Balancing the Scales of Justice: Expanding Access to Mitigation Specialists in Military Death Penalty Cases

• Author: Major David D. Velloney
• Pages: 01

MILITARY LAW REVIEW

Volume 170 December 2001

BALANCING THE SCALES OF JUSTICE: EXPANDING ACCESS TO MITIGATION SPECIALISTS IN MILITARY

DEATH PENALTY CASES

MAJOR DAVID D. VELLONEY1

On October 27, 1995, Fort Bragg's Towle Stadium was filled with soldiers. At 6:30 in the morning, 1,300 members of the 82d Airborne were gathered for a run. . . . Their commander, Colonel John Scroggins, gave a pep talk over the public address system .

. . . [Sergeant] Kreutzer had been in the woods nearby for an hour. It was foggy and still dark, but the stadium, lit by eight banks of lights, was as bright as day. Kreutzer scanned the field through the sight of a Ruger .22-caliber semiautomatic rifle. Slung across his back was a CAR-15 semiautomatic rifle, a far more powerful weapon. At his side were more than 500 rounds of ammunition. . . . His first shot shattered the spine of Chief Warrant Officer Abraham Castillo, who stood about 50 feet from most of the troops. . . . There was a pause of about five seconds, then a second pop. A bullet pierced [Sergeant Matthew] Lewis' chest. . . . The firing became rapid. Soldiers fell all around the infield. . . . Scroggins and his top officers realized they were under fire. They saw muzzle flashes. They sprinted for the woods. One of the first to reach the trees was Major Guy Lafaro.

As he ran, he noticed the shots were now much louder. Kreutzer had grabbed the CA

vey, defense counsel in capital cases must ensure that panel members know "the rest of the story."

The defense efforts in Sergeant Kreutzer's case appear to have merely scratched the surface of presenting possible mitigation evidence. The trial lasted only nineteen hours, including opening statements, evidence on the merits, recesses, closing arguments, panel instructions, deliberations on findings, presentencing evidence, sentencing arguments, and deliberations on the sentence to death. The enitre defense case, guilt and sentencing phases, took only two hours and forty-seven minutes.5 Extremely limited extenuation and mitigation testimony reached the ears of the panel members. The defense presented testimony from only "one psychiatrist, a couple of Kreutzer's friends, a neighbor and his family."6 Some of the witnesses testified on the merits.

Kreutzer's defense attorneys appear to have failed to fully develop evidence regarding his mental instability and efforts to get help from the Army.7 They presented little evidence or testimony discussing results of any "multigenerational inquiry aimed at identifying any genetic predispositions and environmental influences which molded his life."8 Yet, investigative records indicate that Sergeant Kreutzer met with Captain Darren Fong, an Army counselor and social worker, while deployed to the Sinai as part of a multinational peacekeeping force in January 1994. "On July 13, 1994, Fong filed an internal report that stated: 'Client has inappropriate coping mechanisms in dealing with his anger. This morning, client said

he wanted to kill his squad and he had plans using weapons and ammunition.'"9 Fong eventually concluded that Kreutzer was not a threat, despite records showing Kreutzer's persistent preoccupation with killing dating back to the beginning of his military service. Fong told Kreutzer that if he again felt he would lose control, he should immediately contact a counselor. Kreutzer's superiors relied on Fong's report and dropped the issue, but his subordinates used knowledge of his problems "to further harass him, calling him 'Crazy Kreutzer' and laughing that he would one day go on a shooting rampage."10

In the weeks leading to the shooting, Kreutzer again began to crumble. He was disciplined in early October 1995 for losing the barrel to an M-60 machine gun. It was a serious mistake, and although the punishment amounted to little more than a notation on his record, Kreutzer took it hard, again crying to other soldiers. A few weeks later, he failed a key inspection, and his squad was about to be disciplined for missing equipment. On October 21, Kreutzer again sought help. Keeping his agreement with Fong, he tried to contact a counselor, then a chaplain. . . . In each case, he was told there was nobody available to speak with him. On October 26, he called Womack's psychiatric unit and again got no answer. Then he called a friend, Specialist Burl Mays and said he was going to shoot up Towle Stadium. . . . Mays, finding Kreutzer missing from his room early [the next] morning and a will on his desk, told his superiors about the warnings. They dismissed him.11

