Petition for Writ of Certiorari — Andrew P. Witt, Petitioner v. United States

No. ______

IN THE

Supreme Court of the United States

__________

ANDREW P. WITT,

Petitioner,

v.

UNITED STATES,

Respondent.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Armed Forces

__________

PETITION FOR A WRIT OF CERTIORARI

__________

HEATHER M. CAINE

Counsel of Record

MEGAN P. MARINOS

United States Air Force

Appellate Defense Division

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

(240) 612-4770

heather.caine.1@us.af.mil

Counsel for Petitioner

November 2, 2023

QUESTION PRESENTED

The prosecutor repeatedly exhorted the panel

members to consider how their sentence would reflect

on them personally and professional and suggested

that the members would be responsible for any future

harm committed by Senior Airman Witt. Did this

misconduct deprive Senior Airman Witt of due process

protections and render the sentencing fundamentally

unfair?

ii

PARTIES TO THE PROCEEDING

All parties to this proceeding appear in the caption

on the cover page of this petition.

CORPORATE DISCLOSURE STATEMENT

No nongovernmental corporations are parties to

this proceeding.

RELATED PROCEEDINGS

The following is a list of all proceedings related to

this case within the meaning of Rule 14.1(b)(iii):

•

United States v. Witt, No. 22-0090 (C.A.A.F.),

decided June 5, 2023.

•

United States v. Witt, No. ACM 36785 (reh)

(A.F. Ct. Crim. App.), decided November 19,

2021.

•

United States v. Witt, No. 15-0260 (C.A.A.F.),

decided July 19, 2016.

•

United States v. Witt, No. ACM 36785 (recon)

(A.F. Ct. Crim. App.), decided June 30, 2014.

•

United States v. Witt, No. ACM 36785 (A.F. Ct.

Crim. App.), decided August 9, 2013.

