Death Penalty Issues To Be Litigated Tomorrow In The Akbar Case

The Army Court of Criminal Appeals has granted appellate consideration of the following issues:

I. Sergeant Hasan K. Akbar was denied his right to the effective assistance of counsel, as guaranteed by the sixth amendment to the United States Constitution, at every critical stage of his court-martial.

A. Sergeant Akbar was denied his right to the effective assistance of counsel, as guaranteed by the sixth amendment and denied his right to representation by counsel qualified under 18 U.S.C. § 3599 (2006), in violation of his rights under the fifth, sixth, and eighth amendments to the U.S. Constitution and Article 36, UCMJ, when his trial defense counsel failed to seek the appointment of qualified counsel to represent Sergeant Akbar in this capital court-martial.

B. Sergeant Akbar was denied his right to effective assistance of counsel when his trial defense counsel failed to adequately investigate appellant’s social history, ignored voluminous information collected by mitigation experts, ceased using mitigation experts, resulting in an inadequate mental health diagnosis because the defense “team” failed to provide necessary information to the defense psychiatric witness.

C. Sergeant Akbar was denied his sixth amendment right to effective assistance of counsel where the trial defense counsel failed to challenge for cause any panel members, even though counsel had multiple causal reasons including actual bias, implied bias, an inelastic opinion against considering mitigating evidence on sentencing, and panel members’ detailed knowledge of uncharged misconduct that the judge specifically ruled inadmissible.

D. Sergeant Akbar received ineffective assistance of counsel during the merits stage of his court-martial when his trial defense counsel conceded guilt to all the elements of a capital offense, in violation of article 45(b), UCMJ, 10 U.S.C. § 845(b) (2002), and devised a trial strategy that was unreasonable and prejudicial.

E. Appellant received ineffective assistance of counsel on sentencing.

F. Sergeant Akbar’s trial defense counsel were ineffective for admitting in [its] entirety appellant’s diary without any substantive analysis and without appropriate regard for the highly aggravating and prejudicial information it contained.

II. When read with other Supreme Court precedent, military case[-]law, and cases from other federal jurisdictions, Ring v. Arizona, 536 U.S. 584 (2002), and its underlying rationale reveal [the] charges were improperly preferred, investigated, and referred, and appellant’s conviction and death sentence was unconstitutionally adjudged.

A. Appellant’s death sentence was adjudged unconstitutionally [sic] where the R.C.A. 1004(c) provisions relevant to his case were not expressly alleged in the charges preferred against him, were not expressly investigated pursuant to R.C.M. 405 and Article 32, UCMJ, and were not expressly referred to his court-martial by the convening authority.

B. Based on the Supreme Court’s reasoning in Ring v. Arizona, 536 U.S. 584 (2002), Congress unconstitionally delegated to the president the power to enact the functional equivalent of elements of capital murder, a purely legislative function.

C. Ring v. Arizona requires that the members find that aggravating factors substantially outweigh mitigating circumstances beyond a reasonable doubt.

III. Sergeant Akbar’s death sentence is invalid because the panel was misinformed about his mental condition at the time of the offenses.

Note: Each party is granted 120 minutes for argument.

As Predicted . . . . Military judge approves next pre-trial hearing for Major Hasan case


DATE: January 27, 2012 12:47:54 PM CST

Military judge approves next pre-trial hearing for Major Hasan case

FORT HOOD, Texas — At the request of prosecutors and defense counsel for Maj. Nidal M. Hasan, a half-day administrative hearing will begin at 10 a.m. Feb. 2 in the Lawrence J. Williams Judicial Center.

Both parties in the case of the United States vs. Maj. Nidal M. Hasan will go on the record in open court before Military Judge Col. Gregory Gross to litigate pending motions brought by defense.  The newest motions concern discovery and a continuance.  Other motions may also be filed by either side for litigation at this hearing, and the military judge may also put other matters on the record at the hearing.

The accused is presumed innocent unless and until proven guilty in a court of law.

Media who plan to cover the hearing must register here.

On the date for the event, satellite trucks should report to the Fort Hood Clarke Road Gate on West Highway 190 at 6 a.m. Truck registration ends at 6:45 a.m. All others should check in to the Fort Hood visitor’s center from 8-9 a.m. for final registration. All media should be prepared to show a U.S. driver’s license with photo and an accredited press badge with photo.

For more information contact:

Fort Hood Public Affairs Office
Media Relations
(254) 287-9993
(254) 287-2054
fax: (254) 288-2750
Fort Hood, TX 76522

Hasan Prosecutors Picked For Plum Jobs and Assignments . . . .

As they say, the Army takes care of its own . . . .

