THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Wednesday, August 17, 1994 TAG: 9408170425
SECTION: LOCAL PAGE: B01 EDITION: FINAL
SOURCE: By KERRY DEROCHI, STAFF WRITER
LENGTH: Long : 144 lines
For seven years, Marine Lance Cpl. Ronnie Curtis has lived in the basement of the Fort Leavenworth prison in Kansas, the longest surviving member of the military's death row.
As his case slowly lumbers through its appeals, he waits in a row of rectangular cells, along with five other servicemen sentenced to die.
Curtis, 28, is nearing the day he'll be walked to a cross-shaped gurney and given an injection that will kill him.
If all goes as scheduled, he will be the first service member to be executed by the military in more than three decades.
For that reason, Curtis has drawn the attention of civil rights activists and constitutional lawyers across the country.
His case is one of four pending before the Court of Military Appeals - the country's highest military court - challenging how the service branches conduct their trials and arrive at their verdicts of execution.
Any of the cases could open the door for a U.S. Supreme Court review of the military statutes on capital punishment.
``Up to this point, the courts have said we have an interest in maintaining the military services and supporting them is very important,'' said Virginia Beach attorney Robert B. Rae, a former Navy lawyer.
``I don't see that happening in a death penalty case. The desire is to let the military rule their own with respect to discipline. But pulling the plug on somebody makes a big difference.''
The controversy over the military's death penalty stretched this week to Hampton Roads, where Lt. Cmdr. Michael Fricke, a Navy supply officer, is being court-martialed on charges of hiring a hit man to kill his wife.
Fricke's attorneys have introduced a series of motions challenging the legality of the death penalty. The motions were denied by the trial judge but will be raised on appeal, if there is a conviction.
The Fricke case is being monitored by the death row attorneys. If Fricke is sentenced to die, he would be the first Navy man and the only officer sent to death row since 1984.
Lawyers representing the military death row inmates - three from the Army, two Marines and an Air Force airman - have attacked the death penalty on all fronts, from the sizes of the jury panels that can decide death, as few as five, to the experience of the attorneys assigned to the defense.
But the broadest and perhaps strongest challenge lies in what has been the core of the military justice system - the convening authority.
The Uniform Code of Military Justice has granted wide-ranging power to this central authority, usually the flag officer in the accused's chain of command.
This person has the final say on whether the accused is brought to trial. He rules on defense requests such as money for an investigator or a psychiatrist.
More important, this authority also picks the pool of officers or enlisted men from which attorneys select a jury panel.
This system, used for all courts-martial, has been upheld by the courts when applied to non-capital crimes. The question is whether it will be upheld in capital cases, which traditionally are held to a much higher standard.
``Is it acceptable under the Constitution for the prosecutor to handpick the jury from among members of the prosecutor's own staff?'' asked Kevin J. Barry, a retired Coast Guard lawyer who practices military law in Chantilly, Va.
``There are some, I guess, who would argue it is suspect even in non-capital cases,'' Barry said. ``Why would it be different in capital cases? Because death is different. A lot of rules which are acceptable in non-capital cases just don't get the same deference in a death case.''
But military officials contacted regarding these legal challenges said they believed the system to be a fair one that ensures the panel members are of a good quality, based on experience, education and length of service. Though they would not use their names, citing the pending litigation, they said they were confident the military system would pass constitutional muster.
``Would you rather have your case decided by an unemployed laborer or a college-educated, 25-year veteran?'' asked one official.
Carolyn Dock, whose son, Todd, was on the military death row until 1989 when he received a second trial and a life sentence, is convinced the system needs to be changed. The founder of a grass-roots movement opposed to the military death penalty, she has lobbied Congress and worked with the death row lawyers.
``The age-old philosophy, which still is a big hangover in the military, is if the old man charges him then the old man thinks he's guilty,'' said Dock, who lives in Frederick, Md. ``It takes a very, very brave jury to come back with anything less.''
Dock also questions the experience of military lawyers assigned to handle capital punishment cases.
Her son was a 19-year-old soldier stationed in Germany when he was accused of killing a taxi driver. His attorney had never handled a death row case, Dock said, and the assistant defense attorney had just graduated from law school.
The trial took less than 22 hours.
``The reason most of these guys get the death penalty in the first place is they did not have death-penalty-qualified lawyers,'' Dock said. ``They had inexperienced lawyers who did not know what on earth they were doing.''
Issues such as ineffective counsel are a cornerstone of the appeals in the Curtis case and the other three. As of now, the military does not require attorneys who handle capital punishment trials to have experience in death penalty cases, but the issue is under review.
Concerns over ineffective counsel alone are not seen as strong enough to wipe out the military death penalty. But the issues taken together could force the court to undertake a wide-ranging review of how the military applies it.
``I think they are going to have to change it,'' said Rae, the local lawyer. ``I do not think the court will approve the military system as it is. I wouldn't.
``I just don't think the rules and the procedures are adequate when the ante is up to costing somebody their life. There's just too many things that could go wrong.'' ILLUSTRATION: Photo
Marine Lance Cpl. Ronnie Curtis, 28, faces execution for murder
unless he wins his appeal.
FINAL ASSIGNMENT
Here are the six men who have been sent to the military's death
row at Leavenworth, Kansas.
Army Corporal Ronald A. Gray, 29, arrived in April 1988.
Army Sgt. James T. Murphy, 30, arrived in February 1988. Convicted
of killing his wife and drowning their two children.
Army Pfc. Dwight J. Loving, 26, arrived in April 1989. Convicted of
killing two cab drivers.
Marine Lance Cpl. Ronnie A. Curtis, 28, arrived in November 1987.
Convicted of stabbing a Marine lieutenant and his wife.
Marine Sgt. Joseph L. Thomas, 34, arrived in April 1989. Convicted
of beating his wife with a tire iron and faking her death in a
traffic accident to collect insurance money.
Air Force senior airman Jose Simoy, 31, arrived in July 1992.
Awaiting transfer to death row: Marine lance corporals Kenneth
Parker and Wade Walker, sentenced to death for killing another
Marine in Camp Lejeune, N.C.
KEYWORDS: MILITARY DEATH PENALTY CAPITAL PUNISHMENT
COURT OF MILITARY APPEALS
by CNB