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.

10 Responses to “Argument Preview: United States v. Kreutzer, Jr.”

  1. Dew_Process says:

    The institutional “privileges” are significantly reduced for those detained on “death row.” So there are in fact “prejudices.” Whether or not that got into the record, is another issue.

  2. John Baker says:

    We litigated this issue in Walker and Judge Robinson reached the opposite results and ordered substantial credit. He found that:
    1 – Keeping Walker on Death Row after NMCCA’s ruling became final violated Art 13. The NMCCA had set aside certain findings and the death sentence and Judge Robinson logically concluded that because Walker no longer and adjudged sentence, he should have been treated a pre-trial detainee instead of a post-trial prisoner.
    2- The USDB’s decision to treat him like an adjudged prisoner demonstrated both an intent and purpose to punish. He explained that “the fact that [Walker] remained confined under the very same conditions as an adjudged prisoner speaks for itself.”
    3 – Judge Robinson found that the USDB and CA’s failure to conduct an IRO hearing within 7 days of the NMCCA’s decision becoming final violated RCM 305(k) and was an abuse of discretion. To say that he was less than impressed with the decision making at the USDB on this issue would be an understatement.

    All told Judge Robinson awarded about 8 for 1 credit on what appears to be the same facts that Kruezter’s trial judge no Art 13 violation. Whether the relief Judge Robinson ordered was meaningful is another issue.

  3. publius-publicola says:

    This case is a waste of everyone’s time – like rearranging the deck chairs on the Titanic. After all, the convict is a confessed murderer and a lifer – and we’re arguing over a few days of credit. Really. And if you believe the DB head who spoke at last year’s CAAF conference, the death row boys get some privileges that other inmates don’t – like their own TV. No prejudice and definitely no sympathy for this lifetime burden on society.

  4. stewie says:

    I personally don’t see how getting things right is ever a waste of time, but I guess one person’s Titanic deck chair is another person’s whatever the opposite of a Titanic deck chair is.

  5. H Lime says:

    Exactly, Stewie. A nation of laws and not of men. Courts aren’t in the business of sympathy. Mildly interesting if accused are sympathetic or not: it’s all about the law and the process.

  6. publius-publicola says:

    It’s a law – 10 USC 859(a) – a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused. The MJ made his ruling – and even if incorrect, there is no material prejudice to a substantial right.

  7. stewie says:

    Isn’t it possible that his sentence could in the future be commuted to a term of years? Unlikely yes, but are you suggesting the court should just assume folks who get a life sentence without parole won’t ever have that sentence commuted to life with parole or a term of years?

    Because I’ve been on a case where that very thing happened.

  8. Dwight Sullivan says:

    At his rehearnig, Kreutzer was sentenced to confinement for life, not life without eligibility for parole. He wasn’t eligible for LWOP due to the date of his offenses.

  9. WhiskeyTango says:

    Even if it’s life with, how do take days off a “life” sentence?

  10. Dew_Process says:

    WT – the practical effect is when he becomes “eligible” for parole.

    Stewie, good observation. I have a client who was originally sentenced to life, but the N-MCCA reduced his sentence to 35 years on appeal. So, there’s another potential application of “credit.”