JAG CENTRAL

On Tuesday, The U.S. Court of Appeals for the Armed Forces (CAAF) affirmed the Army Court of Criminal Appeals, which had overturned the findings and sentence of Sgt. William J. Kreutzer [See the Centrist's original post]. The case could be considered an exercise in limited scrutiny.In 1996, Kreutzer hid himself in the woods with two rifles at Ft. Bragg and waited for his brigade to begin a scheduled morning run. When they emerged from a nearby stadium, he opened fire, wounding 18 and killing one officer. He assumed he would kill himself or be shot by the MPs, but some special forces soldiers running in the area found and subdued him. At a capital court martial, Kreutzer was charged with premeditated murder and attempted premeditated murder. He pleaded guilty to lesser included offenses, so the trial itself was "limited" analysis- whether the acts were premeditated, thus meriting capital punishment. He was convicted of all counts and sentenced to death. The Army CCA set aside the sentence due to ineffective assistance of counsel, but also set aside the findings and sentence because the military judge erroneously denied Kreutzer's request for a "capital mitigation specialist". That second ruling was certified (appealed) by the Army's TJAG. TJAG did not appeal the CCA's holding that denial was error; only the decision that the error was not 'harmless'.
[[A "capital mitigation specialist" is an investigator / strategist who works for the defense. The opinion suggests that it's usually someone with a social science background. See this article from NACDL.]] Here's my synopsis of the case: Assume that the military judge erred when he denied Kreutzer’s request for a mitigation specialist (the government waived any objection to that part of the decision). The Army CCA held that this error was not “harmless”. Was the CCA correct? Held: The error was not harmless. A constitutional error is reversible unless it was "harmless beyond a reasonable doubt." Because the mitigation specialist might have uncovered evidence relevant to the findings of premeditation, and that evidence might have led at least one member to change their vote to not guilty, the error was not harmless.

Some interesting things about the opinion:
(1) The court assumed that the military judge violated due process when he denied the request for a mitigation specialist. TJAG did not appeal that portion of the CCA's decision, and the court chose not to reach it (note 2). That is why J. Crawford dissented; she thought the majority should have addressed that ruling, and she would hold that there is no right (constitutional or otherwise) to a mitigation specialist.

(2) Though the court "assumed" the decision was error, it described that error as one of "constitutional magnitude" and strongly encouraged MJs to grant such motions in the future (note 7).

(3) At the CCA, Kreutzer won a resentencing due to ineffective assistance. No one contested that at CAAF- all this was about whether he should receive a new trial on the merits, too.

(4) The court discusses two types of harmless error analyses. For non-constitutional trial errors, an error is harmless unless it had "substantial influence" on the result. But for constitutional errors (and errors with constitutional dimensions or constitutional magnitude), the party benefiting from the error must prove beyond a reasonable doubt that the result would have been no different if the error hadn't happened.

(5) Both of these inquiries are distinct from the "prejudice" prong of Strickland's ineffective assistance of counsel test. To establish the counsel was ineffective, the defendant must show that there is a reasonable probability that the result would have been different if counsel had not been deficient. The defendant (who did NOT benefit from the error) bears the burden.

(6) The CCA ruled that ineffective assistance invalidated the sentence, but not the findings (of premeditation). The ineffective assistance at issue was counsel's failure to discover the mental health info. So, under the CCA ruling, would the mental health info change the result on findings? The government could not prove that it wouldn't (substantial influence), so the mitigation specialist error was reversible. But the defendant couldn't prove that it would, so there was no prejudice and thus no ineffective assistance.

CAAF's ruling is a little easier to swallow - it is possible that the info would have changed one member's vote on premeditation; but it is not reasonably probable.

At the end of the day, what does this mean?
(1) Sgt. Kreutzer will get a retrial, not just a resentencing, (2) MJs who pay attention will start liberally granting mitigation specialist requests, and (3) MJs might be more likely to admit mental health evidence on issues of premeditation.

UPDATE: Capital Defense Weekly posted about Kreutzer. See also the AP article.
Categories: Death+Penalty, CAAF, Appellate