review the following: The Mississippi law around participation in veterans' courts: https://law.justia.com/codes/mississippi/2014/title-9/chapter-25/section-9-25-1The announcement for such a court fro
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Bluebook 21st ed.
J. Michael Montgomery, Death Is Different: Kreutzer and the Right to a Mitigation
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J. Michael Montgomery, Death Is Different: Kreutzer and the Right to a Mitigation
Specialist in Military Capital Offense Cases , 2007 Army Law. 13 (2007).
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Montgomery, J. (2007). Death is different: kreutzer and the right to mitigation
specialist in military capital offense cases Army Lawyer, 2007(2), 13-29.
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Specialist in Military Capital Offense Cases ," Army Lawyer 2007, no. 2 (February
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J. Michael Montgomery, "Death Is Different: Kreutzer and the Right to a Mitigation
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Copyright Information Death Is Different:
Kreutzer and the Right to a Mitigation Specialist in Military Capital Offense Cases
Lieutenant J. Michael Montgomery*
In the 12 years since Furman v. Georgia, 408 U.S. 238 (1972), every Member of this Court has written or
joined at least one opinion endorsing the proposition that because of its severity and irrevocability, the
death penalty is qualitatively different from any other punishment, and hence must be accompanied by
unique safeguards to ensure that it is ajustified response to a given offense.'
I. Introduction
With no question as to his guilt, advocates of the death penalty likely find Sergeant (SGT) William Kreutzer a poster-
child for the ultimate punishment. On 27 October 1995, as 1,300 members of the 82d Airborne stood in a pre-run formation,
SGT Kreutzer hid in a nearby wood line with two automatic weapons and over 500 rounds of ammunition. 2 Before nearby
Soldiers heroically subdued Kreutzer, he sent a bullet through the forehead of Major Stephen Badger, leaving a hole the size
of a hand in the head of this career Soldier and father of eight. 3 Seventeen others were injured in the attack, including Major
Guy Lafaro who was in a coma for forty-five days following the shooting and Chief Warrant Officer Two Abraham Castillo
who was paralyzed after a bullet lodged in his spine. 4 Kreutzer was charged with violating multiple articles of the Uniform
Code of Military Justice (UCMJ), including murder under Article 118, 10 U.S.C. § 918 (2000). 5 On 12 June 1996, a twelve
member panel unanimously sentenced SGT Kreutzer to death. 6 However, on 16 August 2005, in a four-to-one decision, the
Court of Appeals for the Armed Forces (CAAF) affirmed the decision of the Army Court of Criminal Appeals (ACCA), 7
setting aside the death sentence. 8 On facts as clear and horrific as these, how could the highest military court set aside
Kreutzer's death sentence?
Affirming the ACCA's decision, the CAAF held the "[e]rroneous denial of Kreutzer's request for a mitigation specialist
was error of constitutional magnitude." 9 This article discusses the role of a mitigation specialist and impact of the Kreutzer
decision on capital cases in military justice.
II. Overview of Capital Punishment in the Military
In 1789, Congress enacted the first Articles of War by adopting the Articles written by the Continental Congress in 1775
and revised in 1776.10 At that time, the death penalty was authorized for fourteen military offenses; however, civil authorities
received jurisdiction over those capital crimes not specific to the military. 1 Since that time, Congress gradually expanded
court-martial jurisdiction, culminating with the passage of the UCMJ in 1950.12 Article 118 of the UCMJ, most recently
revised in 2005, covers the crime of murder and provides for the availability of the death penalty for premeditated murder and
certain types of felony murder.' 3
Judge Advocate, U.S. Navy. Currently assigned as a staff attorney at the Naval Legal Service Office Pacific Detachment Pearl Harbor.
Spaziano v. Florida, 468 U.S. 447, 468 (1984) (Stevens, J., concurring in part and dissenting in part).
2 Todd Richissin, Nobody Listened When a Soldier Warned of His Violent Intentions, NEWS & OBSERVER (Raleigh, N.C.), Mar. 9, 1997, at A1.
3 id.
4 Id.
' See UCMJ art 118 (2005); United States v. Kreutzer, 61 M.J. 293 (2005).
6 Id.
7 United States v. Kreutzer, 59 M.J. 773 (Army Ct. Crim. App. 2004).
8 Kreutzer, 61 M.J. at 294.
9 Id. at 305.
10 Loving v. United States, 517 U.S. 748, 752 (1996).
1 Id.
12 id.
'3 UCMJ art. 118 (2005).
FEBRUARY 2007 • THE ARMY LAWYER -DA PAM 27-50-405 The Supreme Court's 1972 decision in Furman v. Georgia 14 impacted capital punishment in many states and in the
military. The constitutionality of the military capital punishment scheme was challenged in United States v. Matthews 5 in
1983. Noting that there are certain occasions where the "rules governing capital punishment of servicemembers will differ
from those applicable to civilians,"' 16 the Court of Military Appeals (COMA) 7 held that military court-martial sentencing
procedures must meet "the standards established by the Supreme Court for sentencing in capital cases in civilian courts.' 18
Additionally, the court noted that in enacting Article 55 of the UCMJ, 19 Congress "'intended to grant protection covering
even wider limits' than 'that afforded by the Eighth Amendment.' 20
In analyzing "guidance from Supreme Court precedent,", 21 the COMA listed certain prerequisites to imposing a death
sentence. 22 Looking back to military procedure, the COMA noted that "neither the Code nor the Manual requires that the
court members specifically identify the aggravating factors upon which they have relied in choosing to impose the death
penalty. 23 Despite finding no prejudicial error on mandatory review, the court held that Matthews's death sentence was
improperly adjudged. 24
President Ronald Reagan responded to the Matthews decision in 1985 by promulgating by executive order Rule for
Courts-Martial (RCM) 1004, requiring a unanimous finding that the accused was guilty of a capital offense, that at least one
aggravating factor existed, and that any extenuating or mitigating circumstances are substantially outweighed by aggravating
circumstances. 25 In Loving v. United States, the Supreme Court held the RCM 1004 capital sentencing scheme
constitutional. 26
Trial by military judge alone is not permitted in courts-martial referred as capital cases. 27 Nor is an accused permitted to
plead guilty to a capital offense. 28 Absent exigent circumstances, the capital case must be heard before a panel of not less
than twelve members. 29 There are four "gates toward death-penalty eligibility" 30 in the military justice system. First, the
14 408 U.S. 238 (1972).
16 M.J. 354 (C.M.A. 1983).
16 Id. at 368.
17 The Court of Military Appeals was renamed the Court of Appeals for the Armed Forces in 1994. See National Defense Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337, 108 Stat. 2663 (1994).
18 Matthews, 16 M.J. at 368.
'9 10 U.S.C.S. § 855 (LEXIS 2007).
20 Matthews, 16 M.J. at 368 (citing United States v. Wappler, 9 C.M.R. 23, 26 (C.M.A. 1953)).
21 Id. at 368.
22 Id. at 377.
From the procedures approved by the Supreme Court, the following features appear: 1. A Bifurcated Sentencing Procedure Must Follow the Finding Of Guilt Of a Potential Capital Offense. 2. Specific Aggravating Circumstances Must Be Identified To the Sentencing Authority. 3. The Sentencing Authority Must Select and Make Findings On the Particular Aggravating Circumstances Used As a Basis For Imposing the Death Sentence. 4. The Defendant Must Have Unrestricted Opportunity To Present Mitigating and Extenuating Evidence. 5. Mandatory Appellate Review Must Be Required To Consider the Propriety Of the Sentence As To the Individual Offense and Individual Defendant and To Compare the Sentence To Similar Cases Statewide. In sum, the sentence must be individualized as to the defendant, and the sentencing authority must detail specific factors that support the imposition of the death penalty in the particular case.
