [R.C.M.] 1004.”
Id. at 770. Finally, the Court upheld the delegation to the President in this case, noting
that the President’s duties as Commander in Chief require him to take responsible and
continuing action over the military, to include courts-martial. As such, the duties
delegated to the President to prescribe aggravating factors for capital cases is interlinked
with duties already assigned to him by the express terms of the Constitution. 43 Id. at 772-
73.

43
   The Court elaborated by acknowledging that the President can be entrusted to determine what punishments are
best suited for the specialized military community, and concluded:

        It would be contradictory to say that Congress cannot further empower [the President] to limit by
        prospective regulation the circumstances in which courts[-]martial can impose a death sentence.
        Specific authority to make rules for the limitation of capital punishment contributes more toward
        principled and uniform military sentencing regimes than does case-by-case intervention, and it
        provides greater opportunity for congressional oversight and revision.

Loving v. United States, 517 U.S. 748, 773 (1996).




                                                       110                                   ACM 36785 (recon)
        We do not read the Supreme Court’s opinion in Ring as either inconsistent with or
overruling its decision in Loving or as requiring a scrub of the military capital sentencing
scheme. Rather, we agree with the Government that the holding in Ring is limited to the
Sixth Amendment right to a trial by jury. In Ring, the Court did not hold that the
aggravating factors are elements of the capital offense itself but are functional elements
requiring a jury to find they exist beyond a reasonable doubt. The holding focused on
whether the judge, rather than the jury, could find the aggravating factors to impose the
death penalty. The Court said “no,” explaining that because the enumerated “aggravating
factors operate as the ‘functional equivalent of an element of a greater offense,’ the Sixth
Amendment requires that they be found by a jury.” Ring, 536 U.S. at 609. In the
military, R.C.M. 1004 already requires that a panel of members find the existence of
aggravating factors beyond a reasonable doubt before a service member may be eligible
for the death penalty.

        In sum, Congress created the crimes and prescribed the statutory maximum
punishment, to include the death sentence, when it enacted the UCMJ. The President
narrowed the class of people who would be eligible for the statutory maximum
punishment of death. He did so by designating aggravating sentencing factors that must
be proved before the maximum punishment may apply. R.C.M. 1004(c). These factors
are treated as functional elements because notice must be provided to the accused prior to
arraignment, and the factors must be submitted to the panel and proved beyond a
reasonable doubt before an accused is eligible for the death penalty. R.C.M. 1004(c). By
promulgating R.C.M. 1004, the President was not enacting legislation; rather, he was
fulfilling his constitutional duties as Commander in Chief and following his mandate
from Congress to prescribe maximum punishments. Thus, we find no error.

       The appellant’s final argument centers on deficiencies in the form of execution.
The appellant cites R.C.M. 1113(d)(1)(A) 44 as stating that a “sentence to death which has
been finally ordered executed shall be carried out in the manner prescribed by the
Secretary concerned.” The appellant argues that his sentence to death is unlawful
because no statute or regulation prescribes a method of execution. He asserts that the
“Secretary concerned” is the Secretary of the Air Force, who has not designated a method
of execution pursuant to R.C.M. 1113(d). According to the appellant, he faces the
possibility of being subjected to an unconstitutional form of execution under the Eighth
Amendment, which prohibits the infliction of “cruel and unusual punishment,” without
being able to challenge that form of execution on direct review. Likewise, he argues that
he cannot invoke the protections of Article 55, UCMJ, 45 because the Secretary of the Air

44
    This rule is now R.C.M. 1113(e)(1)(A). See Exec. Order No. 13,468, 73 Fed. Reg. 43, 831 (July 28, 2008) (re-
designating subparagraph (d) as subparagraph (e)).
45
    Article 55, UCMJ, 10 U.S.C. § 855, prohibits inflicting “cruel or unusual” punishment upon any person “subject
to this chapter.”




                                                       111                                    ACM 36785 (recon)
Force has not designated a method of execution. As a result, the appellant claims that he
cannot challenge the method of execution and argues that his sentence to death should be
set aside and replaced with confinement for life without parole. We disagree.

       Whether the manner in which a sentence is executed constitutes cruel and unusual
punishment under the Eighth Amendment or cruel or unusual punishment under
Article 55, UCMJ, is a question of law that this Court reviews de novo. See United States
v. Wise, 64 M.J. 468, 473 (C.A.A.F. 2007).

       The United States Supreme Court has held that the lethal injection protocol used
by the federal government and several states does not constitute cruel and unusual
punishment. Baze v. Rees, 553 U.S. 35 (2008). In Baze, the Court stated that to
constitute cruel and unusual punishment, the execution method must present a
“substantial” and “objectively intolerable” risk of serious harm. Id. at 50. “[T]he
Constitution does not demand the avoidance of all risk of pain in carrying out
executions.” Id. at 47. “Simply because an execution method may result in pain, either
by accident or as an inescapable consequence of death does not establish the sort of
‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.” Id. at 50.

       The Secretary of Defense has appointed the Secretary of the Army as the
Executive Agent for Department of Defense Level III corrections and has directed the
Secretary of the Army to provide a facility to carry out all executions of military
prisoners with approved sentences to death. Department of Defense Directive (DoDD)
1325.04, Confinement of Military Prisoners and Administration of Military Correctional
Programs and Facilities, ¶ 5.2.5 (17 August 2001) (Certified Current as of 23 April
2007). The Directive also states that the Secretaries of the Military Departments shall
“[e]stablish policies and procedures for conducting executions of members of their
respective Services having approved sentences to death, and provide oversight
responsibility, management, and resources for executions.” DoDD 1325.04, ¶ 5.3.7.
Although the Secretary of the Air Force is required to establish a procedure for carrying
out the death penalty, we find nothing that requires the Secretary to designate the method
of execution at the time of sentencing. Thus, we find the appellant’s argument to be
without merit.

                           IX. Summary Assignments of Error

       We have considered the appellant’s 57 summary assignments of error. Each
makes broad-based attacks on: (1) the role of the convening authority; (2) the
court-martial system and procedures; or (3) miscellaneous alleged constitutional
violations without further briefing on any of these issues. The majority of the issues
presented were previously rejected in Weiss v. United States, 510 U.S. 163 (1994),
Solorio v. United States, 483 U.S. 435 (1987), Gray, 51 M.J. 1, Curtis, 44 M.J. 106, and




                                            112                           ACM 36785 (recon)
Loving, 41 M.J. 213. After consideration of each of the issues, we find them to be
without merit. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987) (holding
there is no requirement to specifically address each assigned error so long as each error is
considered).

                                X. Proportionality Review

       Although a proportionality review is not constitutionally required, our superior
court has held that “this review is required by Article 66(c) in capital cases as part of the
‘sentence appropriateness’ determination” by the service courts of criminal appeals.
United States v. Gray, 51 M.J. 1, 61-63 (citing United States v. Curtis, 33 M.J. 101, 109
(C.M.A. 1991)).

        We have examined a number of cases and have concluded that the sentence is
generally proportional to those imposed by other jurisdictions in similar situations. Our
examination has included state and federal cases in which the death penalty was imposed
that were subsequently reviewed by the Supreme Court, federal appellate courts, or state
appellate courts. See, e.g., Baze v. Rees, 553 U.S. 35, 46 (2008) (citing Baze v.
Commonwealth, 965 S.W. 2d 817, 819-20, 26 (Ky. 1997); Bowling v. Commonwealth,
873 S.W. 2d 175, 176-77, 82 (Ky. 1993)) (defendant Baze shot and killed two police
officers when they attempted to serve felony warrants on him; defendant Bowling shot
and killed two adults after striking their vehicle); Uttecht v. Brown, 551 U.S. 1, 4-5
(2007) (citing State v. Brown, 940 P.2d 546, 556-59 (Wash. 1997)) (defendant killed
victim, whom he had raped and tortured, by stabbing her several times in the chest and
abdominal areas “because he did not want to leave any witnesses alive”); Kansas v.
Marsh, 548 U.S. 163, 166 (2006) (defendant broke into home of victim, lay in wait for
her to return, then shot and stabbed her before setting her home on fire, resulting in the
death of victim and her 19-month-old daughter); Jones v. United States, 527 U.S. 373,
376 (1999) (defendant kidnapped victim at gunpoint, sexually assaulted her, then struck
her in the head with a tire iron until she died); United States v. Fields, 516 F.3d 923, 927
(10th Cir. 2008) (defendant lay in wait near campsite wearing camouflage “ghillie suit”
suit before shooting husband and wife, killing both; wife was killed while attempting to
flee); State v. Dann, 207 P.3d 604, 610-11 (Ariz. 2009) (defendant forced his way into
apartment at night and shot his girlfriend, her brother, and a friend who was visiting,
killing all three; defendant recounted he shot his girlfriend and her brother “because they
laughed at him” and shot the friend “because he witnessed the shootings”).

                                      XI. Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and




                                             113                            ACM 36785 (recon)
sentence are

                                                AFFIRMED.

HELGET, Chief Judge, and HARNEY, Senior Judge, concur.

ROAN, Chief Judge, HECKER, Senior Judge, and WEBER, Judge, did not participate
due to their recusals from the case. ALLRED, Chief Judge, who joined the Court after
oral argument was heard en banc, did not participate in this decision. ORR, Senior
Judge, retired prior to the decision of the Court and did not participate.

MITCHELL, Judge, concurring dubitante:

       I join the decision of Senior Judge Marksteiner in its entirety. For the reasons set
forth in that opinion, I am convinced beyond a reasonable doubt that the team of trial
defense counsel provided the appellant with representation well above the required
minimum standards and where their performance may have been below standards that the
effect was not prejudicial. I write this separate opinion, concurring dubitante, 46 however,
because I share Judge Peloquin’s concern, infra, that, in a court-martial referred as
capital, servicemembers do not have the same institutional protections as those afforded
criminal defendants facing the death penalty in a majority of our Nation’s jurisdictions.

        The role of an appellate military judge is cabined by Congress and the Court of
Appeals for the Armed Forces. See Article 66, UCMJ, 10 U.S.C. § 866; United States v.
Nerad, 69 M.J. 138 (C.A.A.F. 2010); United States v. Allbery, 44 M.J. 226, 227–31
(C.A.A.F. 1996) (a service court of criminal appeals does not have discretion to depart
from its superior court’s precedent). This is not an advisory opinion, as we have
jurisdiction over the court-martial and are presented with a dispute between the parties as
to the quality of the representation by those counsel. See United States v. Chisholm,
59 M.J. 151, 152–53 (C.A.A.F. 2003).

