United States v. Kreutzer

IN THE CASE OF
UNITED STATES, Appellant
v.
William J. KREUTZER Jr., Sergeant
U.S. Army, Appellee
No. 04-5006
Crim. App. No. 9601044
United States Court of Appeals for the Armed Forces
Argued December 8, 2004
Decided August 16, 2005
ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J.,
filed a dissenting opinion.
Counsel
For Appellant: Captain Edward E. Wiggers (argued); Colonel
Steven T. Salata, Lieutenant Colonel Mark L. Johnson, and Major
Natalie A. Kolb (on brief).
For Appellee: Captain Charles A. Kuhfahl Jr. (argued); Colonel
Mark Cremin and Lieutenant Colonel Mark Tellitocci (on brief).
Military Judge: Peter E. Brownback III
This opinion is subject to revision before final publication.
United States v. Kreutzer, No. 04-5006/AR
Judge ERDMANN delivered the opinion of the court.
Sergeant (SGT) William J. Kreutzer Jr. opened fire with an
automatic weapon on personnel in his brigade when they were in
formation commencing a unit run. He was subsequently charged
with one specification of premeditated murder, eighteen
specifications of attempted premeditated murder, one
specification of violation of a lawful general regulation, one
specification of larceny of Government munitions, four
specifications of maiming, and eighteen specifications of
aggravated assault, in violation of Articles 118, 80, 92, 121,
124, and 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 918, 880, 892, 921, 924, 928 (2000), respectively. The
charges were referred to a general court-martial with
instructions that the case was “[t]o be tried as a capital
case.”
Kreutzer pleaded guilty to one specification of murder
while engaged in an act inherently dangerous to another (as a
lesser included offense of premeditated murder), eighteen
specifications of assault with a loaded firearm (as a lesser
included offense of attempted premeditated murder), one
specification of violating a lawful general regulation, and one
specification of larceny of Government munitions. He was
convicted of one specification of premeditated murder, eighteen
2
United States v. Kreutzer, No. 04-5006/AR
specifications of attempted premeditated murder, one
specification of violating a lawful general regulation, and one
specification of larceny of Government munitions.1 A unanimous
twelve-member court of officer and enlisted members sentenced
Kreutzer to death, a dishonorable discharge, forfeiture of all
pay and allowances, and reduction to E-1. The convening
authority approved the sentence as adjudged.
The United States Army Court of Criminal Appeals affirmed
only the findings to which Kreutzer had entered guilty pleas:
murder while engaged in an inherently dangerous act; assault
with a loaded firearm; violating a lawful general regulation;
and larceny of Government munitions. United States v. Kreutzer,
59 M.J. 773, 784 (A. Ct. Crim. App. 2004). The Army court set
aside the findings of guilty to premeditated murder and
attempted premeditated murder and the sentence. Id. The Army
court denied a Government request for en banc consideration and
a motion for reconsideration. Subsequently, the Judge Advocate
General of the Army (TJAG) certified the case to this court
pursuant to Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2)
(2000).
1
At trial the charges of maiming and aggravated assault were
consolidated with related specifications alleging attempted
premeditated murder, and the maiming and aggravated assault
offenses were “provisionally dismissed.”
3
United States v. Kreutzer, No. 04-5006/AR
Compulsory process, equal access to evidence and witnesses,
and the right to necessary expert assistance in presenting a
defense are guaranteed to military accuseds through the Sixth
Amendment, Article 46, UCMJ, 10 U.S.C. § 846 (2000), and Rule
for Courts-Martial (R.C.M.) 703(d). See Ake v. Oklahoma, 470
U.S. 68, 77 (1985). The Court of Criminal Appeals found that
Kreutzer was erroneously denied expert assistance in the form of
a capital mitigation specialist. Kreutzer, 59 M.J. at 775. A
majority of that court further found that the Government did not
show that error to be harmless beyond a reasonable doubt with
respect to the contested findings of premeditated murder and
attempted premeditated murder. Id. The issue certified to us
by TJAG asks us to determine whether the Court of Criminal
Appeals erred in finding that the Government did not meet its
burden of demonstrating that the erroneous denial of a
mitigation specialist was harmless beyond a reasonable doubt.2
2
The certificate for review raises the following issue:
WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL
APPEALS ERRED WHEN IT FOUND DENIAL OF A MITIGATION
SPECIALIST TO BE PREJUDICIAL ERROR FOR FINDINGS WHEN
THE SAME OPINION ALSO FOUND THAT ALL EVIDENCE THE
MITIGATION SPECIALIST WOULD HAVE DISCOVERED DID NOT
HAVE A REASONABLE PROBABILITY OF PRODUCING A DIFFERENT
RESULT.
Although TJAG has not certified and the parties do not
contest that the military judge erred in denying Kreutzer’s
request for expert assistance, this court could examine the
military judge’s legal ruling. United States v. Simmons,
59 M.J. 485, 488 (C.A.A.F. 2004). However, “we are
4
United States v. Kreutzer, No. 04-5006/AR
BACKGROUND
Sergeant Kreutzer enlisted in the U.S. Army and entered
active duty in February 1992. In March of 1993 he was assigned
to the 325th Airborne Infantry Regiment of the 82d Airborne
Division,3 stationed at Fort Bragg, North Carolina. Although
Kreutzer was considered by some superiors to be a good soldier,
throughout his military career he had trouble fitting in and
interacting with his fellow troops. Kreutzer deployed to the
Sinai with his unit in January 1994. The butt of numerous
practical jokes and frequently referred to in derogatory terms,
Kreutzer’s tolerance for this chiding and his relations within
reluctant to exercise that power and, as a rule, reserve it
only for those cases where the lower court’s decision is
‘clearly erroneous and would work a manifest injustice’ if
the parties were bound by it.” Id. (quoting United States
v. Doss, 57 M.J. 182, 185 (C.A.A.F. 2002)). The parties do
not urge and the record does not suggest that the Army
Court of Criminal Appeals’ ruling is clearly erroneous or
that it causes a manifest injustice. This case presents
even stronger circumstances than Simmons for this court not
to address the correctness of the military judge’s ruling.
Simmons involved a granted petition, but the present case
is before this court on a single certified issue. The
Judge Advocate General of the Army made a decision to
certify a precise issue relating to the lower court’s
finding of prejudice. Despite the opportunity to bring the
lower court’s ruling before this court that the military
judge erred in denying Kreutzer’s request for a mitigation
specialist, TJAG chose not to do so. Under these
circumstances, we conclude that the lower court’s ruling
that the military judge erred in denying Appellee’s request
for expert assistance is the law of the case. See United
States v. Grooters, 39 M.J. 269, 273 (C.M.A. 1994).
Therefore, we do not review that ruling.
5
United States v. Kreutzer, No. 04-5006/AR
his unit deteriorated. From approximately April to July, 1994,
Kreutzer began to make threats to kill including threats to kill
named individuals, soldiers in physical training formation, and
entire units while they slept. Kreutzer often described to
others precisely how he planned to kill these individuals.
In June of 1994 Kreutzer broke down and cried while on
guard duty and threatened to kill other members of his unit.
Kreutzer was confronted about the threats by his platoon
sergeant who escorted him to the division’s mental health
officer, Dr. (Captain) Darren Fong. Kreutzer met with Dr. Fong
and discussed his homicidal thoughts about his squad members.
Doctor Fong concluded that Kreutzer was a person who had
problems with anger and low self-esteem and “appeared” to have
interpersonal problems with members of his squad. Doctor Fong,
however, felt that Kreutzer was not a danger to himself or
others. Kreutzer remained with his unit where he continued to
have difficulty interacting with other soldiers and also started
to have performance problems that continued up to the time of
the charged offenses. Despite his difficulties and apparent
emotional problems, in October 1994, Kreutzer attended the
Primary Leadership Development Course to become a
3
The 325th Airborne Infantry Regiment is also known as the 2d
Brigade of the 82d Airborne.
6
United States v. Kreutzer, No. 04-5006/AR
noncommissioned officer and he was promoted to sergeant in March
1995.
The 2d Brigade scheduled a unit run for the morning of
October 27, 1995.4 On the evening of October 26, 1995, Kreutzer
called Specialist Fourth Class (SP4) Mays, a member of his
squad, and informed him that he was “going to shoot the run the
following day.” Before the scheduled run on the morning of
October 27, SP4 Mays informed his chain of command of Kreutzer’s
threat. The platoon leader and platoon sergeant initially
laughed when the threat was brought to their attention.