iii

TABLE OF CONTENTS

QUESTION PRESENTED .................................................. i

PARTIES TO THE PROCEEDING ...................................... ii

CORPORATE DISCLOSURE STATEMENT.......................... ii

RELATED PROCEEDINGS ............................................... ii

TABLE OF AUTHORITIES ............................................... iii

INTRODUCTION ............................................................. 1

PETITION FOR A WRIT OF CERTIORARI .......................... 2

OPINIONS BELOW ......................................................... 2

JURISDICTION ............................................................... 2

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS

INVOLVED ..................................................................... 3

STATEMENT OF THE CASE ............................................. 3

A. Background ...................................................... 3

B. Evidence in Extenuation and Mitigation ........ 4

1. Family History of Mental Illness ............... 4

2. Family History of Substance Abuse ........... 5

3. Motorcycle Accident and Head Injury ....... 5

4. Waiving

Rights,

Cooperating

with

Investigators,

and

Demonstrating

Remorse ....................................................... 7

C. Sentencing Argument ...................................... 8

D. The AFCCA Decision ..................................... 10

E. The CAAF Decision ........................................ 11

REASONS FOR GRANTING THE PETITION ..................... 12

iv

A. The

Prosecutor’s

Improper

Sentencing

Arguments

Amounted

to

Prosecutorial

Misconduct ..................................................... 14

1. The prosecutor’s repeated urging that the

panel members consider how the sentence

would reflect on them personally and

professionally was improper..................... 15

2. The prosecutor’s suggestion that the panel

members would be responsible for any

future harm committed by SrA Witt was

improper .................................................... 17

B. The Prosecutor’s Misconduct Materially

Prejudiced SrA Witt’s Right to a Fair

Sentencing Hearing Under the Due Process

Clause of the Fifth Amendment .................... 19

CONCLUSION .............................................................. 25

v

TABLE OF AUTHORITIES

Cases

Bates v. Bell,

402 F.3d 635 (6th Cir. 2005) ................... 17, 19, 20

Belford v. Collins,

567 F.3d 225 (6th Cir. 2009) ............................... 15

Berger v. United States,

295 U.S. 78 (1935) ................................... 12, 13, 17

Buchanan v. Angelone,

522 U.S. 269 (1998) ............................................. 20

Brown v. State,

680 S.E.2d 909 (S.C. 2009) .................................. 14

Cardona v. State,

185 So. 3d 514 (Fla. 2016) ................................... 14

Darden v. Wainwright,

477 U.S. 168 (1986) ....................................... 17, 19

DePew v. Anderson,

311 F3d 742 (6th Cir. 2003) ................................ 20

Donnelly v. DeChristoforo,

416 U.S. 637 (1974) ....................................... 19, 21

Handford v. United States,

249 F.2d 295 (5th Cir. 1957) ............................... 12

Lawson v. Dixon,

3 F.3d 743 (4th Cir. 1993) ................................... 14

State v. Campos,

309 P.3d 1160 (Utah 2013) .................................. 14

State v. Dunn,

850 P.2d 1201 (Utah 1993) .................................. 14

vi

United States v. Andrews,

77 M.J. 393 (C.A.A.F. 2018) ................................ 18

United States v. Beasley,

2 F.3d 1551 (11th Cir. 1993) ............................... 18

United States v. Condon

No. ACM 38765, 2017 CCA LEXIS 187

(A.F. Ct. Crim. App. Mar. 10, 2017).................... 14

United States v. Curran,

926 F.2d 59 (1st Cir. 1991) .................................. 19

United States v. Fletcher,

83 M.J. 282 (C.A.A.F. 2023) .........11, 12, 19, 21, 22

United States v. Modica,

663 F.2d 1173 (2d Cir. 1981) ............................... 22

United States v. Norwood,

81 M.J. 12 (C.A.A.F. 2021) ...................... 16, 22, 24

United States v. Radix Lab., Inc.,

963 F.2d 1034 (7th Cir. 1992) ............................. 19

United States v. Severson,

3 F3d 1005 (7th Cir. 1992) .................................. 18

United States v. Simtob,

901 F.2d 799 (9th Cir. 1990) ......................... 22, 23

United States v. Voorhees,

79 M.J. 5 (C.A.A.F. 2019) .............................. 18, 23

United States v. Wood,

40 C.M.R. 3, (C.M.A. 1969) ................................. 16

United States v. Young,

470 U.S. 1, 18 (1985) ........................................... 14

Statutes and Constitutional Provisions

U.S. CONST. amend. V. .......................................... 3, 18

vii

10 U.S.C. § 845 ............................................................ 8

28 U.S.C. § 1259 .......................................................... 2

Other Authorities

ABA Standards for Criminal Justice

(2d ed. 1980)......................................................... 17

1

INTRODUCTION

Senior Airman (SrA) Andrew P. Witt was convicted

of premeditated murder and attempted premeditated

murder. At the sentencing rehearing, the prosecutor

repeatedly asked the panel members to consider how

the sentence would reflect on them personally and

professionally. These arguments coerced the panel

members into rendering a more severe sentence based

on concerns that they would be adversely judged by

hypothetical future victims’ families, the United

States Air Force, and the public. The prosecutor

essentially told the members that they would be

accepting personal responsibility for any future victim

if they sentenced SrA Witt to anything less than

death. Defense counsel argued that the panel should

give SrA Witt a “second chance at life” by sentencing

him to confinement for life with the possibility of

parole. In effect, the prosecutor pressured the

members to impose a sentence based on fear,

apprehension, and feelings of guilt rather than on the

evidence presented.

The military judge gave no curative instruction.

And though defense counsel presented evidence in

mitigation and evidence of SrA Witt’s rehabilitative

potential, the panel—under significant pressure from

the prosecutor—sentenced SrA Witt to confinement

for life without the possibility of parole.

The Air Force Court of Criminal Appeals (AFCCA)

correctly concluded that the prosecutor’s arguments

were improper, but the court concluded there was no

prejudice.

Without

addressing

whether

the

prosecutor’s argument was improper, the Court of

Appeals for the Armed Forces (CAAF) affirmed based

on a lack of prejudice.

2

The weight of the mitigating evidence, combined

with the pervasiveness of the prosecutor’s

inflammatory arguments and the complete absence of

any curative measures, requires vacating the

sentence.

PETITION FOR A WRIT OF CERTIORARI

SrA Andrew P. Witt, United States Air Force,

respectfully petitions for a writ of certiorari to review

the decision of the Court of Appeals for the Armed

Forces.

OPINIONS BELOW

The June 5, 2023, opinion of the CAAF is reported

at 83 M.J. 282 and reproduced at pages 1a-20a of the

Appendix. The November 19, 2021, decision of the Air

Force Court of Criminal Appeals (AFCCA) after a

sentence rehearing is unreported. It is available at

2021 CCA LEXIS 625 and reproduced at pages 21a155a of the Appendix. The July 19, 2016, opinion of

the CAAF is reported at 75 M.J. 380 and reproduced

at pages 156a-166a of the Appendix. The June 30,

2014, decision of the AFCCA upon reconsideration is

reported at 73 M.J. 738 and reproduced at pages 167a408a of the Appendix. The August 9, 2013, decision of

the AFCCA is reported at 72 M.J. 727 and reproduced

at pages 409a-516a of the Appendix.

JURISDICTION

The CAAF issued its decision on June 5, 2023. On

August 29, 2023, the Chief Justice extended the time

in which to file a petition for certiorari to November 2,

2023. This Court has jurisdiction under 28 U.S.C.

§ 1259.

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides in pertinent part: “No person

shall be . . . deprived of life, liberty, or property,

without due process of law . . . .” U.S. CONST. amend.

V.

STATEMENT OF THE CASE

A. Background

SrA Witt confessed to killing SrA A.S. and his wife,

J.S., and to stabbing then-SrA J.K. CAAF.JA 493-95.1

SrA Witt was friends with the married couple, but

they had a falling out after he tried to kiss J.S.

CAAF.JA 487. After J.S. told SrA A.S. about the kiss,

SrA A.S. and his friend SrA J.K. called SrA Witt

multiple times. CAAF.JA 452-53, 464, 466, 487. SrA

A.S. threatened to inform SrA Witt’s leadership about

the attempted kiss (CAAF.JA 482), as well as an affair

that SrA Witt was purportedly having with an officer’s

wife. CAAF. JA 482.

After the phone calls, SrA Witt drove to SrA A.S.’s

home where SrA A.S., SrA J.K. and J.S. were located.

CAAF.JA 501, 503. A physical confrontation ensued.

CAAF.JA 501. SrA Witt stabbed SrA J.K., SrA A.S.,

and J.S., killing SrA A.S. and J.S. CAAF.JA 492-96.

In recalling what happened, SrA Witt described

how he “lost it” and was in a “dream-like” or “drunkenlike” state. CAAF.JA 498-99, 506. He further

maintained “it was all a blur.” CAAF.JA 498.

1 “CAAF.JA” refers to the joint appendix filed with the CAAF.

4

B. Evidence in Extenuation and Mitigation

During SrA Witt’s sentencing rehearing, the

military judge instructed the panel to consider

extenuating and mitigating factors. CAAF.JA 753-55.

Among them were mental health issues—affecting

both SrA Witt and his family—and a traumatic brain

injury SrA Witt suffered just four months prior to the

killings.