       Trial defense counsel in this court-martial met all requirements imposed by statute.
See Article 27, UCMJ, 10 U.S.C. § 827; Rules for Courts-Martial 501, 502, 503, and 506.
Trial defense counsel met the requirements imposed by regulation and were certified as
competent by TJAG. Air Force Instruction 51-201, Administration of Military Justice, ¶
5.2.2 (26 November 2003). Trial defense counsel also met all requirements of counsel as
addressed in prior precedent established by our superior court. See United States v. Gray,
51 M.J. 1, 54 (C.A.A.F. 1999); United States v. Murphy, 50 M.J. 4, 10 (C.A.A.F. 1998);
United States v. Loving, 41 M.J. 213, 300 (C.A.A.F. 1994).
46
   Jason J. Czarnezki, The Dubitante Opinion, 39 Akron L. Rev. 1 (2006), available at
http://digitalcommons.pace.edu/lawfaculty/905/ .




                                                        114                             ACM 36785 (recon)
        Our superior court has set forth that we are to “remain vigilant as to the quality of
representation provided servicemembers in capital cases in the military justice system”
on a case-by-case basis. Gray, 51 M.J. at 54. The clear case precedent does not allow for
this court to establish minimum standards for attorney qualifications in death-penalty
cases. Id. However, “[w]here a judicial decision is based on public policy and that
policy has changed, the doctrine of stare decisis does not prohibit this court from
revisiting that decision.” United States v. Falcon, 65 M.J. 386, 390 (C.A.A.F. 2008).

       In evaluating when the imposition of an adjudged death penalty amounts to cruel
and unusual punishment, the Supreme Court has emphasized, “By protecting even those
convicted of heinous crimes, the Eight Amendment 47 reaffirms the duty of the
government to respect the dignity of all persons.” Roper v. Simmons, 543 U.S. 551, 560
(2005). Eighth Amendment analysis in a death penalty case requires evaluating
“evolving standards of decency” as determined by “objective indicia of society’s
standards, as expressed in legislative enactments and state practice with respect to
executions.” Kennedy v. Louisiana, 554 U.S. 407, 420–21 (2008) (quoting Roper, 543
U.S. at 563). “The Eighth Amendment’s protection of dignity reflects the Nation we
have been, the Nation we are, and the Nation we aspire to be. This is to affirm that the
Nation’s constant, unyielding purpose must be to transmit the Constitution so that its
precepts and guarantees retain their meaning and force.” Hall v. Florida, 572 U.S. ___,
___ (2014) (slip op at 5–6).

      I do not see why the implementation of the Fifth Amendment 48 right to due
process and the Sixth Amendment 49 right “to have the Assistance of Counsel for his
defence” should not also be influenced by recognition that protecting the rights of those
accused of heinous crimes reaffirms our collective respect of the dignity of all persons.

       As Judge Peloquin sets forth in his opinion, many of the state jurisdictions which
have the death penalty as an authorized punishment include some requirement for
minimum qualifications for defense counsel. The same is true within other federal death
penalty statutory schemes. “Any alien unprivileged enemy belligerent” who is subject to
trial by military commission when any of the charges is capital is entitled to
representation “by at least one additional counsel who is learned in applicable law
relating to capital cases and who, if necessary, may be a civilian” compensated by the
Secretary of Defense. 10 U.S.C. §§ 948c, 949a(b)(2). A learned counsel is defined as
“[a] military or civilian counsel, experienced in capital litigation, appointed under the
provisions of 10 U.S.C. § 949a(2)(C)(ii).” Military Commissions Trial Judiciary Rules of

47
     U.S. CONST. amend. VIII.
48
     U.S. CONST. amend. V.
49
     U.S. CONST. amend. VI.




                                             115                            ACM 36785 (recon)
Court, RC 4.2.c. (5 May 2014). To emphasize the importance of learned counsel, the
Manual for Military Commissions prohibits the referral of a capital charge unless learned
counsel has been appointed. Rules for Military Commissions 601(d)(2).

       The current state of the law is that alien belligerents who are prosecuted under the
Military Commissions Act of 2009, 10 U.S.C. §§ 948a, et seq., are entitled to an attorney
experienced in capital litigation; yet the brave men and women of our own armed
services who fought, captured, or guard those belligerents are not.

       By statute, a defendant in the federal court system who is indicted for treason or
another capital crime must promptly be assigned, upon the defendant’s request, two
counsel “of whom at least 1 shall be learned in the law applicable to capital cases.”
18 U.S.C. § 3005. This was not always the case. The prior version of 18 U.S.C. § 3005
required capital defendants be represented only by “counsel learned in the law”:

      The plain meaning of the phrase “learned in the law” refers to a person who
      has received a regular legal education, generally signified by admission to
      the bar. The plain meaning of the phrase does not imply any specialized
      death penalty experience. If Congress intended that counsel be learned in
      the law applicable to capital cases, it could have so stated, which it did
      when it amended [18 U.S.C. § 3005] in 1994. . . . [T]he 1994 amendment
      did not merely “clarify” the law but rather substantively changed it,
      creating a new requirement which previously had not existed.

United States v. McCullah, 76 F.3d 1087, 1098 (10th Cir. 1996) (citations omitted).

       In 1994, Congress decided that criminal defendants who were indicted for a
capital offense were entitled to counsel who was more than simply “learned in the law”;
Congress specifically enacted legislation to ensure that an accused who faced a possible
execution by the State be provided with counsel who had specialized death penalty
experience. As of this date, Congress has not provided similar statutory protections to
servicemembers who have court-martial charges referred as capital—a disparity that
causes me concern.

        Congress has twice determined that an individual who faces a possible death
penalty must be represented by counsel experienced in the unique challenges of capital
defense. Yet, this same institutional protection is not provided to servicemembers. This
reflects where we have been as a Nation, and where we currently are; I am convinced that
it does not accurately reflect where we as a Nation aspire to be.




                                            116                            ACM 36785 (recon)
SARAGOSA, Judge, with whom PELOQUIN, Judge, joins, concurring in part and
dissenting in part:

        I concur with the majority of the Court in all respects regarding findings, post-trial
processing, instructions, and the variety of additional systemic issues. I write separately
in dissent from the majority’s opinion finding that the appellant failed to demonstrate
ineffective assistance of counsel during the sentencing phase of his court-martial.
Consistent with my original opinion on this case, United States v. Witt, 72 M.J. 727
(A.F. Ct. Crim. App. 2013), I find trial defense counsel were constitutionally deficient in
their representation of the appellant for their collective failure to follow up, investigate,
discover, and thereby present extenuation and mitigation evidence. Specifically, counsel
prejudicially failed to investigate the appellant’s closed-head injury resulting from a
motorcycle accident, potential remorse evidence via Deputy Sheriff LF, and the
appellant’s mother’s mental health records and diagnosis, thereby failing to utilize this
evidence in preparing for the sentencing case and failing to present any of this mitigation
evidence to the sentencer for consideration. The majority rejects the appellant’s claim of
ineffective assistance of counsel on the basis that he has not established prejudice under
the second prong of a Strickland v. Washington, 466 U.S. 668 (1984), analysis. I
disagree.

       When examining whether the appellant was indeed prejudiced by his counsel’s
errors, it is important to review the history of jurisprudence relating to death penalty
cases and the importance and purpose of the extenuation and mitigation case, as it differs
dramatically from the typical court-martial proceeding. At common law, the death
penalty was mandatory for a wide variety of cases. To alleviate the mandatory
imposition of death, various state statutes were passed imparting unfettered discretion to
the sentencing body. See, e.g., McGautha v. California, 402 U.S. 183, 197-207 (1971)
reh’g granted, judgment vacated sub nom. Crampton v. Ohio, 408 U.S. 941 (1972); see
also Callins v. Collins, 510 U.S. 1141, 1146-47 (1994) (Blackmun, J., dissenting). Over
the years, so much discretion was instilled into the sentencing body that it unleashed a
rash of inconsistent applications of the death penalty. See Furman v. Georgia,
408 U.S. 238 (1972).

       In 1972, the Supreme Court declared that glaring inequities in the administration
of death, standardless discretion wielded by judges and juries, and pervasive racial and
economic discrimination rendered the death penalty, at least as administered, “cruel and
unusual” within the meaning of the Eighth Amendment. 50 Furman, 408 U.S. at 239. In
the wake of this seminal decision, the Court evaluated a variety of statutory schemes
designed to satisfy the need for consistency and rationality. In upholding Georgia’s
statute in Gregg v. Georgia, 428 U.S. 153, 189 (1976), the Supreme Court reiterated,
50
     U.S. CONST. amend. VIII.




                                             117                             ACM 36785 (recon)
“Furman mandates that where discretion is afforded a sentencing body on a matter so
grave as the determination of whether a human life should be taken or spared, that
discretion must be suitably directed and limited so as to minimize the risk of wholly
arbitrary and capricious action.” The Court has since consistently held that the death
penalty must be imposed “fairly, and with reasonable consistency, or not at all.” Eddings
v. Oklahoma, 455 U.S. 104, 112 (1982). The Court has also rejected the extreme
consistency provided by mandatory death penalty statutes for limited offenses. Woodson
v. North Carolina, 428 U.S. 280 (1976).

        In the years following Furman, the Supreme Court also began to emphasize how a
death penalty case really is different. In Woodson, the Court noted, “Death, in its finality,
differs more from life imprisonment than a 100-year prison term differs from one of only
a year or two.” Woodson, 428 U.S. at 305 (opinion of Stewart, Powell, and Stevens, JJ.).
Recognizing the qualitative difference of the death penalty, the Court found “there is a
corresponding difference in the need for reliability in the determination that death is the
appropriate punishment in a specific case.” Id. The Woodson Court went on to elucidate:

       A process that accords no significance to relevant facets of the character
       and record of the individual offender or the circumstances of the particular
       offense excludes from consideration in fixing the ultimate punishment of
       death the possibility of compassionate or mitigating factors stemming from
       the diverse frailties of humankind. It treats all persons convicted of a
       designated offense not as uniquely individual human beings, but as
       members of a faceless, undifferentiated mass to be subjected to the blind
       infliction of the penalty of death.

Id. at 304.

