AGGRAVATING CIRCUMSTANCES" AND THEREFORE FAILED TO MEET THE REQUIREMENT OF RCM 1004(b)(4)(C) THAT THERE BE A CONCURRENCE BY ALL THE MEMBERS ON THE MATTER.
XLII
SERGEANT MURPHY'S DEATH SENTENCE MUST BE SET ASIDE AND ONLY A LIFE SENTENCE AFFIRMED BECAUSE THE DEATH SENTENCE WAS IMPOSED AS A MATTER OF LAW IN A PROCEDURALLY INCORRECT MANNER BECAUSE THE PANEL DID NOT PROPOSE SENTENCES IN WRITING BUT DID SO ORALLY.
XLIII
SERGEANT MURPHY WAS CONVICTED AND SENTENCED TO DEATH IN VIOLATION OF THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS BECAUSE THE CONVICTIONS AND SENTENCE WERE RENDERED UPON MISINFORMATION CONCERNING HIS CULPABILITY AND MORAL BLAME-WORTHINESS.
XLIV
SERGEANT MURPHY WAS DENIED HIS RIGHT TO AN IMPARTIAL JURY BY THE ACCEPTED PRACTICE IN THE MILITARY OF ALLOWING PANEL MEMBERS TO INTER-ROGATE WITNESSES.
XLV
THE STAFF JUDGE ADVOCATE'S SPECIFIC INSERTION AND NOTATION OF RACIAL IDENTIFIERS FOR SERGEANT MURPHY AND A PANEL MEMBER INTO THE CLEMENCY PROCESS VIOLATED SERGEANT MURPHY'S RIGHTS TO EQUAL PROTECTION AND DUE PROCESS.
XLVI
RCM 1004 FAILS TO INCORPORATE CONGRESSIONALLY MANDATED PROTECTION TO PREVENT RACIALLY MOTIVATED IMPOSITION OF THE DEATH PENALTY IN VIOLATION OF ARTICLE 55, UCMJ, AND THE EIGHTH AMENDMENT TO THE CONSTITUTION.
XLVII
THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE FAILED TO SUA SPONTE INSTRUCT THE PANEL MEMBERS THAT RACE COULD NOT BE CONSIDERED AS A FACTOR IN THE SENTENCING PROCESS.
XLVIII
THE PEREMPTORY CHALLENGE PROCEDURE IN THE MILITARY JUSTICE SYSTEM, WHICH ALLOWS THE GOVERNMENT TO REMOVE ANY ONE JUROR WITHOUT CAUSE, IS UNNECESSARY AND SUBJECT TO ABUSE IN ITS APPLICATION AND WAS ABUSED IN SERGEANT MURPHY'S CASE.
XLIX
THE PRETRIAL ADVICE IN SERGEANT MURPHY'S CASE WAS DEFECTIVE BECAUSE THE STAFF JUDGE ADVOCATE FAILED TO ENUMERATE ANY MITIGATING CIRCUMSTANCES THE CONVENING AUTHORITY COULD BALANCE AGAINST THE AGGRAVATING CIRCUMSTANCES TO MAKE AN INFORMED DECISION WHETHER TO REFER THIS CASE CAPITAL.
L
THE STAFF JUDGE ADVOCATE WAS DISQUALIFIED FROM PARTICIPATING IN THE PROCEEDINGS AFTER THE INITIAL PRETRIAL ADVICE AND CAPITAL REFERRAL WERE CHALLENGED AS DEFECTIVE.
LI
THE CONVENING AUTHORITY WAS DISQUALIFIED FROM PARTICIPATING IN THE PROCEEDINGS AFTER THE INITIAL PRETRIAL ADVICE AND CAPITAL REFERRAL WERE CHALLENGED AS DEFECTIVE.
LII
THE FINDINGS MUST STATE EXPLICITLY THAT ALL MEMBERS CONCUR THAT ANY EXTENUATING OR MITIGATING CIRCUMSTANCES ARE SUBSTANTIALLY OUTWEIGHED BY THE AGGRAVATING CIRCUMSTANCES FOUND BY THE MEMBERS.
LIII
THE DEATH PENALTY SENTENCING STANDARD REQUIRING AGGRAVATING CIRCUMSTANCES TO "SUBSTANTIALLY OUT-WEIGH" EXTENUATING OR MITIGATING CIRCUMSTANCES IS IN VIOLATION OF THE FIFTH AND EIGHTH AMENDMENTS IN THAT THE ONLY ACCEPTABLE STANDARD MUST BE "BEYOND A REASONABLE DOUBT." SEEALSO ARTICLE 59(a), UCMJ.
LIV
THE AGGRAVATING FACTOR STATED IN RCM 1004(c)(7)(I) IS VAGUE, FAILS TO SUFFICIENTLY CLARIFY THE FACTOR INVOLVED, DOES NOT NARROW THE CLASS OF PERSONS ELIGIBLE FOR THE DEATH PENALTY, AND IS THEREFORE INVALID UNDER THE EIGHTH AMENDMENT TO THE CONSTITUTION.
LV
COURT-MARTIAL PROCEDURES DENIED SERGEANT MURPHY HIS ARTICLE III RIGHT TO A JURY TRIAL.
LVI
ARTICLE 18, UCMJ, AND RCM 201(f)(1)(C), WHICH REQUIRE TRIAL BY MEMBERS IN A CAPITAL CASE, VIOLATE THE FIFTH AND EIGHTH AMENDMENT GUARANTEES OF DUE PROCESS AND A RELIABLE VERDICT.
LVII
RCM 1004'S