United States v. Murphy

delivered the opinion of the Court.

Appellant, Sergeant (SGT) James T. Murphy, stands convicted of three specifications of premeditated murder, in violation of Article 118, Uniform Code of Military Justice, 10 USC § 918, and single specifications of larceny, bigamy, and false swearing, in violation of Articles 121 and 134, UCMJ, 10 USC §§ 921 and 934, respectively. He was sentenced by a general court-martial to death. The Court of Military Review (now the Court of Criminal Appeals) affirmed his convictions and sentence to death. 36 MJ 1137 (1993). His appeal is mandated by Article 67(a)(1), UCMJ, 10 USC § 867(a)(l)(1994).

Appellant has raised numerous issues in his appeal, many of which are classic appellate issues relating to the trial, the jurisdiction of the court-martial, evidentiary rulings, discovery questions, and the like. However, interspersed among these are numerous collateral attacks on his conviction, primarily based upon his claims of ineffective assistance of counsel. See Appendix for a complete list of the issues raised by appellant.

Upon careful consideration of appellant’s claims, we agree that he received ineffective assistance of counsel as to his sentencing case. Accordingly, we set aside the decision of the Court of Military Review and return the record to the Judge Advocate General of the Army for further action consistent with the decretal paragraph of this opinion.

Unlike the practice in the United States Courts of Appeals and District Courts, neither the UCMJ nor the Manual for Courts-Martial, United States, 1984, provides procedures for collateral, post-conviction attacks on guilty verdicts. See 28 USC § 2255, et seq. Nevertheless, we have relied upon a variety of procedures to ensure that a military accused’s rights are fully protected. See, e.g., United States v. Henry, 42 MJ 231, 238 (1995) (remanded to Court of Criminal Appeals for consideration of affidavits of respective parties); United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967) (eviden-*6tiary hearing). In this case, we have elected to consider not only the record of trial, but also numerous affidavits filed subsequent to the trial in order to determine if appellant has shown good cause for relief to be granted. Arts. 67 and 59(a), UCMJ, 10 USC §§ 867 and 859(a), respectively. In so doing, we have carefully considered all of the issues raised by appellant before the Court. However, we will discuss only two general areas of concern: one of these, in personam jurisdiction of the court-martial to try him, by its very nature must be resolved at the threshold; the other, in our view, is dispositive of his appeal.

First, we will consider whether there was jurisdiction, under principles of international law, to try appellant in Germany, by United States General Court-Martial, for the murder of his former wife and former stepson, who were German citizens and were not his “dependents” at the time of the homicide. Second, we will consider whether appellant is entitled to a new trial on the ground that he did not receive effective assistance of counsel.

The Facts

Petra Murphy, a citizen and resident of Germany, had been married to appellant. She had a 5-year-old son, Tim, before she married appellant, and she had a second son, James, Jr., by appellant. During the months prior to the murders, she and appellant had an ongoing, acrimonious divorce proceeding pending in the German courts. In June 1987, appellant married Beate, another German citizen, although he had not yet divorced Petra. In July 1987, appellant visited North Carolina, where he obtained a divorce from Petra on the grounds of a 1-year separation. In August 1987, appellant received military orders requiring him to transfer to Redstone Arsenal, Alabama.

Sometime between August 16, when Petra was last seen alive by a fellow church member, and August 20, when appellant left Germany, appellant went to Petra’s apartment. There, according to his confessions, he killed her by smashing in her head with a hammer. He also admitted that he killed Tim and James, Jr.

The bodies were discovered on August 23, when Petra’s pastor, Chief Warrant Officer Two Smith, tried to ascertain why she had missed several church activities. Smith went to her apartment, where he encountered an unusual odor. He reported his findings to the German police. They investigated and discovered the bodies of the three victims.

This discovery precipitated an investigation by both the German authorities and the U.S. Army Criminal Investigation Command (CID). On August 27, 1987, appellant gave the first of several confessions to the authorities. Ultimately, he gave a written statement to the CID, in which he admitted that he had killed his former wife and the two children.