1. Family History of Mental Illness

The Defense introduced evidence that multiple

relatives had not only experienced significant mental

health problems, but many had been committed to

psychiatric facilities. CAAF.JA 119, 122, 599. As

summarized by the Defense’s mitigation expert, who

interviewed numerous relatives and reviewed

thousands of documents:

[T]here were five members of Airman Witt’s

family whose -- where mental health providers

made notes that there were paranoid features

or paranoia. Four of the relatives had

hallucinations. Three had psychosis or

psychotic episodes. And then five of them -when I say “suicide or suicidal,” there’s one

completed suicide, one family member that

committed suicide, there’s another person who

attempted suicide. And then three other folks

when they were in the psychiatric facility, there

were suicidal ideation was noted.

CAAF.JA 599-600. Among those who suffered from

mental health problems was SrA Witt’s maternal

grandfather, who was diagnosed as a paranoid

schizophrenic and spent considerable time in

psychiatric care. CAAF.JA 601-603; see also CAAF.JA

123-28, 129-219, 244-45. SrA Witt’s mother also

5

possessed “borderline and paranoid traits,” and was

admitted to the hospital for depression when SrA Witt

was about 14 years old. CAAF.JA 604, 606. Prior to

this, she had been homeschooling SrA Witt for several

years, which effectively meant that SrA Witt “was in

the home 24 hours a day with a mentally ill patient.”

CAAF.JA 605-606; see also CAAF.JA 634-35. By this

time, SrA Witt’s parents had long been divorced, but

he maintained contact with his father. CAAF.JA 608,

631. His father was similarly mentally disturbed

(CAAF.JA 630), having been rejected for military

service during the Vietnam War as a “mental case.”

CAAF.JA 607; see also CAAF.JA 629. He was later

diagnosed as bipolar with anxiety disorder, among

other issues. CAAF.JA 620, 630.

2. Family History of Substance Abuse

Substance abuse also featured prominently in

SrA Witt’s family, with the disease striking his

maternal grandmother (drugs), paternal uncle

(alcohol), half-brother (alcohol), and maternal cousin

(drugs and alcohol). CAAF.JA 611-12, 614-616, 62123, 625-27, 636-37. It was particularly acute in his

father—a long-suffering alcoholic and drug addict who

used crack cocaine during his son’s visits and even

smoked a crack pipe in front of him. CAAF.JA 608,

617-19, 632-33.

3. Motorcycle Accident and Head Injury

Around February 2004, SrA Witt crashed his

motorcycle. CAAF.JA 237, 639. A witness who

encountered SrA Witt immediately after the accident

described him as talking funny and not making sense.

CAAF.JA 238, 664-65. Another Airman who saw

SrA Witt later that day reported that SrA Witt was

acting strangely—talking slower than normal,

6

walking as if he was dizzy, and “seemed confused or

disoriented.” CAAF.JA 237.

Technical Sergeant (TSgt) M.M. dated SrA Witt.

CAAF.JA 235. Their relationship started around

October 2003, but she ended things shortly after his

motorcycle accident. CAAF.JA 235. According to

TSgt M.M., SrA Witt’s “behavior and personality

changed in significant ways.” CAAF.JA 235. He had

transformed from “sweet, kind, and affectionate” to

“aggressive, hostile, and angry.” CAAF.JA 235. He

started drinking more heavily, flirted openly with

other women, acted sexually aggressive, and often

behaved strangely—such as getting too dressed up for

certain occasions. CAAF.JA 235. TSgt M.M. also

observed SrA Witt experiencing what she called “his

‘weird zone,’ where he seemed to be acting under some

kind of influence.” CAAF.JA 235. SrA Witt told her

that “when he was in this state of mind he would see

the color red or blood in his mind’s eye.” CAAF.JA 235.

TSgt M.M. asserted that SrA Witt “was not the man

he had been earlier in [their] relationship,” and that

“[t]here is no doubt in [her] mind that SrA Witt’s

behavior started to change after his motorcycle

accident.” CAAF.JA 235.

R.G. also spent time with SrA Witt before and after

his motorcycle accident, and similarly reported a

change in his demeanor. R.G. described SrA Witt as “a

wonderful, genuine, friendly, nice person,” devoid of

malice or rudeness prior to the accident. CAAF.JA

641. Thereafter, however, “he was a different

Andrew.” CAAF.JA 641. R.G. had difficulty explaining

it, but the change was “very obvious.” CAAF.JA 64344.

7

The

Defense’s

forensic

psychiatrist,

Colonel (Col) S.M., reviewed SrA Witt’s family

medical history, transcripts from phone calls between

SrA Witt and others, previous evaluations by

government experts, SrA Witt’s medical records, the

extensive casefile from the original trial, and

numerous declarations from SrA Witt’s appeal.

CAAF.JA 647-52. Col S.M. also met with SrA Witt.

CAAF.JA 647. Based on this research, Col S.M.

diagnosed SrA Witt with schizotypal disorder,

moderate alcohol use disorder, and a mild

neurocognitive disorder from his traumatic brain

injury. CAAF.JA 650; see also CAAF.JA 220-34.

Col S.M. opined that these disorders were

interconnected with overlapping symptoms, and that

some conditions could aggravate others. CAAF.JA

653-54. Due to these conditions, Col S.M. determined

that SrA Witt experienced a brief psychotic episode on

the night of the murders, characterized by an inability

to rationally receive and respond to external realities.

CAAF.JA 654-56. Consequently, Col S.M. concluded

that “all three of those conditions contributed to

Andrew’s ability to rationally think and perceive and

resist the impulse to murder [SrA A.S.] and [J.S.].”

CAAF.JA 657-58.

