• October 23, 2014

Military death penalty cases face many hurdles

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Posted: Sunday, July 15, 2012 12:00 pm | Updated: 2:13 pm, Thu Jan 23, 2014.

By Philip Jankowski

Killeen Daily Herald

The complicated nature of the military justice system all but guarantees that if Maj. Nidal Hasan is sentenced to die, he likely would not be executed for decades.

Hasan, the accused Fort Hood shooter, faces more murder charges than any other soldier currently on death row at Fort Leavenworth, Kan.

And the evidence against him is fairly overwhelming. Even Hasan's former defense attorney John Galligan said the case is "clear cut," against Hasan.

However, the armed forces have not executed a soldier since Dwight D. Eisenhower ordered U.S. Army Pvt. John A. Bennett hanged in 1961 after the soldier was convicted of rape and attempted murder.

Executions have been prolonged due to rules guaranteeing soldiers sentenced to death several avenues for appeal that are automatic and mandatory.

"Even in the case of someone who wants to expedite their death sentence, you're still looking at years and years," said Dwight Sullivan, a civilian appellate counsel for the Air Force who has authored several studies on the death penalty and the armed forces.

Through those appeals, 60 percent of all soldiers sentenced to death at court-martials since 1984 have had their sentences commuted to life in prison, according to the Death Penalty Information Center.

The process is further complicated by political motivations. The president must authorize every execution, making partisan politics and policy a factor in a soldier's fate.

The case law for military courts also can be affected by state rulings and the Supreme Court, Sullivan said.

"There's also some lack of urgency," said Richard Dieter, executive director of the Death Penalty Information Center, a politically independent nonprofit. "The military executing its own, given the concern for the terrors of war, PTSD and all that people have dealt with may be influencing the fact that there hasn't been as many executions."

Because of this, six men remain on death row at Fort Leavenworth with no realistic execution date in sight. One of them, Dwight J. Loving, killed two men in Killeen in December 1988.

Appeals process

Military courts are different than civilian courts regarding death penalty cases for several reasons.

In military cases, defendants cannot plead guilty if a convening authority has authorized the death penalty as a possible punishment. The accused also cannot have a trial by judge only.

If convicted and sentenced to die, an Army court-martial is automatically appealed and eventually reviewed by the Army Court of Criminal Appeals, said Sullivan.

If the court affirms the judgment and sentence of the original court-martial, the mandatory appeal is then made to the United States Court of Appeals for the Armed Forces, which has jurisdiction over all branches of the military.

A death sentence upheld by that court can then be appealed to the Supreme Court, though it is not mandatory.

Sullivan said he analyzed the military appeals process a few years ago and determined that the average death penalty case takes 7.5 years to complete a military review. "Now it is longer," he said.

More challenges

Only when the sentence clears those hurdles can the president authorize an execution. But even with the president's signature, the execution of a soldier still faces challenges.

The last president to order an execution was George W. Bush, who signed an order for the execution of former Fort Bragg, N.C., Spc. Ronald A. Gray on July 28, 2008.

A court-martial convicted Gray of abducting, raping, sodomizing and murdering Pvt. Laura Lee Vickery-Clay, 18. He also was charged with attempting to rape and murder a 20-year-old private and with the rape and murder of a civilian, Kimberly Ann Ruggles, 23.

A court-martial in 1989 sentenced him to death on 14 charges, including the premeditated murders, the attempted murder and three counts of rape.

However, Gray remains alive.

A judge in Indiana issued a stay to Gray's execution after he filed an appeal in state court.

Dwight J. Loving

On Dec. 12, 1988, Pfc. Dwight J. Loving, then 20, went on a crime spree in Killeen.

Before the end of the night, the soldier robbed two convenience stores, shot and killed two taxi drivers and would have killed a third, but was thwarted.

He killed Pvt. Christopher Fay, an active-duty soldier who drove a taxi to earn extra money, and retired Sgt. Bobby Sharbino.

Police apprehended Loving the following day, and the soldier gave an undisputed videotaped confession to the murders.

The Army charged Loving with two counts of premeditated murder, and in 1989 he was sentenced to death. Loving's case made it all the way to the Supreme Court.

His lawyers challenged the legality of an order by President Ronald Reagan that set aggravating factors in the rules for courts-martial in 1984.

Reagan's order was in response to an earlier Supreme Court case that overturned the death penalty sentence of another soldier.

Loving's lawyers argued that only Congress could make changes the United States Code of Military Justice. In 1996, the high court ruled against him.

"He's still on death row after 23 years," Galligan said. "If his case were to take as long, Nidal Hasan could be in his late 60s, and he might die (of natural causes) before that."

Though there is a mountain of evidence against Hasan, Galligan said he does not believe the 41-year-old major will be executed.

"The death penalty would make him a martyr in the eyes of many," he said.

Contact Philip Jankowski at philipj@kdhnews.com or (254) 501-7553. Follow him on Twitter at KDHcrime.

On death row at Fort Leavenworth, Kan.

Ronald Gray • Sentenced 1988

Gray was a specialist at Fort Bragg, N.C., when he raped and murdered two women. He attempted to rape a third. He was convicted of 14 charges including premeditated murder, attempted murder and three counts of rape.

Dwight J. Loving • Sentenced 1989

Loving robbed and killed two taxi drivers in Killeen while stationed at Fort Hood. The private confessed to the killings and was convicted of two counts of premeditated murder.

Kenneth Parker • Sentenced 1995

Parker, a former Marine lance corporal at Camp Lejeune, N.C., was convicted of two counts of premeditated murder, one count each of armed robbery and kidnapping. He murdered two lance corporals in nearby Jacksonville.

Hasan Akbar • Sentenced 2005

On March 23, 2003, while deployed at Camp Pennsylvania, Kuwait, during the invasion of Iraq, Akbar detonated a hand grenade at the base and shot soldiers, killing two and wounding 14. He was convicted of two counts of premeditated murder and three counts of attempted premeditated murder.

Andrew Witt • Sentenced 2005

Witt, a senior airman with the Air Force, stabbed his wife and another airman to death while stationed at Robins Air Force Base, Ga. He also seriously injured a staff sergeant. He was convicted of two counts of premeditated murder and one count of attempted premeditated murder.

Timothy Hennis • Sentenced 2010

Hennis was tried in a North Carolina state court and acquitted of the 1986 murder of a woman and her two children. However, DNA evidence led to his re-trial in military court, despite the previous not guilty verdict. Military courts are a separate jurisdiction, allowing for a re-trial.

Source: Death Penalty Information Center

Compiled by Philip Jankowski

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