Military Capital Litigation: Meeting the Heightened Standards of United States v. Curtis

• Author: Major Mary M. Foreman
• Pages: 01

MILITARY LAW REVIEW

Volume 174 December 2002

MILITARY CAPITAL LITIGATION: MEETING THE HEIGHTENED STANDARDS OF UNITED STATES V. CURTIS

MAJOR MARY M. FOREMAN1

1. Introduction

   The problem with the death sentence in this case . . . is the lack of an adequate, full, and complete sentencing case . . . . I am convinced that this representation is unacceptable, substandard, inadequate, and ineffective in a military capital murder case. The result is a sentence that is not reliable.2

   In the summer of 1989, a general court-martial at Camp Lejeune, North Carolina, found Marine Lance Corporal (LCpl) Ronnie A. Curtis guilty of the premeditated stabbing murders of his lieutenant and the lieu-tenant's wife and sentenced him to death. The Navy-Marine Corps Court of Military Review (NMCMR) affirmed Curtis's death sentence in June 1989,3 but the Court of Appeals for the Armed Forces (CAAF) ultimately reversed in 1997.4 The renamed Navy-Marine Court of Criminal Appeals

   (NMCCA)5 affirmed a life sentence in 1998,6 and in September 1999, the CAAF affirmed,7 granting Ronnie Curtis his life.

   United States v. Curtis8 spent ten years in appellate review, during which the service court for the Navy and Marine Corps reviewed the case three times and the CAAF considered it four times.9 Issues raised during the course of appeal included ineffective assistance of counsel, defense counsel qualifications, military panel size, the service-connection requirement in military capital cases, jury instructions, voting procedures, panel selection, the President's authority to impose capital punishment,10 and the constitutionality of Rule for Courts-Martial (RCM) 1004.11 Ultimately reversed on the grounds of ineffective assistance of counsel,12 Curtis left unresolved many other issues that arguably relate to the reliability of an adjudged death sentence.

   United States v. Curtis13 was the first capital case to reach the CAAF after the promulgation of RCM 1004 and its creation of aggravating factors

   for capital courts-martial.14 While certainly illustrating the heightened standard of defense representation in capital cases, the impact of Curtis on military capital jurisprudence is comparable to that of United States v. Matthews,15 in which the Court of Military Appeals (COMA) held that the existing military capital sentencing procedures were unconstitutional.16

   Where Matthews resulted in the promulgation of aggravating factors and brought the military death penalty in line with the constitutional mandates set forth in Furman v. Georgia,17Curtis created a heightened review of representation in capital cases and placed upon the armed forces an affirmative duty to ensure reliability and fairness in the few cases in which it seeks, obtains, and approves a sentence of death. In many aspects, however, Curtis created more issues than it resolved.

   This article analyzes United States v. Curtis in the context of the reliability of the military death penalty and discusses the impact of the case on military capital jurisprudence. It briefly discusses the background of the military death penalty, followed by an overview of the facts and appellate history of United States v. Curtis. The article then examines the impact of Curtis in the areas of access to mitigation specialists and ex parte access to the convening authority as they relate to development of a qualified capital trial defense team. Finally, the article recommends changes to the Rules for Courts-Martial and suggests modifications in judge advocate career management which recognize and address the need for a heightened standard of defense in capital cases.

2. Capital Punishment Under the Uniform Code of Military Justice (UCMJ)

   This section discusses the development of the jurisdiction of courts-martial to try capital cases in peacetime, beginning with the Articles of War and culminating in the landmark decisions of United States v. Matthews18

   and United States v. Curtis.19 Then, to establish a context for the remainder of the article, it examines the procedural differences between capital and non-capital courts-martial.

