Senior Airman Andrew P. Witt, 31, was among just five U.S. service members awaiting execution on the military’s death row at Fort Leavenworth, Kan. The ruling on his death sentence was issued Friday as the military tries one of its most high-profile death penalty cases.
The court-martial of Army Maj. Nidal Hasan – who could face death if he’s convicted of killing 13 people at Fort Hood, Texas – has thrown an unflattering spotlight on the military’s track record in capital cases. Appeals courts have overturned 11 of the 16 death sentences handed down by military juries in the last three decades. That’s not counting Witt’s case, as his death sentence could still be reinstated.
The Air Force Court of Criminal Appeals ordered that Witt’s case be reopened to decide again whether he should be sentenced to death or life in prison. The court upheld his conviction on charges of premeditated murder for the July 2004 stabbing deaths of a fellow airman and his wife at Robins Air Force Base, Ga. Life with the possibility of parole would be the minimum sentence allowed.
The Air Force could ask the mid-level appeals court to reconsider its decision, or appeal it to a higher military court. Or commanders could order a new military jury for the sole purpose of re-sentencing Witt.
“They could decide to re-litigate the sentence and see if they could try for a death sentence again. Or they could decide to approach the defendant for a deal and take death off the table,” said Victor Hansen, a former military prosecutor who’s now a professor at the New England School of Law.
Whether Witt is ultimately sentenced to life or death may be symbolic more than anything.
No U.S. service member sentenced to death by a court-martial has been executed since 1961. Carrying out a military death sentence requires the president, as commander in chief, to sign off on the execution.
Witt’s appellate and trial attorneys did not immediately return messages.
David Donato, a spokesman for Robins Air Force Base, said base commanders were aware of the ruling and “waiting for the full appellate process to take its course.”
An Air Force avionics specialist, Witt was convicted of killing Senior Airman Andrew Schliepsiek and his wife, Jamie, at their duplex on the base south of Macon in the early morning hours of July 5, 2004. Prosecutors said Schliepsiek was upset after his wife told him Witt had flirted with her. He made several angry phone calls to Witt, who dressed himself in camouflage fatigues and armed himself with a knife before heading onto the base. Hours later. police found the Schliepsieks dead, both of them stabbed several times. Witt led investigators to the knife and to his bloodstained uniform and boots.
The appeals court found no fault with Witt’s conviction. But it ruled that his three attorneys provided an inadequate defense during sentencing by ignoring three key pieces of mitigating evidence to rebut prosecutors’ argument that Witt was simply a cold-blooded killer.
One was the defense team failed to investigate a head injury Witt suffered in a motorcycle crash four months before the slaying. Witt’s appellate lawyers argued the crash may have caused brain damage that altered his behavior.
“Even mild traumatic brain injury can affect impulse control, normal cognitive functions, emotional self-regulation, and behavior,” Lt. Col. Melissa A. Saragosa, an Air Force appellate judge, wrote in the court’s opinion.
The judges also ruled defense lawyers didn’t dig deep enough into Witt’s family history and failed to pull records related to his mother being treated for depression when he was a boy. And the defense team never interviewed a witness with a compelling story – a sheriff’s deputy who says he comforted Witt after the airman broke down sobbing during a pretrial hearing in the case.
The appeals judges said the deputy’s testimony at Witt’s court-martial may have swayed at least one of the 12 officers on the jury to spare the airman’s life. Unanimous agreement was needed for a death sentence.
Two of the five judges who heard the appeal dissented, saying they agreed Witt’s defense attorneys made mistakes but did not believe those errors influenced the trial’s outcome.