Two Servicemen Suffering From Brain Trauma, PTSD Win Death-Penalty Relief

Two ser­vice­men — one a for­mer air­man on the U.S. mil­i­tary death row, anoth­er a dec­o­rat­ed Vietnam vet­er­an sen­tenced to death in Pennsylvania—have won relief from their cap­i­tal con­vic­tions or death sentences. 

On August 1, 2018, the La Crosse Tribune report­ed that an Air Force court mar­tial jury had imposed a life sen­tence on senior air­man Andrew Witt (pic­tured, left) fol­low­ing a three-week cap­i­tal resen­tenc­ing tri­al. The ver­dict in Witt’s case came two years after the U.S. Court of Appeals for the Armed Forces — the nation’s high­est mil­i­tary court — over­turned his 2005 death sen­tence for mur­der­ing a fel­low air­man and his wife. 

On July 25, 2018, the U.S. District Court for the Eastern District of Pennsylvania grant­ed death-row pris­on­er Robert Fisher a new tri­al and sen­tenc­ing hear­ing in the July 1980 mur­der of his girl­friend. If that case con­tin­ues to a new cap­i­tal tri­al, it will be Fisher’s third tri­al and fourth cap­i­tal sentencing hearing.

Witt’s con­vic­tion in 2005 marked the first time a U.S. air­man had been sen­tenced to death since 1992. His death sen­tence was first over­turned in August 2013, when the Air Force Court of Criminal Appeals — an inter­me­di­ate appel­late court — ruled that his lawyers had been inef­fec­tive in fail­ing to present mit­i­gat­ing evi­dence that he had suf­fered a trau­mat­ic brain injury four months before the mur­ders. The mil­i­tary appealed that deci­sion, and Witt’s death sen­tence was rein­stat­ed by the Air Force Court of Appeals in July 2014. However, the Armed Forces appeals court agreed that Witt’s penal­ty-phase lawyers had been inef­fec­tive and remand­ed the case for a new sen­tenc­ing hear­ing. With Witt’s resen­tenc­ing, four pris­on­ers remain on the U.S. mil­i­tary death row. Twelve oth­er ser­vice­men have had their mil­i­tary death sen­tences reduced to life in prison.

In Fisher’s case, the fed­er­al court grant­ed a new tri­al after the tri­al judge misin­struct­ed the jury on the mean­ing of ​“rea­son­able doubt.” It reversed Fisher’s death sen­tence because the pros­e­cu­tion had sought the death penal­ty based on an aggra­vat­ing cir­cum­stance that did not exist at the time of his first tri­al and because his lawyer failed to inves­ti­gate and present mit­i­gat­ing evi­dence relat­ed to Fisher’s mil­i­tary ser­vice in Vietnam, where he received a Purple Heart from President Lyndon Johnson (see picture below). 

This was not the first time that one of Fisher’s tri­als was prob­lem­at­ic. At his first tri­al, Fisher’s lawyer had him tell the jury about his mil­i­tary ser­vice and his Purple Heart medal but failed to inves­ti­gate any prob­lems relat­ed to Fisher’s mil­i­tary ser­vice. Additionally, no men­tal health expert tes­ti­fied at Fisher’s sen­tenc­ing to explain his brain dam­age, the psy­cho­log­i­cal after-effects of intense com­bat, or his oth­er seri­ous men­tal health impair­ments, drug usage, and adjust­ment dif­fi­cul­ties after return­ing from Vietnam. His defense lawyer also failed to rebut the prosecution’s por­tray­al of Fisher as sim­ply a bad soldier.

Many vet­er­ans return­ing from war suf­fer from Post-Traumatic Stress Disorder or head trau­ma, and their effects can last for years after the sol­dier returns home. Fisher’s was one of the cas­es fea­tured in the Death Penalty Information Center report, Battle Scars: Military Veterans and the Death Penalty.