Appellant was taken into custody at Red-stone Arsenal and was returned to Germany, where he was placed in pretrial confinement by the U.S. Army in the Mannheim Confinement Facility, Germany. While there, he also confessed his guilt to two fellow inmates, and he made incriminating statements to Sergeant First Class James Marek.

The Jurisdictional Questions

The Constitution of Germany prohibits imposition of the death penalty. From that vantage point, appellant now asserts that he was “100 percent” in favor of having the German Government exercise jurisdiction over the offenses in question. His basic premise is that primary jurisdiction over the homicides of his former wife and her son was with the German Government, and that the German Government would have exercised jurisdiction over this case had the German authorities realized they had primary jurisdiction. See Art. VII.3, North Atlantic Treaty Organization Status of Forces Agreement (NATO SOFA), 4 UST 1800, as applicable to Germany effective July 1, 1963, 14 UST 531. More specifically, his attack is three-fold.

First, he asserts that, by operation of certain laws and regulations, he was denied effective assistance of counsel in presenting his views to the German authorities. Specifically, he claims that his detailed defense *7counsel were prohibited by law, the Logan Act, 18 USC § 953 (1982), and by military regulation, U.S. Army Europe Regulation 550-56, from actively representing him in the negotiations with the local German prosecutors concerning the question of jurisdiction.

Second, he contends that the German prosecutors were acting under a false belief that the United States had primary jurisdiction over the case under the existing NATO SOFA, and he argues that American authorities had either mistakenly or purposely informed the German prosecutor that all of the victims in the case were “dependents” within the meaning of the treaty when, in fact, they were not. If this is the case, argues appellant, jurisdiction over him was acquired in contravention of a treaty, the NATO SOFA. Relying on the distinctions made by the Supreme Court in two landmark cases, Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886), and United States v. Rauscher, 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425 (1886), appellant argues that, if he is correct, then the United States was without jurisdiction to try him.

Third, appellant argues that he was clearly prejudiced. In this regard, appellant contends that a letter from the German Minister of Justice to the Attorney General of the United States clearly shows that German authorities would have exercised jurisdiction if they had not been mistaken about the true facts.

Government counsel counter these arguments in several ways. They assert that: (a) appellant has no standing to raise the issue; (b) appellant waived any claim for relief because he did not object to the trial prior to completion of the court-martial; and (e) in any event, to the extent that any claim for relief must be based upon Government misconduct, the United States was free of any wrongdoing here.

We resolve all of these claims against appellant. We agree with the Army Court of Military Review that appellant has no standing to object to the process. RCM 201(d)(3), Manual, supra, as amended, provides:

Where an act or omission is subject to trial by court-martial and by one or more civil tribunals, foreign or domestic, the determination which nation, state, or agency will exercise jurisdiction is a matter for the nations, states, and agencies concerned, and is not a right of the suspect or accused.

This provision is based upon principles of sovereignty long recognized by the Supreme Court. See Ponzi v. Fessenden, 258 U.S. 254, 260, 42 S.Ct. 309, 66 L.Ed. 607 (1922), which states:

One accused of crime has a right to a full and fair trial according to the law of the government whose sovereignty he is alleged to have offended, but he has no more than that____ He may not complain if one sovereignty waives its strict right to exclusive custody of him for vindication of its laws in order that the other may also subject him to conviction of crime against it.

See also Wilson v. Girard, 354 U.S. 524, 77 S.Ct. 1409, 1 L.Ed.2d 1544 (1957).

Assuming, however, that appellant has standing to complain about the exercise of jurisdiction over him by the U.S. Army, he nevertheless loses. The Supreme Court in Solorio v. United States, 483 U.S. 435, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987), held that the test for whether a military court-martial has jurisdiction to try an accused is the military status of the accused. But cf. Loving v. United States, 517 U.S. 748, 774, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996) (Stevens, J., concurring); compare with Relford v. Commandant, U.S. Disciplinary Barracks, Ft. Leavenworth, 401 U.S. 355, 365, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971) (query whether appellant satisfies all twelve factors to defeat jurisdiction in military court-martial).