Similarly, the threats Kreutzer made to SP4 Mays were not taken
seriously by the first sergeant or the acting company commander.
On the morning of October 27, 1995, Kreutzer secreted
himself in the woods near an athletic field at Fort Bragg, North
Carolina, where his brigade was forming for the run. As the
brigade marched out of the stadium, Kreutzer opened fire on the
formation with two rifles. Eighteen soldiers were wounded and
one officer suffered a fatal wound in Kreutzer’s attack.
Kreutzer was subdued by three Special Forces soldiers who had
been running in the area.
4
The 2d Brigade had just assumed the highest readiness posture
in their readiness cycle. It is standard practice for the
brigade to hold a mission assumption run to recognize this
status and the entire brigade task force participates. The
brigade task force was composed of between 1,500 and 2,000
soldiers.
7
United States v. Kreutzer, No. 04-5006/AR
Kreutzer did not deny that he fired shots at his brigade
from ambush or that he wounded eighteen soldiers and killed an
officer. He later stated that his actions were intended to send
a message that the unit did not care about the men. He also
anticipated that he would either shoot himself or be shot and
killed by the military police.
Subsequent to his apprehension and while still in law
enforcement custody, Kreutzer was assessed by the 82d Airborne
Division psychiatrist. He received additional mental health
evaluation in the form of a suicide assessment while he was in
pretrial confinement. Kreutzer was evaluated by a privately
retained forensic psychiatrist in November 1995 and he was
evaluated by a sanity board convened under R.C.M. 706 in
December 1995. Charges against Kreutzer were referred to a
capital general court-martial on January 24, 1996.
On March 11, 1996, Kreutzer’s defense team filed a request
with the convening authority for employment of a mitigation
specialist. Although the convening authority did approve
funding for defense counsel to travel in support of building a
case in mitigation, he denied the request for a mitigation
specialist. The defense renewed its request for a mitigation
specialist by motion before the military judge.
Defense counsel provided a copy of the request they had
made to the convening authority in which they asserted that they
8
United States v. Kreutzer, No. 04-5006/AR
lacked “the experience and scientific expertise to uncover all
potentially mitigating events or factors in SGT Kreutzer’s
case.” They also provided an extensive affidavit from a
“mitigation specialist” that explained the necessity of a
mitigation investigation in capital cases, the scope of that
investigation, and the role of a mitigation specialist. Defense
counsel argued that they were not qualified to do the work of a
mitigation expert. The Court of Criminal Appeals reached the
same conclusion stating, “[I]n determining whether or not the
defense counsel could adequately do the function of an expert
mitigation specialist, the judge should have considered, among
other factors, defense counsel’s lack of capital litigation
experience, their minimal capital litigation training, and the
time constraints they were facing at trial.” Kreutzer, 59 M.J.
at 778. The military judge denied the motion without entering
any findings of fact by simply stating: “I find the law here at
Loving 3 at 250. I don’t find the showing requiring me to order
one.”5
5
The military judge was referring to this court’s decision in
United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994).
9
United States v. Kreutzer, No. 04-5006/AR
DISCUSSION
I.
Ruling of the U.S. Army Court of Criminal Appeals
Kreutzer appealed a number of issues to the Court of
Criminal Appeals,6 but the Army court addressed only two: “(1)
whether the military judge erred by denying [Kreutzer] the
services of an expert consultant in capital sentence mitigation,
and (2) whether appellant’s detailed trial defense counsel were
ineffective in their representation of [Kreutzer] at the
sentencing stage of trial.” Id. at 775. The court unanimously
agreed that the sentence must be set aside due to ineffective
assistance of counsel, a determination that the Government has
not appealed. A majority of the court found prejudicial error
in the denial of the mitigation specialist and set aside the
contested findings and sentence. The Government does not
contest that the military judge erred in denying a mitigation
specialist, but argues that the error was harmless beyond
reasonable doubt for the following reasons: (a) the Court of
Criminal Appeals erred in applying the test for harmless error;
(b) the majority opinion impeached itself; and (c) the nature of
the mental health evidence is not relevant to the element of
6
Kreutzer’s case was referred to the Army Court of Criminal
Appeals on September 27, 1996. Thereafter, Kreutzer filed two
briefs before the Army court. One was filed on March 9, 2001
and asserted twenty-one assignments of error. The other was
10
United States v. Kreutzer, No. 04-5006/AR
premeditation. Following discussion of the Government’s
contentions in regard to the Army court’s decision, we will
address whether the Government met its burden in establishing
that Kreutzer suffered no prejudice.
a. Did the Court of Criminal Appeals err in applying the test
for harmless error?
Arguments:
The Government argues that the Court of Criminal Appeals erred
in applying the test for harmless error in this case. The Army
court explained that the test for prejudice was whether the
error was harmless beyond a reasonable doubt. Kreutzer, 59 M.J.
at 779 (citing Chapman v. California, 386 U.S. 18 (1967)), and
went on to define that inquiry as “whether the error itself had
substantial influence” on the trial results. Id. (citing United
States v. Pollard, 38 M.J. 41, 52 (C.M.A. 1993)). The
Government urges that Pollard requires a threshold determination
that an error must be shown to “prejudice a litigant’s
substantial rights” before any burden to show harmlessness
beyond a reasonable doubt is imposed on the Government. 38 M.J.
at 52 (quoting Kotteakos v. United States, 328 U.S. 750, 760
(1946)). The Government argues that Kreutzer did not meet this
threshold showing of prejudice.
filed on February 12, 2002 and asserted another fifty-five
assignments of error.
11
United States v. Kreutzer, No. 04-5006/AR
Kreutzer argues that the Court of Criminal Appeals used the
correct standard in determining this error was not harmless. In
response to the Government’s Pollard argument, Kreutzer argues
that the Army court did find prejudice to his substantial rights
and, alternatively, that the finding that the error was not
harmless beyond a reasonable doubt created a de facto finding
that the error prejudiced his substantial rights. Finally
Kreutzer points out that this is a case in which the test for
harmlessness must be assessed by asking if even one member might
have been influenced to conclude that the Government did not
prove premeditation beyond a reasonable doubt. Had even one
member been so persuaded, death would have been removed as a
lawful punishment in this case.
Discussion:
The right to the expert assistance of a mitigation
specialist in a capital case is determined on a case-by-case
basis. See United States v. Loving, 41 M.J. 213, 250 (C.A.A.F.
1994).7 Where such a request is erroneously denied, that ruling
7
In light of recent Supreme Court decisions in this area, when a
defendant subject to the death sentence requests a mitigation
specialist, trial courts should give such requests careful
consideration in view of relevant capital litigation precedent
and any denial of such a request should be supported with
written findings of fact and conclusions of law. We find
unpersuasive the dissent’s reliance on a line of cases that
precedes the Supreme Court’s opinion in Wiggins v. Smith, 539
U.S. 510 (2003). We note that because there is no professional
death penalty bar in the military services, it is likely that a
12
United States v. Kreutzer, No. 04-5006/AR
implicates the right to present a defense, compulsory process,
and due process conferred by the Constitution, the right to
obtain witnesses and evidence conferred by Article 46, UCMJ, and
the right to the assistance of necessary experts conferred by
R.C.M. 703(d). Because Kreutzer was wrongly deprived of the
expert assistance of a mitigation specialist to aid in the
preparation of this capital case, the Court of Criminal Appeals
held that Kreutzer had been denied due process. Kreutzer, 59
M.J. at 779. Concerning findings, the lead opinion of the Court
of Criminal Appeals concluded: “Here the judge’s abuse of
discretion adversely impacted the fairness of the trial on
findings as to the issue of premeditation by depriving appellant
of a complete presentation of the evidence concerning his state
of mind . . . .” Id. at 779-80. The Government does not
contest the finding that Kreutzer was denied due process. This
error of constitutional magnitude must be tested for prejudice
under the standard of harmless beyond a reasonable doubt. See
Chapman, 386 U.S. at 24; United States v. Sidwell, 51 M.J. 262,
265 (C.A.A.F. 1999). The inquiry for determining whether
constitutional error is harmless beyond a reasonable doubt is
“whether, beyond a reasonable doubt, the error did not
contribute to the defendant’s conviction or sentence.” United
mitigation specialist may be the most experienced member of the
defense team in capital litigation.
