Washington - In December 2008, former Army Pvt. Ronald Gray was on the brink of becoming the first military execution in almost 50 years.
The rapist and murderer of four women had sat on death row for two decades by the time President George W. Bush approved his death warrant.
But the week before Gray was to receive a lethal injection, a federal judge halted the execution because of a new appeal.
Now, federal defenders who took over his case say they've found new evidence that his original military lawyers should have discovered. If they're successful, Gray could join a growing number of soldiers, airman and marines who have been spared execution.
Of the 16 men sentenced to death since the military overhauled its system in 1984, 10 have been taken off death row. The military's appeals courts have overturned most of the sentences, not because of a change in heart about the death penalty or questions about the men's guilt, but because of mistakes made at every level of the military's judicial system.
The problems included defense attorneys who bungled representation, judges who didn't know how to properly instruct a jury and prosecutors who mishandled evidence.
In all of the cases, the men have been resentenced to life in prison. Eventually, they could be eligible for parole.
Yet by many measures, they're the military's worst of the worst. Convicted of crimes such as serial murder and rape, they're the kinds of criminals that many people would agree the death penalty should be reserved for.
Then why have they been spared?
Critics say the military botched the cases because its judicial system lags behind civilian courts and isn't equipped to handle the complex legal and moral questions that capital cases raise.
Civilian courts have demanded that experienced lawyers be appointed in capital cases and have pushed for a more uniform application of the death penalty. The military, however, hasn't made any major institutional changes to address such problems in more than 25 years.
At almost every level — from trial to appeals — young, inexperienced lawyers routinely have been appointed to represent capital defendants.
"If you have a system where it's always amateur hour and where the lawyers are always trying their first capital case, you're going to guarantee the same kinds of mistakes that have resulted in many, many cases being reversed — because of ineffective assistance of counsel — for the last 30 years are going to be made over and over again," said David Bruck, the director of the Virginia Capital Case Clearinghouse, a legal aid clinic.
"Even worse, you may have cases where the person is not only sentenced to death because of their lawyers' mistakes but because the courts will say that it's close enough for government work."
Even though the military has assigned more seasoned lawyers in some recent high-profile cases, the efforts are inconsistent and often can depend on the branch.
For instance, Charles Gittins, a civilian lawyer who hadn't tried a capital case, asked the Army earlier this year to appoint qualified counsel to help him represent a client who was eligible for the death penalty. Gittins was turned down.
In contrast, the Guantanamo detainee who's accused of masterminding the 2000 suicide attack on an American Navy warship recently was appointed a civilian attorney with decades of capital experience. In fact, all six Guantanamo detainees likely to face the death penalty before a separate military commissions system are guaranteed experienced attorneys.
That's because a 2009 law requires the military to appoint qualified attorneys or "learned counsel" for the terrorism suspects. No such provision exists for the regular courts-martial where service members face criminal charges.
"Khalid Sheikh Mohammed can expect to get learned counsel, but your average military guy can't," said Gittins, a former military lawyer. "It's really bizarre to me that a terrorist who attacked the country can get qualified counsel but a U.S. citizen and soldier can't."
Military officials could argue, and often do, that they can't provide the kinds of expert attorneys that most civilian courts now require. Defense attorneys and prosecutors generally rotate out of their jobs after a couple of years, and many are unlikely to get experience in capital cases.
The military also shrugs off its 80 percent overall sentence-reversal rate as a natural part of the appeals process in highly scrutinized cases. The civilian court system, however, has responded to a 47 percent reversal rate as a sign of the need for reform.
"Each outcome was entirely case-specific," said Jennifer Zeldis, a spokeswoman for the Navy's Office of the Judge Advocate General, which had four of its five capital cases overturned on appeal. "Attempting to draw conclusions as to systemic issues is problematic because of the small number of death penalty cases tried over a wide number of years."
In January, the Army launched a review of its handling of capital cases, but officials said it wasn't prompted by any specific concerns.
"Any good criminal justice system worth its salt is constantly looking at how it does business," said Col. Chuck Pede, who oversees criminal law policy for the Army's Office of the Judge Advocate General.
Pede, who has experience as a prosecutor and defense attorney over a 24-year legal career, said the Army has teamed up less experienced lawyers with more seasoned attorneys or supervisors in more complex cases.
"I don't see any major systemic issues that cry out for action on the part of the armed forces," he said of capital cases.
But for at least a decade, military judges and lawyers have called on the U.S. military to fix its capital system.
Critics say the military has resisted broader changes because it views its court system as separate and unique. Created by Congress to keep order in the military ranks, the military has a judicial system where all the constitutional rights taken for granted in civilian courts don't always apply, experts said. The system is decentralized and each branch operates independently, making sweeping criminal-justice reform difficult.
"If you look at the strength of the military, it's an admirable quality in our military men and women that they have a can-do, make-do attitude. It's a recognition that military conditions are not always ideal and a real leader steps up and figures things out," said Denny LeBoeuf, the director of the American Civil Liberties Union's Capital Punishment Project. "That's a great attitude in a lot of situations, but it is not protective of the standards that are necessary in capital cases."
Further, the Pentagon is consumed with two wars and facing the hard choices of cost cutting. The criminal justice system isn't as much of a priority.