It is uncontested that, at all times pertinent to this case, appellant was a member of the U.S. Army and subject to the jurisdiction of the court-martial. Art. 2, UCMJ, 10 USC § 802. Furthermore, he was taken into custody in the United States and was never released to the custody and control of Germany. Accordingly, even if the conduct of United States military authorities in Germany misled German authorities into a decision *8not to seek the return of appellant to the custody of Germany for prosecution, appellant was, nevertheless, lawfully subject to the jurisdiction of the court-martial. In person-am jurisdiction over him existed because of his status as a soldier in the Army, not as a result of his person being turned over to the United States by a foreign government pursuant to an extradition treaty. Therefore, his reliance on United States v. Rauscher is misplaced.

We need not decide whether the Logan Act or the U.S. Army Europe Regulation can indeed prevent a defense counsel from communicating with German prosecutors. Nor do we resolve the issue by holding that appellant waived his right to contest jurisdiction. That merely raises other questions as to the competence of his attorneys, which we discuss next.

The Claims of Ineffective Assistance of Counsel

Appellant makes a broad-based attack upon the performance of his trial defense counsel. In order to evaluate properly appellant’s multiple claims, it is first necessary for us to put the case into perspective. Thus, we must carefully review every aspect of the case and balance the claims against the total record before us. That review includes consideration of the training, experience, and abilities of trial defense counsel; the pretrial proceedings; the investigative efforts of the defense team; the selection of the court members; the trial strategy; the performance of counsel during the trial; the sentencing case; and the posttrial proceedings.

It is beyond dispute that a military member is entitled to effective assistance of counsel. United States v. Scott, 24 MJ 186 (CMA 1987). When we look for effective assistance, however, we do not scrutinize each and every movement or statement of counsel. Rather, we satisfy ourselves that an accused has had counsel who, by his or her representation, made the adversarial proceedings work. United States v. DiCupe, 21 MJ 440 (CMA 1986). In evaluating claims of ineffective assistance of counsel, we have adopted the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See United States v. Loving, 41 MJ 213, 241 (1994), aff'd on other grounds, 517 U.S. 748, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996).

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S.Ct. 2052; See United States v. Scott, supra.

We wish to make it clear at the outset that our review of defense counsels’ performance in this trial does not reveal anything which suggests that they were less than totally dedicated to the defense of SGT Murphy. Our review of the decisions, actions, or inactions of defense counsel is conducted in the calm atmosphere of appellate review. Our vision considers the fog of battle, but it is also clarified by the guiding lights of aggressive appellate counsel. We also have the benefit of having reviewed numerous cases over the years and developed a sense of the standards of performance that can reasonably be expected of defense counsel. We are not looking for perfection, but rather we are seeking to ensure that military accused are represented by “reasonably competent” counsel, and that the results obtained at trial are reliable. Strickland v. Washington, supra; United States v. Polk, 32 MJ 150 (CMA 1991). With these thoughts, we first look at the defense counsel in this case.

Defense Counsel

Two U.S. Army Judge Advocates, Captains (CPT) Richard Vitaris and William Sehneller, were “detailed” by CPT Vitaris, the Senior Defense Counsel, Hanau Field Office, U.S. Army Trial Defense Service, to represent appellant at trial. The only statement on the record as to the qualifications of these attorneys to defend appellant, in this capital case, *9was made by CPT Vitaris: “We are both qualified and certified in accordance with Article 27(b), [UCMJ, 10 USC § 827(b)].” Nothing in the record of trial gives any indication of the training, experience, or abilities of these counsel. The record of trial does not tell us the number of cases each counsel had tried, how long counsel had been admitted to a state bar, or whether either had actually represented a client in a contested felony case involving voir dire examination of witnesses, cross-examination, or opening and closing statements. Neither does the record indicate whether either counsel had ever requested a mental health examination of a client or consulted with a forensic psychiatrist; what kinds of investigative assistance or other resources were available; or whether counsel had any knowledge or experience in the use of collateral resources.1

Posttrial affidavits tell us more about the two attorneys. For example, from CPT Vi-taris, the lead counsel, we learn: “Prior to my representation of SGT Murphy, I never represented or served as associate counsel on a case before a capital sentencing proceeding.” Also we learn that he “did not attend any capital training seminars prior to ... [his] representation of SGT Murphy.”

