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Overturned death penalty brings families back to 'where they started' in Schliepsiek case

Court: Defense overlooked key evidence

Aug. 20, 2013 - 06:00AM   |  
Senior Airman Andrew Witt is escorted to the courtroom in 2005.
Senior Airman Andrew Witt is escorted to the courtroom in 2005. (Sue Sapp / Air Force)
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The nightmares began soon after the brutal killings of his daughter and son-in-law at Robins Air Force Base, Ga. For 15 months, they persisted: Images of Jamie Schliepsiek fighting for her life while her husband, Senior Airman Andy Schliepsiek, lay helpless from a stab wound that severed his spinal cord.

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The nightmares began soon after the brutal killings of his daughter and son-in-law at Robins Air Force Base, Ga. For 15 months, they persisted: Images of Jamie Schliepsiek fighting for her life while her husband, Senior Airman Andy Schliepsiek, lay helpless from a stab wound that severed his spinal cord.

“They went on until the day [their killer] was given the death penalty,” Jim Bielenberg said.

That was October 2005. For years, the families of the slain couple fought for the trial records of Senior Airman Andrew Witt, convicted of the murders of the Schliepsieks and the attempted murder of another airman in the couple’s base home on the early morning of July 5, 2004. They have endured seemingly endless delays as the case worked its way through the military criminal justice system.

On Aug. 9, the Air Force Court of Criminal Appeals ruled 3-2 to throw out the death sentence because the defense had overlooked key evidence that could have persuaded jurors to sentence Witt to life rather than death. The court ordered the case sent back to the convening authority and authorized a new sentencing hearing.

The government will file a motion for reconsideration of that decision, Air Force spokeswoman Lt. Col. Laurel Tingley said.

In the meantime, the families of the slain Air Force couple say they feel like they are back where they started eight years ago.

“It’s opening up a lot of wounds we’ve tried so hard to put in the back of our minds,” Bielenberg said. “I suspect I’m going to have to work really hard the next few weeks to keep the nightmares from coming back.”

The families are also learning just how uncommon capital punishment is in the military, which has not carried out a death sentence in more than half a century. The Air Force last executed one of its own in 1954. Witt is one of only five service members on the military’s death row at Fort Leavenworth, Kan., and the only airman sentenced to die since 1992, according to the Death Penalty Information Center in Washington, D.C.

Since 1984, military appeals courts have overturned 11 of 16 death sentences. That does not include Witt’s case.

This month’s ruling illustrates the demanding standards military appellate courts place on death penalty cases, said retired Army Judge Advocate General Geoffrey Corn, a law professor at South Texas College. It also comes as the government makes its case in the court-martial of Army Maj. Nidal Hasan, who could receive the death penalty if convicted of killing 15 people at Fort Hood, Texas, in 2009.

In a 64-page decision, the appeals court wrote the defense erred when it failed to look into the possibility of a head injury from a motorcycle accident Witt was involved in four months before the murders. The defense also did not pursue a deputy sheriff who saw Witt express remorse for his crimes, or his mother’s mental health records — all of which were potentially mitigating evidence that could have led jurors to spare the airman’s life, the court ruled.

“We know that military appellate courts are incredibly strict on the records of trial that go before them on a death penalty case,” Corn said. “I think there are a number of reasons. You’re talking about the government taking someone’s life. It is the maximum sanction permitted by law. There are also political reasons.”

The president, as commander-in-chief, must approve the death penalty in military cases, Corn said. “Who wants to be the first president to order the first military execution in 50 years? The longer this gap has existed, the harder it becomes to do.

“If you put this case before 20 civilian appeals courts, at least 15 would have said the defense lawyers weren’t perfect, but this was not such a deviation from the standard of effective representation that it qualifies as ineffective counsel. Even if they did, they would look at all the evidence and say even if the defense had done a better job, it wouldn’t have made a difference” in the sentence.

'Extremely heinous' crime

The Schliepsieks celebrated Independence Day 2004 at the home of their neighbors, then-Senior Airman Jason King and his wife. Sometime after midnight July 5, Jamie Schliepsiek told her husband and King that Witt had made a pass at her a couple of days before. Andy Schliepsiek called Witt and confronted him with the accusation just after 1:30 a.m. He would call Witt a dozen more times, reaching him twice. Witt would later tell his roommate that Andy Schliepsiek had threatened to tell his leadership about the advance on his wife and an affair Witt was having with an officer’s wife.

