                             IN THE CASE OF


                       UNITED STATES, Appellant

                                    v.

                  William J. KREUTZER Jr., Sergeant
                         U.S. Army, Appellee

                              No. 04-5006

                        Crim. App. No. 9601044

       United States Court of Appeals for the Armed Forces

                       Argued December 8, 2004

                       Decided August 16, 2005

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J.,
filed a dissenting opinion.

                                 Counsel

For Appellant: Captain Edward E. Wiggers (argued); Colonel
Steven T. Salata, Lieutenant Colonel Mark L. Johnson, and Major
Natalie A. Kolb (on brief).

For Appellee: Captain Charles A. Kuhfahl Jr. (argued); Colonel
Mark Cremin and Lieutenant Colonel Mark Tellitocci (on brief).


Military Judge:   Peter E. Brownback III


       This opinion is subject to revision before final publication.
United States v. Kreutzer, No. 04-5006/AR



     Judge ERDMANN delivered the opinion of the court.

     Sergeant (SGT) William J. Kreutzer Jr. opened fire with an

automatic weapon on personnel in his brigade when they were in

formation commencing a unit run.       He was subsequently charged

with one specification of premeditated murder, eighteen

specifications of attempted premeditated murder, one

specification of violation of a lawful general regulation, one

specification of larceny of Government munitions, four

specifications of maiming, and eighteen specifications of

aggravated assault, in violation of Articles 118, 80, 92, 121,

124, and 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§§ 918, 880, 892, 921, 924, 928 (2000), respectively.      The

charges were referred to a general court-martial with

instructions that the case was “[t]o be tried as a capital

case.”

     Kreutzer pleaded guilty to one specification of murder

while engaged in an act inherently dangerous to another (as a

lesser included offense of premeditated murder), eighteen

specifications of assault with a loaded firearm (as a lesser

included offense of attempted premeditated murder), one

specification of violating a lawful general regulation, and one

specification of larceny of Government munitions.      He was

convicted of one specification of premeditated murder, eighteen



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United States v. Kreutzer, No. 04-5006/AR

specifications of attempted premeditated murder, one

specification of violating a lawful general regulation, and one

specification of larceny of Government munitions.1   A unanimous

twelve-member court of officer and enlisted members sentenced

Kreutzer to death, a dishonorable discharge, forfeiture of all

pay and allowances, and reduction to E-1.    The convening

authority approved the sentence as adjudged.

     The United States Army Court of Criminal Appeals affirmed

only the findings to which Kreutzer had entered guilty pleas:

murder while engaged in an inherently dangerous act; assault

with a loaded firearm; violating a lawful general regulation;

and larceny of Government munitions.   United States v. Kreutzer,

59 M.J. 773, 784 (A. Ct. Crim. App. 2004).   The Army court set

aside the findings of guilty to premeditated murder and

attempted premeditated murder and the sentence.   Id.   The Army

court denied a Government request for en banc consideration and

a motion for reconsideration.   Subsequently, the Judge Advocate

General of the Army (TJAG) certified the case to this court

pursuant to Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2)

(2000).




1
  At trial the charges of maiming and aggravated assault were
consolidated with related specifications alleging attempted
premeditated murder, and the maiming and aggravated assault
offenses were “provisionally dismissed.”

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United States v. Kreutzer, No. 04-5006/AR

      Compulsory process, equal access to evidence and witnesses,

and the right to necessary expert assistance in presenting a

defense are guaranteed to military accuseds through the Sixth

Amendment, Article 46, UCMJ, 10 U.S.C. § 846 (2000), and Rule

for Courts-Martial (R.C.M.) 703(d).      See Ake v. Oklahoma, 470

U.S. 68, 77 (1985).   The Court of Criminal Appeals found that

Kreutzer was erroneously denied expert assistance in the form of

a capital mitigation specialist.       Kreutzer, 59 M.J. at 775.   A

majority of that court further found that the Government did not

show that error to be harmless beyond a reasonable doubt with

respect to the contested findings of premeditated murder and

attempted premeditated murder.   Id.      The issue certified to us

by TJAG asks us to determine whether the Court of Criminal

Appeals erred in finding that the Government did not meet its

burden of demonstrating that the erroneous denial of a

mitigation specialist was harmless beyond a reasonable doubt.2


2
    The certificate for review raises the following issue:

      WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL
      APPEALS ERRED WHEN IT FOUND DENIAL OF A MITIGATION
      SPECIALIST TO BE PREJUDICIAL ERROR FOR FINDINGS WHEN
      THE SAME OPINION ALSO FOUND THAT ALL EVIDENCE THE
      MITIGATION SPECIALIST WOULD HAVE DISCOVERED DID NOT
      HAVE A REASONABLE PROBABILITY OF PRODUCING A DIFFERENT
      RESULT.

Although TJAG has not certified and the parties do not
contest that the military judge erred in denying Kreutzer’s
request for expert assistance, this court could examine the
military judge’s legal ruling. United States v. Simmons,
59 M.J. 485, 488 (C.A.A.F. 2004). However, “we are

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United States v. Kreutzer, No. 04-5006/AR

                           BACKGROUND

     Sergeant Kreutzer enlisted in the U.S. Army and entered

active duty in February 1992.   In March of 1993 he was assigned

to the 325th Airborne Infantry Regiment of the 82d Airborne

Division,3 stationed at Fort Bragg, North Carolina.   Although

Kreutzer was considered by some superiors to be a good soldier,

throughout his military career he had trouble fitting in and

interacting with his fellow troops.    Kreutzer deployed to the

Sinai with his unit in January 1994.    The butt of numerous

practical jokes and frequently referred to in derogatory terms,

Kreutzer’s tolerance for this chiding and his relations within



reluctant to exercise that power and, as a rule, reserve it
only for those cases where the lower court’s decision is
‘clearly erroneous and would work a manifest injustice’ if
the parties were bound by it.” Id. (quoting United States
v. Doss, 57 M.J. 182, 185 (C.A.A.F. 2002)). The parties do
not urge and the record does not suggest that the Army
Court of Criminal Appeals’ ruling is clearly erroneous or
that it causes a manifest injustice. This case presents
even stronger circumstances than Simmons for this court not
to address the correctness of the military judge’s ruling.
Simmons involved a granted petition, but the present case
is before this court on a single certified issue. The
Judge Advocate General of the Army made a decision to
certify a precise issue relating to the lower court’s
finding of prejudice. Despite the opportunity to bring the
lower court’s ruling before this court that the military
judge erred in denying Kreutzer’s request for a mitigation
specialist, TJAG chose not to do so. Under these
circumstances, we conclude that the lower court’s ruling
that the military judge erred in denying Appellee’s request
for expert assistance is the law of the case. See United
States v. Grooters, 39 M.J. 269, 273 (C.M.A. 1994).
Therefore, we do not review that ruling.



                                 5
United States v. Kreutzer, No. 04-5006/AR

his unit deteriorated.   From approximately April to July, 1994,

Kreutzer began to make threats to kill including threats to kill

named individuals, soldiers in physical training formation, and

entire units while they slept.   Kreutzer often described to

others precisely how he planned to kill these individuals.

     In June of 1994 Kreutzer broke down and cried while on

guard duty and threatened to kill other members of his unit.

Kreutzer was confronted about the threats by his platoon

sergeant who escorted him to the division’s mental health

officer, Dr. (Captain) Darren Fong.   Kreutzer met with Dr. Fong

and discussed his homicidal thoughts about his squad members.

Doctor Fong concluded that Kreutzer was a person who had

problems with anger and low self-esteem and “appeared” to have

interpersonal problems with members of his squad.   Doctor Fong,

however, felt that Kreutzer was not a danger to himself or

others.   Kreutzer remained with his unit where he continued to

have difficulty interacting with other soldiers and also started

to have performance problems that continued up to the time of

the charged offenses.    Despite his difficulties and apparent

emotional problems, in October 1994, Kreutzer attended the

Primary Leadership Development Course to become a




3
  The 325th Airborne Infantry Regiment is also known as the 2d
Brigade of the 82d Airborne.

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United States v. Kreutzer, No. 04-5006/AR

noncommissioned officer and he was promoted to sergeant in March

1995.

        The 2d Brigade scheduled a unit run for the morning of

October 27, 1995.4    On the evening of October 26, 1995, Kreutzer

called Specialist Fourth Class (SP4) Mays, a member of his

squad, and informed him that he was “going to shoot the run the

following day.”    Before the scheduled run on the morning of

October 27, SP4 Mays informed his chain of command of Kreutzer’s

threat.    The platoon leader and platoon sergeant initially

laughed when the threat was brought to their attention.