CPT Schneller, the assistant defense counsel, was “responsible for the voir dire and sentencing portions of the case,” two of the most important aspects of any capital case. This division of responsibility was made despite the fact that CPT Schneller had been a defense counsel for only 4 months prior to being “detailed” by CPT Vitaris to assist in appellant’s defense. CPT Schneller had no experience in defending capital cases, and he had not received any training in this area of practice.

The record tells us almost nothing about the pretrial investigation or preparation by counsel. Again, through the above-mentioned posttrial affidavits, we learn that both Captains Vitaris and Schneller were “burdened by tasks from the trial defense service.” Counsel did not go to North Carolina to investigate the sentencing portion of the case, and no expert witnesses were employed by the defense.

In summary, the record of trial and the posttrial affidavits leave us with only one rational conclusion: SGT Murphy was defended by two attorneys who were neither educated nor experienced in defending capital cases, and they either were not provided the resources or expertise to enable them to overcome these deficiencies, or they did not request same.

In Loving, 41 MJ at 300, we expressly declined to mandate that military defense counsel meet the American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (ABA Guidelines) (February 1989). Nor have we held that 18 USC § 3005 applies to courts-martial. That provision of law, as amended in 1994, requires that, in a capital case, the judge shall, “upon the defendant’s request, assign 2 such counsel, of whom at least 1 shall be learned in the law applicable to capital cases.” But both the ABA Guidelines and federal law are instructive. Counsel who are “learned in the law applicable to capital cases” are less likely to provide an inadequate or ineffective defense than those “not learned” in the law.

In looking at defense counsels’ performance at trial, we have chosen the route illuminated by the Supreme Court in United States v. Cronic, 466 U.S. 648,104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). See United States v. *10Loving, supra. That route compels us to look to the adequacy of counsels’ performance, rather than viewing the limited experience of counsel as an inherent deficiency. See Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); Strickland v. Washington and United States v. Scott, both supra. Of course, as the ABA Guidelines and 18 USC § 3005 implicitly suggest, and as we have just noted, inexperience — even if not a flaw per se — might well lead to inadequate representation. In the final analysis, what we must consider is whether counsels’ performance was “deficient” and whether “counsels’ errors were so serious as to deprive the defendant of a fan-trial,” one where the “result [of the trial] is reliable.” Fretwell, supra at 369, 113 S.Ct. 838.

The Claims

Appellant’s claims of ineffective assistance of counsel are numerous. However, we will discuss only what we feel are the three principal claims, as follows:

1. That appellant was denied “conflict-free” counsel. See Issues IV to IX, Appendix.

2. That appellant was denied effective assistance of counsel “because his trial defense counsel failed to investigate the mitigating circumstances of his traumatic family and social history.” See Issue XVI, Appendix.

3. That appellant received ineffective assistance of counsel because “his trial defense counsel failed to adequately explore mental health evidence.” See Issue XVII, Appendix.

Related to this last claim is Issue XV, Appendix, wherein appellant claims that he was denied “due process of law because he was denied competent psychiatric assistance in the evaluation, preparation, and presentation of his case.”

