Military capital cases deserve better defense, critics say

McClatchy NewspapersAugust 28, 2011 

WASHINGTON — When military jurors sentenced former Marine Lance Cpl. Ronnie Curtis to death, they had every reason to believe that he deserved to be executed. No one disputed that he'd stabbed and killed his superior officer and the officer's wife inside their home. The only real question was why.

But what the jury learned at trial made the crime seem even more inexplicable. After all, he had a good Christian upbringing by caring parents. No one could have predicted the murders based on his background.

On appeal, his lawyers discovered a very different story. They found that Curtis' adoptive father was frequently drunk, including during the lawyers' visit to their client's childhood home in Kansas. When questioned about his son, Curtis' father showed off the horsewhip he'd used to beat him after adopting him at age 2.

In capital cases, such details could be enough to save a defendant from death row. Yet the realities of Curtis' troubled childhood, along with evidence that he was drunk when he committed the murders, were never presented at his sentencing at Marine Corps Base Camp Lejeune, N.C.

"The sentence hearing may have been adequate for an absence without leave case, but it was woefully lacking and totally unacceptable in a capital murder case," wrote Judge Walter Cox III of the U.S. Court of Appeals for the Armed Forces. "Upon further reflection, I am convinced that this representation is unacceptable, substandard, inadequate and ineffective. The result is a sentence that is unreliable."

The 1997 reversal by one of the most conservative, law and order appellate court systems in the country would be among the first of many. Ten of the 16 men whom the military has sentenced to death since 1984 have been resentenced to life in prison.

Critics blame the high reversal rate in part on the military's reluctance to recognize the importance of evidence that might help explain — not excuse — a defendant's violent behavior.

Although the U.S. Supreme Court has long recognized the importance of such facts, the military still struggles to ensure that the defense can present them in court, lawyers and experts said.

As a result, death sentences have been thrown out because the defense was denied that ability.

Such facts are seen as essential in helping a jury understand why a defendant might have committed a horrible crime in the first place.

Courts have concluded that defense attorneys need to consult experts — often psychiatrists with experience in capital cases — and investigate the defendants' backgrounds so they can find such evidence and present it at trial. For instance, a jury that knows of severe mental illness might be less likely to sentence the defendant to death.

"It's not a whodunit, but a whydunit," said Dwight Sullivan, senior appellate defense counsel for the Air Force who worked on the Curtis appeal.

But the military defense attorneys appointed in such cases often don't have the experience to delve into such questions, experts said.

If the military did more to improve the quality of the defense in capital cases, the death penalty might be left intact for those who deserve it, critics argue.

"We're not saying don't execute," said Michael Berrigan, a former military attorney who represented a death row inmate. "We're just saying let's have a system that allows the evidence to be presented and let the chips fall where they may."

The lawyers who represented former Army Pvt. Ronald Gray two decades ago had little experience and didn't know how to argue that he shouldn't be executed, his current lawyers say in court records. Gray, who raped and murdered four women in North Carolina, is expected to be the first military execution in 50 years.

Gray underwent a standard mental health evaluation, and possible brain damage was detected. The matter wasn't investigated or raised at trial, however.

When Berrigan took over Gray's appeals, he was just as inexperienced. However, he realized that the trial attorney should have explored the issue.

Berrigan repeatedly asked the military to pay for an expert who could help him determine whether the evidence of mental illness could have changed the verdict. The courts refused.

"It was silly. I was trying to get school records in Miami and interview people he had grown up with," Berrigan recently recalled about visiting Gray's childhood home in Liberty City. "I was trying to be the social worker out in the field, but I wasn't qualified to do what needed to be done."

Years later, federal defenders have taken over the case, armed with more experience, resources and experts. In an appeal filing, they say they've gathered more evidence of Gray's abusive upbringing and mental illness that they say wasn't brought up during trial.

The military courts so far have sided with the prosecution's view that the information isn't compelling enough to take Gray off death row. However, the military has since recognized the need to fund the type of request that Berrigan made.

"No one gives a damn about Private Gray or any of the others: They're convicted murderers," Berrigan said. "The problem is if you're going to sentence someone to death using the legal system you've got to use legal means. Otherwise, you might as well take them in the back and shoot them."

Military officials say the problems that have come up in capital cases are isolated and aren't any worse than in civilian courts.

"Do we have inexperienced counsel? Of course. Every criminal justice system has inexperienced counsel," said Col. Chuck Pede, who oversees criminal law policy for the Army's Office of the Judge Advocate General.

"But the military justice system is one of the fairest, healthiest criminal justices systems in the world, and every day we spend enormous resources to ensure that due process is provided not only to those accused of crime but to the victims of crime as well."

In the high-profile shooting case in Fort Hood, Texas — in which Maj. Nidal Hasan is accused of killing 13 people and wounding dozens in 2009 — the Army made an effort to assign experienced defense attorneys and prosecutors to the case, Pede said.

But one of Hasan's attorneys, John Galligan, said the problems with the military's system went beyond the inexperience of those involved. He said he had to "fight the military tooth and nail" to get money for experts who'd help him argue that Hasan should be kept off death row, something that he said wouldn't be necessary in civilian courts.

Meanwhile, a lower-profile capital case that involved another soldier was unfolding elsewhere in the country in which the attorneys made a similar request, which was granted without much controversy.

Galligan, a former longtime military attorney and judge hired by Hasan's family, has defended controversial defendants before. But he said he'd never experienced so much anger from the public about a case and yet received so little support from the military. As a result, he started carrying a concealed handgun. Then, in July, he abruptly stepped down as Hasan's lawyer.

"I love the system. I was part of it," he said in an interview shortly before his announcement, which he has yet to explain publicly. "But when you start talking about the death penalty, the military's experience is not a good one.

"We're not prepared to handle death penalty cases in a fair and objective manner, as is attempted on the federal side. There is no measure of elevating this decision to someone who is above the fray, someone who is not immediately affected."

Teresa Norris, who represented military death row inmate Army Pvt. Dwight Loving as a young military lawyer with no experience, said the difference between the military and civilian sides was stark in that regard.

The base commander, often someone who doesn't have a law degree, decides whether to seek the death penalty based on a recommendation from a legal adviser. The military's defense has to vet its requests for experts and funding through the prosecution first, something that never happens in civilian court because it's seen as a conflict of interest.

"I can walk into most courts in South Carolina and say, 'Judge, this is what I need' and most of the time I'll get it in 10 minutes," said Norris, who's now one of the most experienced civilian death-penalty attorneys in the country.

"That's just not the case in the military system," she said.

(Tish Wells contributed to this article.)

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