       In response to Furman and Gregg, Rule for Courts-Martial (R.C.M.) 1004 was
created to give limitation, structure, and consistency to capital litigation in the military.
See Analysis of Rules for Courts-Martial, Manual for Courts-Martial, United States,
A21-76 (2012 ed.). The Rule combines procedures of “weighing” aggravators and
mitigators adopted by some jurisdictions with procedures used by jurisdictions that do not
require a balancing component. This combined procedure was explained and approved in
Loving v. Hart, 47 M.J. 438, 442 (C.A.A.F. 1998):

       The military capital sentencing procedure set out in RCM 1004 and 1006
       establishes four “gates” to narrow the class of death-eligible offenders. The
       first two gates parallel nonweighing jurisdictions in that the members must
       convict by unanimous vote (RCM 1004(a)(2)) and then find at least one
       aggravating factor by unanimous vote (RCM 1004(b)(4)(A)). Only after
       these two gates are passed does the weighing process begin. The third gate




                                             118                            ACM 36785 (recon)
       is a “weighing” gate, where the members must all “concur” that extenuating
       and “mitigating circumstances are substantially outweighed by any
       aggravating circumstances,” including the aggravating factors under
       RCM 1004(c). See RCM 1004(b)(4)(C). Only after these three gates are
       passed does an accused become “death eligible.”

       I emphasize that, at the third gate in the court-martial sentencing proceeding, the
members are weighing the totality of the sentencing evidence put before them:
mitigation, extenuation, aggravating factors, and aggravating circumstances. And even
when the members unanimously find that the collective aggravation evidence
substantially outweighs the extenuating and mitigating circumstances, a death sentence is
not a certainty:

       The fourth and final gate is the sentencing decision itself under
       RCM 1006. Even if all members concur that extenuating and mitigating
       circumstances are substantially outweighed by aggravating circumstances,
       they must separately consider whether to impose the death sentence. A
       death sentence requires the unanimous vote of all members.
       RCM 1006(d)(4)(A).

Loving, 47 M.J. at 442 (emphasis added).

       The majority opinion appears to focus only on the balancing of evidence required
at Gate Three, while ignoring the members’ unfettered authority at Gate Four to exercise
compassion, mercy, and complete discretion before rendering a decision on the ultimate
punishment of death—regardless of the balance struck at Gate Three. Whether the
majority is inadvertently disregarding Gate Four or collapsing it with Gate Three, the end
result is the application of a standard I believe inconsistent with the clear intent of
R.C.M. 1006(d)(4)(A) and Strickland as further addressed in detail below.

       In this case, the issue is the members’ deliberation at this “fourth and final gate.”
Once the members moved beyond the balancing required in Gate Three, they were then
required to consider whether death was an appropriate sentence for the individual, now
convicted, before them. In fact, the members were specifically instructed, “If you
unanimously find one or more aggravating factors and even if you unanimously
determine that the extenuating and mitigating circumstances are substantially outweighed
by the aggravating circumstances, you still have the absolute discretion to decline to
impose the death sentence.” This absolute discretion is what makes it critical for the
members to be presented with and consider all of the mitigating evidence relating to the
appellant. To deny the members the opportunity to accord significance to relevant facets
of the character and the record of the accused, or to the circumstances of the particular
offense, is to exclude “from their consideration in fixing the ultimate punishment of death




                                            119                            ACM 36785 (recon)
the possibility of compassionate or mitigating factors stemming from the diverse frailties
of humankind.” See Woodson, 428 U.S. at 304.

        “[T]he imposition of death by public authority . . . is so profoundly different from
all other penalties . . . .” Lockett v. Ohio, 438 U.S. 586, 605 (1978). The Supreme Court
“has gone to extraordinary measures to ensure that the prisoner sentenced to be executed
is afforded process that will guarantee, as much as humanly possible, that the sentence
was not imposed out of whim, passion, prejudice, or mistake.” Eddings v. Oklahoma,
455 U.S. 104, 118 (1982) (O’Connor, J., concurring). Consideration of the unique
aspects of an individual, with full discretion for the members to allow for a measure of
compassion and mercy, is what Gate Four is all about. In fact, the sentencer “may
determine the weight to be given relevant mitigating evidence”—in this case, evidence
omitted due to counsel’s errors—“[b]ut they may not give it no weight by excluding such
evidence from their consideration,” Eddings, 455 U.S at 114-15, and neither should this
Court.

       Our law insists that “the sentencer know and consider the defendant as a human
being before deciding whether to impose the ultimate sanction.” Boyde v. California,
494 U.S. 370, 387 (Marshall, J., dissenting). This “operates as a shield against arbitrary
execution and enforces our abiding judgment that an offender’s circumstances, apart from
his crime, are relevant to his appropriate punishment.” Id. “[T]he risk that the death
penalty will be imposed in spite of factors which may call for a less severe penalty . . . is
unacceptable and incompatible with the commands of the Eighth and Fourteenth
Amendments.” Lockett, 438 U.S. at 605. To deny the members the opportunity to
consider this appellant’s circumstances, apart from his crime, where those circumstances
were relevant to his appropriate punishment, absolutely undermines any confidence I can
place in their decision so grave as to determine whether a human life should be taken or
spared. There can be no greater prejudice to the appellant.

       As the asserted issue in this case is one of ineffective assistance of counsel, I now
turn to the requirements set forth in Strickland. First, an accused’s representation is
constitutionally deficient if it falls “below an objective standard of reasonableness” or
“outside the wide range of professionally competent assistance.” 466 U.S. at 688, 690.
Second, in order to prevail an appellant must establish that counsel’s “deficient
performance prejudiced the defense.” Id. at 687.

       Because “[t]here is no reason for a court deciding an ineffective assistance claim
to approach the inquiry in the same order [the Court in Strickland did] or even to address
both components of the inquiry if the defendant makes an insufficient showing on one,”
United States v. McConnell, 55 M.J. 479, 481 (C.A.A.F. 2001) (second alteration in
original) (quoting Strickland, 466 U.S. at 697), the majority chose to first address the
prejudice prong of Strickland. Without a finding of prejudice, it was not necessary to




                                             120                            ACM 36785 (recon)
address whether counsel were deficient in their representation. As such, it is necessary in
this dissent to articulate why both prongs of the Strickland test are satisfied.

       The appellant’s assignments of error allege numerous allegations of ineffective
assistance of counsel during the sentencing phase of the court-martial. I find three of the
issues appellant raises meritorious: (1) his trial defense counsel failed to investigate
evidence deriving from the appellant’s hospitalization and closed-head injury after a
motorcycle accident four months prior to the commission of the murders; (2) his trial
defense counsel failed to investigate and obtain mental health records pertaining to the
hospitalization of the appellant’s mother at an inpatient mental health facility; and (3) his
trial defense counsel failed to investigate and develop evidence of remorse through
Deputy Sheriff LF.

       When the issue is the adequacy of counsel’s investigation for the sentencing phase
of a capital trial, “hindsight is discounted by pegging adequacy to ‘counsel’s perspective
at the time’ investigative decisions are made.” Rompilla v. Beard, 545 U.S. 374, 381
(2005) (citing Strickland, 466 U.S. at 689). To assess the thoroughness of counsel’s
investigative efforts, this Court must review performance for “reasonableness under
prevailing professional norms.” Wiggins v. Smith, 539 U.S. 510, 523 (2003) (citing
Strickland, 466 U.S. at 688).

        The Supreme Court has historically noted that the ABA Standards for Criminal
Justice, including the Guidelines for Appointment and Performance of Counsel in Death
Penalty Cases, are good guidelines for assessing “prevailing professional norms” and
determining what is reasonable. See Strickland, 466 U.S at 688-89; Williams v. Taylor,
529 U.S. 362, 396 (2000); Wiggins, 539 U.S. at 524; Rompilla, 545 U.S. at 387. Yet,
while these standards are instructive, they are not mandated for military defense counsel.
United States v. Murphy, 50 M.J. 4, 9, (C.A.A.F. 1998) (citing United States v. Loving,
41 M.J. 213, 300 (C.A.A.F. 1994)), quoted in Loving v. United States, 68 M.J. 1, 19-20
(C.A.A.F. 2009) (Stucky, J., concurring in part and in the result). With respect to
investigative efforts, Guideline 10.7 of the ABA Guidelines sets forth that “[c]ounsel at
every stage have an obligation to conduct thorough and independent investigations
relating to the issues of both guilt and penalty.” American Bar Association Guidelines
for the Appointment and Performance of Counsel in Death Penalty Cases (rev. ed. 2003),
reprinted in 31 Hofstra L. Rev. 913, 1015 (2003). The Commentary to Guideline 10.7
states counsel needs to explore medical history, including hospitalization, mental illness,
family history of mental illness, physical injury, and neurological damage. Id. at 1022.
Guideline 10.11 also sets forth an ongoing duty of counsel to “seek information that
supports mitigation or rebuts the prosecution’s case in aggravation.” Id. at 1055. In
Wiggins, the Supreme Court focused on trial defense counsel’s investigation and stressed
that counsel, in most cases, must pursue all reasonable leads.




                                             121                            ACM 36785 (recon)
       As the majority opinion sets forth, trial defense counsel secured the services of a
professional mitigation specialist and a forensic psychologist to assist with the trial
preparation. The question presented is whether, despite the assistance of a mitigation
specialist and forensic psychologist, trial defense counsel’s investigation into mitigating
evidence fell short of performance expected by reasonably competent counsel. I find the
three areas noted above to be constitutionally deficient as described further herein.

                                  Motorcycle Accident Injury

       The appellant asserts trial defense counsel were ineffective when they failed to
investigate and develop potential mitigation evidence stemming from a motorcycle
accident. The motorcycle accident occurred approximately four and a half months prior
to the commission of the murders and attempted murder for which the appellant was
found guilty. Specifically, the appellant argues counsel were remiss in failing to further
investigate whether the appellant’s closed head injury may have resulted in a traumatic
brain injury and thus failing to present such evidence to the members at sentencing.
There is no question that the record is silent with respect to any evidence of this
motorcycle accident.

        “[R]easonably diligent counsel may draw a line when they have good reason to
think further investigation would be a waste.” Rompilla, 545 U.S. at 383 (citing Wiggins,
539 U.S. at 525). However, competent counsel must undertake a certain threshold of
investigation by being reasonably diligent prior to making the strategic decision to “draw
[the] line.” Id.