Id
23 Id.
24 Id. at 382.
25 See MANUAL FOR COURTS-MARTIAL, UNITED STATES R.C.M. 1004 (2005) [hereinafter MCM] (providing the current version of Rule 1004).
26 517 U.S. 748 (1996).
27 UCMJ art. 18 (2005).
2 Id. art. 45(b).
29 Id. art. 25a (applying to offenses committed after 31 December 2002).
30 United States v. Loving, 41 M.J. 213, 277 (1994).
FEBRUARY 2007 -THE ARMY LAWYER ° DA PAM 27-50-405 members must find the accused guilty of a capital offense. 3' Second, they must find that an aggravating factor exists. 32
Third, the panel members must find that any extenuating or mitigating circumstances are substantially outweighed by any
aggravating circumstances. 33 Fourth, the members must unanimously agree on the death penalty. "If at any step along the
way there is not a unanimous finding, this eliminates the death penalty as an option." 34 Additionally, the members must vote
on the sentence, starting with the least severe to the most severe. 35
Following the court-martial, the convening authority must approve or disapprove the death sentence. 36 The convening
authority may choose to commute the death sentence to a lesser sentence, such as life in prison. If the convening authority
approves the sentence, there is an automatic appeal to the Court of Criminal Appeals for the accused's service. 37 If the Court
of Criminal Appeals affirms the sentence, then there is a mandatory appeal to the CAAF. 38 The Supreme Court of the United
States has discretionary certiorari jurisdiction over death penalty sentences heard by the CAAF. 39 Finally, the President must
approve a military death sentence before the accused can be executed. 4°
The last execution in the military justice system was conducted on 13 April 1961 when the military hanged Army Private
(PVT) John A. Bennett following his conviction for rape and attempted murder. 41 Military service members on death row are
housed at the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas-the only maximum security prison in the Department
of Defense and the oldest penal institution in continuous operation in the federal system. 42
Once convicted of a capital offense, a defendant has the right to present evidence in extenuation and mitigation. 43
Effective development and presentation of this evidence may be the defendant's only chance to avoid a death sentence. As
will be discussed below, defense counsel are poorly equipped to perform the extensive investigation into a defendant's
background required to prepare an effective case in extenuation and mitigation. Thus, a mitigation specialist is an essential
member of the defense team.
III. The Role of a Mitigation Specialist in Capital Cases
A. What Is a Mitigation Specialist?
A variety of definitions of "mitigation specialist," "mitigation expert," or "mitigation investigator" exist throughout both
case law and scholarly articles." In an article discussing the use of mitigation specialists in death penalty litigation, Jonathan
31 MCM, supra note 25, R.C.M. 1004(a).
32 Id. R.C.M. 1004(b)(4)(A).
" Id. R.C.M. 1004(b)(4)(C).
34 United States v. Simoy, 50 M.J. 1, 2 (1998).
35 MCM, supra note 25, R.C.M. 1006(d)(3)(A).
36 UCMJ art. 60 (2005).
" Id. art. 66(b)(l).
31 Id. art. 67(a)(1).
39 id. art. 67a.
Only those court-martial cases considered by the Court of Appeals for the Armed Forces fall within the Supreme Court's certiorari
jurisdiction. Because all cases in which a Court of Criminal Appeals affums a death sentence fall within the Court of Appeals for the
Armed Forces' mandatory jurisdiction, they also fall within the Supreme Court's certiorari jurisdiction. Congress provided the
Supreme Court with certiorari jurisdiction over cases reviewed by the Court of Military Appeals in 1983.
Dwight H. Sullivan et al., Raising the Bar: Mitigation Specialists in Military Capital Litigation, 12 GEO. MASON U. Civ. RTs. L.J. 199 n.24 (2002) (citations omitted).
40 UCMJ art. 7 1(a).
41 Death Penalty Information Center, The U.S. Military Death Penalty, http://www.deathpenaltyinfo.org/article.php?did=180&scid=32 (last visited Mar. 27,
2007).
42 U.S. Army Combined Arms Center, U.S. Disciplinary Barracks, http://usacac.leavenworth.army.mi/CAC/usdb.asp (last visited Mar. 27, 2007).
43 MCM, supra note 25, R.C.M. 1004(b)(3).
44 Jonathan P. Tomes, Damned If You Do, Damned If You Don't: The Use of Mitigation Experts in Death Penalty Litigation, 24 Am. J. CRIM. L. 359, 366
(1997).
FEBRUARY 2007 -THE ARMY LAWYER • DA PAM 27-50-405 Tomes proposed the following definition: "a person qualified by knowledge, skill, experience, or training as a mental health
or sociology professional to investigate, evaluate, and present psychosocial and other mitigating evidence to persuade the
sentencing authority in a capital case that a death sentence is an inappropriate punishment for the defendant. ' One court
described a mitigation investigator as "an individual who specializes in compiling potentially mitigating information about
the accused in a capital case. '"6
Currently, there are neither licensing authorities for mitigation specialists, nor prescribed educational criteria for an
individual to be considered a mitigation specialist. Indeed, courts have certified sociologists, 47 psychiatrists, 48 and
psychologists 49 in the role. Regardless of the lack of specificity as to qualifications for mitigation specialists, they are a vital
member of the defense team in a capital case.
B. The Role of a Mitigation Specialist
The jury in a capital case is instructed to consider the background and life of the defendant. In order to
effectively present this information, counsel must prepare a complete social history of the defendant by
engaging in a comprehensive investigation dissimilar to routine investigative efforts used in non-capital
criminal cases. The time and resources required for a thorough investigation are tremendous. 50
In United States v. Thomas, the Navy-Marine Court of Military Review (NMCMR) recognized that conducting this
intense psychosocial investigation "is not within the ken of a competent attorney." 51 A mitigation specialist, however, has the
training and necessary skill set to do such an investigation. The CAAF relied on a report adopted by the Judicial Conference
of the United States to provide the following generalization concerning the role of a mitigation specialist:
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. 52
Useful evidence for mitigation may be found by examining the entire life of the defendant, beginning at
conception. A mitigation specialist may even conduct a multi-generational investigation, looking for "genetic
predispositions and environmental influences" 53 that may have impacted the defendant's personality or behavior.
Generally, the mitigation specialist will look for evidence that:
(1) portrays any positive qualities the defendant possesses, (2) makes the defendant's violent acts "humanly
understandable in light of his past history and the unique circumstances affecting his formative
development," (3) tends to show that his life in prison would likely be productive, or at least not be
threatening to others, (4) rebuts the prosecutor's evidence of aggravating circumstances, and (5) provides
evidence of extenuating circumstances surrounding the capital crime itself. 54
41 Id. at 368.
4 State v. Langley, 839 P.2d 692 (Or. 1992).
47 Tomes, supra note 44, at 367 (citing Boyd v. North Carolina, 319 S.E.2d 189 (N.C. 1984), cert. denied, 471 U.S. 1030 (1985)).
48 Id. (citing Ohio v. Slagle, No. 55759, 1990 Ohio App. LEXIS 2426 (Ohio Ct. App. June 14, 1990), cert. denied, 510 U.S. 833 (1993)).