The Conflict of Interest Questions

The Government called Private (PVT) French as a witness against appellant. French had been one of appellant’s pretrial cell mates in the Mannheim Correctional Facility. While there, appellant engaged in a conversation with an inmate named Offill, in which appellant made certain incriminating statements. PVT French allegedly overheard this conversation and related what he had heard to his lawyer — CPT Schneller. Some weeks later, after CPT Schneller had negotiated a pretrial agreement for PVT French, CPT Schneller formally moved to withdraw from French’s case. The military judge who granted the motion to withdraw was the same military judge who presided over appellant’s trial. At appellant’s trial, French gave his testimony regarding the confession, without objection by appellant’s defense counsel. French was not cross-examined concerning the confession. Defense counsel made no effort to impeach the testimony of French, although he had recently been convicted of several crimes involving dishonesty and deceit.

At appellant’s trial, CPT Schneller gave no notice to the military judge that there had been dual representation by him of both appellant and French. See Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); United States v. Breese, 11 MJ 17 (CMA 1981). Although it can be argued that the military judge knew, or at a minimum should have known, of the potential conflict of interest between the representation of French and appellant, the military judge likewise made no inquiry on the record regarding the conflict. In any event, neither counsel nor the military judge discussed the potential conflict of interest on the record.

Appellant now claims on appeal that he was prejudiced by this conflict of interest because his counsel did not cross-examine French and did not object to any portion of French’s testimony. See Hoffman v. Leeke, 903 F.2d 280 (4th Cir.1990); United States v. Iorizzo, 786 F.2d 52 (2d Cir.1986).

Appellant correctly contends that he was entitled to have conflict-free counsel. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). He is also correct that the military judge had a sua sponte duty to resolve conflict questions on the record. United States v. Breese, supra. Not only was he entitled to have the judge sort out conflict-of-interest claims, his attor*11neys had a duty to discuss potential or actual conflicts of interest with him. See RCM 901(d)(4); Henry, 42 MJ at 237. Our rationale for the rule enunciated in Breese was “to disarm future contentions that, by reason of multiple representation, an accused has been deprived of the effective assistance of counsel.” 11 MJ at 23. However, multiple representation, even if unexplained in the record of trial, does not, per se, mandate reversal. Rather, it creates a presumption that a conflict of interest existed, one that can be rebutted by the actual facts. Id. The question is, and remains, whether the multiple representation in a particular setting resulted in an “actual conflict of interest.” Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

The Court of Military Review carefully considered, but rejected, appellant’s conflict-of-interest claims. 36 MJ at 1143-45. However, the court below had no record of any trial or posttrial proceeding on which to base its judgment. See United States v. Smith, 36 MJ 455, 457 (CMA 1993). Rather, the court below decided the issue by finding the affidavit of defense counsel more credible than the affidavit of appellant. This method of judging credibility also involves the questionable practice of resolving pure disputes of material fact by mere affidavits, a practice which this Court has recently criticized and condemned. See United States v. Ginn, 47 MJ 236 (1997).

Likewise, we have searched the record of trial and the posttrial affidavits, and we have considered the arguments of counsel and the law. Assuming, arguendo, that there was a conflict of interest, we conclude that this conflict had no impact on the merits portion of the trial. PVT French’s testimony was mostly cumulative. However, he did provide two additional facts, without objection by counsel for appellant.

First, French’s testimony sealed appellant’s motive for killing his own son:

And he said it was like a voice that was in his mind, telling him to “Go get your other son because he knew you were there, as a witness,” so he took his son out of bed and took him into the bathroom and put I believe it was three or four inches of water in the bathtub, I’m not sure. And then, stuck the little boy’s head down in the water and he was drowning him.

Second, French provided helpful testimony that might show why appellant would falsely confess to the killings. This testimony, as follows, was certainly harmless, if not actually helpful:

Q. Did he indicate to you involvement of anyone other than himself?

A: He didn’t indicate, sir. He didn’t indicate, sir. He did say that ah — I asked him, “When you came to the States, they didn’t have any real evidence on you, so why did you confess so easily?” He told me that he was protecting somebody that he loved, but he never did say her name or anything else about it.

Q: Was [appellant’s] concern that somebody else would be falsely accused? Was that the indication that he gave?

A: Yes.