       Further, as the Supreme Court has pointed out:

       [S]trategic choices made after thorough investigation of law and facts
       relevant to plausible options are virtually unchallengeable; and strategic
       choices made after less than complete investigation are reasonable precisely
       to the extent that reasonable professional judgments support the limitations
       on investigation. In other words, counsel has a duty to make reasonable
       investigations or to make a reasonable decision that makes particular
       investigations unnecessary. 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 690-91.

      With respect to this issue, the focus is not whether trial defense counsel acted
reasonably in not presenting evidence of the motorcycle accident and closed head injury




                                              122                          ACM 36785 (recon)
to the court-martial panel. Rather, the focus of this issue is whether the decision of trial
defense counsel to limit the scope of their investigation into potential mitigating evidence
stemming from that motorcycle accident was itself reasonable. To analyze the decisions
of counsel in this case, an extensive timeline of events is necessary.

       In August 2004, the mitigation specialist sent a memorandum to the appellant’s
military trial defense counsel strongly recommending a full battery of psychological
testing. She further conveyed her opinion that they had a responsibility to pursue any
possible brain damage due to the closed head injury from the motorcycle accident and
reported changes in behavior since that time. She conveyed to trial defense counsel that
this was an important area of inquiry. She described her experience with closed head
injuries and how often times such an injury can explain aberrant behavior. She made
clear her recommendations for further investigation, neuropsychological testing, and
brain scanning.

        In October 2004, the defense forensic psychologist consultant, Dr. BM, conducted
a series of psychological and neuropsychological tests on the appellant, but he had not yet
reached any diagnosis. At this time, he had only met with the appellant twice: once on
4 October 2004, when he interviewed the appellant for approximately 5-6 hours, and
once on 5 October 2004, when he spent an additional 7-8 hours conducting tests with the
appellant and generated two pages of notes. It is unclear when the tests were actually
scored, but the next two meetings with the appellant were not until June 2005.

       Between October 2004 and June 2005, the mitigation specialist continued to insist
on further neuropsychological testing and brain imaging to determine whether there was
any evidence of a traumatic brain injury. She specifically recommended consultation
with Dr. FW who specialized in this area.

        In November 2004, approximately eleven months prior to the sentencing phase of
the appellant’s court-martial, Major JW, appellate defense counsel, sent the appellant’s
civilian trial defense counsel an e-mail referencing a prior conversation about an article
on brain scans; he included the website link for the article and offered to fax the article.
The article was entitled, “Mr. Chiesa’s Brain: Can High-Tech Scans Prove That Criminal
Acts are the Result of a Damaged Brain?”.

       The appellant had three trial defense counsel working on his case, all of whom
were aware of the appellant’s motorcycle accident four and a half months prior to the
murders. Counsel were in possession of the appellant’s medical records pertaining to
treatment following the accident and a pretrial sanity board report that briefly discussed
the closed-head injury. Both sources reflected the appellant’s loss of consciousness at the
time of the injury. The mitigation specialist obtained the damaged motorcycle helmet
and gave it to trial defense counsel as a possible exhibit for trial. She further revealed to




                                             123                            ACM 36785 (recon)
them the appellant’s roommate’s observations of a change in the appellant’s behavior
following the motorcycle accident. The majority now takes exception to the accuracy of
that assertion, but the relevance of this is not necessarily its accuracy, but the need to
investigate further to determine its accuracy. Part of her rationale for insisting defense
counsel speak to Dr. FW and conduct additional testing was the fact that a change in
personality may be indicative of a traumatic brain injury and if he suffered a traumatic
brain injury that would assist in potentially explaining these horrific events perpetrated by
the appellant. Given all of the evidence known at that point, even if the roommate’s
observations were not accurate, there can certainly be no argument that the murder of two
people, and nearly a third, was itself a marked departure from the usual character,
personality, and behavior of the appellant.

        At some point, the defense team asked Dr. BM about the mitigation specialist’s
suggestion that additional testing and inquiry into the possibility of traumatic brain injury
be conducted. He ultimately advised trial defense counsel that he saw no value to be
gained by conducting further neuropsychological testing. He opined that additional
testing would not provide any more information than they already had and that the
accident and concomitant injuries were not the source of the appellant’s behavior or an
explanation for his actions. Counsel indicated that they “knew the [G]overnment would
likely fund whatever relevant expert or testing [they] requested.”

         Despite the mitigation specialist’s insistence on consultation with a
neuropsychologist and completion of additional brain scanning, trial defense counsel did
not consult with the recommended neuropsychologist, did not request additional brain
imaging, and did not interview further witnesses with respect to the motorcycle accident.
Instead, trial defense counsel assert that they did not continue investigation into this area
because they relied upon the advice of a forensic psychologist consultant, who, in
contradiction to the mitigation specialist, opined there was “no value to be gained by
conducting further neuropsychological testing,” and “additional testing would not provide
. . . any more information than [they] already had.” They further characterize their
decision not to present the known evidence of this motorcycle accident, closed-head
injury, and subsequent behavioral changes as a “tactical decision.” Trial defense counsel
reasoned that they “would lose credibility if [they] tried to make something of [the
motorcycle accident] that the experts could not justify.”

       Ultimately, the responsibility to investigate potential leads into mitigating
evidence lies squarely on counsel. While counsel may and should, to a degree, rely on
the expertise of their expert consultants, they may not delegate their decisions. “Only
once either the expert or counsel has consulted all readily available sources can counsel’s
reliance on the expert’s opinion be reasonable.” Wilson v. Sirmons, 536 F.3d 1064,
1089-90 (10th Cir. 2008). Counsel must also consider all known facts and circumstances
and must pursue all reasonable leads.




                                             124                            ACM 36785 (recon)
       Trial defense counsel’s sole reliance on Dr. BM’s opinion was unreasonable for
several reasons. First, counsel were faced with diverging opinions on the issue from two
experienced experts. One, CP, had prior experience in dealing with traumatic brain
injury at the sentencing phase and the presentation and impact of mitigation evidence
such as this closed-head injury. The other trained in the field of psychology. I believe
reasonable counsel would endeavor to resolve this dispute by simply picking up the
phone and contacting Dr. FW with some basic level of inquiry. Second, while Dr. BM
was a forensic psychologist who may have been qualified to perform some
neuropsychological tests, he did not possess the same qualifications as Dr. FW as a
neuropsychologist, and therefore it was not reasonable to rely on his opinion in an area
outside of his area of expertise. Third, assuming arguendo it was reasonable to rely on
Dr. BM’s advice preliminarily, such reliance is reasonable precisely until the moment it
proves otherwise.

       In this case, once it became obvious that there were significant problems with
Dr. BM’s evaluation, scoring, and diagnosis of the appellant, such that his testimony
became riddled with credibility issues and was no longer useful at trial, any reliance on
his prior opinions became unreasonable and warranted immediate reevaluation. Once
Dr. BM acknowledged his own inconsistencies and Dr. CR challenged the accuracy of
Dr. BM’s analysis, trial defense counsel had a duty to reassess the case, their strategy,
and their anticipated presentation of evidence for the sentencing case. The situation was
exacerbated with the decision not to use Dr. BM at all in sentencing. Dr. BM’s issues
came to light during the Daubert hearing on 26 September 2005. The presentencing
phase of the court-martial did not begin until 6 October 2005. Counsel never requested a
continuance or delay, never attempted to secure a new forensic psychologist consultant,
and there is no evidence they conducted any subsequent investigation into this known
alternative explanation for the appellant’s behavior.

       As for counsel’s fear of losing credibility by making something of the motorcycle
accident that the experts could not justify, I have difficulty reconciling that with the
decision not to investigate. It is unclear to me how counsel can make a deliberate
decision not to investigate possible brain trauma from the motorcycle accident, then cite
the very same lack of evidence of brain trauma to justify failing to present evidence of the
undisputed motorcycle accident itself.

       I find trial defense counsel’s performance unreasonable, as it falls below that of
reasonably competent counsel. An analysis of counsel’s perspective at the time reveals a
quantum of evidence already known that would lead a reasonable attorney faced with the
task of saving a client from the death penalty to investigate further. See Wiggins,
539 U.S. at 527. Trial defense counsel chose to forego investigation into the possibility
of traumatic brain injury, despite conflicting expert opinions, a lack of any diagnosis yet




                                             125                            ACM 36785 (recon)
that would provide explanation for the appellant’s aberrant behavior, independent
information from appellate defense counsel highlighting the possibility of a correlation
between a closed head injury and criminal acts, and noted behavioral changes in appellant
following the accident, not the least of which were the murderous acts themselves.

        Given the evidence outlined above, I find a reasonable attorney handling a death
penalty case would have investigated this issue further. In essence, there was no tactical
or strategic decision not to pursue this lead; instead, there was simply a decision not to
investigate because one of two experts, who later proved unreliable, felt the quest would
be fruitless. Given the stakes in a death penalty case and the need to convince just one
member that death is not warranted, I also find no reasonable tactical or strategic purpose
for failing to present the known evidence of the motorcycle accident to the members.
Even without expert testimony, the undisputed evidence of the accident was persuasive
and relevant mitigating evidence about the appellant. Counsel’s lack of investigation
falls short of providing effective assistance of counsel within the meaning under
Strickland and the Sixth Amendment. 51

       The constraints placed on this potential lead were also unreasonable in light of
what appellate defense counsel actually discovered and the ease with which this evidence
could have been obtained. Had trial defense counsel simply contacted Dr. FW, as
insisted upon by CP, they would have discovered the following: the sole CT scan done
immediately after the accident could not exclude a traumatic brain injury because an
immediate CT scan is mostly sensitive to acute bleeding rather than the longer term
consequences of a traumatic brain injury; a review of Dr. BM’s testing results plainly
suggested left hemisphere damage; the behavioral changes following the accident and the
appellant’s uncharacteristic behavior on the night of the homicides are highly typical of
the impairment in emotional self-regulation and impulse control that results from left
anterior temporal lobe damage; even a mild traumatic brain injury can affect impulse
control, normal cognitive functions, emotional self-regulation, and behavior; based on
known evidence, Dr. FW would have expected proper scanning to show the appellant
suffered from a traumatic brain injury; and, even without additional testing, Dr. FW could
have given helpful and relevant testimony concerning the possibility of a traumatic brain
injury in the appellant.

                          Mental Health Records of the Appellant’s Mother

       The appellant also asserts that his trial defense counsel were ineffective when they
failed to investigate his mother’s mental health history and obtain his mother’s mental
health records from an inpatient stay.

