Dec. 9, 2008

US MILTARY:

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)

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