4. Waiving

Rights,

Cooperating

with

Investigators, and Demonstrating Remorse

SrA Witt never personally blamed his mental

health, family, or other issues for his actions. He took

responsibility for his crimes. CAAF.JA 505-507, 586.

He waived his rights to a lawyer and to remain silent,

provided oral and written confessions to investigators,

and helped them recover evidence. CAAF.JA 505, 50810. He also cried after returning to SrA A.S.’s house

(CAAF.JA 660), “sobbed uncontrollably” upon seeing

8

pictures of the crime scene (CAAF.JA 239), and

repeatedly expressed remorse for what happened.

CAAF.JA 241-43, 507, 584, 588, 590, 660. SrA Witt

was precluded from pleading guilty because his courtmartial was eligible for the death penalty, so he

pleaded not guilty. See 10 U.S.C. § 845(b) (2000) (“A

plea of guilty by the accused may not be received to

any charge or specification alleging an offense for

which the death penalty may be adjudged.”).

C. Sentencing Argument

The prosecutor began his sentencing argument by

challenging the panel:

[W]hen you go back into the deliberation room

and you’re deciding on what your sentence will

be, I want to ask yourselves [sic] what will you

stand for. From E-6 to O-6, as an individual,

what will you stand for as an individual, as an

Airman? Where will you draw the line?

CAAF.JA 670-71. Throughout his argument, “[t]rial

counsel described the members’ obligations in notably

personal terms, such as when he asked the members,

‘From E-6 to O-6, where else in your career will you

have the opportunity to draw the line as an individual,

and as an Airman on what you will allow?’” CAAF.JA

699. The prosecutor further argued:

Members, make no mistake about it; your

sentence will send a message. It will send a

message about what you as an individual, and

what you as an Airman will accept. It will—it

will tell everyone where you draw the line, and

what you will stand for. It will.

CAAF.JA 751.

9

The prosecutor repeated this message more than

seventy times, while displaying PowerPoint slides

conveying the same. CAAF.JA 396, 398-99, 670-704.

“[T]rial counsel also essentially told the panel

members that they would be accepting personal

responsibility for any future victims of Appellant if

they failed to sentence him in accordance with the

Government’s wishes.” Pet.App. 16a. For example, the

prosecutor asked the members: “What risk will you

accept on another family’s behalf?” CAAF.JA 702.

“What risk will you accept on someone else’s behalf?”

CAAF.JA 699.

Defense objected twice during the prosecutor’s

argument. The first related to the prosecutor’s

comparison of SrA Witt’s prison conditions to

SrA J.K.’s life. CAAF.JA 703. The second objection

was to SrA Witt’s purported future dangerousness, in

response to the prosecutor’s query: “What risk will you

accept on someone else’s behalf?” Id. The military

judge overruled both objections. CAAF.JA 703-04.

Defense counsel addressed the prosecutor’s theme

at the beginning of his own argument, stating how the

members’ job was “not to draw a line” or “say what

[they] do or don’t stand for,” but “to make an

individual moral decision based on the facts before

them.” CAAF.JA 705. Defense counsel then

transitioned into the three sentencing options for

SrA Witt, explaining how confinement for life with the

possibility of parole could provide him a “second

chance at life.” CAAF.JA 706. Defense counsel next

focused on various mitigating and extenuating

circumstances, arguing they warranted preserving

SrA Witt’s life, but eventually returned to the

available sentencing options and emphasized how life

10

with

the

possibility

of

parole

was

a

“sentence . . . justified under the law.” CAAF.JA 749.

Defense counsel concluded by asking the panel for “[a]

verdict that lets [SrA Witt] serve his time in jail, and

offers him hope, and the possibility of redemption, and

the possibility of change that have [sic] been missing

for 14 years.” CAAF.JA 750.

D. The AFCCA Decision

Applying a plain error standard of review, the

AFCCA found error “in [the prosecutor] repeatedly

asking the members what their sentence would say

about them personally.” Pet.App. 129a. The AFCCA

concluded that the prosecutor erred by “specifically

plac[ing] on the members’ shoulders, both personally

and professionally, the weight of the victims’ families’

judgment.” Pet.App. 130a. In addition, the court

criticized the prosecutor for invoking the members’

“sense of professional military standards and

obligations.” Pet.App. 131a. It opined that this tactic

seemed designed to “have the members think less

about determining an appropriate sentence based

upon the evidence before them and more about

making a public statement about how they would have

their sense of personal and professional obligations be

judged by others.” Pet.App. 131a.

The AFCCA further found that “[t]rial counsel

compounded his error by repeatedly asking the

members how much risk they would personally accept

by virtue of the sentence they adjudged.” Pet.App.

130a. It reasoned that SrA Witt’s risk for future

misconduct was an “appropriate consideration” but

“the suggestion that the members would be personally

responsible for any such misconduct was not.”

Pet.App. 130a. The AFCCA then concluded that this

11

argument was improper as it “would lead observers to

question whether an accused was sentenced based

upon his or her actual offenses or upon the members’

desire to be free from blame.” Pet.App. 131a.

Despite these errors, the AFCCA held that there

was no prejudice. Pet.App. 133a. It focused on the

“brutal nature” of the offenses and the panel’s

unanimous decision to sentence SrA Witt to life

without the possibility of parole, which it said

demonstrated a “clear rejection” of the prosecutor’s

recommended death sentence. Pet.App. 132a.