   1. Brief Background

      Although American courts-martial from their inception have had the power to decree capital punishment, they have not long had the authority to try and to sentence members of the Armed Forces for capital murder committed in the United States in peacetime.20

      The American Articles of War, promulgated in 1775 and enacted in 1789,21 prescribed our nation's first military justice system. They were based largely on the British Articles of War and authorized the death penalty for fourteen offenses, but they required the military commander to allow civil authorities to prosecute offenders of capital crimes that were punishable under civil law.22

      Not until 1863, concerned with the ability of civil courts to convene effectively amidst hostilities, did Congress empower general courts-martial with the authority to impose the death penalty in wartime for "civilian" offenses committed by soldiers.23 Even in 1916, when Congress granted courts-martial jurisdiction over felonies committed by service members, that jurisdiction did not extend to murder and rape committed in the United States during peacetime.24 It was not until the enactment of the UCMJ in 1950 that Congress authorized courts-martial to impose the death penalty for peacetime offenses.25

      Article 118 of the 1950 Code set forth four types of murder and authorized death in cases involving premeditated and felony murder.26 In 1983, the COMA overturned the death sentence in United States v. Matthews27 because "neither the Code nor the Manual requires that the court members specifically identify the aggravating factors upon which they have relied in choosing to impose the death penalty."28 This fell short of the Supreme Court's 1972 decision in Furman v. Georgia,29 in which the Court held that the discretionary capital sentencing statutes in Texas and Georgia violated the Eighth Amendment's prohibition against cruel and unusual punishment and were therefore unconstitutional.30

      To remedy the defect identified in Matthews, President Reagan promulgated RCM 1004,31 which requires that before a service member may be sentenced to death, the court-martial members must unanimously find that the service member is guilty of a capital offense, that at least one aggravating factor exists, and that any extenuation and mitigation evidence is substantially outweighed by the evidence of the aggravating factor(s) and circumstances.32 In Loving v. United States,33 the first military capital case reviewed by the Supreme Court since the enactment of the UCMJ, the Court considered the constitutionality of RCM 1004. The Court affirmed the lower court's holding that the promulgation of RCM 1004 was within

      the President's authority and that the capital sentencing scheme provided by the Rule is constitutional.34

      There are presently six service members awaiting execution,35 an

      additional four having been removed from death row in the past five years.36 The first and perhaps most far-reaching reversal of a death sentence since Matthews occurred in 1997, when the CAAF reversed the service court's decision in United States v. Curtis based solely on ineffective

      assistance of counsel at the sentencing phase of trial.37 One year later, the CAAF set aside the death sentence38 in United States v. Murphy39 and remanded it to the Army Court of Criminal Appeals (ACCA) for remedial action, based in part on its finding of ineffective assistance of counsel.40 In

      2001, the ACCA returned Murphy to the convening authority for a DuBay41 hearing to determine whether extenuation and mitigation evidence obtained post-trial might have impacted the sentence of death.42

   2. Capital Sentencing: A Different Approach for Defense Counsel

      Under the RCM, an accused in a non-capital case may be tried on the merits either by military judge alone or a panel consisting of at least five officer members.43 If the accused is enlisted, he may elect to have his panel include at least one-third enlisted soldiers senior in rank to him.44

      During the trial on the merits, at least two-thirds of the members must find the accused guilty of a specification to find him guilty of the charged offense.45 If the accused is found guilty of an offense, the sentencing phase of the court-martial follows-usually immediately after the court

      announces its findings. The forum the accused selected for trial on the merits will also be his forum for sentencing.46 The sentence announced by the members, so long as it is lawful, is the sentence adjudged by the court.47

      To adjudge a sentence, two-thirds of the panel members must agree on the sentence after voting on all proposed sentences.48 If the proposed period of confinement exceeds ten years, then three-fourths of the panel must agree on that sentence.49 "If the required number of members [cannot] agree on a sentence after a reasonable effort to do so, a mistrial may be declared as to the sentence."50

      A capital case follows a similar procedure, but with several noteworthy distinctions. The accused may not plead guilty to a capital offense51

      and is not entitled to trial by military judge alone;52 he must elect between an officer or a one-third enlisted panel. To adjudge a sentence that includes death, the panel must unanimously agree, beyond a reasonable doubt, that the accused is guilty of the capital offense53 and that at least one aggravating factor exists.54 To vote on a sentence that includes death, the panel

      must also unanimously agree that any evidence in extenuation and mitigation is substantially outweighed by the evidence in aggravation.55

      That the members make the required findings to consider the death penalty does not require them to actually vote on a death sentence.56 As

      the CAAF held in United States v. Loving,57 "the military death penalty procedures give the court-martial the absolute discretion to decline to impose the death penalty...