Similarly, the threats Kreutzer made to SP4 Mays were not taken

seriously by the first sergeant or the acting company commander.

        On the morning of October 27, 1995, Kreutzer secreted

himself in the woods near an athletic field at Fort Bragg, North

Carolina, where his brigade was forming for the run.    As the

brigade marched out of the stadium, Kreutzer opened fire on the

formation with two rifles.    Eighteen soldiers were wounded and

one officer suffered a fatal wound in Kreutzer’s attack.

Kreutzer was subdued by three Special Forces soldiers who had

been running in the area.



4
  The 2d Brigade had just assumed the highest readiness posture
in their readiness cycle. It is standard practice for the
brigade to hold a mission assumption run to recognize this
status and the entire brigade task force participates. The
brigade task force was composed of between 1,500 and 2,000
soldiers.

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United States v. Kreutzer, No. 04-5006/AR

     Kreutzer did not deny that he fired shots at his brigade

from ambush or that he wounded eighteen soldiers and killed an

officer.   He later stated that his actions were intended to send

a message that the unit did not care about the men.   He also

anticipated that he would either shoot himself or be shot and

killed by the military police.

     Subsequent to his apprehension and while still in law

enforcement custody, Kreutzer was assessed by the 82d Airborne

Division psychiatrist.   He received additional mental health

evaluation in the form of a suicide assessment while he was in

pretrial confinement.    Kreutzer was evaluated by a privately

retained forensic psychiatrist in November 1995 and he was

evaluated by a sanity board convened under R.C.M. 706 in

December 1995.   Charges against Kreutzer were referred to a

capital general court-martial on January 24, 1996.

     On March 11, 1996, Kreutzer’s defense team filed a request

with the convening authority for employment of a mitigation

specialist.   Although the convening authority did approve

funding for defense counsel to travel in support of building a

case in mitigation, he denied the request for a mitigation

specialist.   The defense renewed its request for a mitigation

specialist by motion before the military judge.

     Defense counsel provided a copy of the request they had

made to the convening authority in which they asserted that they



                                  8
United States v. Kreutzer, No. 04-5006/AR

lacked “the experience and scientific expertise to uncover all

potentially mitigating events or factors in SGT Kreutzer’s

case.”    They also provided an extensive affidavit from a

“mitigation specialist” that explained the necessity of a

mitigation investigation in capital cases, the scope of that

investigation, and the role of a mitigation specialist.      Defense

counsel argued that they were not qualified to do the work of a

mitigation expert.    The Court of Criminal Appeals reached the

same conclusion stating, “[I]n determining whether or not the

defense counsel could adequately do the function of an expert

mitigation specialist, the judge should have considered, among

other factors, defense counsel’s lack of capital litigation

experience, their minimal capital litigation training, and the

time constraints they were facing at trial.”    Kreutzer, 59 M.J.

at 778.   The military judge denied the motion without entering

any findings of fact by simply stating:    “I find the law here at

Loving 3 at 250.     I don’t find the showing requiring me to order

one.”5




5
  The military judge was referring to this court’s decision in
United States v. Loving, 41 M.J. 213 (C.A.A.F. 1994).

                                   9
United States v. Kreutzer, No. 04-5006/AR

                              DISCUSSION

                                   I.

         Ruling of the U.S. Army Court of Criminal Appeals

     Kreutzer appealed a number of issues to the Court of

Criminal Appeals,6 but the Army court addressed only two:      “(1)

whether the military judge erred by denying [Kreutzer] the

services of an expert consultant in capital sentence mitigation,

and (2) whether appellant’s detailed trial defense counsel were

ineffective in their representation of [Kreutzer] at the

sentencing stage of trial.”   Id. at 775.    The court unanimously

agreed that the sentence must be set aside due to ineffective

assistance of counsel, a determination that the Government has

not appealed.   A majority of the court found prejudicial error

in the denial of the mitigation specialist and set aside the

contested findings and sentence.     The Government does not

contest that the military judge erred in denying a mitigation

specialist, but argues that the error was harmless beyond

reasonable doubt for the following reasons:    (a) the Court of

Criminal Appeals erred in applying the test for harmless error;

(b) the majority opinion impeached itself; and (c) the nature of

the mental health evidence is not relevant to the element of

6
  Kreutzer’s case was referred to the Army Court of Criminal
Appeals on September 27, 1996. Thereafter, Kreutzer filed two
briefs before the Army court. One was filed on March 9, 2001
and asserted twenty-one assignments of error. The other was



                                10
United States v. Kreutzer, No. 04-5006/AR

premeditation.   Following discussion of the Government’s

contentions in regard to the Army court’s decision, we will

address whether the Government met its burden in establishing

that Kreutzer suffered no prejudice.


  a.   Did the Court of Criminal Appeals err in applying the test
       for harmless error?

  Arguments:

  The Government argues that the Court of Criminal Appeals erred

in applying the test for harmless error in this case.      The Army

court explained that the test for prejudice was whether the

error was harmless beyond a reasonable doubt.   Kreutzer, 59 M.J.

at 779 (citing Chapman v. California, 386 U.S. 18 (1967)), and

went on to define that inquiry as “whether the error itself had

substantial influence” on the trial results.    Id. (citing United

States v. Pollard, 38 M.J. 41, 52 (C.M.A. 1993)).    The

Government urges that Pollard requires a threshold determination

that an error must be shown to “prejudice a litigant’s

substantial rights” before any burden to show harmlessness

beyond a reasonable doubt is imposed on the Government.     38 M.J.

at 52 (quoting Kotteakos v. United States, 328 U.S. 750, 760

(1946)).   The Government argues that Kreutzer did not meet this

threshold showing of prejudice.




filed on February 12, 2002 and asserted another fifty-five
assignments of error.

                                  11
United States v. Kreutzer, No. 04-5006/AR

     Kreutzer argues that the Court of Criminal Appeals used the

correct standard in determining this error was not harmless.    In

response to the Government’s Pollard argument, Kreutzer argues

that the Army court did find prejudice to his substantial rights

and, alternatively, that the finding that the error was not

harmless beyond a reasonable doubt created a de facto finding

that the error prejudiced his substantial rights.   Finally

Kreutzer points out that this is a case in which the test for

harmlessness must be assessed by asking if even one member might

have been influenced to conclude that the Government did not

prove premeditation beyond a reasonable doubt.   Had even one

member been so persuaded, death would have been removed as a

lawful punishment in this case.

     Discussion:

     The right to the expert assistance of a mitigation

specialist in a capital case is determined on a case-by-case

basis.    See United States v. Loving, 41 M.J. 213, 250 (C.A.A.F.

1994).7   Where such a request is erroneously denied, that ruling



7
  In light of recent Supreme Court decisions in this area, when a
defendant subject to the death sentence requests a mitigation
specialist, trial courts should give such requests careful
consideration in view of relevant capital litigation precedent
and any denial of such a request should be supported with
written findings of fact and conclusions of law. We find
unpersuasive the dissent’s reliance on a line of cases that
precedes the Supreme Court’s opinion in Wiggins v. Smith, 539
U.S. 510 (2003). We note that because there is no professional
death penalty bar in the military services, it is likely that a

                                  12
United States v. Kreutzer, No. 04-5006/AR

implicates the right to present a defense, compulsory process,

and due process conferred by the Constitution, the right to

obtain witnesses and evidence conferred by Article 46, UCMJ, and

the right to the assistance of necessary experts conferred by

R.C.M. 703(d).   Because Kreutzer was wrongly deprived of the

expert assistance of a mitigation specialist to aid in the

preparation of this capital case, the Court of Criminal Appeals

held that Kreutzer had been denied due process.     Kreutzer, 59

M.J. at 779.   Concerning findings, the lead opinion of the Court

of Criminal Appeals concluded:   “Here the judge’s abuse of

discretion adversely impacted the fairness of the trial on

findings as to the issue of premeditation by depriving appellant

of a complete presentation of the evidence concerning his state

of mind . . . .”   Id. at 779-80.     The Government does not

contest the finding that Kreutzer was denied due process.       This

error of constitutional magnitude must be tested for prejudice

under the standard of harmless beyond a reasonable doubt.       See

Chapman, 386 U.S. at 24; United States v. Sidwell, 51 M.J. 262,

265 (C.A.A.F. 1999).   The inquiry for determining whether

constitutional error is harmless beyond a reasonable doubt is

“whether, beyond a reasonable doubt, the error did not

contribute to the defendant’s conviction or sentence.”     United




mitigation specialist may be the most experienced member of the
defense team in capital litigation.