49 Id. (citing Ohio v. Carter, No. C-920604, 1993 Ohio App. LEXIS 5233 (Ohio Ct. App. Nov. 3, 1993), cert. denied, 133 L. Ed. 2d 498 (1995)).
50 Id. at 365.
"1 33 M.J. 644,647 (N.M.C.M.R. 1991).
52 United States v. Kreutzer, 61 M.J. 293, 302 (2005) (citing Subcommittee on Federal Death Penalty Cases, Committee on Defender Services, Judicial
Conference of the United States, Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation, at Pt. I, § B.7 (May 1998), available at http://www.uscourts.gov/dpenalty/4report.htm) [hereinafter Judicial Conference Report]. The Judicial Conference of the United States adopted the subcommittee's recommendations on 15 September 1998. Judicial Conference Report, supra, at cover.
53 Sullivan et al., supra note 39 (quoting Russell Stetler et al., Mitigation Introduction: Mitigation Evidence Twenty Years After Lockett, in CAL. DEATH PENALTY DEF. MANUAL 3 (1998)).
54 Tomes, supra note 44, at 365.
FEBRUARY 2007 ° THE ARMY LAWYER ° DA PAM 27-50-405 Maternity and birth records may show problems in pregnancy suggesting the possibility of developmental problems."
Other records that must be reviewed, if available, include school records, foster care records, military records, medical
records of both the defendant and his family, prison records, and employment records. 56 A criminal record may provide
insight into the defendant, and the lack of a criminal record is strong mitigating evidence. 57
In addition to reviewing records, a mitigation specialist will conduct numerous interviews. These interviews will include
"the defendant's immediate and extended family, friends, neighbors, teachers, clergy, coaches, employers, co-workers,
physicians or other therapists, and any lead suggested by any of the above records. 58 Interviews with the defendant's family
can be particularly challenging, because they too are frequently impacted emotionally by the government's choice to pursue
the death penalty. 9 Family members may be hesitant to discuss private family matters out of shame and a feeling of
responsibility for a loved one's actions. 60 Additionally, they may simply be hiding "dirty laundry '61 out of embarrassment or
fear.
As one commentator noted, "law school prepares one to be an advocate, not an investigator. '62 The defense team simply
cannot locate, acquire, and analyze the quantity of potential mitigation evidence that a trained expert can. Perhaps this is why
inadequate presentation of mitigation evidence is "the most common basis for claims of ineffective assistance of counsel in
death penalty cases across the country. '63
IV. Mitigation Specialists and the Law
A. The Right and Responsibility to Present Mitigation Evidence
As a practical matter, the defendant probably has little or no chance of avoiding the death sentence unless
the defense counsel gives the jury something to counter both the horror of the crime and the limited
-information the prosecution has introduced about the defendant. Thus, defense counsel must conduct an
extensive investigation into the defendant's background .... 64
The Supreme Court has held "that in capital cases the fundamental respect for humanity underlying the Eighth
Amendment... requires consideration of the character and record of the individual offender and the circumstances of the
particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.'6 5 For this reason,
the Court struck down as unconstitutional the mandatory sentencing scheme in Woodson v. North Carolina, which made
death the mandatory sentence for all persons convicted of first-degree murder. 66
55 Id. at 368 (noting that "[a] problem pregnancy, involving, for example, prolonged pre-term labor, can result in bleeding in the germinal matrix of the
fetus's brain that can cause adverse effects running from mild developmental delay to profound mental retardation.").
56 Id. at 368-69.
5' Id. at 370.
58 Id. at 369-70.
59 Elizabeth Beck et al., Seeking Sanctuary: Interviews with Family Members of Capital Defendants, 88 CORNELL L. REv. 382, 413 (2003) (noting that
"[l]ike co-victims, offenders' family members experience depression, cognitive changes, chronic grief, and symptoms consistent with (Post Traumatic Stress
Syndrome]").
60 Id. (noting "[t]heir shame is often intensified by the nature of mitigation which, though essential to the defense, may be interpreted as suggesting the
defendant's family is culpable.").
61 Tomes, supra note 44, at 370 (noting the need to conduct interviews "beyond close family members" and the possibility that "[t]he defendant or his
family may distrust the attorney").
62 Id. at 364.
63 David D. Velloney, Balancing the Scales of Justice: Expanding Access to Mitigation Specialists in Military Death Penalty Cases, 170 MIL. L. REv. 1
(2001) (citing Stetler et al., supra note 53).
64 Tomes, supra note 44, at 364.
65 Woodson v. North Carolina, 428 U.S. 280, 304 (1976).
6 Id. at 305. The North Carolina statute read, in pertinent part,
A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of
willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, kidnapping, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death.
FEBRUARY 2007 • THE ARMY LAWYER • DA PAM 27-50-405 In 1978, the Supreme Court held that the "qualitative difference between death and other penalties calls for a greater
degree of reliability when the death sentence is imposed. '67 For that reason, the Court concluded:
[T]he Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital
case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or
record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less
than death.bt
The Supreme Court recently held that "a State cannot preclude the sentencer from considering 'any relevant mitigating
evidence' that that defendant proffers in support of a sentence less than death., 69 The Court reaffirmed that the standard for
relevance in a capital sentencing proceeding is the same as the general evidentiary standard. 7°
The Supreme Court requires that a defendant facing the death penalty be viewed as an individual during sentencing. 71 It
is the defense team's responsibility to make this happen. The Eighth Amendment does not require a judge to instruct a jury
on the concept of mitigating evidence generally, nor does it require an instruction on particular statutory mitigating factors. 72
The defense team alone must compile and present to the jury reasons for sentencing the defendant to something less than
death.
As discussed above, RCM 1004 governs capital punishment in the military. The rule provides that "[t]he accused shall
be given broad latitude to present evidence in extenuation and mitigation., 73 Additionally, the military judge "shall instruct
the members that they must consider all evidence in extenuation and mitigation before they adjudge death;, 74 a right not
required by the Supreme Court. Military accused, like their civilian counterparts, are entitled to effective assistance of
counsel. 75 As discussed below, failure to investigate and present mitigating evidence is grounds for reversal of a death
sentence.
B. Expert Assistance in Mitigation, Case Law and Statutes
In 1985, the Supreme Court based its decision in Ake v. Oklahoma on the "Fourteenth Amendment's due process
guarantee of fundamental fairness, 76 holding:
[W]hen a defendant demonstrates to the 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. 77
The Ake Court realized the importance of expert assistance at the sentencing phase as well: "We have repeatedly recognized
the defendant's compelling interest in fair adjudication at the sentencing phase of a capital case." 7t The Court noted a state's
Id. at 286.
67 Lockett v. Ohio, 438 U.S. 586, 603 (1978).
61 Id. at 604.
69 Tenard v. Dretke, 542 U.S. 274, 285 (2004) (citing Payne v. Tennessee, 501 U.S. 808 (1991)).
70 Id. at 284 (holding the standard to be "any tendancy to make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence").
71 Tomes, supra note 44, at 363.
72 Buchanan v. Angelone, 522 U.S. 269 (1998).
73 MCM, supra note 25, R.C.M. 1004(a)(3).
74 Id. R.C.M. 1004(a)(6).
75 United States v. Murphy, 50 M.J. 4, 8 (1998) (citing United States v. Scott, 24 M.J. 186 (C.M.A. 1987)).
76 470 U.S. 68, 76 (1985).
77 Id. at 83.
78 d. at 83-84.
