FORT HOOD — An appellate court’s reversal of a military death sentence Friday underscores the challenges the government will have with making the death penalty stick to Maj. Nidal Hasan.
The U.S. Air Force Court of Criminal Appeals commuted the 2005 death sentence of Senior Airman Andrew P. Witt on Friday after the court found his lawyers did not adequately seek mitigating evidence during sentencing.
The ruling brings the number of inmates on death row at Fort Leavenworth, Kan., down to four.
Since the military death penalty was reinstated in 1985, appellate courts have overturned 12 of 16 death sentences — 75 percent, according to the Death Penalty Information Center.
“I remain confident that Maj. Hasan will never see the death chamber,” said Hasan’s former defense attorney, Belton lawyer John Galligan.
Galligan, a retired colonel, said Witt’s appeal is just another part of an ugly track record for courts-martial in which the government seeks death.
Unlike civil and federal courts, the military is plagued with counsel who have little experience with capital cases. It can often lead to errors that result in successful appeals.
The Air Force appeals court that overturned Witt’s sentence was the first stop in a guaranteed appeals process that can take decades to conclude.
Strong evidence showed Witt methodically planned the brutal stabbing death of a fellow airman, his wife and the attempted murder of another soldier at Warner Robbins Air Force Base, Ga., in 2004.
But his lawyers’ decision to not pursue mitigating evidence during sentencing, which could have shown Witt’s mental state may have been affected by a recent head injury, led the appeals court to overturn the sentence.
The last Fort Hood soldier to earn a death sentence, Dwight Loving, has spent more than 23 years on death row.
“Sadly, all the Army wants is to get a conviction and a death sentence — they have spent four years and millions of dollars to achieve that objective,” Galligan said.
Hasan’s case is already rife with legal intrigue, which could be revisited if the 42-year-old Army psychiatrist is sentenced to death.
His legal team believes Hasan is in effect throwing the case to secure the death penalty. The three-lawyer team and related staff found themselves in an ethical quandary, and asked the judge to distance them from the case on Wednesday.
Presiding judge Col. Tara Osborn denied their motion. On Friday, Hasan’s standby counsel prepared an emergency writ they will file with the Army Court of Criminal Appeals.
Former Fort Hood staff judge advocate Richard Rosen said there is an obvious “tension” between Hasan and his legal team.
A portion of Hasan’s legal team withdrew from the case after Hasan announced his “defense of others” strategy that would frame the shooting as Hasan saving the lives of Taliban fighters by attacking U.S. soldiers.
The remaining government-appointed lawyers filed paperwork calling the tactic “borderline criminal” and sought removal from the case.
Rosen and Galligan said they don’t believe the lawyers’ appeal will be successful. “They’re following a lawful order of the court,” Rosen said.
Most reversals are based on rulings that counsel gave inadequate representation during trial. No appeal on ineffective counsel should get any traction as long as the judge continues to make Hasan aware of the disadvantages of conducting his own defense, they said.
“Otherwise anyone could represent themselves in a capital case and claim ineffective counsel on appeal,” Rosen said.
“It’s like killing your parents and throwing yourself at the mercy of the court for being an orphan.”