IN VIOLATION OF THE EIGHTH AMENDMENT.
A.X
THE SECRETARY OF THE ARMY'S EXEMPTION FROM COURT-MARTIAL SERVICE OFFICERS OF THE SPECIAL BRANCHES NAMED IN AR 27-10 VIOLATED ARTICLE 25(d)(2), UCMJ, PREJUDICING SGT AKBAR'S RIGHT TO DUE PROCESS AND A FAIR TRIAL.
A.XI
AS SGT AKBAR'S TRIAL DEFENSE COUNSEL DID NOT ADEQUATELY INVESTIGATE HIS CASE, THE ARMY COURT ERRED DENYING HIS REQUEST TO RETAIN PSYCHIATRIST AND PSYCHOLOGIST DR. RICHARD DUDLEY AND DR. JANICE STEVENSON, OR OTHERWISE, ORDERING PROVISION OF ADEQUATE SUBSTITUTES. FURTHER INVESTIGATION BY APPELLATE
United States v. Akbar, No. 13-7001/AR
DEFENSE COUNSEL ALSO REVEALS THE NECESSITY OF OBTAINING THE EXPERT ASSISTANCE OF CLINICAL PSYCHOLOGIST DR. WILBERT MILES.
A.XII
THE MILITARY JUDGE COMMITTED PLAIN ERROR BY PROVIDING SENTENCING RECONSIDERATION INSTRUCTIONS THAT FAILED TO INSTRUCT THE PANEL DEATH WAS NO LONGER AN AVAILABLE PUNISHMENT IF THE PANEL'S INITIAL VOTE DID NOT INCLUDE DEATH AND DID NOT COMPLY WITH R.C.M. 1004.
A.XIII
THE MILITARY JUDGE ERRED IN NOT SUPPRESSING THE STATEMENT "YES" BY SGT AKBAR TO MAJ WARREN, WHEN THAT STATEMENT WAS GIVEN WHILE SGT AKBAR WAS AT GUNPOINT, IN CUSTODY, AND BEFORE HE RECEIVED RIGHTS WARNINGS UNDER MIRANDA v. ARIZONA OR ARTICLE 31(b), UCMJ.
A.XIV
UNDER THE SUPREME COURT'S REASONING IN RING v. ARIZONA, 536 U.S. 584 (2002), CONGRESS UNCONSTITUTIONALLY DELEGATED TO THE PRESIDENT THE POWER TO ENACT ELEMENTS OF CAPITAL MURDER, A PURELY LEGISLATIVE FUNCTION.
A.XV
DID THE PROCEDURES PROVIDED UNDER R.C.M. 1004 VIOLATE SGT AKBAR'S RIGHT TO DUE PROCESS BY ALLOWING THE CONVENING AUTHORITY TO UNILATERALLY APPEND UNSWORN AND UNINVESTIGATED AGGRAVATING ELEMENTS TO HIS MURDER SPECIFICATIONS AT REFERRAL?
A.XVI
"WHEN A FINDING OF FACT ALTERS THE LEGALLY PRESCRIBED PUNISHMENT SO AS TO AGGRAVATE IT, THE FACT NECESSARILY FORMS A CONSTITUENT PART OF A NEW OFFENSE AND MUST BE SUBMITTED TO THE JURY." ALLEYNE, 133 S. CT. AT 2162. UNDER R.C.M. 1004(b)(4)(C), DEATH CANNOT BE CONSIDERED ABSENT A PRELIMINARY, UNANIMOUS FINDING THAT AGGRAVATING CIRCUMSTANCES "SUBSTANTIALLY OUTWEIGH" MITIGATING AND EXTENUATING CIRCUMSTANCES. AT TRIAL, SGT AKBAR UNSUCCESSFULLY REQUESTED SENTENCING INSTRUCTIONS REQUIRING THAT AGGRAVATING CIRCUMSTANCES OUTWEIGH MITIGATING AND EXTENUATING CIRCUMSTANCES BEYOND A REASONABLE DOUBT PURSUANT TO APPRENDI, 530 U.S. 466 AND RING, 536 U.S. 584. DID THE MILITARY JUDGE VIOLATE SGT AKBAR'S RIGHT TO DUE PROCESS BY FAILING TO INSTRUCT THAT AGGRAVATING CIRCUMSTANCES MUST OUTWEIGH MITIGATING CIRCUMSTANCES BEYOND A REASONABLE DOUBT?
United States v. Akbar, No. 13-7001/AR
A.XVII
THE LACK OF A SYSTEM TO ENSURE CONSISTENT AND EVEN-HANDED APPLICATION OF THE DEATH PENALTY IN THE MILITARY VIOLATES BOTH SGT AKBAR'S EQUAL PROTECTION RIGHTS AND ARTICLE 36, UCMJ. See 18 U.S.C. § 2245 AND U.S. DEP'T OF JUSTICE, U.S. ATTORNEY'S MANUAL § 9-10.010 (JUNE 1998) (USAM) AND 10 U.S.C. § 949a(b)(2)(C)(ii). IN CONTRAST TO THE USAM, NO PROTOCOL EXISTS FOR CONVENING AUTHORITIES IN CAPITAL CASES, CREATING AN AD HOC SYSTEM OF CAPITAL SENTENCING.
A.XVIII
SGT AKBAR'S DEATH SENTENCE VIOLATES THE EIGHTH AMENDMENT BECAUSE APPELLANT'S SEVERE MENTAL ILLNESS MAKES SUCH A PUNISHMENT HIGHLY DISPROPORTIONATE TO HIS CULPABILITY AND VIOLATES THE FIFTH AMENDMENT BECAUSE IT WOULD BE A DENIAL OF DUE PROCESS TO EXECUTE HIM.
A.XIX
THE MILITARY