It’s not unusual, in military or civilian courts, for an appellant to ask for more than he’s likely to get. In this context, CAAF’s 3-2 decision in United States v. Kreutzer, No. 11-0231/AR; 70 M.J. 444 (C.A.A.F., 2012), flatly denying relief to an appellant who spent 280 days on death row after his death sentence (and some of the convictions that put him there) was set-aside on appeal, is unsurprising.
Judge Stucky, joined by Judge Ryan and Senior Judge Cox, rejected the appellant’s argument “that his status changed from sentenced prisoner to pretrial confinee as a matter of law thirty days after the sentence from his first court-martial was set aside.” Slip op. at 6. Rather, “the fact that the capital sentence had been set aside, for reasons peculiar to capital litigation, did not convert [appellant] from an adjudged prisoner to a person held for trial as regards the offenses which the CCA had affirmed.” Slip op. at 9. Therefore, “the retention of Appellant on death row prompts a dispute not over punishment prior to trial (the concern of Article 13) or of the inception and continuation of pretrial confinement (the concern of R.C.M. 305) but of the proper level of confinement. … Since Appellant did not come within the purview of Article 13, UCMJ, he is entitled to no relief under it.” Slip op. at 10-11.
But there is still paternalism in the military justice system, even for an appellant who “opened fire with an automatic weapon on personnel in his brigade when they were in formation commencing a unit run.” Slip op. at 2. In a dissenting opinion joined by Chief Judge Baker, Judge Erdmann wrote that he “would reverse the decision of the CCA and grant Kreutzer four days of credit for each day he was held on death row after the CCA decision vested.” Diss. op. at 2. Particularly, at footnote four, the dissenting opinion notes a dispute over when a “trial terminates,” defining it as after “all charges have been resolved and the sentence adjudged.” Diss. op. at 7, n. 4. Since the trial was not over, the dissenting opinion reasons, the appellant remained a pretrial confinee, and he is therefore entitled to relief under Article 13.
The dissent concludes that “there can be little dispute that Kreutzer’s continued confinement on death row was more rigorous than necessary to ensure his presence at his retrial.” Diss. op. at 11.
However, both the majority and the dissenting opinions avoid discussion of whether the conditions the appellant experienced on death row were significantly different from the conditions he would have experienced, and eventually did experience, off of it (they weren’t; a fact discussed during the oral argument).
On remand, Kreutzer received a life sentence. If that sentence is one day commuted to a term of years, he won’t get any sentence credit for his extra time on death row.