                       UNITED STATES, Appellee

                                    v.

                       Hasan K. AKBAR, Sergeant
                         U.S. Army, Appellant

                              No. 13-7001

                       Crim. App. No. 20050514

       United States Court of Appeals for the Armed Forces

                       Argued November 18, 2014

                       Decided August 19, 2015

OHLSON, J., delivered the opinion of the Court, in which STUCKY
and RYAN, JJ., joined. BAKER, J., filed a separate dissenting
opinion, in which ERDMANN, C.J., joined.

                                 Counsel

For Appellant: Lieutenant Colonel Jonathan F. Potter and Major
Aaron R. Inkenbrandt (argued); Colonel Kevin Boyle and Major
Jacob D. Bashore (on brief).

For Appellee: Major Kenneth W. Borgnino and Captain Janae M.
Lepir (argued); Colonel John P. Carrell, Lieutenant Colonel
James L. Varley, and Captain Carrie L. Ward (on brief); Captain
Chad M. Fisher.

Amicus Curiae for Appellant: Andrea D. Lyon, Esq. -- for
National Association of Criminal Defense Lawyers (on brief).

Military Judges:    Dan Trimble, Patrick J. Parrish, and Stephen
R. Henley



       This opinion is subject to revision before final publication.
United States v. Akbar, No. 13-7001/AR

     Judge OHLSON delivered the opinion of the Court.

     Contrary to his pleas, a panel of officer and enlisted

court-martial members convicted Appellant of attempted murder

(three specifications) and premeditated murder (two

specifications), in violation of Articles 80 and 118, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 918 (2000).

The fifteen-member panel sentenced Appellant to death.   The

convening authority approved the adjudged sentence, and the

United States Army Court of Criminal Appeals (CCA) affirmed the

findings and sentence.    United States v. Akbar, No. ARMY

20050514, 2012 CCA LEXIS 247, at *102, 2012 WL 2887230, at *32

(A. Ct. Crim. App. July 13, 2012) (unpublished).   Appellant’s

case is now before us for mandatory review under Article

67(a)(1), UCMJ, 10 U.S.C. § 867(a)(1) (2012).

                         Overview of the Case

     The evidence adduced at trial showed that on the night of

March 22, 2003, as American armed forces were preparing to

launch Operation Iraqi Freedom from their staging area in

Kuwait, Appellant threw grenades into three of the tents of his

fellow servicemembers and opened fire with his M-4 rifle,

killing two military officers and wounding fourteen others.    The

ensuing investigation revealed that Appellant previously had

written in his diary of his intent to “kill as many of [his




                                  2
United States v. Akbar, No. 13-7001/AR

fellow servicemembers] as possible” as soon as he arrived in

Iraq.

        Although Appellant raises a number of issues for review,

the gravamen of his appeal focuses on whether his attorneys

provided ineffective assistance of counsel.    The Supreme Court

has set a high bar for an appellant to prevail on such a claim.

Specifically, the seminal case of Strickland v. Washington,

466 U.S. 668 (1984), requires an appellant to show that:      (1)

his counsel’s performance fell below an objective standard of

reasonableness; and (2) the counsel’s deficient performance

gives rise to a “reasonable probability” that the result of the

proceeding would have been different without counsel’s

unprofessional errors.    Id. at 688, 694.   Upon analyzing both

the law and the facts in this case, we conclude that Appellant

has failed to meet either of these requirements established by

the Supreme Court.

        In regard to the first prong of Strickland, we first note

that Appellant was represented by two experienced military

attorneys who devoted more than two years to preparing and

presenting the defense in this case.    With the benefit of

appellate hindsight, we could dissect every move of these trial

defense counsel and then impose our own views on how they could

have handled certain matters differently and, perhaps, better.

However, that is not the standard of review we are obligated to



                                   3
United States v. Akbar, No. 13-7001/AR

apply.   Rather, based on long-standing precedent from the

Supreme Court, we are required to be “highly deferential” in our

review of counsel’s performance, and we must presume that

counsel “rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.”

Id. at 689, 690.   We also are constrained by the principle that

strategic choices made by trial defense counsel are “virtually

unchallengeable” after thorough investigation of the law and the

facts relevant to the plausible options.   Id. at 690-91.

     Concerning this last point, we are particularly mindful

that many of the steps that were taken -- or not taken -- by

trial defense counsel in the instant case, and that are now

under scrutiny in this appeal, were the result of trial defense

counsels’ strategic decision to conduct the case in a manner

that avoided introduction of additional damaging information

about Appellant.   Specifically, trial defense counsel

successfully sought to shield from the court-martial panel

details about Appellant’s alleged stabbing of a military police

officer (MP), just days before Appellant’s court-martial began.

We conclude that trial defense counsel reasonably believed that

the admission of such evidence would have seriously undermined

their ability to convince the panel members during sentencing

that Appellant had rehabilitative potential, and thus should not

be sentenced to death.   For this and other reasons discussed in



                                 4
United States v. Akbar, No. 13-7001/AR

greater detail below, we conclude that the performance of trial

defense counsel was not “measurably below the performance

standards ordinarily expected of fallible lawyers.”   United

States v. Davis, 60 M.J. 469, 474 (C.A.A.F. 2005).

     In regard to the second prong of the ineffective assistance

of counsel test, several reasons convince us that there was no

reasonable probability that the panel members would have

acquitted Appellant or sentenced Appellant to something less

than the death penalty had trial defense counsel presented their

case in the manner now urged on appeal.   First, Appellant’s

murder of Army Captain (CPT) Christopher Seifert and Air Force

Major (MAJ) Gregory L. Stone, and his attempted murder of other

officers of the United States armed forces, was premeditated.

Second, prior to committing this offense, Appellant had written

incriminating passages in his diary, such as:   “I may have to

make a choice very soon about who to kill. . . . I will have to

decide if I should kill my Muslim brothers fighting for Saddam

Hussein or my battle buddies”; and, “I am not going to do

anything about it as long as I stay here.   But as soon as I am

in Iraq I am going to kill as many of [my fellow servicemembers]

as possible.”   Third, Appellant committed this attack in Kuwait

at the start of Operation Iraqi Freedom in an effort to hobble

the American military’s ability to prevail in battle.   Fourth,

Appellant was thirty-one years old at the time he committed the



                                 5
United States v. Akbar, No. 13-7001/AR

offenses, had served in the United States Army for just under

five years, and had attained the rank of sergeant.   Fifth, both

the sanity board and many of Appellant’s own experts concluded

that Appellant was not suffering from a severe mental disease or

defect at the time he committed the offense or at the time of

testing.   Sixth, Appellant was not intellectually deficient, as

demonstrated by his engineering degree from a well-known

university and his “extremely high, superior IQ.”    And finally,

even assuming that all of the information now provided by

appellate defense counsel is true, we conclude that Appellant’s

additional mitigation evidence is not sufficiently compelling to

establish a substantial likelihood that the court-martial panel

would have imposed a different sentence.   See Cullen v.

Pinholster, 131 S. Ct. 1388, 1410 (2011); see also United States

v. Kreutzer, 61 M.J. 293, 300 (C.A.A.F. 2005) (noting that

“overwhelming evidence of guilt may present an insurmountable

obstacle to an appellant claiming prejudice from ineffective

assistance of counsel”).   Based on these factors and others

discussed below, we conclude that if there ever was a case where

a military court-martial panel would impose the death penalty,

this was it.

     Since Appellant can establish neither deficient performance

nor prejudice, we conclude that Appellant cannot prevail on his

claims of ineffective assistance of counsel.   We further



                                 6
United States v. Akbar, No. 13-7001/AR

conclude that Appellant’s other assignments of error are

similarly without merit.    Accordingly, we affirm the lower

court’s decision.

                                I.   Facts

                           A.   The Offenses

     In March 2003, soldiers from the 1st Brigade, 101st

Airborne Division, were stationed at Camp Pennsylvania, Kuwait,

preparing to begin Operation Iraqi Freedom.       On the night of

March 22, Appellant was guarding grenades with another soldier.

When Appellant was left alone, he stole seven grenades:       four M-

67 fragmentation grenades and three M-14 incendiary grenades.

The brigade was scheduled to cross the border from Kuwait into

Iraq in the next few days.

     Before movement and while most of the brigade slept,

Appellant took a fellow soldier’s body armor and then walked to

the tents of the brigade officers.       He shut off the generator

for the outdoor lighting to the tent area, plunging it into

darkness.   Appellant then threw one incendiary and one

fragmentation grenade into Tent 1, where the brigade commander

(Colonel (COL) Frederick Hodges), brigade executive officer (MAJ

Ken Romaine), and brigade sergeant major (Command Sergeant Major

(CSM) Bart Womack) were sleeping.        When MAJ Romaine emerged from

the tent, Appellant shot him, severely injuring, but not

killing, him.



                                     7
United States v. Akbar, No. 13-7001/AR

     Appellant then moved to Tent 2 where several officers and

two interpreters were sleeping and threw two fragmentation

grenades into the tent.   Many of the officers were injured from

the shrapnel, and MAJ Gregory Stone was killed from eighty-three

shrapnel wounds.

     Appellant finally moved to Tent 3, which housed sixteen

officers, and threw a fragmentation grenade into the tent, which

injured multiple officers.   When CPT Christopher Seifert exited

the tent, Appellant shot him in the back at close range, causing

CPT Seifert to bleed to death.

     In the midst of the military’s response to the attacks, the

brigade S-2, MAJ Kyle Warren, learned from COL Hodges that

Appellant may have attacked Camp Pennsylvania.   MAJ Warren found

Appellant and tackled him to the ground.    When MAJ Warren asked

Appellant if he had attacked the tents, Appellant responded,

“Yes.”

     At the time of apprehension, Appellant was in possession of

one fragmentation grenade and two incendiary grenades along with

three empty incendiary grenade canisters.   His weapon, an M-4

rifle, had been recently fired.   Ballistics testing matched the

bullets from Appellant’s firearm with those that had wounded MAJ

Romaine and killed CPT Seifert.   Appellant also had M-14 and M-

67 grenade residue on his uniform and hands.    His fingerprints

were on the switch to shut off the generator.



                                  8
United States v. Akbar, No. 13-7001/AR

                    B.   The Trial Defense Team

     Following the March 2003 Camp Pennsylvania attack,

Appellant was initially represented by MAJ Daniel Brookhart, CPT

David Coombs, CPT Jackie Thompson, and Lieutenant Colonel (LTC)

Victor Hansen.   Of these counsel, LTC Hansen was the most

experienced because he had served as a trial counsel, senior

trial counsel, and chief of military justice, as well as a

professor of criminal law at what is now known as the Army Judge

Advocate General’s Legal Center and School (LCS).   He also had

served as the lead trial counsel for a fact-finding hearing in a

capital case, United States v. Murphy.   Given this experience,

LTC Hansen served as lead counsel.

     Although LTC Hansen had the most capital experience among

the group, the other counsel were also well-qualified judge

advocates.   Because Appellant’s claims of ineffective assistance

of counsel mostly concern MAJ Brookhart and CPT Coombs, we

describe their qualifications in some detail.

     MAJ Brookhart had served as a judge advocate for

approximately eleven years before the pretrial hearings began

for Appellant’s court-martial.   He had earned a master of laws

in military law from the LCS with a specialty in criminal law.

MAJ Brookhart had tried seventy-five cases as trial counsel or

senior defense counsel, including fifteen contested trials

involving serious offenses.   He had dealt with expert witnesses,



                                 9
United States v. Akbar, No. 13-7001/AR

including mental health experts.      He had been a government

appellate counsel for a year, during which time he attended the

capital litigation course held by the Naval Justice School.       He

took this course so that he could handle the capital case of

United States v. Kreutzer.    He also had participated in the

trial counsel assistance program which provided him with

litigation training.    Additionally, MAJ Brookhart had served as

branch chief at the government appellate division where he

participated in strategy sessions for the Murphy capital case,

and reviewed and edited the brief in the Kreutzer capital case.

MAJ Brookhart had argued seven cases before this Court and seven

cases at the CCA.

     CPT Coombs had served as a judge advocate for approximately

seven years before his appearance as counsel at Appellant’s

pretrial hearing.   During this time, CPT Coombs had served for

more than two years as a trial counsel and for nearly four years

as a defense counsel.   CPT Coombs had tried seventy-eight cases,

fifteen of which were contested.      He had worked with expert

witnesses, including forensic psychiatrists.     CPT Coombs also

had attended a week-long death penalty course in September 2003.

In preparation for Appellant’s case, both counsel consulted

capital resources to include motions in other capital cases, law

review articles, and materials from a capital litigation course.




                                 10
United States v. Akbar, No. 13-7001/AR

        In addition to these two attorneys, the trial defense team

also included a forensic psychiatrist, Dr. Walker, and a

neuropsychologist, Dr. Clement, who both started working on the

case in May 2003.    Dr. Walker was used to assist the defense in

understanding Appellant’s mental status at the time of the crime

and the trial, to help prepare a sentencing case, and to observe

the Rule for Courts-Martial (R.C.M.) 706 board.    Dr. Clement

conducted neuropsychological tests on Appellant for the benefit

of other defense experts.    A forensic DNA expert joined the

defense team in June 2003 to observe Government testing of key

evidence.

        Initially the attorney workload was divided as follows.

MAJ Brookhart focused on findings issues, CPT Coombs took the

lead on motions, CPT Thompson contacted potential witnesses

while deployed in Iraq, and LTC Hansen worked mitigation issues.

The strategy was to use the services of a mitigation specialist,

Ms. Deborah Grey, early in the process in order to uncover and

develop information that could be used to avoid a capital

referral and to submit an offer to plead guilty.    LTC Hansen

advised Appellant that an offer to plead guilty would be the

best way to avoid a capital referral.    On two occasions,

Appellant agreed to this strategy, but he ultimately changed his

mind.




                                  11
United States v. Akbar, No. 13-7001/AR

     In furtherance of the mitigation strategy, Ms. Grey began

her work in August 2003 and was authorized to perform 400 hours

of mitigation work.   LTC Hansen and Ms. Grey traveled to

Appellant’s childhood neighborhoods where they interviewed

friends, family members, and associates, including Appellant’s

childhood imam, Appellant’s brother, high school teachers and

administrators, and college professors and administrators.       Ms.

Grey provided the defense team with detailed written summaries

of these interviews and also collected school, medical,

employment, military, and other official records.

     Appellant’s mother, whom counsel described as having an

emotional and mental influence over Appellant, did not agree

with LTC Hansen’s strategies or the mitigation efforts.     In

December 2003, Appellant’s mother sent a letter to MAJ

Brookhart, informing him that she had asked her son to fire LTC

Hansen and CPT Thompson because she did not trust them, in large

part because they were encouraging Appellant to plead guilty.

As a result, at his mother’s behest, Appellant released LTC

Hansen, the defense’s most experienced capital litigator, as

well as CPT Thompson, in January 2004.

     To replace the dismissed military counsel, Appellant, with

his mother’s encouragement, retained as lead counsel two

civilian attorneys, Mr. Musa Dan-Fodio and Mr. Wazir Ali-

Muhammad Al-Haqq, at different times in the pretrial



                                12
United States v. Akbar, No. 13-7001/AR

proceedings.   Neither attorney had capital litigation experience

nor military justice experience.      As the first civilian lead

counsel, Mr. Dan-Fodio changed trial strategy to try to get

Appellant’s case transferred to the United Nations Human Rights

Commission or another international forum or, alternatively, to

focus on self-defense, defense-of-others, duress, and

Appellant’s innocence.

     Mr. Dan-Fodio subsequently withdrew from the case and was

replaced by Mr. Al-Haqq in the spring of 2004.     This left

Appellant with three counsel -- Mr. Al-Haqq, MAJ Brookhart, and

CPT Coombs.    Mr. Al-Haqq became lead counsel and focused on an

insanity defense.   For this purpose, in June 2004, the defense

team retained Dr. George Woods Jr., a neuropsychiatrist and

forensic psychiatry expert.   By this point, the defense team

also had obtained the assistance of a ballistics and gunshot

powder residue expert, a certified latent print examiner, and a

pathologist to review physical and scientific evidence.

     Around the time Appellant retained Mr. Al-Haqq as lead

counsel, Ms. Grey was informed in early May 2004 that her

services as a mitigation specialist were no longer needed

because Appellant’s mother refused to permit Ms. Grey to

interview her or anyone else in her family.     At the time of her

withdrawal, Ms. Grey estimated that approximately 200 hours

would be needed to complete the mitigation case.



                                 13
United States v. Akbar, No. 13-7001/AR

        In August 2004, Mrs. Scharlette Holdman replaced Ms. Grey

as the defense team’s mitigation specialist, and she was

authorized to conduct seventy-five hours of interviews of

Appellant’s family members.    When Mrs. Holdman withdrew for

medical reasons, Ms. Scarlet Nerad replaced her in September

2004.    The Government authorized Ms. Nerad to conduct 368 hours

of mitigation investigation and 198 hours of base-level

investigation.    Ms. Nerad interviewed Appellant, his father,

mother, sisters, brother, half-brother, grandfather, aunts,

uncles, and cousins.    She also collected thousands of pages of

documents, including court records, medical records of Appellant

and his relatives, and education records of Appellant’s

siblings.

        When Mr. Al-Haqq stopped receiving payments from Appellant,

he ceased working on the case in August 2004.    He informed

counsel he was withdrawing in late February 2005, but military

counsel had anticipated this announcement and had worked to

prepare Appellant’s case for trial accordingly.    MAJ Brookhart

and CPT Coombs were now left as Appellant’s trial defense

counsel.    By the start of the court-martial, the defense team

already had managed to file nearly sixty motions on multiple

topics, including many of the issues raised in this appeal.




                                  14
United States v. Akbar, No. 13-7001/AR

                         C.   Trial Proceedings

        Following numerous continuances, Appellant’s trial was

scheduled to begin on April 6, 2005, 744 days after Appellant’s

attack on Camp Pennsylvania.     However, on March 30, 2005,

Appellant allegedly found a pair of scissors in the office of

the staff judge advocate and used them to stab an MP in the

neck.    Appellant also allegedly tried to seize the MP’s firearm

before being subdued by another MP.1     Following the incident, the

military judge, upon trial defense counsels’ motions, reopened

the R.C.M. 706 sanity board and preliminarily prevented the

Government from referencing the stabbing incident.     The sanity

board deemed Appellant competent to stand trial.

        Following the alleged scissors attack, trial defense

counsel did not seek a delay in the start of the trial in a

successful effort to preclude the Government from having the

opportunity to refer additional charges against Appellant.

Thus, trial proceedings began, as scheduled, on April 6, 2005.

Twenty members were detailed to the venire pool.     Following two

days of voir dire, a fifteen-member panel consisting of nine

officers and six enlisted soldiers was selected after the

defense successfully challenged one member for cause and the



1
  Appellant was not charged in the stabbing incident. Also, as
discussed below, Appellant’s counsel successfully prevented the
panel from considering this incident during the sentencing phase
of Appellant’s trial.

                                   15
United States v. Akbar, No. 13-7001/AR

Government successfully challenged three members for cause and

used one peremptory challenge.

     The Government’s case on the merits lasted four days and

involved forty witnesses who mostly testified about the Camp

Pennsylvania attack on March 22, 2003.   When witnesses had

information about Appellant, trial defense counsel cross-

examined them, eliciting information about Appellant’s unfocused

state in the period leading up to the attack, his daydreaming,

his sleep problems and tendency to fall asleep at inappropriate

times, his long periods of silence, his laughing and smiling

without reason, and his tendencies to pace and talk to himself.

Trial defense counsel also elicited through cross-examination

that Appellant had heard servicemembers joking about and using

derogatory terms for Muslims.

     Besides witness testimony, the Government’s case involved

admission of these entries from Appellant’s diary:

          I may have not killed any Muslims, but being in
     the Army is the same thing. I may have to make a
     choice very soon about who to kill.

          I will have to decide if I should kill my Muslim
     brothers, fighting for Saddam Hussein, or my battle
     buddies.

          I’m hoping to get into a position so I don’t have
     to take any crap from anyone anymore.

     For the defense case on the merits, counsels’ strategy was

two-fold:   (1) to present evidence establishing diminished

mental capacity so as to raise doubt about Appellant’s ability


                                 16
United States v. Akbar, No. 13-7001/AR

to premeditate; and (2) to “frontload” mitigation evidence

during the merits stage of the trial.    As part of this strategy,

trial defense counsel elicited testimony from nine defense

witnesses.

     Dr. Fred Tuton was a clinical psychologist who had examined

Appellant at the age of fourteen after allegations surfaced

about Appellant’s sister being sexually abused by Appellant’s

stepfather.   Dr. Tuton testified that Appellant displayed no

normal emotions during the meeting and reported having sleep

problems and not being able to trust people.   Dr. Tuton

diagnosed Appellant with an adjustment disorder with depressed

mood associated with a mixed specific developmental disorder.

     Mr. Paul Tupaz, Appellant’s college roommate, testified

about his friendship with Appellant which lasted until 1994.

According to Mr. Tupaz, Appellant had difficulty sticking to his

plans, was not very social and spent time by himself, “paced a

lot,” talked to himself, and had difficulty sleeping.

     Members of Appellant’s unit and unit leadership testified

about Appellant’s poor work performance, his isolation from

others, his pacing and talking to himself, his sleeping

difficulties, and his laughing and smiling at inappropriate

times.   One servicemember testified about military personnel

using derogatory names regarding Muslims in Appellant’s

presence.



                                17
United States v. Akbar, No. 13-7001/AR

     The testimony of Dr. Woods, Appellant’s expert in forensic

psychiatry, revealed a family history of mental illness,

particularly a maternal uncle with psychiatric problems, a

father with depression, and a half-brother with paranoia.    Dr.

Woods explained that Appellant had come from an “extremely

poverty-stricken home” and had an “extraordinarily abusive”

stepfather.   Additionally, he noted that Appellant’s mother had

been homeless.   Dr. Woods reported that test scores revealed

Appellant to be suffering from depression, paranoia,

impulsivity, sleep problems, and bizarre thinking, which Dr.

Woods believed was corroborated by Appellant’s diary entries and

academic history.   Dr. Woods further testified that Appellant

had difficulty picking up social cues, perceiving situations,

and differentiating reality.

     Although Dr. Woods could not provide a definitive

diagnosis, he provided three “differential”2 diagnoses:

(1) schizotypal disorder; (2) schizophrenia paranoid type; and

(3) schizoaffective disorder.   Dr. Woods believed that

Appellant’s symptoms affected him on March 22, 2003, by causing

him to be overwhelmed emotionally and preventing him from

thinking clearly.




2
  According to Dr. Woods, a differential diagnosis is based upon
an individual’s symptoms and provides the possible disorders
that would be consistent with the symptoms.

                                18
United States v. Akbar, No. 13-7001/AR

     In closing argument, trial defense counsel argued that the

evidence showed that Appellant had a mental illness at the time

the attack occurred, and that the Government had therefore

failed to meet its burden of proving premeditation.   Counsel

explained that Appellant’s mental illness caused him to become

emotionally charged, which in turn led Appellant to react out of

confusion and fear.   Throughout the closing, counsel argued that

Appellant’s actions did not represent “good planning,” “just

confusion.”

     Despite the defense case and counsel’s closing argument,

the panel members returned a guilty verdict on the premeditated

murder and attempted murder charges.   The case then moved to the

sentencing phase.

     The Government’s presentencing case lasted one-and-a-half

days and included the testimony of twenty-one witnesses.     COL

Hodges, the brigade commander, testified about the impact of the

attack on the brigade’s battle readiness.   In response to a

question about the psychological impact of Appellant’s attack,

COL Hodges stated that he “hated” that a “fragging had occurred”

in his unit, noting that in reflecting on the “worst days for

the United States Army, at the end of Vietnam, the two things

that [came] to mind [were] heavy drug use and fraggings.”3


3
  A fragging is an incident in which an individual “deliberately
injure[s] or kill[s] (one’s military leader) by means of a
fragmentation grenade.” Merriam-Webster Unabridged Online

                                19
United States v. Akbar, No. 13-7001/AR

     Other servicemember victims testified about the impact of

their injuries, the psychological impact of the attack, the

impact on their military careers, their memories of the deceased

victims, and their reactions upon learning that the attacks were

by a fellow servicemember.   As to this last point, the

servicemember victims testified about feeling “disbelief,”

“distrust,” “shock[],” “betrayed,” “[e]xtremely frustrated,

angry,” “pissed,” and “confused.”

     Colleagues of the victims also testified about feeling

“anger,” “disbelief,” and “betrayal” upon learning another

servicemember was responsible.   Finally, the deceased victims’

family members and friends testified about the impact of losing

CPT Seifert and MAJ Stone.

     Prior to the start of Appellant’s presentencing case, the

defense admitted a binder containing fifteen exhibits:

(1) Appellant’s entire diary (313 pages); (2) the FBI’s written

synopsis of the diary (nine pages); (3) Ms. Grey’s mitigation

report showing Appellant’s family tree, Appellant’s personal

history, and a summary of Appellant’s diary (thirty-three

pages); (4) government records reflecting Appellant’s family’s

use of food stamps from 1986-1994 (nineteen pages); (5) the

search and seizure authorization for Appellant’s military e-mail




Dictionary, http://unabridged.merriam-
webster.com/unabridged/fragging (last visited Aug. 14, 2015).

                                 20
United States v. Akbar, No. 13-7001/AR

account (one page); (6) definitions of relevant Islamic terms

(eight pages); (7) Appellant’s paperwork for his name change

(four pages);4 (8) Ms. Grey’s interview notes from a high school

guidance counselor (one page); (9) Ms. Grey’s interview notes

from a high school teacher (two pages); (10) Ms. Grey’s

interview notes from the high school college advisor and

photographs of the high school (six pages); (11) another

mitigation specialist’s interview notes with the ex-wife of

Appellant’s college roommate (two pages); (12) a memorandum from

a servicemember in Appellant’s platoon (three pages); (13) a

memorandum of the equal opportunity advisor for the brigade

(four pages); (14) Ms. Grey’s interview notes with Appellant’s

childhood imam and three photographs of Appellant’s childhood

mosque (six pages); and (15) the criminal records for

Appellant’s stepfather (four pages).

     Before providing each member with a binder, the military

judge instructed the members that once the trial recessed for

the day, they would be provided defense exhibits to read at home

or work.   The military judge added that the members were not to

conduct independent research, discuss the exhibits with anyone,

or copy the exhibits.



4
  Appellant’s birth name was Mark Fidel Kools. His parents
became members of the Nation of Islam, and Appellant’s name was
changed to Hasan Karim Akbar when Appellant was eight years old.
Appellant enlisted in the Army under his birth name. However,

                                21
United States v. Akbar, No. 13-7001/AR

     The following morning, the defense presented its case in

mitigation.   The defense presented testimony from CPT David

Storch (one of Appellant’s former platoon leaders), SFC Daniel

Kumm (the platoon sergeant for 2nd Platoon), and Mr. Dan Duncan

(Appellant’s high school physics teacher).    CPT Storch testified

about Appellant’s termination from his platoon and Appellant’s

problems as a noncommissioned officer (NCO), including

difficulties relating well with soldiers, needing detailed

guidance to perform tasks, and performing in an increasingly

unsatisfactory manner over time.     SFC Kumm testified about

Appellant being a “below average” NCO, being a soldier he did

not want to take to Iraq, and being assigned the task of

guarding grenades on March 22, 2003, at Camp Pennsylvania in

Kuwait.   Mr. Duncan testified about the “very poor, low

socioeconomic, high crime,” and gang-ridden area where

Appellant’s high school was located.    He described Appellant as

an “excellent student” who was memorable for trying to learn

material and being in “the top 5 to 10” students whom Mr. Duncan

had ever taught at the high school.    Mr. Duncan described

Appellant as living in “a drab apartment building in a rather

depressed area.”   After Mr. Duncan’s testimony, the military

judge recessed for the day “because of some witness travel




he petitioned to change his name to Hasan Akbar in June 2001,
and the Army finalized the name change in September 2001.

                                22
United States v. Akbar, No. 13-7001/AR

schedules,” and for a second day he permitted the members to

take the defense-created binders home with them.

     On the final morning of the defense’s presentencing case,

the defense offered into evidence and distributed to the members

copies of two statements:   one from Ms. Regina Weatherford,

Appellant’s former high school classmate, and one from

Appellant’s brother.   Ms. Weatherford’s statement described

Appellant’s academic success in high school and his tendency to

sit by himself during high school.   The brother’s statement

described how Appellant helped raise him, how Appellant

financially helped the family, and how Appellant had trouble

falling in love too quickly with women.   Defense counsel agreed

with the military judge that they had decided for “sound

tactical reasons” not to call Ms. Weatherford or Appellant’s

parents to testify.

     The final piece of Appellant’s sentencing case was his

unsworn statement before the members of the court-martial panel.

Appellant took the stand and explained that he had decided not

to read the six-page statement that he previously had prepared

because he felt that it sounded “like an excuse.”   Instead, he

said, “I want to apologize for the attack that occurred.    I felt

that my life was in jeopardy, and I had no other options.   I

also want to ask you to forgive me.”




                                23
United States v. Akbar, No. 13-7001/AR

        During trial defense counsel’s sentencing argument, counsel

emphasized that the Government’s argument was “based upon

emotion,” and that emotion should not be used when deciding

whether to impose the death penalty.    He argued for life without

parole “based upon logic and reason.”    Counsel cited Appellant’s

mental illness, noting that the diary provided “a unique look

into [Appellant’s] mind.”    Counsel also cited Appellant’s sleep

problems as negatively affecting his ability to think.       Counsel

further noted the command’s responsibility, as part of a “band

of brothers,” to ensure poor performers or those with mental

illness did not deploy and did not remain as members of the

Army.    Counsel then cited Appellant’s difficult upbringing and

school environment.    Counsel ultimately returned to and

emphasized Appellant’s mental illness as the cause of the lethal

events at Camp Pennsylvania.

        The military judge provided the panel members with

instructions on the procedures that must be used during

deliberations in capital cases.    Specifically, the military

judge instructed the members that in order for them to impose

the death penalty:    (1) they had to unanimously find beyond a

reasonable doubt that an aggravating factor existed; (2) they

had to unanimously find that the extenuating and mitigating

factors were “substantially outweighed” by the aggravating

circumstances; and (3) they had to reach the decision to impose



                                  24
United States v. Akbar, No. 13-7001/AR

death unanimously based on each member’s individual decision.

The military judge listed thirty-one mitigating factors but

explained that they were not the exclusive factors that the

members could consider.   Trial defense counsel explicitly stated

that he did not object to these instructions.

     The members then began their deliberations.     Approximately

six hours later, the military judge held an Article 39(a), UCMJ,

10 U.S.C. § 839 (2012), hearing to discuss this note from the

members:   “Sir, reconsideration has been proposed.”   The

military judge proposed to the parties that he use

reconsideration instruction 2-7-19 from the Military Judges’

Benchbook (Benchbook), and the parties agreed.5    Appellant never

raised an objection to the instruction.   Following additional



5
  The reconsideration instruction explained the process for the
members to revote after reaching a sentence if a member proposed
reconsideration, noting that the process was different depending
on whether the proposal to reconsider related to increasing or
decreasing the sentence. The instruction outlined the following
process for determining whether the panel could reconsider and
revote the sentence: (1) if the proposal was to increase the
sentence, a majority of members had to vote by secret ballot in
favor of reconsideration; (2) if the proposal was to decrease
the sentence, one-fourth of the members had to vote in favor of
reconsideration with a view to decrease the sentence; and (3) if
the sentence reached was death, only one member vote was
required to reconsider the sentence. If the required votes were
not obtained for reconsideration, the instruction informed the
members that they were to announce the original sentence without
indicating whether it was the original or reconsidered sentence.
But, if a sufficient number of votes were obtained for
reconsideration, the instruction required the members to adhere
to the military judge’s original instructions for proposing and
determining an appropriate sentence.

                                25
United States v. Akbar, No. 13-7001/AR

deliberations, the president of the panel announced that the

members had unanimously determined that an aggravating factor

had been proven beyond a reasonable doubt, and that the matters

in mitigation and extenuation were “substantially outweighed” by

the aggravating circumstances.    The president then announced

that the members had voted unanimously that Appellant should be

“put to death.”

                            II.   Analysis

     Appellant’s counsel has assigned a total of fifty-nine

issues for this Court to consider.     Appellant also has

personally presented a number of additional matters for us to

consider pursuant to United States v. Grostefon, 12 M.J. 431

(C.M.A. 1982).6    After careful review, we conclude that a

majority of the assigned issues and all of the personally

asserted issues do not have merit and therefore warrant no

additional discussion.    However, we deem it appropriate to

address below twenty-one assigned matters, starting with

Appellant’s ineffective assistance of counsel claims.

                  A. Ineffective Assistance of Counsel

     Appellant challenges the effectiveness of trial defense

counsels’ performance at all stages of the pretrial and trial



6
  The assigned issues and personally asserted Grostefon issues,
which we permitted Appellant to submit out of time, United
States v. Akbar, 73 M.J. 242 (C.A.A.F. 2014) (order), are listed
in the Appendix to this decision.

                                  26
United States v. Akbar, No. 13-7001/AR

proceedings.7   We review these ineffective assistance of counsel

claims de novo.    See United States v. Datavs, 71 M.J. 420, 424

(C.A.A.F. 2012).   To prevail, Appellant “must show that

counsel’s performance was deficient, and that the deficiency

prejudiced the defense.”   Wiggins v. Smith, 539 U.S. 510, 521

(2003).   An attorney is deficient when his representation falls

“below an objective standard of reasonableness.”   Id.

     We do not measure deficiency based on the success of a

trial defense counsel’s strategy, but instead examine “whether

counsel made an objectively reasonable choice in strategy” from

the available alternatives.   United States v. Dewrell, 55 M.J.

131, 136 (C.A.A.F. 2001) (quoting United States v. Hughes,

48 M.J. 700, 718 (A.F. Ct. Crim. App. 1998)).   Similarly, we

must remain mindful that counsel have “wide latitude . . . in

making tactical decisions.”   Pinholster, 131 S. Ct. at 1406

(quoting Strickland, 466 U.S. at 689).   Thus, our scrutiny of a

trial defense counsel’s performance is “highly deferential,” and

we make “every effort . . . to eliminate the distorting effects

of hindsight, to reconstruct the circumstances of counsel’s


7
  Such challenges have become the norm in death penalty appeals
in both the civilian and military criminal justice systems. See
David D. Velloney, Balancing the Scales of Justice: Expanding
Access to Mitigation Specialists in Military Death Penalty
Cases, 170 Mil. L. Rev. 1, 18 & n.81 (2001). The vast majority
of ineffective assistance of counsel claims are unsuccessful.
See Anne M. Voigts, Note, Narrowing the Eye of the Needle:
Procedural Default, Habeas Reform, and Claims of Ineffective
Assistance of Counsel, 99 Colum. L. Rev. 1103, 1118 (1999).

                                 27
United States v. Akbar, No. 13-7001/AR

challenged conduct, and to evaluate conduct from counsel’s

perspective at the time.”      Strickland, 466 U.S. at 689.