                                 13
United States v. Kreutzer, No. 04-5006/AR

States v. Kaiser, 58 M.J. 146, 149 (C.A.A.F. 2003) (quoting

United States v. Davis, 26 M.J. 445, 449 n.4 (C.M.A. 1988)).          We

will reverse a conviction unless we find that a constitutional

error was not a factor in obtaining that conviction.

     The Court of Criminal Appeals found that the denial of a

mitigation specialist was a denial of due process and

articulated the requirement that a conviction cannot be affirmed

if a constitutional error was not harmless beyond a reasonable

doubt.   Kreutzer, 59 M.J. at 779-80 (citing Chapman v.

California, 386 U.S. 18 (1967)).       This is “a familiar standard

to all courts.”   Chapman, 386 U.S. at 24.      Nonetheless, the

Court of Criminal Appeals went on to misstate the nature of the

inquiry.

     The Army court defined the constitutional error inquiry as

follows:   “In testing for harmless error we inquire ‘whether the

error itself had substantial influence’ on the trial results.”

Kreutzer, 59 M.J. at 779 (quoting Pollard, 38 M.J. at 52;

Kotteakos, 328 U.S. at 765).     In Pollard we assessed the impact

of a trial counsel erroneously reading a victim’s pretrial

statement to the members in the guise of impeachment -– a

nonconstitutional trial error.    38 M.J. at 50-51.    That

assessment was to determine if “an error of law . . . materially

prejudice[d] the substantial rights of the accused.”      Pollard,

38 M.J. at 51-52; Article 59(a), UCMJ, 10 U.S.C. § 859(a)



                                  14
United States v. Kreutzer, No. 04-5006/AR

(2000).   In contrast to asking whether a constitutional error

contributed to a conviction, the quest for a “substantial”

influence seeks a more measurable impact or importance.     When

constitutional error is substantial and, as reflected by

Chapman, where that error contributes to a conviction, the

conviction cannot stand.   We hold that in relying upon Pollard

and testing this error for “substantial influence,” the Army

court applied an erroneous definition to the nature of the

inquiry into the effect of constitutional error.8     The error is

not material to this appeal, however, because the standard that

the Army court applied found harm under a test more favorable to

the Government than the standard it should have applied.

     This court reviews de novo the issue of whether a

constitutional error was harmless beyond a reasonable doubt.

United States v. Hall, 56 M.J. 432, 436 (C.A.A.F. 2002); United

States v. Grijalva, 55 M.J. 223, 228 (C.A.A.F. 2001).     For that

reason, we can conduct an independent review of the impact of

this constitutional error.   See infra, Section II.




8
  In light of this holding and the fact that Pollard is a case
dealing with nonconstitutional trial error, we need not address
the Government’s additional contentions regarding application of
Pollard and whether Pollard requires any type of threshold
showing.

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United States v. Kreutzer, No. 04-5006/AR



  b.   Does the majority decision of the Court of Criminal
       Appeals impeach itself with internally inconsistent
       statements as to whether denial of a mitigation specialist
       was harmless?

  Arguments:

  The Government’s argument in support of this contention

centers on what appears to be a facial inconsistency in the text

of the Court of Criminal Appeals’ opinion.    As noted, that court

concluded that the Government did not meet its burden of showing

that the error in denying a mitigation specialist was harmless

beyond a reasonable doubt.   Kreutzer, 59 M.J. at 779-80.     In two

footnotes, however, the opinion discusses the test for

ineffective assistance of counsel under Strickland v.

Washington, 466 U.S. 668 (1984).     In that context, Judge

Clevenger, the author judge, states:

          I specifically do not agree that the
          prejudice prong of Strickland . . . has been
          satisfied [as to contested issues in the
          findings]. Notwithstanding the powerful
          evidence that raises substantial concerns
          about the quality of Appellant's mental
          health, there is still substantial expert
          opinion evidence of his ability to
          premeditate and significant direct and
          circumstantial evidence of the actual
          process of his alleged premeditation that
          fact-finders at trial could credit.

Kreutzer, 59 M.J. at 780 n.8 (citation omitted).    Judge

Clevenger repeats his conclusion later:

          To reiterate, even assuming the first prong
          of the Strickland test for ineffective


                                16
United States v. Kreutzer, No. 04-5006/AR

           assistance of counsel were satisfied, I
           think there was not a reasonable probability
           that any showing of Appellant's complete
           mental health status would have overcome the
           expert opinion evidence of sanity and the
           direct and circumstantial evidence of
           premeditation.

Id. at 784 n.11 (citation omitted).

     The Government argues that with this language the Court of

Criminal Appeals impeached its own decision.   In the

Government’s view Judge Clevenger found that the denial of a

mitigation specialist was not harmless beyond a reasonable doubt

but also said that the evidence a mitigation specialist would

produce had no reasonable probability of changing the result on

the findings.   The Government argues that this internal

inconsistency demonstrates that denial of a mitigation

specialist was harmless beyond a reasonable doubt.

     Kreutzer disputes the contention that the Army court

impeached its own decision by referencing the prejudice test for

ineffective assistance of counsel.    Kreutzer points out that the

test for ineffective assistance involves a different standard

and burden when reviewing the effect of denial of competent

counsel.   He notes that there is no reason to find any

inconsistency because it is wholly proper to come to distinct

conclusions under two separate tests with the burden falling

upon different parties.




                                17
United States v. Kreutzer, No. 04-5006/AR

       Discussion:

       We agree that there is an appearance of inconsistency.    We

do not agree, however, that that inconsistency is necessarily

erroneous nor do we find that Judge Clevenger impeached his own

decision in his footnotes.   Trial and appellate practices are

replete with different burdens of proof and persuasion that are

allocated to one party or another.

       The party benefiting from a constitutional error bears the

burden of demonstrating that the error was harmless beyond a

reasonable doubt.    Chapman, 386 U.S. at 24; Simmons, 59 M.J. at

489.   See also Kaiser, 58 M.J. at 149 (citation omitted) (“Error

of constitutional dimensions requires either automatic reversal

or an inquiry into whether, beyond a reasonable doubt, the error

did not contribute to the defendant’s conviction[.]”); Grijalva,

55 M.J. at 228 (“When there has been an error of constitutional

dimension, this Court may not affirm unless it is satisfied that

the error is harmless beyond a reasonable doubt.”).   Thus, in

this case, the Government is called upon to show that the error

had no causal effect upon the findings.   Specifically, the

Government had to demonstrate that there was no reasonable

possibility that the absence of a mitigation specialist

contributed to the contested findings of guilty.    See Gutierrez

v. McGinnis, 389 F.3d 300, 307-08 (2d Cir. 2004).




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United States v. Kreutzer, No. 04-5006/AR

     The test and burden relating to prejudice from ineffective

assistance of counsel are different.    If an appellant

establishes that counsel was ineffective under the first prong

of Strickland, it is the appellant as opposed to any party

benefiting from error (in this case, the Government) who bears

the burden of demonstrating prejudice.   United States v. Davis,

60 M.J. 469, 473 (C.A.A.F. 2005); United States v. Dewrell, 55

M.J. 131, 133 (C.A.A.F. 2001).   To establish prejudice, the

appellant must demonstrate a reasonable probability that, but

for counsel’s deficiency, the result would have been different.

Davis (citing United States v. Quick, 59 M.J. 383, 587 (C.A.A.F.

2004)).   The appellant must demonstrate such prejudice as to

indicate a denial of a “fair trial, a trial whose result is

unreliable.”    Dewrell, 55 M.J. at 133 (citing Strickland, 466

U.S. at 687).   In this setting, overwhelming evidence of guilt

may present an insurmountable obstacle to an appellant claiming

prejudice from ineffective assistance of counsel.

     The tests for determining constitutional harmless error and

for determining prejudice under an ineffective assistance

analysis are substantially different:    the burden falls on

different parties (the Government vs. the appellant); the

burdens themselves are different (possibility vs. probability);

and different considerations are given to the quality and weight

of the evidence of guilt in each test.   In applying the two



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United States v. Kreutzer, No. 04-5006/AR

tests, it is therefore not unreasonable or illogical to come to

two different conclusions, even in a single case.   In light of

this, and according Judge Clevenger the presumption that he knew

the law, we find no impeaching inconsistency within the opinion.