Regardless, because the several confessions by appellant were corroborated by the physical evidence in the ease, we conclude that French’s motive testimony could not have prejudiced appellant as to the findings of guilt in this case.

Nevertheless, the question whether this conflict of interest had any impact on the sentencing proceedings remains unresolved. Under our case law, the court below erred by resolving this question solely on the basis of the contradictory affidavits. United States v. Ginn, supra. This issue should have and could have been resolved at trial by the simple exercise of CPT Schneller reminding the military judge of the prior representation, and by the judge conducting a suitable inquiry of counsel and appellant on the record.

Nevertheless, as to findings, we are convinced beyond any reasonable doubt that appellant was not prejudiced by the unresolved conflict of interest because of the admission of his multiple confessions and the corroborating physical evidence. However, we cannot say with confidence that French’s testimony about why appellant killed his son had *12no impact on the members’ deliberations on sentence. From this record, we are unable to answer the question whether counsels’ failure to resolve the conflict clearly resolved the key questions, (1) did “counsel actively represent ] conflicting interests” or (2) was there an “actual conflict of interest [which] adversely affected counsel’s performance.” Smith, 36 MJ at 457. In such a circumstance, we are compelled not to affirm appellant’s death sentence without resolving the conflict-of-interest question. Henry, supra at 238.

Pretrial Investigation and the Trial

Before turning to appellant’s claims of ineffective assistance of counsel, in that defense counsel did not properly prepare or try his case, it is necessary to look at the defense team’s pretrial setting and the trial strategy. First and foremost, defense counsel were confronted with a gory and inexplicable family homicide. Appellant’s first wife had been killed by repeated blows to the head by a blunt object, ultimately determined to be a hammer, and then drowned in her bathtub. Two small children, a stepson and son, had been violently killed. The killer had left them to decay in a civilian apartment in Germany.

Upon being questioned by police investigators in Alabama, appellant confessed his guilt and subsequently made numerous confessions to many different people. Confronted with this overwhelming evidence, appellant attempted to plead guilty to the charges. The military judge rejected appellant’s guilty pleas because the case had been referred as a capital case. ROM 910(a)(1).

Prior to the commencement of proceedings, appellant’s counsel requested that appellant be examined by a sanity board. See RCM 706. The purpose of such a board is to determine if an accused “lacks capacity to stand trial” or “lacked mental responsibility for any offense charged.” Lack of mental responsibility is a complete defense under military law. Article 50a(a), UCMJ, 10 USC § 850a(a), states:

It is an affirmative defense in a trial by court-martial that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts. Mental disease or defect does not otherwise constitute a defense.

The psychiatric board reported that appellant did not suffer from a severe mental disease or defect, and that he was able to “cooperate intelligently in the defense.”

Article 45(b), UCMJ, 10 USC § 845(b), and the Rules for Courts-Martial will not allow a capital defendant to plead guilty. Thus, appellant’s defense team attempted to mount a defense to the capital murder charges. In light of the numerous confessions, some with inconsistencies, the defense tried to create the belief that perhaps the confessions were untrue and the killings were actually committed by appellant’s second wife, Beate, a person whom appellant would try to protect with his false confessions. The defense strategy obviously did not work.

The sentencing case was handled by CPT Schneller. He did not travel to the United States in order to conduct personal interviews with witnesses in appellant’s hometown of Clinton, North Carolina. Instead, he attempted to develop an extenuation and mitigation case by correspondence and telephone. The pretrial effort is best summed up by CPT Schneller in an affidavit of January 28,1993. There, he stated:

I obtained a list of witnesses from SGT Murphy and also sent letters out to many friends and relatives in SGT Murphy’s home town. I ... received responses to these letters and from the responses I made phone calls back to individuals inquiring into Murphy’s life history. Based on the interviews, I selected the individuals I thought would be most helpful to orn-ease and requested that they be flown over at government expense. Throughout my interviews there was never any mention of abuse or mistreatment against SGT Murphy or his mother. And further, SGT Murphy never gave any of this information to me.