FEBRUARY 2007 • THE ARMY LAWYER ° DA PAM 27-50-405 "profound interest '79 in assuring it executes only the guilty and said "we do not see why monetary considerations should be
more persuasive in this context than at trial." 80 The court must look to "the probable value that the assistance of a psychiatrist
will have in [sentencing], and the risk attendant on its absence. 81
United States v. Garries established that "as a matter of military due process, servicemembers are entitled to
investigative or other expert assistance when necessary for an adequate defense, without regard to indigency." 82 The COMA,
however, noted that the servicemember must show "necessity for the services" '83 as required in Ake. 84 Recognizing the
government resources available to a military accused, the court noted that "[i]n the usual case, the investigative, medical, and
other expert services available in the military are sufficient to permit the defense to adequately prepare for trial. 85
Rule for Courts-Martial 703(d) provides the procedure for requesting an expert witness at government expense. 86 While
the rule "is silent on how to request other forms of assistance," case law suggests "the process is the same regardless of
whether defense counsel is requesting an expert witness or some other form of expert assistance." 88
Under RCM 703(d), when defense counsel seek expert assistance at government expense, counsel must submit the
request to the convening authority and provide notice to the prosecution. The request "shall include a complete statement of
reasons why employment of the expert is necessary and the estimated cost of employment." 89 If the convening authority
denies the assistance, then defense counsel may renew the request before the military judge. The military judge "shall
determine whether the testimony of the expert is relevant and necessary, and, if so, whether the Government has provided or
will provide an adequate substitute." 90 If the military judge grants the defense motion and the government fails to comply,
then the judge may abate the proceedings. 91
Article 46 of the UCMJ provides that "trial counsel, defense counsel, and the court-martial shall have equal opportunity
to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe. 92 While not
specifically stated, Article 46 applies to expert consultants in addition to witnesses. 93
In United States v. Allen, 94 the NMCMR held "[m]ilitary due process entitles a servicemember to the assistance of an
expert when necessary to the preparation of an adequate defense." 95 The court noted the servicemember requesting expert
assistance has the burden to show necessity. 96 The court listed the following three criteria for evaluating necessity: "First,
why the expert assistance is needed. Second, what would the expert assistance accomplish for the accused. Third, why is the
79 Id. at 83.
'o Id. at 84.
81 Id.
82 22 M.J. 288, 290 (1986) (citations omitted).
83 Id. at 291 (citing Ake v. Oklahoma, 470 U.S. 68 (1985)).
' Ake, 470 U.S. at 82-83 (holding "[wihen the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a
significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent.").
85 Garries, 22 M.J. at 290.
86 MCM, supra note 25, R.C.M. 703(d).
87 Will A. Gunn, Supplementing the Defense Team: A Primer on Requesting and Obtaining Expert Assistance, 39 A.F. L. REV. 143, 146 (1996).
88 Id.
89 MCM, supra note 25, R.C.M. 703(d).
9 Id.
91 Id.
92 UCMJ art. 46 (2005).
93 United States v. Warner, 62 M.J. 114, 118 (2005) ("While the defense request in this case was for an expert consultant rather than an expert witness,
Article 46 is still applicable.").
94 31 M.J. 572 (N.M.C.M.R. 1990).
95 Id. at 623 (citing United States v. Garries, 22 M.J. 288, 288 (1986)).
96 Id.
FEBRUARY 2007 • THE ARMY LAWYER * DA PAM 27-50-405 defense counsel unable to gather and present the evidence that the expert assistant would be able to develop." 97 In United
States v. Gonzalez, 98 the COMA favorably cited the three-part analysis set forth in Allen. 99 In addition, the COMA also noted
they had "not drawn a distinction between a government or non-government investigator or expert."'' °
The CAAF briefly addressed the use of mitigation specialists in capital sentencing in United States v. Loving. 101 During
a string of robberies, Army PVT Dwight J. Loving murdered two taxicab drivers and attempted to murder a third. 02
Authorities arrested Loving the next day and he confessed to the crimes on videotape. 03 A general court-martial at Fort
Hood, Texas, convicted Loving and sentenced him to death. °4 On appeal, Loving raised seventy errors, including ineffective
assistance of counsel for failure "to request funds for a mitigation specialist or to present a cohesive, comprehensible
background, social, medical, and environmental history for [Loving]."' 05
Loving claimed that a mitigation expert is essential to all capital murder cases and that a mitigation expert could have
presented evidence more logically and coherently than did his counsel. 106 In response, Loving's defense counsel asserted
tactical reasons for not utilizing experts. The CAAF found defense counsel's tactical decisions reasonable, and "decline[d] to
hold that such an expert is required.' 07 "What is required is a reasonable investigation and competent presentation of
mitigation evidence. Presentation of mitigation evidence is primarily the responsibility of counsel, not expert witnesses."' 108
In another capital punishment case, the CAAF set aside the death sentence of Army SGT James Murphy on ineffective
assistance of counsel grounds. 1°9 Murphy was found guilty of the heinous premeditated murders of his former wife and two
young children. 0 He confessed to using a hammer to bludgeon his former wife and drowning her two children, leaving their
bodies to decay in their apartment building."' Murphy attempted to plead guilty to the charges, but he was not permitted to
do so since he was charged with a capital offense." 2 On appeal, the CAAF concluded "the record of trial and post-trial
affidavits leave us with only one rational conclusion: SGT Murphy was defended by two attorneys who were neither
educated nor experienced in defending capital cases, and they either were not provided the resources or expertise to enable
them to overcome these deficiencies, or they did not request same." '3 Only after the Army Court of Military Review
affirmed Murphy's death sentence was a social history conducted. Prior to sentencing, neither defense counsel traveled to
Murphy's hometown in North Carolina to investigate his background because they were "burdened by tasks from the trial
defense service." '14 Rather, the defense counsel developed Murphy's extenuation and mitigation case by writing letters and
making telephone calls to those who responded to the letters." 15
97 id.
9' 39 M.J. 459 (C.M.A. 1994).
99 Id. at 461.
1oo Id.
101 41 M.J. 213 (1994).
'02 Id. at 229-30.
103 Id. at 230.
104 Id. at 231-32.
'o' Id. at 249.
'06 Id. at 250.
107 Id.
108 Id.
109 United States v. Murphy, 50 M.J. 4 (1998).
110 Id. at 5-6.
.. Id. at 7.
112 Id. at 12.
113 Id. at 9.
114 id.
"' Id. at 12.
