With judges, prosecutors and defense attorneys who have little or no experience in capital cases, death sentences in military courts-martial have a high likelihood of being reversed.
Even the case against Maj. Nidal Hasan, who several eye witnesses have identified as the Fort Hood shooter, could have a death sentence overturned for a host of reasons.
Of the 11 military death penalty cases to go through the military’s complex appeals process, nine have been overturned. An error based on lack of experience is usually the reason, military death penalty expert Dwight Sullivan said.
“In those cases, one of the key players makes a rookie mistake,” said Sullivan, who does appellate work for the U.S. Air Force. “Almost all of them are overturned on a simple lack of experience.”
It was no different for U.S. Lance Cpl. Kenneth G. Parker, whose death sentence was commuted to life in prison Wednesday.
The U.S. Navy-Marine Corps Court of Criminal Appeals reversed Parker’s death sentence after judges ruled that his two murder charges should have been tried separately.
A jury sentenced Parker to die in 1993 for the murders of two fellow lance corporals near a North Carolina Marine base in incidents that were days apart.
Parker’s culpability in the racially related killing of Lance Cpl. Rodney Page was clear cut, according to the judges’ ruling. However, they were skeptical of his involvement in the unrelated murder of Lance Cpl. Christopher James, which occurred four days later.
They reversed that conviction and commuted the death sentence, stating the jury may have used the second murder conviction as a reason to assess a death sentence.
Five on death row
After Wednesday’s reversal, only five former members of the military remain on death row at Fort Leavenworth, Kan. Inmates there include former Fort Hood soldier Dwight Loving, who has called the military prison home since 1989.
A former defense attorney for Hasan, retired Col. John Galligan, said Hasan’s case will be rife with appellate possibilities.
The trial is on hold awaiting a ruling from a high military court on whether a judge at Fort Hood can have Hasan forcibly shaved.
But leading up to its start, defense attorneys made several challenges likely to be brought up again in appellate court should Hasan be convicted and sentenced to death in the Nov. 5, 2009, mass shooting. He faces 13 counts of premeditated murder and 32 counts of attempted premeditated murder.
Hasan’s defense team has challenged the impartiality of the judge, the selection process for a jury and the disclosure of classified evidence. They also sought a change of venue. In most cases, the court ruled against them.
None of those issues came up during the prosecution of Parker, which Galligan said illustrates the increased odds of a successful appeal in Hasan’s case.
The 41-year-old Army psychiatrist’s attorneys already showed one strategy that could be used in an appeal. They argued they could be considered ineffective counsel because of lack of experience, resources and adequate time to prepare for trial.
Government-appointed defense attorney Maj. Joseph T. Marcee noted the defense’s inexperience when asking judge Col. Gregory Gross for a trial delay during a hearing earlier this month.
Among the defense team, only lead attorney Lt. Col. Kris Poppe has tried a death penalty case. He served as counsel to Timothy Hennis, who was sentenced to die for the murders of a woman and her two daughters in 2010.
Lead prosecutor Col. Michael Mulligan was the government’s prosecutor in the 2005 trial of Hasan Akbar, who was sentenced to die for the murders of two soldiers in Kuwait.
Hasan’s trial will mark the first death penalty case for Gross, according to the Fort Hood Public Affairs Office.