       An appellant is prejudiced by counsel’s deficient

performance where “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 probability sufficient to undermine confidence in the

outcome.”   Strickland, 466 U.S. at 694.     In the capital

sentencing context, we “reweigh the evidence in aggravation

against the totality of available mitigating evidence” to

determine if there is a reasonable probability that the panel

would have returned a different sentence.     Wiggins, 539 U.S. at

534.

       For ease of analysis, our discussion of Appellant’s

ineffective assistance of counsel claims in the instant case is

divided into four categories:     (1) pretrial preparation;

(2) merits phase performance; (3) penalty phase performance; and

(4) cumulative error.   As we explain in detail below, we

conclude that none of these claims merits relief.

       1. Pretrial Preparation

            a. Investigation

       Trial defense counsel have “a duty to make reasonable

investigations or to make a reasonable decision that makes

particular investigations unnecessary.”     Strickland, 466 U.S. at



                                   28
United States v. Akbar, No. 13-7001/AR

691.   “[S]trategic choices made [by counsel] after thorough

investigation of law and facts relevant to plausible options are

virtually unchallengeable . . . .”      Id. at 690.   In considering

whether an investigation was thorough, “[w]e address not what is

prudent or appropriate, but only what is constitutionally

compelled.”    Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting

United States v. Cronic, 466 U.S. 648, 665 (1984)).      The Supreme

Court has “rejected the notion that the same [type and breadth

of] investigation will be required in every case.”      Pinholster,

131 S. Ct. at 1406-07 (citing Strickland, 466 U.S. at 691).

               i. Pretrial Interviews

                    A. Testifying Witnesses

       Appellant claims that trial defense counsel failed to

adequately interview and prepare two witnesses who testified at

trial -- Mr. Tupaz, Appellant’s college roommate, who testified

during the merits phase, and Mr. Duncan, Appellant’s high school

physics teacher, who testified during presentencing.      Neither

argument is persuasive.

       The record reflects that trial defense counsel contacted

Mr. Tupaz in the month prior to trial.     In a post-trial

affidavit, trial defense counsel reported interviewing Mr. Tupaz

over the telephone and reviewing draft questions for trial

preparation.    In his post-trial declaration, Mr. Tupaz did not

“remember talking to any defense attorneys prior to showing up”



                                  29
United States v. Akbar, No. 13-7001/AR

for the trial at which time Mr. Tupaz recalled speaking to trial

defense counsel.   We conclude that Mr. Tupaz’s inability to

remember talking to trial defense counsel is “too equivocal and

ambiguous to overcome the presumption that [Appellant’s] counsel

were competent.”   United States v. Key, 57 M.J. 246, 249

(C.A.A.F. 2002).   Even assuming trial defense counsel did not

interview Mr. Tupaz, counsel’s questioning of Mr. Tupaz during

trial demonstrated that counsel was adequately prepared for his

testimony.   Therefore, it cannot be said that counsels’

performance was deficient in this regard.

     Appellant now claims that Mr. Tupaz should have been asked

to testify about the likelihood that Appellant took

inappropriate comments made by members of the military about

Muslims both very literally and personally.   However, this

proffered testimony was cumulative of Dr. Woods’s testimony on

the same topic, and thus it would not have made Mr. Tupaz’s

testimony more compelling in scope or degree.

     As for Mr. Duncan, we accept Appellant’s claim that he was

not interviewed by defense counsel prior to trial.    However, we

note that trial defense counsel possessed the mitigation

specialist’s report about her own interview of Mr. Duncan, which

included facts and observations proffered by Mr. Duncan in

regard to Appellant’s high school experiences.   Further, trial

defense counsel were able to elicit testimony from Mr. Duncan



                                30
United States v. Akbar, No. 13-7001/AR

that Appellant’s high school was in a poor and dangerous

neighborhood, Appellant was “an excellent student,” and

Appellant lived in a “depressed area.”   Mr. Duncan’s post-trial

declaration contains no additional substantive information that

he would have provided had counsel interviewed him prior to his

testimony.   Therefore, Appellant has not established a

reasonable probability of a different sentence based on

counsels’ failure to interview Mr. Duncan.   We therefore reject

Appellant’s ineffective assistance of counsel claims with

respect to Mr. Tupaz’s and Mr. Duncan’s testimony.

                   B. Nontestifying Lay Witnesses

     In the course of his ineffective assistance of counsel

claims, Appellant complains that counsel failed to personally

contact or to adequately interview his father, his brother, his

sisters, his cousins, a high school friend, and a former

landlady.    In analyzing this issue, we first note that counsel

must “investigate adequately the possibility of evidence that

would be of value to the accused in presenting a case.”    United

States v. Boone, 49 M.J. 187, 196 (C.A.A.F. 1998).    Further,

generally speaking, “[e]ffective counsel will contact potential

witnesses to determine the facts” of the case.   United States v.

Fluellen, 40 M.J. 96, 98 (C.A.A.F. 1994).    However, the duty to

investigate does not require trial defense counsel to personally

interview every potential witness in a case.   See LaGrand v.



                                 31
United States v. Akbar, No. 13-7001/AR

Stewart, 133 F.3d 1253, 1274 (9th Cir. 1998).     For example,

“there comes a point at which evidence from more distant

relatives can reasonably be expected to be only cumulative” and

“distract [counsel] from more important duties.”    Bobby v. Van

Hook, 558 U.S. 4, 11 (2009).     As a result, the key point in

deciding this issue is whether counsel made a good faith and

substantive effort to identify those individuals who might be

most helpful at trial, and to implement a means for obtaining

information about and from these potential witnesses, thereby

allowing counsel an opportunity to make an informed decision

about their value for Appellant’s court-martial.    Cf. Eggleston

v. United States, 798 F.2d 374, 376 (9th Cir. 1986) (noting that

trial counsel need not interview a witness if the account is

fairly known to counsel).

     Trial defense counsel met this standard here.

Specifically, counsel developed a strategy whereby a mitigation

expert first interviewed potential witnesses and then provided

counsel with a summary of their statements.    For those family

members with relevant information, one defense counsel would

then conduct a phone interview to determine whether to select

the person as a witness.    There is nothing inherently deficient

about this strategy.

     The parties dispute whether trial defense counsel actually

interviewed certain witnesses.    For the sake of our analysis, we



                                  32
United States v. Akbar, No. 13-7001/AR

will assume that trial defense counsel did not personally

conduct interviews of any of Appellant’s family members and

friends.   The record nonetheless indisputably reflects that LTC

Hansen (when he was part of the defense team) and/or the

mitigation specialists did interview those witnesses and then

provided the defense team with summaries of those interviews.

Those witnesses included Appellant’s father, brother, sisters,

two cousins,8 a high school friend, and former landlady.    We

conclude that these summaries allowed trial defense counsel to

make informed decisions about whether to call these potential

witnesses to testify at trial.   Therefore, we do not find a

sufficient basis to conclude that they engaged in ineffective

assistance of counsel.

                  C. Nontestifying Professional/Expert Witnesses

     Appellant claims that trial defense counsel were

ineffective in failing to interview or call to testify Dr. Donna

Sachs, Appellant’s treating college psychologist, and Dr.

Wilbert Miles, a clinical psychologist.   At the outset, we note

that “[i]t can be assumed that in some cases counsel would be

deemed ineffective for failing to consult or rely on experts.”



8
  Appellant complains about counsels’ failure to interview a
third cousin, Kimberly Vines, but we agree with the Government
that her claim about having no recollection of an interview is
simply “too equivocal and ambiguous to overcome the presumption”
of counsel’s competence. United States v. Key, 57 M.J. 246, 249
(C.A.A.F. 2002).

                                 33
United States v. Akbar, No. 13-7001/AR

Harrington v. Richter, 562 U.S. 86, 106 (2011).     However, that

is not the case here.

     The record demonstrates that trial defense counsel believed

that a mitigation expert had coached or influenced Dr. Sachs’

memory of Appellant.    Regardless of whether counsels’ belief was

correct, trial defense counsels’ concern was reasonable.

Therefore, we will not second guess counsels’ tactical decision

in declining to rely on Dr. Sachs.

     We also conclude that there was no deficiency in trial

defense counsels’ decision not to rely on Dr. Miles despite his

expertise in the special challenges faced by African American

soldiers.   See Richter, 562 U.S. at 107 (noting that counsel can

formulate reasonable strategy even if it means ignoring experts

“whose insight might possibly have been useful”).    We note that

trial defense counsel already had the assistance of other mental

health professionals, including a neuropsychiatrist, a

neuropsychologist, and a forensic psychiatrist.   See United

States v. Loving, 41 M.J. 213, 250 (C.A.A.F. 1994).    “The mere

fact that [trial] defense counsel did not ‘shop around’ for

another more favorable expert [did] not render them

ineffective.”   Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir.

1992).

     Moreover, even if counsel were deficient in not having Dr.

Miles testify at trial, Appellant has not established any



                                 34
United States v. Akbar, No. 13-7001/AR

prejudice resulting from this assumed deficient performance.

First, much of the information that would have been elicited

from Dr. Miles was already obtained from Dr. Woods.    Second, we

recognize that Dr. Miles, unlike Dr. Woods, could have provided

an opinion about “how someone from [Appellant’s] background and

culture, presented with distress[ing] life experiences and [a]

history of racial oppression, may have [developed] a state of

mind that his own life was under imminent risk.”   However,

Appellant has not demonstrated that this information would have

led to a different outcome on the merits or at sentencing.    We

therefore find no merit to Appellant’s ineffective assistance

claims based on counsels’ failure to rely on Dr. Miles or Dr.

Sachs.

            ii.   Site Visits

     Appellant asserts that trial defense counsel were deficient

because they failed to travel to the locations where Appellant

grew up, which he believes hindered them from properly

interviewing witnesses and fully understanding Appellant.     The

premise of Appellant’s argument is flawed because the defense

team did conduct site visits.   Both LTC Hansen, the first lead

counsel in this case, and the mitigation specialists made site

visits to Appellant’s high school and his childhood

neighborhoods, conducted interviews with Appellant’s

acquaintances and family members, and summarized the interviews



                                35
United States v. Akbar, No. 13-7001/AR

from these visits in memoranda used by the trial defense

counsel.   We conclude that trial defense counsel acted

reasonably in opting not to repeat site visits performed by

others on the defense team.

             iii.   Use of Mitigation Experts

     Appellant next criticizes trial defense counsels’ use of

the mitigation specialists in his case, pointing to counsels’

failure to follow all of their advice as well as the purported

dysfunction in counsels’ relationship with them.     In examining

this issue, we first acknowledge the special importance of

mitigation specialists in military justice capital cases.         See

Kreutzer, 61 M.J. at 298 n.7, 302-03, 305.      Without a

“professional death penalty bar in the military services,” these

specialists are likely “the most experienced member[s] of the

defense team in capital litigation.”     Id. at 298 n.7.    The

mitigation specialists’ role is “to coordinate an investigation

of the defendant’s life history, identify issues requiring

evaluation by psychologists, psychiatrists or other medical

professionals, and assist attorneys in locating experts and

providing documentary material for them to review.”     Id. at 302

(citation and footnote omitted).      The specialists are considered

“an indispensable member of the defense team throughout all

capital proceedings.”   Id. at 305 (citation omitted).      As a

result, “mitigation specialists may play a particularly



                                 36
United States v. Akbar, No. 13-7001/AR

important role in ensuring the fair and full adjudication of

military death penalty cases where . . . counsel have little

training or experience in capital litigation.”   Id. at 303.

     In the instant case, however, we first conclude there is no

basis to find counsel ineffective for failing to always follow

the mitigation specialists’ advice.   It is counsel, not

mitigation specialists, who are entrusted with making strategic

litigation decisions in each case.    See Strickland, 466 U.S. at

689 (noting “the constitutionally protected independence of

counsel” and “the wide latitude counsel must have in making

tactical decisions”).

     Second, for purposes of this appeal we will accept the

premise that there was some dysfunction with and antipathy

toward the mitigation specialists on the part of the trial

defense counsel.   But despite these problems, the various

mitigation specialists employed in Appellant’s case performed

extensive work and gathered significant information about

Appellant’s background, upbringing, and related issues which the

trial defense counsel effectively used in the preparation and

presentation of Appellant’s case.    We particularly note the

efforts of Ms. Grey, whose nearly 400 hours of mitigation work

resulted in interviews, interview summaries, and thousands of

pages of records which were provided to trial defense counsel.

When Ms. Grey was fired by Appellant at his mother’s behest, Ms.



                                37
United States v. Akbar, No. 13-7001/AR

Grey estimated that an additional 150 to 210 hours of work was

needed to complete the mitigation investigation.   One of her

successor mitigation specialists, Ms. Nerad, performed nearly

three times this estimate by billing approximately 565 hours of

work, which resulted in additional interviews, summaries, and

records reviewed by trial defense counsel.    Therefore,

regardless of whatever dysfunction or antipathy might have

existed, the mitigation specialists were able to adequately

perform their important role by providing trial defense counsel

relevant and useful information in defending Appellant.     See

Kreutzer, 61 M.J. at 302.   Trial defense counsel then used this

information to defend Appellant both during the merits and

penalty phases of the trial in questioning witnesses and

presenting evidence.

     Finally, trial defense counsel made a reasonable strategic

decision not to have a mitigation specialist testify or be

physically present at Appellant’s trial.   Although it may be

advantageous to have a mitigation specialist actively

participate at a capital trial, it is not required.   See

Kreutzer, 61 M.J. at 305.   Moreover, the circumstances of this

case demonstrate that counsel acted reasonably in deciding not

to employ a mitigation specialist at trial.   See Pinholster,

131 S. Ct. at 1406 (“No particular set of detailed rules for

counsel’s conduct can satisfactorily take account of the variety



                                38
United States v. Akbar, No. 13-7001/AR

of circumstances faced by defense counsel . . . .”) (quoting

Strickland, 466 U.S. at 688-89).       The record demonstrates that

the appointed mitigation specialist at the time of trial, Ms.

Nerad, disagreed with a number of approaches taken by trial

defense counsel.    Under these circumstances, trial defense

counsel could reasonably conclude that the presence and

participation of the mitigation specialist at trial would not

have been beneficial.    See id. at 1407 (noting that reviewing

court must entertain the range of possible reasons for counsel’s

decisions).   Therefore, we find no basis to conclude that trial

defense counsel were ineffective in the manner in which they

used the mitigation specialists.

              iv.   Information to Dr. Woods

     Appellant claims that trial defense counsel were

ineffective for failing to provide Dr. Woods with certain

information, including sufficient mitigation evidence and

additional psychological testing data.      Appellant asserts that

this information would have allowed Dr. Woods to make a forensic

diagnosis that Appellant suffered from schizophrenia and post-

traumatic stress disorder.

     However, even if we assume Dr. Woods received none of this

material, we still find no demonstrated prejudice.      First, even

in the absence of additional information, Dr. Woods was able to

provide the panel with “differential diagnoses” of schizotypal



                                  39
United States v. Akbar, No. 13-7001/AR

personality disorder, high functioning paranoid schizophrenia,

and schizoaffective disorder.   Dr. Woods opined that on March

22, 2003, Appellant’s symptoms, “played a great role in his

mental state at the time of the offense” by “overwhelm[ing

Appellant] emotionally and to really not think as clearly, to

not really understand.”   The post-trial affidavits do not

demonstrate that Dr. Woods would have changed this opinion or

strengthened it with additional information or testing.

     Second, Dr. Woods testified that “it would really require

appropriate treatment to really determine which of the three

[differential diagnoses] would be accurate.”   (Emphasis added.)

This testimony indicates that Dr. Woods himself recognized that

he could not have given a more definitive diagnosis of

Appellant, even with more testing and mitigation information.

     Third, Dr. Woods downplayed the importance of a precise

diagnosis, stating:   (1) “The fact that it may not be called

schizophrenia or what have you is, in the long run, less

important . . . .”; and (2) “The fact that it’s not -- it may

not be called schizophrenia is not clinically relevant.”     As can

be seen then, Dr. Woods’s testimony emphasized Appellant’s

symptoms and minimized the importance of a precise diagnosis.

Under these circumstances, we conclude that Appellant has not

demonstrated any likelihood of a different outcome in this case




                                40
United States v. Akbar, No. 13-7001/AR

even if trial defense counsel had provided additional

information or testing data to Dr. Woods.

           b. Additional Funding and Continuances

     Appellant claims that trial defense counsel were

ineffective for failing to request additional funding and for

failing to seek a continuance at two separate points before

trial -- following the mitigation specialist’s request in early

March 2005, and following Appellant’s alleged stabbing of the MP

in late March 2005.   We first reject this argument because

Appellant has not carried “his burden to show that his counsel

would have been successful if he had filed . . . timely

motion[s]” for a continuance and additional funding.    United

States v. Jameson, 65 M.J. 160, 164 (C.A.A.F. 2007).    Simply

stated, there is no “reasonable probability that [the] motion[s

for a continuance and additional funding] would have been

[deemed] meritorious” by the military judge.   Id. at 163-64

(quoting United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F.

2001)).   These motions would have come a few days before and one

month before the start of trial, respectively, and after the

military judges in this case already had granted three prior

continuances in a case that was originally scheduled for trial

in July 2004.   Given the late requests and this record of delay,

which totaled more than 700 days after the Camp Pennsylvania

attack, there is an insufficient basis for us to conclude that



                                41
United States v. Akbar, No. 13-7001/AR

the military judge likely would have granted additional

continuances, see United States v. Wiest, 59 M.J. 276, 279

(C.A.A.F. 2004) (listing factors relevant for continuance), or

additional funding, see United States v. Garries, 22 M.J. 288,

291 (C.M.A. 1986) (requiring showing of why request for funds

was needed).

      We next observe that Appellant has not adequately

demonstrated that additional time or funding in early March 2005

would have resulted in a more favorable outcome in the

proceedings.   Specifically, Appellant has not demonstrated that

additional investigation would have resulted in a substantively

different or enhanced mitigation posture at trial, particularly

where approximately 1,000 hours of investigation already had

been devoted to this case.   Accordingly, Appellant has not

established that counsel were ineffective for failing to request

additional funds or a continuance in early March 2005.

      In regard to late March 2005, we also conclude that counsel

were not ineffective for deciding not to seek a continuance

after the March 30, 2005, stabbing of the MP.   The record is

clear that trial defense counsel made the strategic calculation

that a delay in the court-martial would provide the Government

with an opportunity to charge Appellant with the assault on the

MP.   Evidence admitted at trial in support of this additional

specification likely would have greatly undermined the defense



                                42
United States v. Akbar, No. 13-7001/AR

position that Appellant’s prior violent conduct was aberrational

and that Appellant had rehabilitative potential.     Therefore, we

do not conclude that trial defense counsel were ineffective for

deciding not to seek a continuance at that point in the

proceedings.

          c. Special Instruction Regarding Guilty Pleas

Appellant contends that his trial defense counsel were

ineffective for failing to seek a mitigation instruction

concerning Appellant’s inability to plead guilty.9    Indeed, we

note that before trial began, trial defense counsel withdrew a

requested instruction informing the members that because this

matter had been referred as a capital case, Article 45, UCMJ, 10

U.S.C. § 845 (2012), required Appellant to plead not guilty and

be tried before members.    However, the record shows that trial

defense counsel acted entirely reasonably in obtaining the

withdrawal of this instruction for the simple reason that

Appellant had decided not to submit an offer to plead guilty and

instead had decided to argue at trial that he had not

premeditated the attacks.   Therefore, we conclude that trial

defense counsel were not ineffective for withdrawing the

instruction.



9
  Article 45, UCMJ, states, “A plea of guilty by the accused may
not be received to any charge or specification alleging an
offense for which the death penalty may be adjudged.” Article
45(b), UCMJ, 10 U.S.C. § 845(b) (2000).

                                 43
United States v. Akbar, No. 13-7001/AR

          d. Voir Dire

     Appellant challenges trial defense counsels’ use of an “ace

of hearts” strategy during the voir dire process.10   An ace of

hearts strategy is predicated on the fact that in order for a

panel to impose a death sentence, the members must vote

unanimously to impose that sentence.   See R.C.M. 1006(d)(4).

Therefore, the strategy posits that the accused will benefit

from having the largest possible number of panel members because

that will increase the chances that at least one member of the

panel (the so-called “ace of hearts”) will vote for a sentence

other than the death penalty.   In furtherance of this strategy,

trial defense counsel in the instant case made the strategic

decision to minimize their use of peremptory challenges and

challenges for cause.

     It may be argued that the ace of hearts strategy ignores

panel dynamics whereby vocal and opinionated members hostile to

the defense position may disproportionately impact

deliberations.11   However, in light of the fact that trial



10
   Appellant also claims that counsel were ineffective for
failing to seek a change in venue. The record reflects that
counsel sought to change venue but failed to convince the
military judge of the need to do so. As a result, counsels’
attempt to change venue means that they were not ineffective for
failing to do so.
11
   See Eric R. Carpenter, An Overview of the Capital Jury Project
for Military Justice Practitioners: Jury Dynamics, Juror
Confusion, and Juror Responsibility, 2011 Army Law. 6, 8-10, 13-
16 & nn. 28, 46-47 (May 2011).

                                 44
United States v. Akbar, No. 13-7001/AR

defense counsel consulted with other experienced attorneys and

relied on an appellate military judge’s concurring opinion in

United States v. Simoy, 46 M.J. 592, 625 (A.F. Ct. Crim. App.

1996) (Morgan, J., concurring), rev’d in part on other grounds

by 50 M.J. 1 (C.A.A.F. 1998), before deciding to employ this

strategy, we conclude that their decision is “virtually

unchallengeable.”   United States v. Curtis, 44 M.J. 106, 119

(C.A.A.F. 1996) (quoting Strickland, 466 U.S. at 690).12

Therefore, we conclude that there was no ineffective assistance

of counsel.

     2.   Merits Phase

     Appellant claims that trial defense counsel were

ineffective for conceding guilt in opening statement, during the

defense case on the merits, and in closing argument.    However,

Appellant’s assertions are misplaced because trial defense

counsel never conceded that Appellant was guilty of premeditated

murder, only that he had committed certain acts.

     To be blunt, there was absolutely overwhelming evidence

adduced at trial that Appellant committed the acts that resulted

in the deaths of MAJ Stone and CPT Seifert, and the wounding of

fourteen other military officers.    Therefore, it was not



12
  As discussed infra, we do not find a sufficient basis to
conclude that any of the panel members should have been
disqualified for cause, so counsel were not ineffective for
failing to challenge members for bias.

                                45
United States v. Akbar, No. 13-7001/AR

unreasonable for trial defense counsel to forego trying to

convince the court-martial panel to the contrary, and to instead

focus squarely on trying to persuade the panel members that

Appellant’s acts were not premeditated.   Accordingly,

concessions such as the ones made by trial defense counsel that

Appellant “threw those grenades” and “shot and killed Captain

Seifert” were not unreasonable because they did not concede

Appellant’s guilt to capital murder.   Indeed, this type of

approach is a well-recognized defense strategy in capital cases.

See Florida v. Nixon, 543 U.S. 175, 190-91 (2004); Lingar v.

Bowersox, 176 F.3d 453, 458–59 (8th Cir. 1999) (holding that

concession of elements of second-degree murder to challenge

defendant’s mens rea for a capital-murder conviction was not

constitutionally deficient where overwhelming evidence pointed

to defendant as perpetrator).   Accordingly, we conclude that

trial defense counsel were not ineffective in this regard.

     3.    Penalty Phase

     Appellant describes trial defense counsels’ presentencing

presentation as consisting of “[t]hirty-eight minutes [of

testimony and Appellant’s unsworn statement] and a document

dump.”    Specifically, he criticizes the performance of trial

defense counsel for failing to develop a coherent mitigation

theme, submitting his entire diary for the panel’s review, and




                                 46
United States v. Akbar, No. 13-7001/AR

presenting a mitigation case primarily through documents instead

of live witness testimony.

     In closely analyzing this issue, we acknowledge at the

outset that trial defense counsel may well have presented a

stronger case in mitigation if they had adopted a different

approach and taken different steps during the presentencing

phase of this court-martial.   However, in determining whether

there was ineffective assistance of counsel, we do not assess

trial defense counsels’ performance through the prism of

appellate hindsight and then apply our subjective view of how we

think defense counsel should have conducted the trial.   Rather,

pursuant to Supreme Court precedent, we are obligated to

determine whether trial defense counsels’ performance fell below

an “objective standard of reasonableness” and, if so, whether

there was a “reasonable probability” that the result of the

proceeding would have been different absent counsels’ deficient

performance.   Strickland, 466 U.S. at 688, 694.   In the instant

case, not only do we conclude that trial defense counsels’

performance was not “measurably below the performance standards

ordinarily expected of fallible lawyers,” Davis, 60 M.J. at 474,

we also conclude that even if trial defense counsel had handled

the mitigation case precisely as appellate defense counsel now

avers they should have, there is no reasonable probability that

the court-martial panel would have imposed a lesser sentence.



                                47
United States v. Akbar, No. 13-7001/AR

See Loving v. United States, 68 M.J. 1, 7 (C.A.A.F. 2009).

Accordingly, for the reasons cited in greater detail below, we

disagree with Appellant’s assessment of this issue.

                    a. Mitigation Theme

     Appellant argues that trial defense counsel failed to

develop a comprehensive and compelling mitigation argument

encompassing Appellant’s upbringing in accordance with the

tenets of the Nation of Islam, his need to overcome great

disadvantages as a youth, and his continued willingness to

provide love and support to his family.   We recognize that

counsel are well advised to adopt a coherent defense theme and

strategy throughout a trial.   Curtis, 44 M.J. at 120.   However,

there are a number of acceptable ways to establish, develop, and

present such a theme in any given case.   See Pinholster, 131 S.

Ct. at 1407.

     In the instant case, the record reflects that trial defense

counsels’ mitigation strategy was to emphasize Appellant’s

mental illness while also pointing out Appellant’s difficult

upbringing, his lack of ties to radical Islamic groups, and the

Army leadership’s questionable decision to bring Appellant to

Kuwait despite signs of mental illness and poor NCO skills.    The

evidence that supported these arguments was developed during




                                48
United States v. Akbar, No. 13-7001/AR

both the merits13 and penalty phases of the trial.   Because trial

defense counsels’ decision about how best to handle the

sentencing argument followed an extensive mitigation

investigation and exploration of other possible approaches,

Appellant’s criticism amounts to a dispute over counsels’

strategy.   See United States v. Gray, 51 M.J. 1, 19 (C.A.A.F.

1999) (characterizing argument about counsels’ failure to

present an “adequate sentencing case” as an attack on “strategy

and tactics”).   Under such circumstances, Appellant has not

established that trial defense counsels’ selection and

presentation of a mitigation theme constituted ineffective

assistance of counsel.



13
  The “frontloading” of mitigation evidence during the merits
phase is reasonable where the same fact-finder (1) considers
guilt and penalty evidence and (2) is instructed about the
ability to consider all evidence for mitigation. See
Pinholster, 131 S. Ct. at 1408 (citing Woodford v. Visciotti,
537 U.S. 19, 25 (2002)); Bell v. Cone, 535 U.S. 685, 699 (2002)
(rejecting ineffective sentence claim for failure to present
testimony of medical experts at penalty phase where “compelling
mitigating evidence” admitted during guilt phase); Curtis,
44 M.J. at 119 (“Mitigating evidence may . . . be introduced at
both the findings and the sentencing stages of a capital
trial.”); Eaton v. Wilson, No. 09-CV-261-J, 2014 U.S. Dist.
LEXIS 163567, at *398-*99, 2014 WL 6622512, *149-*50 (D. Wyo.
Nov. 20, 2014) (explaining that “if the jury knows nothing about
the defendant other than the facts of the crime when it renders
its verdict finding him guilty, the defense bears a very heavy
burden to win them over to life in the second stage of trial”).
Here, the military judge instructed the panel that it could
“consider any matter in extenuation and mitigation, . . .
whether it was presented before or after findings.” Counsel
therefore reasonably adopted a strategy of presenting mitigation
evidence during the guilt phase.

                                49
United States v. Akbar, No. 13-7001/AR

                     b. Submission of the Diary

     Appellant argues that trial defense counsel were

ineffective for submitting the entirety of Appellant’s “damning”

diary into evidence at sentencing because it led to the

introduction of aggravating evidence, not mitigating evidence.

However, upon closely analyzing this issue, we find there is an

insufficient basis to conclude that trial defense counsel

provided ineffective assistance of counsel.

     To be clear, we fully recognize that some of the entries

contained in the diary introduced by the defense were, indeed,

damning.   However, we are also mindful of the fact that when

counsel made the decision to introduce the entire diary, the

Government already had presented to the panel some of its most

damaging portions.   For example, the Government introduced the

following two passages:   “[A]s soon as I am in Iraq I am going

to try to kill as many [fellow soldiers] as possible”; and “I

may have to make a choice very soon about who to kill. . . . I

will have to decide if I should kill my Muslim brothers fighting

for Saddam Hussein or my battle buddies.”   These portions, along

with others introduced to the panel upon admission of the entire

diary, underscored Appellant’s premeditation.     However, it is

important to note that at the time of the diary’s admission, the

members had already found premeditation during the merits phase,

and the existence or degree of premeditation was not at issue



                                50
United States v. Akbar, No. 13-7001/AR

during sentencing.   Therefore, the record indicates not only

that trial defense counsel reasonably concluded that additional

passages in the diary would not inflict any more damage on the

defense than those already selected by the Government, but that

they also reasonably concluded that the diary in its entirety

would paint a persuasive portrait of a mentally ill man who

could not control his thought processes or his actions in the

period leading up to the Camp Pennsylvania attack.14   Therefore,

we conclude that trial defense counsel were well aware of the

inflammatory nature of portions of the diary, yet made a

strategic decision to submit the diary in its entirety.     In

doing so, we note that generally speaking, we “‘will not second-

guess the strategic or tactical decisions made at trial by

defense counsel.’”   United States v. Mazza, 67 M.J. 470, 475

(C.A.A.F. 2009) (quoting United States v. Anderson, 55 M.J. 198,

202 (C.A.A.F. 2001)).   Indeed, we decline to do so here.



14
  For instance, in the diary entries from the two months before
Appellant’s attack, Appellant wrote (1) “I am in no condition to
take care of a family and when I leave the Army, I may be
homeless. I pace, daydream, and talk to myself everyday. And I
am alone with very little chance of finding a mate.”; and (2) “I
am a loser. That is just the truth. Everything I have tried to
work for I don’t have. A wife, good job, Self-respect.”
Throughout the thirteen years that Appellant kept the diary, his
entries reflected his struggles as demonstrated by his thoughts
about suicide, his low self-esteem, his problems staying awake,
his isolation or loneliness, his problems having relationships
with women, his sexual frustrations, his problematic
relationships with his parents, and his problems maintaining
employment.

                                51
United States v. Akbar, No. 13-7001/AR

     Appellant further claims that even if it was a reasonable

strategic decision to admit the diary as a whole, witness

testimony was needed to place the diary entries into proper

perspective.   The record shows, however, that counsel did

contextualize the diary through Dr. Woods’s testimony, as well

as through the FBI analysis of the diary and Ms. Grey’s analysis

of the diary, which were submitted to the panel members as

evidence.   Also, counsels’ sentencing argument emphasized that

the diary provided an important glimpse into Appellant’s mental

state and that it showed the facts and effects of Appellant’s

difficult upbringing.   Moreover, with the diary’s admission,

counsel was able to argue at sentencing that despite the

conflict between the mental health experts as to a specific

diagnosis, the diary showed that Appellant suffered from a

profound mental illness when he committed the offenses, which

warranted a sentence of life imprisonment rather than the death

penalty.    Given these circumstances, we conclude that counsels’

performance was not deficient.

                      c. Mitigation Primarily Through Documents

     Appellant claims that trial defense counsel were

ineffective because they presented Appellant’s mitigation case

primarily through documents instead of through live testimony by

family and friends.   However, we disagree with Appellant’s

initial premise that the mitigation case consisted only of



                                 52
United States v. Akbar, No. 13-7001/AR

thirty-eight minutes of testimony and a “document dump.”     The

record shows that trial defense counsel actually began

developing the mitigation case during the merits phase of the

trial.    They did so through the testimony of the expert

witnesses, members of Appellant’s unit, and Appellant’s college

roommate.   This evidence covered Appellant’s troubled

upbringing, his strange behavior, his tendency to spend time

alone, his poor skills as an NCO, his symptoms of mental

illness, and his mental illness diagnoses.     Once the merits

phase ended, counsel did not ignore this evidence but instead

built upon it during the presentencing phase and relied upon it

during the sentencing arguments.      Therefore, we conclude that

trial defense counsel presented a more substantial and

thoughtful mitigation case at trial than Appellant now claims on

appeal.

     We also disagree with Appellant’s criticism of trial

defense counsels’ decision to present mitigation evidence

primarily through documents rather than through live testimony.

In examining this issue, we view it as an essential fact that

trial defense counsels’ presentation was greatly affected by

Appellant’s alleged stabbing of an MP just days before the

court-martial began.   In light of this incident, trial defense

counsel made a strategic decision to be very cautious about

taking any steps that could be used by the Government to



                                 53
United States v. Akbar, No. 13-7001/AR

introduce evidence of this uncharged misconduct in the course of

the trial.    Trial defense counsel were successful in this

effort, and we deem their approach to be a reasonable and

appropriate one.   See American Bar Association Guidelines for

the Appointment and Performance of Defense Counsel in Death

Penalty Cases (ABA Guidelines) 10.11.G, reprinted in 31 Hofstra

L. Rev. 913, 1056-57 (2003) (noting that “[i]n determining what

presentation to make concerning penalty, counsel should consider

whether any portion of the defense case will open the door to

the prosecution’s presentation of otherwise inadmissible

aggravating evidence”).   Any one of the witnesses who might have

been called to testify by the defense could have unintentionally

opened the door to evidence about the MP stabbing by, for

example, testifying about their belief that Appellant’s actions

at Camp Pennsylvania were out of character.   Therefore, trial

defense counsel reasonably concluded that they should limit the

number of defense witnesses both because they posed a danger to

Appellant’s case and because, if they did testify, their

testimony would be so circumscribed that whatever value they

otherwise would have had for the defense would be substantially

diminished.   See Cone, 535 U.S. at 700-01 (finding state court’s

application of Strickland was not unreasonable with respect to

failing to call other witnesses where “counsel feared that the

prosecution might elicit information about [the defendant’s]



                                 54
United States v. Akbar, No. 13-7001/AR

criminal history”); Burger, 483 U.S. at 792 (concluding decision

not to present character witnesses not unreasonable where prior

convictions might have been introduced on cross); Tinsley v.

Million, 399 F.3d 796, 809-10 (6th Cir. 2005) (noting no

testimony may be better than some testimony “given the risk that

every positive argument by a defendant potentially opens the

door to a more-harmful response”).

     We also conclude that trial defense counsel did not merely

“dump” a bunch of documents on the panel.    Counsel reviewed and

selected relevant documents for the members to consider, which

were presented to each member in a binder.   Among the documents

submitted to the members were those that provided important

context for, and useful summaries of, Appellant’s diary.