See United States v. Eversole, 53 M.J. 132, 138 (C.A.A.F. 2000).

  c.   Is the nature of the mental health evidence potentially
       gathered by a mitigation specialist relevant to the
       contested elements of premeditation?

  Arguments:

  The Government acknowledges that general mental health

evidence is relevant to establish mens rea, but argues that in

this case, due to Kreutzer’s specific personality disorders, any

potential mental health evidence that a mitigation specialist

could have obtained would not be relevant to the findings.    The

Government characterizes Kreutzer’s mental health history as

demonstrating diminished capacity and asserts that because

evidence of diminished capacity is not relevant to the issue of

mental responsibility, it could not negate the element of

premeditation.   Kreutzer, on the other hand, claims that a

mitigation specialist would have identified additional mental

health evidence as well as helped defense counsel identify and

better use experts.   Kreutzer asserts that in the end a

mitigation specialist would have substantially contributed to

presenting a more coherent and stronger mental health theory at




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United States v. Kreutzer, No. 04-5006/AR

trial and that it is possible the members, or at least one

member, could have come to a different conclusion on findings.

     Discussion:

     Under the circumstances of this case we disagree with the

Government’s generalization that none of the mental health

evidence that was available could or would have an impact upon a

member’s determination of premeditation.    We have not limited

military justice jurisprudence to a narrow use of mental health

evidence.   Indeed, Ellis v. Jacob, 26 M.J. 90, 93 (C.M.A. 1988),

dispelled any construction of Article 50a(a), UCMJ, 10 U.S.C. §

850a(a) (2000), that would eliminate evidence of mental

conditions relevant to premeditation, specific intent,

knowledge, or willfulness, i.e., elements of offenses.    See also

United States v. Schap, 49 M.J. 317, 322 (C.A.A.F. 1998).

     The record reflects a wealth of mental health information

in this case.   A mix of psychological and psychiatric

professionals were involved with Kreutzer both before and after

the offenses.   One mental health professional, Dr. (Colonel)

Robert Brown Sr., opined that Kreutzer was “chronically and

seriously mentally ill.”   This particular information was not

known to Kreutzer’s defense counsel prior to trial.    Properly

prepared and presented, testimony of this nature arguably could

go beyond demonstrating diminished capacity and be a substantial

part of a defense against the premeditation element.     As Judge



                                21
United States v. Kreutzer, No. 04-5006/AR

Clevenger’s lead opinion for the Court of Criminal Appeals

points out:

            The mitigation specialist’s role would be to
            gather and collate appellant's civilian and
            military history with a view to the
            psychiatric issues that would help explain
            appellant's state of mind at the critical
            time of the shooting. One could speculate
            endlessly on what such an expert, if
            provided, would have done to help the
            detailed defense counsel assess the whole
            story . . . .”

Kreutzer, 59 M.J. at 778-79.    Amidst the “wealth of relevant

information available to discover, investigate, preserve,

analyze, evaluate and potentially exploit at trial in defense of

the premeditation allegations,” Judge Clevenger found “most

telling” the fact that Dr. Brown’s “potentially powerful,

exculpatory mental status evidence was not discovered by, or

known to the defense counsel, at the time of trial.”    Id. at

779.

       The Government must show there is no reasonable possibility

that even a single court member might have harbored a reasonable

doubt in light of the mental health evidence that the mitigation

specialist could have gathered, analyzed, and assisted the

defense to present.   Had but a single member harbored a

reasonable doubt, death would have been excluded as a

permissible punishment.   The Government has not met its burden

of demonstrating that a mitigation specialist could have done

nothing to assist counsel to present additional evidence of


                                 22
United States v. Kreutzer, No. 04-5006/AR

Kreutzer’s mental health that would not have had an impact on

the premeditation element for at least one court member.



                               II.

    De novo review for harmlessness beyond a reasonable doubt

     We have held in this opinion that the Court of Criminal

Appeals applied an incorrect definition to the nature of the

constitutional harmless error inquiry and that we review de novo

the impact of that error in this case.    Kreutzer urges us to

affirm the Court of Criminal Appeals regardless of the error.

He argues that if the Government could not meet the erroneous

lower standard applied by the Army court, then it surely could

not demonstrate that the error in denying the mitigation

specialist was harmless beyond a reasonable doubt.

     The Government must demonstrate there is no reasonable

possibility that the absence of a mitigation specialist

contributed to the contested findings of guilty or, in this

case, that not even a single member would have harbored a

reasonable doubt after considering the mental health evidence

that the mitigation specialist could have gathered, analyzed,

and assisted the defense in presenting.   We do not believe that

the Government has met that burden.

     To place this discussion in its proper context, it is

necessary to examine the role of a mitigation specialist in



                               23
United States v. Kreutzer, No. 04-5006/AR

capital litigation, both generally and in this case.   The

general role of a mitigation specialist was discussed in a

report adopted by the Judicial Conference of the United States:

          Mitigation specialists typically have graduate
          degrees, such as a Ph.D. or masters degree in social
          work, and have extensive training and experience in
          the defense of capital cases. They are generally
          hired to coordinate an investigation of the
          defendant’s life history, identify issues requiring
          evaluation by psychologists, psychiatrists or other
          medical professionals, and assist attorneys in
          locating experts and providing documentary material
          for them to review.9

     The American Bar Association recommends the inclusion of a

mitigation specialist on every capital litigation defense team

and identifies the mitigation specialist as a “core member” of

the defense team:

               A mitigation specialist is also an indispensable
          member of the defense team throughout all capital
          proceedings. Mitigation specialists possess clinical
          and information-gathering skills and training that
          most lawyers simply do not have. They have the time
          and the ability to elicit sensitive, embarrassing and
          often humiliating evidence (e.g., family sexual abuse)
          that the defendant may have never disclosed. They
          have the clinical skills to recognize such things as
          congenital, mental or neurological conditions, to
          understand how these conditions may have affected the
          defendant’s development and behavior, and to identify
          the most appropriate experts to examine the defendant
          or testify on his behalf. Moreover, they may be
          critical to assuring that the client obtains
          therapeutic services that render him cognitively and



9
  Judicial Conference of the U.S., Subcomm. on Federal Death
Penalty Cases, Comm. on Defender Services Federal Death Penalty
Cases: Recommendations Concerning the Cost and Quality of
Defense Representation 24 (1998).

                               24
United States v. Kreutzer, No. 04-5006/AR

          emotionally competent to make sound decisions
          concerning his case.10

     When Kreutzer’s defense attorneys made their requests for a

mitigation specialist they supported it with an affidavit from

Dr. Lee Norton, Ph.D., a mitigation specialist.   Doctor Norton

provided extensive background on what a mitigation specialist

could provide in regard to mental health evidence.11    In addition

to the general importance of a mitigation specialist in death

penalty cases, mitigation specialists may play a particularly

important role in ensuring the fair and full adjudication of

military death penalty cases where, as here, counsel have little

training or experience in capital litigation.

     This case is replete with evidence or information

indicating that Kreutzer’s mental health was dubious.    Yet the

10
  American Bar Association Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases Commentary
to Guideline 4.1 (revised ed. 2003) (footnote omitted),
reprinted in 31 Hofstra L. Rev. 913, 959 (2003) [hereinafter
Commentary to ABA Death Penalty Counsel Guideline 4.1].
11
  Dr. Norton noted that a mitigation specialist gathers all
pertinent information including all private medical records
relating to mental health and mental health care, all social
services records relating to mental health treatment, and all
military medical records. Collection of mental health data is
accompanied by “comprehensive interviews” of lay and
professional persons who have observed the accused and have some
knowledge of his mental health conditions. These people
include, but are not limited to, family, friends, teachers,
coworkers, employers, doctors, mental health and social services
personnel, and military peers and superiors. This mental health
data and related interviews detect evidence of early signs of
mental illness or deficiencies as well as give a portrayal of
the onset, course and treatment of mental disorders.


                               25
United States v. Kreutzer, No. 04-5006/AR

presentation of the defense case-in-chief includes testimony

from only three individuals about Kreutzer’s performance,

behavior and reputation, and expert testimony from a single

mental health professional.    Color Sergeant David Wakeland12

testified that Kreutzer was an average or above-average soldier

and noncommissioned officer.    He also discussed some matters

that may have been stressful for Kreutzer as well as how

Kreutzer’s threats and absence were reported on the morning of

the shooting.