FEBRUARY 2007 -THE ARMY LAWYER • DA PAM 27-50-405 Five years after his conviction, Murphy's appellate counsel succeeded in obtaining funding from the Judge Advocate
General of the Army to hire an expert to investigate his social history. 16 The investigation, completed by a trained forensic
social worker, was complemented by reviews of several other medical specialists. The investigations concluded that at the
time of the offense, Murphy "suffer[ed] from a personality disorder and other psychological dysfunctions," ''17 and that he had
"indications of minimal or slight cognitive and neuropsychological dysfunction" 18 as well as "persistent and severe traumatic
childhood abuse." '"19
The CAAF found "reliability of result"' 120 to be the theme espoused by thirty years of Supreme Court death penalty
precedent and listed "key ingredients"' 12 for the adversarial system to function properly. These ingredients include the
following: "competent counsel; full and fair opportunity to present exculpatory evidence; individualized sentencing
procedures; fair opportunity to obtain the services of experts; and fair and impartial judges and juries."' 22 Finding that
Murphy did not get a "full and fair sentencing hearing,"' 23 due to a number of issues including the "potential mitigating effect
of the posttrial evidence,"' 24 the CAAF refused to affirm Murphy's death sentence and remanded the case to the ACCA. 125
Two years after Murphy, the Supreme Court, applying the two-part Strickland v. Washington 126 test for ineffective
assistance of counsel, overturned the death sentence of Terry Williams. 27 Williams confessed and a Virginia jury convicted
him of robbery and capital murder and sentenced him to death. The Supreme Court agreed with Williams that he had been
"denied his constitutionally guaranteed right to the effective assistance of counsel when his trial lawyers failed to investigate
and to present substantial mitigating evidence to the sentencing jury.' 128 In Williams's case, the mitigation evidence was
abundant and powerful. 129 His defense attorneys, however, offered only the testimony of his mother, two neighbors, and a
portion of a taped statement by a psychiatrist. 30 They failed to provide the jury any of the "extensive records graphically
describing Williams' nightmarish childhood.' 131 Instead, defense counsel relied solely on witness testimony that Williams
was "a 'nice boy' and not a violent person."' 32
Evidence uncovered at an evidentiary hearing held as part of state habeas corpus proceedings revealed "documents
prepared in connection with Williams' commitment when he was eleven years old that dramatically described mistreatment,
abuse, and neglect during his early childhood, as well as testimony that he was 'borderline mentally retarded,' had suffered
116 Id. at 13.
117 Id.
118 Id.
119 Id.
120 Id. at 14.
121 Id. at 15.
122 Id.
123 Id.
124 Id.
125 Id. at 16.
126 466 U.S. 668, 687 (1984).
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id
127 Williams v. Taylor, 529 U.S. 362, 390 (2000).
128 Id.
129 Id. at 370.
130 Id. at 369 (citing app. 4-5) ("One of the neighbors had not been previously interviewed by defense counsel, but was noticed by counsel in the audience
during the proceedings and asked to testify on the spot." Additionally, "[tihe weight of defense counsel's closing, however was devoted to explaining that it was difficult to find a reason why the jury should spare Williams' life.").
131 Id. at 395.
132 Id. at 369 (citing app. 4-5).
FEBRUARY 2007 -THE ARMY LAWYER • DA PAM 27-50-405 repeated head injuries, and might have mental impairments organic in origin."' 133 Juvenile records that defense counsel did
not obtain could have painted a haunting picture of life in Williams's childhood home. 134
Following the evidentiary hearing, the Virginia trial judge found that Williams's attorneys had been ineffective during
the sentencing phase of trial and recommended a rehearing on Williams's sentence. 35 The Supreme Court agreed with the
trial judge's conclusion that "there existed 'a reasonable probability that the result of the sentencing phase would have been
different' if the jury had heard that evidence." '136 Certainly, this evidence would have been uncovered by an expert trained as
a mitigation specialist.
The Supreme Court again reversed a death sentence on ineffective assistance of counsel grounds in Wiggins v. Smith 137
when defense counsel failed to properly investigate and present mitigation evidence. A Maryland court convicted Wiggins of
first-degree murder, robbery, and two counts of theft. Defense counsel unsuccessfully motioned for a bifurcation of
sentencing, intending to first argue that Wiggins was not directly responsible for the death of the seventy-seven-year-old
woman and then only present mitigation evidence if necessary. Despite defense counsel's assertion to the jury that they
would hear evidence of Wiggins's "difficult life," the defense failed to present such evidence. 38
In preparation for Wiggins's post-conviction proceedings, a licensed social worker prepared a social history report. Just
as in Williams, the potential mitigation evidence was abundant and "powerful.' 139 Wiggins's alcoholic mother severely
abused him both physically and sexually and often left him and his siblings home alone for days "forcing them to beg for
food and to eat paint chips and garbage."' 140 "She had sex with men while her children slept in the same bed and, on one
occasion, forced [Wiggins's] hand against a hot stove burner .... Wiggins entered foster care at the age of six, was
allegedly raped and abused by multiple foster parents, and lived on the streets from age sixteen. 42
The Court found that "[Wiggins] thus has the kind of troubled history we have declared relevant to assessing a
defendant's moral culpability.' 143 Wiggins's trial defense counsel, however, claimed they made a tactical decision to "focus
their efforts on 'retrying the factual case' and disputing Wiggins's direct responsibility for the murder"' 144 rather than
conducting a thorough social history investigation. The Court rejected the post-conviction trial court's conclusion that "when
the decision not to investigate ... is a matter of trial tactics, there is no ineffective assistance of counsel.' 45 Instead, the
Supreme Court noted that under Strickland, "'the proper measure of attorney performance remains simply reasonableness
under prevailing professional norms,"" 146 and that Wiggins's counsel did not meet this standard. 147 The Court "emphasize[d]
"'" Id. at 370.
134 Id. at 395 (citing app. 528-529).
The home was a complete wreck .... There were several places on the floor where someone had had a bowel movement. Urine was standing in several places in the bedrooms. There were dirty dishes scattered over the kitchen, and it was impossible to step any place on the kitchen floor where there was no trash .... The children were all dirty and none of them had on under-pants. Noah and Lula were so intoxicated, they could not find any clothes for the children, nor were they able to put the clothes on them .... The children had to be put in Winslow Hospital, as four of them, by that time, were definitely under the influence of whiskey.
Id.
I" Id. at 370.
136 Id. at 397.
1 539 U.S. 510 (2003).
I ld. at 515.
139 Id. at 534.
'40 Id. at 516-17.
141 Id. at 517.
142 Id.
143 Id. at 535 (citing Penry v. Lynaugh, 492 U.S. 302, 319 (1989) ("'[Elvidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background ... may be less culpable than defendants who have no such excuse[.]')) (quoting California v. Brown, 49 U.S. 538, 545 (1987) (O'Connor, C.J., concurring)).
'44 Id. at 517.
141 Id. at 517-18.
146 Id. at 521 (citing Strickland v. Washington, 466 U.S. 668, 680 (1984)).
141 Id. at 534.
FEBRUARY 2007 • THE ARMY LAWYER -DA PAM 27-50-405 that Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely
the effort would be to assist the defendant at sentencing.' 48 The conduct must be reasonable under "'[p]revailing norms of
practice as reflected in American Bar Association standards and the like"" 149 that can be used to determine reasonableness.
Wiggins's defense counsel's conduct fell short of these "well-defined norms."' 150
C. American Bar Association Guidelines
An attorney representing the accused in a death penalty case must fully investigate the relevant facts.