As a result of this preparation, the defense offered evidence of SGT Murphy’s previous *13good character; the fact that he was not a violent man; that he was a good soldier; and that he desired to rehabilitate his life. See 36 MJ at 1146. SGT Murphy gave an un-sworn statement in which he asked the members to spare his life, and he expressed remorse. SGT Murphy also told the members that he had tried to plead guilty.

CPT Schneller delivered a well-prepared and thoughtful summation for the members to consider, including reminding each member that it was a personal decision to return a death sentence. In spite of defense counsels’ efforts, the court-martial returned a sentence including death.

The Army Court of Military Review blessed this sentencing effort by characterizing it as “trial defense counsel’s tactical judgment.” Id. In some cases, this effort might well satisfy the Strickland standard for adequate representation. What follows in this opinion, however, demonstrates that a capital case — or at least this capital case — is not “ordinary,” and counsels’ inexperience in this sort of litigation is a factor that contributes to our ultimate lack of confidence in the reliability of the result: a judgment of death. We have no quarrel with the Army Court regarding the obligation of an appellate court not to second-guess tactical judgments. Here, however, counsels’ lack of training and experience contributed to questionable tactical judgments, leading us to the ultimate conclusion that there are no tactical decisions to second-guess.

Posttrial Claims Regarding Mental Responsibility:

The Facts

While appellant’s case was pending before the Army Court of Military Review, but about 5 years after his initial conviction, appellant was successful in obtaining funding from the Judge Advocate General of the Army to employ the services of an expert to conduct a posttrial social history. The investigation was completed by Ms. Jill Miller, a forensic social worker, in April 1993, just weeks after the Court of Military Review issued its opinion affirming appellant’s con-vietion and sentence to death. Although appellant had asked the Army Court to defer its decision until after the investigation was complete, that court refused to continue the case. 36 MJ at 1149-54. In addition to the information produced directly by Ms. Miller’s investigation, the results of this investigation paved the way for appellant to develop considerable new factual matters through affidavits filed with this Court. The unfortunate result of the Army Court’s unwillingness to delay its March 1993 decision, however, is that none of this “new matter” has been tested in an evidentiary hearing, and most of it is unchallenged by government evidence. Thus this Court — a non-factfinding court — is called upon to evaluate appellant’s claim that he is entitled to a new trial because of substantial evidence which, if convincing, might well cause a different trial result.

Complementing the evidence assembled by Ms. Miller, appellant submitted additional affidavits, including several by medical specialists. Appellant retained the services of Dr. William A. O’Connor, a clinical psychologist. Dr. O’Connor administered clinical tests to appellant, conducted interviews with appellant, and examined much of the evidence gathered by the forensic sociologist. Dr. O’Connor concluded that SGT Murphy did,

at the time of the alleged offense, suffer from a personality disorder and other psychological dysfunctions which would have affected his thoughts or actions. There are indications of minimal or slight cognitive and neuropsychological dysfunction; however, the primary origin or cause of the personality disorder with associated post-traumatic features can be specified based on clinical interview and records, as well as test results indicating persistent and severe traumatic childhood abuse.

[T]he Sanity Board hearings were not correct or based on adequate and required assessment methods.

Dr. William H. Carson, a professor of psychiatry at the Medical University of South Carolina, also reviewed appellant’s case and the psychological and sociological evidence. He concurred with Dr. O’Connor’s findings.

*14Appellant was also examined by Dr. Edward C. Kirby, a psychiatrist with over 33 years of practice. Dr. Kirby concluded that SGT Murphy’s severe mental disease or defect rendered him unable to form the requisite intent to commit premeditated murder. Importantly, Dr. Kirby also concluded that SGT Murphy was unable to appreciate the nature and quality or wrongfulness of his acts, and moreover, that he could not have conformed his conduct to the requirements of the law at the time of the incident in question.

Appellant also offers the affidavit of Dr. James R. Merikangas, M.D., a clinical professor of psychiatry at Yale University School of Medicine, who concluded that SG