E. The CAAF Decision

The majority did not address whether the

prosecutor’s arguments were improper and affirmed

the lower court’s decision. Pet.App. 6a. The CAAF

found that “the weight of the evidence supporting the

conviction [was] strong enough to establish a lack of

prejudice in and of itself.” Pet.App. 7a. The CAAF

explained that unanimously sentencing SrA Witt to

life without parole suggested that the members found

“the aggravating circumstances were substantially

outweighed by the extenuating and mitigating

circumstances.” Pet.App. 9a. The CAAF concluded,

“[I]t stands to reason that [the members] applied their

own critical analysis to this case given their rejection

of the death sentence despite [the prosecutor’s]

comments.” Pet.App. 9a.

Judge Hardy concurred with the conclusion that

the prosecutor’s sentencing argument did not

materially prejudice SrA Witt’s substantial rights.

Pet.App. 9a. But he disagreed with how the CAAF

reached its conclusion, explaining that the CAAF’s

“heavy reliance on the third Fletcher factor is

problematic.” Pet.App. 11a. Judge Hardy described

12

the CAAF’s application of the third Fletcher factor to

sentencing as the CAAF “asking whether the

adjudged sentence was appropriate for the committed

offense despite the improper argument,” which is

different from the question the CAAF claims to

answer—“whether [the court] is confident that

Appellant was sentenced based on the evidence

alone.” Pet.App. 12a.

In his dissent, Chief Judge Ohlson explained that

the prosecutor “engaged in flagrant and egregious

improper argument. The Chief Judge further

concluded that there is no “meaningful distinction”

between this case and CAAF precedent where the

court “held that it was reversible error for trial counsel

to ‘pressure[] the [panel] members to consider how

their fellow servicemembers would judge them and

the sentence they adjudged instead of the evidence at

hand.’” Pet.App. 19a.

REASONS FOR GRANTING THE PETITION

This Court has long emphasized that the federal

prosecutor “is the representative not of an ordinary

party to a controversy, but of a sovereignty whose

obligation to govern impartially is as compelling as its

obligation to govern at all; and whose interest,

therefore, in a criminal prosecution is not that it shall

win a case, but that justice shall be done.” Berger v.

United States, 295 U.S. 78, 88 (1935).

The prosecutor owes an obligation to the

Government to zealously advocate its position, but “he

must remember also that he is the representative of a

government dedicated to fairness and equal justice to

all and, in this respect, he owes a heavy obligation to

the accused.” Handford v. United States, 249 F.2d 295,

296 (5th Cir. 1957). A criminal prosecutor “may

13

prosecute with earnestness and vigor—indeed, he

should do so. But, while he may strike hard blows, he

is not at liberty to strike foul ones.” Berger, 295 U.S.

at 88.

It impossible to have confidence in the outcome of

this sentencing proceeding. The prosecutorial

misconduct in this case was antithetical to the fair

trial rights that prosecutors must uphold. The

repeated and egregious improper arguments

pressured panel members to consider things other

than the evidence when sentencing SrA Witt. The

members were bullied—bullied into thinking they

would be held personally responsible by a future

victim’s family, bullied into thinking the public would

judge them, and bullied into worrying about

retaliation for the sentence they imposed on SrA Witt.

SrA Witt deserves to be sentenced by an impartial

panel of those who have not been beaten into

submission by a bullying prosecutor.

A. The Prosecutor’s Improper Sentencing

Arguments Amounted to Prosecutorial

Misconduct.

A prosecutor’s improper argument amounts to

prosecutorial misconduct when the argument

“overstep[s] the bounds of that propriety and fairness

which should characterize the conduct of such an

officer in the prosecution of a criminal offense.”

Berger, 295 U.S. at 84. The prosecutor here far

exceeded these bounds when urged the members to

consider how the sentence would reflect on them

personally and professionally and suggested that the

members would be personally responsible for any

future harm caused by SrA Witt if they did not

sentence him to death. It was improper to pressure the

14

members to consider something other than the

evidence when sentencing SrA Witt.2

1. The prosecutor’s repeated urging that the panel

members consider how the sentence would

reflect on them personally and professionally

was improper.

The prosecutor fervently and repeatedly equated

the members’ sentencing responsibilities to their

duties as servicemembers, arguing that their sentence

would send a message regarding who they were as

Airmen and what they would be willing to stand for in

the Air Force. CAAF.JA 670-71, 673, 697, 699. The

prosecutor drilled into the members that they had a

moral responsibility as Airmen to impose a death

sentence and that, if they failed to do so, there would

be no line an accused could cross that would warrant

capital punishment. This argument was plainly

improper. It relied on a combination of fear, outrage,

and the members’ sense of duty rather than

2 See, e.g., United States v. Young, 470 U.S. 1, 18 (1985) (finding

error in telling the jury to “do its job”); United States v. Condon,

No. ACM 38765, 2017 CCA LEXIS 187, at *53 (A.F. Ct. Crim.

App. Mar. 10, 2017), aff’d, 77 M.J. 244 (C.A.A.F. 2018) (finding it

improper for a prosecutor to “suggest the panel base its decision

on the impact of the verdict on society, a victim, and the criminal

justice system as a whole, rather than the facts of the case”);

Brown v. State, 680 S.E.2d 909, 912-15 (S.C. 2009) (finding error

in asking the jury to “speak up” for the child victim); State v.

Campos, 309 P.3d 1160, 1174 (Utah 2013) (quoting State v.

Dunn, 850 P.2d 1201, 1224 (Utah 1993)) (“‘[R]eference to the

jury’s societal obligation’ is inappropriate when it suggests that

the jury base its decision on the impact of the verdict on society

and the criminal justice system rather than the facts of the

case.”); Cardona v. State, 185 So. 3d 514, 522 (Fla. 2016) (“The

argument that the case is about ‘justice’ for the victim or the

victim’s family has been uniformly condemned.”).