13
United States v. Kreutzer, No. 04-5006/AR
States v. Kaiser, 58 M.J. 146, 149 (C.A.A.F. 2003) (quoting
United States v. Davis, 26 M.J. 445, 449 n.4 (C.M.A. 1988)). We
will reverse a conviction unless we find that a constitutional
error was not a factor in obtaining that conviction.
The Court of Criminal Appeals found that the denial of a
mitigation specialist was a denial of due process and
articulated the requirement that a conviction cannot be affirmed
if a constitutional error was not harmless beyond a reasonable
doubt. Kreutzer, 59 M.J. at 779-80 (citing Chapman v.
California, 386 U.S. 18 (1967)). This is “a familiar standard
to all courts.” Chapman, 386 U.S. at 24. Nonetheless, the
Court of Criminal Appeals went on to misstate the nature of the
inquiry.
The Army court defined the constitutional error inquiry as
follows: “In testing for harmless error we inquire ‘whether the
error itself had substantial influence’ on the trial results.”
Kreutzer, 59 M.J. at 779 (quoting Pollard, 38 M.J. at 52;
Kotteakos, 328 U.S. at 765). In Pollard we assessed the impact
of a trial counsel erroneously reading a victim’s pretrial
statement to the members in the guise of impeachment -– a
nonconstitutional trial error. 38 M.J. at 50-51. That
assessment was to determine if “an error of law . . . materially
prejudice[d] the substantial rights of the accused.” Pollard,
38 M.J. at 51-52; Article 59(a), UCMJ, 10 U.S.C. § 859(a)
14
United States v. Kreutzer, No. 04-5006/AR
(2000). In contrast to asking whether a constitutional error
contributed to a conviction, the quest for a “substantial”
influence seeks a more measurable impact or importance. When
constitutional error is substantial and, as reflected by
Chapman, where that error contributes to a conviction, the
conviction cannot stand. We hold that in relying upon Pollard
and testing this error for “substantial influence,” the Army
court applied an erroneous definition to the nature of the
inquiry into the effect of constitutional error.8 The error is
not material to this appeal, however, because the standard that
the Army court applied found harm under a test more favorable to
the Government than the standard it should have applied.
This court reviews de novo the issue of whether a
constitutional error was harmless beyond a reasonable doubt.
United States v. Hall, 56 M.J. 432, 436 (C.A.A.F. 2002); United
States v. Grijalva, 55 M.J. 223, 228 (C.A.A.F. 2001). For that
reason, we can conduct an independent review of the impact of
this constitutional error. See infra, Section II.
8
In light of this holding and the fact that Pollard is a case
dealing with nonconstitutional trial error, we need not address
the Government’s additional contentions regarding application of
Pollard and whether Pollard requires any type of threshold
showing.
15
United States v. Kreutzer, No. 04-5006/AR
b. Does the majority decision of the Court of Criminal
Appeals impeach itself with internally inconsistent
statements as to whether denial of a mitigation specialist
was harmless?
Arguments:
The Government’s argument in support of this contention
centers on what appears to be a facial inconsistency in the text
of the Court of Criminal Appeals’ opinion. As noted, that court
concluded that the Government did not meet its burden of showing
that the error in denying a mitigation specialist was harmless
beyond a reasonable doubt. Kreutzer, 59 M.J. at 779-80. In two
footnotes, however, the opinion discusses the test for
ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984). In that context, Judge
Clevenger, the author judge, states:
I specifically do not agree that the
prejudice prong of Strickland . . . has been
satisfied [as to contested issues in the
findings]. Notwithstanding the powerful
evidence that raises substantial concerns
about the quality of Appellant's mental
health, there is still substantial expert
opinion evidence of his ability to
premeditate and significant direct and
circumstantial evidence of the actual
process of his alleged premeditation that
fact-finders at trial could credit.
Kreutzer, 59 M.J. at 780 n.8 (citation omitted). Judge
Clevenger repeats his conclusion later:
To reiterate, even assuming the first prong
of the Strickland test for ineffective
16
United States v. Kreutzer, No. 04-5006/AR
assistance of counsel were satisfied, I
think there was not a reasonable probability
that any showing of Appellant's complete
mental health status would have overcome the
expert opinion evidence of sanity and the
direct and circumstantial evidence of
premeditation.
Id. at 784 n.11 (citation omitted).
The Government argues that with this language the Court of
Criminal Appeals impeached its own decision. In the
Government’s view Judge Clevenger found that the denial of a
mitigation specialist was not harmless beyond a reasonable doubt
but also said that the evidence a mitigation specialist would
produce had no reasonable probability of changing the result on
the findings. The Government argues that this internal
inconsistency demonstrates that denial of a mitigation
specialist was harmless beyond a reasonable doubt.
Kreutzer disputes the contention that the Army court
impeached its own decision by referencing the prejudice test for
ineffective assistance of counsel. Kreutzer points out that the
test for ineffective assistance involves a different standard
and burden when reviewing the effect of denial of competent
counsel. He notes that there is no reason to find any
inconsistency because it is wholly proper to come to distinct
conclusions under two separate tests with the burden falling
upon different parties.
17
United States v. Kreutzer, No. 04-5006/AR
Discussion:
We agree that there is an appearance of inconsistency. We
do not agree, however, that that inconsistency is necessarily
erroneous nor do we find that Judge Clevenger impeached his own
decision in his footnotes. Trial and appellate practices are
replete with different burdens of proof and persuasion that are
allocated to one party or another.
The party benefiting from a constitutional error bears the
burden of demonstrating that the error was harmless beyond a
reasonable doubt. Chapman, 386 U.S. at 24; Simmons, 59 M.J. at
489. See also Kaiser, 58 M.J. at 149 (citation omitted) (“Error
of constitutional dimensions requires either automatic reversal
or an inquiry into whether, beyond a reasonable doubt, the error
did not contribute to the defendant’s conviction[.]”); Grijalva,
55 M.J. at 228 (“When there has been an error of constitutional
dimension, this Court may not affirm unless it is satisfied that
the error is harmless beyond a reasonable doubt.”). Thus, in
this case, the Government is called upon to show that the error
had no causal effect upon the findings. Specifically, the
Government had to demonstrate that there was no reasonable
possibility that the absence of a mitigation specialist
contributed to the contested findings of guilty. See Gutierrez
v. McGinnis, 389 F.3d 300, 307-08 (2d Cir. 2004).
18
United States v. Kreutzer, No. 04-5006/AR
The test and burden relating to prejudice from ineffective
assistance of counsel are different. If an appellant
establishes that counsel was ineffective under the first prong
of Strickland, it is the appellant as opposed to any party
benefiting from error (in this case, the Government) who bears
the burden of demonstrating prejudice. United States v. Davis,
60 M.J. 469, 473 (C.A.A.F. 2005); United States v. Dewrell, 55
M.J. 131, 133 (C.A.A.F. 2001). To establish prejudice, the
appellant must demonstrate a reasonable probability that, but
for counsel’s deficiency, the result would have been different.
Davis (citing United States v. Quick, 59 M.J. 383, 587 (C.A.A.F.
2004)). The appellant must demonstrate such prejudice as to
indicate a denial of a “fair trial, a trial whose result is
unreliable.” Dewrell, 55 M.J. at 133 (citing Strickland, 466
U.S. at 687). In this setting, overwhelming evidence of guilt
may present an insurmountable obstacle to an appellant claiming
prejudice from ineffective assistance of counsel.
The tests for determining constitutional harmless error and
for determining prejudice under an ineffective assistance
analysis are substantially different: the burden falls on
different parties (the Government vs. the appellant); the
burdens themselves are different (possibility vs. probability);
and different considerations are given to the quality and weight
of the evidence of guilt in each test. In applying the two
19
United States v. Kreutzer, No. 04-5006/AR
tests, it is therefore not unreasonable or illogical to come to
two different conclusions, even in a single case. In light of
this, and according Judge Clevenger the presumption that he knew
the law, we find no impeaching inconsistency within the opinion.
See United States v. Eversole, 53 M.J. 132, 138 (C.A.A.F. 2000).
c. Is the nature of the mental health evidence potentially
gathered by a mitigation specialist relevant to the
contested elements of premeditation?
