By Alan Matsuoka
Armed services courts-martial
are drawing civilian challenges
when they mete out the
Two chaplains kept him company while, a couple of hundred yards away, in a part of the base dubbed Execution Gulch, a newly built gallows waited.
The Missouri man seemed to have accepted his fate: His final hours were spent in "gay spirits," the provost marshal said later. He mounted the gallows at 6:45 a.m., told guards when he thought the noose was properly placed and made a last request - that his mother be informed he "died like a man."
"Death came 20 minutes after the trap door was sprung," the Star-Bulletin reported.
Like Mickles, hundreds of U.S. service members have been executed since the nation's founding, convicted and sentenced to die by military courts-martial. Now Honolulu Prosecutor Keith Kaneshiro has sent a Hawaii case to be tried in such a proceeding, and a military spokesman said the death penalty could be sought.
"From what we know now, that's a very definite option," said Kaneohe Marine Capt. John Milliman.
Four Kaneohe Marines are under investigation in the May 7 killing of a fellow platoon member. According to one suspect's affidavit, the victim, Lance Cpl. Juan Guerrero, 20, was bound with tape and taken to Nuuanu Pali Drive, where he was shot in the head.
Kaneshiro, a capital punishment advocate, handed the case to the military because it has the "ultimate penalty for the ultimate crime" - something the islands abolished in 1957.
Although the last military execution was in 1961, the subject is making headlines again. On June 3, the U.S. Supreme Court issued a major ruling upholding the military death penalty.
Nine days later, a court-martial panel sentenced an Army sergeant to death for killing a major and wounding 18 others during an October sniper attack at Fort Bragg, N.C.
And on June 22, the armed forces' highest appeals court affirmed the death sentence of a Marine lance corporal who was convicted of stabbing to death a lieutenant and the officer's wife at Camp Lejuene, N.C., in 1987.
Still, death by lethal injection - the method of execution for the Army, Navy and Marines - does not appear imminent for the nine men on military death row in the U.S. Disciplinary Barracks at Fort Leavenworth, Kan.
Defense lawyers continue to file appeals that challenge the process and raise questions about the rights granted to service members.
The procedures for seeking the death penalty are laid out in the Manual for Courts Martial, which guides military justice for all service branches. After an Article 32 hearing, equivalent to a preliminary hearing in civilian courts, findings are forwarded to the "convening authority," usually the base commander. In the Guerrero killing, that would be Marine Brig. Gen. David Bice, who heads the Kaneohe base.
After consulting with legal staff, the convening authority decides whether the case should proceed to a general court-martial and whether it should be referred as a capital or noncapital case. He then handpicks panel members, or jurors, typically from a list submitted by subordinate commanders. Age, length of service, education and "judicial temperament" are considered.
The panel must have at least five members. In a capital case, the verdict must be unanimous to keep the death penalty as an option. Then, in a sentencing hearing that follows, the panel weighs aggravating factors against mitigating ones, and again must be unanimous before condemning a defendant to death.
The sentence can be commuted by the convening authority. All death sentences are automatically examined by the branch's Court of Criminal Appeals, and then by the U.S. Court of Appeals for the Armed Forces, the top military appeals body, made up of civilians appointed by the president. After that, the Supreme Court can be petitioned to review the case.
Finally, the matter goes to the White House, where the president must sign a warrant before an execution can occur. Attorneys said a petition subsequently can be filed in federal court for a review, but no capital case has advanced that far since the last execution 35 years ago.
Army Pvt. Dwight J. Loving may chart those legal waters. Loving was convicted of robbing and murdering two taxi drivers in Texas in 1988, and the Supreme Court was considering his case when it upheld the military death penalty last month. Teresa L. Norris, a Charlotte, S.C., attorney who is lead counsel in the case, said she plans to petition the federal court in Kansas.
The Loving case reflects many issues raised about the military death penalty. In 1972, the high court said capital punishment cannot be imposed without procedures to ensure it is not used arbitrarily, sending states back to the drawing board to come up with lists of special circumstances or aggravating factors - such as premeditation - to support the sentence.
The armed forces' top court in 1983 ruled the military death penalty was flawed for the same reason. President Reagan the next year promulgated a similar list of factors, and Loving's attorneys argued he usurped congressional powers. The Supreme Court disagreed.
But a concurrent opinion by four justices seems to raise a jurisdictional question that many feel will be the basis of a future challenge: Should the military be handling death-penalty cases when there is not a strong service connection that warrants a defendant's surrendering civilian protections?
The question was addressed by the high court in 1969 in a Hawaii case. Army Sgt. James O'Callahan was court-martialed for the attempted rape of a 14-year-old girl in a Waikiki hotel while on leave, and sentenced to 10 years of hard labor. But the justices ruled that military courts do not have the authority to try service members for off-duty, off-post crimes that are not service-connected.
It essentially reversed itself in a 1989 case, saying "the only requirement is that it be a military offense and that the accused be in the military," said Marine Maj. Dwight Sullivan, an instructor at the Naval Justice School in Newport, R.I.
But attorneys said some justices appear to be wondering whether a higher standard should be applied in death-penalty cases.
Another major issue centers on the convening authority's power to choose the members to serve on a panel, and to influence its size. Loving was tried by an eight-member panel, while states require 12 jurors.
The contention is unanimity would be easier to reach with a smaller panel, and selecting members by name could help predetermine the outcome.
"The people on a court-martial are part of the military, and their decision will be observed by their commanding officer," said Jon Van Dyke, a University of Hawaii law professor. "So they do not operate in a vacuum by any means. And if the commanding officer wants a conviction, then most likely there will be a conviction."
But a military attorney in Hawaii noted that following civilian procedures might be cumbersome while, for instance, fighting Operation Desert Storm.
"If you need to find 12 officers to sit in a weeklong trial, it could seriously impair your ability to fight that war," he said, speaking on the condition his name not be used.
Norris, who served as an Army attorney for four years before entering private practice in 1994, feels the military applies capital punishment more carefully than civilian courts, whose verdicts have led to 330 executions since the Supreme Court restored the punishment in 1976.
"I attribute that to the nature of the system, because the military prosecutors are not politicians," Norris said.
Still, she feels more changes need to be made to balance the rights granted to civilians with the military's mission. "It may not approach the exact procedures used in civilian courts, but the overall concept of a capital case, and what has to be there in order to meet minimum constitutional standards, should be the same."