     Specialist Robert Harlan, Kreutzer’s roommate, testified

about the ridicule Kreutzer endured, an incident involving

threats while the unit was in the Sinai, the chain of command’s

treatment of Kreutzer, and Kreutzer’s emotional state on the day

before the shooting.   A stipulation of the expected testimony of

Sergeant Arthur Swartz provided a further indication that

Kreutzer was not respected in the unit.

     The only mental health professional called by the defense

on the merits was Doctor (Major) Carroll J. Diebold, the Chief

of the Department of Psychiatry and Neurology at Womack Army




12
  Color Sergeant Wakeland was a member of the British Army
assigned to Fort Bragg and who served as Kreutzer’s platoon
sergeant. He testified that the rank of color sergeant was the
equivalent of an E-8 (master sergeant) in the United States
Army.

                                 26
United States v. Kreutzer, No. 04-5006/AR

Medical Center, Fort Bragg, North Carolina.13   Accepted as an

expert in the fields of psychiatry and forensic psychiatry, Dr.

Diebold participated in a sanity board evaluation of Kreutzer in

December 1995.    He described how the sanity board had proceeded

and testified that the board found Kreutzer to have “an

adjustment disorder with mixed anxiety and depressed mood” and

“dysthymia,” which is “low grade depression.”   Generally, Dr.

Diebold testified that a person with these personality traits

would react to stress with a “spike” into a “detrimental

behavior zone.”   Finally Dr. Diebold opined that factors similar

to those Kreutzer experienced prior to the shooting “would

produce a narcissistic injury and an interpretation by Sergeant

Kreutzer as a threat on his own character” and cause the “spike”

effect.

     Trial counsel noted in closing that Dr. Diebold said

Kreutzer’s mental disorders “are not even considered severe” and

contrasted that with defense counsel’s opening statement

promising to show that Kreutzer “was suffering from a severe

personality disorder.”   Trial counsel also reminded the members

that Dr. Diebold testified that none of Kreutzer’s disorders

impaired the formation of the intent to kill or the ability to

premeditate.   Kreutzer’s defense counsel responded that

13
  Doctor Diebold was called as a defense witness despite his
recommendation to defense counsel “that they should reconsider



                                 27
United States v. Kreutzer, No. 04-5006/AR

Kreutzer’s actions before the shooting were a “cry for help.”

He argued that when the unit started moving out for the run,

Kreutzer “spiked” due to the stress and formed the intent to

pull the trigger, but that he never intended to kill, nor did he

premeditate.

     Despite the rather limited defense mental health

presentation on the merits, the record on appeal reveals

significant additional mental health evidence potentially

available to the defense.   Doctor Darren Fong, the first mental

health professional with whom Kreutzer spoke did not testify.

Kreutzer spoke with Dr. Fong about killing members of his unit.

However, rather than believing that Kreutzer’s homicidal

ideation was serious, Dr. Fong believed that Kreutzer had

“problems with anger and very poor coping skills,”

“interpersonal problems,” and “probably a history of

psychological problems.”

     After he was apprehended, Kreutzer saw Dr. (then-Captain)

Wendi T. Diamond, the division psychiatrist for the 82d Airborne

Division at Fort Bragg.    Doctor Diamond indicated that “[n]ever

in all my life had I seen someone in so much psychic distress.”

She believed that Kreutzer “was not at all rational during our

conversation” and that his thoughts were “disordered.”   Doctor




calling me to testify” and he specifically indicated that his
“testimony might not be helpful in front of the panel.”

                                 28
United States v. Kreutzer, No. 04-5006/AR

Diamond was not contacted by the trial or defense counsel prior

to trial, a fact that surprised her because she “believed that

both sides could have benefited from [her] assessment of SGT

Kreutzer’s mental state very close to the time of the offenses.”

The potential value of Kreutzer’s discussions with Dr. Diamond

to the defense is underscored by the comments of a Government

lawyer who observed that interview:   “Conclusion:   Prepare for

Insanity Defense!   This guy is nutty [sic] than a fruit cake.”

Kreutzer, 59 M.J. at 777.

     In pretrial confinement Kreutzer was seen for a suicide

assessment by Lieutenant Commander Drew Messer who received his

professional training in a dual degree law and psychology

program.   Lieutenant Commander Messer concluded that Kreutzer

was “profoundly depressed” and felt that “there were definite

mental health issues in the case.”    Nonetheless, he never met

with any of Kreutzer’s defense attorneys.

     At the defense’s request, mental health professionals at

the Walter Reed Army Medical Center Forensic Psychiatric Program

were appointed as expert consultants to the defense.   Doctor

Robert S. Brown Sr. was a consultant to the Forensic Psychiatric

Program and participated in evaluating Kreutzer’s mental

condition.   Doctor Brown met with Kreutzer on April 11, 1996 and

delivered a written report to Dr. Lande, Chief of the Forensic

Psychiatric Program, on that same day.   Doctor Brown’s report



                                29
United States v. Kreutzer, No. 04-5006/AR

opined that Kreutzer was “chronically and seriously mentally

ill” and that the offenses were “causally related to his mental

illness.”    While defense counsel did have discussions with Dr.

Lande, they were not aware of Dr. Brown or his written

evaluation until after trial.

        A post-trial mitigation specialist’s report was attached as

part of the appellate record.    This report reveals that Kreutzer

suffered mental and emotional problems prior to entering the

Army.    He lacked self-confidence and held himself in low esteem,

feelings that became worse during junior high school.    Symptoms

of depression began when Kreutzer was twelve and increased

during his high school years when he also experienced suicidal

ideation.    Kreutzer continued to be depressed and experienced

his first homicidal feelings during his college years.    His

suicidal ideation manifested itself even more during his college

years when he pointed loaded weapons at his head several times.

        In contrast to this wealth of mental health information and

history favorable to a defense presentation, there is mental

health evidence that would indicate that Kreutzer premeditated

his actions and was mentally responsible.    Doctor Rollins, a

privately employed forensic psychologist opined that Kreutzer

had no severe mental disorder and was competent to stand trial.

Doctor Rollins was not employed by the defense to serve as an

expert consultant or witness because of financial



                                  30
United States v. Kreutzer, No. 04-5006/AR

considerations, but he recommended that the defense put its main

effort into the case in mitigation.   Further, a sanity board

found Kreutzer competent and not to be suffering from a severe

mental disease or defect.

     The Government also points to the “interim report” prepared

by a mitigation specialist on behalf of the defense for

appellate litigation.   The Government notes that this appellate

mitigation specialist’s report considered the foregoing evidence

pertaining to Kreutzer’s mental health and makes no conclusion

of lack of mental responsibility or health that would overcome

premeditation.   Therefore, the Government argues that the

mitigation specialist, if provided at trial, would have been

relevant only to sentencing and not to findings, and that any

error is therefore harmless beyond a reasonable doubt.

     We are not persuaded that the Government has met its burden

of showing that Kreutzer could not have possibly benefited from

the talent and expertise of a mitigation specialist on findings.

We need not speculate on precisely how the wealth of mental

health evidence could have been used at trial.   Although capital

cases do not confer a per se right to a mitigation specialist,

on a case-by-case basis servicemembers confronted with a capital

prosecution are entitled to mitigation specialists where their

services would be necessary to the defense team.   We believe

that the Government gives too little weight to the possible



                                31
United States v. Kreutzer, No. 04-5006/AR

worth of a mitigation specialist in this case.   The UCMJ and the

R.C.M. assure that the defense counsel has the resources,

including expert assistance, to prepare and present the defense.

See Article 46, UCMJ; R.C.M. 703.   The military accused’s rights

in this regard are not dependent upon indigence, nevertheless we

agree with the spirit of the Arizona Supreme Court’s statement

that “[s]o long as the law permits capital sentencing,” the

justice system “must provide adequate resources to enable

indigents to defend themselves in a reasonable way.”    See State

v. Bocharski, 22 P.3d 43, 55 (Ariz. 2001).

     While the services of a mitigation specialist are commonly

used in sentencing, in the appropriate case this expert

assistance may be necessary to the defense on findings as well.

As the Commentary to ABA Death Penalty Counsel Guideline 4.1

states, the mitigation specialist is an “indispensable member of

the defense team throughout all capital proceedings.”

Kreutzer’s three uniformed attorneys recognized that they could

not gather, analyze, and formulate this mental health evidence;

a mitigation specialist could have done so and assisted counsel

in identifying qualified mental health experts to present the

evidence on both the merits and on sentencing.   In turn, the

defense on the merits could have incorporated that analysis

either to bolster the theory that was used at trial or to create

a different theory to contest premeditation on the merits.    For



                               32
United States v. Kreutzer, No. 04-5006/AR

example, the defense might have used testimony from Dr. Fong to

show that he did not take Kreutzer’s talk about killing

seriously and that Kreutzer had a history of homicidal ideation.