Because counsel faces what are effectively two different trials -one regarding whether the defendant is
guilty of a capital crime, and the other concerning whether the defendant should be sentenced to death -
providing quality representation in capital cases requires counsel to undertake correspondingly broad
investigation and preparation. Investigation and planning for both phases must begin immediately upon
counsel's entry into the case, even before the prosecution has affirmatively indicated that it will seek the
death penalty.'51
The American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty
Cases (ABA Guidelines) state that the defense team should contain an investigator and a mitigation specialist. 52 Moreover,
the ABA Guidelines note that a mitigation specialist is "an indispensable member of the defense team throughout all capital
proceedings,"' '53 and that "[m]itigation specialists possess clinical and information-gathering skills and training that most
lawyers simply do not have."' '54 "Perhaps most critically, having a qualified mitigation specialist assigned to every capital
case as an integral part of the defense team insures that the presentation to be made at the penalty phase is integrated into the
overall preparation of the case .... ,,5 The ABA Guidelines also note the importance the mitigation specialist plays "in
maintaining close contact with the client and his family while the case is pending,"' '56 and how that rapport "can be the key to
persuading a client to accept a plea to a sentence less than death.' 157
The CAAF has repeatedly refused to require military defense counsel in capital cases to meet the minimum requirements
of the ABA Guidelines.58 In Loving, Judge H.F. "Sparky" Gierke noted: "Appellate defense counsel have repeatedly invited
this Court to involve itself in the internal personnel management of the military services, and we have repeatedly declined the
invitation.', 159 The quality of representation, Judge Gierke held, "is determined by reference to Strickland v. Washington."'] 60
He also pointed out that the ABA Guidelines expressly provided "for such exceptions ...as may be appropriate in the
military.' 61 This "military exception" was removed from the most recent edition of the ABA Guidelines. 62
141 Id. at 533.
149 Id. at 522 (citing Strickland, 466 U.S. at 688-89).
"So Id. at 524.
151 American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 HOFSTRA L. REV. 913, 925- 26 (2003) [hereinafter ABA Guidelines].
152 Id. at 952.
1 Id. at 959.
154 id.
155 id.
156 Id. at 960.
157 Id.
1 United States v. Loving, 41 M.J. 213, 300 (1994); United States v. Curtis, 44 MJ 106, 126-27 (1996); United States v. Murphy, 50 M.J. 4, 9-10 (1998).
159 Loving, 41 M.J. at 300 (citations omitted).
160 id.
161 Id. (citation omitted) (referencing the 1989 version of the ABA Guidelines).
162 See ABA Guidelines, supra note 151, at 921 (noting that "[tihe use of the term 'jurisdiction' as now defined has the effect of broadening the range of
proceedings covered. In accordance with current ABA policy, the Guidelines now apply to military proceedings, whether by way of a court martial, military commission or tribunal, or otherwise.").
FEBRUARY 2007 • THE ARMY LAWYER • DA PAM 27-50-405 V. United States v. Kreutzer
A. Background
William Kreutzer, Jr. grew up fascinated with military history.' 63 His dream of being a Soldier' 64 came true when he
enlisted in the Army in February, 1992.165 In March of 1993 he joined the 325th Airborne Infantry Regiment of the 82d
Airborne Division in Fort Bragg, North Carolina. 66 Some of his superiors described him as a good Soldier.' 67 Throughout
his career, however, Kreutzer's fellow Soldiers made fun of "his intelligence, his quiet demeanor and his thick glasses,"' 168
and he had trouble fitting in with his peers. 169 Military records show that "from nearly the beginning of his service...
Kreutzer spoke persistently about killing."' 7° One superior noted that he "seemed to be fixated on death.''
Over time, Kreutzer lost the ability to deal with the derogatory remarks and practical jokes. He began responding with
tears and anger, and told a friend "that he was losing control, that he was on the verge of killing himself or members of his
squad.' 72 Later, while standing guard duty, Kreutzer threatened to kill members of his unit, as he cried in frustration. 173
After that incident, he was brought to see Dr. (Captain) Darren Fong, his division's mental health officer.' 74 Dr. Fong's
report concluded that Kreutzer "has inappropriate coping mechanisms in dealing with his anger. This morning, [Kreutzer]
said he wanted to kill his squad and he had plans using weapons and ammunition."' 75 Kreutzer also told Dr. Fong that he had
considered suicide on several occasions, and had gotten as far as holding a gun to his head. 176 Following that meeting, Dr.
Fong approached Kreutzer's leadership who then confiscated Kreutzer's weapons and removed him to a camp containing
noncombat personnel. 177 Despite his other remarks, Dr. Fong concluded that Kreutzer was not a danger to himself or
others, 178 and chose not to refer Kreutzer's case to a psychiatrist or psychologist. 79 "'That may have been the biggest single
mistake involving Kreutzer." '180
Although he continued to have serious problems interacting with other Soldiers, Kreutzer was promoted to SGT in
March 1995 and assigned as a weapons squad leader.' 8' Later that year, he began to fall apart. Fellow Soldiers continued to
chide him and call him names such as "Wild Bill' 182 and "Crazy Kreutzer.' 83 In early October, Kreutzer was disciplined for
163 Richissin, supra note 2.
164 id.
165 United States v. Kreutzer, 61 M.J. 293, 296 (2005).
166 id.
167 id.
168 Richissin, supra note 2.
169 Kreutzer, 61 M.J. at 296.
170 Richissin, supra note 2.
In looking at Kreutzer's case, The News & Observer reviewed internal Army psychiatric evaluations that detail [Kreutzer's] mental history, Army reports obtained through the Freedom of Information Act and more than 1,800 pages of investigative and court records. In addition, the N&O conducted extensive interviews inside and outside the military, including 12 hours of telephone interviews with Kreutzer himself.
ld
171 Id.
172 id.
171 Kreutzer, 61 M.J. at 296.
174 Id.
'75 United States v. Kreutzer, 59 M.J. 773, 787 (Army Ct. Crim. App. 2004) (Currie, J., concurring).
176 Richissin, supra note 2.
177 Id.
171 Kreutzer, 61 M.J. at 296.
179 Richissin, supra note 2.
18o Id. (quoting Tony Martin, one of Kreutzer's defense counsel).
181 United States v. Kreutzer, 59 M.J. 773, 787 (Army Ct. Crim. App. 2004) (Currie, J., concurring).
182 id.
FEBRUARY 2007 • THE ARMY LAWYER -DA PAM 27-50-405 losing the barrel to an M-60 machine gun and "took it hard, again crying to other soldiers."' 4 Soon after, he failed an
inspection.185 Kreutzer "felt increasingly depressed, suicidal, and angry.6 Remembering that he had told Dr. Fong he
would seek help if he felt he was going to lose control, Kreutzer did so on 21 October 2005.87 He received no response to
his request for help.' 88 Kreutzer called a friend, Specialist (SPC) Mays, and told him he was "going to shoot the run the
following day."' m89
Kreutzer spent the night of 26 October 1995 in a motel room, loading magazines in preparation for his attack.' 90 He later
described that he felt like he was operating on "automatic pilot" that night and that he "had two goals: (1) to send a message
to the Army that the upper ranks did not care about the lower ranks and that he was an NCO willing to kill and die for his
men, and (2) to be killed."' 191 The next morning, SPC Mays brought the threats to the attention of his superiors. 92 As they
dismissed his threats, Kreutzer prepared to kill. Earlier that morning, Kreutzer parked his car, left a suicide note, 193 and
found a hiding place. "At 0631, [Kreutzer] methodically opened fire on his fellow soldiers. He wounded eighteen soldiers
and killed one."' 194
Kreutzer admitted that he was the shooter and said he was attempting to send a message that his unit did not care about
its men. 95 On 26 January 1996, charges against Kreutzer were referred to a capital general court-martial. 96 Shortly
thereafter, Kreutzer's detailed defense counsel filed a request to the convening authority for the assistance of a mitigation
specialist. 197 The convening authority denied that request. 98 Defense counsel renewed their request 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 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. 99
183 Todd Richissin, Shooting Victims Testify in Bragg Trial, NEWS & OBSERVER (Raleigh, N.C.), June 11, 1996, at A3.
184 Richissin, supra note 2.
185 Id.
186 Kreutzer, 59 M.J. at 788 (Currie, J., concurring).
187 Richissin, supra note 2.
188 Kreutzer, 59 M.J. at 789 (Currie, J., concurring) ("[Kreutzer] stated that he attempted to get mental health phone support ... but no one answered the
phone.").