     The military judge implicitly instructed the members that

they were required to review the documents in the binders.    For

instance, the military judge instructed the members prior to

disseminating the binders as follows:

          The defense has requested, the government does
     not oppose, and I’m going to allow you to take several
     defense exhibits with you when we recess for the day
     in a few moments. They are in the black binders in
     front of you. The exhibits contain a lot of material,
     and it will help if you have read through the
     documents before the defense calls its witnesses
     starting tomorrow. Since counsel estimate it may take
     some time to do so, rather than require you to read it
     in open court, which is what would normally happen,
     I’m going to let you read it at home or work.

          A couple cautionary instructions however. You
     are only to read the exhibits. Please do not conduct


                               55
United States v. Akbar, No. 13-7001/AR

     any independent research based on anything you may
     read. Also, please, do not discuss the exhibit with
     anyone, to include friends and family members, or
     yourselves. You can only discuss the exhibits with
     each other once you begin your formal deliberations,
     which probably won’t happen until Thursday. Also do
     not copy the exhibits or let anyone else read them.
     And please bring them back with you when you return to
     court tomorrow morning . . . .

This instruction informed the members of their duty to review

the exhibits in two ways.   First, the military judge told the

members, “rather than require you to read [the evidence] in open

court, which is what would normally happen,” they were being

permitted to “read it at home or work.”   (Emphasis added.)

Second, the military judge told the members they were “only to

read the exhibits” instead of discussing them or performing

research.   (Emphasis added.)   These facets of the instruction

had the effect of notifying the members that they had to review

Appellant’s documentary evidence.

     The military judge reiterated the members’ duty to review

the defense exhibits when he allowed the members to take the

binders home for a second day, stating:   “[Y]ou should be able

to take them with you for the rest of the day if you need more

time to review the documents.”    (Emphasis added.)   By informing

the members that they had more time to review the documents, the

military judge again signaled to the members that they were




                                 56
United States v. Akbar, No. 13-7001/AR

expected to review all the evidence.15   The record does not

reveal that the members disobeyed the military judge’s

instructions, so we presume that the members followed them.     See

United States v. Stewart, 71 M.J. 38, 42 (C.A.A.F. 2012).      We

therefore conclude that the members were aware of their duty to

review, and did in fact review, the evidence submitted to them

in the binders.

     Counsels’ sentencing argument then explained the purpose of

the diary by asserting that it provided a “unique” look into

Appellant’s troubled mind.   This is hardly a case in which

counsel obtained records and “then dump[ed] the whole file in

front of the jury without organizing the files, reading them,


15
  Besides these specific instructions, the military judge’s
general sentencing instructions apprised the members of their
duty to consider all evidence in the case, including that
submitted in the binders. For instance, the military judge
instructed the members that their deliberations on the
aggravating factors “should properly include a full and free
discussion on all of the evidence that has been presented.”
(Emphasis added.) The military judge also instructed the
members that they could consider “any matter in extenuation and
mitigation, whether pre-offense or post-offense; whether it was
presented before or after findings; and whether it was presented
by the prosecution or the defense.” These general sentencing
instructions informed the members that their sentencing
deliberations were to be based on all the evidence, which
included the defense sentencing exhibits the military judge
permitted the members to take home. Finally, the military judge
instructed the members of the importance of considering the
evidence submitted in the binders when he listed the possible
mitigating factors in the case, some of which explicitly
referenced the evidence submitted in the binders, including
Appellant’s diary, Ms. Grey’s interviews of individuals, the
diary analyses by Ms. Grey and the FBI, and the social service
records.

                                57
United States v. Akbar, No. 13-7001/AR

eliminating irrelevant files or explaining to the jury how or

why they are relevant.”   Johnson v. Bagley, 544 F.3d 592, 602

(6th Cir. 2008).   Accordingly, we do not see a sufficient basis

to conclude that trial defense counsels’ method of introducing

the documents was deficient.

     Appellant insists that the live testimony of family members

and friends, not submission of documents, was needed to present

all the available mitigation evidence to counter the

Government’s aggravation evidence.   He further argues that trial

defense counsels’ failure to present this evidence constituted

an incomplete and incompetent defense.

     To be sure, “evidence about [an accused’s] background and

character is relevant because of the belief, long held by this

society, that [those accused] who commit criminal acts that are

attributable to a disadvantaged background, or to emotional and

mental problems, may be less culpable than [those] who have no

such excuse.”   Loving, 68 M.J. at 15 (quoting Boyde v.

California, 494 U.S. 370, 382 (1990)).   Here, however, trial

defense counsel did not ignore Appellant’s social history.   They

introduced evidence about Appellant’s abusive stepfather through

the testimony of Drs. Tuton and Woods.   Further, through

testimony, a declaration from Appellant’s brother, and the

mitigation specialist’s interview notes, they introduced

evidence about Appellant growing up in impoverished



                                58
United States v. Akbar, No. 13-7001/AR

circumstances and living and going to school in dangerous

neighborhoods.   And through Appellant’s diary, trial defense

counsel also introduced evidence of Appellant’s adverse

upbringing.   Finally, the exhibits submitted by trial defense

counsel at sentencing contained information that humanized

Appellant such as the diary entries that detailed assistance to

his family and listed his goals of assisting his family and his

community, the interview summaries of Appellant’s teachers that

described his work ethic and politeness, the statement from

Appellant’s brother that recounted Appellant’s financial

support, and the interview summary from Appellant’s childhood

imam that described Appellant’s lack of aggression.    Therefore,

there is an insufficient basis to conclude that trial defense

counsel needed additional live testimony in order to present key

points of their mitigation case.

     The record also reveals that counsel did not act

unreasonably in choosing not to present live testimony from

Appellant’s father, brother, sisters, cousins, high school

friend, and former landlady.   A trial defense counsel’s decision

on whether to call a witness is a tactical decision.    See United

States v. Anderson, 55 M.J. 198, 202 (C.A.A.F. 2001); Fluellen,

40 M.J. at 98 (noting part of the tactical decision in the case

was deciding what witnesses not to call).   In this case, trial

defense counsel made an informed tactical decision, after a



                                59
United States v. Akbar, No. 13-7001/AR

reasonable investigation, when selecting trial witnesses.      See

Wiggins, 539 U.S. at 533-34.    Therefore, for this reason and for

the additional reasons cited below, we conclude that Appellant

has not provided us with a sufficient basis to question trial

defense counsels’ tactical decisions regarding these witnesses.

     First, trial defense counsel had interactions with

Appellant’s father prior to trial and obtained additional

information about his background through the mitigation expert’s

report.   They therefore assessed his likely manner of

presentation as a witness, and learned of his significant

criminal background, history of drug use, and impaired cognitive

abilities.    See Pinholster, 131 S. Ct. at 1407 (noting that in

applying strong presumption of competence, court is required to

affirmatively entertain range of possible reasons for counsel’s

performance).   Upon doing so, counsel explicitly informed the

military judge that they had made an informed, conscious, and

strategic decision not to have Appellant’s father testify during

sentencing.   See Lord v. Wood, 184 F.3d 1083, 1095 n.8 (9th Cir.

1999).    We see no basis to question this decision.

     Appellant claims that his father would have served as a

valuable witness to document “the prejudices the Nation of Islam

instilled in” Appellant.   Indeed, trial defense counsel could

have employed this strategy of eliciting testimony on this

point.    However, they chose a different strategy, one that



                                 60
United States v. Akbar, No. 13-7001/AR

described Appellant as not being “hate-filled” but “a person

with mental illness, who is very sensitive to anything said to

him.”    In fact, trial defense counsels’ affidavit explains that

they wanted to downplay Appellant’s link to the Nation of Islam

because it would “likely . . . carry strong negative

connotations with the panel members,” which ultimately would

harm Appellant’s defense.    Additionally, counsel chose not to

portray Appellant as a hate-filled person since childhood

because this approach would have conflicted with their strategy

of portraying Appellant’s actions on March 22, 2003, as

aberrational and not premeditated, and because it would have

undermined their position that Appellant had rehabilitative

potential.    We therefore do not find a basis to question

counsels’ tactical decision not to call Appellant’s father to

testify.

        Second, we conclude that counsel was not deficient in

presenting the declaration of Appellant’s brother at trial

rather than having the brother testify.    Although the brother

now claims that he was willing and able to testify at

Appellant’s trial, the brother’s April 26, 2005, trial

declaration stated that he could not leave his wife’s side due

to the birth of a child.    Additionally, we conclude there is no

additional information in the brother’s post-trial one-page

declaration that reasonably could be considered powerful



                                  61
United States v. Akbar, No. 13-7001/AR

mitigation evidence.    We do not consider counsels’ failure to

call Appellant’s brother as a witness to be deficient

performance under these circumstances.

        Third, the record reflects that trial defense counsel had

the mitigation specialists’ interview summaries for Appellant’s

sisters, his cousins, a high school friend, and his former

landlady.    With this information, trial defense counsel made an

informed decision not to call these witnesses, and we do not

find a sufficient basis to second-guess that decision.    Cf. Lema

v. United States, 987 F.2d 48, 54 (1st Cir. 1993) (noting that

“decision whether to call a particular witness is almost always

strategic, requiring a balancing of the benefits and risks of

the anticipated testimony”).

        We finally conclude that even if trial defense counsels’

mitigation presentation was deficient, Appellant has not

established prejudice.    This inquiry asks “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.’”    Loving, 68 M.J. at 7 (quoting Wiggins, 539 U.S. at

537).    The new mitigating evidence “must differ in a substantial

way -- in strength and subject matter -- from the evidence

actually presented at sentencing.”     Id. at 16 (quoting Hill v.




                                  62
United States v. Akbar, No. 13-7001/AR

Mitchell, 400 F.3d 308, 319 (6th Cir. 2005)).    Appellant has not

met this standard.

     The additional post-trial evidence in this case can

generally be placed into one of seven categories:   Appellant’s

parents’ backgrounds, the history of family mental illness,

Appellant’s challenging upbringing and his positive qualities as

a child, the influence on Appellant of the Nation of Islam,

Appellant’s high school experience, Appellant’s attempt to repay

a debt, and the impact of Appellant’s execution on his family.

Many of these areas were presented at trial, including

information about Appellant’s upbringing and positive qualities,

his high school experience, and the existence of mental health

issues in the family.   While some of the post-trial information

may be viewed as elaborating on these points, there is not a

sufficient basis to conclude that this information was different

in quality or substance from what the members actually

considered.    Therefore, we consider it to be “largely

cumulative.”   See Loving, 68 M.J. at 16.

     We recognize that the material submitted by Appellant post-

trial includes information in four areas that were not addressed

at the court-martial.   However, we conclude that Appellant was

not prejudiced by counsels’ failure to present this evidence.

First, trial defense counsel concluded that the role of the

Nation of Islam in Appellant’s life represented a “double-edged



                                 63
United States v. Akbar, No. 13-7001/AR

sword” in that any mitigation effect of this information may

have been outweighed by the extent to which it alienated the

panel and undermined trial defense counsels’ theory that

Appellant’s attack was due to mental illness and was not the

product of hatred and premeditation.   Cf. Wiggins, 539 U.S. at

535 (noting that limited investigation justified where

defendant’s history was “double-edged”).   Second, Appellant’s

attempt to repay his landlady long after she expected him to,

although a positive story, certainly is not “sufficiently

compelling” to establish prejudice given Appellant’s crimes and

their impact on the victims.   See Loving, 68 M.J. at 17.   Third,

although the post-trial evidence demonstrates that Appellant’s

parents’ had challenging upbringings, Appellant does not explain

why this information would prove compelling to the panel members

as they decided the appropriate sentence to impose on Appellant.

     Finally, we recognize the potential mitigating value of

Appellant’s family members expressing opinions about the impact

Appellant’s death sentence would have on his family.   We do not

seek to minimize the importance of such testimony in capital

cases.   However, in the instant case, there is an insufficient

basis to conclude that the panel’s knowledge of this information

would have changed the result of the proceeding given the

aggravating circumstances.   Moreover, trial defense counsel had

to weigh whether such testimony would have alienated the panel



                                64
United States v. Akbar, No. 13-7001/AR

members in light of the fact that Appellant’s murderous actions

had so tragically and irrevocably affected the families of the

victims of Appellant’s attack.   Accordingly, we conclude that

Appellant has not met his burden of establishing that he was

prejudiced by counsels’ submission of documents instead of live

witness testimony.

     4.    Cumulative Error

     We next consider whether trial defense counsels’ conduct,

examined in its totality, constituted ineffective assistance of

counsel even if individual oversights or missteps did not

independently rise to that level.     Loving, 41 M.J. at 252; see

also United States v. Dado, 759 F.3d 550, 563 (6th Cir. 2014).

As shown above, for the vast majority of Appellant’s individual

ineffective assistance of counsel claims, there is an

insufficient basis to conclude that trial defense counsel acted

unreasonably.   These claims do not provide a basis for

establishing ineffective assistance of counsel based on

cumulative error.    See United States v. Hall, 455 F.3d 508, 520

(5th Cir. 2006) (stating that “ineffective assistance of counsel

cannot be created from the accumulation of acceptable decisions

and actions”); Campbell v. United States, 364 F.3d 727, 736 (6th

Cir. 2004); Hough v. Anderson, 272 F.3d 878, 907 n.14 (7th Cir.

2001).    In those few instances where we assumed otherwise, we

found no prejudice.   Even considering these instances of assumed



                                 65
United States v. Akbar, No. 13-7001/AR

deficient performance in the aggregate, we conclude that they do

not establish prejudice at the findings phase or penalty phase

of the trial.   Therefore, we conclude that Appellant has not

provided us with a sufficient basis to apply the cumulative

error doctrine to the circumstances of his case, and we decline

to find ineffective assistance of counsel on the basis of this

doctrine.   See Becker v. Luebbers, 578 F.3d 907, 914 n.5 (8th

Cir. 2009) (noting that even if some aspect of counsel’s

performance was deficient, prejudice must be limited to

constitutionally defective aspects of representation).

                           B. DuBay Hearing

     Appellant asserts that, at a minimum, we should order a

post-trial fact-finding hearing in this case under United States

v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).   Our decision in

United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997) sets forth

the proper standard to determine whether a DuBay hearing is

necessary to resolve ineffective assistance of counsel claims.

We have considered the five Ginn factors16 and conclude that the

issues in this case can be resolved on the record before us and

without a DuBay hearing.



16
  These factors are whether: (1) the facts alleged would result
in relief; (2) the alleged facts are conclusory or speculative;
(3) the parties agree on the facts; (4) the record “compellingly
demonstrate[s] the improbability of” the allegations; and
(5) Appellant adequately explains why an allegation contradicts
a matter within the guilty plea record. Ginn, 47 M.J. at 248.

                                66
United States v. Akbar, No. 13-7001/AR

                    C. Victim-Impact Presentation

     Appellant challenges two aspects of the Government’s

victim-impact presentation.   First, he contends that

presentencing testimony from Government witnesses violated the

Eighth Amendment.   Second, he challenges the propriety of trial

counsels’ sentencing argument.   In making these claims,

Appellant correctly concedes that his trial defense counsel did

not raise objections to the witness testimony or to the trial

counsels’ argument during the court-martial.   Therefore, we note

that he has “forfeit[ed] appellate review of [these issues]

absent plain error.”   United States v. Eslinger, 70 M.J. 193,

197-98 (C.A.A.F. 2011); see also United States v. Frey, 73 M.J.

245, 247 n.1 (C.A.A.F. 2014) (sentencing argument); United

States v. Holt, 33 M.J. 400, 408-09 (C.M.A. 1991) (victim-impact

testimony).   To prevail under the plain error standard,

Appellant has the burden of “establishing (1) error that is

(2) clear or obvious and (3) results in material prejudice to

his substantial rights.”    United States v. Knapp, 73 M.J. 33,

36, reconsideration denied, 73 M.J. 237 (C.A.A.F. 2014).

     We conclude that Appellant fails to meet the first prong of

the plain error standard.   Victim impact testimony is admissible

in capital cases to inform the panel about “the specific harm

caused by the [accused].”   Payne v. Tennessee, 501 U.S. 808, 825

(1991); United States v. Wilson, 35 M.J. 473, 476 n.6 (C.M.A.



                                 67
United States v. Akbar, No. 13-7001/AR

1992).   Trial counsel may elicit evidence about (1) the victim’s

personal characteristics or (2) the emotional impact of the

murder on the victim’s family.   See Payne, 501 U.S. at 827.

What is not permitted is evidence or argument about the family

members’ “opinions and characterizations of the crimes,” the

defendant, or the appropriate sentence.   See Booth v. Maryland,

482 U.S. 496, 508-09 (1987), overruled on other grounds by

Payne, 501 U.S. at 830 n.2.   Examples of this type of

impermissible victim-impact evidence include:   an opinion from

the victim’s family members that the victims were “butchered

like animals”; a statement that the witness “doesn’t think

anyone should be able to do something like that and get away

with it”; and descriptions of the defendant as “vicious,” worse

than an animal, and unlikely to be rehabilitated.   Booth,

482 U.S. at 508.

     We conclude that the Government did not violate these

proscriptions in the course of eliciting witness testimony in

the instant case.   Initially, we note that Appellant

mischaracterizes the victim testimony as equating Appellant to a

terrorist or traitor, or describing Appellant’s conduct as

treasonous, mutinous, or assisting the enemy.

     During the Government’s sentencing case, trial counsel

posed questions concerning witnesses’ reaction upon learning

that a fellow servicemember was the alleged perpetrator of the



                                 68
United States v. Akbar, No. 13-7001/AR

Camp Pennsylvania attack.    Such questions were appropriate

because they were designed to elicit testimony about the effect

this unique bit of information had on the victims.   Moreover, it

was not improper for the Government witnesses, many of whom were

also victims of the attack, to express human responses,

including feeling “betrayed,” “disbelief,” “livid,” “angry,”

“shocked,” and “pissed.”17   This testimony placed Appellant’s

crime in context by describing how his actions affected the

victims of the attacks.

     Also, COL Hodges’s testimony about “fraggings” during the

Vietnam War was made in the context of describing why he, as

commander of the battalion, was particularly psychologically

shaken by Appellant’s particular attack, and we do not deem such

testimony to be improper.    Similarly, we conclude that COL

Hodges’s observations about the “very worst days for



17
  Appellant supports his challenge to sentencing testimony by
citing the testimony of the victims’ family members in United
States v. Mitchell, 502 F.3d 931, 990 (9th Cir. 2007), and
DeRosa v. Workman, 679 F.3d 1196, 1240 (10th Cir. 2012). We
observe that much of the contested testimony in this case was
made by the victims who were reporting their own reactions to
the crime, so they did not constitute family member testimony
about the crime or Appellant. We recognize that trial counsel
elicited testimony by civilians about their reactions upon
learning that a servicemember was responsible for the attacks.
To the extent that this testimony by the civilians was improper,
we find no prejudice because it was brief and unlikely had any
impact on the panel where the victims properly testified about
their reactions upon learning that the perpetrator was a
servicemember. See United States v. Davis, 609 F.3d 663, 685
(5th Cir. 2010).

                                 69
United States v. Akbar, No. 13-7001/AR

the United States Army” were not inflammatory in intent or

effect.    Instead, they reflected COL Hodges’s embarrassment and

dismay that Appellant’s attack occurred in the battalion he was

commanding, and COL Hodges’s comments were directly responsive

to trial counsels’ question about how Appellant’s attack had

affected him.

     We also do not consider improper trial counsel’s sentencing

argument in which he characterized Appellant as “the enemy

within the wire” and asked for the imposition of the death

penalty in order to send a message about the value of innocent

life and the value of loyalty.   Trial counsel “may strike hard

blows,” but “he is not at liberty to strike foul ones.”    Berger

v. United States, 295 U.S. 78, 88 (1935); see also United States

v. Halpin, 71 M.J. 477, 479 (C.A.A.F. 2013).    He “may ‘argue the

evidence of record, as well as all reasonable inferences fairly

derived from such evidence.’”    Halpin, 71 M.J. at 479 (quoting

United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000)).    This

includes arguments in capital cases concerning “the human cost”

of an accused’s capital crime.   Payne, 501 U.S. at 827.    Under

the circumstances of this case, it was not a foul blow to

characterize Appellant as the enemy within the wire given his

act of tossing grenades and shooting officers within the

confines of Camp Pennsylvania at the start of Operation Iraqi

Freedom.



                                 70
United States v. Akbar, No. 13-7001/AR

     Trial counsels’ request to send a message about the value

of life, loyalty, and the bond among the band of brothers was

essentially a general deterrence argument.   Trial counsel may

make such general deterrence arguments when they are not the

Government’s only argument and when the military judge properly

instructs the members about conducting an individualized

consideration of the sentence.   See United States v. Lania, 9

M.J. 100, 104 (C.M.A. 1980) (stating that “general deterrence is

suitable for consideration in sentencing and for instructions”).

Trial counsels’ argument was more than one of general deterrence

because it focused on Appellant’s motivation, his acts, and

their aftermath.   Also, the military judge properly instructed

the panel as to general deterrence.   Therefore, there was

nothing improper in asking the members to send a general

deterrence message.

     Finally, Appellant challenges trial counsel’s two

references to “weighing life”:

          • “What you must decide is what a life is worth;
     what two lives are worth; what a military career is
     worth; what the use of your legs are worth; what a
     little boy’s life without his father is worth.”

          • “Weigh his life -- that is what you’re doing.
     You’re weighing his life against what he did, what he
     caused, and what he set in motion forever.”

These comments were made in the specific context of trial

counsel’s argument that the aggravating circumstances outweighed

the mitigating circumstances.    This is “entirely consistent with


                                 71
United States v. Akbar, No. 13-7001/AR

Payne’s recognition that victim-impact evidence is properly

considered to ‘counteract’ the mitigating evidence in helping

the [fact-finder] evaluate moral culpability.”    United States v.

Lawrence, 735 F.3d 385, 435 (6th Cir. 2013).     Also, we note that

other federal courts have held that “to the extent that [Payne]

expressed disapproval of comparative worth arguments, it did so

only with regard to victim-to-victim comparisons, not victim-to-

defendant comparisons.”   United States v. Fields, 483 F.3d 313,

340–41 (5th Cir. 2007) (citing Humphries v. Ozmint, 397 F.3d

206, 224 n.8 (4th Cir. 2005)).   Trial counsel in the instant

case did not make victim-to-victim characterizations.    We

therefore find no error in his argument.18

     Even if we were to assume that trial counsels’ arguments

were improper, we conclude that Appellant has demonstrated no

prejudice.   In the plain error context, we determine whether the

cumulative effect of an improper sentencing argument impacted

“the accused’s substantial rights and the fairness and integrity

of his trial.”   Halpin, 71 M.J. at 480 (quoting United States v.

Erickson, 65 M.J. 221, 224 (C.A.A.F. 2007)).     This inquiry

examines “whether trial counsel’s comments, taken as a whole,

were so damaging that we cannot be confident that the appellant




18
  Since neither the victim testimony nor trial counsels’
sentencing argument was improper, we reject Appellant’s related
ineffective assistance of counsel claims.

                                 72
United States v. Akbar, No. 13-7001/AR

was sentenced on the basis of the evidence alone.”     Id. (quoting

Erickson, 65 M.J. at 224) (original alterations and internal

punctuation omitted).   This case involved many aggravating

circumstances, including Appellant’s murder of two military

officers, his use of grenades, the extensive injuries to some

officers, and the impact of the attack on the unit as it

prepared for battle.    Also, the fact that trial defense counsel

did not see fit to object to the argument is “some measure” that

the argument had “minimal impact.”     United States v. Gilley,

56 M.J. 113, 123 (C.A.A.F. 2001) (quoting United States v.

Carpenter, 51 M.J. 393, 397 (C.A.A.F. 1999)).      Accordingly, we

do not conclude that trial counsel’s argument warrants reversal.

              D. Sua Sponte Disqualification of Members

     Appellant challenges the military judge’s failure to sua

sponte dismiss fourteen of the fifteen panel members on implied

and/or actual bias grounds.   We note that “[i]t is clear that a

military judge may excuse a member sua sponte” under R.C.M.

912(f)(4).   United States v. Strand, 59 M.J. 455, 458 (C.A.A.F.

2004).   That rule permits a military judge to, “in the interest

of justice, excuse a member against whom a challenge for cause

would lie” even if neither party has raised such a challenge.

See R.C.M. 912(f)(4) (2005 ed.).      However, in United States v.

McFadden the majority held that although “[a] military judge has

the discretionary authority to sua sponte excuse [a] member,



                                 73
United States v. Akbar, No. 13-7001/AR

[he] has no duty to do so.”   74 M.J. 87, 90 (C.A.A.F. 2015).

Moreover, even if the military judge had such a duty, he did not

abuse his discretion in failing to sua sponte remove any of the

members for the reasons that follow.

     First, we are mindful of the essential fact that, as noted

above, trial defense counsel were using the ace of hearts

strategy during this voir dire process, and we note that the

military judge had been placed on notice that Appellant was

“seeking to maximize the panel size.”    Second, the military

judge had afforded trial defense counsel great leeway in

determining how they would conduct voir dire, thereby obviating

the need for the military judge to take a more active role in

the process.   Third, the military judge could observe that trial

defense counsel were not impassive in the voir dire process, as

evidenced not only by their questioning of potential panel

members but also by the fact that they sought and obtained the

removal of a member on implied bias grounds, did not object to

the Government’s challenge to three other members, and explained

their opposition to the Government’s challenges to three

additional panel members.

     In regard to Appellant’s challenges to the service on the

panel of specific members, we make the following observations.

Appellant first states that the military judge should have sua

sponte disqualified COL GQ and COL PM because of their friendly



                                74
United States v. Akbar, No. 13-7001/AR

relationship with COL Hodges, a victim and witness in

Appellant’s case.   However, it is not an infrequent occurrence

in the military for a panel member to know a witness in a court-

martial, and without more, we have not found implied bias in

such circumstances.    Cf. United States v. Ai, 49 M.J. 1, 5

(C.A.A.F. 1998) (rejecting member challenge on implied bias

grounds where member held professional relationship with

witness, candidly disclosed the relationship, and unequivocally

denied influence).19    We similarly decline to do so here.

     Second, Appellant states that the military judge should

have sua sponte dismissed LTC CF and LTC DL because another

panel member, COL PM, had a supervisory relationship over them.

Once again, it is not an infrequent occurrence in the military

to have panel members who have a supervisory relationship with

another panel member.    And where, as here, all of the panel

members state openly that they will not feel constrained in

performing their court-martial duties, there is an insufficient



19
  Appellant cites United States v. Harris, but the member in
that case not only knew two victims but also rated the victims,
was aware of the crimes, and chaired a committee to reduce the
crime in question on base. 13 M.J. 288, 289 (C.M.A. 1982).
Neither COL GQ’s nor COL PM’s relationship with COL Hodges is
nearly as close as the member’s relationship with the victims in
Harris. In United States v. Leonard, 63 M.J. 398, 403 (C.A.A.F.
2006), we found implied bias where a member had a relationship
“of trust” with a victim in a case in which the victim’s
credibility was an issue. The record does not reflect a similar
relationship of trust in this case or that COL Hodges’s
credibility was at issue.

                                  75
United States v. Akbar, No. 13-7001/AR

basis for the military judge to sua sponte remove them from the

panel.   United States v. Castillo, 74 M.J. 39, 43 (C.A.A.F.

2015) (“[A] senior-subordinate/rating relationship does not per

se require disqualification of a panel member.”) (quoting United

States v. Wiesen, 56 M.J. 172, 175 (C.A.A.F. 2001)).

     Third, Appellant argues that the military judge should have

sua sponte dismissed LTC WT from the panel because of his

relationships with his two older brothers.    One brother was the

commanding general of the 101st Airborne Division, the unit to

which Appellant and some of the victims were assigned.   The

other brother worked with a victim in this case and served as

the executive officer for the senior commanding general of the

convening authority in this case.    However, LTC WT stated he did

not discuss the case with his brothers or feel any pressure to

vote in any particular manner in this case.   We therefore

conclude that LTC WT’s fraternal relationships did not provide a

basis for the military judge to sua sponte dismiss LTC WT.     See

Strand, 59 M.J. at 459 (finding military judge did not have a

sua sponte duty to dismiss for implied bias a member who was the

son of the commander).   This is particularly true here because

both Appellant and his trial defense counsel specifically stated

that they did not want to excuse LTC WT for cause.

     Fourth, Appellant generally challenges a number of members

-- SFC KD, MAJ DS, LTC TG, SFC JC, CSM MH, CSM RC, and MSG PC --



                                76
United States v. Akbar, No. 13-7001/AR

on the basis that they had an inelastic predisposition to

adjudge a particular sentence.     We note, of course, that

Appellant is “entitled to have his case heard by members who are

not predisposed or committed to a particular punishment, or who

do not possess an inelastic attitude toward the punitive

outcome.”     United States v. Martinez, 67 M.J. 59, 61 (C.A.A.F.

2008) (citing United States v. James, 61 M.J. 132, 138 (C.A.A.F.

2004)); see also R.C.M. 912(f)(1)(N) Discussion.     However, the

record reveals that each of these panel members agreed to follow

the military judge’s instructions and to appropriately consider

a full range of punishments in this case.     Therefore, the voir

dire of these individual members disclosed no basis for the

military judge to sua sponte disqualify them.

        Fifth, we have reviewed LTC TG’s views on Islam20 and share

some of Appellant’s concerns about his comments during voir

dire.     However, we ultimately conclude that the military judge

should not have invoked his authority under R.C.M. 912(f) to

dismiss LTC TG sua sponte because LTC TG also expressed positive

views of Muslims, describing them as “very nice” and “very

friendly people,” and more importantly, because LTC TG stated



20
  When specifically asked by trial defense counsel about his
views on Islam, LTC TG stated that Islam was a “male oriented
religion” and a “passionate religion,” by which he meant that
“sometimes you can’t think clearly and you take certain views
that are selfish -- for your own selfish pleasures, self-desire
instead of the good of the man.”

                                  77
United States v. Akbar, No. 13-7001/AR

openly that he would not be influenced in the course of the

trial by any of his preconceptions about Muslims generally.     See

Elfayoumi, 66 M.J. at 357 (noting that question of bias is not

whether a member has particular views but whether they can put

these views aside to evaluate the case on its merits).

     Sixth, Appellant avers that the military judge should have

sua sponte dismissed SFC JC from the panel because he stated

that Appellant sounded guilty.   We note that a member “must be

excused when he or she ‘[h]as []formed or expressed a definite

opinion as to the guilt or innocence of the accused as to any

offense charged.”   Nash, 71 M.J. at 88 (quoting R.C.M.

912(f)(1)(M)).   However, in the instant case SFC JC’s voir dire

responses “dispel[led] the possibility” of bias because he

stated that his initial opinion was not definite and that he

understood Appellant was presumed innocent.   See id. at 89; see

also Irvin v. Dowd, 366 U.S. 717, 723 (1961).   Therefore, we

conclude that the military judge did not abuse his discretion in

failing to sua sponte dismiss SFC JC.

     Seventh, Appellant contends that the military judge should

have sua sponte excused CSM MH for ignoring the military judge’s

order to avoid exposure to any pretrial publicity about

Appellant’s case.   We find this challenge meritless because

trial defense counsel specifically opposed MH’s removal.   We

also find that although CSM MH admitted to reading about the MP



                                 78
United States v. Akbar, No. 13-7001/AR

stabbing incident in the newspaper, he stated he could put the

event out of his mind.   Therefore, the military judge did not

err in failing to sua sponte disqualify MH.

     Eighth, Appellant challenges ten other panel members

because of their knowledge of the March 30 stabbing incident.

We note, however, that panel members are not automatically

disqualified simply because they have learned facts about an

accused from outside sources.   Cf. Murphy v. Florida, 421 U.S.

794, 799 (1975) (noting that defendant is not presumptively

deprived of his due process rights if juror is exposed “to

information about a state defendant’s prior convictions or to

news accounts of the crime with which he is charged”).   These

ten challenged panel members, along with SGM MH, generally

reported learning something along the lines of Appellant

overpowering an MP, scuffling with an MP, or stabbing an MP.

However, to the extent that the members were asked, they

uniformly expressed their ability to lay aside their knowledge

of these events in rendering a verdict in this case, which

vitiates Appellant’s claim of actual bias.    Cf. Murphy, 421 U.S.

at 800-01 (noting in finding no due process violation that no

jurors “betrayed any belief in the relevance of [the

defendant’s] past to the present case”); United States v.

McVeigh, 153 F.3d 1166, 1184 (10th Cir. 1998) (finding no actual

bias despite some members learning of appellant’s confession



                                79
United States v. Akbar, No. 13-7001/AR

from news reports where jurors indicated they could keep an open

mind).

     In terms of implied bias, we find none in this instance

because trial defense counsel made no attempt to have the

members excused based on their knowledge of the stabbing

incident, trial defense counsel adequately explored their

concerns during the voir dire process, and the members stated

that they would judge the case on the merits rather than decide

the case based on this incident.     Therefore, the military judge

did not abuse his discretion by declining to sua sponte dismiss

these panel members.

     Ninth, and finally, Appellant challenges seven members

because of their initial negative reactions to Appellant’s

attack.   Specifically, these members expressed “shock” (or a

similar emotion) upon first learning about the events at Camp

Pennsylvania.   However, we note the long-standing principle that

a member “is not disqualified just because he has been exposed

to pretrial publicity or even has formulated an opinion as to

the guilt or innocence of an accused on the basis of his

exposure.”   United States v. Calley, 22 C.M.A. 534, 537,

48 C.M.R. 19, 22 (1973); see also United States v. Barraza,

576 F.3d 798, 803 (8th Cir. 2009) (“An initial impression about

a case does not disqualify a [member] if the [judge] accepts the

[member’s] assurances that he or she will set aside any



                                80
United States v. Akbar, No. 13-7001/AR

preconceived beliefs and follow the court’s instructions.”);

United States v. Iribe-Perez, 129 F.3d 1167, 1171 n.4 (10th Cir.

1997) (noting that although “noteworthy trials” will “pique the

interest of the public” and will lead “many potential jurors

[to] have formed initial impressions about the case,” a juror

will not be disqualified unless he cannot set aside the initial

impressions).

     We find the members’ initial reactions to Appellant’s

crimes to be neither unreasonable nor unexpected.   Cf. Irvin,

366 U.S. at 722 (noting that an “important case can be expected

to arouse the interest of the public” so most jurors will have

“formed some impression or opinion as to the merits of the

case”).   And importantly, the members’ voir dire responses

indicated that their initial reactions would not impact their

view of the case or affect their decisions in the course of the

court-martial.   Therefore, the members’ initial reactions did

not provide the military judge with a sua sponte basis to

dismiss the challenged members.    See Calley, 22 C.M.A. at 538,

48 C.M.R. at 23 (holding after careful consideration of voir

dire that “none . . . had formed unalterable opinions about

[appellant’s] guilt from the publicity”).

                              E. Venue

     Appellant asserts that his trial venue should have been

moved because of pervasive pretrial publicity at Fort Bragg.     We



                                  81
United States v. Akbar, No. 13-7001/AR

review this challenge for an abuse of discretion.   Loving,

41 M.J. at 282.   Servicemembers are entitled to have their cases

“adjudged by fair and impartial court-martial panels whose

evaluation is based solely upon the evidence,” not pretrial

publicity.   United States v. Simpson, 58 M.J. 368, 372 (C.A.A.F.