51
     U.S. CONST. amend. VI.




                                                126                         ACM 36785 (recon)
       While the majority presents a very lengthy analysis of the post-trial issues
involving the appellant’s mother’s mental health records, it appears their opinion is based
on a lack of prejudice rather than an analysis of counsel’s performance. When trial
defense counsel on the case intentionally forgo investigation into the area of a potential
traumatic brain injury because they want to stay true to their theory of the case that
appellant’s actions were directly influenced by his historical familial experiences,
childhood, and the manner and environment in which he was raised, there seems to be no
question that failure to obtain the records from the appellant’s mother’s inpatient stay was
deficient.

       The commentary to ABA Guideline 10.7 sets forth that family mental health
history should be sought. This history was the trial defense team’s sole theory as to what
caused appellant to commit these unspeakable acts. At least one of the trial defense
counsel acknowledges, “[A]s part of the case theory rested on Dr. [BM]’s assessment of
[MP]’s past mental health concerns . . . we would have wanted these records.” However,
none of the trial defense counsel presents any tactical, strategic, or other reason as to why
investigation into this known lead was not pursued. In addressing the issue, civilian trial
defense counsel states, “To the extent we did not seek [MP]’s mental health records, in
my mind it was simply that Dr. [BM] did not ask us to obtain them. Had he done so, we
would have had trial counsel obtain them.” This statement leaves the impression that
trial defense counsel inappropriately attempted to delegate the decisions regarding
diligent investigation to their expert. None of the trial defense counsel has offered any
reasonable explanation for why the records, which were relevant to their stated theory of
the case, were not sought.

       Counsel may not simply hire an expert and then abandon all further responsibility.
Counsel ultimately has the obligation to perform as reasonably diligent counsel and to
ensure adequate preparation and investigation for the sentencing phase. It is the attorney
who bears the “responsibility to investigate and bring to the attention of mental health
experts who are examining his client, facts that the experts do not request.” Wallace v.
Stewart, 184 F.3d 1112, 1116 (9th Cir. 1999).

       Trial defense counsel’s lack of investigation in this area was constitutionally
deficient. The appellant’s mother’s refusal to sign a consent form to obtain the records is
irrelevant. Trial defense counsel’s duty is to their client, period. They knew of the
appellant’s mother’s mental health history, the recommendation of the professional
mitigation specialist to obtain the records, the theory of the case propounded by their
expert forensic psychologist, and the ABA Guidelines. The performance of counsel in
failing to obtain these pertinent records or investigate this known lead of an inpatient
mental health stay fell below the standards of competent counsel. Whether there is any
prejudice as a result of this failure will be addressed below.




                                             127                            ACM 36785 (recon)
                                   Evidence of Remorse

        The third area I find meritorious is the appellant’s assertion that his trial defense
counsel were ineffective for failing to investigate the potential remorse testimony of
Deputy Sheriff LF. I agree with the majority that evaluation should focus on “‘counsel’s
perspective at the time’ investigative decisions are made.” Rompilla, 545 U.S. at 381
(citing Strickland, 466 U.S. at 689).

        There is no question that trial defense counsel desired to present remorse evidence
in mitigation. The record reveals a concerted effort on the part of the prosecution to paint
a picture of the appellant as lacking in remorse. Surely trial defense counsel were aware
of this strategy, as they successfully avoided the live testimony of multiple witnesses by
entering into stipulations of expected testimony. These witnesses all presented evidence
of the appellant making social plans for 5 July 2004, the day following the murders.

       Trial defense counsel has a fundamental duty to investigate evidence to rebut the
Government’s potential aggravation evidence. See ABA Guideline 10.11. They simply
failed to follow up on this known lead and have offered no tactical or strategic reason
why they failed to do so. Counsel concede the mitigation specialist recommended
pursuing Deputy Sheriff LF as a potential witness and at least one counsel remembers
asking her to obtain his contact information. He further acknowledges they “were very
interested in presenting any evidence of remorse [they] could find, as well as evidence
that showed [the appellant]’s good conduct since his confinement. In [that counsel’s]
opinion, Deputy [LF] could have been a good witness on both issues.” Civilian trial
defense counsel’s affidavit expounds generalities about his lack of confidence in potential
law enforcement witnesses. However, FS’s personal feelings about a witness he has
never met and never spoken to provide no factual basis from which he could assess
Deputy Sheriff LF’s potential as a witness or susceptibility to cross-examination.

       Trial defense counsel failed to effectively investigate Deputy Sheriff LF as a
potential mitigation witness. From the record, it appears that any decision not to
interview him or call him as a witness was, at best, arbitrary. Counsel did not interview
Deputy Sheriff LF, evaluate his potential testimony, observe his demeanor as a potential
witness, or investigate possible impeachment material. I conclude that trial defense
counsel’s uninformed strategic or tactical decision is not objectively reasonable and is
constitutionally deficient.

                                         Prejudice

       Even if an attorney’s performance is deficient, an appellant is not entitled to relief
unless “there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a




                                             128                            ACM 36785 (recon)
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694. When the deficient performance of counsel occurs during the sentencing phase, that
requires the appellant to establish “a reasonable probability that a competent attorney,
aware of [the available mitigating evidence], would have introduced it at sentencing,” and
“that had the jury been confronted with this . . . mitigating evidence, there is reasonable
probability that it would have returned with a different sentence.” Wiggins, 539 U.S. at
535, 536. “[A] defendant need not show that counsel’s deficient conduct more likely than
not altered the outcome in the case.” Strickland, 466 U.S. at 693 (emphasis added).

       The majority misapplies the Strickland standard in three ways. First, it addresses
each of the alleged deficiencies raised by appellant and assesses its individual potential
for prejudice in appellant’s sentencing case. This approach is contrary to that set forth in
Strickland. The ultimate determination as to whether the prejudice prong of the
Strickland test is met is based upon consideration of counsel’s errors as a whole, rather
than individually. Strickland, 466 U.S. at 693-94.

       Second, the majority opinion aptly states that to assess prejudice, “we reweigh the
evidence in aggravation against the totality of available mitigating evidence.” Wiggins,
539 U.S., at 534. However, this “reweighing” was not intended to exclusively apply to
the Gate Three analysis. True, to pass Gate Three in a military court-martial the
members must unanimously vote that the mitigating circumstances are substantially
outweighed by the aggravating circumstances.             R.C.M. 1004(b)(4)(C); Loving,
47 M.J. at 442. It is also true that one way to show a reasonable probability of a different
result would be for the appellant to establish that upon reweighing the evidence this
balance would have been different. However, it is not the only way. The critical
question is whether “there is a reasonable probability that at least one juror would have
struck a different balance” in weighing the evidence for and against sentencing the
defendant to death. Wiggins, 539 U.S. at 537. This is a discretionary decision for each
court member subject to no specific balance. This is the focus of Gate Four, largely
unaddressed by the majority.

       Third, the majority establishes a heightened standard of proof for the appellant
inconsistent with Strickland. The majority is bogged down in the mire of a hypothetical
battle of the experts as to whether or not the appellant can prove he suffered a traumatic
brain injury as if that is a legal prerequisite to prevailing on the prejudice prong of
Strickland. At some point, the majority opinion essentially equates prejudice to proof
that the appellant actually suffered a traumatic brain injury. The opinion undertakes to
rescript the sentencing case with its own rendition of how such testimony might have
been presented and rebutted and ultimately concludes that unless appellant can present
evidence on appeal that he in fact suffered a traumatic brain injury and that such injury in
fact influenced his behavior, then he cannot establish a reasonable probability of a
different outcome. In several places, the majority suggests that the omitted evidence




                                             129                            ACM 36785 (recon)
could not be mitigating such to affect the appellant’s moral culpability unless he could
affirmatively establish a traumatic brain injury that influenced his behavior and excused
his conduct. I disagree with the heightening of a standard that does not exist in
Strickland. Instead, Strickland requires us to look at the all of the evidence presented on
appeal, both good and bad, Wong v. Belmontes, 558 U.S. 15, 26 (2009), and determine
whether there is a reasonable probability that just one court member would have voted
against death, thereby changing the outcome. Strickland, 466 U.S. at 694. The focus
should be on Gate Four of a death penalty sentencing hearing. At this stage of the
sentencing decision, there are no elements to meet, no standards of proof, no burden of
persuasion required, just the absolute discretion of the court members to consider all
facets of the crime and the individual characteristics of this person who committed it to
render the ultimate decision as to whether he is sentenced to death or not.
R.C.M. 1006(d)(4)(A). It is with that in mind, that the Strickland standard on prejudice
must be analyzed.

        Our role is not to determine whether prejudice existed such as to excuse the
appellant’s actions; that would be a findings issue.             In Hodge v. Kentucky,
Justice Sotomayor, dissenting from a denial of certiorari, wrote that the Kentucky
Supreme Court “misunderstood the purpose of mitigation evidence” when it “reasoned
that Hodge’s mitigation evidence might have altered the jury’s recommendation only if it
‘explained’ or provided some ‘rationale’ for his conduct.” 133 S. Ct. 506, 509 (2012)
(Sotomayor, J., dissenting from denial of certiorari). Justice Sotomayor went on to state,
“We have made clear for over 30 years, however, that mitigation does not play so limited
a role.” Id. (citing Lockett v. Ohio, 438 U.S. 586, 604, 605 (1978); Eddings v. Oklahoma,
455 U.S. 104, 112 (1982); Abdul-Kabir v. Quarterman, 550 U.S. 233, 252 (2007)). As in
Hodge, the omitted evidence due to counsel’s errors need not have offered any
“rationale” for the murders in order for the panel to have considered it as weighty
mitigation. Id. at 510. It would be enough if there were a “reasonable probability” that,
because of the appellant’s closed-head injury and signs of remorse, the members’
“reasoned moral response” would instead have been to spare his life and sentence him to
life imprisonment instead of death. Id. at 510.

       There is no question that the facts of this crime are gruesome. Two people, and
nearly a third, died at the hands of a fellow Airman who by all accounts was their friend.
The evidence presented during the findings case offered little explanation and weak
motive for these horrible acts. The aggravation case consisted of the very facts of the
crime that made this case “death-eligible,” the impact on the victims and their surviving
family members, evidence that the appellant demonstrated a lack of remorse following
the murders, and with no other explanation for the acts, an argument that the appellant
was simply “evil.” The majority opinion expounds on the details of this presentation.




