Dec. 9, 2008


Military death sentence case may head back for Supreme Court certiorari decision

For the 1st time in half a century, the President approved a military death sentence this summer. Army Private Ronald Gray was sentenced to death by a military court-martial panel in 1988 after convicting him of two murders, three rapes, an attempted murder, and a host of other crimes. A military death sentence triggers automatic appeals. In Gray’s case, his conviction went before the Army Court of Military Review (now the Army Court of Criminal Appeals) and the Court of Military Appeals (now the Court of Appeals for the Armed Forces). The United States Supreme Court declined to review Gray’s case. Gray currently sits on the military’s death row at Fort Leavenworth, Kansas.

In accordance with Article 76 of the Uniform Code of Military Justice and Rules for Courts-Martial 1113 and 1207, a court-martial death sentence is not final until the President approves it. While Gray’s case reached the President in 2001, President Bush only signed the death warrant in late July of this year. The Army then scheduled Gray’s execution for December 10, 2008 at the federal penitentiary at Terre Haute, Indiana.

Several weeks before the execution date, Gray filed a petition in the District of Kansas, seeking a stay of his execution and the appointment of defense counsel for his planned pursuit of a writ of habeas corpus. Normally, federal prisoners are allowed a single petition challenging their conviction or sentence via a petition for a writ of habeas corpus. Despite the 2 decades of legal wrangling in this case, Gray has never filed a petition seeking such a writ. The defense argument, a rather compelling one, is that such a petition would have been premature until the President approved the death sentence.

The federal judge assigned to this case, Senior Judge Richard D. Rogers, agreed to the stay on November 26, 2008. The government subsequently responded to the stay order by filing a motion to reconsider the decision, citing Gray’s “delay” in seeking such a stay and his lack of filing a petition seeking a writ of habeas corpus before the weeks leading up to his execution date. Given the 7 years it took for the President to approve the death sentence and the gravity of the case, the government’s argument is certainly disquieting, to say the least. The government also based its reconsideration request on Gray’s perceived lack of significant probability of success on the merits and a lack of jurisdiction. Gray’s attorneys opposed the motion for reconsideration, countering the government’s argument that it was harmed by Gray’s actions in seeking a stay when he did. On Friday, Judge Rogers rejected the government’s arguments and declined to reconsider the stay order.

The next step in this case will likely be for Gray’s attorneys to file a petition seeking a writ of habeas corpus. In all probability, this case will percolate back to the United States Supreme Court. Stay tuned.”

(source: Michelle M. Lindo McCluer [Director, National Institute of Military Justice]—The Jurist)