Arguments:
The Government acknowledges that general mental health
evidence is relevant to establish mens rea, but argues that in
this case, due to Kreutzer’s specific personality disorders, any
potential mental health evidence that a mitigation specialist
could have obtained would not be relevant to the findings. The
Government characterizes Kreutzer’s mental health history as
demonstrating diminished capacity and asserts that because
evidence of diminished capacity is not relevant to the issue of
mental responsibility, it could not negate the element of
premeditation. Kreutzer, on the other hand, claims that a
mitigation specialist would have identified additional mental
health evidence as well as helped defense counsel identify and
better use experts. Kreutzer asserts that in the end a
mitigation specialist would have substantially contributed to
presenting a more coherent and stronger mental health theory at
20
United States v. Kreutzer, No. 04-5006/AR
trial and that it is possible the members, or at least one
member, could have come to a different conclusion on findings.
Discussion:
Under the circumstances of this case we disagree with the
Government’s generalization that none of the mental health
evidence that was available could or would have an impact upon a
member’s determination of premeditation. We have not limited
military justice jurisprudence to a narrow use of mental health
evidence. Indeed, Ellis v. Jacob, 26 M.J. 90, 93 (C.M.A. 1988),
dispelled any construction of Article 50a(a), UCMJ, 10 U.S.C. §
850a(a) (2000), that would eliminate evidence of mental
conditions relevant to premeditation, specific intent,
knowledge, or willfulness, i.e., elements of offenses. See also
United States v. Schap, 49 M.J. 317, 322 (C.A.A.F. 1998).
The record reflects a wealth of mental health information
in this case. A mix of psychological and psychiatric
professionals were involved with Kreutzer both before and after
the offenses. One mental health professional, Dr. (Colonel)
Robert Brown Sr., opined that Kreutzer was “chronically and
seriously mentally ill.” This particular information was not
known to Kreutzer’s defense counsel prior to trial. Properly
prepared and presented, testimony of this nature arguably could
go beyond demonstrating diminished capacity and be a substantial
part of a defense against the premeditation element. As Judge
21
United States v. Kreutzer, No. 04-5006/AR
Clevenger’s lead opinion for the Court of Criminal Appeals
points out:
The mitigation specialist’s role would be to
gather and collate appellant's civilian and
military history with a view to the
psychiatric issues that would help explain
appellant's state of mind at the critical
time of the shooting. One could speculate
endlessly on what such an expert, if
provided, would have done to help the
detailed defense counsel assess the whole
story . . . .”
Kreutzer, 59 M.J. at 778-79. Amidst the “wealth of relevant
information available to discover, investigate, preserve,
analyze, evaluate and potentially exploit at trial in defense of
the premeditation allegations,” Judge Clevenger found “most
telling” the fact that Dr. Brown’s “potentially powerful,
exculpatory mental status evidence was not discovered by, or
known to the defense counsel, at the time of trial.” Id. at
779.
The Government must show there is no reasonable possibility
that even a single court member might have harbored a reasonable
doubt in light of the mental health evidence that the mitigation
specialist could have gathered, analyzed, and assisted the
defense to present. Had but a single member harbored a
reasonable doubt, death would have been excluded as a
permissible punishment. The Government has not met its burden
of demonstrating that a mitigation specialist could have done
nothing to assist counsel to present additional evidence of
22
United States v. Kreutzer, No. 04-5006/AR
Kreutzer’s mental health that would not have had an impact on
the premeditation element for at least one court member.
II.
De novo review for harmlessness beyond a reasonable doubt
We have held in this opinion that the Court of Criminal
Appeals applied an incorrect definition to the nature of the
constitutional harmless error inquiry and that we review de novo
the impact of that error in this case. Kreutzer urges us to
affirm the Court of Criminal Appeals regardless of the error.
He argues that if the Government could not meet the erroneous
lower standard applied by the Army court, then it surely could
not demonstrate that the error in denying the mitigation
specialist was harmless beyond a reasonable doubt.
The Government must demonstrate there is no reasonable
possibility that the absence of a mitigation specialist
contributed to the contested findings of guilty or, in this
case, that not even a single member would have harbored a
reasonable doubt after considering the mental health evidence
that the mitigation specialist could have gathered, analyzed,
and assisted the defense in presenting. We do not believe that
the Government has met that burden.
To place this discussion in its proper context, it is
necessary to examine the role of a mitigation specialist in
23
United States v. Kreutzer, No. 04-5006/AR
capital litigation, both generally and in this case. The
general role of a mitigation specialist was discussed in a
report adopted by the Judicial Conference of the United States:
Mitigation specialists typically have graduate
degrees, such as a Ph.D. or masters degree in social
work, and have extensive training and experience in
the defense of capital cases. They are generally
hired to coordinate an investigation of the
defendant’s life history, identify issues requiring
evaluation by psychologists, psychiatrists or other
medical professionals, and assist attorneys in
locating experts and providing documentary material
for them to review.9
The American Bar Association recommends the inclusion of a
mitigation specialist on every capital litigation defense team
and identifies the mitigation specialist as a “core member” of
the defense team:
A mitigation specialist is also an indispensable
member of the defense team throughout all capital
proceedings. Mitigation specialists possess clinical
and information-gathering skills and training that
most lawyers simply do not have. They have the time
and the ability to elicit sensitive, embarrassing and
often humiliating evidence (e.g., family sexual abuse)
that the defendant may have never disclosed. They
have the clinical skills to recognize such things as
congenital, mental or neurological conditions, to
understand how these conditions may have affected the
defendant’s development and behavior, and to identify
the most appropriate experts to examine the defendant
or testify on his behalf. Moreover, they may be
critical to assuring that the client obtains
therapeutic services that render him cognitively and
9
Judicial Conference of the U.S., Subcomm. on Federal Death
Penalty Cases, Comm. on Defender Services Federal Death Penalty
Cases: Recommendations Concerning the Cost and Quality of
Defense Representation 24 (1998).
24
United States v. Kreutzer, No. 04-5006/AR
emotionally competent to make sound decisions
concerning his case.10
When Kreutzer’s defense attorneys made their requests for a
mitigation specialist they supported it with an affidavit from
Dr. Lee Norton, Ph.D., a mitigation specialist. Doctor Norton
provided extensive background on what a mitigation specialist
could provide in regard to mental health evidence.11 In addition
to the general importance of a mitigation specialist in death
penalty cases, mitigation specialists may play a particularly
important role in ensuring the fair and full adjudication of
military death penalty cases where, as here, counsel have little
training or experience in capital litigation.
This case is replete with evidence or information
indicating that Kreutzer’s mental health was dubious. Yet the
10
American Bar Association Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases Commentary
to Guideline 4.1 (revised ed. 2003) (footnote omitted),
reprinted in 31 Hofstra L. Rev. 913, 959 (2003) [hereinafter
Commentary to ABA Death Penalty Counsel Guideline 4.1].
11
Dr. Norton noted that a mitigation specialist gathers all
pertinent information including all private medical records
relating to mental health and mental health care, all social
services records relating to mental health treatment, and all
military medical records. Collection of mental health data is
accompanied by “comprehensive interviews” of lay and
professional persons who have observed the accused and have some
knowledge of his mental health conditions. These people
include, but are not limited to, family, friends, teachers,
coworkers, employers, doctors, mental health and social services
personnel, and military peers and superiors. This mental health
data and related interviews detect evidence of early signs of
mental illness or deficiencies as well as give a portrayal of
the onset, course and treatment of mental disorders.
25
United States v. Kreutzer, No. 04-5006/AR
presentation of the defense case-in-chief includes testimony
from only three individuals about Kreutzer’s performance,
behavior and reputation, and expert testimony from a single
mental health professional. Color Sergeant David Wakeland12
testified that Kreutzer was an average or above-average soldier
and noncommissioned officer. He also discussed some matters
that may have been stressful for Kreutzer as well as how
Kreutzer’s threats and absence were reported on the morning of
the shooting.
Specialist Robert Harlan, Kreutzer’s roommate, testified
about the ridicule Kreutzer endured, an incident involving
threats while the unit was in the Sinai, the chain of command’s
treatment of Kreutzer, and Kreutzer’s emotional state on the day
before the shooting. A stipulation of the expected testimony of
Sergeant Arthur Swartz provided a further indication that
Kreutzer was not respected in the unit.