The defense could have then argued that the members should

discount Kreutzer’s night-before statements to SP4 Mays because

they were more homicidal fantasy than premeditation.

Alternatively, defense counsel might have argued

that the additional mental health information produced by a

mitigation specialist demonstrated that Kreutzer was susceptible

to stress stimuli and was exhibiting “spiked” behavior as

opposed to a premeditated intent in committing his

crimes.   Further, defense counsel may have used the additional

information to attack and cloud the findings of the sanity board

and try to suggest that while Kreutzer might have been mentally

responsible under the law, he did not have the mental capacity

to premeditate his crimes.   The question is not whether these

arguments are persuasive in the abstract, but rather, in light

of the fact that Kreutzer was denied the fair opportunity to

make these arguments, whether the Government has shown that the

error in denying the defense request for a mitigation specialist

was harmless beyond a reasonable doubt.

     We answer the certified question in the negative.

Erroneous denial of Kreutzer’s request for a mitigation

specialist was error of constitutional magnitude.    As such, the



                                33
United States v. Kreutzer, No. 04-5006/AR

Government must show there was no reasonable possibility that

even a single court member might have harbored a reasonable

doubt in light of the mental health evidence that the mitigation

specialist could have gathered, analyzed, and assisted the

defense to present.   Had but a single member harbored a

reasonable doubt, death would have been excluded as a

permissible punishment.   In light of these factors, including

the relative experience and training of Kreutzer’s defense

counsel in capital litigation and the evidence relating to

Kreutzer’s mental health history, we hold that the Government

has not met its burden of demonstrating that the error in

denying Kreutzer’s request for employment of a mitigation

specialist was harmless beyond a reasonable doubt as to the

contested findings.



                             DECISION

     The certified question is answered in the negative and the

decision of the United States Army Court of Criminal Appeals is

affirmed.




                                34
United States v. Kreutzer, No. 04-5006/AR


     CRAWFORD, Judge (dissenting):

     I respectfully dissent from the majority’s expansion of Ake

v. Oklahoma, 470 U.S. 68 (1985), by finding in the U.S.

Constitution a right of an accused to a death penalty mitigation

specialist on the defense team, without the accused first

demonstrating the need for such an expert.   In granting this

right of “constitutional magnitude,” 61 M.J. ___ (13), the

majority places this Court outside of the judicial mainstream.

The majority fails to consider the opinions of federal and state

courts regarding the right to a capital mitigation specialist,

the expertise and funding provided to the defense at trial, and

recent precedent from this Court, as well as the majority of the

decisions by federal and state courts ruling on the law-of-the-

case doctrine.

                               FACTS

     Prior to trial, the military judge made available to the

defense team six psychiatrists in the Psychiatric Department at

Walter Reed Army Medical Center, including the former chief

psychiatrist, who is a certified forensic psychiatrist and

lawyer.   Additionally, this psychiatric team would work together

with consultants at the National Naval Medical Center.    The

defense agreed that this team of psychiatrists was more than

adequate.   The convening authority also assigned a

noncommissioned officer (NCO) investigator and provided funding
United States v. Kreutzer, No. 04-5006/AR


for the defense team.   Later, the defense requested the services

of a “mitigation specialist” because the “defense counsel lacked

the experience and scientific expertise to uncover all

potentially mitigating events or factors” in Appellee’s case.

The defense argued “we’re not qualified to do the job of

psychologists, psychiatrists, and social workers that require

years of training in and of itself.     To ask an attorney to

compress and consolidate years of training into a few months is

neighwell [sic] impossible, sir.”      The military judge denied the

request, relying on United States v. Loving, 41 M.J. 213, 250

(C.A.A.F. 1994), which states:

     While use of an analysis prepared by an independent
     mitigation expert is often useful, we decline to hold
     that such an expert is required. What is required is
     a reasonable investigation and competent presentation
     of mitigating evidence. Presentation of mitigation
     evidence is primarily the responsibility of counsel,
     not expert witnesses.

Alternatively, the defense asked the military judge to provide

Appellee’s defense team with travel funds associated with

building Appellee’s case.    The judge granted the request for

travel funds and told them to return if they did not receive the

funds they wanted.    Id.   The defense did not return for

additional funding.   Based on the defense’s extensive traveling

and the fact they did not seek additional funding, we may infer

the defense received all the funding they needed.     There simply

is no evidence that funding was limited.


                                   2
United States v. Kreutzer, No. 04-5006/AR


     On appeal, two judges on the Court of Criminal Appeals

(CCA) found that the military judge abused his discretion in

denying a request by the defense counsel for an expert

mitigation specialist, and that this denial was not harmless

beyond a reasonable doubt.   United States v. Kreutzer, 59 M.J.

773, 779-80 (A. Ct. Crim. App. 2003).     The panel unanimously

found ineffectiveness of counsel during the sentencing portion

of the trial.   Id. at 780-85.

                             DISCUSSION

     The Judge Advocate General certified the issue of whether

that court “[1] erred when it found [2] denial of a [3]

mitigation specialist to be [4] prejudicial error for findings”

when it also “found that all evidence that the mitigation

specialist would have discovered would not have a reasonable

probability of producing a different result.”    The certified

issue asks us to determine whether there was a “denial” of a

“mitigation specialist” and, if so, whether that “denial” was

“prejudicial error for findings.”

     At the outset, we must determine the source of the right at

issue and what standard should be applied on appeal.    Only after

making this determination can we examine the standard of review

by which to assess whether any error may be prejudicial.    If

there was error, we must also determine whether that error was

prejudicial for findings, and, if so, whether that holding is


                                 3
United States v. Kreutzer, No. 04-5006/AR


consistent with an established approach of assessing the case

for a “reasonable probability of a different result.”

     The certified issue asks us to examine the holding of the

court below pertaining to findings, wherein the court stated,

“defense counsel’s investigation into appellant’s mental health

background fell short of reasonable professional standards,” and

two of the judges agreed that this deficiency concerning expert

opinion evidence would have a direct impact on the issue of

mental responsibility and premeditation.    Kreutzer, 59 M.J. at

784 n.11.

                 Authority to Consider the Issues

     The majority would hold that the Judge Advocate General has

not certified the question of a right to a mitigation

specialist.   That issue, however, is intertwined with the issues

certified in this case.   Note that the CCA held that Appellee

was wrongly deprived of expert assistance of a mitigation

specialist to aid in the preparation of this capital case and

that this was a denial of due process.   Id. at 779.    Affirming

the CCA, the majority holds that there was “a constitutional

error” and that “[w]hen a constitutional error is substantial

and . . . where that the error contributes to a conviction, the

conviction cannot stand.”   61 M.J. ___ (15).

     In this case, the majority fails to consider the majority

of the decisions by federal and state courts ruling on the law-


                                 4
United States v. Kreutzer, No. 04-5006/AR


of-the-case doctrine and does not recognize cases that have been

decided by this Court since United States v. Grooters, 39 M.J.

269 (C.M.A. 1994).1   “Law of the case” may mean different things

to different people, but it does not mean that the highest court

that oversees the military justice system is bound by erroneous

interpretations of law by the courts of criminal appeals.2

Certainly, where the military judge and the court below are

correct, there is no reason to reexamine the ruling.   See, e.g.,

United States v. Daniels, 60 M.J. 69, 71 (C.A.A.F. 2004).     If

the court below is wrong on a constitutional question, however,

this Court is not bound by that ruling, and the standard of

review is de novo.

               No Right to a Mitigation Specialist

     While the Supreme Court has not addressed whether there is

a constitutional right to obtain a mitigation specialist, a


1
  United States v. Williams, 41 M.J. 134, 135 n.2 (C.M.A. 1994).
(“The law-of-the-case doctrine does not preclude this Court,
once the case has been properly granted for review, from
considering an erroneous conclusion of law, made by” the court
below.); United States v. Morris, 49 M.J. 227, 230 (C.A.A.F.
1998) (Court limited law-of-the-case doctrine).
2
  It is illogical to say that an intermediate appellate court can
bind a higher court. See, e.g., England v. Hospital of Good
Samaritan, 97 P.2d 813, 814-15 (Cal. 1939); New York Life
Insurance Company v. Hosbrock, 196 N.E. 888, 890 (Ohio 1935).
See also Castro v. United States, 540 U.S. 375, 383-84
(2003)(“The law-of-the case doctrine cannot pose an
insurmountable obstacle to our reaching [our] conclusion.
Assuming for argument’s sake that the doctrine applies here, it
simply ‘expresses’ common judicial ‘practice’; it does not limit
the courts’ power.”).

