2/21 Motions Hearing #3: Death Formulas and Aggravators

The next stop on our little Ex Post Facto Tour 2014 is AE179.  The defense theory here is roughly the same as earlier, but this time Al-Nashiri's lawyers focus on capital sentencing.  In 2002, courts martial employed a more rigorous body of rules for death sentences, in the view of Al-Nashiri’s lawyers; but Congress opted for a less rigorous setup later, after Al-Nashiri’s capture, in the Military Commissions Act.  Thus the Ex Post Facto problem.

The relevant court martial rule---RCM 1004---used eleven aggravators, which could support a death sentence in only the most egregious of cases. Merely two of these courts martial aggravators arguably implicated Al-Nashiri’s charged conduct. Contrast this to the relevant commission rule, which employs a different aggravation scheme, suggests (to Mizer's eye) the application of six aggravating factors, and thus also ups the likelihood of a death sentence.

CDR Brian Mizer advances this argument, citing the Peugh case. This dealt with federal sentencing guidelines for fraud.  And the issue was roughly the same, give or take, as that presented in the defense's motion: the sentencing range for fraud had been increased unlawfully, after the defendant’s offense.  Judge Pohl asks a little about the details behind Peugh; Mizer explains them, noting that the adjustment in that case didn’t alter the elements of the offense, but instead affected a formula used to punish the conduct involved.

Mizer tags out and prosecutor Maj. Evan Seamone tags in.  The latter notes a key concession: the defense acknowledges that, in 2002, the courts martial rules allowed for the possibility of capital punishment in circumstances akin to Al-Nashiri’s case. The accused thus was on notice then about the risk of being convicted and put to death for committing his various crimes; there’s no Ex Post Facto issue.  The military judge observes that there are mandatory minimums in courts martial.  That is true, says Seamone, but there's no similar mandatory minimum arrangement in commissions.  The lawyer distinguishes between the statutory scheme employed at Guantanamo and the sort of formula that concerned the Peugh court.  The former vests the panel with considerable flexibility.  In fact, the panel is directed not to weight any one sentencing factor; members can consider any mitigating factors they wish.  They need not vote in favor of any aggravators.  Put a different way, there really isn’t a preference for death baked into the system, as the defense has argued.  A bit more, and Seamone is done.

The addition of aggravators---from two to six here---is what matters to Mizer.  If you add on sentencing enhancements, then you ratchet up punishment.  That’s the issue in Peugh, even if that’s not readily visible to non-experts in federal sentencing like him.  As it happens, Peugh also disposes of Seamone's claim about panel discretion in sentencing.  The case directly supports the proposition that making a punishment more likely, after the fact, runs counter to the Ex Post Facto clause.

Wrong, Seamone argues.  You can’t analogize commission sentencing and federal sentencing, given the latter’s use of byzantine sentencing formulas. Military rules deliberately avoid such formulas.  We just don’t have that sort of system, your honor.  He sits.