The only mental health professional called by the defense
on the merits was Doctor (Major) Carroll J. Diebold, the Chief
of the Department of Psychiatry and Neurology at Womack Army
12
Color Sergeant Wakeland was a member of the British Army
assigned to Fort Bragg and who served as Kreutzer’s platoon
sergeant. He testified that the rank of color sergeant was the
equivalent of an E-8 (master sergeant) in the United States
Army.
26
United States v. Kreutzer, No. 04-5006/AR
Medical Center, Fort Bragg, North Carolina.13 Accepted as an
expert in the fields of psychiatry and forensic psychiatry, Dr.
Diebold participated in a sanity board evaluation of Kreutzer in
December 1995. He described how the sanity board had proceeded
and testified that the board found Kreutzer to have “an
adjustment disorder with mixed anxiety and depressed mood” and
“dysthymia,” which is “low grade depression.” Generally, Dr.
Diebold testified that a person with these personality traits
would react to stress with a “spike” into a “detrimental
behavior zone.” Finally Dr. Diebold opined that factors similar
to those Kreutzer experienced prior to the shooting “would
produce a narcissistic injury and an interpretation by Sergeant
Kreutzer as a threat on his own character” and cause the “spike”
effect.
Trial counsel noted in closing that Dr. Diebold said
Kreutzer’s mental disorders “are not even considered severe” and
contrasted that with defense counsel’s opening statement
promising to show that Kreutzer “was suffering from a severe
personality disorder.” Trial counsel also reminded the members
that Dr. Diebold testified that none of Kreutzer’s disorders
impaired the formation of the intent to kill or the ability to
premeditate. Kreutzer’s defense counsel responded that
13
Doctor Diebold was called as a defense witness despite his
recommendation to defense counsel “that they should reconsider
27
United States v. Kreutzer, No. 04-5006/AR
Kreutzer’s actions before the shooting were a “cry for help.”
He argued that when the unit started moving out for the run,
Kreutzer “spiked” due to the stress and formed the intent to
pull the trigger, but that he never intended to kill, nor did he
premeditate.
Despite the rather limited defense mental health
presentation on the merits, the record on appeal reveals
significant additional mental health evidence potentially
available to the defense. Doctor Darren Fong, the first mental
health professional with whom Kreutzer spoke did not testify.
Kreutzer spoke with Dr. Fong about killing members of his unit.
However, rather than believing that Kreutzer’s homicidal
ideation was serious, Dr. Fong believed that Kreutzer had
“problems with anger and very poor coping skills,”
“interpersonal problems,” and “probably a history of
psychological problems.”
After he was apprehended, Kreutzer saw Dr. (then-Captain)
Wendi T. Diamond, the division psychiatrist for the 82d Airborne
Division at Fort Bragg. Doctor Diamond indicated that “[n]ever
in all my life had I seen someone in so much psychic distress.”
She believed that Kreutzer “was not at all rational during our
conversation” and that his thoughts were “disordered.” Doctor
calling me to testify” and he specifically indicated that his
“testimony might not be helpful in front of the panel.”
28
United States v. Kreutzer, No. 04-5006/AR
Diamond was not contacted by the trial or defense counsel prior
to trial, a fact that surprised her because she “believed that
both sides could have benefited from [her] assessment of SGT
Kreutzer’s mental state very close to the time of the offenses.”
The potential value of Kreutzer’s discussions with Dr. Diamond
to the defense is underscored by the comments of a Government
lawyer who observed that interview: “Conclusion: Prepare for
Insanity Defense! This guy is nutty [sic] than a fruit cake.”
Kreutzer, 59 M.J. at 777.
In pretrial confinement Kreutzer was seen for a suicide
assessment by Lieutenant Commander Drew Messer who received his
professional training in a dual degree law and psychology
program. Lieutenant Commander Messer concluded that Kreutzer
was “profoundly depressed” and felt that “there were definite
mental health issues in the case.” Nonetheless, he never met
with any of Kreutzer’s defense attorneys.
At the defense’s request, mental health professionals at
the Walter Reed Army Medical Center Forensic Psychiatric Program
were appointed as expert consultants to the defense. Doctor
Robert S. Brown Sr. was a consultant to the Forensic Psychiatric
Program and participated in evaluating Kreutzer’s mental
condition. Doctor Brown met with Kreutzer on April 11, 1996 and
delivered a written report to Dr. Lande, Chief of the Forensic
Psychiatric Program, on that same day. Doctor Brown’s report
29
United States v. Kreutzer, No. 04-5006/AR
opined that Kreutzer was “chronically and seriously mentally
ill” and that the offenses were “causally related to his mental
illness.” While defense counsel did have discussions with Dr.
Lande, they were not aware of Dr. Brown or his written
evaluation until after trial.
A post-trial mitigation specialist’s report was attached as
part of the appellate record. This report reveals that Kreutzer
suffered mental and emotional problems prior to entering the
Army. He lacked self-confidence and held himself in low esteem,
feelings that became worse during junior high school. Symptoms
of depression began when Kreutzer was twelve and increased
during his high school years when he also experienced suicidal
ideation. Kreutzer continued to be depressed and experienced
his first homicidal feelings during his college years. His
suicidal ideation manifested itself even more during his college
years when he pointed loaded weapons at his head several times.
In contrast to this wealth of mental health information and
history favorable to a defense presentation, there is mental
health evidence that would indicate that Kreutzer premeditated
his actions and was mentally responsible. Doctor Rollins, a
privately employed forensic psychologist opined that Kreutzer
had no severe mental disorder and was competent to stand trial.
Doctor Rollins was not employed by the defense to serve as an
expert consultant or witness because of financial
30
United States v. Kreutzer, No. 04-5006/AR
considerations, but he recommended that the defense put its main
effort into the case in mitigation. Further, a sanity board
found Kreutzer competent and not to be suffering from a severe
mental disease or defect.
The Government also points to the “interim report” prepared
by a mitigation specialist on behalf of the defense for
appellate litigation. The Government notes that this appellate
mitigation specialist’s report considered the foregoing evidence
pertaining to Kreutzer’s mental health and makes no conclusion
of lack of mental responsibility or health that would overcome
premeditation. Therefore, the Government argues that the
mitigation specialist, if provided at trial, would have been
relevant only to sentencing and not to findings, and that any
error is therefore harmless beyond a reasonable doubt.
We are not persuaded that the Government has met its burden
of showing that Kreutzer could not have possibly benefited from
the talent and expertise of a mitigation specialist on findings.
We need not speculate on precisely how the wealth of mental
health evidence could have been used at trial. Although capital
cases do not confer a per se right to a mitigation specialist,
on a case-by-case basis servicemembers confronted with a capital
prosecution are entitled to mitigation specialists where their
services would be necessary to the defense team. We believe
that the Government gives too little weight to the possible
31
United States v. Kreutzer, No. 04-5006/AR
worth of a mitigation specialist in this case. The UCMJ and the
R.C.M. assure that the defense counsel has the resources,
including expert assistance, to prepare and present the defense.
See Article 46, UCMJ; R.C.M. 703. The military accused’s rights
in this regard are not dependent upon indigence, nevertheless we
agree with the spirit of the Arizona Supreme Court’s statement
that “[s]o long as the law permits capital sentencing,” the
justice system “must provide adequate resources to enable
indigents to defend themselves in a reasonable way.” See State
v. Bocharski, 22 P.3d 43, 55 (Ariz. 2001).
While the services of a mitigation specialist are commonly
used in sentencing, in the appropriate case this expert
assistance may be necessary to the defense on findings as well.
As the Commentary to ABA Death Penalty Counsel Guideline 4.1
states, the mitigation specialist is an “indispensable member of
the defense team throughout all capital proceedings.”
Kreutzer’s three uniformed attorneys recognized that they could
not gather, analyze, and formulate this mental health evidence;
a mitigation specialist could have done so and assisted counsel
in identifying qualified mental health experts to present the
evidence on both the merits and on sentencing. In turn, the
defense on the merits could have incorporated that analysis
either to bolster the theory that was used at trial or to create
a different theory to contest premeditation on the merits. For
32
United States v. Kreutzer, No. 04-5006/AR
example, the defense might have used testimony from Dr. Fong to
show that he did not take Kreutzer’s talk about killing
seriously and that Kreutzer had a history of homicidal ideation.