                                 5
United States v. Kreutzer, No. 04-5006/AR


majority of federal and state courts have held that a capital

defendant is not entitled to a mitigation specialist as a

constitutional right.3   Ake did not hold that the defendant has a

right to a capital mitigation specialist.    Rather, the Supreme

Court held that where there is a serious question about lack of

mental responsibility, that is, where the defense has made a

“preliminary showing that his sanity at the time of the offense

is likely to be a significant factor at trial,” the defendant is

entitled to a psychiatric examination.    Ake, 470 U.S. at 74.

The majority stressed that the ruling was based on the fact that

the defendant’s mental condition at the time of the offense was

“seriously in question.”    Id. at 82.   According to the Court:

     [W]hen a defendant demonstrates to a trial judge that
     his sanity at the time of the offense is to be a
     significant factor at trial, the State must, at a
     minimum, assure the defendant access to a competent
     psychiatrist who will conduct an appropriate
     examination and assist in evaluation, preparation, and
     presentation of the defense.

Id. at 83.   Both the federal and state courts have resisted an

expansive reading of Ake.



3
  State v. Lott, Nos. 66388, 66389, 66390, 1994 Ohio App. LEXIS
4965 at *35, 2002 WL 615012, at *13 (Ohio Ct. App. Nov. 3,
1994)(mere assertion that the assistance of an expert would be
useful was an insufficient basis on which to grant relief);
State v. Langley, 839 P.2d 692, 697 (Or. 1992)(denial of
mitigation investigator was not error); Commonwealth v. Reid,
642 A.2d 453, 457 (Pa. 1994)(failure to approve funds to obtain
particular psychologist as mitigation expert did not violate
Ake).

                                  6
United States v. Kreutzer, No. 04-5006/AR


       After Ake, the Court held that its decision should not be

construed to compel the Government to provide an indigent with

the assistance of an expert outside the limited circumstances of

Ake.   Caldwell v. Mississippi, 472 U.S. 320, 323 n.1 (1985)(“We

therefore have no need to determine as a matter of federal

constitutional law what if any showing would have entitled a

defendant to assistance of the type here sought,” i.e., a

criminal investigator, a fingerprint expert, and a ballistic

expert).   Both Ake and Caldwell emphasize the minimum showing

required of the defense.   Like our cases, Ake sets out a balance

among private interests, Government interests, and the probative

value of testimony sought, noting that mental condition evidence

may be crucial to the defense.   But the defense must establish

that fact.    Both the precedent of federal and state courts and

our own precedent require that the defendant show the necessity

for expert assistance and that the lack of such assistance would

result in a fundamentally unfair trial.   See, e.g., Moore v.

Kemp, 809 F.2d 702, 712 (11th Cir. 1987); Gray v. Thompson, 58

F.3d 59, 66-67 (4th Cir. 1995), vacated on other grounds, Gray

v. Netherland, 518 U.S. 152 (1996); Little v. Armontrout, 835

F.2d 1240, 1244 (8th Cir. 1987).

       In People v. Burt, 658 N.E.2d 375 (Ill. 1995), the court

stated that Ake does not compel the appointment of a mitigation

specialist.   Id. at 389 (citing People v. Lear, 572 N.E.2d 876


                                   7
United States v. Kreutzer, No. 04-5006/AR


(Ill. 1991).   The Supreme Court of Illinois stated that:        “We

have specifically held that a trial court is not

constitutionally required to appoint a mitigation expert, or

even an investigator, because defense counsel is capable of

obtaining and presenting such information.”      Id.    The court

noted further that “[E]ven Ake did not provide that the indigent

defendant has a constitutional right to choose a particular

psychiatrist or receive funds to hire his own.”        Id.    As in

Appellee’s case, the Burt court noted that defendant was given

the assistance of counsel, an investigator, and a psychologist

for the purposes of securing and presenting mitigating evidence.

Id.   There was adequate assistance and, accordingly, no

violation of the defendant’s constitutional rights in failing to

appoint a mitigation specialist.       Id.

      Similarly, in Stewart v. Gramley, 74 F.3d 132 (7th Cir.

1996),4 the court held that counsel was not ineffective in

failing to talk to the members of Stewart’s family or other

potential witnesses.   Id. at 135.      Members of his family and

other witnesses did testify on his behalf during the sentencing

proceedings, but had not been interviewed in advance.         Id.

Failure to investigate whether he had used drugs or had a

history of drug use did not show ineffectiveness.       Id.     What

4
  See also State v. McGuire, 686 N.E.2d 1112, 1120 (Ohio 1997)
(hiring a mitigation specialist is not a requirement of
effective assistance of counsel).

                                   8
United States v. Kreutzer, No. 04-5006/AR


counsel must do in mitigation is “less clear,” the court said.

Id.   What is clear, however, is that the courts apply a

Strickland standard.     Id.

      The Stewart court also held that a defendant does not have

the right to introduce causality evidence under a Strickland

analysis.   Id. at 136.    Prior to Stewart, the Seventh Circuit

held in Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir. 1989),

that a lawyer “must make a ‘significant effort, based on

reasonable investigation and logical argument’” to discover

mitigating evidence.   In Stewart, however, the court clarified

the rule and indicated that where there is no outward appearance

that the defendant has some mental condition or impairment,

counsel may surmise after talking to the defendant that such an

investigation would be fruitless.      74 F.3d at 135.   The court

recognized that defense lawyers have limited resources and only

a short period of time to prepare for sentencing.        Id.   Thus,

they do not have to investigate the “defendant’s past with the

thoroughness of a biographer.”    Id.

      In Stewart, the court refused to accept the causality

approach towards mitigating evidence, recognizing the “slippery

slope” created by the assumption that one’s past essentially

influences everything.    See id. at 136.    Under the causality

approach to analyzing childhood environment and criminal

activity, the fact-finders are invited to conclude that a


                                   9
United States v. Kreutzer, No. 04-5006/AR


disadvantaged childhood environment makes individuals less

legally responsible as adults.    The fact-finders are asked to

accept, for instance, that murderers are compelled to murder

because of their past, and that they should be excused because

the past may essentially influence everything they do in the

future.

      As discussed above, the Supreme Court has not held that

there is a constitutional right to a mitigation specialist.       In

light of this, we should carefully distinguish this case from

Wiggins v. Smith, 539 U.S. 510 (2003).    Wiggins is not

inconsistent with the federal and state cases that hold there is

no right to a capital mitigation specialist and certainly does

not overrule Loving.   In Wiggins, the Supreme Court held the

defense attorney’s failure to investigate the defendant’s

background and present mitigating evidence concerning his

difficult life constituted ineffectiveness of counsel.      Id. at

515-38.   The evidence in Wiggins was “relevant to assessing

defendant’s moral culpability.”    Id. at 535.   “Wiggins

experienced severe privation and abuse in his first six years of

his life while in the custody of his alcoholic, absentee mother.

He suffered physical torment, sexual molestation, and repeated

rape during his subsequent years in foster care.”    Id.    The

Court noted that lawyers are not required to present “every

conceivable line of mitigating evidence” or to pursue a


                                  10
United States v. Kreutzer, No. 04-5006/AR


mitigating defense in every case.     Id. at 533.   But they should

discover all “reasonably available mitigating evidence.”      Id. at

524.   If they decide not to pursue evidence, that should be

supported by “reasonable professional judgment.”     Id. at 521.

“Given both the nature and extent of the abuse petitioner

suffered, [the Supreme Court found] there to be a reasonable

probability that a competent attorney, aware of this history,

would have introduced it at sentencing and in an admissible

form.”   Id. at 535.   The Court found that the record strongly

suggested that counsel’s failure to investigate thoroughly the

defendant’s personal history resulted from inattention.

“Counsel’s decision not to expand the investigation beyond the

PSI [presentence investigative report] and the DSS [Department

of Social Services] record fell short of the professional

standards that prevailed in Maryland [at the time of trial].”

Id. at 524.    The standard remains that failure to present

mitigating evidence is not per se ineffectiveness of counsel,

because there may very well be tactical reasons for not

introducing certain documents and testimony, for example,

opening the door to inadmissible evidence or privileged

information.   See, e.g., United States v. Dupas, 14 M.J. 28

(C.M.A. 1982).

