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.

Leave a Reply