2003).   Pretrial publicity by itself is not enough, however, for

a change of venue.   Curtis, 44 M.J. at 124.   Instead, an accused

is entitled to a change of venue if the “pretrial publicity

creates ‘so great a prejudice against the accused that the

accused cannot obtain a fair and impartial trial.’”   Loving,

41 M.J. at 254 (quoting R.C.M. 906(b)(11) Discussion).

     Appellant’s change of venue argument is meritless.    The

convening authority had already moved Appellant’s case to Fort

Bragg from Fort Campbell, the headquarters for Appellant’s unit.

Further, the military judge determined that the pretrial

publicity was not inflammatory and had not saturated the

community.   In addition, as the above panel bias discussion

demonstrates, the voir dire process uncovered no fixed opinions

of Appellant’s case that rose to the level of actual prejudice.

See Simpson, 58 M.J. at 372 (defining actual prejudice).

Finally, Appellant’s position that the military community’s

knowledge of his notorious crimes, standing alone, served as a

basis for a change of venue would, if adopted, essentially have

precluded the military from conducting Appellant’s court-martial



                                82
United States v. Akbar, No. 13-7001/AR

at any military installation.    The military judge therefore did

not abuse his discretion in denying Appellant’s request to

change venue.

                         F. Conflict of Interest

        Appellant raises a number of alleged conflicts of interest

in this case, but we find only one merits discussion -- trial

defense counsels’ working relationship with one of the victims,

CPT Andras Marton, who served with the Army Judge Advocate

General’s Corps.    At an Article 39(a), UCMJ, hearing, MAJ

Brookhart and CPT Coombs informed the military judge about their

“strictly professional” relationship with CPT Marton.     Counsel

explained that they had tried cases against CPT Marton, but did

not have further contact with him.     Appellant acknowledged that

he was aware of the possible conflict and had the right to be

represented by conflict-free counsel, but he expressly wanted

MAJ Brookhart and CPT Coombs to continue representing him due to

his familiarity with counsel and their familiarity with his

case.

        An accused has the right to conflict-free legal

representation.    See United States v. Lee, 66 M.J. 387, 388

(C.A.A.F. 2008); United States v. Murphy, 50 M.J. 4, 10

(C.A.A.F. 1998).    However, he may waive this right so long as it

is knowing and voluntary.    United States v. Davis, 3 M.J. 430,

433 n.16 (C.M.A. 1977).



                                  83
United States v. Akbar, No. 13-7001/AR

     Although trial defense counsels’ relationship with a victim

raises some obvious concerns, it does not establish reversible

error because Appellant knowingly and voluntarily waived the

issue.   The military judge engaged in an open discussion with

Appellant about the potential conflict.   Following this

discussion, Appellant informed the military judge that he wanted

to waive any conflict or potential conflict.   The post-trial

affidavits alleging a conflict do not outweigh these

considerations because the affidavits are conclusory in nature

and are contradicted by trial defense counsel’s own statements

and by the record.

                G. Trial Defense Counsel Assignments

     Appellant complains about unlawful command influence and

prosecutorial misconduct stemming from the Government’s control

of trial defense counsels’ assignments.   Indeed, the record

shows that the lead Government trial counsel arranged for MAJ

Brookhart and CPT Coombs to be placed in positions that would

not conflict with their roles as Appellant’s trial defense

counsel.   However, because Appellant never objected at trial to

trial counsels’ role in these assignments, we review the

arguments for plain error.   See Halpin, 71 M.J. at 479-80.

     Appellant cites no case law, and we are aware of none,

finding prosecutorial misconduct under similar facts.   Although

this point is not dispositive because this could be an issue of



                                84
United States v. Akbar, No. 13-7001/AR

first impression, it does tend to show that trial counsels’

input into the trial defense counsels’ assignments does not

plainly or obviously constitute prosecutorial misconduct.    See

United States v. Tarleton, 47 M.J. 170, 172 (C.A.A.F. 1997)

(noting that “the absence of controlling precedent favorable to

appellant demonstrates that the error, if any, was not plain

error”).   But importantly, in reaching our decision on

Appellant’s prosecutorial misconduct argument and also his

unlawful command influence argument, we rely heavily on the fact

that Appellant has not demonstrated any unfairness in the

proceedings based on defense counsels’ assignments.   See

Simpson, 58 M.J. at 373 (noting there is no unlawful command

influence claim where there is no evidence of unfairness in the

proceedings); United States v. Meek, 44 M.J. 1, 6 (C.A.A.F.

1996) (holding that prosecutorial misconduct claim reviewed for

prejudice); see also Smith v. Phillips, 455 U.S. 209, 219 (1982)

(noting that “touchstone of due process analysis in cases of

alleged prosecutorial misconduct is the fairness of the trial”).

Indeed, the record of trial indicates that trial counsels’

actions were intended to assist Appellant by ensuring that his

counsel remained available to him.   We therefore see no basis

for concluding there was prosecutorial misconduct and/or

unlawful command influence in this case.




                                85
United States v. Akbar, No. 13-7001/AR

              H. Trial Defense Counsels’ Qualifications

     Appellant and amicus raise three distinct arguments about

trial defense counsels’ qualifications, but as demonstrated

below, none of them provides a basis for relief.     First,

Appellant contends that trial defense counsel did not have the

training or experience necessary to effectively defend him in

this case, and challenges the CCA’s conclusions that counsel

were “well-qualified.”   However, after reviewing trial defense

counsels’ extensive legal experience as summarized at the

beginning of this opinion, we reject Appellant’s argument

outright and agree with the CCA’s conclusion that counsel were

“well-qualified.”

     Second, in its brief, amicus curiae advocates that we adopt

and apply to the instant case the provisions of Guideline 5.1 of

the American Bar Association (ABA) Guidelines for the

Appointment and Performance of Counsel in Death Penalty Cases.

This guideline seeks to establish minimum qualifications for

counsel in capital cases.   In addressing this issue, we take

particular note of the Supreme Court’s memorable observation in

Ring v. Arizona:    “[D]eath is different.”    536 U.S. 584, 606

(2002).   Congress has recognized as much in civilian federal

cases by requiring the services of at least one counsel “learned

in the law applicable to capital cases.”      18 U.S.C. § 3005

(2012).   Congress has even extended this requirement of “learned



                                 86
United States v. Akbar, No. 13-7001/AR

counsel” to alleged terrorists being prosecuted in military

commissions.   See 10 U.S.C. § 949a(b)(2)(C)(ii) (2012).    We

further note that even in the absence of congressional action,

the judge advocates general could take unilateral steps to

improve the process by which trial litigators are selected in

capital cases, and to enhance their training and qualifications.

Indeed, LTC Hansen, who we pointedly note was summarily

dismissed by Appellant, serves as an example of someone who was

particularly well qualified to litigate a capital case.

However, as an Article I court, we also note that -- absent

constitutional implications in a particular case or

congressional authorization -- it is beyond our authority to

impose the learned counsel qualification advocated by amicus.

Indeed, in the past we have similarly considered and rejected

claims that learned counsel must participate in military capital

cases.   See, e.g., Gray, 51 M.J. at 54; Curtis, 44 M.J. at 127;

Loving, 41 M.J. at 300.   Nonetheless, “we remain vigilant as to

the quality of representation provided servicemembers in capital

cases in the military justice system.”   Gray, 51 M.J. at 54.

     Finally, Appellant and amicus argue that we should adopt

the ABA Guidelines in analyzing capital defense counsels’

performance.   However, we instead adhere to the Supreme Court’s

guidance that “[n]o particular set of detailed rules for

counsel’s conduct can satisfactorily take account of the variety



                                87
United States v. Akbar, No. 13-7001/AR

of circumstances faced by defense counsel or the range of

legitimate decisions regarding how best to represent a criminal

defendant.”    Strickland, 466 U.S. at 688-89.    We therefore do

not adopt the ABA Guidelines as the ultimate standard for

capital defense representation in the military.     See Pinholster,

131 S. Ct. at 1407 (“It is ‘[r]are’ that constitutionally

competent representation will require ‘any one technique or

approach.’”) (quoting Richter, 562 U.S. at 89).      Instead, we

examine whether “counsel [made] objectively reasonable choices”

based on all the circumstances of a case.     Van Hook, 558 U.S. at

9 (quoting Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000)).

                         I. Mitigation Evidence

        Appellant contends that the panel’s consideration of

mitigation evidence was unconstitutionally limited by the

prohibition against guilty pleas in capital cases, which is

contained in Article 45(b), UCMJ.      This challenge is meritless

based on our prior case law.    Gray, 51 M.J. at 49; Loving,

41 M.J. at 292; United States v. Matthews, 16 M.J. 354, 362-63

(C.M.A. 1983).    It is also meritless under the facts of this

case.    Appellant refused to allow his counsel to submit any

offers to plead guilty, so this potential mitigation evidence

would never have been available for him to present at trial.




                                  88
United States v. Akbar, No. 13-7001/AR

               J. Exclusion of Occupational Branches

     Appellant is correct that the exclusion of nine

occupational branches from court-martial service in this case

pursuant to Army Regulation (AR) 27-10 would have conflicted

with the statutorily defined criteria in Article 25, UCMJ, 10

U.S.C. § 825 (2012).   See United States v. Bartlett, 66 M.J.

426, 429 (C.A.A.F. 2008).   We conclude, however, that here there

was no impermissible selection of panel members.

     It is true that the initial convening authority was advised

that he had to select the panel in accordance with AR 27-10.

However, when the succeeding convening authority made his

selections he was informed by the acting staff judge advocate:

(1) “[Y]ou must detail those members who, in your opinion, are

best qualified for the duty by virtue of their age, education, .

. . and judicial temperament”; and (2) “You may . . . choose

anyone in your general court-martial jurisdiction for service as

a court member provided you believe they meet the Article 25

criteria listed above.”   We recognize that the succeeding

convening authority adopted his predecessor’s panel pool, but

the succeeding convening authority did not act pursuant to the

improper AR 27-10 instruction, but instead acted based on proper

legal advisement in accordance with Article 25, UCMJ, criteria.

     Also, even if the panel was impermissibly selected pursuant

to AR 27-10, we conclude that the Government has met its burden



                                89
United States v. Akbar, No. 13-7001/AR

of showing any error was harmless.    As the Government

demonstrates, the six circumstances which this Court identified

and relied upon in deciding Bartlett, 66 M.J. at 431, as showing

harmless error are also present here:    (1) there is no evidence

that the Secretary of the Army acted with an improper motivation

in promulgating AR 27-10; (2) the convening authority followed a

facially valid regulation without an improper motive; (3) the

convening authority had authority to convene a general-court

martial; (4) Appellant was sentenced by members who were

selected by the convening authority; (5) Appellant was sentenced

by members who met the Article 25, UCMJ, criteria; and (6) the

military judge noted that the panel had female and African

American representation.   We therefore find no reversible error

in the convening authority’s selection of the panel’s venire.

                  K. CCA Ruling on Appellate Experts

       Appellant claims that the CCA erred in denying his request

for appellate assistance by mental health experts.     The CCA

concluded that Appellant had failed to sufficiently show that

the expert assistance was necessary.    We review this decision

for an abuse of discretion.   Gray, 51 M.J. at 20.     An abuse of

discretion arises if the CCA’s factual findings are clearly

erroneous or if its decision is based on a misapplication of the

law.   See United States v. Taylor, 47 M.J. 322, 325 (C.A.A.F.




                                 90
United States v. Akbar, No. 13-7001/AR

1997).    Neither factor applies in this instance, and we find no

abuse of discretion in the CCA’s denial of expert assistance.

                   L. Military Judge’s Instructions

     Appellant challenges two instructions by the military

judge:    (1) the sentencing instruction relating to weighing

mitigating and aggravating factors; and (2) the instruction on

reconsidering the sentence.   Ordinarily, we review the adequacy

of a military judge’s instructions de novo.    United States v.

MacDonald, 73 M.J. 426, 434 (C.A.A.F. 2014).    However, if an

appellant fails to object to the instruction at trial, we review

for plain error.   United States v. Thomas, 46 M.J. 311, 314

(C.A.A.F. 1997); R.C.M. 1005(f).

     1.    Sentencing

     The military judge instructed the panel that to impose a

death sentence, it had to unanimously determine, in relevant

part, (1) “beyond a reasonable doubt, that the aggravating

factor existed,” and (2) that “the extenuating and mitigating

circumstances are substantially outweighed by the aggravating

circumstances.”    Appellant now argues that the military judge

should have instructed the members that they had to find that

the aggravating circumstances outweighed the mitigating

circumstances beyond a reasonable doubt.   Appellant bases this

argument on his reading of the Supreme Court’s decisions in

Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v.



                                 91
United States v. Akbar, No. 13-7001/AR

Arizona, 536 U.S. 584 (2002), which stand for the proposition

that a jury must find beyond a reasonable doubt aggravating

factors that are necessary to impose the death penalty.    See

Ring, 536 U.S. at 609; Apprendi, 530 U.S. at 490.   However,

contrary to Appellant’s assertion, these cases do not require

any particular standard of proof with regard to weighing the

aggravating and mitigating circumstances.   United States v.

Gabrion, 719 F.3d 511, 533 (6th Cir. 2013) (en banc) (joining

six other federal circuits in concluding that decision weighing

aggravating and mitigating did not have to be proven beyond a

reasonable doubt); Lockett v. Trammel, 711 F.3d 1218, 1253 (10th

Cir. 2013).   Indeed, the Supreme Court itself has indicated that

the beyond a reasonable doubt standard is unnecessary in

weighing aggravating and mitigating factors.   See Kansas v.

Marsh, 548 U.S. 163, 173 (2006) (noting that state could place

burden on defendant to prove mitigating circumstances outweighed

aggravating circumstances); id. at 174 (noting that states have

“a range of discretion in imposing the death penalty, including

the manner in which aggravating and mitigating circumstances are

to be weighed”).   We therefore find no error in the military

judge’s sentencing instruction.

     2.   Reconsideration

     After the members requested reconsideration of their

sentence, the military judge, without objection and with



                                  92
United States v. Akbar, No. 13-7001/AR

Appellant’s consent, provided the members with the standard

Benchbook reconsideration instruction 2-7-19.     Dep’t of the

Army, Pam. 27-9, Legal Service, Military Judges Benchbook ch. 2

§ VII, para. 2-7-19 (2010).    Appellant now claims the military

judge should have instructed the members either (1) not to

impose death if they had initially voted for life or,

alternatively, (2) to follow the R.C.M. 1004 deliberative

process during reconsideration.21     The parties agree that

Appellant forfeited this issue by failing to raise it at trial,

so we review this claim for plain error.     See Thomas, 46 M.J. at

314.

       We find no plain or obvious error in the military judge’s

reconsideration instruction.   First, Appellant has cited no case

law to support his position that “R.C.M. 1009 does not authorize

a panel to reconsider its sentencing determination with a view

toward increasing a sentence to death.”     There also is no

factual support for Appellant’s position because the record does

not indicate whether the panel requested reconsideration in



21
  Panel members are required to make four unanimous findings
before imposing the death penalty: (1) the accused was guilty
of an offense that authorized the imposition of the death
penalty, R.C.M. 1004(a)(1)-(2); (2) one aggravating factor
existed beyond a reasonable doubt, R.C.M. 1004(b)(7); (3) “the
extenuating or mitigating circumstances [were] substantially
outweighed by any aggravating circumstances,” R.C.M.
1004(b)(4)(C); and (4) the accused should be sentenced to death,
R.C.M. 1006(d)(4)(A). See also United States v. Simoy, 50 M.J.
1, 2 (C.A.A.F. 1998).

                                 93
United States v. Akbar, No. 13-7001/AR

order to increase Appellant’s sentence to death or to decrease

his sentence.   Second, we are not persuaded that a plain reading

of the text of this rule mandates this conclusion.   For

instance, R.C.M. 1009(e)(3)(A), which identifies the number of

votes needed to increase a sentence on reconsideration, does not

provide an exception in death penalty cases.   The

reconsideration provision for decreasing a sentence, on the

other hand, does contain a specific provision for death cases.

See R.C.M. 1009(e)(3)(B)(i).   Because R.C.M. 1009 does not

explicitly prohibit the panel from reconsidering a sentence in a

capital case with a view to increasing the sentence to death, we

conclude that the military judge’s reconsideration instruction

was not plainly erroneous.   Without case law or the text of

R.C.M. 1009 clearly supporting Appellant’s claim, we find no

plain or obvious error.   See United States v. Nieto, 66 M.J.

146, 150 (C.A.A.F. 2008) (finding no clear or obvious error

where “at the time of trial, the case law from this Court did

not preclude trial counsel’s questions, generally applicable

federal criminal law did not provide guidance on point, and only

a handful of state cases addressed this matter”).

     Third, Appellant has not demonstrated that it was plain

error for the military judge to authorize a revote without

repeating the required instructions under R.C.M. 1004(b)(6).    In

regard to this argument, it is sufficient to note that the



                                94
United States v. Akbar, No. 13-7001/AR

military judge read, with Appellant’s express agreement,

Benchbook instruction 2-7-19, which specifically instructed the

members to “adhere to all my original instructions for proposing

and determining an appropriate sentence.”    We therefore find no

reversible error stemming from the military judge’s

reconsideration instruction.

                         M. Motion to Suppress

     Appellant argues that the military judge’s decision to

admit Appellant’s confession under the public safety exception

was error because the confession was obtained in violation of

his Article 31(b), UCMJ, 10 U.S.C. § 831(b) (2012), and Miranda22

rights.23    The following facts serve as the basis for this

challenge.


22
  Miranda v. Arizona, 384 U.S. 436 (1966).
23
  Because Appellant frames the issue in the context of the
public safety exception, we discuss this exception infra. We
note, however, that other grounds also support the conclusion
that MAJ Warren’s brief questioning under the attendant
circumstances did not violate Appellant’s Article 31(b), UCMJ,
rights. Our case law provides that these warnings are not
required when an accused’s questioner is “fulfill[ing] his
operational responsibilities” and not attempting “to evade
constitutional or codal rights.” United States v. Loukas, 29
M.J. 385, 389 (C.M.A. 1990). Here, MAJ Warren, who served as an
intelligence officer, tasked himself with security following
Appellant’s attack. MAJ Warren’s purpose was operational as
demonstrated by the obvious safety concerns and his limited
questioning of Appellant. MAJ Warren also was not seeking to
avoid Appellant’s statutory or constitutional rights. Given the
urgency of the threat to Camp Pennsylvania after Appellant’s
attack and MAJ Warren’s ad hoc security position, we find that
MAJ Warren was acting in an operational capacity and conclude
there was no need to provide Appellant with an Article 31(b),
UCMJ, warning. Loukas, 29 M.J. at 389.

                                  95
United States v. Akbar, No. 13-7001/AR

     Shortly after Appellant’s attack on the brigade officers at

Camp Pennsylvania, COL Hodges informed MAJ Warren, who was

coordinating security:   “This may be one of our own.   2d

Battalion is missing an engineer soldier.    His name is Sergeant

Akbar. . . . There’s some ammo missing.”    Soon after this

briefing, MAJ Warren found Appellant, grabbed him, and forced

him to lie face down on the ground.    Once Appellant was on the

ground, MAJ Warren pointed his firearm at Appellant while

holding him down with his left hand.   He then told Appellant not

to move.    After reholstering his firearm as another soldier

stood guard, MAJ Warren kneeled down, looked directly at

Appellant’s face, and asked Appellant, “Did you do this?      Did

you bomb the tent?”   Appellant responded, “Yes.”   Prior to

questioning Appellant, MAJ Warren did not give Appellant any

Article 31(b), UCMJ, warnings.

     We conclude that the military judge did not abuse his

discretion in admitting Appellant’s confession.     The Supreme

Court has recognized a public safety exception to Miranda

warnings.   New York v. Quarles, 467 U.S. 649, 655-56 (1984).       We

have extended this exception to Article 31, UCMJ, rights

advisements “when life is endangered.”    United States v. Jones,

26 M.J. 353, 357 (C.M.A. 1988); see also United States v.

Morris, 28 M.J. 8, 14 (C.M.A. 1989).     In an instance such as

this one, an unwarned statement is inadmissible under Article



                                 96
United States v. Akbar, No. 13-7001/AR

31(b), UCMJ, unless (1) the statement falls within the public

safety exception and (2) the statement was voluntary.    Jones, 26

M.J. at 357; cf. Quarles, 467 U.S. at 654 (noting that in

absence of evidence of compelled confession, Court was only

examining whether public safety justified failure to give

Miranda warning).     Appellant challenges only the public safety

exception aspect of this test.

        We conclude that the public safety exception did apply to

Appellant’s statement.    MAJ Warren conducted his questioning of

Appellant in a combat staging area shortly after Appellant’s

deadly attack on the brigade’s officer corps on the eve of

battle.    At the time MAJ Warren questioned Appellant, the

perpetrator of the attack remained at large and his identity was

unclear.    MAJ Warren’s questioning ensured that no further life

would be endangered by seeking to definitively ascertain the

identity of the attacker.    Once MAJ Warren obtained the

admission, he ceased all questioning, further indicating that

the questions were elicited solely to secure the safety of the

Camp.    See Quarles, 467 U.S. at 659 (observing applicability of

public safety exception where law enforcement “asked only the

question necessary to locate the missing gun before advising

respondent of his rights”).    Under these circumstances, the




                                  97
United States v. Akbar, No. 13-7001/AR

military judge did not err in concluding the public safety

exception applied.24

     Even assuming that the admission of Appellant’s confession

was error, it was harmless beyond a reasonable doubt.    The

admission of a confession is prejudicial if, after reviewing the

entire record of an individual case, “‘there is a reasonable

possibility that the evidence complained of might have

contributed to the conviction.’”    United States v. Mott, 72 M.J.



24
  We note that whether Appellant’s admission was voluntary is a
closer question. When evaluating the voluntariness of a
statement, we “review the totality of the circumstances to
determine whether Appellant’s ‘will was overborne and his
capacity for self-determination was critically impaired.’”
United States v. Chatfield, 67 M.J. 432, 439 (C.A.A.F. 2009)
(quoting United States v. Bubonics, 45 M.J. 93, 95 (C.A.A.F.
1996)). This inquiry examines “the accused’s age, education,
experience and intelligence.” Id. at 439-40. Certain factors
support the position that Appellant’s statement was coerced,
such as Appellant being physically secured and questioned by a
superior commissioned officer. See United States v. Jones, 73
M.J. 357, 360 (C.A.A.F. 2014) (noting existence of subtle
pressures in military society when questioned by military
superior); United States v. Morris, 49 M.J. 227, 230 (C.A.A.F.
1998) (examining whether physical abuse was factor in
confession). We also recognize that MAJ Warren pointed a weapon
at Appellant, but the military judge found that Appellant “never
saw the weapon pointed at him.” Appellant does not state why
this finding is clearly erroneous, so we do not consider MAJ
Warren’s brandishing the weapon in our analysis. Further, any
other coercive factors were minimal, and we therefore find under
the totality of the circumstances that Appellant’s confession
was voluntary given his age, his college education, his rank as
an NCO, and his intelligence. See Morris, 49 M.J. at 230
(noting accused’s age and education as factors in determining
coercive nature of interrogation). Cf. United States v.
Carroll, 207 F.3d 465, 472 (8th Cir. 2000) (finding use of
physical force to subdue defendant resisting arrest did not
render confession involuntary).

                               98
United States v. Akbar, No. 13-7001/AR

319, 332 (C.A.A.F. 2013) (quoting United States v. Moran,

65 M.J. 178, 187 (C.A.A.F. 2007)).    Appellant’s confession

presents no such reasonable possibility because Appellant did

not contest his identity as the attacker at the court-martial.

Also, there was overwhelming evidence that Appellant was

responsible for the attack, including Appellant’s fingerprints

on the generator switch, the rounds from Appellant’s weapon

matched the rounds used in the attack, and Appellant’s

possession of grenades when apprehended.   See United States v.

Powell, 49 M.J. 460, 464 (C.A.A.F. 1998) (explaining that

Supreme Court in Arizona v. Fulminante, 499 U.S. 279 (1991),

found admission of an involuntary confession harmless where

there was overwhelming evidence of guilt).   This overwhelming

evidence directly linked Appellant to the attack, and we find

that any error in admitting Appellant’s admission was harmless

beyond a reasonable doubt.

                 N. Military Capital Case Procedures

     Appellant challenges the constitutionality of three aspects

of the military capital procedures:   (1) the congressional

delegation of capital sentencing procedures to the President;

(2) R.C.M. 1004’s authorization for the convening authority to

add aggravating elements at referral; and (3) the lack of a

system to ensure consistent application of the death penalty in

the military.   None of these challenges warrants relief.



                                99
United States v. Akbar, No. 13-7001/AR

     First, the Supreme Court has already upheld the

congressional delegation of the R.C.M. 1004 capital sentencing

procedures to the President in United States v. Loving, 517 U.S.

748 (1996).   Appellant claims that the Supreme Court’s decision

in Ring v. Arizona, 536 U.S. at 608-09, “overruled Loving sub

silentio.”    However, the Supreme Court has instructed:   “If a

precedent of this Court has direct application in a case, yet

appears to rest on reasons rejected in some other line of

decisions, the [lower court] should follow the case which

directly controls, leaving to [the Supreme Court] the

prerogative of overruling its own decisions.”   Rodriguez de

Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).

Consistent with this mandate, we will continue to adhere to the

holding in Loving unless the Supreme Court decides at some point

in the future that there is a basis to overrule that precedent.

As a result, we reject Appellant’s constitutional challenge to

R.C.M. 1004 on the basis that it constitutes an improper

delegation of power.

     Second, Appellant argues that R.C.M. 1004 violates his due

process rights by allowing the convening authority to add and

amend aggravating factors at the time of referral.   The relevant

R.C.M. 1004 provision states:

     Before arraignment, trial counsel shall give the
     defense written notice of which aggravating factors
     under subsection (c) of this rule the prosecution
     intends to prove. Failure to provide timely notice


                                 100
United States v. Akbar, No. 13-7001/AR

     under this subsection of any aggravating factors under
     subsection (c) of this rule shall not bar later notice
     and proof of such additional aggravating factors
     unless the accused demonstrates specific prejudice
     from such failure and that a continuance or a recess
     is not an adequate remedy.

R.C.M. 1004(b)(1) (2005 ed.).   In this case, the charge sheet

omitted the R.C.M. 1004(c) aggravating factors, but it contained

special instructions that the court-martial “be tried as a

capital case.”   In accordance with R.C.M. 1004(b)(1), the

Government notified Appellant prior to arraignment of the two

aggravating factors it intended to prove.25

     An aggravating factor that renders an accused eligible for

death is “the functional equivalent of an element of a greater

offense.”    Ring, 536 U.S. at 609 (quoting Apprendi, 530 U.S. at

494 n.19).   The Supreme Court has determined that the Fifth

Amendment’s due process clause and the Sixth Amendment’s notice

and jury trial guarantees require any fact “that increases the

maximum penalty for a crime [to be] charged in an indictment,

submitted to a jury, and proven beyond a reasonable doubt.”

Jones v. United States, 526 U.S. 227, 243 n.6 (1999).    For

purposes of this appeal, we assume that the Government must

allege in the charge sheet the aggravating factor as a

functional equivalent of an element, and we therefore further


25
  Following Appellant’s conviction, the Government, without
objection from Appellant, withdrew one of the aggravating
factors, leaving only one -- that there were multiple
convictions of premeditated murder in the case.

                                 101
United States v. Akbar, No. 13-7001/AR

assume that the Government erred in failing to allege the

aggravating factor on the charge sheet in the instant case.

     Federal circuit courts have labeled this type of charging

error as an “Apprendi error.”   See, e.g., United States v.

Robinson, 367 F.3d 278, 285 (5th Cir. 2004) (defining “Apprendi

error” as “the failure of an indictment specifically to charge

aggravating factors regarded as elements because they increase

the maximum available punishment”).    Those circuit courts that

have examined the issue have determined such a charging error is

subject to harmless error review.     See, e.g., id. at 286

(concluding that Apprendi error is not a structural error and

subject to harmless error review); see also 5 Wayne R. LaFave et

al., Criminal Procedure § 19.3, at 265 (3d ed. 2007) (Circuit

courts have “almost uniformly held that the failure of the

indictment to include the Apprendi-element, like the failure to

submit that element to the jury, [is] subject to harmless error

review.”).   Our case law also indicates that this type of

Apprendi error would be subject to harmless error review.     See

United States v. Humphries, 71 M.J. 209, 215 (C.A.A.F. 2012)

(noting that each case in which an element was not alleged “must

be reviewed for harmless error to determine whether the

constitutional error was harmless beyond a reasonable doubt”).

Because Appellant preserved the charging issue at trial, the

Government bears the burden of establishing the error was



                                102
United States v. Akbar, No. 13-7001/AR

harmless beyond a reasonable doubt.   See id. at 213 n.5; United

States v. Savala, 70 M.J. 70, 77 (C.A.A.F. 2011).    A

specification’s failure to allege an element is not harmless if

this “error frustrated an accused’s right to notice and

opportunity to zealously defend himself.”    United States v.

Gaskins, 72 M.J. 225, 233 (C.A.A.F. 2013).

     The Government has established that any error in failing to

allege the aggravating factor in the charge sheet was harmless.

First, the fundamental essence of the aggravating factor

ultimately pursued by the Government -- multiple murder (R.C.M.

1004(c)(7)(J)) -- already appeared on the charge sheet as

Appellant was charged in separate specifications with murdering

CPT Seifert and MAJ Stone, and the investigating officer

recommended that both specifications go forward.    Cf. Robinson,

367 F.3d at 288-89 (concluding that Apprendi error was harmless

in part where there was sufficient evidence that grand jury

would have indicted had it known the proper elements).    Second,

the Government has demonstrated that Appellant’s trial defense

counsel could not articulate how he would have altered his

strategy at the Article 32, UCMJ, 10 U.S.C. § 832 (2012),

hearing had the charge sheet specifically alleged the

aggravating factor.   Finally, Appellant received actual notice

of the aggravating factors prior to his arraignment pursuant to

R.C.M. 1004(c)(1) allowing him ample opportunity to prepare for



                                103
United States v. Akbar, No. 13-7001/AR

the aggravating factor.   See Robinson, 367 F.3d at 287 (finding

Apprendi error harmless in part where defendant had sufficient

notice and opportunity to defend against aggravating factor).

We therefore conclude that any error in failing to allege the

aggravating factor in the charge sheet was harmless.   Because we

resolve Appellant’s due process argument on harmless error

grounds, we do not need to reach the issue of whether R.C.M.

1004 is unconstitutional in the instant case.   However, we note

that Appellant has raised a viable question as to whether

adherence to the provisions of R.C.M. 1004(b)(1) may violate

Fifth Amendment due process rights.   See Ring, 536 U.S. at 609;

Apprendi, 530 U.S. at 490; Jones, 526 U.S. at 243 n.6; United

States v. Fosler, 70 M.J. 225, 229-30, 232 (C.A.A.F. 2011); cf.

United States v. Lawrence, 735 F.3d 385, 420 (6th Cir. 2013)

(“After Ring, several courts have held that an indictment

charging a death-eligible offense under the [Federal Death

Penalty Act] must charge the statutory aggravating factors.”).

     Third, citing the provisions in the United States

Attorneys’ Manual that set forth policies and procedures in

federal civilian capital cases, Appellant claims the military’s

failure to create similar procedures violates his Article 36,

UCMJ, rights and his Fifth Amendment equal protection rights.

Appellant’s reliance on Article 36, UCMJ, is unpersuasive

because this article does not require the President to prescribe



                                104
United States v. Akbar, No. 13-7001/AR

similar policies for military death penalty cases.   See Article

36(a), UCMJ, 10 U.S.C. 836(a) (2012) (noting that pretrial

procedures “may be prescribed by the President, which shall, so

far as he considers practicable, apply the principles of law and

the rules of evidence generally recognized in the trial of

criminal cases in the United States district courts”).

     Appellant’s equal protection argument is equally

unpersuasive.   Appellant asserts that servicemembers who are

death-eligible are treated differently than their similarly

situated civilian counterparts because convening authorities do

not have to comply with death penalty protocols.    “An ‘equal

protection violation’ is discrimination that is so unjustifiable

as to violate due process.”   United States v. Rodriguez-Amy,

19 M.J. 177, 178 (C.M.A. 1985).    However, “equal protection is

not denied when there is a reasonable basis for a difference in

treatment.”   United States v. McGraner, 13 M.J. 408, 418 (C.M.A.

1982).   We do not find any unjustifiable discrimination in the

instant case because Appellant, as an accused servicemember, was

not similarly situated to a civilian defendant.    See Parker v.

Levy, 417 U.S. 733, 743 (1974) (“[T]he military is, by

necessity, a specialized society separate from civilian

society.”).   We also note that “[t]he policy of the Justice

Department is but an internal policy, without the force of law

and subject to change or suspension at any time.”    Therefore, it



                                  105
United States v. Akbar, No. 13-7001/AR

does not serve as the basis for an equal protection violation.

See United States v. Jones, 527 F.2d 817, 822 (D.C. Cir. 1975);

cf. United States v. Lopez-Matias, 522 F.3d 150, 156-57 (1st

Cir. 2003) (concluding United States Attorneys’ Manual on death

penalty protocols did not confer substantive rights).26

Accordingly, we conclude there was no equal protection

violation.

              O. Constitutionality of Death Sentence

     Appellant contends that his death sentence violates (1) his

Fifth Amendment rights because he has been denied due process

and (2) his Eighth Amendment rights because his mental illness

renders the punishment disproportionate to his culpability.    We

conclude that the claim of a Fifth Amendment due process

violation is too vague to merit relief.27

     Similarly, we are unpersuaded by Appellant’s Eighth

Amendment claim.   First, courts have uniformly determined that

there is no constitutional impediment to imposing a capital


26
   In his reply brief, Appellant notes two other differences
between the military and civilian systems: (1) the military
system did not allow him to be tried by a military judge alone;
and (2) the military system only provided one peremptory
challenge instead of the twenty permitted in the civilian
system. While we recognize differences exist, we find no
unjustifiable differences that rise to the level of an equal
protection violation.
27
   We also doubt that we have the authority to hold “capital
punishment per se violative of due process.” See United States
v. Sampson, 486 F.3d 13, 28 (1st Cir. 2007) (citing Chapman v.
United States, 500 U.S. 453, 465 (1991)); United States v.
Quinones, 313 F.3d 49, 70 (2d Cir. 2002).

                                106
United States v. Akbar, No. 13-7001/AR

sentence where a criminal defendant suffers from a mental

illness.28   See, e.g., Mays v. Stephens, 757 F.3d 211, 219 (5th

Cir. 2014) (noting that no Supreme Court case has “created a

rule of constitutional law making the execution of mentally ill

persons unconstitutional”); Franklin v. Bradshaw, 695 F.3d 439,

 455 (6th Cir. 2012) (noting “no authorities have extended

[Supreme Court precedent] to prohibit the execution of those

with mental illnesses”); Carroll v. Secretary, DOC, 574 F.3d

1354, 1369 (11th Cir. 2009); Baird v. Davis, 388 F.3d 1110, 1114

(7th Cir. 2004) (noting Supreme Court has not ruled on

executions of those “who kill under an irresistible impulse”).