At some point during the phone calls, Witt changed into his Air Force fatigues, put a combat knife in the trunk of his car and drove on base. He parked about 50 yards from King’s home and slipped unseen behind some trees, where he watched the three of them. About 4 a.m., the trio drove the quarter-mile to the Schliepsieks’ base duplex. Witt followed them on foot and walked into the home, where he found Andy Schliepsiek in the kitchen. Andy yelled at him to leave. They scuffled. King came into the kitchen, put Witt in a headlock and told him to leave. Witt stabbed both men and chased King out the door, piercing him in the back multiple times as he fled.

King reached a neighbor’s house and called for help. Witt returned to the Schliepsieks’ home, where he found Andy Schliepsiek on the phone with 911. His wife had locked herself in a bedroom.

The recording would be played in court. Jamie Schliepsiek screams in the background.

“Please don’t do this,” her husband pleads before the line goes dead.

According to evidence presented at trial, Witt kicked in the bedroom door, broke Jamie Schliepsiek’s arm and stabbed her five times — four in the back. As she bled to death, Witt removed her skirt. Her knees were scraped and bruised, as if she’d been dragged.

Andy Schliepsiek was stabbed three times. The second blow cut through his backbone, severing his spinal cord and paralyzing him instantly from the waist down. A final stab wound to his chest pierced his heart, killing him.

“It was extremely heinous,” said Andy Schliepsiek’s father, Dave Schliepsiek. “I am back to October 2005, and we just got the guilty verdict at trial. That’s eight years ago. How much do our two families have to go through? You just want to say ‘I can’t do this.’ But as a parent, I don’t have that luxury.”

Dave Schliepsiek said he has gotten used to the delays; it took four years to get the record of trial. “I was told the first appeal would take two years. It’s been eight.”

He has attended every court hearing. He was at the appeals hearing in October.

“It lasted 2˝ hours. We waited for years for 2˝ hours. And then they sent it back [for re-sentencing.] I don’t get closure because I don’t know when my next call or email will be from the Air Force. It’s just been hell.”

He wonders why the military has the death penalty if it doesn’t plan on using it.

Corn, the former JAG, said it’s a valid question, particularly as the Hasan court-martial drags on. “One of the big questions that keeps coming up is, ‘Isn’t this a waste of time? If we’re never going to execute anybody why are we spending all this time and wasting all the money to seek the death penalty?’ ”

“The prosecutor’s job is not to worry about whether it will ever be carried out,” Corn said. “It’s not the jury’s either. For a defendant who is sentenced to death, whether he is ever put to death, both he and society at large will know for the rest of his life he doesn’t control whether or not he lives. His life belongs to the government and to the people. And that’s a legitimate reason to pursue it.”

Defense criticized

Four and a half months before the murders, Witt sustained a closed head injury in a motorcycle crash, which, he argued in the appeal, could have caused a traumatic brain injury. Traumatic brain injuries have been linked to changes in behavior, particularly impulse control and “emotional self-regulation,” Witt said.

The airman’s roommate at the time reported seeing Witt get into a fight after the accident and that he was also more outspoken and intolerant.

“Courts have repeatedly found evidence of mental health problems, arguably including the effects of traumatic brain injury, to be powerful mitigation,” the appeals court ruled. Yet the record of trial “is silent with respect to any evidence of this motorcycle accident.”

Witt’s defense team provided ineffective counsel when it failed to look further into the head injury, including ordering brain imaging and interviewing other witnesses, the court found. The defense countered that a forensic psychologist consultant said additional testing would provide no new information.

The court ruling also criticized the defense’s decision not to contact a deputy sheriff who would have testified that Witt was remorseful of his crimes. The deputy’s written declaration “paints a powerful image of a young man broken down by remorse,” the court wrote.

In the declaration, the deputy said Witt “broke down and sobbed uncontrollably” after seeing crime scene photos for the first time during his Article 32 hearing. “I accompanied Witt to another part of the courthouse while the hearing continued.”

The deputy stated he would have testified on Witt’s behalf if he had been asked. “I have dealt with numerous murderers, rapists, and other violent criminals.” He wrote he had seen such remorse only once before.

The appeals court further found the defense did not delve deeply enough into Witt’s family’s medical records. His mother had checked herself into a counseling clinic for two weeks when Witt was in eighth grade, according to the opinion.

The two judges who did not join in the majority’s opinion wrote that the defense team was “deficient” during sentencing. But Witt had planned and carried out “these senseless and brutal offense,” they wrote. With “clear thinking and rationale,” he had told investigators how he returned to the Schliepsieks home after stabbing King because he didn’t want to leave any witnesses.

“I am not convinced the sentence would have been different had trial defense counsel better handled the errors,” the judges concluded.

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