                                            130                            ACM 36785 (recon)
       What was lacking in the aggravation case was any evidence that the appellant had
a prior history for violence. In fact, he had no criminal history at all; no administrative
discipline of any kind. Moreover, there was no evidence whatsoever to deduce that the
appellant had a propensity for future violence.

       The mitigation case presented included character letters and testimony from
friends, teachers, religious leaders, and family members who all described the appellant
as a well-mannered, respectful youth, who never caused any trouble. While there was
ample testimony regarding his mother’s troubled upbringing, there was no nexus of this
turmoil to the appellant’s life. Other than his knowledge of his parent’s divorce and his
mother’s brief inpatient stay for mental health issues, there was little, if any, evidence to
indicate he was even aware of his mother’s issues. All in all, the extenuation and
mitigation case as presented was benign.

       In this case, there were three trial defense attorneys, none of whom had ever
handled a capital case before. While our superior court has declined to mandate
compliance with the ABA Guidelines for the Appointment and Performance of Counsel
in Death Penalty Cases, United States v. Loving, 41 M.J. 213, 300 (C.A.A.F. 1994), the
guidelines exist for a reason. They exist because of the finality of death and simple fact
that the presentation of a case in extenuation and mitigation is different from any other
aspect of litigation; it is different from a findings case, and it is different from a standard
sentencing case.

        In any other type of litigation, a counsel’s job is to appeal to the jurors, whether
unanimously or by majority, to render a decision in favor of their client’s position.
Completely contrary to this is the unique and sole objective for defense counsel in a death
penalty case—to present a case filled with relevant and persuasive mitigating and
extenuating evidence with the distinctive goal of reaching just a single court member who
will employ his or her unfettered discretion at the Fourth Gate and deny a vote for death,
thereby sparing the life of their client. Because of the inimitable backgrounds,
experiences, and convictions of court members, the mitigation specialist, CP, appears to
have been advising defense counsel of the critical need to present all of this evidence in
hopes of appealing to that one court member rather than selecting a single theory in
sentencing. This is an aspect of capital litigation unfamiliar to defense counsel in this
case 52 and a point of consternation between him and his learned advisor. For this reason,

52
    While I recognize FS may have extensive experience in litigating cases before military members, his affidavit is
illustrative of his frustration with CP’s perspective and the lack of value he placed in her experience dealing
exclusively with death penalty cases:

        [I]t must be noted that while I valued [CP]’s work and input, I felt that she did not fully appreciate
        the unique challenges of defending military cases with members senior in rank to the accused as
        opposed to trying a case before a civilian jury. I spent most of my entire professional life




                                                         131                                      ACM 36785 (recon)
I concur with the opinions of Judge Mitchell and Judge Peloquin advocating for
minimum qualifications for death penalty counsel in the military. The failure to
recognize CP’s expertise in this area led counsel to make the investigative decisions that I
find constitutionally deficient.

       While I find that counsel was deficient in failing to obtain appellant’s mother’s
mental health records, I readily point out that the majority of the information contained
therein was indeed cumulative and presented to the members through witness testimony.
Unfortunately, it was not appellant’s mother on trial, so the weight to be placed on the
evidence of her upbringing could only be established by its impact on the appellant’s life.
One potential connection to the appellant was her Axis II diagnosis that was discovered
in the missing mental health records—the same Axis II diagnosis established by Dr. BM
for appellant independent of that knowledge. That being said, one may be curious as to
how that information and like-diagnosis may have impacted Dr. BM’s overall case
presentation and reliability, but given the extreme speculative nature of such, I find it
adds very little to the overall assessment of prejudice.

        Given the Government’s concerted effort at showing the appellant’s lack of
remorse, it was necessary to rebut such evidence with the best evidence at trial defense
counsel’s disposal. The lack of investigation into Deputy Sheriff LF’s potential
testimony left their arsenal wanting of such remorse evidence. Of the 15 defense
witnesses, only three presented any remorse evidence. The first was Ms. SF, who
testified that she had received approximately six letters from the appellant while he was
in custody and that they conveyed “a tone of remorse.” However, she was extensively
cross-examined on specific passages from those letters that were not expressive of
remorse and the letters were ultimately introduced into evidence by the Government. The
second witness was Mr. RJ, a former employer of the appellant, who testified that he
received one letter from the appellant and believed “he was remorseful of what he has
had [sic] done.” Finally, the appellant’s father testified that in phone calls with the
appellant, “he was so full of guilt and remorse, self-loathing that it took all my strength
[voice shaking] sometimes to get him up and maybe make him laugh. Some of the phone
calls were so exhausting that I would actually spend the next day in bed. They were just
so painful.” Only one of the numerous character letters admitted by the defense at
sentencing reflected a showing of remorse by the appellant. In addition to this evidence,
the appellant expressed his remorse both in his oral and written unsworn statements.


       defending military cases in front of members. My approach is to be focused in presenting a
       defense or a sentencing case. In other words, I do not as a rule call marginal witnesses or raise
       marginal issues before members. In my opinion there is too much risk they will ultimately hurt
       your case. [CP] seemed to be more willing to throw everything against the wall and hope that at
       least one member would respond . . . .




                                                      132                                   ACM 36785 (recon)
      Had Deputy Sheriff LF been contacted, the defense would have learned the
content of his testimony. His written declaration submitted on appeal does not just
express a conclusion that the appellant was remorseful but paints a powerful image of a
young man broken down by remorse.

      Deputy Sheriff [LF]’s declaration contains, in part, the following passages:

      3. During this Article 32 hearing, I witnessed [the appellant] overcome by
      emotion. When the prosecution presented its evidence against [the
      appellant], he broke down and sobbed uncontrollably. This happened, in
      particular, when crime scene photos were displayed. I saw a broken young
      man, in great pain and despair. He was so emotionally overcome that he
      had to excuse himself from the hearing.

      4. I accompanied [the appellant] to another part of the courthouse while the
      hearing continued. He continued to display sadness and great emotion. I
      took it upon myself to give him comfort and spiritual guidance. I wrapped
      my arms around him to give him a hug. I whispered words of
      encouragement to him in hopes of consoling him. I wanted him to know
      that he was walking with God. I told [the appellant] that God loved him
      and that I loved him. I interpreted [the appellant’s] emotion to be genuine
      and sincere. I would not have approached him otherwise. I believe he was
      remorseful for what he had done.

      ....

      8. If I had been asked to testify on behalf of [the appellant], I would have
      done so. I would have told the court-martial about my interaction with him
      during his Article 32 hearing, our spiritual discussion, and my observations
      of his emotion and remorse. In my experience in law enforcement, I have
      dealt with numerous murderers, rapists, and other violent criminals. I have
      never testified on behalf of any of them. Only one other time did I observe
      the emotion and remorse, and sincerity of such, like I did of [the appellant]
      in another defendant.

      9. However, I never spoke to any of [the appellant]’s attorneys.

       None of the other remorse evidence presented came close to the picture painted by
Deputy Sheriff LF as evidenced by his post-trial declaration. Furthermore, the record
reveals the panel’s keen interest in the appellant’s remorse as a court member presented




                                           133                            ACM 36785 (recon)
questions to Mr. RJ about the remorse he gleaned from the appellant’s letter. 53 Given a
strong focus of the Government’s sentencing case was the appellant’s lack of remorse,
the interest in the appellant’s level of remorse demonstrated via the court member’s
question, and the limited amount of remorse evidence presented by the defense,
Deputy Sheriff LF’s testimony would have presented an unbiased and new perspective on
the issue otherwise absent from the appellant’s mitigation case.

       Above all else, the failure to investigate the possibility of a traumatic brain injury
and failure to present evidence of the same is undeniably prejudicial. Even the basic fact
of a closed-head injury resulting from a motorcycle accident four and a half months prior
to the murders is sufficient to cause a reasonable juror to pause and question whether
such injury could offer an otherwise wanting explanation for these acts or given the
members new medical information to consider in evaluating whether death is an
appropriate sentence. Counsel’s deficient approach of not exploring the leads with
respect to the possibility of a traumatic brain injury was amplified by the lack of any
other mitigation or extenuation evidence that may have shed light on motive or why this
aberrant behavior transpired. After Dr. BM was rendered unavailable and Dr. CR’s
independent evaluation revealed nothing helpful to the appellant’s strategy in sentencing,
the defense was “left without what [they] had viewed would be helpful psychological
testimony and forced to rely entirely upon evidence from [the appellant]’s friends and
family.” This loss of psychological testimony rendered the defense strategy hollow and
ineffective against the Government’s argument that these crimes were committed because
the appellant is evil and some people are just bad.

       The affidavit of Dr. FW sheds light on the possibility of a traumatic brain injury.
Of course, we would expect cross-examination and evidence to the contrary had it been
presented, but such cross-examination would simply have left the matter before the court
members to assess credibility between the experts and to individually decide how much
weight to give the evidence. Cross-examination and an opposing expert view does not
preclude the reasonable probability that just one juror would weigh this evidence of a
closed-head injury and possibility of a traumatic brain injury and find the appellant’s
moral culpability reduced just enough to deny the death penalty when asked to vote.


53
     The court member probed the issue of remorse as follows:

          Q. Okay. You indicated that you believed from the tone of [the appellant]’s letter that he was
          remorseful. What was it about the tone of that letter that—first off, let me ask you, did he actually
          say that he was remorseful?
          A. No, he did not.
          Q. Okay. But it’s from the tone of the letter, the entire letter, that gave you that appreciation of
          your belief that he was remorseful?
          A. Yes, it did.




                                                           134                                     ACM 36785 (recon)
       Courts have repeatedly found evidence of mental problems, arguably including the
effects of traumatic brain injury, to be powerful mitigation. “[E]vidence about the
defendant’s background and character is relevant because of the belief, long held by this
society, that defendants who commit criminal acts that are attributable to . . . emotional
and mental problems, may be less culpable than defendants who have no such excuse.”
Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (quoting California v. Brown, 479 U.S. 538,
545 (1987) (O’Connor, J., concurring)), abrogated on other grounds by Atkins v.
Virginia, 536 U.S. 304 (2002); see also Allen v. Woodford, 395 F.3d 979, 1006 (9th Cir.
2005) (noting that “explanatory” mitigating evidence often bears more weight than
“humanizing” evidence); Cannon v. Gibson, 259 F.3d 1253, 1277–78 (10th Cir. 2001)
(finding omitted mitigation information of “serious brain damage” and lack of impulse
control would have displaced mitigation information portraying the petitioner as a “kind,
compliant, and responsible individual whose involvement in the murder was an
aberration”). Yet, as highlighted by Hodge, 133 S. Ct. at 509, mitigation evidence is not
limited to evidence that may explain behavior; it may also include relevant factual
information about this appellant’s recent medical history.