     Second, Appellant’s specific mental illness did not make

his death sentence highly disproportionate to his culpability.

The Eighth Amendment prohibits punishments, including the death

penalty, that are greatly disproportionate to the culpability of

the accused, and thus “individualized consideration” is

constitutionally required in imposing the death sentence.

Enmund v. Florida, 458 U.S. 782, 798 (1982) (quoting Lockett v.

Ohio, 438 U.S. 586, 605 (1978)).   The record demonstrates that


28
  The Supreme Court has identified three discrete classes of
offenders who are exempt from execution under the Eighth
Amendment: (1) those who are insane (and we note that being
insane is not the same as having a mental illness), Ford v.
Wainwright, 477 U.S. 399, 410 (1986); (2) those who suffer from
intellectual disability, Hall v. Florida, 134 S. Ct. 1986, 1992
(2014), Atkins v. Virginia, 536 U.S. 304, 321 (2002); and
(3) those who were under the age of eighteen when they committed
their crimes, Roper v. Simmons, 543 U.S. 551, 575 (2005).

                                107
United States v. Akbar, No. 13-7001/AR

individualized consideration did occur in the instant case.     We

first note that most of the mental health experts who examined

Appellant concluded that although he suffered from some form of

mental illness, he was mentally responsible at the time he

committed the offenses.   Further, the panel members not only

determined that Appellant had the requisite mental ability to

form the premeditated intent to kill when he committed the

offenses, they also determined that he deserved the punishment

of death for those offenses.   Accordingly, this record does not

support the conclusion that Appellant’s mental impairments

rendered his death sentence highly disproportionate to his

culpability.

     Third, to the extent Appellant claims that his mental

illness presently rises to the level of insanity, once again the

record does not support such a conclusion.   We recognize that an

accused’s “earlier competency to be held responsible for

committing a crime and to be tried for it” does not foreclose a

later determination that he or she is presently insane and

cannot be executed.   Panetti v. Quarterman, 551 U.S. 930, 934

(2007).   However, prior to and during the court-martial

proceedings, mental health experts determined that Appellant was

mentally responsible at the time of the offense and mentally

competent to stand trial.   There is no basis in the record for




                                108
United States v. Akbar, No. 13-7001/AR

us to conclude that Appellant is presently insane.29    Therefore,

we reject Appellant’s Eighth Amendment challenge premised on a

claim of mental illness.   See Ford v. Wainwright, 477 U.S. 399,

410 (1986).

                      P. Crime Scene Photographs

      Appellant contends that the admission of the Government’s

crime scene photographs violated his Fifth and Eighth Amendment

right to due process because they were unduly prejudicial.      We

reject this challenge.   We conclude that “it cannot be seriously

argued that [the autopsy and surgical] photographs were admitted

only to inflame or shock this court-martial.”    Gray, 51 M.J. at

35.

                             Q. Voir Dire

      Appellant asserts that the Government used voir dire to

impermissibly advance the Government’s theory.     The Discussion

to Rule 912 states that voir dire should not be used “to argue

the case.”    R.C.M. 912(d) Discussion (2005 ed.).   However,

Appellant does not cite any instances in the record where this

occurred, and our review of the record does not reveal (1) any

questions in which the Government impermissibly advanced its



29
  We recognize that appellate defense counsel signed a January
28, 2010, affidavit identifying certain behaviors by Appellant
that they believed might call into question Appellant’s
competency to assist with his appeal. We are unaware, however,
of any diagnosis from a mental health professional or any
judicial finding that Appellant was or is insane.

                                 109
United States v. Akbar, No. 13-7001/AR

theory or (2) any objections by Appellant on this basis.    This

issue therefore does not provide any basis for reversal.

                R. Government Peremptory Challenge

     Appellant challenges the constitutionality of the

Government’s use of peremptory challenges to remove a member

whose moral bias against the death penalty does not justify a

challenge for cause.   As Appellant recognizes, we have

previously rejected this argument.    See Loving, 41 M.J. at 294-

95; see also Gray, 51 M.J. at 33.     He provides no compelling

reason for us to reconsider our prior precedent, and we decline

to do so.

                       S. Panel Reconsideration

     Appellant claims that the panel’s reconsideration of its

sentence violated the Fifth Amendment double jeopardy clause.

The Supreme Court has held that, under the double jeopardy

clause, a defendant cannot be sentenced to death at a retrial if

he was sentenced to life imprisonment following a trial-like

capital sentencing proceeding at his first trial.    Caspari v.

Bohlen, 510 U.S. 383, 386 (1994) (citing Bullington v. Missouri,

451 U.S. 430, 446 (1981)).   However, the circumstances of the

instant case are quite different from those in the cases cited

above because here the same panel reconsidered its own sentence

during its one and only deliberation session.     Therefore, this




                                110
United States v. Akbar, No. 13-7001/AR

Supreme Court precedent is readily distinguishable.30    Moreover,

we are unaware of any other cases that have applied double

jeopardy principles to reconsideration of a death sentence at

the same trial and during the course of the same deliberations,

and Appellant has cited no such authority.    For these reasons,

we conclude that there is no double jeopardy violation stemming

from the panel’s reconsideration of its sentence in the course

of its deliberations, and its ultimate imposition of a death

sentence in this case.

                   T. CCA Proportionality Review

     Appellant seeks a remand because the CCA failed to engage

in a proportionality review.   Although not constitutionally

required, we have interpreted Article 66(c), UCMJ, 10 U.S.C. §

866(c) (2012), as requiring the courts of criminal appeals to

perform proportionality reviews of death sentences as part of

the sentence appropriateness determination.    United States v.

Curtis, 33 M.J. 101, 109 (C.M.A. 1991).    Our task is to assure

that the lower court’s review was “properly performed.”    Id.

However, we do not require a lower court to “always articulate

its reasoning for its decisions.”     United States v. Wean, 37



30
  Even if Bullington could be analogized to the circumstances of
this case, the record before us does not reveal the
circumstances or results of the panel’s first vote. Therefore,
there is no evidence upon which to base a conclusion that the
panel’s ultimate sentence of death violated any double jeopardy
principles.

                                111
United States v. Akbar, No. 13-7001/AR

M.J. 286, 287 (C.M.A. 1993) (citing United States v. Clifton,

35 M.J. 79 (C.M.A. 1992)); see also United States v.

Winckelmann, 73 M.J. 11, 16 (C.A.A.F. 2013) (stating that CCA

was not “obligated” to detail its analysis); United States v.

Matias, 25 M.J. 356, 361 (C.M.A. 1987) (noting that no provision

in the UCMJ or the R.C.M. requires the lower court to address

all assignments of error in a written opinion).

        Although the CCA did not explicitly include any discussion

of a proportionality review in its opinion, we conclude that

Appellant received a proper legal review under Article 66(c),

UCMJ.    We first note that Appellant raised an Article 66(c),

UCMJ, proportionality challenge below, so the CCA was fully

aware of the need to resolve this issue.    We next note that,

absent evidence to the contrary, we presume that the judges on

the courts of criminal appeals know and properly apply the law.

United States v. Schweitzer, 68 M.J. 133, 139 (C.A.A.F. 2009).

Given this presumption and these facts, we find that the CCA

implicitly performed its Article 66(c), UCMJ, proportionality

review when it determined, both initially and on

reconsideration, that Appellant’s approved sentence was “correct

in law and fact.”    Cf. United States v. Reed, 54 M.J. 37, 42-43

(C.A.A.F. 2000) (finding “nothing in the opinion that would lead

one to conclude that the lower court did not give . . .

appellant’s assignment[] of error careful consideration”).



                                  112
United States v. Akbar, No. 13-7001/AR

Although we emphasize that an explicit discussion by the CCA of

its proportionality review would have been far preferable,31 we

do not find a sufficient basis to remand this case for the CCA

to explicitly articulate its reasoning in the course of

performing its proportionality review.32

                         U. Joint Affidavits

     The courts of criminal appeals are authorized to compel

trial defense counsel to submit affidavits.    United States v.

Lewis, 42 M.J. 1, 5 (C.A.A.F. 1995).   Here, the CCA authorized

trial defense counsel, MAJ Brookhart and CPT Coombs, to submit

joint affidavits.   Appellant challenges this decision because

the joint affidavits prevented him from obtaining the

independent recollections of each counsel.



31
   Cf. United States v. Durant, 55 M.J. 258, 261 (C.A.A.F. 2001)
(noting that lower court analysis is “extremely beneficial” in
cases involving unique sentencing issues because “[s]ound
articulation of their rationale . . . avoids speculation and
promotes judicial economy”).
32
   Even if the CCA erred by failing to perform a proportionality
review, we conclude that any error was harmless. See Article
59(a), UCMJ, 10 U.S.C. § 859(a) (2012). We require the CCA to
employ a general offense-oriented proportionality review, United
States v. Gray, 51 M.J. 1, 63 (C.A.A.F. 1999), meaning that the
CCA must consider whether the sentence is appropriate for the
crimes of conviction and whether the sentence is generally
proportional to those imposed by other jurisdictions under
similar situations. Curtis, 33 M.J. at 109. To perform this
latter function, the service courts may consider military cases,
federal district court cases, and Supreme Court decisions on
state cases involving circumstances similar to an appellant’s.
Gray, 51 M.J. at 63; Curtis, 33 M.J. at 109. Here, the
Government has adequately shown that the capital sentence was
both appropriate and proportional for Appellant’s actions.

                                113
United States v. Akbar, No. 13-7001/AR

     The courts of criminal appeals have “discretion . . . to

determine how additional evidence, when required, will be

obtained.”   Lewis, 42 M.J. at 6.    They may determine that

evidence is required “by affidavit, testimony, stipulation, or a

factfinding hearing.”   Boone, 49 M.J. at 193.    “We are reluctant

to mandate procedures for the” courts of criminal appeals, but

we will do so when appropriate.     Lewis, 42 M.J. at 6.

     We conclude that the CCA did not abuse its discretion in

permitting trial defense counsel to submit joint affidavits.

Appellant has not cited any authorities directly prohibiting the

use of joint affidavits, and we have found none.33    Absent any

authority prohibiting the use of joint affidavits, we conclude

that the CCA did not abuse its discretion in allowing trial

defense counsel to submit one.

     Although we conclude that there was no error, we do have

reservations about the submission of joint affidavits by trial

defense counsel when an appellant alleges ineffective assistance



33
  There is authority that the use of joint affidavits is
“undesirable.” Masiello v. United States, 304 F.2d 399, 402
(D.C. Cir. 1962) (discussing joint affidavits in warrant
applications). As noted infra, we agree with this assessment.
However, a federal district court also has noted that it was
unable to find “any authority for the proposition that the use
of a joint affidavit is per se improper” and that “numerous
courts” in the Second Circuit had referred to or relied on them.
Steward v. Graham, No. 01-CV-0569, 2007 U.S. Dist. LEXIS 101402,
at *26 n.14 (N.D.N.Y. July 24, 2007), adopted by 2008 U.S. Dist.
LEXIS 40381, at *3 (N.D.N.Y. May 19, 2008), 2008 WL 2128172, at
*10 n.14 (N.D.N.Y. May 19, 2008).

                                  114
United States v. Akbar, No. 13-7001/AR

of counsel.   Almost by necessity, joint affidavits harmonize the

memories and views of each counsel, and they often use the

pronoun “we” when explaining the actions or reasoning that only

one counsel may have engaged in.    Therefore, although “[w]e

evaluate the combined efforts of the defense as a team rather

than evaluating the individual shortcomings of any single

counsel,” United States v. Garcia, 59 M.J. 447, 450 (C.A.A.F.

2004), we conclude that the better practice in future cases is

for the courts of criminal appeals to require counsel to submit

individual affidavits.   Nonetheless, we conclude there was no

error in the instant case.

                             III.   Decision

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




                                115
United States v. Akbar, No. 13-7001/AR

                            Appendix

Issues Presented

A.I

SGT HASAN K. AKBAR WAS DENIED HIS RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE SIXTH AMENDMENT TO
THE UNITED STATES CONSTITUTION, AT EVERY CRITICAL STAGE OF HIS
COURT-MARTIAL.

A.II

THIS COURT SHOULD ORDER A POST-TRIAL EVIDENTIARY HEARING TO
RESOLVE DISPUTED FACTUAL ISSUES RELEVANT TO SGT AKBAR’S NUMEROUS
COLLATERAL CLAIMS UNLESS THIS COURT FINDS IN HIS FAVOR ON
ANOTHER DISPOSITIVE GROUND.

A.III

WHETHER THE PROSECUTION’S VICTIM-IMPACT PRESENTATION AND
ARGUMENT, AND COUNSEL’S FAILURE TO OBJECT, VIOLATED SGT AKBAR’S
FIFTH, SIXTH, AND EIGHTH AMENDMENT RIGHTS.

A.IV

THE MILITARY JUDGE, BY FAILING TO SUA SPONTE DISMISS FOURTEEN OF
THE FIFTEEN PANEL MEMBERS FOR CAUSE BASED ON ACTUAL AND IMPLIED
BIAS MANIFESTED BY RELATIONSHIPS OF THE MEMBERS, A
PREDISPOSITION TO ADJUDGE DEATH, AN INELASTIC OPINION AGAINST
CONSIDERING MITIGATING EVIDENCE ON SENTENCING, VISCERAL
REACTIONS TO THE CHARGED ACTS, PRECONCEIVED NOTIONS OF GUILT,
AND DETAILED KNOWLEDGE OF UNCHARGED MISCONDUCT THAT HAD BEEN
EXCLUDED, DENIED SGT AKBAR A FAIR TRIAL.

A.V

THE MILITARY JUDGED ERRED TO SGT AKBAR’S SUBSTANTIAL PREJUDICE
BY DENYING HIS MOTION FOR CHANGE OF VENUE.

A.VI
SGT AKBAR WAS DENIED HIS SIXTH AND EIGHTH AMENDMENT RIGHT TO
COUNSEL WHEN HIS TRIAL DEFENSE COUNSEL ACTIVELY REPRESENTED
CONFLICTING INTERESTS WHICH ADVERSELY AFFECTED THEIR
PERFORMANCE.




                               116
United States v. Akbar, No. 13-7001/AR

A.VII

“WHERE [UNLAWFUL COMMAND INFLUENCE] IS FOUND TO EXIST, JUDICIAL
AUTHORITIES MUST TAKE THOSE STEPS NECESSARY TO PRESERVE BOTH THE
ACTUAL AND APPARENT FAIRNESS OF THE CRIMINAL PROCEEDING.”
UNITED STATES v. LEWIS, 63 M.J. 405, 407 (C.A.A.F. 2006).
PROSECUTORIAL MISCONDUCT IS “ACTION OR INACTION BY A PROSECUTOR
IN VIOLATION OF SOME LEGAL NORM OR STANDARD, e.g., A
CONSTITUTIONAL PROVISION, A STATUTE, A MANUAL RULE, OR AN
APPLICABLE PROFESSIONAL ETHICS CANON.” UNITED STATES v. MEEK,
44 M.J. 1, 5 (C.A.A.F. 1996). IN THIS CASE, GOVERNMENT COUNSEL
MANIPULATED THE DUTY ASSIGNMENTS OF SGT AKBAR’S TRIAL DEFENSE
COUNSEL TO AVOID TRIAL DELAY AND THEREBY CREATED A CONFLICT OF
INTERESTS. See A.E. VI, SEC. E. DID GOVERNMENT COUNSEL’S ACTIONS
AMOUNT TO UNLAWFUL COMMAND INFLUENCE OR PROSECUTORIAL MISCONDUCT
IN VIOLATION OF SGT AKBAR’S RIGHT TO DUE PROCESS?

A.VIII

STANDARDS APPLICABLE TO FEDERAL AND STATE CAPITAL DEFENSE
COUNSEL HAVE APPLICABILITY TO COURTS-MARTIAL AS RELEVANT
STANDARDS OF CARE AND THE ARMY COURT’S ANALYSIS OF SGT AKBAR’S
CASE WAS FLAWED BECAUSE OF ITS MISAPPLICATION OF THE GUIDELINES
AND ITS DETERMINATION COUNSEL WERE “WELL-QUALIFIED.”

A.IX

DENYING SGT AKBAR THE RIGHT TO PLEAD GUILTY UNCONSTITUTIONALLY
LIMITED HIS RIGHT TO PRESENT MITIGATION EVIDENCE. IN THE
ALTERNATIVE, COUNSEL’S FAILURE TO DEMAND AN INSTRUCTION ON THIS
LIMITATION OF MITIGATION PRESENTATION AMOUNTED TO [INEFFECTIVE
ASSISTANCE OF COUNSEL] AS OMISSION OF THE INSTRUCTION DENIED SGT
AKBAR MITIGATION EVIDENCE IN VIOLATION OF THE EIGHTH AMENDMENT.

A.X

THE SECRETARY OF THE ARMY’S EXEMPTION FROM COURT-MARTIAL SERVICE
OFFICERS OF THE SPECIAL BRANCHES NAMED IN AR 27-10 VIOLATED
ARTICLE 25(d)(2), UCMJ, PREJUDICING SGT AKBAR’S RIGHT TO DUE
PROCESS AND A FAIR TRIAL.

A.XI

AS SGT AKBAR’S TRIAL DEFENSE COUNSEL DID NOT ADEQUATELY
INVESTIGATE HIS CASE, THE ARMY COURT ERRED DENYING HIS REQUEST
TO RETAIN PSYCHIATRIST AND PSYCHOLOGIST DR. RICHARD DUDLEY AND
DR. JANICE STEVENSON, OR OTHERWISE, ORDERING PROVISION OF
ADEQUATE SUBSTITUTES. FURTHER INVESTIGATION BY APPELLATE


                               117
United States v. Akbar, No. 13-7001/AR

DEFENSE COUNSEL ALSO REVEALS THE NECESSITY OF OBTAINING THE
EXPERT ASSISTANCE OF CLINICAL PSYCHOLOGIST DR. WILBERT MILES.

A.XII

THE MILITARY JUDGE COMMITTED PLAIN ERROR BY PROVIDING SENTENCING
RECONSIDERATION INSTRUCTIONS THAT FAILED TO INSTRUCT THE PANEL
DEATH WAS NO LONGER AN AVAILABLE PUNISHMENT IF THE PANEL’S
INITIAL VOTE DID NOT INCLUDE DEATH AND DID NOT COMPLY WITH
R.C.M. 1004.

A.XIII

THE MILITARY JUDGE ERRED IN NOT SUPPRESSING THE STATEMENT “YES”
BY SGT AKBAR TO MAJ WARREN, WHEN THAT STATEMENT WAS GIVEN WHILE
SGT AKBAR WAS AT GUNPOINT, IN CUSTODY, AND BEFORE HE RECEIVED
RIGHTS WARNINGS UNDER MIRANDA v. ARIZONA OR ARTICLE 31(b), UCMJ.

A.XIV

UNDER THE SUPREME COURT’S REASONING IN RING v. ARIZONA, 536 U.S.
584 (2002), CONGRESS UNCONSTITUTIONALLY DELEGATED TO THE
PRESIDENT THE POWER TO ENACT ELEMENTS OF CAPITAL MURDER, A
PURELY LEGISLATIVE FUNCTION.

A.XV

DID THE PROCEDURES PROVIDED UNDER R.C.M. 1004 VIOLATE SGT
AKBAR’S RIGHT TO DUE PROCESS BY ALLOWING THE CONVENING AUTHORITY
TO UNILATERALLY APPEND UNSWORN AND UNINVESTIGATED AGGRAVATING
ELEMENTS TO HIS MURDER SPECIFICATIONS AT REFERRAL?

A.XVI

“WHEN A FINDING OF FACT ALTERS THE LEGALLY PRESCRIBED PUNISHMENT
SO AS TO AGGRAVATE IT, THE FACT NECESSARILY FORMS A CONSTITUENT
PART OF A NEW OFFENSE AND MUST BE SUBMITTED TO THE JURY.”
ALLEYNE, 133 S. CT. AT 2162. UNDER R.C.M. 1004(b)(4)(C), DEATH
CANNOT BE CONSIDERED ABSENT A PRELIMINARY, UNANIMOUS FINDING
THAT AGGRAVATING CIRCUMSTANCES “SUBSTANTIALLY OUTWEIGH”
MITIGATING AND EXTENUATING CIRCUMSTANCES. AT TRIAL, SGT AKBAR
UNSUCCESSFULLY REQUESTED SENTENCING INSTRUCTIONS REQUIRING THAT
AGGRAVATING CIRCUMSTANCES OUTWEIGH MITIGATING AND EXTENUATING
CIRCUMSTANCES BEYOND A REASONABLE DOUBT PURSUANT TO APPRENDI,
530 U.S. 466 AND RING, 536 U.S. 584. DID THE MILITARY JUDGE
VIOLATE SGT AKBAR’S RIGHT TO DUE PROCESS BY FAILING TO INSTRUCT
THAT AGGRAVATING CIRCUMSTANCES MUST OUTWEIGH MITIGATING
CIRCUMSTANCES BEYOND A REASONABLE DOUBT?


                               118
United States v. Akbar, No. 13-7001/AR

A.XVII

THE LACK OF A SYSTEM TO ENSURE CONSISTENT AND EVEN-HANDED
APPLICATION OF THE DEATH PENALTY IN THE MILITARY VIOLATES BOTH
SGT AKBAR’S EQUAL PROTECTION RIGHTS AND ARTICLE 36, UCMJ. See
18 U.S.C. § 2245 AND U.S. DEP’T OF JUSTICE, U.S. ATTORNEY’S
MANUAL § 9-10.010 (JUNE 1998) (USAM) AND 10 U.S.C.
§ 949a(b)(2)(C)(ii). IN CONTRAST TO THE USAM, NO PROTOCOL
EXISTS FOR CONVENING AUTHORITIES IN CAPITAL CASES, CREATING AN
AD HOC SYSTEM OF CAPITAL SENTENCING.

A.XVIII

SGT AKBAR’S DEATH SENTENCE VIOLATES THE EIGHTH AMENDMENT BECAUSE
APPELLANT’S SEVERE MENTAL ILLNESS MAKES SUCH A PUNISHMENT HIGHLY
DISPROPORTIONATE TO HIS CULPABILITY AND VIOLATES THE FIFTH
AMENDMENT BECAUSE IT WOULD BE A DENIAL OF DUE PROCESS TO EXECUTE
HIM.

A.XIX

THE MILITARY JUDGE ERRED IN ADMITTING THE GOVERNMENT’S CRIME
SCENE PHOTOGRAPHS AS THEY UNDULY PREJUDICED SGT AKBAR’S FIFTH
AND EIGHTH AMENDMENT RIGHT TO DUE PROCESS. See, e.g., APP. EXS.
157, 299.

A.XX

THE TRIAL COUNSEL COMMITTED REVERSIBLE ERROR BY USING THE VOIR
DIRE OF THE MEMBERS TO IMPERMISSIBLY ADVANCE THE GOVERNMENT’S
THEORY OF THE CASE. See APP. EX. VII (DEFENSE MOTION FOR
APPROPRIATE RELIEF FOR INDIVIDUAL SEQUESTRATION OF MEMBERS
DURING VOIR DIRE); See R.C.M. 912(d), DISCUSSION.

A.XXI

THE MILITARY JUSTICE SYSTEM’S PEREMPTORY CHALLENGE PROCEDURE,
WHICH ALLOWS THE GOVERNMENT TO REMOVE ANY ONE MEMBER WITHOUT
CAUSE, IS AN UNCONSTITUTIONAL VIOLATION OF THE FIFTH AND EIGHTH
AMENDMENTS TO THE U.S. CONSTITUTION IN CAPITAL CASES, WHERE THE
PROSECUTOR IS FREE TO REMOVE A MEMBER WHOSE MORAL BIAS AGAINST
THE DEATH PENALTY DOES NOT JUSTIFY A CHALLENGE FOR CAUSE. But
see UNITED STATES v. CURTIS, 44 M.J. 106, 131-33 (C.A.A.F.
1996); UNITED STATES v. LOVING, 41 M.J. 213, 294-95 (C.A.A.F.
1994).




                               119
United States v. Akbar, No. 13-7001/AR

A.XXII

THE PANEL’S RECONSIDERATION OF THE SENTENCE IN SGT AKBAR’S CASE
VIOLATED THE FIFTH AMENDMENT’S DOUBLE JEOPARDY CLAUSE BECAUSE
“NO PERSON . . . SHALL BE SUBJECT FOR THE SAME OFFENSE TO BE
TWICE PUT IN JEOPARDY OF LIFE.” See APP. EX. XXXVII (DEFENSE
MOTION FOR APPROPRIATE RELIEF -- FINDING AND SENTENCING
INSTRUCTIONS EXPLAINING VOTING PROCEDURE ON CAPITAL OFFENSES AND
DEATH).

B.I

THE ARMY COURT’S FAILURE TO DO AN ARTICLE 66(c), UCMJ,
PROPORTIONALITY REVIEW REQUIRES REMAND FOR THE COMPLETE REVIEW
IT WAS REQUIRED BY LAW TO CONDUCT, AND THE FAILURE TO DETAIL ITS
REVIEW IN ITS OPINION UNDERMINES THIS COURT’S ABILITY TO REVIEW
THE PROPORTIONALITY ANALYSIS UNDER ARTICLE 67, UCMJ.

B.II

THE ARMY COURT’S REFUSAL TO ACCEPT SGT AKBAR’S EVIDENCE IN
REBUTTAL TO GOV’T APP. EX. 13, A DECLARATION FROM TRIAL DEFENSE
COUNSEL, AND REFUSAL TO GRANT THE FEW WEEKS NECESSARY TO OBTAIN
DISCOVERY NOT PROVIDED AS ORDERED IN 2008, REQUIRES REMAND FOR A
COMPLETE REVIEW UNDER ARTICLE 66, UCMJ, BECAUSE (1) THE ARMY
COURT WAS REQUIRED BY LAW TO CONDUCT THE REVIEW, AND (2) THIS
COURT DOES NOT HAVE FACT FINDING ABILITY UNDER ARTICLE 67, UCMJ.

B.III

THE 2,633 DAY GAP BETWEEN THE COMPLETION OF SGT AKBAR’S COURT-
MARTIAL AND THE ARMY COURT’S DECISION WAS FACIALLY UNREASONABLE
AND REQUIRES REMAND TO DETERMINE IF SGT AKBAR WAS PREJUDICIALLY
DENIED THE DUE PROCESS OF LAW GUARANTEED UNDER THE FIFTH
AMENDMENT.

B.IV

THE ARMY COURT ERRED ALLOWING TRIAL DEFENSE COUNSEL TO FILE A
JOINT AFFIDAVIT OVER SGT AKBAR’S OBJECTION, DEPRIVING HIM OF THE
INDEPENDENT RECOLLECTIONS OF BOTH COUNSEL AND DELEGATING THE
ARMY COURT’S FACT FINDING RESPONSIBILITY TO HIS TRIAL DEFENSE
TEAM WHO NOW STAND OPPOSED TO SGT AKBAR’S INTERESTS.

B.V

“ELIGIBILITY FACTORS ALMOST OF NECESSITY REQUIRE AN ANSWER TO A
QUESTION WITH A FACTUAL NEXUS TO THE CRIME OR THE DEFENDANT SO


                               120
United States v. Akbar, No. 13-7001/AR

AS TO ‘MAKE RATIONALLY REVIEWABLE THE PROCESS FOR IMPOSING A
SENTENCE OF DEATH.’” ARAVE v. CREECH, 507 U.S. 463, 471 (1993)
(CITATION OMITTED). IN THIS CASE, THE SOLE AGGRAVATING FACTOR
RELIED UPON BY THE PANEL TO FIND SGT AKBAR DEATH ELIGIBLE WAS
THAT, HAVING BEEN FOUND GUILTY OF PREMEDITATED MURDER, IN
VIOLATION OF ARTICLE 118(1), UCMJ, THE ACCUSED WAS FOUND GUILTY,
IN THE SAME CASE, OF ANOTHER VIOLATION OF ARTICLE 118, UCMJ,
PURSUANT TO R.C.M. 1004(c)(7)(J). IS THE AGGRAVATING FACTOR
PROVIDED IN R.C.M. 1004(c)(7)(J) UNCONSTITUTIONALLY VAGUE
BECAUSE IT IS NOT DIRECTED AT A SINGLE EVENT AND DEPENDANT UPON
THE GOVERNMENT’S DECISION TO PROSECUTE TWO OR MORE VIOLATIONS OF
ARTICLE 118, UCMJ, AT A SINGLE TRIAL?

B.VI

THE CUMULATIVE ERRORS IN THIS CASE COMPEL REVERSAL OF THE
FINDINGS AND SENTENCE.

B.VII

RULE FOR COURTS-MARTIAL (R.C.M.) 1004 DOES NOT ENSURE THE GOALS
OF INDIVIDUAL FAIRNESS, REASONABLE CONSISTENCY, AND ABSENCE OF
ERROR NECESSARY TO ALLOW THIS COURT TO AFFIRM APPELLANT’S DEATH
SENTENCE BECAUSE R.C.M. 1004 DOES NOT ENSURE THE RACE OF THE
VICTIM OR ALLEGED PERPETRATOR IS NOT A FACTOR IN THE DEATH
SENTENCE. McCLESKEY v. KEMP, 481 U.S. 279 (1987).

B.VIII

THE VARIABLE SIZE OF THE COURT-MARTIAL PANEL CONSTITUTED AN
UNCONSTITUTIONAL CONDITION ON SERGEANT AKBAR’S FUNDAMENTAL RIGHT
TO CONDUCT VOIR DIRE AND PROMOTE AN IMPARTIAL PANEL. See APP.
EX. XXIII (DEFENSE MOTION FOR APPROPRIATE RELIEF -- GRANT OF
ADDITIONAL PEREMPTORY CHALLENGES); IRVIN v. DOWD, 366 U.S. 717,
722 (1961).

B.IX

THE DEATH SENTENCE IN THIS CASE VIOLATES THE FIFTH, SIXTH, AND
EIGHTH AMENDMENTS AND ARTICLE 55, UCMJ, BECAUSE THE MILITARY
SYSTEM DOES NOT GUARANTEE A FIXED NUMBER OF MEMBERS. See APP.
EX. XXIII (DEFENSE MOTION FOR APPROPRIATE RELIEF -– GRANT OF
ADDITIONAL PEREMPTORY CHALLENGES); See also APP. EX. LXXXIII
(DEFENSE MOTION FOR APPROPRIATE RELIEF TO PRECLUDE THE COURT-
MARTIAL FROM ADJUDGING A SENTENCE OF DEATH SINCE THE MANUAL FOR
COURTS-MARTIAL FAILS TO MANDATE A FIXED SIZE PANEL IN CAPITAL
CASES); IRVIN v. DOWD, 366 U.S. 717, 722 (1961).



                               121
United States v. Akbar, No. 13-7001/AR

B.X

DISCUSSION OF FINDINGS AND SENTENCING INSTRUCTIONS AT R.C.M. 802
CONFERENCES DENIED SGT AKBAR HIS RIGHT TO BE PRESENT AT EVERY
STAGE OF TRIAL. See APP. EX. XLVII (DEFENSE MOTION FOR
APPROPRIATE RELIEF -- REQUEST THAT ALL CONFERENCES BE HELD IN AN
ARTICLE 39(a)).

B.XI

THIS COURT ARBITRARILY AND SEVERELY RESTRICTED THE LENGTH OF SGT
AKBAR’S BRIEF, IN VIOLATION OF THE EQUAL PROTECTION AND DUE
PROCESS CLAUSES OF THE FOURTEENTH AMENDMENT AND ARTICLE 67, WHEN
THIS COURT ORDERED SGT AKBAR TO FILE AN ABBREVIATED BRIEF,
INCONSISTENT WITH THE PAST PRACTICE OF THIS COURT IN CAPITAL
CASES AND ARTICLE 67, AND WITHOUT GOOD CAUSE SHOWN.

C.I

THE ROLE OF THE CONVENING AUTHORITY IN THE MILITARY JUSTICE
SYSTEM DENIED SGT AKBAR A FAIR AND IMPARTIAL TRIAL IN VIOLATION
OF THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS AND ARTICLE 55, UCMJ,
BY ALLOWING THE CONVENING AUTHORITY TO ACT AS A GRAND JURY IN
REFERRING CAPITAL CRIMINAL CASES TO TRIAL, PERSONALLY APPOINTING
MEMBERS OF HIS CHOICE, RATING THE MEMBERS, HOLDING THE ULTIMATE
LAW ENFORCEMENT FUNCTION WITHIN HIS COMMAND, RATING HIS LEGAL
ADVISOR, AND ACTING AS THE FIRST LEVEL OF APPEAL, THUS CREATING
AN APPEARANCE OF IMPROPRIETY THROUGH A PERCEPTION THAT HE ACTS
AS PROSECUTOR, JUDGE, AND JURY. See APP. EX. XIII (DEFENSE
MOTION FOR APPROPRIATE RELIEF TO DISQUALIFY ALL MEMBERS CHOSEN
BY THE CONVENING AUTHORITY).

C.II

ARTICLE 18, UCMJ, AND R.C.M. 201(f)(1)(C), WHICH REQUIRE TRIAL
BY MEMBERS IN A CAPITAL CASE, VIOLATES THE GUARANTEE OF DUE
PROCESS AND A RELIABLE VERDICT UNDER THE FIFTH, SIXTH, AND
EIGHTH AMENDMENTS.

C.III

SERGEANT AKBAR WAS DENIED HIS RIGHT TO A TRIAL BY AN IMPARTIAL
JURY COMPOSED OF A FAIR CROSS-SECTION OF THE COMMUNITY IN
VIOLATION OF THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION.
DUREN v. MISSOURI, 439 U.S. 357 (1979). But see UNITED STATES
v. CURTIS, 44 M.J. 106, 130-33 (C.A.A.F. 1996).




                               122
United States v. Akbar, No. 13-7001/AR

C.IV

THE SELECTION OF THE PANEL MEMBERS BY THE CONVENING AUTHORITY IN
A CAPITAL CASE DIRECTLY VIOLATES SGT AKBAR’S RIGHTS UNDER THE
FIFTH, SIXTH, AND EIGHTH AMENDMENTS TO THE U.S. CONSTITUTION AND
ARTICLE 55, UCMJ, BY IN EFFECT GIVING THE GOVERNMENT UNLIMITED
PEREMPTORY CHALLENGES. See APP. EX. XIII (DEFENSE MOTION FOR
APPROPRIATE RELIEF TO DISQUALIFY ALL MEMBERS CHOSEN BY THE
CONVENING AUTHORITY).

C.V

THE PRESIDENT EXCEEDED HIS ARTICLE 36 POWERS TO ESTABLISH
PROCEDURES FOR COURTS-MARTIAL BY GRANTING TRIAL COUNSEL A
PEREMPTORY CHALLENGE AND THEREBY THE POWER TO NULLIFY THE
CONVENING AUTHORITY’S ARTICLE 25(d) AUTHORITY TO DETAIL MEMBERS
OF THE COURT. See APP. EX. XXIII (DEFENSE MOTION FOR
APPROPRIATE RELIEF -- GRANT OF ADDITIONAL PEREMPTORY
CHALLENGES).