Defense counsel failed to present Fong as a witness or to explore his statements made after the shooting, such as, "Kreutzer probably has a history of psychological problems, but this was never identified by his answers or my assessment."12 The Fong evidence, as well as significant testimonial evidence from fellow soldiers regarding Kreutzer's mental state, deserved extensive investigation and examination in relation to Kreutzer's upbringing and psychological development. Arguably, defense counsel should have presented such evidence in extenuation and

mitigation.13 A mitigation specialist on the defense team would have assisted the lawyers in identifying, evaluating, and presenting a more complete social history. The specialist's expertise in crafting "the rest of the story" would have proven invaluable during the presentencing phase of the trial.

Sergeant Kreutzer's appellate attorneys expect to file an appeal to the Army Court of Criminal Appeals in the near future claiming that the trial attorneys "barely broached the subject of Kreutzer's mental instability at the time of the shootings."14 The claim will likely be couched in ineffective assistance of counsel terminology and will likely criticize the military judge's failure to order funding for a mitigation specialist.15 Both the general court-martial convening authority, Major General (MG) George A. Crocker, and the military judge, Colonel Peter E. Brownback III, denied as unnecessary pretrial funding requests by Kreutzer's military defense attorneys for a mitigation specialist.16 Sergeant Kreutzer's trial attorneys cannot discuss their tactical decision-making process until ordered to do so by the appellate court. Thus, it remains difficult to guess why the defense presented such a limited mitigation case or to surmise whether or not a mitigation specialist would have turned the tide in favor of life over death. However, Sergeant Kreutzer's case begs the question of whether a mitigation specialist would have assisted the defense in better meeting the constitutional requirement for consideration of all mitigating factors.

The case provides an excellent factual framework and starting point from which to analyze the current legal landscape regarding use and funding of such specialists in military death penalty cases. Additionally, the case clearly identifies the undue reluctance of convening authorities and military judges to fund mitigation specialists to supplement capital defense teams. This reluctance occurs even in cases where expert assistance appears necessary based on readily available facts alone. Finally, the case highlights that effective assistance of counsel under the Sixth Amen

ment17 includes not only effective representation by counsel, but also adequate access to investigative resources.

Using United States v. Kreutzer as a springboard to identify concerns and frame the issues, this article seeks to address the need for increased access to mitigation specialists in military death penalty cases. The article concludes that evolving legal standards and an increasing awareness of the importance of mitigation specialists demand that the military justice system take affirmative steps toward making experts and investigators more readily available to defense counsel in capital cases. The article recommends a three-pronged approach to improving requests for funding and defense counsel access to mitigation specialists. The approach includes a recommended change to Rule for Courts-Martial (RCM) 703.18 The

change proposes granting capital defendants the right to ex parte hearings to demonstrate the need for expert assistance at government expense. The recommendation generally follows the federal model that grants defendants a right to ex parte requests for experts.19 The second prong suggests that the Court of Appeals for the Armed Forces overturn United States v. Garries20 and United States v. Kaspers21 by finding that all capital cases involve "unusual circumstances."22 By doing so, the military court could judicially create an absolute right to ex parte hearings regarding expert assistance following capital referrals. The third prong stresses the need for educating convening authorities, staff judge advocates, and military justice managers on the benefits of granting mitigation specialists to defense counsel early in the process of potential capital cases.

Before reaching the analysis of why defense counsel need mitigation experts and how to make them more easily accessible, Section II of the article provides a general background discussion of foundational Supreme Court cases regarding the importance of mitigation evidence in capital

cases. The section also provides an overview of current rules and standards for capital cases and expert assistance requests expressed in the Rules for Courts-Martial23 and under military case law. Section III surveys recent Court of Appeals for the Armed Forces and service court opinions that directly and indirectly affect the issue of increased access to mitigation specialists. Developments regarding ineffective assistance of counsel and funding of experts drive much of this analysis. Section IV examines evolving standards in the legal community regarding the importance of mitigation experts in death penalty cases. Section V expands on the conclusion reached in Sections II, III and IV that evolving standards require increased...