       In Caldwell v. Mississippi, 472 U.S. 320 (1985), the Supreme Court overturned a
capital sentence as inadequately reliable because of a statement made by the prosecutor
during the closing argument of the sentencing phase of the trial. In reaching that
conclusion, the Court observed that capital sentencing jurors, required to determine
“whether a specific human being should die at the hands of the State,” Id. at 329, are
“placed in a very unfamiliar situation and called on to make a very difficult and
uncomfortable choice.” Id. at 333. Such court members, called upon to make this
extremely weighty decision, might reasonably find any one of a variety of mitigating or
extenuating circumstances significant enough to cause them to decline to vote for the
ultimate determination of death for this specific human being.

       The “truly awesome responsibility” imposed upon capital sentencing juries cannot
be taken for granted. McGautha v. California, 402 U.S. 183, 208 (1971), reh’g granted,
judgment vacated sub nom. Crampton v. Ohio, 408 U.S. 941 (1972). The sentence in this
case is simply not reliable due to the substandard performance of trial defense counsel
and the prejudice to the appellant directly caused by the lacking evidence in mitigation
and extenuation that should have been investigated and ultimately presented to the court
members. The undiscovered and absent mitigating evidence, taken as a whole, “might
well have influenced the jury’s appraisal” of the appellant’s moral culpability. Wiggins,
539 U.S. at 538 (quoting Williams, 529 U.S. at 398).

      The death sentence handed down at trial in this case did not come easy. It was far
from a quick and obvious decision. The members deliberated for nearly twelve hours
over a three-day period before reaching their death sentence. With that in mind, the
probability is indeed reasonable that any one member might have embraced the




                                            135                           ACM 36785 (recon)
uninvestigated and omitted mitigating evidence regarding an undisputed recent
motorcycle accident, the undisputed concomitant closed-head injury, and expert
testimony supporting the simple possibility of a traumatic brain injury. Coupled with the
emotionally impactful, yet missing, remorse evidence Deputy Sheriff LF could have
supplied to rebut the prosecution’s argument the appellant felt no remorse, I find the
existence of a reasonable probability, sufficient to undermine the confidence in the
outcome of this case. There is ample evidence to establish prejudice—that just one
member would hear it all and decide against death.

      Having found both constitutionally deficient performance as well as prejudice, I
would reverse the sentence in this case and remand for a new sentencing hearing.

PELOQUIN, Judge, concurring in part and dissenting in part:

       I join with Judge Saragosa concurring with the majority’s opinion except as to its
finding that the appellant failed to demonstrate ineffective assistance of counsel in the
sentencing phase of his court-martial. Because I believe trial defense counsel were
ineffective by failing to investigate and present evidence of the appellant’s remorse,
closed-head injury, and mother’s mental health records, I would set aside the sentence
and remand this case for a new sentencing hearing. I write separately to address the lack
of minimum qualification requirements within the military justice system for counsel
defending a military member facing the death penalty—requirements of experience and
training that, in my estimation, may well have precluded trial defense counsel’s errors.

       Our superior courts remind us often that death is different. The absolute finality of
the decision to execute appropriately drives layers of safeguards and review to ensure the
propriety, equity, and fairness of the punishment with as high a degree of certainty a
system managed and implemented by human beings can muster.

       To underscore Judge Saragosa’s opinion, we should note Justice Brennan’s words
in Strickland v. Washington, 466 U.S. 668 (1984), describing the unique nature of the
sentencing phase of a capital case and the Supreme Court’s heightened attention to such
proceedings:

       [T]he consequences to the defendant of incompetent assistance at a capital
       sentencing could not, of course, be greater.

       ....

       Because of the basic difference between the death penalty and all other
       punishments, this Court has consistently recognized that there is a




                                             136                           ACM 36785 (recon)
      corresponding difference in the need for reliability in the determination that
      death is the appropriate punishment in a specific case.

      ....

      In the sentencing phase of a capital case, what is essential is that the jury
      have before it all possible relevant information about the individual
      defendant whose fate it must determine. For that reason, we have
      repeatedly insisted that the sentencer in capital cases must be permitted to
      consider any relevant mitigating factor.

Strickland, 466 U.S. at 704-05 (Brennan, J., concurring in part and dissenting in part)
(emphasis added) (citations, alterations, and internal quotation marks omitted). And it is
the capital defendant’s counsel who are best positioned, and ultimately responsible, for
ensuring “all possible relevant information” and “any relevant mitigating factor” is
presented to the sentencing authority for consideration.

      The Strickland standard for assessing ineffective assistance of counsel, reiterated
in Wiggins v. Smith, 539 U.S. 510, 534 (2003), provides:

      The defendant must show that there is a reasonable probability that, but for
      the counsel’s unprofessional errors, the result of the proceeding would have
      been different. A reasonable probability is a probability sufficient to
      undermine confidence in the outcome.

Strickland, 466 U.S. at 694 (emphasis added).

        Judge Saragosa’s dissent articulately and accurately discusses trial defense
counsel’s failures in developing and presenting the appellant’s sentencing case and the
resulting prejudice. A sentence to death must be by unanimous vote of the members. We
cannot know what deliberations or discussions took place among the members; nor can
we know what sentences may have been proposed by one or more members; nor can we
know the vote count for any sentence other than death, if one was proposed.

        We do know that a sentence to death was voted on, and the vote for death was
unanimous. We know that several pieces of mitigating evidence were not presented in
sentencing. We know that this evidence was championed by the defense team’s
mitigation expert. We know that trial defense counsel disregarded their mitigation
expert’s advice, even after having to abandon their planned sentencing tactics and
strategy. We know that each member of this Court has determined that some or all of this
mitigating evidence is relevant. And we know one vote not in favor of death would result
in a different outcome.




                                            137                            ACM 36785 (recon)
       Trial defense counsel’s failure to investigate and present this mitigating evidence
deprived the sentencer of the opportunity to consider all possible relevant information.
Without this evidence before the sentencer, “a reasonable probability [of a different
result] sufficient to undermine confidence in the outcome” is most certainly raised.
Strickland, 466 U.S. at 694. Had trial defense counsel performed in a more diligent
manner, and given due regard and deference to their highly experienced capital
mitigation expert, one could espouse confidence in the outcome knowing the members
had all relevant mitigation evidence before them to consider before rendering a sentence.
See Id. at 705 (Brennan, J., concurring in part and dissenting in part).

       With that said, the root cause of this prejudice and the root cause for this lack of
confidence in the outcome is trial defense counsel’s lack of competence, lack of
qualifications, and lack of experience.

        This court-martial was convened in accordance with the UCMJ and the Manual
for Courts-Martial (MCM), United States (2005 ed.). The UCMJ and the Manual
mandate the provision of defense counsel to an accused and outline basic requirements
for detailing such counsel. See Article 27, UCMJ, 10 U.S.C. § 827; Rules for
Court-Martial (R.C.M.) 501, 502, 503, and 506. See also AFI 51-201, Administration of
Military Justice, ¶¶ 5.2-5.3 (26 November 2003); AFI 51-201, ¶¶ 5.3-5.5 (6 June 2013).
These authorities provide that trial defense counsel may be detailed from any branch of
military service to defend a servicemember, and that civilian counsel may represent an
accused provided no expense accrues to the Government. However, aside from
designation and initial certification of counsel, no further training or experience is
required before military counsel may represent an accused in a capital case. Similarly, no
training or experience, other than Federal or State bar membership, is required before a
civilian counsel may defend a capital case at court-martial.

       To date, our superior court has elected to not involve itself in mandating,
endorsing, or recommending minimum qualifications and experience levels for counsel
providing representation in capital trials. See United States v. Gray, 51 M.J. 1, 54
(C.A.A.F. 1999) (“[W]e again decline the invitation to establish such a [minimum]
standard on our own.”); United States v. Murphy, 50 M.J. 4, 9-10 (C.A.A.F. 1998) (“[W]e
have chosen the route illuminated by the Supreme Court in United States v. Cronic,
466 U.S. 648 (1984), . . . . [, which] compels us to look at the adequacy of counsels’
performance, rather than viewing the limited experience of counsel as an inherent
deficiency.”); United States v. Loving, 41 M.J. 213, 300 (C.A.A.F. 1994) (“[W]e decline
to mandate minimum standards based on years of practice or numbers of cases tried.”).

       Nevertheless, our superior court has recognized the court’s role of “remain[ing]
vigilant as to the quality of representation provided servicemembers in capital cases in




                                            138                            ACM 36785 (recon)
the military justice system.” Gray, 51 M.J. at 54. Addressing a due process argument for
minimum qualifications, the Gray court went on to say: “[D]espite 21 U.S.C.
§ 848(q)(5)-(7),[54] the few state authorities cited by appellant in his brief, and the
American Bar Association Guidelines, we are not persuaded that ‘[c]ontemporary
practice’ demonstrates a ‘settled view’ on this question.” Id.

       We do not know what “few state authorities” were cited by the appellant in Gray
in 1999. However, we do know that today 34 jurisdictions in the United States, including
the United States military, retain the death penalty within their penal codes. 55 Of those
34 jurisdictions, 24 have adopted and articulated minimum qualification and experience
standards for counsel appointed to represent defendants facing the death penalty. 56 Using
2013 data as a yardstick, in October 2013 there were 3,088 inmates on death row in the
United States. 57 The 24 jurisdictions with minimum counsel standards accounted for
2,901 of these inmates.