The defense could have then argued that the members should
discount Kreutzer’s night-before statements to SP4 Mays because
they were more homicidal fantasy than premeditation.
Alternatively, defense counsel might have argued
that the additional mental health information produced by a
mitigation specialist demonstrated that Kreutzer was susceptible
to stress stimuli and was exhibiting “spiked” behavior as
opposed to a premeditated intent in committing his
crimes. Further, defense counsel may have used the additional
information to attack and cloud the findings of the sanity board
and try to suggest that while Kreutzer might have been mentally
responsible under the law, he did not have the mental capacity
to premeditate his crimes. The question is not whether these
arguments are persuasive in the abstract, but rather, in light
of the fact that Kreutzer was denied the fair opportunity to
make these arguments, whether the Government has shown that the
error in denying the defense request for a mitigation specialist
was harmless beyond a reasonable doubt.
We answer the certified question in the negative.
Erroneous denial of Kreutzer’s request for a mitigation
specialist was error of constitutional magnitude. As such, the
33
United States v. Kreutzer, No. 04-5006/AR
Government must show there was no reasonable possibility that
even a single court member might have harbored a reasonable
doubt in light of the mental health evidence that the mitigation
specialist could have gathered, analyzed, and assisted the
defense to present. Had but a single member harbored a
reasonable doubt, death would have been excluded as a
permissible punishment. In light of these factors, including
the relative experience and training of Kreutzer’s defense
counsel in capital litigation and the evidence relating to
Kreutzer’s mental health history, we hold that the Government
has not met its burden of demonstrating that the error in
denying Kreutzer’s request for employment of a mitigation
specialist was harmless beyond a reasonable doubt as to the
contested findings.
DECISION
The certified question is answered in the negative and the
decision of the United States Army Court of Criminal Appeals is
affirmed.
34
United States v. Kreutzer, No. 04-5006/AR
CRAWFORD, Judge (dissenting):
I respectfully dissent from the majority’s expansion of Ake
v. Oklahoma, 470 U.S. 68 (1985), by finding in the U.S.
Constitution a right of an accused to a death penalty mitigation
specialist on the defense team, without the accused first
demonstrating the need for such an expert. In granting this
right of “constitutional magnitude,” 61 M.J. ___ (13), the
majority places this Court outside of the judicial mainstream.
The majority fails to consider the opinions of federal and state
courts regarding the right to a capital mitigation specialist,
the expertise and funding provided to the defense at trial, and
recent precedent from this Court, as well as the majority of the
decisions by federal and state courts ruling on the law-of-the-
case doctrine.
FACTS
Prior to trial, the military judge made available to the
defense team six psychiatrists in the Psychiatric Department at
Walter Reed Army Medical Center, including the former chief
psychiatrist, who is a certified forensic psychiatrist and
lawyer. Additionally, this psychiatric team would work together
with consultants at the National Naval Medical Center. The
defense agreed that this team of psychiatrists was more than
adequate. The convening authority also assigned a
noncommissioned officer (NCO) investigator and provided funding
United States v. Kreutzer, No. 04-5006/AR
for the defense team. Later, the defense requested the services
of a “mitigation specialist” because the “defense counsel lacked
the experience and scientific expertise to uncover all
potentially mitigating events or factors” in Appellee’s case.
The defense argued “we’re not qualified to do the job of
psychologists, psychiatrists, and social workers that require
years of training in and of itself. To ask an attorney to
compress and consolidate years of training into a few months is
neighwell [sic] impossible, sir.” The military judge denied the
request, relying on United States v. Loving, 41 M.J. 213, 250
(C.A.A.F. 1994), which states:
While use of an analysis prepared by an independent
mitigation expert is often useful, we decline to hold
that such an expert is required. What is required is
a reasonable investigation and competent presentation
of mitigating evidence. Presentation of mitigation
evidence is primarily the responsibility of counsel,
not expert witnesses.
Alternatively, the defense asked the military judge to provide
Appellee’s defense team with travel funds associated with
building Appellee’s case. The judge granted the request for
travel funds and told them to return if they did not receive the
funds they wanted. Id. The defense did not return for
additional funding. Based on the defense’s extensive traveling
and the fact they did not seek additional funding, we may infer
the defense received all the funding they needed. There simply
is no evidence that funding was limited.
2
United States v. Kreutzer, No. 04-5006/AR
On appeal, two judges on the Court of Criminal Appeals
(CCA) found that the military judge abused his discretion in
denying a request by the defense counsel for an expert
mitigation specialist, and that this denial was not harmless
beyond a reasonable doubt. United States v. Kreutzer, 59 M.J.
773, 779-80 (A. Ct. Crim. App. 2003). The panel unanimously
found ineffectiveness of counsel during the sentencing portion
of the trial. Id. at 780-85.
DISCUSSION
The Judge Advocate General certified the issue of whether
that court “[1] erred when it found [2] denial of a [3]
mitigation specialist to be [4] prejudicial error for findings”
when it also “found that all evidence that the mitigation
specialist would have discovered would not have a reasonable
probability of producing a different result.” The certified
issue asks us to determine whether there was a “denial” of a
“mitigation specialist” and, if so, whether that “denial” was
“prejudicial error for findings.”
At the outset, we must determine the source of the right at
issue and what standard should be applied on appeal. Only after
making this determination can we examine the standard of review
by which to assess whether any error may be prejudicial. If
there was error, we must also determine whether that error was
prejudicial for findings, and, if so, whether that holding is
3
United States v. Kreutzer, No. 04-5006/AR
consistent with an established approach of assessing the case
for a “reasonable probability of a different result.”
The certified issue asks us to examine the holding of the
court below pertaining to findings, wherein the court stated,
“defense counsel’s investigation into appellant’s mental health
background fell short of reasonable professional standards,” and
two of the judges agreed that this deficiency concerning expert
opinion evidence would have a direct impact on the issue of
mental responsibility and premeditation. Kreutzer, 59 M.J. at
784 n.11.
Authority to Consider the Issues
The majority would hold that the Judge Advocate General has
not certified the question of a right to a mitigation
specialist. That issue, however, is intertwined with the issues
certified in this case. Note that the CCA held that Appellee
was wrongly deprived of expert assistance of a mitigation
specialist to aid in the preparation of this capital case and
that this was a denial of due process. Id. at 779. Affirming
the CCA, the majority holds that there was “a constitutional
error” and that “[w]hen a constitutional error is substantial
and . . . where that the error contributes to a conviction, the
conviction cannot stand.” 61 M.J. ___ (15).
In this case, the majority fails to consider the majority
of the decisions by federal and state courts ruling on the law-
4
United States v. Kreutzer, No. 04-5006/AR
of-the-case doctrine and does not recognize cases that have been
decided by this Court since United States v. Grooters, 39 M.J.
269 (C.M.A. 1994).1 “Law of the case” may mean different things
to different people, but it does not mean that the highest court
that oversees the military justice system is bound by erroneous
interpretations of law by the courts of criminal appeals.2
Certainly, where the military judge and the court below are
correct, there is no reason to reexamine the ruling. See, e.g.,
United States v. Daniels, 60 M.J. 69, 71 (C.A.A.F. 2004). If
the court below is wrong on a constitutional question, however,
this Court is not bound by that ruling, and the standard of
review is de novo.
No Right to a Mitigation Specialist
While the Supreme Court has not addressed whether there is
a constitutional right to obtain a mitigation specialist, a
1
United States v. Williams, 41 M.J. 134, 135 n.2 (C.M.A. 1994).
(“The law-of-the-case doctrine does not preclude this Court,
once the case has been properly granted for review, from
considering an erroneous conclusion of law, made by” the court
below.); United States v. Morris, 49 M.J. 227, 230 (C.A.A.F.
1998) (Court limited law-of-the-case doctrine).
2
It is illogical to say that an intermediate appellate court can
bind a higher court. See, e.g., England v. Hospital of Good
Samaritan, 97 P.2d 813, 814-15 (Cal. 1939); New York Life
Insurance Company v. Hosbrock, 196 N.E. 888, 890 (Ohio 1935).
