The Air Force appellate court this week reinstated the death sentence of Andrew Witt, reversing its decision in August that struck down the sentence on grounds of inadequate defense efforts.
In an opinion issued on Monday, the Air Force Court of Appeals said that Witt's court-martial on charges he'd murdered a young married couple had been fair, that his lawyers had been competent and that any mistakes they had made were inconsequential.
"The overwhelming weight of the evidence paints a picture of a cold, calculated, vicious crime, carried out in the furtherance of a purely protectionist and self-serving objective," the opinion states. "(T)he evidence in aggravation was powerful, plentiful, and persuasive."
The decision comes a decade, almost to the day, since Witt stabbed to death Senior Airman Andrew Schliepsiek and his wife, Jamie, in their home on Warner Robins Air Force Base, Georgia.
On the morning of July 5, 2004, the pair — in their mid-20s, both from Peoria, Illinois, and married for two years — were a week away from leaving the Air Force to return to civilian life.
That Witt had killed the couple was never in doubt. His three-lawyer defense team worked to spare him from the death penalty by trying to convince the jury that he'd been unable to form premeditation to murder in part because of the effects of adrenaline.
In August, three members of a five-judge appellate panel agreed that deficiencies in the defense by Witt's lawyers, none of whom had tried a capital case before, had caused Witt not to receive a fair trial for sentencing. The judges were particularly troubled by the fact that the lawyers had not explored whether Witt's actions might have resulted from a possible traumatic brain injury he suffered from a motorcycle crash four months before the murders. Those judges also said that the defense should have pursued evidence about Witt's mother's inpatient mental-health care when he was a teenager, and that it should have sought testimony from a guard who thought Witt was remorseful.
"(H)ad the (jurors) been confronted with this additional mitigating evidence, there is a reasonable likelihood that at least one member would have struck a different balance between the aggravating and mitigating factors and would have returned with a different sentence," those judges wrote in the August opinion.
But in Monday's decision, four of six appellate judges reconsidering the case after a request by Air Force prosecutors disagreed.
"Although the motorcycle accident is undisputed, it has never been determined that the appellant sustained a TBI. But even assuming he did, not all TBIs make a person more prone to violence." More importantly, the opinion continued, most people testified that they noticed no changes in Witt's behavior after the accident.
Why Witt, who had no criminal record, committed the brutal murders was never clear. According to testimony, Witt had engaged in a series of heated phone calls with Schliepsiek, who was incensed that Witt had made a pass at his wife, and Witt was apparently concerned that Schliepsiek might ruin him. Witt also said that he didn't want to leave witnesses.
Prosecutors suggested he was just "evil."
Witt stabbed Schliepsiek twice, paralyzing him, then turned the knife on an intervening friend, Senior Airman Jason King, who broke free and ran.
Witt next smashed through the locked bedroom door to get to Jamie Schliepsiek, as her husband, lying bleeding on the floor, managed to call 911, all the while pleading for his wife's life. Witt stabbed her five times and broke her arm. Then he stabbed Andrew once more, through the heart.
Regarding the issue of Witt's mother's record of mental-health treatment, the appellate court found, "the weight of the evidence adduced at trial suggests this theme would have been an even harder sell than the one involving the motorcycle accident and the possibility of a TBI."
"In other words, it is not enough for the appellant to show that his counsel overlooked certain mitigation and extenuation evidence and that such evidence might have made a difference; rather, the appellant must show that such overlooked evidence would have been sufficiently persuasive to give rise to a reasonable probability of a different outcome."
It's unlikely that Monday's decision-by the military appellate court will be the last word. The case will now go before the Court of Appeals for the Armed Forces. That is likely to happen within about 18 months.
The sentence could then be appealed to the Supreme Court. Upon any Supreme Court review, it would be up to the president to approve the sentence. A further appeal is then possible before federal judges.
Eleven men sentenced to death at courts-martial since 1984 have had their death sentences overturned and were subsequently sentenced to life in prison, according to the Death Penalty Information Center.
No military member has been executed since 1961, when Army Pvt. John Bennett was hanged for raping an 11-year-old Austrian girl seven years earlier and attempting to drown her.
Witt, now his early 30s, is the only airman on death row at Fort Leavenworth's prison. All five others are soldiers, all enlisted except for former Maj. Nidal Hasan.
The lengthy death penalty process, with its numerous delays and hearings in a variety of courts over what can be decades, takes a toll on survivors.
"There's anguish, anxiety. There isn't a day that I don't think about it," Dave Schliepsiek, Andrew's father, said in August.
"If they would have given [Witt] life without parole, I'd have been upset, but would I have been in a better place? Yes. But when they gave him the death penalty, they also gave it to me. Now, any less than the death penalty is a loss to us."