       Not only does Wiggins not change the case law as to

ineffectiveness of counsel, but the facts in Wiggins are so


                                 11
United States v. Kreutzer, No. 04-5006/AR


clearly distinguishable from those in Appellee’s case that, as a

legal precedent, Wiggins is inapposite.   Unlike Wiggins,

Appellee’s counsel was not inattentive to his background.

Appellee’s counsel assembled an extensive defense team of

counsel, psychiatrists, and an NCO investigator with unlimited

travel funds to investigate and gather mitigating evidence.

This team had the report of the investigation pursuant to

Article 32, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §

832 (2000), and numerous psychological reports based on various

tests performed on Appellee.   The testing and conclusions of

these experts were confidential because they were made by

individuals working as members of the defense team.

                       Unwarranted Remedy

     Rather than ordering a hearing under United States v.

DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), ordering affidavits

from defense counsel as to the reason for their decisions, or

even presuming that the defense team exercised reasonable

professional judgment, the majority reverses the findings.

     In leaping beyond the guidance of the Supreme Court to find

this right of “constitutional magnitude,” the majority relies

upon “the right to present a defense, compulsory process, and

due process conferred by the Constitution,” the UCMJ, and the

Rules for Courts-Martial.   61 M.J. ___ (13).   This is

unfortunately consistent with this Court’s recent overreliance


                                12
United States v. Kreutzer, No. 04-5006/AR


on due process, often without articulation of the source for

that reliance.   See, e.g., United States v. Richardson, 61 M.J.

113 (C.A.A.F. 2005); United States v. Jones, 61 M.J. 80

(C.A.A.F. 2005); United States v. Oestmann, 61 M.J. 1003

(C.A.A.F. 2005); United States v. Cosby, No. 05-0058, 2005 CAAF

LEXIS 411 (C.A.A.F. Apr. 15, 2005); United States v. Moreno, 61

M.J. 59 (C.A.A.F. 2005); United States v. Brewer, 61 M.J. 51

(C.A.A.F. 2005); United States v. Strother, 60 M.J. 476

(C.A.A.F. 2005).   All too frequently, “due process” becomes the

mantra of those who seek enforcement of certain rights when

there is no specific source for those rights to which they can

readily turn.    The majority’s invocation of “due process” is ill

placed because Appellee had both articulable rights and a highly

competent team dedicated to protecting those rights.     A

competent defense counsel must prepare for sentencing as well as

the case-in-chief.   Mitigation evidence places the defendant’s

crime in the social context of his or her life experiences and

suggests psychologically important events that could have shaped

or influenced the defendant’s criminal acts.   This is

particularly important where there is a pattern of early

childhood trauma and maltreatment, or where there has been

poverty and childhood abuses and a nexus linking those

experiences with an individual’s dysfunction as an adult.




                                 13
United States v. Kreutzer, No. 04-5006/AR


     The team assembled on behalf of Appellee, the funding of

that team, and the funding that could have been obtained in the

future, likely provided all that was necessary to assist the

defense in lending context to Appellee’s life experiences and

the impact they had on his criminal acts.5    The military justice

system provides for open access to mitigation evidence during

sentencing, subject to the effectiveness of the information and

the limits imposed by rules governing admissibility.    In many

cases, counsel has to decide whether the past actions are

mitigating evidence or aggravating evidence.    The defense team

was well aware of numerous statements made by Appellee while in

the Sinai.6    They were careful to avoid the admission of this

material at either the findings or sentencing phases.    We should

not simply guess or presume that they failed to make that

decision.     We should avoid second-guessing counsel because of

the wide latitude they must be given as to their tactical

decisions, especially in light of potential rebuttal by the

Government, i.e., Appellee’s prior statements or evidence to be


5
  This team, in making their conclusions, considered all of the
reports, including that of Dr. Robert Brown who concluded, “The
impulse to commit these crimes could not have been resisted by
the defendant.”
6
  There are numerous examples. He told Private First Class
Cooper: “I’ll leave the guard tower, take out the radio watch
guard station outside the arms room, and go into the barracks
and shoot everyone inside, except for Corporal Hoyler, who I’d
just beat pretty badly.” And he told Specialist Estrada, “I’m
going to kill you” (during the fight in the Sinai).

                                  14
United States v. Kreutzer, No. 04-5006/AR


introduced under Military Rule Evidence (M.R.E.) 404(b).    The

defense was very careful not to open the door for a series of

statements made by Appellee while in the Sinai.    These included

the statements of Private First Class (PFC) Bridges, PFC Cooper,

Specialist (SP) Cruz, SP Harlan, Corporal Hyler, SP Estrada,

Sergeant First Class Kearns, and Saul Alvarado.    These

statements would have been devastating evidence if admitted

during the findings phase and had the potential to seal

Appellee’s fate during sentencing.     Similarly, the expansive

testing and interviews done by the mental health team may have

also resulted in opening the door to extensive statements from

Appellee that would have been otherwise privileged and therefore

inadmissible.   See, e.g., M.R.E. 302(b).

     The CCA was correct in stating that there is a relationship

between a mitigation specialist and the effective assistance of

counsel.   However, the defense’s proffer did not satisfy what

this Court has required for the appointment of expert

assistance.   In United States v. Gonzales, this Court set forth

a three-prong test for showing the need for expert assistance:

     First, why the expert assistance is needed. Second,
     what would the expert assistance accomplish for the
     accused. Third, why is the defense counsel unable to
     gather and present the evidence that the expert
     assistant would be able to develop.

39 M.J. 459, 461 (C.M.A. 1994).




                                  15
United States v. Kreutzer, No. 04-5006/AR


     Appellee’s counsel failed to satisfy Gonzales by

overlooking the team that had been appointed, making no proffer

as to what this team could not accomplish that a mitigating

specialist could accomplish, and making no showing that “defense

counsel is [in]capable of obtaining and presenting” the evidence

that could be obtained by a mitigation specialist.    Burt, 658

N.E.2d at 389 (citing Lear, 572 N.E.2d at 880).

     As we said in United States v. Kelly, 39 M.J. 235, 238

(C.M.A. 1994):   “[d]efense counsel are expected to educate

themselves to obtain competence in defending an issue presented

in a particular case,” using the primary and secondary sources

that would be available prior to asking for a defense

specialist.   After a uniquely qualified psychiatric team was

assembled, in this case the defense never indicated that they

did not have available psychological records, including mental

health evaluations and social service records.     Additionally,

while the military judge denied the request for a mitigation

specialist, he did provide the alternative of government funding

for the defense team’s mitigation efforts.   The military judge

also indicated if there was “any problems in getting the

funding,” they should seek his assistance.   Id.    The defense

never returned to the military judge for additional assistance

in the way of experts, investigators, or additional attorneys.




                                16
United States v. Kreutzer, No. 04-5006/AR


     As to the mitigation specialist, the psychiatrists from

Walter Reed Army Medical Center and from the National Naval

Medical Center had access to numerous psychologists and social

workers to perform various tests on Appellee.   Their conclusions

and findings were confidential as a result of their appointment

to the defense team.   M.R.E. 502(b)(2).   They spent numerous

hours obtaining psychological testing and interviewing

witnesses, including family members.   Rather than recognize that

a blind “shotgun” presentation of all possible mitigation

evidence would waive the confidentiality of the communication

between this team and defense counsel, the majority second-

guesses the defense team and reverses the findings.

     The drastic remedy granted by the court below and approved

by the majority is beyond comparison to any federal or state

case, particularly given the expansive defense team, the lack of

any limitation on money or time, and the military judge’s

invitation to seek the court’s assistance to obtain additional

money should that become necessary.    Without question, the

defense team knew both the procedural and evidentiary rules

critical to the presentation of an effective mitigation case.

In fact, Dr. Gregory R. Lande was an editor of Principles and

Practice of Military Forensic Psychiatry (1997)(along with Dr.




                                17
United States v. Kreutzer, No. 04-5006/AR


David Armitage7) and a former chief of the Psychiatric Department

at Walter Reed Army Medical Center.   If we cannot presume that

the defense team here acted with Appellee’s best interests in

mind, the presumption will never be available.

     For all of the above reasons, I respectfully dissent from

the majority’s conclusion that there was an “error of

constitutional magnitude” because no mitigation specialist was

appointed.




7
  Dr. Armitage was part of the defense team of numerous cases.
See, e.g., United States v. Gray, 51 M.J. 1, 41 (C.A.A.F. 1999);
Loving, 41 M.J. at 249.



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