See also Castro v. United States, 540 U.S. 375, 383-84
(2003)(“The law-of-the case doctrine cannot pose an
insurmountable obstacle to our reaching [our] conclusion.
Assuming for argument’s sake that the doctrine applies here, it
simply ‘expresses’ common judicial ‘practice’; it does not limit
the courts’ power.”).
5
United States v. Kreutzer, No. 04-5006/AR
majority of federal and state courts have held that a capital
defendant is not entitled to a mitigation specialist as a
constitutional right.3 Ake did not hold that the defendant has a
right to a capital mitigation specialist. Rather, the Supreme
Court held that where there is a serious question about lack of
mental responsibility, that is, where the defense has made a
“preliminary showing that his sanity at the time of the offense
is likely to be a significant factor at trial,” the defendant is
entitled to a psychiatric examination. Ake, 470 U.S. at 74.
The majority stressed that the ruling was based on the fact that
the defendant’s mental condition at the time of the offense was
“seriously in question.” Id. at 82. According to the Court:
[W]hen a defendant demonstrates to a trial judge that
his sanity at the time of the offense is to be a
significant factor at trial, the State must, at a
minimum, assure the defendant access to a competent
psychiatrist who will conduct an appropriate
examination and assist in evaluation, preparation, and
presentation of the defense.
Id. at 83. Both the federal and state courts have resisted an
expansive reading of Ake.
3
State v. Lott, Nos. 66388, 66389, 66390, 1994 Ohio App. LEXIS
4965 at *35, 2002 WL 615012, at *13 (Ohio Ct. App. Nov. 3,
1994)(mere assertion that the assistance of an expert would be
useful was an insufficient basis on which to grant relief);
State v. Langley, 839 P.2d 692, 697 (Or. 1992)(denial of
mitigation investigator was not error); Commonwealth v. Reid,
642 A.2d 453, 457 (Pa. 1994)(failure to approve funds to obtain
particular psychologist as mitigation expert did not violate
Ake).
6
United States v. Kreutzer, No. 04-5006/AR
After Ake, the Court held that its decision should not be
construed to compel the Government to provide an indigent with
the assistance of an expert outside the limited circumstances of
Ake. Caldwell v. Mississippi, 472 U.S. 320, 323 n.1 (1985)(“We
therefore have no need to determine as a matter of federal
constitutional law what if any showing would have entitled a
defendant to assistance of the type here sought,” i.e., a
criminal investigator, a fingerprint expert, and a ballistic
expert). Both Ake and Caldwell emphasize the minimum showing
required of the defense. Like our cases, Ake sets out a balance
among private interests, Government interests, and the probative
value of testimony sought, noting that mental condition evidence
may be crucial to the defense. But the defense must establish
that fact. Both the precedent of federal and state courts and
our own precedent require that the defendant show the necessity
for expert assistance and that the lack of such assistance would
result in a fundamentally unfair trial. See, e.g., Moore v.
Kemp, 809 F.2d 702, 712 (11th Cir. 1987); Gray v. Thompson, 58
F.3d 59, 66-67 (4th Cir. 1995), vacated on other grounds, Gray
v. Netherland, 518 U.S. 152 (1996); Little v. Armontrout, 835
F.2d 1240, 1244 (8th Cir. 1987).
In People v. Burt, 658 N.E.2d 375 (Ill. 1995), the court
stated that Ake does not compel the appointment of a mitigation
specialist. Id. at 389 (citing People v. Lear, 572 N.E.2d 8767
United States v. Kreutzer, No. 04-5006/AR
(Ill. 1991). The Supreme Court of Illinois stated that: “We
have specifically held that a trial court is not
constitutionally required to appoint a mitigation expert, or
even an investigator, because defense counsel is capable of
obtaining and presenting such information.” Id. The court
noted further that “[E]ven Ake did not provide that the indigent
defendant has a constitutional right to choose a particular
psychiatrist or receive funds to hire his own.” Id. As in
Appellee’s case, the Burt court noted that defendant was given
the assistance of counsel, an investigator, and a psychologist
for the purposes of securing and presenting mitigating evidence.
Id. There was adequate assistance and, accordingly, no
violation of the defendant’s constitutional rights in failing to
appoint a mitigation specialist. Id.
Similarly, in Stewart v. Gramley, 74 F.3d 132 (7th Cir.
1996),4 the court held that counsel was not ineffective in
failing to talk to the members of Stewart’s family or other
potential witnesses. Id. at 135. Members of his family and
other witnesses did testify on his behalf during the sentencing
proceedings, but had not been interviewed in advance. Id.
Failure to investigate whether he had used drugs or had a
history of drug use did not show ineffectiveness. Id. What
4
See also State v. McGuire, 686 N.E.2d 1112, 1120 (Ohio 1997)
(hiring a mitigation specialist is not a requirement of
effective assistance of counsel).
8
United States v. Kreutzer, No. 04-5006/AR
counsel must do in mitigation is “less clear,” the court said.
Id. What is clear, however, is that the courts apply a
Strickland standard. Id.
The Stewart court also held that a defendant does not have
the right to introduce causality evidence under a Strickland
analysis. Id. at 136. Prior to Stewart, the Seventh Circuit
held in Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir. 1989),
that a lawyer “must make a ‘significant effort, based on
reasonable investigation and logical argument’” to discover
mitigating evidence. In Stewart, however, the court clarified
the rule and indicated that where there is no outward appearance
that the defendant has some mental condition or impairment,
counsel may surmise after talking to the defendant that such an
investigation would be fruitless. 74 F.3d at 135. The court
recognized that defense lawyers have limited resources and only
a short period of time to prepare for sentencing. Id. Thus,
they do not have to investigate the “defendant’s past with the
thoroughness of a biographer.” Id.
In Stewart, the court refused to accept the causality
approach towards mitigating evidence, recognizing the “slippery
slope” created by the assumption that one’s past essentially
influences everything. See id. at 136. Under the causality
approach to analyzing childhood environment and criminal
activity, the fact-finders are invited to conclude that a
9
United States v. Kreutzer, No. 04-5006/AR
disadvantaged childhood environment makes individuals less
legally responsible as adults. The fact-finders are asked to
accept, for instance, that murderers are compelled to murder
because of their past, and that they should be excused because
the past may essentially influence everything they do in the
future.
As discussed above, the Supreme Court has not held that
there is a constitutional right to a mitigation specialist. In
light of this, we should carefully distinguish this case from
Wiggins v. Smith, 539 U.S. 510 (2003). Wiggins is not
inconsistent with the federal and state cases that hold there is
no right to a capital mitigation specialist and certainly does
not overrule Loving. In Wiggins, the Supreme Court held the
defense attorney’s failure to investigate the defendant’s
background and present mitigating evidence concerning his
difficult life constituted ineffectiveness of counsel. Id. at
515-38. The evidence in Wiggins was “relevant to assessing
defendant’s moral culpability.” Id. at 535. “Wiggins
experienced severe privation and abuse in his first six years of
his life while in the custody of his alcoholic, absentee mother.
He suffered physical torment, sexual molestation, and repeated
rape during his subsequent years in foster care.” Id. The
Court noted that lawyers are not required to present “every
conceivable line of mitigating evidence” or to pursue a
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United States v. Kreutzer, No. 04-5006/AR
mitigating defense in every case. Id. at 533. But they should
discover all “reasonably available mitigating evidence.” Id. at
524. If they decide not to pursue evidence, that should be
supported by “reasonable professional judgment.” Id. at 521.
“Given both the nature and extent of the abuse petitioner
suffered, [the Supreme Court found] there to be a reasonable
probability that a competent attorney, aware of this history,
would have introduced it at sentencing and in an admissible
form.” Id. at 535. The Court found that the record strongly
suggested that counsel’s failure to investigate thoroughly the
defendant’s personal history resulted from inattention.
“Counsel’s decision not to expand the investigation beyond the
PSI [presentence investigative report] and the DSS [Department
of Social Services] record fell short of the professional
standards that prevailed in Maryland [at the time of trial].”
Id. at 524. The standard remains that failure to present
mitigating evidence is not per se ineffectiveness of counsel,
because there may very well be tactical reasons for not
introducing certain documents and testimony, for example,
opening the door to inadmissible evidence or privileged
information. See, e.g., United States v. Dupas, 14 M.J. 28(C.M.A. 1982).
