Yesterday’s oral argument at CAAF in United States v. Kreutzer, Jr., reviewed the issue of what additional sentence credit, if any, should be applied when an accused remains on death row after his sentence to death is set-aside.
The argument focused on the lack of explicit findings of fact in the record establishing the presence or absence of intent to punish the appellant by keeping him on death row after the sentence was set-aside, and the standard of review to be applied. The court seemed to embrace the government’s position that they review only the trial military judge’s decision denying additional credit (beyond the administrative credit for the time-served) for an abuse of discretion, and not conduct a de novo review of the issue of unlawful pretrial punishment. In part, this seemed to be a matter of necessity, because the record doesn’t appear to give the court enough hard facts about the conditions on death row to undertake a more rigorous analysis.
The argument also included some discussion that I took to indicate the possibility that the defense can create a rebuttable presumption of violation of Article 13, UCMJ. For instance, at 23:00 the court quizzed the government counsel on why it isn’t intuitive that pre-trial confinement on death row is more rigorous than required. The government responded that the conditions the appellant faced on death row (as preserved in the record) weren’t significantly different from the conditions he faced after he was removed from death row, and that the court is not now in a position to second-guess that later determination.
However, there seemed to be reluctance at the notion that judicially-ordered credit is, per se, required in this case. There was also some incredulity expressed at the need for 10-for-1 credit for the 280 days on death row.