For beginners, the lead Army prosecutor, Colonel Mike Mulligan has been selected to serve as the next Staff Judge Advocate for the Commander, III Corps and Fort Hood.  That’s right – this means he will succeed Colonel Stu Risch who now provides legal advice to the III Corps and Fort Hood General Court-Martial Convening Authority, Lieutenant General Campbell.  Risch and Campbell recommended and decided respectively to handle the case by way of a capital referral, i.e. the prospective jury can consider the death penalty as an authorized sentence in the case.  This projected assignment will present some immediate issues.  For example, Colonel Mulligan will be precluded from providing the General Court-Martial Convening Authority with post trial legal advice in the case.  Rule for Court-Martial 1106,  Manual for Courts-Martial, provides:

No person who has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, associate or assistant defense  counsel, or investigating officer in any case may later as as a staff judge advocate orlegal officer to any reviewing or convening authority in the same case.

LTC(P) Steve Henricks also landed a top job – he was selected to serve as the Staff Judge Advocate for the10th Mountain Division at Fort Drum, New York.

And fnally, Colonel Risch, the current Staff Judge Advocate for at III Corps and Fort Hood, will head off to serve as the Executive Officer, Office of The Judge Advocate General, in the Pentagon.

Unclear is how these announced assignments might impact on the trial date, in the event the Defense determines a continuance is necessary.   Change of duty assignments typically occur during the early summer months – and, of course, this would be problematic in the event of any continuation of the trial now docketed for early March.  To date, only a few pretrial motions have been formally litigated and even with respect to those, there has been no announced decision by the military judge.   Given the substantial number of pretrial issues likely to be raised and not yet litigated, a Defense request for continuance is distinctly possible.   JAGC assignments, even if they involve plum positions, should not be a factor in determining Major Hasan’s pretrial due process rights.


Defense Counsel Object To Procedures at Gitmo

NACDL News Release

Contact: Jack King

Public Affairs & Communications

Direct dial: (202) 465-7628



Defense Bar Supports Military Defense Counsel

In Opposing JTF-GTMO Military Order to Violate

Attorney-Client Privileged Communications

Washington, DC (Jan. 13, 2012) – The National Association of Criminal Defense Lawyers (NACDL) fully supports Military Commission Chief Defense Counsel Col. Jeffrey P. Colwell’s directive today that defense lawyers under his command cease written communications with their clients on grounds that the order compels them to unlawfully reveal information related to representation of their clients in violation of the rules of professional conduct. Defense counsel under Colwell’s command represent detainees at Guantanamo Bay, Cuba, in military commission proceedings.


The attorney-client privilege is the cornerstone of our adversarial system of criminal justice, and any system that fails to keep this value inviolate will inevitably fail to do justice.  For this reason, NACDL is deeply concerned about the December 27 Joint Task Force order directing defense counsel to submit written communications with their clients to a so-called “privilege team.”

NACDL reiterates its position adopted unanimously by the Board of Directors on August 2, 2003, that “it is unethical for a criminal defense lawyer to represent a person accused before these military commissions [where] the conditions imposed upon defense counsel before these commissions make it impossible for counsel to provide adequate or ethical representation.  Defense counsel cannot contract away his or her client’s rights, including the right to zealous advocacy, before a military commission[.]” NACDL Ethical Advisory Opinion 03-04 at 1.


Joint Task Force Commander RADM D.B. Woods’ “Order Governing Written Communications Management for Detainees Involved in Military Commissions” dated Dec. 27, 2011 would force defense counsel to “contract away” the client’s right to privileged communications with his counsel, which a lawyer – any lawyer – cannot do.


NACDL President Lisa Wayne, who has referred the matter to the association’s Ethics Advisory Committee, lauded Col. Colwell’s ethics and integrity, stating, “Colonel Colwell’s position reminds us of our role as criminal defense lawyers, which is to steadfastly resist efforts to chip away at the foundations of our adversarial system, even when institutional or other factors make defense counsel’s positions difficult or unpopular.”


While a new opinion from NACDL’s Ethics Advisory Committee is pending, the association has condemned past efforts to interfere with the attorney-client relationship based on specious national security, or any other, grounds.  NACDL’s Military Law Committee Co-Chairs, Jack Zimmermann and Donald Rehkopf, noted that “efforts to enforce the joint task force order will cast further doubt on the military commissions’ capacity to adjudicate detainee cases fairly.”


A copy of Col. Colwell’s memorandum for Guantanamo detainee counsel is posted on NACDL’s website here.


The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing.  A professional bar association founded in 1958, NACDL’s 10,000-plus direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling more than 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.


National Association of Criminal Defense Lawyers

1660 L St., N.W., 12th Fl, Washington, D.C. 20036 * Tel. 202-872-8600 * Fax 202-872-8690