counsel," United States v. Garcia, 59 M.J. 447, 450 (C.A.A.F.
2004), we conclude that the better practice in future cases is
for the courts of criminal appeals to require counsel to submit
individual affidavits. Nonetheless, we conclude there was no
error in the instant case.
III. Decision
The decision of the United States Army Court of Criminal
Appeals is affirmed.
United States v. Akbar, No. 13-7001/AR
Appendix
Issues Presented
A.I
SGT HASAN K. AKBAR WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AT EVERY CRITICAL STAGE OF HIS COURT-MARTIAL.
A.II
THIS COURT SHOULD ORDER A POST-TRIAL EVIDENTIARY HEARING TO RESOLVE DISPUTED FACTUAL ISSUES RELEVANT TO SGT AKBAR'S NUMEROUS COLLATERAL CLAIMS UNLESS THIS COURT FINDS IN HIS FAVOR ON ANOTHER DISPOSITIVE GROUND.
A.III
WHETHER THE PROSECUTION'S VICTIM-IMPACT PRESENTATION AND ARGUMENT, AND COUNSEL'S FAILURE TO OBJECT, VIOLATED SGT AKBAR'S FIFTH, SIXTH, AND EIGHTH AMENDMENT RIGHTS.
A.IV
THE MILITARY JUDGE, BY FAILING TO SUA SPONTE DISMISS FOURTEEN OF THE FIFTEEN PANEL MEMBERS FOR CAUSE BASED ON ACTUAL AND IMPLIED BIAS MANIFESTED BY RELATIONSHIPS OF THE MEMBERS, A PREDISPOSITION TO ADJUDGE DEATH, AN INELASTIC OPINION AGAINST CONSIDERING MITIGATING EVIDENCE ON SENTENCING, VISCERAL REACTIONS TO THE CHARGED ACTS, PRECONCEIVED NOTIONS OF GUILT, AND DETAILED KNOWLEDGE OF UNCHARGED MISCONDUCT THAT HAD BEEN EXCLUDED, DENIED SGT AKBAR A FAIR TRIAL.
A.V
THE MILITARY JUDGED ERRED TO SGT AKBAR'S SUBSTANTIAL PREJUDICE BY DENYING HIS MOTION FOR CHANGE OF VENUE.
A.VI SGT AKBAR WAS DENIED HIS SIXTH AND EIGHTH AMENDMENT RIGHT TO COUNSEL WHEN HIS TRIAL DEFENSE COUNSEL ACTIVELY REPRESENTED CONFLICTING INTERESTS WHICH ADVERSELY AFFECTED THEIR PERFORMANCE.
United States v. Akbar, No. 13-7001/AR
A.VII
"WHERE [UNLAWFUL COMMAND INFLUENCE] IS FOUND TO EXIST, JUDICIAL AUTHORITIES MUST TAKE THOSE STEPS NECESSARY TO PRESERVE BOTH THE ACTUAL AND APPARENT FAIRNESS OF THE CRIMINAL PROCEEDING." UNITED STATES v. LEWIS, 63 M.J. 405, 407 (C.A.A.F. 2006). PROSECUTORIAL MISCONDUCT IS "ACTION OR INACTION BY A PROSECUTOR IN VIOLATION OF SOME LEGAL NORM OR STANDARD, e.g., A CONSTITUTIONAL PROVISION, A STATUTE, A MANUAL RULE, OR AN APPLICABLE PROFESSIONAL ETHICS CANON." UNITED STATES v. MEEK, 44 M.J. 1, 5 (C.A.A.F. 1996). IN THIS CASE, GOVERNMENT COUNSEL MANIPULATED THE DUTY ASSIGNMENTS OF SGT AKBAR'S TRIAL DEFENSE COUNSEL TO AVOID TRIAL DELAY AND THEREBY CREATED A CONFLICT OF INTERESTS. See A.E. VI, SEC. E. DID GOVERNMENT COUNSEL'S ACTIONS AMOUNT TO UNLAWFUL COMMAND INFLUENCE OR PROSECUTORIAL MISCONDUCT IN VIOLATION OF SGT AKBAR'S RIGHT TO DUE PROCESS?
A.VIII
STANDARDS APPLICABLE TO FEDERAL AND STATE CAPITAL DEFENSE COUNSEL HAVE APPLICABILITY TO COURTS-MARTIAL AS RELEVANT STANDARDS OF CARE AND THE ARMY COURT'S ANALYSIS OF SGT AKBAR'S CASE WAS FLAWED BECAUSE OF ITS MISAPPLICATION OF THE GUIDELINES AND ITS DETERMINATION COUNSEL WERE "WELL-QUALIFIED."
A.IX
DENYING SGT AKBAR THE RIGHT TO PLEAD GUILTY UNCONSTITUTIONALLY LIMITED HIS RIGHT TO PRESENT MITIGATION EVIDENCE. IN THE ALTERNATIVE, COUNSEL'S FAILURE TO DEMAND AN INSTRUCTION ON THIS LIMITATION OF MITIGATION PRESENTATION AMOUNTED TO [INEFFECTIVE ASSISTANCE OF COUNSEL] AS OMISSION OF THE INSTRUCTION DENIED SGT AKBAR MITIGATION EVIDENCE