15

consideration of the evidence and accepted sentencing

philosophies.

A court-martial members panel is entrusted to

represent the community at large in arriving at an

appropriate sentence for an accused. Members should

not be made to believe that they will fail to fulfill their

duties as Airmen if they do not give a particular

sentence. The prosecutor went far beyond the bounds

of appropriate argument when he suggested that a

sentence other than death would destroy Air Force

culture and potentially encourage future violence by

failing to draw a line for other would-be offenders. Cf.

Belford v. Collins, 567 F.3d 225, 234 (6th Cir. 2009)

(concluding that a prosecutor must not “fan the flames

of the jurors’ fears by predicting that if they do not

convict . . . some . . . calamity will consume their

community”) (citation omitted).

Equally problematic was the prosecutor’s refrain of

“What will you stand for?” and “Where will you draw

the line?”, which he reiterated more than seventy times

throughout his argument. CAAF.JA 670-704. Trial

The prosecutor placed these repeated catchphrases in

the context of the military community, and he directly

tied this line of argument to Air Force culture. The

prosecutor confirmed this connection when he argued,

“From E-6 to O-6, where else in your career will you

have the opportunity to draw the line as an individual,

and as an Airman on what you will allow?” CAAF.JA

699. In the final paragraph of the prosecutor’s

argument, he again reiterated this theme, arguing

“What will you stand for? Where will you draw the

line? Your sentence will say it. It will tell these

families, it will tell where you stand as an individual,

it will tell where you stand as an Airman.” CAAF.JA

704.

16

This constant exhortation pressured the members

to base their sentencing decision on how others would

view them, and how their sentence would tell the

victims’ families, the Air Force, and the public where

they stand. This theme is patently similar to the

prosecutor’s improper argument in United States v.

Norwood, coercing the members to impose the

prosecutor’s requested punishment out of concern for

how they would be judged for the sentence they

imposed. 81 M.J. 12, 19 (C.A.A.F. 2021) (“[W]hen you

all return to your normal duties . . . . [A]nd someone

asks you . . . . ‘Wow, what did [Appellant] get for that?’

Do you really want your answer to be ‘nothing at

all’?”). The CAAF found the argument in Norwood

amounted to “an inflammatory hypothetical scenario

with no basis in evidence” and was plain error as the

prosecutor “threaten[ed] the court members with the

specter of contempt or ostracism if they reject[ed]

[trial counsel’s] request.” Id. at 21 (quoting United

States v. Wood, 40 C.M.R. 3, 9 (C.M.A. 1969)).

The prosecutor’s repeated argument that the

members’ sentence would be subject to the judgment

of the victims’ families, their fellow Air Force

members, and the broader community merely served

to inflame the emotions of the members. Similar to

Norwood, the argument that the members’ sentence

would send a message about “where they stood” and

“where they drew the line” threatened the court

members with contempt or ostracism. This is

especially true in the context of “highly visible” and

“intensely scrutinized capital proceedings.” CAAF.JA

067. These arguments were improper.

17

2. The prosecutor’s suggestion that the panel

members would be responsible for any

future harm committed by SrA Witt was

improper.

The prosecutor’s arguments that the panel

members would be responsible for any future harm

committed by SrA Witt represent plain error. While it

may have been appropriate for the members to

consider SrA Witt’s risk of future misconduct, it was

improper for the prosecutor to tell the members that

unless they returned a death sentence, they would be

responsible for any possible future harm. This

argument does not fit any proper sentencing

philosophy such as specific or general deterrence.

Instead, the prosecutor’s suggestion amounted to an

“inflammatory hypothetical scenario with no basis in

evidence.” Id. at 21.

“[A] prosecutor should not use arguments

calculated to inflame the passions or prejudices of the

jury.” Darden v. Wainwright, 477 U.S. 168, 192 (1986)

(Blackmun, J., dissenting) (quoting ABA Standards

for Criminal Justice 3-5.8(c) (2d ed. 1980)) (citing

Berger, 295 U.S. at 88) (assessing whether

prosecutorial misconduct deprived defendant of a fair

trial).

In Bates v. Bell, prosecutors repeatedly told the

jury that failure to sentence the appellant to death

would make them accomplices to the appellant’s

future crimes. 402 F.3d 635, 642-44 (6th Cir. 2005).

The Sixth Circuit found the prosecutors’ arguments to

be “highly improper,” inciting the passions and

prejudices of the jury. Id. at 641.

Here, rather than focusing on the actual offenses

and any aggravating or mitigating factors, the

18

prosecutor infused his sentencing argument with the

threat that the members would be personally

responsible for SrA Witt’s future wrongdoing. This

implication is more damaging than the implication

that the CAAF found improper in Frey given the

nature of the offenses in SrA Witt’s case—

premeditated murder and attempted premeditated

murder. It is unlikely the members sentenced

SrA Witt based on the evidence given the prosecutor’s

repeated insinuation that the members would be

blamed for SrA Witt’s future misconduct. As the

AFCCA properly concluded: “While Appellant’s future

risk of misconduct . . . was an appropriate

consideration in fashioning [SrA Witt’s] sentence, the

suggestion that the members would be personally

responsible for any such misconduct was not.”

Pet.App. 130a.

B. The Prosecutor’s Misconduct Materially

Prejudiced SrA Witt’s Right to a Fair

Sentencing Hearing Under the Due

Process Clause of the Fifth Amendment.

The prosecutor’s errors were varied and plentiful.