C.VI

THE DESIGNATION OF THE SENIOR MEMBER AS PRESIDING OFFICER FOR
DELIBERATIONS DENIED SGT AKBAR A FAIR TRIAL BEFORE IMPARTIAL
MEMBERS IN VIOLATION OF THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS
TO THE U.S. CONSTITUTION AND ARTICLE 55, UCMJ. See APP. EX. XXV
(DEFENSE MOTION FOR APPROPRIATE RELIEF -- REQUEST THAT THE
SENIOR MEMBER NOT BE MADE THE PRESIDENT OF THE PANEL).

C.CVII

THE DENIAL OF THE RIGHT TO POLL MEMBERS REGARDING THEIR VERDICT
AT EACH STAGE OF TRIAL DENIED SERGEANT AKBAR A FAIR TRIAL BEFORE
IMPARTIAL MEMBERS IN VIOLATION OF THE FIFTH, SIXTH, AND EIGHTH
AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE 55, UCMJ. See
APP. EX. XVII (DEFENSE MOTION FOR APPROPRIATE RELIEF -- POLLING
OF PANEL MEMBERS).

C.VIII

THERE IS NO MEANINGFUL DISTINCTION BETWEEN PREMEDITATED AND
UNPREMEDITATED MURDER ALLOWING DIFFERENTIAL TREATMENT AND
SENTENCING DISPARITY IN VIOLATION OF THE FIFTH, SIXTH, AND
EIGHTH AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE 55, UCMJ.
See APP. EX. LIX (DEFENSE MOTION TO DISMISS THE CAPITAL REFERRAL
DUE TO ARTICLE 118 OF THE UCMJ BEING UNCONSTITUTIONALLY VAGUE).




                               123
United States v. Akbar, No. 13-7001/AR

C.IX

SERGEANT AKBAR WAS DENIED HIS CONSTITUTIONAL RIGHT UNDER THE
FIFTH AMENDMENT TO A GRAND JURY PRESENTMENT OR INDICTMENT. See
APP. EX. LXIX (DEFENSE MOTION TO DISMISS CAPITAL REFERRAL ON THE
GROUND THAT THE MILITARY CAPITAL SCHEME VIOLATES THE FIFTH
AMENDMENT).

C.X

COURT-MARTIAL PROCEDURES DENIED SGT AKBAR HIS ARTICLE III RIGHT
TO A JURY TRIAL. SOLORIO v. UNITED STATES, 103 U.S. 435, 453-54
(1987) (MARSHALL, J., DISSENTING). But see UNITED STATES v.
CURTIS, 44 M.J. 106, 132 (C.A.A.F. 1996).

C.XI

DUE PROCESS REQUIRES TRIAL AND INTERMEDIATE APPELLATE JUDGES IN
MILITARY DEATH PENALTY CASES BE PROTECTED BY A FIXED TERM OF
OFFICE, NOT SUBJECT TO INFLUENCE AND CONTROL BY THE JUDGE
ADVOCATE GENERAL OF THE ARMY. See APP. EX. V (DEFENSE MOTION
FOR APPROPRIATE RELIEF, HEIGHTENED DUE PROCESS). But see UNITED
STATES v. LOVING, 41 M.J. 213, 295 (C.A.A.F. 1994).

C.XII

THE ARMY COURT LACKED JURISDICTION BECAUSE THE JUDGES ARE
PRINCIPAL OFFICERS NOT PRESIDENTIALLY APPOINTED AS REQUIRED BY
THE APPOINTMENTS CLAUSE OF THE CONSTITUTION. See U.S. CONST.,
ART. II, § 2. But see UNITED STATES v. GRINDSTAFF, 45 M.J. 634
(N-M. CT. CRIM. APP. 1997); cf. EDMOND v. UNITED STATES,
115 U.S. 651 (1997).

C.XIII

THIS COURT LACKS THE JURISDICTION AND AUTHORITY TO REVIEW THE
CONSTITUTIONALITY OF THE RULES FOR COURTS-MARTIAL AND THE UCMJ
BECAUSE THIS COURT IS AN ARTICLE I COURT, NOT AN ARTICLE III
COURT WITH THE POWER TO CHECK THE LEGISLATIVE EXECUTIVE BRANCHES
UNDER MARBURY v. MADISON, 5 U.S. (1 CRANCH) 137 (1803). See
also COOPER v. AARON, 358 U.S. 1 (1958) (THE POWER TO STRIKE
DOWN UNCONSTITUTIONAL STATUTES OR EXECUTIVE ORDERS IS EXCLUSIVE
TO ARTICLE III COURTS). But see LOVING, 41 M.J. AT 296.

C.XIV

SERGEANT AKBAR IS DENIED EQUAL PROTECTION OF LAW IN VIOLATION OF
THE FIFTH AMENDMENT AS ALL U.S. CIVILIANS ARE AFFORDED THE


                               124
United States v. Akbar, No. 13-7001/AR

OPPORTUNITY TO HAVE THEIR CASES REVIEWED BY AN ARTICLE III
COURT, BUT MEMBERS OF THE UNITED STATES MILITARY BY VIRTUE OF
THEIR STATUS AS SERVICE MEMBERS ARE NOT. But see UNITED STATES
v. LOVING, 41 M.J. 213, 295 (C.A.A.F. 1994).

C.XV

SERGEANT AKBAR IS DENIED EQUAL PROTECTION OF LAW UNDER THE FIFTH
AMENDMENT TO THE U.S. CONSTITUTION BECAUSE [IN ACCORDANCE WITH]
ARMY REGULATION 15-130, PARA. 3-1(d)(6), HIS APPROVED DEATH
SENTENCE RENDERS HIM INELIGIBLE FOR CLEMENCY BY THE ARMY
CLEMENCY AND PAROLE BOARD, WHILE ALL OTHER CASES REVIEWED BY
THIS COURT ARE ELIGIBLE FOR SUCH CONSIDERATION. But see UNITED
STATES v. THOMAS, 43 M.J. 550, 607 (N-M. CT. CRIM. APP. 1995).

C.XVI

SERGEANT AKBAR’S DEATH SENTENCE VIOLATES THE EIGHTH AMENDMENT
PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT BECAUSE THE
CAPITAL REFERRAL SYSTEM OPERATES IN AN ARBITRARY AND CAPRICIOUS
MANNER. See APP. EX. LXV (DEFENSE MOTION TO SET ASIDE CAPITAL
REFERRAL FOR LACK OF STATUTORY GUIDELINES).

C.XVII

THE DEATH PENALTY PROVISION OF ARTICLE 118, UCMJ, IS
UNCONSTITUTIONAL AS IT RELATES TO TRADITIONAL COMMON LAW CRIMES
THAT OCCUR IN THE U.S. But see UNITED STATES v. LOVING, 41 M.J.
213, 293 (C.A.A.F. 1994). THE COURT RESOLVED THE ISSUE AGAINST
PRIVATE LOVING, ADOPTING THE REASONING OF THE DECISION OF THE
ARMY COURT OF MILITARY REVIEW. See UNITED STATES v. LOVING,
34 M.J. 956, 967 (A.C.M.R. 1992). HOWEVER, PRIVATE LOVING’S
ARGUMENT BEFORE THE ARMY COURT RELIED ON THE TENTH AMENDMENT AND
NECESSARY AND PROPER CLAUSE OF THE U.S. CONSTITUTION. Id.
SERGEANT AKBAR’S ARGUMENT RELIES ON THE EIGHTH AMENDMENT TO THE
U.S. CONSTITUTION.

C.XVIII

THE DEATH SENTENCE IN THIS CASE VIOLATES THE FIFTH AND EIGHTH
AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE 55, UCMJ, AS THE
CONVENING AUTHORITY DID NOT DEMONSTRATE HOW THE DEATH PENALTY
WOULD ENHANCE GOOD ORDER AND DISCIPLINE. See APP. EX. LXVII
(DEFENSE MOTION FOR APPROPRIATE RELIEF TO PRECLUDE IMPOSITION OF
DEATH AS INTERESTS OF JUSTICE WILL NOT BE SERVED).




                               125
United States v. Akbar, No. 13-7001/AR

C.XIX

THE MILITARY CAPITAL SENTENCING PROCEDURE IS UNCONSTITUTIONAL
BECAUSE MILITARY JUDGES DO NOT HAVE THE POWER TO ADJUST OR
SUSPEND A DEATH SENTENCE IMPROPERLY IMPOSED. See APP. EX. V
(DEFENSE MOTION FOR APPROPRIATE RELIEF, HEIGHTENED DUE PROCESS).

C.XX

DUE TO THE MILITARY JUSTICE SYSTEM’S INHERENT FLAWS CAPITAL
PUNISHMENT AMOUNTS TO CRUEL AND UNUSUAL PUNISHMENT UNDER ALL
CIRCUMSTANCES. See APP. EX. LXXI (DEFENSE MOTION FOR
APPROPRIATE RELIEF TO PRECLUDE THE COURT–MARTIAL FROM ADJUDGING
A SENTENCE IN VIOLATION OF ARTICLE 55 OF THE UCMJ).

C.XXI

THE DEATH PENALTY CANNOT BE CONSTITUTIONALLY IMPLEMENTED UNDER
CURRENT EIGHTH AMENDMENT JURISPRUDENCE. See CALLINS v. COLLINS,
510 U.S. 1141, 1143-59 (1994) (BLACKMUN, J., DISSENTING) (CERT.
DENIED).

C.XXII

R.C.M. 1209 AND THE MILITARY DEATH PENALTY SYSTEM DENY DUE
PROCESS AND CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT AND ARE
TANTAMOUNT TO FORESEEABLE, STATE-SPONSORED EXECUTION OF INNOCENT
HUMAN BEINGS BECAUSE THERE IS NO EXCEPTION FOR ACTUAL INNOCENCE
TO THE FINALITY OF COURTS-MARTIAL REVIEW. Cf. TRIESTMAN v.
UNITED STATES, 124 F.3d 361, 378-79 (2d CIR. 1997).

C.XXIII

R.C.M. 1001(b)(4) IS UNCONSTITUTIONALLY VAGUE AND OVERBROAD AS
APPLIED TO THE APPELLATE AND CAPITAL SENTENCING PROCEEDINGS
BECAUSE IT PERMITS THE INTRODUCTION OF EVIDENCE BEYOND THAT OF
DIRECT FAMILY MEMBERS AND THOSE PRESENT AT THE SCENE IN
VIOLATION OF THE FIFTH AND EIGHTH AMENDMENTS. See APP. EX. LV
(DEFENSE MOTION FOR APPROPRIATE RELIEF -- TO LIMIT ADMISSIBILITY
OF VICTIM’S CHARACTER AND IMPACT ON FAMILY FROM VICTIM’S DEATH);
See also APP. EX. 296 (MOTION FOR APPROPRIATE RELIEF -- LIMIT
VICTIM IMPACT AND GOVERNMENT ARGUMENT).

C.XXIV

R.C.M. 1001(b)(4) IS UNCONSTITUTIONALLY VAGUE AND OVERBROAD AS
APPLIED TO THE APPELLATE AND CAPITAL SENTENCING PROCEEDINGS
BECAUSE IT PERMITS THE INTRODUCTION OF CIRCUMSTANCES WHICH COULD


                               126
United States v. Akbar, No. 13-7001/AR

NOT REASONABLY HAVE BEEN KNOWN BY SERGEANT AKBAR AT THE TIME OF
THE OFFENSE IN VIOLATION OF HIS FIFTH AND EIGHTH AMENDMENT
RIGHTS. See APP. EX. LV (DEFENSE MOTION FOR APPROPRIATE RELIEF
-- TO LIMIT ADMISSIBILITY OF VICTIM’S CHARACTER AND IMPACT ON
FAMILY FROM VICTIM’S DEATH).

C.XXV

THE MILITARY JUDGE ERRED IN ADMITTING VICTIM-IMPACT EVIDENCE
REGARDING THE PERSONAL CHARACTERISTICS OF THE VICTIMS WHICH
COULD NOT REASONABLY HAVE BEEN KNOWN BY SERGEANT AKBAR AT THE
TIME OF THE OFFENSE IN VIOLATION OF HIS FIFTH AND EIGHTH
AMENDMENT RIGHTS. See APP. EX. LV (DEFENSE MOTION FOR
APPROPRIATE RELIEF -- TO LIMIT ADMISSIBILITY OF VICTIM’S
CHARACTER AND IMPACT ON FAMILY FROM VICTIM’S DEATH).

C.XXVI

THE DEATH SENTENCE IN THIS CASE VIOLATES THE EX POST FACTO
CLAUSE, FIFTH AND EIGHTH AMENDMENTS, SEPARATION OF POWERS
DOCTRINE, PREEMPTION DOCTRINE, AND ARTICLE 55, UCMJ, BECAUSE
WHEN IT WAS ADJUDGED NEITHER CONGRESS NOR THE ARMY SPECIFIED A
MEANS OR PLACE OF EXECUTION. See APP. EX. LXXIII (DEFENSE
MOTION TO DISMISS -- MILITARY SYSTEM FOR ADMINISTERING THE DEATH
PENALTY VIOLATES THE NON-DELEGATION DOCTRINE).

Issues Presented Pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982)

I.

WHETHER THERE WAS A FRAUD ON THE COURT WHERE TWO WITNESSES
TESTIFIED DIFFERENTLY AT TRIAL THAN AT THEIR ARTICLE 32 HEARING
AND WHERE FORENSIC ANALYSIS OF THE BULLETS SHOWED THEY WERE
ARMOR PIERCING WHERE APPELLANT ONLY WAS ISSUED STANDARD ISSUE
BULLETS.

II.

WHETHER APPELLANT WAS ABLE TO ASSIST COUNSEL AT TRIAL.

III.

WHETHER THE BULLET ANALYSIS WAS A SHAM.




                               127
United States v. Akbar, No. 13-7001/AR

IV.

WHETHER THE PANEL AND THE MILITARY JUDGE WERE BIASED AGAINST
APPELLANT.

V.

WHETHER SOMEONE USED MIND CONTROL ON APPELLANT TO FORCE HIM TO
ATTACK.

VI.

WHETHER TRIAL DEFENSE COUNSEL COERCED APPELLANT NOT TO TESTIFY.

VII.

WHETHER LEAD CIVILIAN COUNSEL SHOULD HAVE ACCEDED TO APPELLANT’S
REQUEST TO REMOVE MILITARY DEFENSE COUNSEL.

VIII.

WHETHER APPELLANT WAS DENIED COUNSEL OF HIS CHOICE WHEN TRIAL
DEFENSE COUNSEL REFUSED TO INVITE LTC HANSEN BACK AND CIVILIAN
COUNSEL’S FAMILY WAS THREATENED FOR WORKING ON THE CASE.




                               128
United States v. Akbar, No. 13-7001/AR



     BAKER, Judge,* with whom ERDMANN, Chief Judge, joins

(dissenting):

     Principle is hardest to hold in the face of countervailing

virtue.   For a judge that moment may arrive when knowing what is

just, one must also consider what is fair.   This is a case about

whether or not the military justice system was fair, not whether

it was just.

                           INTRODUCTION

     Appellant raises fifty-nine issues on appeal.   This Court

heard oral argument on five issues.   However, in my view, there

is but one pivotal question:   Did defense counsel provide

ineffective assistance of counsel in the manner in which they

presented Appellant’s sentence mitigation case?

     To understate, defense counsel had a hard case.   Their task

was made harder by the absence of guidelines in the military for

handling death penalty cases and a requirement to provide

counsel “learned in the law applicable to capital cases” in

death penalty cases.   That meant that defense counsel, appointed

from the ranks of judge advocates, were on their own, without

clear guidance or expert assistance on the criteria against

which to measure the effective assistance of counsel in this

death penalty case.


 Former Chief Judge James E. Baker took final action in this
case prior to the expiration of his term on July 31, 2015.
United States v. Akbar, No. 13-7001/AR


       The military has guidelines on the length of hair and

mustaches.1    It has guidelines on how much fat is permitted on a

cut of meat served in the mess hall,2 and it has guidelines on

the placement of the necktie in relation to one’s belt,3 but it

does not have guidelines on how to provide effective assistance

of counsel in a death penalty case.    This seems to expose

counsel unnecessarily to allegations of ineffective assistance

of counsel.    The absence of counsel “learned in the law

applicable to capital cases” who might have helped fill this

void compounds the problem.

       Guidelines or not, hard case or not, in my view,

Appellant’s trial defense counsel were ineffective in two

respects.     First, and foremost, counsel were ineffective for

providing to members Appellant’s 313-page diary without

appropriate contextual explanation.    The Government earlier

introduced three pages of this diary.    However, it was defense

counsel who introduced the other 310 pages.      These pages

included a running diatribe against Caucasians and the United


1
  See, e.g., Dep’t of the Army, Reg. 670-1, Uniform and Insignia,
Wear and Appearance of Army Uniforms para. 3-2(a) (Apr. 10,
2015) [hereinafter AR 670-1].
2
  See, e.g., Dep’t of the Army Pam. 30-22, Food Program,
Operating Procedures for the Army Food Program Table I-1 (Feb.
6, 2007).
3
    See, e.g., AR 670-1, para. 20-18(c)(3)(a).

                                   2
United States v. Akbar, No. 13-7001/AR


States dating back twelve years, and included repeated

references to Appellant’s desire to kill American soldiers “for

Allah” and for “jihad.”

     The defense intended the diary to reflect Appellant’s

descent into mental illness.   However, the diary was offered

without adequate explanation, expert or otherwise.    Until

closing arguments, members were left on their own to read and

interpret the diary’s contents along with the mitigation

specialist’s notes and an FBI report.    In the words of defense

counsels’ expert medical witness:     it “was a mistake” to admit

the diary into evidence.   He “never advised or would have

advised trial defense counsel to admit the diary as they did”

because, “[t]o a lay person the diary is damning evidence,

standing alone, . . . and the nature of [Appellant]’s diary

contained explosive material.”   Appellant’s mitigation

specialist stated she “would have never advised introduction of

. . . [Appellant’s] diary without providing context through

testimony.”   No wonder it was Government trial counsel who

referenced the diary throughout his closing argument.

     Second, counsel were ineffective for failing to produce a

single witness, including any family member, to provide

humanizing testimony in favor of a life sentence.    The message

was clear and unmistakable:    not even a family member was

prepared to say Appellant’s life was worth sparing.

                                  3
United States v. Akbar, No. 13-7001/AR


     Finding ineffective assistance, this leaves the question of

prejudice under Strickland prong II.     See Strickland v.

Washington, 466 U.S. 668, 687 (1984).     As the majority suggests,

Appellant has a steep cliff to scale.    The evidence of guilt was

overwhelming, including through defense counsels’ introduction

of Appellant’s diary.   Moreover, Appellant’s crimes were

heinous.   Appellant murdered two soldiers and wounded fourteen

others.    He did so with wanton disregard.   He did so on the eve

of battle and, in his mind, to aid the enemy.    And, he did so

with premeditation, as evidenced by the diary.    Nonetheless,

there are two arguments supporting a finding of prejudice.

     First, the members requested an instruction on

reconsideration of sentence.   That makes this case different

from almost every other death penalty case and virtually every

other ineffective assistance of counsel case.    It indicates that

at least one member was open to considering an outcome other

than death.   In other words, the request for this instruction

suggests that at least one juror may have been persuaded to

spare Appellant’s life with an effective presentation of

mitigation evidence.

     Second, the standard for prejudice cannot be: “if there

ever was a case where a military court-martial panel would

impose the death penalty, this was it.”    United States v. Akbar,

__ M.J. __, __ (6) (C.A.A.F. 2015).    That is the standard

                                  4
United States v. Akbar, No. 13-7001/AR


adopted by the majority.   With a standard like that, if a

defendant committed a particularly despicable crime, it would

not matter if he received effective assistance of counsel, or

for that matter a fair trial, because we could be confident in

the outcome.   However, the hallmark of American justice is its

commitment to procedural justice as well as to substantive

justice.   How we reach a result can matter as much as what

result we reach.   That is the essential judicial virtue of a

democracy.   This case tests that commitment.

     Therefore, for the reasons explained below, I respectfully

dissent and would remand this case for a new sentence rehearing.

     This opinion proceeds in two sections.     Section I addresses

the applicable standard for ineffective assistance of counsel in

death penalty cases.   The section highlights the absence of

standards and guidelines for defense counsel in death penalty

cases in the military and considers the consequences of such an

absence.   Section II considers the application of Strickland in

this case.   Part A addresses the submission of Appellant’s

entire diary into evidence without medical context or

explanation and explains why, in this case, such a decision

amounted to ineffective assistance of counsel.    Part B discusses

the failure of counsel to offer mitigating evidence in the form

of humanizing testimony to spare Appellant’s life.    Finally,

Part C addresses prejudice and determines that where, as here,

                                 5
United States v. Akbar, No. 13-7001/AR


the members asked for a sentence reconsideration instruction,

there is concrete rather than speculative evidence that an

effective presentation on sentencing might have swayed at least

one member to vote for life.

                               DISCUSSION

    I.     Standards for Capital Defense Counsel in the Military

           A. Absence of Military Guidelines, Standards, and Norms

         Evaluation of defense counsels’ performance starts with the

identification of the prevailing standard or professional norm

against which to measure counsels’ performance.        However, such

standard is elusive.     There are no guidelines in the military on

death penalty defense.     The armed services have not adopted the

ABA Guidelines for the Appointment and Performance of Defense

Counsel in Death Penalty Cases.4        American Bar Association


4
  No branch of the armed forces has adopted the ABA Guidelines as
the yardstick for measuring defense counsels’ performance. The
Supreme Court has specifically disavowed adoption of the ABA
Guidelines as definitive statements on “prevailing professional
norms.” Strickland v. Washington, 466 U.S. 668, 689 (1984).
And this Court has previously rejected arguments by counsel to
adopt the ABA guidelines as the comprehensive standard of
prevailing professional norms. See United States v. Loving
(Loving I), 41 M.J. 213, 300 (1994), opinion modified on
reconsideration, (C.A.A.F. Feb. 2, 1995), aff’d, 517 U.S. 748
(1996) (considering whether due process requires that this Court
establish minimum standards for defense counsel in capital cases
and concluding that specification of such standards are not
constitutionally required); United States v. Murphy, 50 M.J. 4,
9 (C.A.A.F. 1998) (noting that “both the ABA Guidelines and
federal law are instructive,” without finding that ABA
Guidelines are binding on capital military defense counsel).
Nevertheless, the ABA Guidelines are helpful for determining
                                    6
United States v. Akbar, No. 13-7001/AR


Guidelines on Appointment of Counsel in Death Penalty Cases,

reprinted in 31 Hofstra L. Rev. 913, 1061 (2003) [hereinafter

ABA Guidelines].   And yet, we know that “death is a punishment

different from all other sanctions.”5    It is different in




prevailing professional norms, and have been used by both the
Supreme Court and this Court for this purpose. See, e.g.,
Rompilla v. Beard, 545 U.S. 374, 387 (2005) (looking to ABA
Guidelines to establish appropriate standard of common practice
and finding that the State “has come up with no reason to think
the [applicable guideline] impertinent here”); Wiggins v. Smith,
539 U.S. 510 (2003) (looking to Maryland professional standards
and ABA Guidelines to determine the standard of reasonable
professional conduct); Williams v. Taylor, 529 U.S. 362, 396
(2000) (citing 1 ABA Standards for Criminal Justice 4–4.1,
commentary, p. 4–55 (2d ed. 1980)); Murphy, 50 M.J. at 9-10
(recognizing that “the ABA Guidelines and federal law are
instructive”). Consequently, I also look to these standards for
guidance in reviewing counsels’ performance.
5
  Booth v. Maryland, 482 U.S. 496, 509 n.12 (1987) overruled on
other grounds by Payne v. Tennessee, 501 U.S. 808 (1991) (citing
Woodson v. North Carolina, 428 U.S. 280, 303–304, 305 (1976)
(plurality opinion of Stewart, Powell, and Stevens, JJ.)
(internal quotation marks omitted)); Loving v. United States
(Loving II), 62 M.J. 235, 236 (C.A.A.F. 2005) (“‘Death is
different’ is a fundamental principle of Eighth Amendment
law.”); Harmelin v. Michigan, 501 U.S. 957, 995 (1991) (“The
penalty of death differs from all other forms of criminal
punishment, not in degree but in kind.” (quoting Furman v.
Georgia, 408 U.S. 238, 306 (1972))); United States v. Curtis
(Curtis I), 32 M.J. 252, 255 (C.M.A. 1991) (recognizing that the
Supreme Court treats capital and noncapital cases differently);
see also Jeffrey Abramson, Death-is-Different Jurisprudence and
the Role of the Capital Jury, 2 Ohio State J. Crim. L. 117, 117
n.1 (2004) (collecting Supreme Court concurrences authored by
various justices articulating the principle that death is
different).

                                 7
United States v. Akbar, No. 13-7001/AR


severity; different in finality; and different in what is

expected of competent counsel.   Guidance is needed.

     This Court has “decline[d] to mandate minimum standards

based on years of practice or number of cases tried” for

military capital defense counsel.6   The Supreme Court has not

mandated minimum qualifications or training either.    It is not

constitutionally required.

     In the absence of military norms, guidelines, and

standards, Strickland becomes the standard.   In Strickland v.

Washington, a capital case, the Supreme Court set forth the

familiar two-part test applicable to claims of ineffective

assistance of counsel:

     First, the defendant must show that counsel’s
     performance was deficient. This requires showing that
     counsel made errors so serious that counsel was not
     functioning as the “counsel” guaranteed the defendant
     by the Sixth Amendment. Second, the defendant must
     show that the deficient performance prejudiced the

6
  See Loving I, 41 M.J. at 300; Murphy, 50 M.J. at 10 (explaining
that this Court will not “view[] the limited experience of
counsel as inherent deficiency,” but will look solely “to the
adequacy of counsel’s performance”); United States v. Gray, 51
M.J. 1, 54 (C.A.A.F. 1999) (declining to adopt minimum
qualifications standards for capital defense counsel); see also
United States v. Curtis (Curtis II), 44 M.J. 106, 126 (C.A.A.F.
1996), on reconsideration, United States v. Curtis (Curtis III),
46 M.J. 129 (C.A.A.F. 1997) (this Court has rejected a
requirement for appointment of ABA qualified counsel twice in
summary dispositions (citing United States v. Gray, 34 M.J. 164
(C.M.A. 1991); Curtis v. Stumbaugh, 31 M.J. 397 (C.M.A. 1990));
Loving I, 41 M.J. at 300)).

                                 8
United States v. Akbar, No. 13-7001/AR


     defense. This requires showing that counsel’s errors
     were so serious as to deprive the defendant of a fair
     trial, a trial whose result is reliable.

466 U.S. at 687; see also United States v. Green, 68 M.J. 360,

361 (C.A.A.F. 2010).   With respect to the first prong, “the

defendant must show that counsel’s representation fell below an

objective standard of reasonableness,” based on “prevailing

professional norms.”   Strickland, 466 U.S. at 688.    This now-

axiomatic standard, by design, provides little guidance as to

what these “prevailing professional norms” are, or where one can

find them.   Indeed, the Supreme Court stated in Strickland that

“[m]ore specific guidelines are not appropriate.”     Id.; see also

Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000) (citing

Strickland, 466 U.S. at 689) (Strickland has “reject[ed]

mechanistic rules governing what counsel must do.”).

“Prevailing norms of practice as reflected in American Bar

Association standards and the like, e.g., ABA Standards for

Criminal Justice 4–1.1 to 4–8.6 (2d ed. 1980) (“The Defense

Function”), are guides to determining what is reasonable, but

they are only guides.”   Id.; see also Bobby v. Van Hook, 558

U.S. 4, 8-9 (2009) (noting that the ABA Guidelines are not

“inexorable commands with which all capital defense counsel

‘must fully comply,’” rather, they are “‘only guides’ to what

reasonableness means, not its definition”) (internal citations

omitted).

                                 9
United States v. Akbar, No. 13-7001/AR


     What, then, are the key elements of the Strickland

standard?   Objectively reasonable tactical choices based on

objectively reasonable investigation informing those choices,

both of which are measured by “prevailing professional norms.”

Here is the problem.   As Strickland itself recognizes, this

standard is evolving and changing.    Nor is it one that is

immediately evident to a practitioner outside the death penalty

field.    And, even where discernible, prevailing professional

civilian norms may not fit with military practice.

     Perhaps cognizant of these limitations, the Supreme Court

since Strickland has endorsed the adoption of more detailed

guidance for capital defense counsel as a non-constitutional

matter.   See Flores-Ortega, 528 U.S. at 479; see also Van Hook,

558 U.S. at 8-9.    As the Supreme Court has recognized, even

though “the Federal Constitution imposes one general

requirement:   that counsel make objectively reasonable choices,”

state governments and private organizations “are free to impose

whatever specific rules they see fit to ensure that criminal

defendants are well represented.”     Flores-Ortega, 528 U.S. at

479 (state governments can impose specific rules); Van Hook, 558

U.S. at 9 (“What we [the Supreme Court] have said of state

requirements is a fortiori true of standards set by private

organizations.”).   For example, a “less categorical use of the

[ABA] Guidelines” to evaluate counsel’s performance may be

                                 10
United States v. Akbar, No. 13-7001/AR


proper to the extent the guidelines “reflect prevailing norms of

practice and standard practice and must not be so detailed that

they would interfere with the constitutionally protected

independence of counsel.”   Van Hook, 558 U.S. at 8 n.1

(citations omitted) (internal quotation marks omitted).

         There is therefore no reason not to promulgate standards

for capital defense counsel in the military.      Guidelines are

useful and necessary if the military is going to have a death

penalty.    Specialized facets of the military justice system make

such guidance invaluable.

         B. The Utility of Guidelines for Military Capital
         Defense Counsel

     It is self-evident that “[c]ounsel who are ‘learned in the

law applicable to capital cases’ are less likely to provide an

inadequate or ineffective defense than those ‘not learned’ in

the law.”   United States v. Murphy, 50 M.J. 4, 9 (C.A.A.F.

1998).   “[I]nexperience –- even if not a flaw per se -- might

well lead to inadequate representation.”   Id.7




7
  See also United States v. Curtis, 48 M.J. 330 (C.A.A.F. 1997)
(denial of petition for reconsideration) (“[I]n order to ensure
that those few military members sentenced to death have received
a fair and impartial trial within the context of the death-
penalty doctrine of the Supreme Court, we should expect that: .
. . Each military servicemember has available a skilled,
trained, and experienced attorney.”).

                                 11
United States v. Akbar, No. 13-7001/AR


     First, the military justice system does not have a death

penalty qualified bar.8   In civilian courts, federal capital

defense counsel are required by statute to be “learned in the

law applicable to capital cases.”    18 U.S.C. § 3005 (1994).

Under 18 U.S.C. § 3005, as amended in 1994 through the Federal

Death Penalty Act, a capital defendant is entitled to two

counsel, “of whom at least 1 shall be learned in the law

applicable to capital cases.”   Prior to the 1994 amendment, the

statute only required that counsel be “learned in the law”; the

1994 amendment added the phrase “applicable to capital cases.”

Federal Death Penalty Act of 1994, 18 U.S.C. §§ 3591–3598.9     At

least one federal circuit court has interpreted this to mean

that counsel must have significant experience litigating

8
  See Dwight H. Sullivan, Killing Time: Two Decades of Military
Capital Litigation, 189 Mil. L. Rev. 1, 47-48 (2006) (“The
paucity of military death penalty referrals, combined with the
diversity of experience that is required of a successful
military attorney, leaves the military’s legal corps unable to
develop the skills and experience necessary to represent both
sides properly.” (citing Kevin J. Barry, A Face Lift (And Much
More) for an Aging Beauty: The Cox Commission Recommendations
to Rejuvenate the Uniform Code of Military Justice, L. Rev.
Mich. St. U.-Detroit. C.L. 57, 110 (2002))).
9
  The Tenth Circuit has interpreted this amendment to be a
substantive change, “creating a new requirement which previously
had not existed,” namely, that counsel be proficient in trying
capital cases, not merely proficient as lawyers writ large.
United States v. McCullah, 76 F.3d 1087, 1098 (10th Cir. 1996);
see also In re Sterling-Suarez, 323 F.3d 1, 5-6 (1st Cir. 2003)
(Torruella, J., dissenting).

                                12
United States v. Akbar, No. 13-7001/AR


criminal cases to qualify as “learned counsel” under this

statute.10   Significantly, even persons accused of committing

terrorist acts against the United States are entitled, “to the

greatest extent practicable,” to at least one “counsel who is

learned in applicable law relating to capital cases” under the

Military Commissions Act.   10 U.S.C. § 949a(b)(2)(C)(ii)(2012).11

Yet no similar requirement exists for service members accused of

a capital crime.   As a result, there is no guarantee that any

accused service member will receive counsel who have specialized

training or experience defending death penalty cases.

     Second, there are an insufficient number of capital cases

to effectively train a cadre of military counsel to be well

versed in capital litigation.   For example, there were forty-

seven capital prosecutions between 1984 and 2006, with only

fifteen of them resulting in a death sentence.   See Sullivan,

supra note 8, at 17.   Moreover, there is little opportunity for

counsel to specialize in capital litigation, as counsel are

10
  See McCullah, 76 F.3d at 1098 (finding that experienced
public defenders practicing for ten years were learned under the
statute); In re Sterling-Suarez, 323 F.3d at 4-6 (Torruella, J.,
dissenting) (noting that counsel must, inter alia, have
extensive prior experience litigating a capital case, and be
familiar with complex death penalty procedure).
11
  Under the Military Commissions Act, at least one learned
counsel shall be provided to the accused, even if this requires
hiring civilian capital defense counsel. 10 U.S.C.
§ 949a(b)(2)(C)(ii)(2012).

                                 13
United States v. Akbar, No. 13-7001/AR


expected to be military law generalists who should be prepared

to practice in a number of legal fields, of which only one is

criminal law.   As the ABA Guidelines acknowledge, “death penalty

cases have become so specialized that defense counsel have

duties and functions definably different from those of counsel

in ordinary criminal cases,” ABA Guidelines, Introduction, 31

Hofstra L. Rev. at 923, yet there is little opportunity to

develop relevant experience.   In addition, military defense

counsel are typically transferred to different duty stations

over the course of their careers after serving a three-year

tour, reducing the amount of time they can spend on protracted

capital litigation.   See Sullivan, supra note 8, at 48 (“Given

that judge advocates typically stay in a position for no more

than three years, it is unlikely that any participant in a

capital court-martial will have experience performing his or her

duties in a death penalty case.”).   In the context of capital

cases, this contributes to uncertainty that counsel “learned in

the law applicable to capital cases” will indeed be provided to

accused persons at every stage of their case.

     In this case, for example, Appellant’s defense counsel had

a permanent change of station while they were still representing

Appellant.   Lieutenant (LTC) Brookhart was reassigned to the

10th Mountain Division.   Major (MAJ) Coombs was assigned a new

position as senior defense counsel at Fort Eustis and Fort Lee,

                                14
United States v. Akbar, No. 13-7001/AR


Virginia.   Defense counsel attributed their transfers to

Government counsel’s “tampering,” stating in their post-trial

affidavit that they “were both shocked that a senior judge

advocate would take such action” and believed “it created a very

damaging appearance issue with regards to the fairness of the

military justice system.”   LTC Brookhart, the more experienced

of the two attorneys, stated that he was only able to continue

working on Appellant’s case because the staff judge advocate,

LTC Jim Garrett, “recognized the seriousness of the situation”

and “made arrangements for LTC Brookhart to stay at Fort Drum to

work as a special projects officer in Administrative Law,”

permitting LTC Brookhart to work on Appellant’s case.    As

defense counsel have noted, such a structure is problematic, not

only because of the public perceptions of fairness.

