On Monday, CAAF will hear oral argument in United States v. Kreutzer, No. 11-0231/AR. The granted issue is:
Whether the military judge erred when he denied appellant’s motion seeking Article 13 sentence credit for the government’s 278-day delay in transferring him from death row after the court of criminal appeals set aside the death sentence and affirmed only those non-capital charges to which the appellant pleaded guilty.
The ACCA’s per curiam affirmation is here.
Kreutzer has been around in the military justice system for a long time. For some background, see here. This appeal addresses what happened after his first appeal, which resulted in the sentence of death being set-aside. He was on death row at the time, and stayed there until CAAF issued an order, almost a year after the ACCA set-aside the sentence, that he be released from post-trial confinement. He was then transferred to the brig at Camp Lejeune and then Charleston, SC, for pretrial confinement. All of his confinement was credited, 1-for-1, against his ultimate sentence.
At his re-trial, the military judge refused to order credit for unlawful pretrial punishment for the 278 days (which is really 280 days) that Kreutzer spent on death-row after his death sentence was set-aside, finding:
(1) The command did not act in bad faith in failing to remove the accused from death row;
(2) The command complied with CAAF’s order that the accused be removed from death row and placed into appropriate custody;
(3) The government’s actions concerning the accused’s removal from death row did not violate Article 13 and warrants no relief;
(4) R.C.M. 305 was not violated, so no relief is warranted under R.C.M. 305(k); and,
(5) There [was] no evidence before the court from which it [could] reasonably infer that the accused’s command intended in any way to punish the accused in violation of Article 13.
The military judge also found that: (1) the government conducted timely and appropriate reviews of the accused’s confinement status prior to the original trial and after the appellate court decisions in this case; and, (2) there was no evidence before the court which warranted any relief under R.C.M. 305 (k).
Appellant’s Br. at 6.
The briefs agree that AR 190-47, which prohibits commingling of death and non-death sentenced prisoners, was violated, but the significance of that, as well as the rule to be applied, is disputed. Moreover, the briefs disagree on more fundamental issues, such as when the ACCA’s opinion that set-aside the death sentence took effect for the purpose of changing the post/pre-trial confinement status. Additionally, there seems to be an absence of any specific prejudice (other than “being on death row”) to the appellant for the 280 days. The appellant seeks 10-for-1 credit for this time.
I anticipate that the oral argument will focus on the degree of deference to be given to the trial judge’s findings, the significance of merely being in a “post-trial” status during the 280 days (without something more, such as command intent to punish or unduly harsh conditions), and when a CCA decision setting-aside a sentence becomes final for the purpose of the confinement status. The need for 10-for-1 credit may also get some discussion.