Although the military judge had a “sua sponte duty”

to ensure SrA Witt received a fair sentencing hearing,

he allowed the prosecutor’s improper argument and

failed to provide any curative instructions. United

States v. Voorhees, 79 M.J. 5, 14 (C.A.A.F. 2019)

(quoting United States v. Andrews, 77 M.J. 393, 403

(C.A.A.F. 2018)). See also United States v. Beasley, 2

F.3d 1551 (11th Cir. 1993) (finding the impact of the

prosecutor’s improper comments on the jury “was

neutralized to some extent by the district court’s

curative instructions”); United States v. Severson, 3

F3d 1005, 1013 (7th Cir. 1992) (citing United States v.

Radix Lab., Inc., 963 F.2d 1034, 1039 (7th Cir. 1992)

19

(“Due process also requires a defendant receive a fair

sentencing hearing.); United States v. Curran, 926

F.2d 59 (1st Cir. 1991) (“It is well settled . . . that a

defendant has a due process right to be sentenced

upon information which is not false or materially

incorrect.”) SrA Witt was denied due process.

The CAAF relied on United States v. Fletcher, 83

M.J. 282 (C.A.A.F. 2023), which identified three

factors to determine the impact of prosecutorial

misconduct: (1) the severity of the misconduct, (2) the

measures adopted to cure the misconduct, and (3) the

weight of the evidence supporting the conviction.

While these factors align with those relied on in

civilian federal courts,3 the CAAF’s application is

flawed.

The CAAF based the entirety of its decision on the

weight of the evidence supporting conviction, finding

the evidence “strong enough to establish a lack of

prejudice in and of itself.” Pet.App. 7a. But when

discussing the strength of the evidence, particularly

in a death penalty context, the court “must distinguish

3 See, e.g., Lawson v. Dixon, 3 F.3d 743, 755 (4th Cir. 1993) (citing

Darden v. Wainwright, 477 U.S. 168, 182 (1986); Donnelly v. De

Christoforo, 416 U.S. 637, 647 (1974)) (“In determining whether

a prosecutor’s comments denied the defendant fundamental

fairness, the Supreme Court has emphasized the necessity of

looking to the nature of the comments, the nature and quantum

of the evidence before the jury, the arguments of opposing

counsel, the judge’s charge, and whether the errors were isolated

or repeated.”); Bates v. Bell, 402 F.3d 635, 641 (6th Cir. 2005)

(considering four factors to determine if prosecutorial misconduct

warrants relief—"(1) the likelihood that the remarks of the

prosecutor tended to mislead the jury or prejudice the defendant;

(2) whether the remarks were isolated or extensive; (3) whether

the remarks were deliberately or accidentally made; and (4) the

total strength of the evidence against the defendant.”).

20

between evidence of the defendant’s guilt of the

underlying criminal charge and evidence of any

attendant

aggravating

and

mitigating

circumstances.” Bates, 401 F.3d at 648. The conviction

for the underlying offense “was a foregone conclusion

in the sentencing hearing;” the focus must be on the

appropriate punishment. Id. at 648. “Overwhelming

evidence of guilt can oftentimes be sufficient to

sustain a conviction despite some prosecutorial

misconduct, but overwhelming evidence of guilt does

not immunize the sentencing phase evaluation of

aggravating and mitigating factors.” Id. at 648-49.

“Prosecutorial misconduct in the sentencing hearing

can operate to preclude the jury’s proper consideration

of mitigation.” Bates, 402 F.3d at 649. “When a

prosecutor’s actions are so egregious what they

effectively ‘foreclose the jury’s consideration of . . .

mitigating evidence,’ the jury is unable to make a fair,

individualized determination as required by the

Eighth Amendment.” Bates, 402 F.3d at 649 (citing

DePew v. Anderson, 311 F3d 742, 748 (6th Cir. 2003)

(quoting Buchanan v. Angelone, 522 U.S. 269, 277

(1998)).

The CAAF ignored the significant sentencing

evidence presented by the Defense. The Defense’s

sentencing case included witnesses who discussed

SrA Witt’s rehabilitative potential. For example, a

licensed clinical social worker with more than 30

years of experience with inmates at the Fort

Leavenworth Disciplinary Barracks testified that

SrA Witt had progressed well in various treatment

programs while in confinement and had excellent

rehabilitation potential. CAAF.JA 580, 583, 585. And

while he did not equate this potential to a

reintegration into society, he nevertheless discussed

21

how rehabilitative programs generally ensure

someone “can be productive once they leave the

institution.” CAAF.JA 582. Other witnesses

confirmed that participation in rehabilitative and

educational programs assist with parole and clemency

submissions (CAAF.JA 591, 596), and one of

SrA Witt’s instructors at Leavenworth testified that

she did not view him as a threat. CAAF.JA 594.

There were a host of mitigating factors supporting

SrA Witt’s opportunity for parole. The military judge

specifically instructed the members to consider the 26

mitigating circumstances, including evidence that

SrA Witt had no prior criminal history or significant

violent incidents prior to the charged offense, suffered

from schizotypal personality disorder, suffered a

traumatic brain injury four months prior to the

charged misconduct, and committed the murders

during a brief psychotic episode. CAAF.JA 753-55.

Even absent these mitigating circumstances, there

was no evidence adduced at trial indicating SrA Witt’s

crimes were truly representative of who he was as a

person, or that he was so evil or irredeemable that he

should be afforded no opportunity for parole. The

weight of the evidence does not support the sentence

of life without the possibility of parole.

The CAAF further failed to consider the

significance of the prosecutor repeating his improper

arguments throughout his entire sentencing

argument. See Donnelly v. DeChristoforo, 416 U.S.

637, 647 (1974) (explaining that a prosecutor’s

“consistent and repeated misrepresentation” of

evidence “may profoundly impress a jury and may

have a significant impact on the jury’s deliberations”);

Fletcher, 62 M.J. at 184 (considering the “raw

numbers—the instances of misconduct as compared to

22

the overall length of the argument”); United States v.