     Third, military lawyers are not specially trained in death

penalty voir dire.   “The conventional wisdom is that most trials

are won or lost in jury selection.”   John H. Blume et al.,

Probing “Life Qualification” Through Expanded Voir Dire, 29

Hofstra L. Rev. 1209 (2001).12   Voir dire is, without


12
  Citing 45 Am. Jur. Trials § 144 (1992) (“Experienced trial
lawyers agree that a case can often be won or lost in voir
dire.”); V. Hale Starr & Mark McCormick, Jury Selection: An
Attorney’s Guide to Jury Law and Methods § 3.8 (1985) (“Lawyers
apparently do win, as they occasionally boast, some of their
cases during, or with the help of voir dire.” (quoting Hans
Zeisel, The American Jury, Annual Chief Justice Earl Warren
Conference on Advocacy in the United States 81-84 (1977))); Jon
                                 15
United States v. Akbar, No. 13-7001/AR


exaggeration, a matter of life and death.   As the Supreme Court

noted in Morgan v. Illinois, 504 U.S. 719, 729-30 (1992):

     part of the guarantee of a defendant’s right to an
     impartial jury is an adequate voir dire to identify
     unqualified jurors. Voir dire plays a critical
     function in assuring the criminal defendant that his
     [constitutional] right to an impartial jury will be
     honored. Without an adequate voir dire the trial
     judge’s responsibility to remove prospective jurors
     who will not be able impartially to follow the court’s
     instructions and evaluate the evidence cannot be
     fulfilled.

Id. at 729-30 (brackets in original) (citations omitted) (citing

Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981)

(plurality opinion)).   Yet no resources are provided to equip


M. Van Dyke, Jury Selection Procedures: Our Uncertain Commitment
to Representative Panels 139 (1977) (“Many attorneys believe
that trials are frequently won or lost during [jury
selection].”); Jeffery R. Boyll, Psychological, Cognitive,
Personality and Interpersonal Factors in Jury Verdicts, 15 Law &
Psychol. Rev. 163, 176 (1991) (stating that a “case may be [won]
or lost at the [jury selection stage]”); Margaret Covington,
Jury Selection: Innovative Approaches to Both Civil and Criminal
Litigation, 16 St. Mary’s L.J. 575, 575-76 (1984) (arguing that
“[e]xperienced trial lawyers agree that the jury selection
process is the single most important aspect of the trial
proceedings. In fact, once the last person on the jury is
seated, the trial is essentially won or lost.”); Chris F. Denove
& Edward J. Imwinkelried, Jury Selection: An Empirical
Investigation of Demographic Bias, 19 Am. J. Trial Advoc. 285,
285 (1995) (“[J]ury selection can be the most important phase of
a trial. Pick the right jury and the battle is half won. But
select the wrong jury, and the case is lost before [the]
evidence is even heard.”)). See also Williams v. Bagley, 380
F.3d 932, 978 (6th Cir. 2004) (Merritt, J., dissenting) (“In
such a randomized system, the capital case often is won or lost
at voir dire. The voir dire and the method of jury selection
become more important than the trial itself. Executions depend
on “the line between innocence and guilt [which] is drawn with
reference to reasonable doubt” by individual jurors (citing
Schlup v. Delo, 513 U.S. 298, 329 (1995)).
                                16
United States v. Akbar, No. 13-7001/AR


military defense counsel with the necessary skills to conduct

effective voir dire in a capital case.

     Lack of specialized training in death penalty voir dire is

compounded by the structure of the military justice member

selection process.   In the instant case, the members that would

comprise the panel were to be selected from a pool of twenty

servicemembers.   This pool would be replenished only if causal

challenges reduced the panel below twelve members, the statutory

minimum for capital cases.   Article 41, UCMJ, 10 U.S.C. § 841

(2012).   Presumptively, all twenty members in the initial pool

could serve on the panel if there were no peremptory or causal

challenges.13

     Cognizant of the limitations of panel selection, trial

defense counsel in this case deliberately did not challenge any

panel members for cause under the theory that the more people

that were placed on the panel, the higher the likelihood that

there would be an “ace of hearts” who would vote against the

death penalty, leading counsel to structure “a voir dire with an

aim to keep anyone who did not have a clear basis for a

challenge for cause.”   Defense counsels’ “ace of hearts”


13
  Defense counsel were only entitled to exercise one peremptory
challenge per Rule for Courts-Martial (R.C.M.) 912(g)(1). By
contrast in federal civilian capital cases, defense counsel are
entitled to exercise twenty peremptory challenges. Fed. R.
Crim. P. 24(b)(1).

                                17
United States v. Akbar, No. 13-7001/AR


strategy has no basis in prevailing professional norms.    The

strategy was adopted by trial defense counsel based on a comment

made in a concurring opinion in a United States Air Force Court

of Criminal Appeals case.   See United States v. Simoy, 46 M.J.

592, 625-26 (A.F.Ct.Crim.App. 1996) (Morgan, J., concurring),

aff’d in part, rev’d in part, 50 M.J. 1 (C.A.A.F. 1998).14

     Essentially, all considerations regarding the beliefs,

biases, and personalities of the panel members, and the

potential group dynamics that would form with particular

combinations of members, were subordinate to the overarching

goal of filling the panel.15   This strategy is contrary to


14
  In Simoy, Judge Morgan stated in concurrence:
     Little mathematical sophistication is required to
     appreciate the profound impact in this case of
     reducing the court-martial panel size. To use a
     simple metaphor – if appellant’s only chance to escape
     the death penalty comes from his being dealt the ace
     of hearts from a deck of 52 playing cards, would he
     prefer to be dealt 13 cards, or 8? . . . Each
     challenge of an individual ‘spots’ the prosecution a
     vote, and becomes in essence, a vote for death.
Simoy, 46 M.J. at 625-26.
15
  See Dwight H. Sullivan, Playing the Numbers: Court-Martial
Panel Size and the Military Death Penalty, 158 Mil. L. Rev. 1,
36 (1998) (“A defense counsel who is attempting to obtain a
large panel will not engage in voir dire, with the exception of
questions designed to rehabilitate any member who appears
vulnerable to a challenge for cause by either the government or
the defense. After all, it does the defense little good to
discover that a member is biased against the accused. An
accused whose primary goal is to avoid the death penalty may
choose to leave biased members on the panel rather than reduce
the panel size by removing them even if only a minuscule chance

                                 18
United States v. Akbar, No. 13-7001/AR


prevailing professional norms in civilian courts, but it may

make sense in the military context where counsel receive only

one peremptory challenge.   R.C.M. 912(g)(1).

     In civilian capital cases, by contrast, defense counsel are

expected to do a searching inquiry of potential jurors to “life-

qualify” a jury, meaning they should “conduct a voir dire that

is broad enough to expose those prospective jurors who are

unable or unwilling to follow the applicable sentencing law, . .

. [or] unwilling to consider mitigating evidence” in order to

strike them from the panel.   See ABA Guideline 10.10.2,

commentary, 31 Hofstra L. Rev. at 1052-53.16    Counsel

additionally “should also develop a strategy for rehabilitating

those prospective jurors who have indicated opposition to the

death penalty.”   Id.

     It is imperative that counsel be trained to identify

prospective jurors during voir dire who would automatically

impose the death penalty following a murder conviction without



exists that they could overcome their bias and vote for the
defense.”).
16
  “[T]he starkest failures of capital voir dire are the failure
to uncover jurors who will automatically impose the death
penalty following a conviction or finding of the circumstances
which make the defendant eligible for the death penalty, and the
failure to uncover jurors who are unable to consider particular
mitigating circumstances.” ABA Guideline 10.10.2, commentary,
31 Hofstra L. Rev. at 1050.

                                19
United States v. Akbar, No. 13-7001/AR


meaningfully weighing the aggravating and mitigating evidence as

they are required to do.     See ABA Guideline 10.10.2.B., 31

Hofstra L. Rev. at 1049.17    The Supreme Court has recognized the

importance of this function of capital voir dire.    See Morgan,

504 U.S. at 735-36 (“A defendant on trial for his life must be

permitted on voir dire to ascertain whether his prospective

jurors function under [the] misconception” that a defendant

convicted of a capital crime ought to be sentenced to death).18

       Quite frankly, the incentives in the civilian and military

systems are entirely at odds with respect to capital voir dire.

17
  The ABA Guidelines instruct that counsel should be familiar
with techniques: (1) for exposing those prospective jurors who
would automatically impose the death penalty following a murder
conviction or finding that the defendant is death-eligible,
regardless of the individual circumstances of the case; and (2)
for uncovering those prospective jurors who are unable to give
meaningful consideration to mitigating evidence. ABA Guideline
10.10.2.B., 31 Hofstra L. Rev. at 1049.
18
     The Morgan Court stated, in full:

     A defendant on trial for his life must be permitted on
     voir dire to ascertain whether his prospective jurors
     function under such misconception [that a person
     convicted of a death-eligible crime ought to be put to
     death]. The risk that such jurors may have been
     empaneled in this case and infected petitioner's
     capital sentencing [is] unacceptable in light of the
     ease with which that risk could have been minimized.
     Petitioner was entitled, upon his request, to inquiry
     discerning those jurors who, even prior to the State's
     case in chief, had predetermined the terminating issue
     of his trial, that being whether to impose the death
     penalty.
Morgan, 504 U.S. at 735-36 (brackets in original) (internal
quotation marks omitted) (citations omitted).


                                  20
United States v. Akbar, No. 13-7001/AR


The emphasis in civilian capital cases is to have counsel engage

in a searching inquiry to “life-qualify” a jury.   In the armed

forces and the instant case, the incentive is to conduct a

superficial voir dire to avoid elucidating statements that could

prompt a causal challenge, in order to have the largest panel

possible.19   This does not afford accused servicemembers the most

effective capital defense.

     In summary, the armed forces have no guidelines regarding

the qualifications, training, or performance required of capital

defense counsel.   Such omission leaves the standard amorphous

and, significantly, deprives capital defense counsel of a

standard against which to measure their performance.   This opens

the door to ineffective assistance of counsel claims, real or

perceived.    In failing to specify what quality of performance is

19
  For example, in this case, defense counsels’ strategy prompted
them to include in the panel individuals who may have exhibited
a bias in Appellant’s case. Defense counsel had the statutory
right to have one panel member excused because he had served in
the same unit as Appellant. Although the military judge brought
this to defense counsels’ attention and informed them of their
statutory right of removal, defense counsel demurred and kept
this member on the panel. Another panel member expressed views
that Muslims are “misguided, easily influenced, [and] too
rigid.” On voir dire, when questioned about such views, he
stated his belief that Islam is a “passionate religion” and
sometimes Muslims can’t “think clearly and . . . take certain
views that are selfish . . . . They interpret it the way they
want to interpret certain things for their own self interests.”
After perfunctory questioning, wherein the member stated that
his views of Islam would not impact his impartiality, defense
counsel promptly moved to a different topic, and did not raise a
causal challenge or use their lone peremptory challenge to
strike this member from the panel.
                                 21
United States v. Akbar, No. 13-7001/AR


expected, counsel are gratuitously exposed to claims of

ineffective assistance of counsel.      Confidence in the outcome of

the trial on guilt or on sentencing may also diminish, as might

confidence that the outcome will be upheld on appeal.     This is

neither good for the accused, counsel, the victims of an

offense, the military, or the public credibility of the military

justice system.

        As is often said, death is different.   It is different in

kind.    It is different in finality.   Death is also different

because the standard for ineffective assistance of counsel is

hardest to find and pinpoint.    When we apply the Strickland

standard to determine what “prevailing professional norms” are

in the military, do we look to the professional norms of counsel

writ large?    Or capital defense counsel specifically?   Do we

draw our standard for professional norms from military defense

counsel?    Or civilian?   Given the lack of specific “prevailing

professional norms,” we are left to evaluate counsels’

performance on the basis of this Court’s at best intermittent

case law on the subject, and Supreme Court case law, which is

directed towards state law and habeas review.     This strikes me

as unfair to the accused, unfair to defense counsel, and

potentially unfair to the victims and their families who are

left in doubt about the ultimate outcome of a case until all

appeals are final.

                                  22
United States v. Akbar, No. 13-7001/AR


  II.   Trial Defense Counsel Were Ineffective in the Penalty
        Phase of Appellant’s Court-Martial

     “[I]ndulg[ing] a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional

assistance,” in my view, trial defense counsels’ performance

during the penalty phase of Appellant’s court-martial was not

“reasonable[] under prevailing professional norms.”   Strickland,

466 U.S. at 688-89.   As discussed further below, Appellant has

identified two “acts or omissions of counsel” that were not “the

result of reasonable professional judgment.”   Id. at 690.

First, defense counsel submitted into evidence the entirety of

Appellant’s diary, including particularly damaging passages

relaying Appellant’s hatred of Caucasians and the United States,

without redactions or sufficient contextualization.   Second,

defense counsel were deficient in the witness presentation at

the penalty phase of Appellant’s court-martial by omitting any

testimony that would humanize Appellant and demonstrate that his

life has worth.

     Counsel are ordinarily afforded great deference when making

reasonable tactical decisions.   Nevertheless, I conclude, as

this Court concluded in Murphy, that although “[w]e have no

quarrel . . . regarding the obligation of an appellate court not

to second-guess tactical judgments[, h]ere, . . . counsels’ lack

of training and experience contributed to questionable tactical


                                 23
United States v. Akbar, No. 13-7001/AR


judgments, leading us to the ultimate conclusion that there are

no tactical decisions to second-guess.”       Murphy, 50 M.J. at 13.

             A.    Appellant’s Diary

                  a.   Admission of Appellant’s Entire Diary

        During the mitigation phase of Appellant’s court-martial,

defense counsel submitted into evidence the entirety of

Appellant’s personal diary, dating from March 1990 to March

2003.    The diary consists of 313 handwritten pages.     The diary

was given to the members to take home to read without

explanation and with three lines of general instruction from the

military judge.        Along with the diary, members also received

notes by defense counsels’ mitigation specialist, Ms. Deborah

Grey, summarizing the diary for defense counsels’ case

preparation, and an FBI analysis of the diary.

        In their post-appeal affidavit, counsel give two reasons

supporting their decision to submit the diary in its entirety:

first, their belief that “[t]he government had, in its merits

case, already admitted the most damaging aspects of [Sergeant]

SGT Akbar’s diary,” so no more harm could be done; and, second,

that defense expert Dr. Woods believed that “SGT Akbar’s diary

documented a progressive deterioration into a psychotic state,”

and the diary “read in total proved SGT Akbar had mental

illness.”



                                       24
United States v. Akbar, No. 13-7001/AR


     Under Strickland, appellate courts are obliged to give

heavy deference to counsel’s professional judgment because

“Strickland insulates [tactical decisions] from Monday-morning

quarterbacking.”   Hittson v. GDCP Warden, 759 F.3d 1210, 1248

(11th Cir. 2014) cert. denied sub nom. Hittson v. Chatman, 135

S.Ct. 2126 (2015).   Nevertheless, ”[w]hile the point of the

Sixth Amendment is not to allow Monday-morning quarterbacking of

defense counsel’s strategic decisions, a lawyer cannot make a

protected strategic decision without investigating the potential

bases for it.”   Couch v. Booker, 632 F.3d 241, 246 (6th Cir.

2011).   Here, counsel did not reasonably investigate the basis

of their decisions, and in the context of this case, introducing

a 313-page diary without further investigation cannot be viewed

as a reasonable tactical decision.

     A review of the diary illustrates why expert consultation

was necessary to fully and properly gauge the impact the diary

would have on the panel.    It also illustrates why counsels’

reasoning that the most damaging aspects of the diary had

already been admitted is unreasonable.   The Government admitted

two diary entries, totaling less than three pages, as

Prosecution Exhibit 176a.   The most damaging portion of the

first entry, from February 2, 2003, states:

     I may not have killed any Muslims but being in the
     Army is the same thing. I may have to make a choice
     very soon about who to kill. If we go to war with

                                 25
United States v. Akbar, No. 13-7001/AR


     Iraq, . . . I will have to decide if I should kill my
     Muslim brothers fighting for Saddam Hussein or my
     battle buddies.

     The second entry, from February 4, 2003, contains the

following remarks:

     as soon as I am in Iraq I am going   to try to kill as
     many of them as possible. If I am    wrong then may
     Allah, The Great, stop me. I will    not be able to live
     with myself if I go there and help   these sick people
     kill Muslims.

Although these excerpts are damaging to Appellant’s case, they

are limited temporally, and in subject matter.    The entirety of

the diary contains many more damaging passages.

     For example, the diary is rife with references to

Appellant’s hatred of Caucasians, extending back over a decade

prior to the attack.   In an entry from July 19, 1991, Appellant

references “what the Nation of Islam taught me:   to hate

Caucasians . . . sleep is lost thinking about the destruction of

Caucasians and how to carry it out.”   It is troubling that the

diary also includes passages that could be interpreted to

portend the crimes he committed, including an April 9, 1992,

entry where Appellant writes:   “I made a promise that if I was

not able to achieve success because of some caucasion [sic] I

would kill as many of them as possible. . . . if I am denied

anything given to me by almighty God, Allah, I will kill as many

cacasions [sic] as possible.”   In another entry, from March 3,

1996, Appellant writes:

                                26
United States v. Akbar, No. 13-7001/AR


     Destroying America was my plan as a child, jovenile
     [sic] and freshman in college. Some where [sic] along
     the way it got side tracked [sic] by all of the
     academic problems that came my way. My life will not
     be complete if America is not destroyed. It is my
     biggest goal.

Appellant writes in his final diary entry, dated March 1, 2003,

approximately three weeks before the attack, “May Allah, the

Often Forgiving, forgive me for what I am about to do.”

     The diary also contains passages where Appellant disparages

the military, and self-identifies as “anti-government,”

including a passage from January 17, 2000, where he writes:

“[b]eing in the military . . . is horrible to me.   It is as if

all of my beliefs mean nothing to me. . . . My feeling is that

it is a betrayal of everything that a Muslim is supposed to

stand for.”   Appellant also references, on multiple occasions,

his intent to make “jihad.”   He writes in an October 2, 1999,

entry: “As far as being in the Army perhaps it will be useful if

there is jihad in my future.”

     Appellant’s diary also related an incident where Appellant

had a dispute with a sergeant:

     I went to Grandpa’s Pawn Shop and bought three weapons
     and enough ammo to reload each of them five times. I
     came to work that Tuesday, we had Monday off, with all
     three weapons fully loaded. I had decided to just
     attack [the sergeant] as soon as I saw him. But he
     was at sick call. Right after PT formation the 1st
     Sgt. called me into his office. First he told me that
     the people at Grandpa’s called CID and said they were
     worried that I might be a terrorist.


                                 27
United States v. Akbar, No. 13-7001/AR


None of these entries were introduced by the Government.

Moreover, these passages all preceded the February 2003 entries

the Government submitted into evidence.

        The admission of these entries is significant for at least

four reasons.    First, far from showing progressive mental

deterioration, the passages show a consistent thread of anti-

Caucasian, anti-American, violent tendencies that extend from

Appellant’s young adulthood to the time of the attack.    The

passages in the diary indicate that Appellant harbored antipathy

towards the United States and the armed forces for years, and

may have been planning an attack well in advance of March 23,

2003.    Specifically, with no medical context in which to place

the final diary entry, it is hard to read this passage as

anything other than evidence of premeditation from a depraved

man who will kill and kill again if not stopped.20    Second, they


20
  I disagree with the majority opinion’s contention that
premeditation was not at issue in the sentencing phase of
Appellant’s court-martial as it was already proved beyond a
reasonable doubt in the merits phase, Akbar, __ M.J. at __ (53).
In arriving at a sentence, the members were instructed that they
may “consider any matter in extenuation and mitigation” and “may
also consider mercy, sympathy, and sentiment in deciding . . .
what sentence to impose.” Surely, a panel member would be less
inclined to feel mercy or sympathy towards Appellant if he or
she believed he had premeditated the attack over the span of
months or even years, rather than in the days or hours leading
up to the attack he ultimately carried out. In addition,
evidence of lengthy premeditation would undercut defense
counsels’ theory that the attack was the result of the onset of

                                  28
United States v. Akbar, No. 13-7001/AR


tend to support the view that Appellant’s attack was not an

anomaly, but the manifestation of years of hatred directed at

Caucasians, the military, and, in one instance, a fellow

sergeant.    Third, quite simply, these passages quell any

possible sympathy the members might have garnered for Appellant

based on his life story.   Fourth, submitting the entire diary

into evidence gave the Government additional fodder to bolster

its case, which trial counsel fully exploited in closing

arguments.

     All of these points are illustrated with reference to the

Government’s closing arguments.    The Government used specific

passages from the diary, on multiple occasions, to argue that

Appellant deserved the death penalty.    The Government argued

that Appellant should be sentenced to death “to protect society

from his violence and his hatred,” a short time later showing

the panel slides with five passages from Appellant’s diary.

Trial counsel later argued:

     The defense introduced [Appellant’s] complete diary,
     several hundred pages filled with repeated threats of
     violence and murder. When did the thoughts of
     violence and murder emerge? Is it only in the last
     four entries? Is it after the Army is being prepared
     to be sent into harm’s way? Was it even after 9/11?
     No, it’s not. These are Sergeant Akbar’s own words,

mental illness. Consequently, the degree of premeditation
Appellant exhibited is of consequence in the sentencing phase of
trial, even though this element of the crime was already proved
in the merits phase.

                                  29
United States v. Akbar, No. 13-7001/AR


     dated years before he even joined the Army, back
     before there was any mention of soldier talk. . . .
     Look back in his diary, look back at critical dates.

Trial counsel repeated quotations from Appellant’s diary,

remarking, “Look at his diary.   It is full of rage, it is full

of hate, and it was all there before he was ever notified he was

deploying.”   What defense counsel introduced as mitigation

evidence was successfully converted to powerful aggravating

evidence by the Government.   For these reasons, defense

counsels’ judgment that the entirety of Appellant’s diary was

less damaging to Appellant’s mitigation case than the two

entries Government trial counsel admitted is unreasonable.    It

does not account for the impact of a consistent and enduring

theme of hatred towards Caucasians, and, later, towards the

United States armed forces.   Nor was it tactically reasonable to

admit the diary without explanation.   This allowed members to

set the context themselves, or have the Government do so in

closing arguments.   A reasonable investigation into the wisdom

of submitting the entire diary might well have averted this

problem.



              b. Absence of Prior Investigation and Consultation
              Regarding the Diary

     As noted above, in their post-trial affidavits, defense

counsel defend their decision to submit the diary to the members


                                 30
United States v. Akbar, No. 13-7001/AR


without medical explanation on two related grounds.   First, they

argue that Dr. Woods’s assessment of the diary was that it

“documented a progressive deterioration into psychotic state,”

which supported their decision to offer the complete diary into

evidence.   Second, counsel argue that the summary created by

their mitigation specialist, Ms. Deborah Grey, and the FBI’s

analysis of the diary otherwise placed the diary in the intended

medical context.

     There are a number of problems with this explanation that

undercut the decision to admit the diary.    The underlying issue

is that defense counsels’ decision was not supported by a

reasonable investigation because they failed to seek advice

before submitting the diary into evidence.   First, while defense

counsel invoke Dr. Woods’s expertise in support of offering the

diary into evidence, in actuality they did not consult with Dr.

Woods before doing so.   Dr. Woods states in his post-trial

declaration that “[w]hile the diary is powerful evidence of

schizophrenia, it is only so when viewed . . . by a trained

practitioner.”   According to Dr. Woods, it “was a mistake” to

admit the diary into evidence and he “never advised or would

have advised trial defense counsel to admit the diary as they

did” because, “[t]o a lay person the diary is damning evidence,

standing alone, . . . and the nature of [Appellant]’s diary

contained explosive material.”   Ms. Grey similarly opined that

                                 31
United States v. Akbar, No. 13-7001/AR


submitting into evidence “the diary itself without any context

would be a horrible mistake from the standpoint of mitigation

strategy. . . . the diary, without context, is potentially far

more damaging than mitigating.”    She stated that she “would have

never advised introduction of . . . [Appellant’s] diary without

providing context through testimony.”21

     Second, defense counsel did not consult any experts to

determine whether Ms. Grey’s notes or the FBI analysis

sufficiently contextualized Appellant’s diary.   Upon my review,

these documents do not adequately explain these damning

passages.   Ms. Grey stated in a post-trial affidavit that the

notes she created summarizing the diary’s contents were intended

for counsels’ pretrial preparations.   She cautioned that these

summaries “are helpful in preparing for trial, but they are not

a device intended to introduce evidence,” repeating that these

notes “were not prepared for trial.”   She also believed that

although interview summaries might be used “[i]f for some reason

a vital witness is inappropriate or unavailable to testify,” she


21
  Trial defense counsel stated in their post-trial affidavit
that they recalled speaking with Ms. Grey regarding admission of
documentary evidence she authored “in lieu of her live
testimony” and that she did not have “any strong opinions
regarding ‘the wisdom of this tactic.’” Defense counsel do not
mention informing or consulting Ms. Grey on their decision to
admit Appellant’s entire diary into evidence without supporting
testimony. As evidenced by the post-trial affidavits, both Dr.
Woods and Ms. Grey would have opposed submission of Appellant’s
entire diary.
                                  32
United States v. Akbar, No. 13-7001/AR


“cannot think of an instance where [she] would recommend the

introduction of an interview summary in isolation to a jury.”

She stated that “presenting [her] summary of the diary . . .

would be a horrible mistake.”22   Ms. Therese Scarlet Nerad,

another mitigation specialist employed by defense counsel,

echoed this sentiment, opining post-trial that Ms. Grey’s notes

were “incomplete work product[s]” and “should never have been

admitted in that form” as it “would do serious disservice to a

jury.”

     Ms. Grey’s work product is not a polished, concise

explanation of the implications of Appellant’s diary.   Rather,

it consists of a factual summary of Appellant’s diary -- not an

analysis.   In some portions, it is apparent that these notes are

in draft form.   To illustrate, at one point, Ms. Grey writes in

response to a passage, “Again, lack of problem solving . . . ?

grandiosity?”    In some instances, Ms. Grey’s notes, rather than

relating how Appellant’s more hateful passages support a

22
  As noted, although defense counsel state in their post-trial
affidavit that Ms. Grey did not have “any strong opinions”
regarding admitting documentary evidence, it is not clear that
they consulted her specifically about presenting her interview
notes with the purpose of contextualizing Appellant’s entire
diary. As it appears from Ms. Grey’s uncontradicted statement
that she was unaware defense counsel intended to submit the
diary, she could not have realized that defense counsel intended
to use her notes for this purpose. Her post-trial affidavit
clarifies that she would not have endorsed use of her notes
under these circumstances.

                                  33
United States v. Akbar, No. 13-7001/AR


narrative of mental illness, merely draws attention to these

passages.   For example, the diary contains references to

Appellant’s indoctrination in the tenets of the Nation of Islam,

which defense counsel allegedly did not wish to introduce to the

members.    Ms. Grey’s notation next to one such passage reads:

“Hatred of Caucasians -- stemming from exposure to Nation of

Islam,” with nothing more.   Her notes point out in other places,

“Childhood goal of destroying America,” and “Kill as many

Caucasians as possible if they block his success in helping his

people:    prays Allah will stop him if he is wrong.”   In short,

her notes do not communicate that the diary is indicative of

long-standing mental illness.

    The FBI analysis, similarly, fails to relate back to

defense counsels’ mitigation case theme:   that Appellant was

mentally ill.   The report does not, for example, explain that

Appellant’s feelings are symptomatic of mental illness.     Nor

does it otherwise contextualize the damaging, anti-American,

prejudicial passages in the diary.    For example, the summary

condenses the passages where Appellant’s entries exhibit “anger

and . . . increasingly verbalize[] a desire to kill some of his

comrades,” without further analysis.   Although the report’s

concluding paragraphs do state that Appellant’s “diary reflects

years of a lonely struggle,” they also relate that:     “[a]lthough

no mention is made in his diary of a specific plan to kill his

                                 34
United States v. Akbar, No. 13-7001/AR


military ‘buddies,’ given what has been written, his actions

come as no surprise.”   Significantly, the conclusion ends with

this statement:    “None of this excuses what Akbar has done.

Based on his writings and pleas to Allah, Akbar clearly knew

right from wrong.   He states, ‘I have nothing left to lose.    I

don’t even have any pride left.’”     Although the FBI assessment

presents a more cohesive analysis of the diary than Ms. Grey’s

notes, it still does not place damaging diary entries in the

larger context of defense counsels’ theme of mental illness.

Consequently, these notes did not support defense counsels’

reasoning for submitting the diary in the first place:    to

illustrate Appellant’s latent and emerging mental illness.

     More importantly, submitting these documents along with

Appellant’s entire diary does not alleviate defense counsels’

obligation to first consult with experts before admitting the

diary.   Defense counsel ought to have sought advice on this

issue, not merely inferred that their experts would support

their decision.

     Defense counsel are not required to consult an expert every

time they seek to submit documentary evidence.    Such a standard

would be absurd.    They may generally rely on their own judgment

regarding the submission of exhibits.    However, Strickland

presents a fact- and case-specific test.    See Williams v.

Taylor, 529 U.S. 362, 391 (2000) (noting that Strickland “of

                                 35
United States v. Akbar, No. 13-7001/AR


necessity requires a case-by-case examination of the evidence,”

as each mitigation case is unique (quoting Wright v. West, 505

U.S. 277, 30 (1992)); Rompilla v. Beard, 545 U.S. 374, 394

(2005) (O’Connor, J., concurring) (recognizing the Supreme

Court’s “longstanding case-by-case approach to determining

whether an attorney’s performance was unconstitutionally

deficient under Strickland v. Washington.”).   And this is no

ordinary piece of evidence.   The diary was used in support of

Appellant’s lack of mental responsibility defense -- a matter

that is heavily influenced by the input and advice of experts.

Just as competent defense counsel are expected to consult an

expert before mounting a mental illness defense,23 so, too,

should they seek expert advice before submitting critical

evidence in support of such a defense.24   Counsel here were not


23
  See, e.g., Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005)
(determining counsel was ineffective for relying on defendant’s
own testimony to support “heat of passion or diminished
capacity” defense rather than “investigat[ing], discover[ing],
and present[ing] mental health evidence”).
24
  See Duncan v. Ornoski, 528 F.3d 1222, 1235-36 (9th Cir. 2008)
(noting that “[i]t is especially important for counsel to seek
the advice of an expert when he has no knowledge or expertise
about the field” and holding counsel’s performance deficient for
failing to consult an expert before trial because counsel “did
not have the personal expertise . . . to make strategic
decisions about how to handle . . . evidence on his own and he
certainly was not qualified to undermine the State’s case by
simply cross-examining its experts without obtaining expert
assistance himself.”); Bell v. Miller, 500 F.3d 149, 156 (2d

                                36
United States v. Akbar, No. 13-7001/AR


in a position to assume that their experts would support

submission of the entire diary based on general “discussions

with Dr. Woods,” rather than meaningful and direct consultation.

In a similar case, the United States District Court for the

Eastern District of New York concluded that defense counsel was

deficient for submitting into evidence “a complete, unredacted”

copy of a medical report detailing a child’s account of her

sexual abuse by the defendant.   Usher v. Ercole, 710 F.Supp. 2d

287, 305-06 (E.D.N.Y. 2010).   The court found that even if some

of the evidence in the report was admissible, defense counsel

was not “justified in placing a complete and unredacted copy of

the . . . Report before the jury,” calling its contents “highly

damaging,” and noting that “[t]he extraneous details in [the

report] are disturbing and inflammatory.”   Id. at 306-07.    The

court found that “[t]hese and other contextual details . . .

[describe a] frankly harrowing narrative of chronic abuse, with

a suggestion of continuing danger.”   Id. at 307.   On this basis,

the district court concluded that defense counsel’s decision to



Cir. 2007) (concluding that counsel’s failure to consult expert
before cross-examining sole eyewitness who had suffered from
“trauma, blood loss and sedation” was deficient performance
under Strickland); Gersten v. Senkowski, 426 F.3d 588, 611 (2d
Cir. 2005) (holding that counsel was deficient for “fail[ing] to
consult or call an expert on the psychology of child sexual
abuse, or to educate himself sufficiently on the scientific
issues.”).

                                 37
United States v. Akbar, No. 13-7001/AR


present the report fell below the standard of reasonable

competence expected of counsel.    Id. at 307-09.

     Similar to Usher, here, defense counsels’ decision to

present the diary to the members, unvarnished and unredacted,

was not the result of a reasonable tactical decision.        Not only

because defense counsel failed to properly investigate the basis

of their decision, but also because the decision itself was

unreasonable.

     The diary is problematic for two reasons.      First,

Appellant’s diary was a key component in the defense’s theory of

Appellant’s mental illness.    Second, the diary contained

inflammatory entries recounting Appellant’s hatred for

Caucasians, meaning it was potentially prejudicial to

Appellant’s case.    Cognizant of these factors, defense counsels’

lack of investigation into whether, or how, to present the diary

was error.

     Accordingly, trial defense counsel were deficient in

deciding to submit into evidence Appellant’s entire diary

without adequate investigation.



             B. Omitting “Humanizing” Testimony From Appellant’s
             Family and Friends


               a.   The Importance of “Humanizing” Testimony




                                  38
United States v. Akbar, No. 13-7001/AR


     Although not required per se, testimony by lay mitigation

witnesses humanizing an accused person is significant.    In the

context of a death penalty case involving a heinous offense, it

may be invaluable, as well as a defendant’s best hope for life.

The Supreme Court, for example, has repeatedly emphasized “the

crucial importance of adducing evidence at a sentencing

proceeding that establishes the defendant’s social and familial

connections.”    See Strickland, 466 U.S. at 718 (Marshall, J.,

dissenting); see also Penry v. Lynaugh, 492 U.S. 302, 319

(1989), abrogated on other grounds by Atkins v. Virginia, 536

U.S. 304 (2002) (“[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 . . . may be less

culpable”); Eddings v. Oklahoma, 455 U.S. 104, 112 (1982)

(presentation of a defendant’s life history in a capital case is

“part of the process of inflicting the penalty of death”

(internal quotation marks omitted)).   The Court has noted that a

defendant’s “troubled history . . . [is] relevant to assessing a

defendant’s moral culpability.”    Porter v. McCollum, 558 U.S.

30, 41 (2009).

     The ABA Guidelines also recognize value in such testimony.