Not only does Wiggins not change the case law as to
ineffectiveness of counsel, but the facts in Wiggins are so
11
United States v. Kreutzer, No. 04-5006/AR
clearly distinguishable from those in Appellee’s case that, as a
legal precedent, Wiggins is inapposite. Unlike Wiggins,
Appellee’s counsel was not inattentive to his background.
Appellee’s counsel assembled an extensive defense team of
counsel, psychiatrists, and an NCO investigator with unlimited
travel funds to investigate and gather mitigating evidence.
This team had the report of the investigation pursuant to
Article 32, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §
832 (2000), and numerous psychological reports based on various
tests performed on Appellee. The testing and conclusions of
these experts were confidential because they were made by
individuals working as members of the defense team.
Unwarranted Remedy
Rather than ordering a hearing under United States v.
DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), ordering affidavits
from defense counsel as to the reason for their decisions, or
even presuming that the defense team exercised reasonable
professional judgment, the majority reverses the findings.
In leaping beyond the guidance of the Supreme Court to find
this right of “constitutional magnitude,” the majority relies
upon “the right to present a defense, compulsory process, and
due process conferred by the Constitution,” the UCMJ, and the
Rules for Courts-Martial. 61 M.J. ___ (13). This is
unfortunately consistent with this Court’s recent overreliance
12
United States v. Kreutzer, No. 04-5006/AR
on due process, often without articulation of the source for
that reliance. See, e.g., United States v. Richardson, 61 M.J.
113 (C.A.A.F. 2005); United States v. Jones, 61 M.J. 80(C.A.A.F. 2005); United States v. Oestmann, 61 M.J. 1003(C.A.A.F. 2005); United States v. Cosby, No. 05-0058, 2005 CAAF
LEXIS 411 (C.A.A.F. Apr. 15, 2005); United States v. Moreno, 61
M.J. 59 (C.A.A.F. 2005); United States v. Brewer, 61 M.J. 51(C.A.A.F. 2005); United States v. Strother, 60 M.J. 476(C.A.A.F. 2005). All too frequently, “due process” becomes the
mantra of those who seek enforcement of certain rights when
there is no specific source for those rights to which they can
readily turn. The majority’s invocation of “due process” is ill
placed because Appellee had both articulable rights and a highly
competent team dedicated to protecting those rights. A
competent defense counsel must prepare for sentencing as well as
the case-in-chief. Mitigation evidence places the defendant’s
crime in the social context of his or her life experiences and
suggests psychologically important events that could have shaped
or influenced the defendant’s criminal acts. This is
particularly important where there is a pattern of early
childhood trauma and maltreatment, or where there has been
poverty and childhood abuses and a nexus linking those
experiences with an individual’s dysfunction as an adult.
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United States v. Kreutzer, No. 04-5006/AR
The team assembled on behalf of Appellee, the funding of
that team, and the funding that could have been obtained in the
future, likely provided all that was necessary to assist the
defense in lending context to Appellee’s life experiences and
the impact they had on his criminal acts.5 The military justice
system provides for open access to mitigation evidence during
sentencing, subject to the effectiveness of the information and
the limits imposed by rules governing admissibility. In many
cases, counsel has to decide whether the past actions are
mitigating evidence or aggravating evidence. The defense team
was well aware of numerous statements made by Appellee while in
the Sinai.6 They were careful to avoid the admission of this
material at either the findings or sentencing phases. We should
not simply guess or presume that they failed to make that
decision. We should avoid second-guessing counsel because of
the wide latitude they must be given as to their tactical
decisions, especially in light of potential rebuttal by the
Government, i.e., Appellee’s prior statements or evidence to be
5
This team, in making their conclusions, considered all of the
reports, including that of Dr. Robert Brown who concluded, “The
impulse to commit these crimes could not have been resisted by
the defendant.”
6
There are numerous examples. He told Private First Class
Cooper: “I’ll leave the guard tower, take out the radio watch
guard station outside the arms room, and go into the barracks
and shoot everyone inside, except for Corporal Hoyler, who I’d
just beat pretty badly.” And he told Specialist Estrada, “I’m
going to kill you” (during the fight in the Sinai).
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United States v. Kreutzer, No. 04-5006/AR
introduced under Military Rule Evidence (M.R.E.) 404(b). The
defense was very careful not to open the door for a series of
statements made by Appellee while in the Sinai. These included
the statements of Private First Class (PFC) Bridges, PFC Cooper,
Specialist (SP) Cruz, SP Harlan, Corporal Hyler, SP Estrada,
Sergeant First Class Kearns, and Saul Alvarado. These
statements would have been devastating evidence if admitted
during the findings phase and had the potential to seal
Appellee’s fate during sentencing. Similarly, the expansive
testing and interviews done by the mental health team may have
also resulted in opening the door to extensive statements from
Appellee that would have been otherwise privileged and therefore
inadmissible. See, e.g., M.R.E. 302(b).
The CCA was correct in stating that there is a relationship
between a mitigation specialist and the effective assistance of
counsel. However, the defense’s proffer did not satisfy what
this Court has required for the appointment of expert
assistance. In United States v. Gonzales, this Court set forth
a three-prong test for showing the need for expert assistance:
First, why the expert assistance is needed. Second,
what would the expert assistance accomplish for the
accused. Third, why is the defense counsel unable to
gather and present the evidence that the expert
assistant would be able to develop.
39 M.J. 459, 461 (C.M.A. 1994).
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United States v. Kreutzer, No. 04-5006/AR
Appellee’s counsel failed to satisfy Gonzales by
overlooking the team that had been appointed, making no proffer
as to what this team could not accomplish that a mitigating
specialist could accomplish, and making no showing that “defense
counsel is [in]capable of obtaining and presenting” the evidence
that could be obtained by a mitigation specialist. Burt, 658
N.E.2d at 389 (citing Lear, 572 N.E.2d at 880).
As we said in United States v. Kelly, 39 M.J. 235, 238
(C.M.A. 1994): “[d]efense counsel are expected to educate
themselves to obtain competence in defending an issue presented
in a particular case,” using the primary and secondary sources
that would be available prior to asking for a defense
specialist. After a uniquely qualified psychiatric team was
assembled, in this case the defense never indicated that they
did not have available psychological records, including mental
health evaluations and social service records. Additionally,
while the military judge denied the request for a mitigation
specialist, he did provide the alternative of government funding
for the defense team’s mitigation efforts. The military judge
also indicated if there was “any problems in getting the
funding,” they should seek his assistance. Id. The defense
never returned to the military judge for additional assistance
in the way of experts, investigators, or additional attorneys.
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United States v. Kreutzer, No. 04-5006/AR
As to the mitigation specialist, the psychiatrists from
Walter Reed Army Medical Center and from the National Naval
Medical Center had access to numerous psychologists and social
workers to perform various tests on Appellee. Their conclusions
and findings were confidential as a result of their appointment
to the defense team. M.R.E. 502(b)(2). They spent numerous
hours obtaining psychological testing and interviewing
witnesses, including family members. Rather than recognize that
a blind “shotgun” presentation of all possible mitigation
evidence would waive the confidentiality of the communication
between this team and defense counsel, the majority second-
guesses the defense team and reverses the findings.
The drastic remedy granted by the court below and approved
by the majority is beyond comparison to any federal or state
case, particularly given the expansive defense team, the lack of
any limitation on money or time, and the military judge’s
invitation to seek the court’s assistance to obtain additional
money should that become necessary. Without question, the
defense team knew both the procedural and evidentiary rules
critical to the presentation of an effective mitigation case.
In fact, Dr. Gregory R. Lande was an editor of Principles and
Practice of Military Forensic Psychiatry (1997)(along with Dr.
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United States v. Kreutzer, No. 04-5006/AR
David Armitage7) and a former chief of the Psychiatric Department
at Walter Reed Army Medical Center. If we cannot presume that
the defense team here acted with Appellee’s best interests in
mind, the presumption will never be available.
For all of the above reasons, I respectfully dissent from
the majority’s conclusion that there was an “error of
constitutional magnitude” because no mitigation specialist was
appointed.
7
Dr. Armitage was part of the defense team of numerous cases.
See, e.g., United States v. Gray, 51 M.J. 1, 41 (C.A.A.F. 1999);
Loving, 41 M.J. at 249.
18