United States v. Murphy

• Decision Date: 16 December 1998
• Docket Number: CMR No. 8702873.
• Citation: 50 M.J. 4
• Parties: UNITED STATES, Appellee, v. James T. MURPHY, Sergeant, U.S. Army, Appellant. No. 64,926.
• Court: United States Court of Appeals, Armed Forces Court of Appeals

50 M.J. 4

UNITED STATES, Appellee, v. James T. MURPHY, Sergeant, U.S. Army, Appellant.

No. 64,926.

CMR No. 8702873.

United States Court of Appeals, Armed Forces

December 16, 1998

Argued May 15, 1997.

For Appellant: Captain Richard E. Burns, Captain Mark I. Goodman, and Captain Kurt Mayer, USAR (argued); Colonel John T. Phelps, Major Fran W Walterhouse, Captain Beth G. Pacella, and Captain Victor A. Tall (on brief); Captain Arden B. Levy.

For Appellee: Major Lyle D. Jentzer and Captain Steven H. Levin (argued); Colonel John M Smith, Lieutenant Colonel Eva M. Novak Captain Michael E. Mulligan, and Captain Kenneth G. Wilson (on brief); Lieutenant Colonel James L Pohl.

Amicus Curiae urging reversal: Sandra Tvarian (law student) (argued); Richard J. Wilson and David M. Vaughn (law student) (on brief); Elliott S. Milstein.

Chief Judge COX 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)(1)(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) (evidentiary 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 Redstone 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 counsel 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 (c) 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

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