Gray, Death Penalty case.

Gray v. Gray, No. 08-3289-RDR (D.C. Kan. April 1, 2009).  An ironic twist that the current commandant at the USDB is Colonel Gray.  A little history.

Private Gray’s convictions and death sentence became final on July 28, 2008, when the President approved his death sentence.  On August 14, 2008, the Secretary of the Army signed an Execution Order directing that Private Gray be executed at the Federal Correctional Complex, Terre Haute, Indiana, on December 10, 2008, at 2200 hours, by lethal injection.  On November 26, 2008, this Court granted Petitioner’s motion for a stay of execution and appointment of counsel.

Here is the habeas corpus petition for Private Gray, it's 106 pages (thanx NIMJ).  Gray is currently at the USDB with a presidentially approved death penalty.  Here is a piece from the introduction.

Petitioner, Specialist Four Ronald Gray, an African-American from Miami, Florida, enlisted in the United States Army in 1983. At the time of the crimes, he was serving with the 82nd Airborne Division at Fort Bragg, North Carolina. His case raises substantial questions concerning the scope constitutional rights of members of the Armed Forces facing court-martial for capital murder during peacetime. The questions present significant and important systemic issues concerning the size, manner of selection and fundamental fairness and impartiality of court-martial panels in capital cases under the Uniform Code of Military Justice. The presentation of these systemic issues make this a case of first impression.

CLAIM ONE.  

DURING PEACETIME, ALLOWING A MEMBER OF THE ARMED FORCES TO BE SENTENCED TO DEATH BY A COURT-MARTIAL PANEL OF LESS THAN TWELVE, WHEN THERE IS NO FIXED PANEL SIZE, PROMOTES UNRELIABILITY, UNDERMINES THE RIGHT TO AN IMPARTIAL FACT FINDER AND SENTENCER AND CREATES AN ARBITRARY FACTOR IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS

Note, everybody else gets 12, and Congress amended the panel size for capital cases post Gray's conviction.

CLAIM TWO.
IN A CAPITAL COURT-MARTIAL DURING PEACETIME, THE CONVENING AUTHORITY’S POWER TO HAND-PICK MILITARY SUBORDINATES – WHOSE CAREERS HE CAN DIRECTLY AND IMMEDIATELY AFFECT AND CONTROL – TO SERVE AS COURT MEMBERS VIOLATES THE FIFTH, AND EIGHTH AMENDMENT

CLAIM THREE
AN APPELLATE COURT CAN NOT ASSUME THAT THE TRIAL JUDGE MADE A DETERMINATION AS TO WHETHER TRIAL COUNSEL’S EXPLANATION WAS CREDIBLE OR PRETEXTUAL PURSUANT TO BATSON V. KENTUCKY, 476 U.S. 79 (1986), WITHOUT CONDUCTING A FURTHER HEARING ON THE ISSUE, WHEN THE TRIAL JUDGE RULED ON PETITIONER’S BATSON CLAIM WITHOUT EVEN REQUIRING THE PROSECUTOR TO PROVIDE A RACE NEUTRAL EXPLANATION FOR THE CHALLENGE

Note, yesterday I posted on the Supreme Court decision in Rivera v. Illinois.

CLAIM FOUR
PETITIONER WAS DENIED THE RIGHT TO A FAIR AND IMPARTIAL JURY WHEN THE MILITARY JUDGE IMPROPERLY GRANTED GOVERNMENT CHALLENGES FOR CAUSE AGAINST TWO MEMBERS

CLAIM FIVE
THE PEREMPTORY CHALLENGE PROCEDURE IN THE MILITARY JUSTICE SYSTEM, WHICH ALLOWS THE GOVERNMENT TO REMOVE ONE JUROR WITHOUT CAUSE, IS UNNECESSARY AND SUBJECT TO ABUSE IN ITS APPLICATION AND WAS ABUSED IN PETITIONER’S CASE

CLAIM SIX
PETITIONER WAS DENIED HIS RIGHTS UNDER THE FIFTH, SIXTH AND EIGHTH AMENDMENTS BECAUSE THE PANEL MEMBER SELECTION POOL IN PETITIONER’S CASE DID NOT INCLUDE ANY FEMALES.

CLAIM SEVEN
THE MILITARY JUDGE IMPROPERLY DENIED A DEFENSE MOTION FOR A MISTRIAL BASED
ON TRIAL COUNSEL’S COMMENTS ON PETITIONER’S RIGHT TO REMAIN SILENT.

CLAIM EIGHT
THE MILITARY JUDGE PRECLUDED THE SENTENCING PANEL FROM CONSIDERING PETITIONER’S BACKGROUND AS A BASIS FOR A SENTENCE LESS THAN DEATH IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS

CLAIM NINE
ARTICLE 18 OF THE UCMJ AND R.C.M. 201(F)(l)(c), WHICH REQUIRE TRIAL BY MEMBERS IN A CAPITAL CASE, VIOLATES THE FIFTH, SIXTH AND EIGHTH AMENDMENT GUARANTEE OF DUE PROCESS AND A RELIABLE VERDICT.

CLAIM TEN
R.C.M. 1004'S PROHIBITION AGAINST GUILTY PLEAS IN CAPITAL COURT-MARTIAL DEPRIVED PETITIONER OF A CRITICAL MITIGATING FACTOR AND CAUSED OTHER IRREPARABLE PREJUDICE IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS.

CLAIM TWELVE
PETITIONER’S APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE FIFTH, SIXTH, AND EIGHTH, AND FOURTEENTH AMENDMENTS.

CLAIM FOURTEEN
THE MILITARY JUDGE DENIED RESOURCES NECESSARY TO RETAIN EXPERT SERVICES IN CRIMINAL INVESTIGATION TO ASSIST THE DEFENSE IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS.

CLAIM FIFTEEN
THE AGGRAVATING FACTOR STATED IN R.C.M. 1004(c)(7)(I) IS VAGUE, FAILS TO SUFFICIENTLY CLARIFY THE FACTOR INVOLVED, AND DOES NOT NARROW THE CLASS OF PERSONS ELIGIBLE FOR THE DEATH PENALTY, AND IS THEREFORE INVALID UNDER THE EIGHTH AMENDMENT.

CLAIM SIXTEEN
BASED ON THE SUPREME COURT’S REASONING IN RING V. ARIZONA, 536 U.S. 584 (2002), CONGRESS UNCONSTITUTIONALLY DELEGATED TO THE PRESIDENT THE POWER TO ENACT THE FUNCTIONAL EQUIVALENT OF ELEMENTS OF CAPITAL MURDER, A PURELY LEGISLATIVE FUNCTION.

CLAIM SEVENTEEN
THE PROPORTIONALITY REVIEW IN THIS CASE WAS INSUFFICIENT AS A MATTER OF LAW IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS.

CLAIM EIGHTEEN
THE MANNER IN WHICH THE GOVERNMENT WOULD CARRY OUT PETITIONER’S EXECUTION VIOLATES THE EIGHTH AMENDMENT.

The petition lists Thomas J. Bath, Jr., Bath & Edmonds, P.A., Historic Voigts Building, 7944 Santa Fe Drive, Overland Park, Kansas 66204, as well as the renowned Tom Dunn (a former JAG), of the Georgia  Appellate Practice & Educational Resource Center, and Army appellate attorneys as counsel.

tip:  NIMJ.

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