CAAFlog » September 2011 Term » United States v. Kreutzer

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. Feb. 2, 2012) (CAAFlog case page) (link to slip op.), 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.

Case Links:
ACCA opinion
Appellant’s brief
Appellee’s (government) brief
Blog post: Argument Preview
Oral argument audio
Blog post: Argument Recap
Blog post: Opinion Analysis

CAAF today issued this 3-2 decision denying relief in Kreutzer.  Judge Stucky wrote for the majority.  Judge Erdamnn, joined by Chief Judge Baker, dissented.  Senior Judge Cox sat on the case and joined the majority, as did Judge Ryan.

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.

CAAF has posted the audio of today’s oral arguments in United States v. Kreutzer, Jr., and United States v. Winckelmann.

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.

CAAF issued an order today revising the granted issue in United States v. Kreutzer, No. 11-0231.  The modified issue is:


NIMJ posted ACCA’s unpublished decision at issue here.

We previously noted CAAF’s grant of review in the Kreutzer case.  NIMJ has posted ACCA’s latest decision in the case here.  United States v. Kreutzer, No. ARMY 19961044 (A. Ct. Crim. App. Nov. 5, 2010) (per curiam).  But I think the opinion switches the names of Kreutzer’s counsel and Army GAD’s counsel.

Those familiar with US military capital cases know the name Kreutzer.  It’s a capital case from the Army that has been kicking around the courts for 15+ years, only it’s no longer a capital case after Kreutzer’s sentence rehearing last year.  After a military judge sentenced Kreutzer to life (with possibility of parole, as LWOP wasn’t a sentencing option at Kreutzer’s original trial), Kreutzer is now asserting that he should receive extensive pretrial punishment credit under Article 13, UCMJ.  Failing to persuade the Army Court, Kreutzer appealed to CAAF.  CAAFlog‘s post on this is here.

CAAF will once again review a case familiar to military justice wonkdom:  United States v. Kreutzer.  CAAF today granted review of this issue:  “WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED APPELLANT’S MOTION SEEKING SENTENCE CREDIT BECAUSE OF THE GOVERNMENT’S MULTIPLE VIOLATIONS OF ARTICLE 13, UCMJ, AND THE RULES FOR COURT-MARTIAL RESULTING IN APPELLANT’S ILLEGAL PRETRIAL CONFINEMENT.”  United States v. Kreutzer, __ M.J. __, No. 11-0231/AR (C.A.A.F. March 31, 2011).

I can’t find ACCA’s opinion leading to this grant.  If anyone wants to throw it over our electronic transom, we’ll try to catch it.

As the Fayetteville Observer reports here, Sergeant William Kreutzer Jr. was sentenced this afternoon to confinement for life, a dishonorable discharge, forfeiture of all pay and allowances, and reduction to E-1. Kreutzer shot 19 soldiers at Fort Bragg in 1995, killing one. At his original court-martial, he was sentenced to death. His original death sentence and the contested findings were set aside, largely because the military judge erroneously denied a defense request for a mitigation specialist. United States v. Kreutzer, 59 M.J. 773 (A. Ct. Crim. App. 2004), aff’d, 61 M.J. 272 (C.A.A.F. 2005).

The AP reports here that the military judge presiding over Sgt William Kreutzer’s case found him guilty of 16 specs of attempted premeditated murder. Kreutzer had reportedly pleaded guilty to 17 specs of aggravated assault. The military judge reportedly found him guilty of the greater offenses on Tuesday. We’ll try to let you know when Kreutzer is resentenced.

Sgt Kreutzer’s offenses (shooting 19 soldiers, one of whom died) were committed in 1995. He was sentenced to death in 1996. In 2004, ACCA set aside all of the findings of guilty to which Kreutzer had pleaded not guilty, including one specification of premeditated murder, and his sentence. United States v. Kreutzer, 59 M.J. 773 (A. Ct. Crim. App. 2004). The Judge Advocate General of the Army certified the case to CAAF, which affirmed in 2005. United States v. Kreutzer, 61 M.J. 293 (C.A.A.F. 2005). Yesterday, according to this report in the Fayetteville Observer, Kreutzer entered guilty pleas, including to premeditated murder, in exchange for a non-capital referral. The prosecution will proceed to try to prove some other offenses for which Kreutzer pleaded guilty to lesser-included offenses. The contested portion of his case, as well as sentencing, will be in a military judge alone proceeding.

Since the military death penalty was reinstated in 1984, there have been 15 known military death sentences. Two were set aside in the initial CA’s action. Eight have been set aside on direct appeal. In three of those cases, retrials or resentencing proceedings are still in their very early stages. In the four military capital cases where the initial sentence was reversed and the case is now complete, the death sentence wasn’t reinstated in any of them (Dock, Curtis, Simoy, Thomas). Assuming that nothing happens before sentencing to interfere with yesterday’s pleas, Kreutzer will become the fifth former military death row inmate to have his death sentence replaced with a non-capital sentence.

As reported here by the Fayetteville Observer, Sgt Kreutzer has entered pleas of guilty in a non-capital general court-martial.

The No Man called my attention to news reports that the defense team in the Kreutzer case is seeking to delay the retrial, currently scheduled to start on 2 June. Here’s a link to the Fayetteville Observer‘s account of a pretrial motions session.