189 United States v. Kreutzer, 61 M.J. 293, 296 (2005).
'90 Kreutzer, 59 M.J. at 788 (Currie, J., concurring).
191 Id.
192 Kreutzer, 61 M.J. at 296.
'9' Kreutzer, 59 M.J. at 789 (Currie, J., concurring).
In [the car] was a suicide note dated 21 October: The bad dreams just won't end. I don't care where I go as long as its [sic] away from here. I'm a loser who just keeps on losing. I have nothing to look forward to. Fuck the world! Suicide is the ultimate test of faith. It shows one is ready to risk all to see if his God will accept him. I love my parents, my sisters, my brother, and my closest friends, but I must leave them. I don't want to hurt them, but there is no other way. AA Self-Storage-sell the contents of unit A-130 to pay for the funeral-sell my car too.
Id.
194 Id. at 788.
'9' Kreutzer, 61 M.J. at 296.
196 Id. at 297.
197 Id.
198 Id.
199 Id.
FEBRUARY 2007 • THE ARMY LAWYER • DA PAM 27-50-405 Despite defense counsel's lack of training and claim that they could not conduct an appropriate mitigation investigation, the
military judge denied the request. 200
Kreutzer refused to accept a plea agreement that included life imprisonment with the possibility of parole. 201 His
counsel, without the assistance of a mitigation specialist, had regular meetings with him, attempting to convince him to
accept the plea. 202 Counsel later noted, "Our failure to get SGT Kreutzer to make a timely decision and accept the plea was
of tragic proportions." 203
The members took two hours to return a finding of guilty as charged. 204 They returned a sentence in less than four hours:
"The court martial, all of the members concurring, sentences you to be reduced to the grade of E- 1, to total forfeiture of all
pay and allowances, to be dishonorably discharged from the service, and to be put to death., 205
B. The Court of Appeals for the Armed Forces' Decision
The Army Judge Advocate General asked the CAAF 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., 206 Therefore, the court did not directly address the lower court's ruling "that the
military judge erred in denying Kreutzer's request for a mitigation specialist." 207 The court began its discussion by noting the
possible sources of the right Kreutzer was denied:
The right to the expert assistance of a mitigation specialist in a capital case is determined on a case-by-case
basis. Where such a request is erroneously denied, that ruling 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). 208
With no further discussion, the CAAF relied on solely due process grounds and held the denial of the expert an "error of
constitutional magnitude." 209 Judge Susan J. Crawford, in dissent, found the majority's decision "unfortunately consistent
with this Court's recent overreliance on due process, often without articulation of the source for that reliance." 210 The rest of
the majority decision focused on the test for prejudice of the constitutional violation. The court noted that the ACCA used
the proper standard-harmlessness beyond a reasonable doubt-yet "went on to misstate the nature of the inquiry. 211
200 Id. ("The military judge denied the motion without entering any findings of fact by simply stating: 'I find the law here at United States v. Loving 41 M.J.
213, 250. I don't find the showing requiring me to order one."').
201 Affidavit of James Anthony Martin, United States v. Kreutzer, 59 M.J. 773, 811 (Army Ct. Crim. App. 2004) (James A. Martin served as one of
Kreutzer's defense counsel).
202 Id.
203 Id.
204 Richissin, supra note 2.
205 Id.
206 United States v. Kreutzer, 61 M.J. 293, 295 (2005).
207 id.
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..., 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.
Id. (citation omitted).
200 Id. at 298 (citation omitted).
209 Id.
210 Id. at 310 (Crawford, J., dissenting) (citations omitted).
2' Id. at 299.
FEBRUARY 2007 • THE ARMY LAWYER -DA PAM 27-50-405 The CAAF then conducted a de novo review of the denial of Kreutzer's request for a mitigation specialist. 212
Specifically, the court reviewed the general role of a mitigation specialist and how one could have been used in Kreutzer's
case. The court noted "it is likely that a mitigation specialist may be the most experienced member of the defense team in
capital litigation." 213 The court found Kreutzer's case "replete with evidence or information indicating that Kreutzer's mental
health was dubious." 214 "[T]he presentation of the defense case-in-chieq, however,] include[d] testimony from only three
individuals about Kreutzer's performance, behavior and reputation, and expert testimony from a single mental health
professional." 215 The entire trial took approximately nineteen hours; the defense's entire case-two hours and forty-seven 216 minutes.
The CAAF could have achieved the same result on non-constitutional grounds. "The rights given to service members in
the pretrial, trial, and post-trial stages are often more protective than the rights given citizens in both the federal and state
courts. 217 Thus, the court could have found the right to a mitigation specialist in a capital case rooted in Article 46 of the
UCMJ. 218 While specifically noting the denial of a request for a mitigation specialist implicated Article 46, the court
analyzed the denial on due process grounds.
Less than two months after deciding Kreutzer, the court chose to base its related holding in United States v. Warner 219 on
a statutory interpretation of Article 46, rather than due process grounds. 220 In Warner, the court held that Article 46 entitles
defense counsel to an expert reasonably comparable to the government expert. Rejecting Judge Crawford's reliance on the
Sixth Amendment in dissent, the court said "Congress was free to, and did, adopt a more protective statutory system for
military accused than the Constitution provides for civilians in a criminal trial.", 221 The court could have used the same logic
in Kreutzer by expanding its interpretation of Article 46, but chose instead to find the denial of a mitigation specialist "error
of constitutional magnitude., 222
VI. After Kreutzer-Questions Unanswered
A. What Showing Is Now Required?
Before the Kreutzer decision, the three-part analysis laid out by the NMCMR in Allen provided the framework for
defense counsel's request for expert assistance. 223 The CAAF did not discuss the required showing in Kreutzer. It did say,
however, that "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
212 The court stated the burden on the government:
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.
Id. at 302.
213 Id. at 299.
214 Id. at 303.
215 Id. "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 Medical Center, Fort Bragg, North Carolina." Id. "Doctor Diebold was called as a defense witness despite his recommendation to defense counsel 'that they should reconsider calling me to testify' and he specifically indicated that his 'testimony might not be helpful in front of the panel."' Id. at 303 n.13.
216 Richissin, supra note 2.
217 Francis A. Gilligan, The Bill of Rights and Service Members, ARMY LAW., Dec. 1987, at 3.
218 UCMJ art. 46 (2005).
219 62 M.J. 114 (2005).
220 Id. at 119 ("Providing the defense with a "competent" expert satisfies the Government's due process obligations, but may nevertheless be insufficient to
satisfy Article 46 if the Government's expert concerning the same subject matter area has vastly superior qualifications.").
221 Id. at 121 (citation omitted).
222 United States v. Kreutzer, 61 M.J. 293, 298 (2005).
223 See United States v. Gonzalez, 39 M.J. 459, 461 (C.M.A. 1994); United States v. Allen, 31 M.J. 572, 623 (1990).
FEBRUARY 2007 * THE ARMY LAWYER * DA PAM 27-50-405 supported with written findings of fact and conclusions of law., 224 In light of the constitutional right found by the CAAF in
Kreutzer, has the burden on defense counsel lessened?