Modica, 663 F.2d 1173, 1181 (2d Cir. 1981) (finding

that while a prosecutor’s occasional use of personal

pronouns may be fair argument, “their constant use

runs the risk that the jury may think the issue is

whether the prosecutor is truthful, instead of whether

his evidence is to be believed”). The prosecutor

repeated his challenge of “where will you draw the

line” and “what will you stand for” more than seventy

times in his sentencing argument. CAAF.JA 670-704.

And he reiterated his enquiry of “what risk will you

accept” eight times. CAAF.JA at 673, 675, 676, 699,

702, 703. He also prominently displayed these

messages in his PowerPoint slides. CAAF.JA 396, 398,

399.

Here, as in Fletcher, the prosecutor’s improper

comments were not isolated but permeated his entire

sentencing argument. 62 M.J. at 184. Not only was the

content of the prosecutor’s improper arguments

similar to the “inflammatory hypothetical scenario

with no basis in evidence” in Norwood, the arguments

here were far more pervasive than the singular

argument that the CAAF found prejudicial, thus

demonstrating substantial harm to SrA Witt. 81 M.J.

at 21.

“Prompt and effective action by the [judge] may

neutralize the damage by admonition to counsel or by

appropriate curative actions to the [panel].” United

States v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990)

(emphasis added). But the military judge did nothing

to cure the harm done by the prosecutor’s improper

arguments. Although defense counsel objected to the

prosecutor’s inflammatory argument about SrA Witt’s

purported “future risk,” the military judge overruled

the objection and took no action to cure the prejudice.

23

CAAF.JA 703-04. The military judge’s ruling signaled

to the members that the prosecutor’s argument was

appropriate for the members to consider.

As to the prosecutor’s ubiquitous coercion in the

form of arguing “what will you stand for” and “where

will you draw the line,” while there was no objection

from defense counsel, the military judge had a “sua

sponte duty to [e]nsure that an accused receives a fair

trial.” Norwood, 81 M.J. at 21 (quoting Voorhees, 79

M.J. at 14-15) (alterations in original). The military

judge failed to fulfill that duty, and provided only the

standard sentencing instructions regarding argument

from counsel:

During

argument,

trial

counsel

may

recommend that you consider a specific

sentence in this case. You are advised that the

arguments of the trial counsel and his or her

recommendations are only his or her individual

suggestions and may not be considered as the

recommendation or opinion of anyone other

than such counsel.

CAAF.JA 670. This standard instruction failed to

“convey[] a sufficient sense of judicial disapproval of

both content and circumstances needed to dispel the

harm in the core of the prosecutor’s statements.”

Simtob, 901 F.2d at 806 (finding the trial judge’s

generalized comments addressing arguments he

found improper were insufficient to cure the harm).

The military judge failed to provide any curative

instructions addressing the prosecutor’s improper

arguments. This failure, likely detrimental in a

typical case, was catastrophic in SrA Witt’s case, given

that it occurred during a capitally-referred sentencing

rehearing when SrA Witt’s very life was on the line.

24

Additionally, after more than four hours of total

argument from the prosecutor and defense counsel,

the military judge did not repeat the standard

sentencing instructions or provide any tailored

guidance to the members to reiterate that their

sentence should be based solely on the evidence and

his instructions. The military judge’s silence ensured

the members would deliberate on their sentence, all

the while considering: (1) what their sentence would

say about them personally and professionally, (2) how

others would view them for the sentence they

imposed, and (3) their alleged responsibility for any

potential future harm committed by SrA Witt.

Therefore “there was a total lack of curative measures

to redress this misconduct,” and SrA Witt was

prejudiced by the prosecutor’s improper arguments.

Norwood, 81 M.J. at 21.

SrA Witt’s crimes resulted in tragic consequences.

Defense counsel did not, and SrA Witt does not now,

contend that his crimes did not warrant a significant

sentence. But a life sentence with the possibility of

parole is a serious punishment—a fact notably and

readily acknowledged by each member of the panel.

CAAF.JA 420, 422, 424, 426, 428, 430, 432, 434, 436,

438, 440, 442. Because the panel uniformly possessed

such views, they certainly should have considered this

option—an option that was consistently undermined

by the prosecutor’s improper argument.

The panel had a range of options for sentencing,

and there were many variables that played into their

sentencing decision, not least of which were the

contrasting alleged aggravating and mitigating

factors. While this may make it difficult to weigh the

strengths of the competing sentencing arguments in

this case, the severity of the prosecutor’s misconduct

25

and lack of any measures to cure these pervasive

errors tipped the scales to the detriment of SrA Witt.

SrA Witt was denied his right to a fair sentencing

proceeding. He was denied due process.

As Chief Judge Ohlsen explained in his dissent,

“Even in a case such as this one where the offenses are

so heinous and the outcome of the sentencing

proceeding is seemingly so obvious, the fundamental

fairness of the court-martial process matters. Deeply.”

To find no prejudice when the prosecutor employed

“flagrant and noxious tactics . . . bodes ill for how trial

counsel will think they can conduct themselves in

future sentencing proceedings.” Pet.App. 20a.

CONCLUSION

This Court should grant the petition for certiorari.

Respectfully submitted,

HEATHER M. CAINE

Counsel of Record

MEGAN P. MARINOS

United States Air Force

Appellate Defense Division

1500 West Perimeter Road

Suite 1100

Joint Base Andrews, MD 20762

(240) 612-4770

heather.caine.1@us.af.mil

Counsel for Petitioner

November 2, 2023