       The minimum qualification standards vary among those 24 jurisdictions. The
standards require anywhere from 3 years’ criminal litigation experience to 10 years’
criminal litigation experience, with the majority of the jurisdictions requiring no less than
5 years’ criminal litigation experience. Of the 24 jurisdictions, 18 mandate lead defense




54
   21 U.S.C. § 848(q)(5)-(7) (repealed 2006 and recodified as 18 U.S.C. § 3599(b)-(d)), requires attorneys appointed
for indigent defendants in capital cases at trial or on appeal to have a minimum amount of felony trial or felony
appeal experience, respectively. Additionally, the court is also authorized to appoint “another attorney whose
background, knowledge, or experience would otherwise enable him or her to properly represent the defendant, with
due consideration to the seriousness of the possible penalty and to the unique and complex nature of the litigation.”
See Harbison v. Bell, 556 U.S. 180, 190 (2009).
55
     Alabama, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kansas,
Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio,
Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington,
Wyoming, the United States Federal Government, and the United States Military.
56
   Ala. Code § 13A-5-54; A.R.S. Rules. Crim. Proc., Rule 6.8; Ark. Admin. Code 160.00.2; Cal. Rules of Court, R.
4.117; Fla. R. Crim. P. 3.112; Ga. Sup. Ct. Unified Appeal Procedure, Rule II.A.; Id. Crim. R. 44.3; Ind. R. Crim. P.
24(B); Kan. Admin. Regs. § 105-3-2; La. Admin Code. tit. 22, pt. XV, § 915; Mont. Sup. Ct. Standards for
Competency of Counsel for Indigent Persons in Death Penalty Cases, § I; Nev. Sup. Ct. R. 250.2; North Carolina
Rules on the Commission of Indigent Defense Services, Pt. 2, App. 2A (Feb. 10, 2006); Rules of Superintendence
for the Courts of Ohio, Sup. R. 20.01 (Mar. 1, 2010); Okla. Indigent Def. System Capital Trial Application,
http://www.ok.gov./OIDS/index.html (last visited May 27, 2014); Oregon Public Defense Services Commission
Qualification Standards for Court-Appointed Counsel to Represent Financially Eligible Persons at State Expense,
Standard IV, Section 5 (Dec. 21, 2013); Pa. R. Crim. P. 801; S.C. App. Ct. R. 421, S.C. Code Ann. § 16-3-26; Tenn.
Sup. Ct. Rules, R. 13; Tex. Crim. Proc. Code Ann. art. 26.052 (West); Utah R. Crim. P. 8; 6 Va. Admin. Code § 30-
10-10; Wash. Super. Ct. Spec. P. Rules—Criminal (Sprc), Rule 2; United States Federal Courts, Guidelines for the
Administration of the Criminal Justice Act, vol. 7, pt. A, ch. 6, § 620.30.
57
   See Death Row Inmates by State, Death Penalty Information Center, http://www.deathpenaltyinfo.org/death-row-
inmates-state-and-size-death-row-year (last visited May 27, 2014).




                                                         139                                    ACM 36785 (recon)
counsel have capital trial experience and/or significant murder trial experience. 58 Those
18 jurisdictions account for nearly 2,600 of those 3,088 inmates on death row.

       Those jurisdictions most active in trying capital cases, and most experienced in
trying capital cases, have deemed it appropriate and necessary to create, adopt, and
implement minimum qualification and experience standards for counsel defending capital
cases. Presumably, these standards have been adopted in light of the uniqueness of
capital litigation, the significant consequences in play, and these jurisdictions’ experience
gained over the course of their extensive capital practice.

       This data suggests that the landscape of “contemporary practice” has changed
since the Gray court spoke. With the jurisdictions representing 94% of death row
inmates having adopted minimum qualification standards for capital defense counsel, it
would seem a “settled view” has been reached that such standards are to be commended.

        As noted above, under the UCMJ and the Manual there are no minimum
qualification standards for counsel appointed to defend a capital case aside from
certification under Article 27, UCMJ. In the United States Air Force Judge Advocate
General’s Corps, that certification is met after completion of a 9-week staff officer course
and serving as assistant trial counsel or trial counsel in a handful of courts-martial. 59 In
the Air Force, the authority to detail defense counsel has been delegated from The Judge
Advocate General to the Chief, Trial Defense Division and other delegees. AFI 51-201, ¶
5.2 (26 November 2003); AFI 51-201, ¶ 5.3 (6 June 2013), see also R.C.M. 503.

       In the instant case, the Government opted to detail two trial defense counsel to the
appellant. When he was assigned to defend the appellant, the senior military defense
counsel, Captain (Capt) DR, had been a member of the bar for two-and-a-half years, had
prosecuted six cases of unknown complexity, and had served as a trial defense counsel
for twelve months, defending nine cases. He had no capital trial experience and little
training on the subject of capital trials 60 prior to being detailed. The assisting military

58
   A.R.S. Rules. Crim. Proc., Rule 6.8; Ark. Admin. Code 160.00.2; Cal. Rules of Court, R. 4.117; Fla. R. Crim. P.
3.112; Ga. Sup. Ct. Unified Appeal Procedure, Rule II.A; Id. Crim. R. 44.3; Ind. R. Crim. P. 24(B); La. Admin
Code. tit. 22, pt. XV, § 915; Nev. Sup. Ct. R. 250.2; North Carolina Rules on the Commission of Indigent Defense
Services, Pt. 2, App. 2A (Feb. 10, 2006); Rules of Superintendence for the Courts of Ohio, Sup. R. 20.01 (Mar. 1,
2010); Oregon Public Defense Services Commission Qualification Standards for Court-Appointed Counsel to
Represent Financially Eligible Persons at State Expense, Standard IV, Section 5 (Dec. 21, 2013); Pa. R. Crim. P.
801; Tenn. Sup. Ct. Rules, R. 13; Tex. Crim. Proc. Code Ann. art. 26.052 (West); Utah R. Crim. P. 8; 6 Va. Admin.
Code § 30-10-10; United States Federal Courts, Guide to Judiciary Policies and Procedures, vol. 7, pt. A, ch. 6,
§ 620.30.
59
   See Air Force Instruction 51-103, Judge Advocate Professional Development, ¶ 4 (3 September 2013).
60
   According to Captain DR’s post-trial declaration, his total capital defense training consisted of (a) attending a
Naval JAG School training course titled “Defending Complex Cases,” one day of which was devoted to defending
capital cases; and (b) attending a three-day course sponsored by the National Association of Criminal Defense




                                                        140                                    ACM 36785 (recon)
defense counsel, Capt DJ, had been a member of the bar for less than three years, had
prosecuted 14–15 cases of unknown complexity, and had never served as a trial defense
counsel prior to his assignment to the appellant’s defense team. He had no capital trial
experience or training prior to being detailed.

       The appellant, of his own accord, procured the services of a private attorney,
Mr. FS. Mr. FS had been practicing law for 25 years with significant trial and appellate
defense experience in courts-martial. However, he had no capital trial or capital
appellate-level experience. As the lead counsel, he determined the division of labor
among the defense legal team. While he focused primarily on the findings phase of the
court-martial and preparing a defense against the allegations of premeditated murder,
Capt DR was assigned primary responsibility for preparing the sentencing case.

       None of the appellant’s attorneys met the minimum qualification standards
required of capital defense counsel, specific bar admission aside, as adopted in
18 jurisdictions which account for over 80% of the capital cases in the United States.
And lead counsel for the appellant’s sentencing case did not meet the minimum
qualification standards in any of 24 jurisdictions with minimum qualification standards
accounting for 94% of the capital cases in the United States. In fact, none of the
appellant’s trial defense counsel met the minimum statutory qualifications governing
counsel appointed to defend in federal capital cases. See 18 U.S.C. § 3005 (requiring at
least one court-appointed counsel to be “learned in the law applicable to capital cases”);
see also Guidelines for the Administration of the Criminal Justice Act, vol. 7, pt. A, ch. 6,
§ 620.30.

        To be fair, Capt DR, Capt DJ, and Mr. FS certainly appear to be capable,
conscientious attorneys who worked diligently and tirelessly to defend their client. But in
light of the import the overwhelming majority of capital jurisdictions accord to minimum
standards for capital defense counsel, it strains credibility to conclude their judgment,
efforts, and decisions were not handicapped by their own lack of training and experience.

       “Confidence in the outcome” is necessarily tied to confidence in the process by
which the outcome was reached. In reviewing counsel’s performance, we have only the
record of trial and the appellate briefs to consider. We cannot know what conversations
trial defense counsel did not have, or what avenues, tactics or strategies were never
considered in light of their inexperience and lack of training.

      This proceeding was defended by inexperienced counsel, presided over by a trial
judge with no capital experience, in a jurisdiction that has little experience in trying

Lawyers (NACDL) entitled, “Making the Case for Life,” which focused on “jury selection, developing mitigation
evidence, and working mitigation into the findings case.”




                                                     141                                  ACM 36785 (recon)
capital cases. 61 If we are to “remain vigilant as to the quality of representation provided
servicemembers in capital cases in the military justice system,” we cannot ignore the trial
practice in the overwhelming majority of our Nation’s capital jurisdictions. We cannot
dismiss the cumulative wisdom and experience of those jurisdictions as we review the
capital practice in the military justice setting generally, and in this case specifically. In
light of the attorney qualification standards that guide capital defense across the Nation,
and in light of these trial defense counsel’s performance, my confidence in the process
that brought about the outcome, and in the outcome itself, is undermined.

        Exercising vigilance, as commended by our superior court, we can find a number
of avenues which could be pursued to ensure capital courts-martial are defended by the
high standards the rest of the Nation demands. I suggest, and invite my colleagues’
concurrence, that the most prudent and efficient course of action would be for the
services to adopt the “learned counsel” capital defense counsel standards already
established for other Federal jurisdictions. 62 Understandably, given the limited capital
practice of the services, it may prove difficult for the service TJAGs to train and retain
military counsel who meet this “learned counsel” criteria. It would seem a cooperative
effort between the services, the Federal Office of Defender Services, and the Federal
Death Penalty Resource Counsel Project, may provide the services with access to capital
certified counsel already employed by the federal government.

       As guardians of justice, we ought not sit idly by and allow servicemembers to be
represented at a capital trial with any less vigor or expertise than that accorded to the rest
of our Nation’s populace. While our courts do show deference to military commanders
and the chain of command in many aspects of military discipline and military affairs,
such deference is not unlimited. In the matter of a capital trial, I am unable to conceive a
reasonable argument supporting such disparity, or even potential for such disparity, in
defense representation standards applied to courts-martial as compared to civilian
jurisdictions.


                 FOR THE COURT


                 STEVEN LUCAS
                 Clerk of the Court


61
    See The U.S. Military Death Penalty, Death Penalty Information Center, http://www.deathpenaltyinfo.org/us-
military-death-penalty#facts (last visited May 27, 2014) (since 1984 there have been 47 capital courts-martial
resulting in 15 adjudged death sentences).
62
   See 18 U.S.C. §§ 3005, 3599; Administrative Office of the United States Courts, Guide to Judiciary Policies and
Procedures, Vol. 7, Pt. A, Ch. 6, §§ 620.10.10, 620.30.




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