But experts said there were alarming signs of the need for reform, including a racial disparity that's worse in some ways than in civilian courts. Ten of the 16 men who've been sentenced to death since 1984 were minorities. Of those, six had their sentences overturned.
According to one recent study obtained by McClatchy, minorities are twice as likely to be sentenced to death in courts-martial as their white counterparts, a statistic that's higher than is known to exist in most civilian court systems.
Almost 40 years ago, the U.S. Supreme Court recognized that sentencing in capital cases resulted in stark disparities, often along racial lines. The landmark ruling, Furman v. Georgia, invalidated much of the civilian capital system and ushered in a string of other capital decisions, including recognizing the importance of qualified defense attorneys.
The military has tried to improve the quality of its attorneys appointed in all criminal cases. In 2007, for instance, the Navy established a program that allows a group of more than 50 lawyers to remain in criminal justice throughout their military careers. The Army has revamped its training.
However, the new attorney for the only Navy defendant whose sentence hasn't been reversed is five years out of law school and has no experience with death penalty cases. To prepare for litigation that the Supreme Court has concluded is among the most difficult, the attorney attended a three-day conference offered by a nonprofit group.
Over the course of his appeal, the defendant, Kenneth Parker, who was convicted of killing two fellow Marines, has had at least seven lawyers. They've written so many different briefs that the courts recently ordered his new lawyer to start from scratch and file one appeals brief, as is customary in a capital case.
"The case is dazzlingly complex," said the lawyer, Maj. Kirk Sripinyo. "Anyone at any experience level would say it's difficult."
The judge who's overseeing a crucial issue in Parker's appeal — questions about whether Parker is mentally retarded and therefore ineligible for the death penalty — was discovered to have discussed the case with one of the experts in the case without the knowledge of the lawyers. Such discussions are seen as improper and could be a sign that even the judge was out of his depth, experts said.
Making matters more complicated, Parker's evidence was tested by a discredited North Carolina bloodstain pattern analyst who recently was accused in other cases of hiding or manipulating evidence to ensure a win for prosecutors
In the meantime, an appeals court overturned part of the conviction of Parker's accomplice three years ago because the judge mishandled an expert's misconduct at trial. At a new trial last year, the other defendant was sentenced to life.
Yet almost two decades after Parker's conviction, his case hasn't even completed the first level of appeal, a delay that's striking even in a capital case and that "has not been explained to me," his lawyer said.
Such examples have prompted even some former prosecutors and military lawyers who favor the death penalty to conclude that the military could do more to improve its handling of capital cases.
Charles Feldmann, who prosecuted Jessie Quintanilla, a Marine sergeant convicted of murdering his superior officer and almost killing another, said he was too inexperienced to be the lead prosecutor in the case when it was tried in 1996.
In his 20s with less than three years of experience as a lawyer, he ended up making mistakes, he said. One of them, he said, was to keep the murder weapon, a gun, as a trophy and to hang it on the wall of his office.
"It was the action of an extremely emotional and over-aggressive prosecutor who did not see the big picture," Feldmann said of his behavior. "I can't describe to you how easy it is to get rolled into the passion and the emotion of some of these cases. You can lose some of your judgment."
A military appeals court overturned Quintanilla's sentence because of the judge's mishandling of the jury selection.
Separately, the court excoriated Feldmann and the other prosecutors for "unethical" behavior, saying it had "besmirched the military justice system."
After the trial, one of the other prosecutors had given the surviving victim the bullet that had pierced his chest. The same prosecutor also kept a knife from the crime for himself.
"There is a line between zealous prosecution infused with righteous indignation, on the one hand, and unethical conduct, on the other," the Navy-Marine Corps Court of Criminal Appeals wrote. "These two judge advocates crossed that line on several occasions in this capital court-martial."
Instead of retrying him, the military sentenced Quintanilla to life in prison. He's eligible for parole, although the families of his victims had wanted him to be executed.
"This guy is a monster and deserves to be on death row," said Feldmann, who's now a civilian attorney and volunteers his time to help teach military lawyers, partly because of what happened in the case. "But because I didn't know how to handle death penalty cases, I failed. I failed the Marine Corps and I failed the family of the victims."
Despite such high-profile screw-ups, the military has chosen not to follow the lead of civilian courts.
Last year, Navy Lt. Cmdr. Stephen Reyes surveyed capital systems in the country and found that 80 percent of all state systems, plus the federal court system, have set up minimum standards for the quality of the defense appointed in death penalty cases. The military has no such requirement for its courts-martial, and Reyes thinks it should.
Experts said the military could create an office for complex cases such as capital trials made up of lawyers from all the military services, similar to what was created for the separate military commissions system for Guantanamo detainees. Or the military could hire more seasoned civilian lawyers, a phenomenon that's already occurring in a limited way across the military's justice system in general.
"We've already seen massive transformations in the civilian courts when it comes to defense counsel," said Reyes, who's represented military defendants accused of capital crimes. "Now it's time for the military courts-martial to get on track, before a miscarriage of justice occurs."
(Tish Wells contributed to this article.)
© 2011 McClatchy-Tribune Information Services
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