Guideline 10.11 states that “it is critically important to

construct a persuasive narrative in support of the case for

                                  39
United States v. Akbar, No. 13-7001/AR


life, rather than to simply present a catalog of seemingly

unrelated mitigating factors.”   ABA Guideline 10.11, commentary,

31 Hofstra L. Rev. at 1061.   To that end, the ABA Guidelines

encourage counsel to consider presenting, in the penalty phase

of the court-martial, “[w]itnesses familiar with and evidence

relating to the client’s life and development, from conception

to the time of sentencing, that . . . would present positive

aspects of the client’s life, or would otherwise support a

sentence less than death,” as well as “witnesses who can testify

about the adverse impact of the client’s execution on the

client’s family and loved ones.”      Id. at 1055-56.   This is so

because “[f]amily members and friends can provide vivid first-

hand accounts of the poverty and abuse that characterizes the

lives of many capital defendants.     These witnesses can also

humanize the client by allowing the jury to see him in the

context of his family, showing that they care about him, and

providing examples of his capacity to behave in a caring,

positive way, such as attempting to protect other family members

from domestic violence or trying to be a good parent and

provider.”   Id. at 1062.

     Moreover, under the ABA Guidelines, “[a] capital defendant

has an unqualified right to present any facet of his character,

background, or record that might call for a sentence less than

death.”   ABA Guidelines, Introduction, 31 Hofstra L. Rev. at

                                 40
United States v. Akbar, No. 13-7001/AR


927.   “This Eighth Amendment right . . . does nothing to fulfill

its purpose unless it is understood to presuppose that the

defense lawyer will unearth, develop, present, and insist on the

consideration of those compassionate or mitigating factors

stemming from the diverse frailties of humankind.”   Id.

(internal quotation marks omitted) (citation omitted).

              b. The Absence of “Humanizing” Testimony in
              Appellant’s Mitigation Case


       Counsel in this case were not oblivious to the value of

such humanizing testimony.   Multiple mitigation specialists

employed by defense counsel emphasized the importance of

mounting a detailed social history through lay witnesses in

Appellant’s mitigation case.25   Yet counsel did not call any


25
  See Grey Declaration (mitigation specialist) (“[T]he best way
to present mitigation evidence, the evidence of the client’s
life history, is through lay witnesses, those individuals who
may be family, friends, teachers, and treating professionals.”);
Nerad Declaration (mitigation specialist) (advising, in the
context of a mitigation presentation, that “it is unacceptable
to substitute lay witnesses” with expert witnesses, because
expert witnesses “should be used only in conjunction with lay
witnesses who lay the foundation with their information.”);
Rogers Declaration (mitigation specialist) (“Understanding and
appreciating the relevance of Sergeant Akbar’s unusual life and
extremely strange upbringing would be nearly impossible without
detailed accounts and explanation” from witnesses); Dunn
Declaration (experienced capital litigator) (“I instructed
counsel that SGT Akbar’s story must include both the ‘nature’
and ‘nurture’ aspects of his life which . . . provide a means of
understanding his actions on the day of the crimes” and that
they should present a “multigenerational life history” of
Appellant).

                                 41
United States v. Akbar, No. 13-7001/AR


witnesses that humanized Appellant.    During the mitigation phase

of the court-martial, defense counsel called two servicemembers

as well as one civilian mitigation witness:    Daniel Duncan,

Appellant’s high school teacher.26    However, counsel did not call

any member of Appellant’s family to request that his life be

spared, standing instead on a single familial declaration from

Appellant’s brother.

     In their joint post-trial affidavits, counsel reasoned that

they did not wish to call Appellant’s family members as

witnesses for fear that their testimony could open the door to

the “incident of 30 March 2005” where Appellant “allegedly

stabbed a military policeman in the neck with a pair of 12-inch-

scissors” while in pretrial custody.27    Defense counsel explained


26
  As explained below, Mr. Duncan’s testimony did little to
humanize Appellant, in part because Mr. Duncan had only a vague
recollection of Appellant as a student. And no other live
witness testified to facts that would humanize Appellant. During
the merits phase of the trial, defense counsel called two
experts, Dr. Woods and Dr. Tuton, as well as Appellant’s college
roommate, Paul Tupaz. As explained further below, see infra,
Part C, this testimony was clinical and dispassionate and did
not humanize Appellant. Certainly, in omitting humanizing
testimony from willing family members, counsel did not “at every
stage of the case . . . take advantage of all appropriate
opportunities to argue why death is not suitable punishment for
their particular client.” ABA Guideline 10.11, 31 Hofstra L.
Rev. at 1058.
27
  Strikingly, given defense counsel’s Herculean efforts to keep
out any mention of the “scissor attack” of March 30, 2005,
defense counsel did not challenge any of the panel members who
had stated on voir dire that they were, in some manner, aware
that the attack had occurred. Out of fifteen panel members, ten
                                42
United States v. Akbar, No. 13-7001/AR


that “[a]lthough the defense motion to preclude the government

from referencing the incident during the case was successful, it

was a ruling that was made without prejudice for the government

to revisit the decision at a later date.”   Defense counsel

stated that after the alleged attack they “re-interviewed each

of [their] civilian mitigation witnesses” and chose not to call

any of them because of the “inability of the witness[es] to

limit their testimony in order to avoid opening the door to the

30 March 2005 incident on rebuttal.”28   (JA 2350).



stated during voir dire that they had heard of such an attack
either from the local news, or from workplace chatter. Of these
ten, three were never asked if they could put this incident out
of their minds and decide the case solely based on the evidence.
Four panel members stated that they were aware from news reports
that a “scuffle” had occurred involving Appellant and a military
police officer. Another panel member stated he heard that
Appellant had “overpowered” a guard. Yet, despite defense
counsel’s insistence that this incident never be mentioned
during the court-martial, defense counsel did not challenge a
single member who had heard of the event, not even the panel
member who both expressed a slanted view of Muslims and Islam
and had heard of the alleged scissor attack.
28
  I note that it is the majority opinion, not defense counsel,
which reasons that family members’ testimony on the impact of
Appellant’s death would have alienated the members. Akbar, __
M.J. at __ (67). Defense counsel did not make this claim in
their post-trial affidavits. Indeed, they would not, as up
until the night before closing arguments, defense counsel sought
to admit the testimony of Appellant’s parents as mitigating
evidence. Defense counsel did not believe that testimony from
family members would be fruitless or counterproductive of its
own accord, only because it may open the door to the March 30,
2005 attack.

                                43
United States v. Akbar, No. 13-7001/AR


     Certainly, as a general matter, defense counsel have

discretion on whether or not to call witnesses to testify.    That

is not the issue.   The real issue is that counsels’ reasoning

was decided on the basis of insufficient inquiry.   “[A]

reviewing court must consider the reasonableness of the

investigation said to support that strategy.”   Wiggins v. Smith,

539 U.S. 510, 527 (2003) (citing Strickland, 466 U.S. at 691).

Having reviewed counsels’ strategy, it is apparent that, similar

to the decision to submit Appellant’s diary, counsels’ decision

was not sufficiently supported by an adequate investigation, and

therefore is not entitled to deference.

     We can infer that counsel valued humanizing testimony

because defense counsel intended to call Appellant’s family

members to testify on his behalf during the mitigation phase of

Appellant’s court-martial.29   Defense counsels’ witness list for


29
  Further proof that counsel valued humanizing testimony can be
gleaned from defense counsels’ correspondences after the merits
phase of the court-martial, where counsel seemed to acknowledge
the shortcomings of their mental illness defense. In an e-mail
to Dr. Walker, an expert whom defense counsel had retained in
preparation for trial, LTC Brookhart requested Dr. Walker’s
help, explaining that “[o]ur expert in the merits case, Dr.
Woods, did ok, but obviously, the panel rejected his theory.”
We can deduce from this e-mail that, mid-trial, counsel doubted
the value of emphasizing the mental illness theme that Dr. Woods
had developed through his differential diagnosis in the merits
phase of the trial. This should have prompted a renewed focus
on presenting humanizing testimony. Government appellate
counsel argued in its brief before this Court that calling

                                 44
United States v. Akbar, No. 13-7001/AR


the sentencing phase of the court-martial included Appellant’s

high school classmate, Regina Weatherford; Appellant’s brother,

Musa John Akbar; and Appellant’s parents, Quran Bilal and John

Akbar.   Indeed, up until the night before closing arguments were

scheduled, MAJ Coombs implied that he would be calling one or

more of these mitigation witnesses.    When the military judge

asked MAJ Coombs:   “just to get a handle on what we might expect

tomorrow; two -- maybe three witnesses, so the defense

sentencing case should close by 1000?,” MAJ Coombs responded, “I

would think so, sir.   Yes.”   Yet, the next day, defense counsel

called no additional witnesses, and that morning the parties

delivered their closing arguments.30   Defense counsels’ actions

demonstrate that despite the complication the alleged scissor

attack posed, they nevertheless planned on calling civilian

family members as mitigation witnesses was unnecessary because
none would have contributed to defense counsels’ mental illness
theme in both the merits and penalty phase of the trial. This
argument is not supported by defense counsels’ post-trial
affidavits, nor is it consistent with their actions at trial,
wherein they appeared ready to call family members as mitigation
witnesses up to the night before closing arguments.
Consequently, this belief that defense counsel eschewed
humanizing testimony is merely post-hoc argument that should
not factor into an objective analysis of the reasonableness of
defense counsels’ strategy at the time of trial.
30
  When questioned, MAJ Coombs informed the military   judge that
he had “sound tactical reasons not to” call further   witnesses.
Of course, this Court should not defer to counsel’s   own
assessment that their tactical reasoning was sound;   this Court
must undergo this analysis objectively.

                                 45
United States v. Akbar, No. 13-7001/AR


mitigation witnesses for almost four weeks following the

incident.

     After the alleged attack, counsel had almost a month to,

either, prepare their mitigation witnesses to avoid testimony

that would “open the door” to the attack, or interview

replacement witnesses.   It appears that counsel did neither.

Rather, counsel stayed the course, representing that they would

call Appellant’s family as mitigation witnesses until the

eleventh hour, even though defense counsel now claim, post-

trial, that they did not wish to call these witnesses at all

after the alleged scissor attack had occurred.31

     More importantly, despite anticipating the limitations of

their current mitigation witnesses, defense counsel did not seek

out replacement witnesses.   Upon determining that several


31
  Defense counsel did present statements in the mitigation phase
of the court-martial from two potential mitigation witnesses:
Appellant’s brother, Musa John Akbar, and Appellant’s high
school classmate Regina Weatherford. These documents were of
limited value in humanizing Appellant. For example, Ms.
Weatherford’s statement, offered into evidence by defense
counsel by way of a question-and-answer form, relates that
Appellant and Ms. Weatherford were “not really” friends but
“acquaintances with a love hate relationship,” and implied that
Appellant was sexist, writing, “Hasan had very specific
viewpoints of what a woman should or should not do. I believe
it was part of his religious beliefs.” Mr. Musa John Akbar’s
statement, while more personalized, was also presented in the
form of a standardized question-and-answer sheet, and lacked the
personal value that live witness testimony would have provided.

                                46
United States v. Akbar, No. 13-7001/AR


mitigation witnesses scheduled to testify would prove

problematic, the reasonable next step would have been for

defense counsel to interview additional potential witnesses

beyond Appellant’s mother, father, brother, and childhood

friend.   There were other family members known to defense

counsel who would have been willing to testify on Appellant’s

behalf:   Appellant’s sisters Sultana Bilal, and Mashiyat Akbar;

Appellant’s aunt, Dyan Rankins; Appellant’s cousins, Starr

Wilson, Merthine Vines, Catherine Brown, and Jill Brown;

Appellant’s high school friend, Ruthie Avina; and Appellant’s

college landlord, Marianne Springer. Yet counsel did not seek

out these witnesses to see if they could testify without opening

the door to the alleged attack.32



32
  Three federal circuits have recognized that counsel are not
under an obligation to interview every witness who is willing to
testify. See Magee v. United States, 277 F. App’x 598, 602 (7th
Cir. 2008) (unpublished) (“When counsel already knows what a
potential witness is going to say and makes a strategic decision
not to pursue the testimony, counsel’s performance is not
defective.”); Parker v. Woodford, 168 F. App’x 152, 155 (9th
Cir. 2006) (unpublished) (“[C]ounsel of course . . . need not
interview every possible witness to have performed proficiently.
Interviewing witnesses whose testimony is generally known to
counsel, for example, may be unnecessary.” (citing Strickland,
466 U.S. at 691) (internal quotation marks omitted) (citations
omitted)); Huffington v. Nuth, 140 F.3d 572, 580 (4th Cir. 1998)
(“The Sixth Amendment, however, does not always compel counsel
to undertake interviews and meetings with potential witnesses
where counsel is familiar with the substance of their
testimony.”) (collecting cases). Nevertheless, under these
circumstances, where counsel were specifically concerned about
their ability to control a witness on the stand, defense
                                47
United States v. Akbar, No. 13-7001/AR


     Counsel were reasonably expected to further investigate

following the alleged attack, yet did not.   See Williams, 529

U.S. at 396 (finding that counsel’s omissions “clearly

demonstrate that trial counsel did not fulfill their obligation

to conduct a thorough investigation of the defendant’s

background.”   (citing 1 ABA Standards for Criminal Justice 4–

4.1, commentary, p. 4–55 (2d ed. 1980))).    According to the ABA

Guidelines, even when tailoring a mitigation case to avoid

bringing in otherwise inadmissible aggravating evidence,

“[c]ounsel should pursue all appropriate means . . . to ensure

that the defense case concerning penalty is constricted as

little as possible by this consideration.”   ABA Guideline 10.11,

31 Hofstra L. Rev. at 1056-57.   This was not a case where

counsel believed that interviewing additional witnesses would be

fruitless, Wiggins, 539 U.S. at 525, “that character and

psychological evidence would be of little help,” Strickland, 466

U.S. at 699, or that all the witnesses they had investigated

were more harmful than helpful to Appellant’s case, Burger v.

Kemp, 483 U.S. 776, 794-95 (1987).33   Counsel simply did not


counsels’ failure to interview additional witnesses beyond their
original witness list was unreasonable.
33
  It does not appear from the post-trial affidavits that counsel
concluded that no further investigation into additional
humanizing witnesses was necessary following the alleged attack.
See Strickland, 466 U.S. at 690.

                                 48
United States v. Akbar, No. 13-7001/AR


interview any other family members or close friends to determine

whether they could replace the mitigation witnesses.

     Based on counsels’ lack of investigation, their omission of

humanizing testimony was not a “virtually unchallengeable”

decision made “after thorough investigation of law and facts

relevant to plausible options.”    See Strickland, 466 U.S. at

690; Knowles v. Mirzayance, 556 U.S. 111, 126 (2009).     Rather,

as the Wiggins Court noted, “[t]he record of the actual

sentencing proceedings underscores the unreasonableness of

counsel’s conduct by suggesting that their failure to

investigate thoroughly resulted from inattention, not reasoned

strategic judgment.”   Wiggins, 539 U.S. at 526.   Such a decision

was unreasonable, even if “hindsight is discounted by pegging

adequacy to ‘counsel’s perspective at the time’ investigative

decisions are made.”   Rompilla, 545 U.S. at 381 (citing

Strickland, 466 U.S. at 689).

     Defense counsels’ incomplete investigation into whether

humanizing witnesses could testify without opening the door to

aggravating evidence distinguishes the instant case from past

Supreme Court cases with seemingly similar factual predicates.

     In Bell v. Cone, 535 U.S. 685, 700 (2002), the Supreme

Court did not hold defense counsel deficient where counsel

neglected to “call[] other witnesses from [the defendant’s]

childhood or days in the Army” out of “fear[] that the

                                  49
United States v. Akbar, No. 13-7001/AR


prosecution might elicit information about respondent’s criminal

history.”   Id.   Nevertheless, that case is distinguishable

because the defendant in Bell did not allege that counsel had

conducted an incomplete investigation into the viability of

calling other mitigation witnesses, as Appellant does here.34

Id.   Similarly, in Burger, 483 U.S. at 792-94, the Supreme Court

concluded that defense counsel’s decision not to call the

defendant’s mother to testify was reasonable because counsel

reasonably believed her testimony might raise “matters of

historical fact that would have harmed his client’s chances for

a life sentence.”   Id. at 792.   Like Bell, Burger is inapposite

becausethe defendant did not claim that defense counsel had

failed to interview additional witnesses..   Id.35

34
  In fact, defense counsel had called the accused’s mother to
testify in the merits portion of the case, but did not recall
her during the sentencing case only because she “had not made a
good witness at the guilt stage and should not be subjected to
further cross-examination.” Bell, 535 U.S. at 687. Defense
counsel in Bell was not alleged to have made this tactical
decision without a sufficient investigation.
35
  In Burger the accused claimed, without success, that defense
counsel had failed to conduct a sufficient investigation into
Appellant’s background by neglecting to interview all available
witnesses. Nevertheless, the basis for this claim is
distinguishable from Appellant’s because in Burger the Court
found that defense counsel “did interview all potential
witnesses who had been called to his attention,” Burger, 483
U.S. at 794-95, whereas in the instant case, counsel did not re-
interview the mitigation witnesses known to them and could
provide no reasonable justification for this omission.

                                  50
United States v. Akbar, No. 13-7001/AR


     Wong v. Belmontes, 558 U.S. 15 (2009), is distinguishable

on separate grounds.   In that case, similar to the case at hand,

defense counsel “built his mitigation strategy around the

overriding need to exclude” evidence that the accused had

committed a prior bad act, “tailor[ing] his mitigation case

carefully to . . . exclud[e]” the prejudicial evidence.   Id. at

18-19.   Yet, ultimately, the Supreme Court did not sanction this

strategy, instead resolving the case on Strickland’s prejudice

prong alone.   Id. at 19.   Significantly, the Supreme Court did

not repudiate the circuit court’s conclusion that counsel’s

“performance was constitutionally deficient,” even though

defense counsel had mounted a lengthy mitigation case over the

span of two days, “put[ting] on nine witnesses he thought could

advance a case for mitigation,” and presenting detailed personal

stories about the defendant’s character and life history.   Id.

Wong, therefore, is not an endorsement of counsel’s averred

strategy in this case of excluding mitigation witnesses to avoid

mention of the March 30, 2005, attack.

     Ultimately, counsel missed the forest for the trees.     Out

of concern that they not open the door to inquiry regarding

Appellant’s assault of a guard with a pair of scissors, they

chose not to offer what may have been Appellant’s best

opportunity to avoid a sentence of death.   How could a single

member of the panel be expected to argue for mercy if

                                 51
United States v. Akbar, No. 13-7001/AR


Appellant’s own family was seemingly not prepared to do so?

Moreover, to the extent the goal was to avoid opening the door

to the scissor incident, and thus Appellant’s violent nature and

propensity to commit acts of future violence, Appellant’s diary

already arguably opened, closed, and sealed that door.

     In summary, counsel were aware of the scissor attack for

weeks, and intended to present mitigating witnesses to testify.

Under such circumstances, proficient counsel would have

undergone additional investigation instead of staying the course

in light of changed circumstances.    Consequently, counsels’

strategy is not entitled to deference because it was based on an

incomplete investigation that was unreasonable under the

circumstances.    Given that defense counsel did not interview

other witnesses, counsels’ choice to present no witnesses to

humanize Appellant was not sound strategy.   In the end, it is

hard not to ask the question:   If Appellant’s own family is not

prepared to argue for his life, why should an individual member?



          C. Prejudice -- Is There a Reasonable Probability That
          At Least One Juror Would Have Struck a Different
          Balance?


     The second prong of Strickland addresses prejudice.    466

U.S. at 692-96.   Under this prong, Appellant is not required to

show “‘that counsel’s deficient conduct more likely than not


                                 52
United States v. Akbar, No. 13-7001/AR


altered the outcome’ of his penalty proceeding, but rather . . .

establish ‘a probability sufficient to undermine confidence in

[that] outcome.’”    Porter, 558 U.S. at 44 (citing Strickland,

466 U.S. at 693–94); see also Rompilla, 545 U.S. at 393.     When

looking at deficient performance during capital sentencing,

courts specifically examine whether “there is a reasonable

probability that at least one juror would have struck a

different balance” in sentencing.      Wiggins, 539 U.S. at 537.

“In making this determination, a court hearing an

ineffectiveness claim must consider the totality of the evidence

before the judge or jury.”    Strickland, 466 U.S. at 695.   “[W]e

reweigh the evidence in aggravation against the totality of

available mitigating evidence.”    Loving v. United States (Loving

III), 68 M.J. 1, 7 (C.A.A.F. 2009) (quoting Wiggins, 539 U.S. at

534).

        To be sure, counsel did present some mitigating evidence.

But solely mounting a mitigation case is not enough.     As the

Supreme Court noted in Sears v. Upton, 561 U.S. 945 (2010),

“[W]e also have found deficiency and prejudice in other cases in

which counsel presented what could be described as a

superficially reasonable mitigation theory during the penalty

phase.”    Id. at 954-55 (citing Williams, 529 U.S. at 398

(remorse and cooperation with police), Rompilla, 545 U.S. at 378

(residual doubt), Porter, 558 U.S. at 32 (intoxication)).

                                  53
United States v. Akbar, No. 13-7001/AR


     Contrary to the majority’s declaration that “if there ever

was a case where a military court-martial panel would impose the

death penalty, this was it,” Akbar, __ M.J. at __ (6), a death

sentence was not a foregone conclusion in this case.    Indeed,

both the Supreme Court and this Court have found prejudice in

death penalty cases even when the crimes have been abhorrent.

See Rompilla, 545 U.S. at 377-80 (concluding there was prejudice

notwithstanding evidence that defendant had repeatedly stabbed

the victim and set him on fire); Wiggins, 539 U.S. at 514-19

(concluding there was prejudice despite the fact that the

accused drowned a septuagenarian); Murphy, 50 M.J. at 12

(concluding there was prejudice even though the case involved “a

gory and inexplicable family homicide” where the accused’s

“first wife had been killed by repeated blows to the head by . .

. a hammer, and then drowned in her bathtub” and her two young

children “had been violently killed”).    The question presented

is not whether Appellant is guilty, but whether he had fair

opportunity, with the effective representation of counsel, to

argue for life.

     Here, when viewing the totality of the mitigating evidence

and weighing the mitigating and aggravating factors, there is a

reasonable probability that “at least one [member] would have

struck a different balance.”    Loving III, 68 M.J. at 7 (citing

Wiggins, 539 U.S. at 537).     First, the errors in question were

                                  54
United States v. Akbar, No. 13-7001/AR


harmful to Appellant’s case.   Second, the mitigating evidence

the defense introduced did not otherwise compensate for the

introduction of the diary and absence of familial support.

Third, and most importantly, the members requested an

instruction on reconsideration, indicating that the sentence

outcome was not inevitable or certain.

     Admission of the diary in its entirety was harmful to

Appellant’s case.   As previously noted, there were damaging

passages spanning from Appellant’s early twenties to the weeks

before the attack, a decade later, which defense counsel

introduced into evidence.    First, the diary undercut defense

counsels’ theory that the attack was due to Appellant’s mental

illness.   These passages portrayed Appellant as hateful and

resentful of Caucasians and the U.S. government.   They

demonstrated that this hatred was enduring.    This does not

suggest a recent worsening of an existing mental illness that

drove Appellant to attack his fellow soldiers.   Second, the

diary undercut the argument that the attack was not

premeditated.   As the FBI report states, when reading the diary,

Appellant’s “actions [came] as no surprise.”   Third, the diary

sapped any sympathy the members may have had for Appellant.

     Similarly, the absence of live lay witnesses to humanize

Appellant was prejudicial.   As noted, Supreme Court case law and

the ABA Guidelines recognize the value of presenting humanizing

                                 55
United States v. Akbar, No. 13-7001/AR


witness testimony.   See Penry, 492 U.S. at 319; Eddings, 455

U.S. at 112; Porter, 558 U.S. at 41; ABA Guideline 10.11, 31

Hofstra L. Rev. at 1061.   Such testimony was completely absent

in this case.   The panel was left with the impression that no

one could be bothered to come into court and testify on

Appellant’s behalf, and that no one would be affected by his

death, even his family.

     Second, the witnesses that defense counsel did call to

testify were unhelpful, and even harmful, to Appellant’s

mitigation case.   The only witnesses who testified in support of

Appellant’s mitigation case were either dispassionate expert

witnesses, servicemembers who demonstrated aversion for

Appellant, or civilian lay witnesses who were ambivalent about

Appellant.36

     During the merits phase of the court-martial, defense

counsel called three witnesses in support of Appellant’s merits

and mitigation case.   Dr. Woods and Dr. Tuton testified in

support of the mental illness defense.   These witnesses did not

know Appellant personally.   Their testimony was intended to

support a mental health diagnosis and was, as a result, clinical

and impersonal.    Dr. Woods testified from a clinician’s


36
  The six witnesses comprise the total number of witnesses
called in support of Appellant’s mitigation case in both the
merits and mitigation phases of the trial.

                                 56
United States v. Akbar, No. 13-7001/AR


perspective, providing a dispassionate differential diagnosis

based on his post-arrest evaluation of Appellant, and therefore

did little to humanize Appellant, other than point out that he

likely suffers from a mental illness.    Dr. Tuton had limited

experience with Appellant, having conducted a mental evaluation

of him when he was a teenager after speaking with Appellant for

only four hours.   Such testimony is no substitute for the live

testimony of lay witnesses who had, at one point, a strong

affinity for Appellant.

     Defense counsel also called a civilian lay witness, Mr.

Paul Tupaz, Appellant’s former roommate, to testify.    Mr.

Tupaz’s testimony, similar to that of the two experts, focused

on symptoms of mental illness, such as Appellant’s habit of

pacing, his short temper, and his habit of keeping lists.     This

testimony did not speak to any personal positive attributes of

Appellant’s character, only to manifestations of a potential

mental ailment.

     During the mitigation phase of the trial, defense counsel

called two servicemembers who had served with Appellant to

testify regarding behaviors Appellant exhibited that were

consistent with the theme of mental illness introduced in the

merits stage of the court-martial.37    Yet the behaviors described

37
  The testimony of all three witnesses during Appellant’s
mitigation case lasted less than one hour total.

                                57
United States v. Akbar, No. 13-7001/AR


by these witnesses did not further establish that Appellant was

psychologically ill -- only that he was irresponsible and a

“subpar” noncommissioned officer (NCO).   For example, Captain

Storch testified that Appellant had “deficiencies as a team

leader,” often “exhibiting poor decision-making skills.”     He

testified that Appellant never improved as a platoon leader.      He

related an incident where Sergeant Akbar was put in charge of

cleaning up a company bunker and, after doing so, dumped all the

trash, including “unused M.R.E. heaters, some air conditioning

units . . . hazardous material[s]” into a creek, where it was

eventually discovered.   In addition, Sergeant Kumm testified

that Appellant was a “below average” NCO and that “[i]t had been

an ongoing issue that [Appellant] was not coming up to par.”

The testimony presented did not support a cohesive and

compelling case for Appellant’s mental illness.   This testimony

illustrated that Appellant was disagreeable, and had squandered

his potential.

     The third witness defense counsel called during the

mitigation phase was similarly unhelpful.   Daniel Duncan,

Appellant’s high school teacher, testified that Appellant “was

an excellent student” who “ha[d] an aptitude and showed an

interest” in learning.   Yet he also testified that he did not

have many interactions with Appellant personally.   Mr. Duncan’s

unfamiliarity with Appellant and endorsement of his “aptitude”

                                58
United States v. Akbar, No. 13-7001/AR


are no replacement for humanizing testimony from Appellant’s

family and close friends on Appellant’s character or worth as a

person.

     Appellant’s mitigation case is insubstantial in contrast

with the mitigation presentation in Loving III, where this Court

found no prejudice.   68 M.J. at 2.   In Loving III, this Court

considered the fact that:

     [d]uring the sentencing phase, defense counsel
     presented the testimony of a number of witnesses to
     address Loving’s family and social background. These
     included: Joe Loving Sr., Loving’s father; Lucille
     Williams, Loving’s mother; Ronald Loving, Loving’s
     brother; Wendolyn Black, Loving’s sister; Lord
     Johnson, Loving’s childhood boxing coach; and
     Detective Verna of the Rochester police department.
     Stipulated testimony was submitted from Harry Loving,
     Loving’s brother, and Kenneth Wilson, Loving’s
     childhood teacher.

Id. at 9-10.   Appellant’s case is lacking even when compared to

United States v. Curtis (Curtis III), 46 M.J. 129, 130 (C.A.A.F.

1997), where this Court did hold that the defendant was

prejudiced by counsel’s deficient performance.   This Court

concluded 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,” 46 M.J. at 130,

despite the fact that defense counsel made an “effort to present

a picture of appellant not only through his mother’s own words

but also through the words of over 27 individuals who knew

appellant from his community in Wichita,” comprising forty pages

                                59
United States v. Akbar, No. 13-7001/AR


of the court-martial transcript.     United States v. Curtis

(Curtis II), 44 M.J. at 123, on reconsideration, 46 M.J. 129

(C.A.A.F. 1997).   In contrast to both Loving and Curtis, in the

instant case not only were there far fewer character witnesses,

but some of these witnesses painted an unflattering portrait of

Appellant.   It is therefore unconvincing that defense counsel

presented some mitigating evidence.    In weighing the aggravating

and mitigating evidence, it is clear that Appellant was

prejudiced by defense counsels’ decisions.

     Consequently, even considering the aggravating evidence, I

disagree with the majority opinion’s contention that testimony

on the impact of Appellant’s death on family members would have

made no difference.   Akbar, __ M.J. at __ (65-67).    In my view,

some of the mitigating evidence that defense counsel presented

was arguably unhelpful, and even harmful to Appellant’s

mitigation case.

     The third and critical piece to the prejudice analysis is

that at least one member waivered in their decision, as

evidenced by the members’ request for an opportunity to

reconsider the sentence they had initially reached.    This

indicates that the members’ views were not fixed and could have

been swayed by an effective mitigation presentation.

     The members deliberated for six hours before indicating to

the military judge that reconsideration had been proposed.

                                60
United States v. Akbar, No. 13-7001/AR


During deliberations, any member may propose a sentence, and the

members vote on a sentence by secret written ballot, starting

with the least to the most severe, “until a sentence is adopted

by the concurrence of the number of members required.”   See

R.C.M. 1006(c), (d)(2), R.C.M. 1009.38   If a consensus is reached

on a proposed sentence, the members may not vote again unless

they do so under the reconsideration procedures established

under R.C.M. 1009.   See R.C.M. 1006(c), (d)(2), R.C.M. 1009.

Any member may propose reconsideration, but the members may only

reconsider a sentence if a threshold number of members agree to

do so.   R.C.M. 1009.   The military judge instructed the members

on reconsideration after they had indicated that reconsideration

had been proposed.

     It is not apparent in the record what sentence the members

had initially reached, namely, whether it was a death sentence,

or life without parole.   Indeed, the military judge instructed

the members not to disclose whether the announced sentence was

identical to the original vote, or had changed upon




38
  The members are required to first vote on whether the
prosecution has proved an aggravating factor beyond a reasonable
doubt. R.C.M. 1004(b)(4)(A). The members must then “concur
that any extenuating or mitigating circumstances are
substantially outweighed by any aggravating circumstances”
before they may vote on a sentence. R.C.M. 100(b)(4)(C).

                                 61
United States v. Akbar, No. 13-7001/AR


reconsideration.    This detail is immaterial.39   The request for

an instruction on reconsideration itself demonstrates waiver,

doubt, and room for persuasion.    As this Court noted in United

States v. Wilson:

     [w]ithout enumerating [reasons for recasting a
     ballot], we may state generally that they relate to
     the desirability of having the theories for both the
     prosecution and defense weighed and debated thoroughly
     before final judgment, for it cannot be disputed that
     justice is more likely to be administered if full and
     free discussions are not automatically cut off just
     because a vote has been recorded.
18 M.J. 204, 207 (C.M.A. 1984).    There is a reasonable

probability that in weighing and debating thoroughly the

evidence presented, at least one member was swayed to vote

for death by the hate-filled passages in Appellant’s diary.

Conversely, there is a reasonable probability that at least

one member would have voted for life after hearing

humanizing testimony from Appellant’s family.      The

prejudice prong requires only a “reasonable probability

that at least one juror would have struck a different



39
  Based on the trial record, it is possible that, either, the
members reached a sentence of life without parole and
reconsidered with a view to increasing the sentence, or voted
for death and adhered to this position on a second vote. Had
the members voted on the death sentence, at least one person
would need to vote for reconsideration in order to compel a
second vote. This is nevertheless significant because even if
one person had misgivings about a death sentence, that
individual could have been persuaded by an effective mitigation
case and could have precluded a sentence of death by voting for
life imprisonment.
                                  62
United States v. Akbar, No. 13-7001/AR


balance.”   Wiggins, 539 U.S. at 537.    This reconsideration

request supports a reasonable probability that at least one

of the members would have voted for life.     This, in my

view, undermines confidence in the result which, in turn,

establishes prejudice.   See id. at 526-27.

     Accordingly, because I would conclude that counsel was

deficient and that Appellant was prejudiced by such

deficient representation in the mitigation presentation, I

would reverse Appellant’s sentence on the basis that he

received ineffective assistance of counsel.

                            CONCLUSION

     There is no doubt that Appellant is guilty of the offenses

for which he was charged and convicted.    The verdict is just.

As previously stated, the question presented is whether

Appellant had a fair opportunity with effective representation

to argue for life.   In my view, he did not.

     Capital defense counsel in the military are at a

disadvantage.   They are expected to perform effectively in

surely the most challenging and long-lasting litigation they

will face in their legal careers, without the benefit of the

exposure, training, guidelines, or experience in capital

litigation that is available to federal civilian lawyers.       We do

military lawyers, and accused servicemembers, a disservice by

putting them in this position.

                                 63
United States v. Akbar, No. 13-7001/AR


     Without the benefit of guidelines or expertise, counsel

made two tactical decisions that fell below the professional

norms expected of competent counsel.    First, and critically,

counsel introduced Appellant’s vitriolic and expansive diary

without appropriate contextualization, and did so without

adequate prior investigation to support this decision.    Such

investigation would have emphatically demonstrated a need to

place the diary in medical context, particularly where it was

used in support of the defense’s theme of mental illness.

Without such context, the diary demonstrated that Appellant

remained a threat to society and the soldiers around him.

     Second, counsel failed to introduce a single witness in

court to humanize Appellant and to argue for life.    This was

done not because counsel thought such testimony was meritless,

but to avoid opening the door to rebuttal testimony regarding

Appellant’s alleged attack on a guard.    Yet counsel reached this

decision without first interviewing known family members to see

if they could testify on Appellant’s behalf without opening the

door to this aggravating evidence.     Defense counsels’ decision,

therefore, was not supported by reasonable investigation under

the circumstances.   Moreover, this water was already under the

bridge.   Appellant was identified as a violent offender based on

overwhelming evidence of guilt.    And, as the diary seemed to

indicate, Appellant would offend again.    Under such conditions

                                  64
United States v. Akbar, No. 13-7001/AR


it was not a reasonable tactical decision not to call at least

one family member or friend to sincerely argue for life.

     Finally, weighing the aggravating and mitigating factors,

and considering that the members requested an instruction on

reconsidering sentences, there is a reasonable probability that

at least one juror may have been influenced by an effective

presentation of mitigation evidence.

     Accordingly, I respectfully dissent and conclude that

Appellant did not receive effective assistance of counsel.    I

would reverse Appellant’s sentence, and remand the case for a

new hearing on Appellant’s sentence.




                               65