Judge Crawford, in dissent, claimed the majority expanded the Supreme Court's holding in Ake "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. 225 The majority said only that an accused is entitled to mitigation specialists "where their services would be necessary to the defense team., 226 The ACCA held that the defense team had made the
appropriate showing under the Gonzalez three-pronged test and found the military judge's legal conclusion unsupported by
the facts. 227 Judge Crawford disagreed, finding that Kreutzer's defense team failed to meet the Gonzalez test despite the
evidence relied on by both the lower court and the CAAF's majority. 228 Ignoring counsel's lack of experience or training in
capital cases, and in spite of tremendous support to the conclusion that capital cases differ profoundly from non-capital cases,
Judge Crawford concluded "defense counsel are expected to educate themselves to obtain competence in defending an issue
presented in a particular case. 229
Is Judge Crawford right to assume the Gonzalez test is no longer required following Kreutzer? Had the Judge Advocate
General of the Army certified the question whether the military judge erred in denying Kreutzer's request for expert
assistance, the court likely would have answered that question. One can certainly predict that military trial judges will be
more lenient in granting defense requests for mitigation specialists in capital cases following Kreutzer. What showing is
required, however, is yet to be seen.
B. Ex Parte Access
Is it unfair to require the defense to disclose its trial strategy to the government to seek litigation support
funds, while the trial counsel bears no similar requirement to reveal his or her trial strategy to the defense?
Should the military justice system instead follow the federal model-as it does in so many other areas-by
permitting the defense to appear before the judge in an ex parte hearing to try to establish the necessity of
funding for an expert witness or other litigation support? 230
In Ake, the Supreme Court held that "[w]hen the defendant is able to make an ex parte threshold showing to the trial
court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily
apparent.", 231 Likewise, 18 U.S.C. § 3006(e) provides an ex parte hearing for a person financially unable to obtain expert and
other services. Legislative history of 18 U.S.C. § 3006A(e) 232 details concern that without ex parte access, defense counsel
may be forced to disclose their strategy prematurely. 233 In contrast, the military justice system requires defense counsel to
make the showing of necessity for the expert assistance to the convening authority. If the convening authority denies the
assistance, then defense counsel may renew the request before the military judge. In both instances, however, the defense
risks providing the prosecution valuable information about its case and strategy.
To prevent this disclosure and harm to the defense's case, counsel may request an ex parte hearing. Accused in the
military justice system, however, are not guaranteed an ex parte hearing, and such a hearing "will only be used if the
224 Kreutzer, 61 M.J. at 298. The military judge in Kreutzer's trial "denied the motion without entering any finds of fact... " Id. at 297.
221 Id. at 306 (Crawford, J., dissenting).
226 Id. at 305.
227 See United States v. Kreutzer, 59 M.J. 773, 778-79 (Army Ct. Crim App. 2004).
228 Kreutzer, 61 M.J. at 311 (Crawford, J., dissenting).
229 Id. "Judge Crawford has at times signaled her intent to drive a wedge between the American servicemember and his Constitutional rights." United
States v. Taylor, 41 M.J. 168, 174 (C.M.A. 1994) (Sullivan, J., dissenting).
230 H.F. "Sparky" Gierke, Five Questions About the Military Justice System, 56 A.F. L. REv. 249, 256 (2005) (as part of the overall question: "[S]hould the
structure of the military trial judiciary be changed?").
23 1 Ake v. Oklahoma, 470 U.S. 68, 82-3 (1985).
232 18 U.S.C. § 3006A(e) (LEXIS 2007).
233 Mary M. Foreman, Military Capital Litigation Meeting the Heightened Standards of United States v. Curtis, 174 MIL. L. REv. 1, 35 (2002) (citing
Criminal Justice Act of 1963: Hearings on S. 63 and H. 105 7 Before the Senate Comm. on the Judiciary, 88th Cong. 173 (1963) ("the penalty for asking for funds and services may be the disclosure, prematurely, and ill-advisedly, of a defense")).
FEBRUARY 2007 °THE ARMY LAWYER ° DA PAM 27-50-405 circumstances are 'unusual.' 234 Nor does 18 U.S.C. § 3006(e) apply to the military. 235 In Kaspers, the CAAF realized this
rule forces defense counsel to "make a choice between justifying necessary expert assistance and disclosing valuable trial
strategy, 236 yet held the military judge's discretion to allow an ex parte hearing on the issue a sufficient remedy. 237
If defense counsel requesting expert assistance must still satisfy the three-part Gonzalez test in order to show necessity,
the lack of a right to an ex parte hearing will continue to be a significant issue. Despite the importance of obtaining a
mitigation specialist, counsel may determine that the disclosure required to meet the Gonzalez test outweighs the benefit of
expert assistance. Regardless of counsel's choice, the defense's case will suffer.
VII. Conclusion
[O]ne of the most frequent grounds for setting aside state death penalty verdicts is counsel's failure to
investigate and present available mitigating information. 238
The role of a mitigation specialist in capital cases is paramount in preventing the death sentence because defense
attorneys do not have the knowledge, experience, or capability to handle that aspect of the case.
The CAAF has held that the law does not require the appointment of a mitigation specialist in every capital case. 239 As
noted above, however, the Supreme Court will look to "'[p]revailing norms of practice as reflected in American Bar
Association standards' '240 in determining the reasonableness of counsel's performance under the Strickland standard for
ineffectiveness of counsel. The ABA Guidelines note that "the use of mitigation specialists has become 'part of the existing
standard of care' in capital cases, ensuring 'high quality investigation and preparation of the penalty phase.' 241 Additionally,
the Judicial Conference of the United States found that a mitigation specialist's "work is part of the existing 'standard of
care' in a federal death penalty case. 242 Most recently, the CAAF held that erroneous denial of a request for a mitigation
specialist "was error of constitutional magnitude. 243
In light of the Kreutzer decision, prudent military defense counsel in capital cases should request the services of a
mitigation specialist and convening authorities should provide funds for the expert assistance absent rare circumstances.
The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is
unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic
purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in
our concept of humanity. 2"
234 United States v. Kaspers, 47 M.J. 176, 180 (1997); see also 1 FRANCIS A. GILLIGAN & FREDRIC I. LEDERER, COURT-MARTIAL PROCEDURE § 14-63.20
(2d ed. 1999).
235 United States v. Garries, 22 M.J. 288, 290 (1986) ("The provisions of 18 U.S.C. § 3006A concern representation of indigent defendants in federal district
courts and are inapplicable to the military.").
236 Kaspers, 47 M.J. at 180. In Garries, the "defense refused to make a showing of necessity on the record." Garries, 22 M.J. at 291. Likewise, defense
counsel in Kaspers initially asked for an ex parte hearing, but "opted to reveal strategic information necessary to obtain an expert," after the military judge refused such hearing. Kaspers, 47 M.J. at 179. The court found persuasive Kaspers argument that "defense counsel often treads lightly with the famous Sword of Damocles hanging over them when attempting to justify expert requests to the military judge." Id. at 180.
237 See Kaspers, 47 M.J. at 180.
238 Judicial Conference Report, supra note 52, at pt. I, § B.3.4
239 United States v. Kreutzer, 61 M.J. 293, 305 (2005).
240 Wiggins v. Smith, 539 U.S. 510, 522 (2003) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)).
241 ABA Guidelines, supra note 151, at 960 (citations omitted).
242 Judicial Conference Report, supra note 52, at recommendation 7 cmt.
243 Kreutzer, 61 M.J. at 305.
244 Furman v. Georgia, 408 U.S. 238, 306 (1972) (Stewart, J., concurring).
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