U.S. v. Kreutzer, 61 M.J. 293

First Principles: Constitutional Matters: Right to Present a Defense

1. 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 USC § 846, and RCM 703(d)
2. where a request for the expert assistance of a mitigation specialist is erroneously denied, that ruling 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 RCM 703(d)

Military Justice Personnel: Defense Function: Experts, Investigators -- Appointment to Defense Team

1. the right to the expert assistance of a mitigation specialist in a capital case is determined on a case-by-case basis
2. when an accused 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; because there is no professional death penalty bar in the military services, it is likely that a mitigation specialist may be the most experienced member of the defense team in capital litigation
3. where a request for the expert assistance of a mitigation specialist is erroneously denied, that ruling 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 RCM 703(d)
4. the erroneous denial in capital cases of an accused’s request for the expert assistance of a mitigation specialist to aid in the preparation of the case, is a denial of due process, and as an error of constitutional magnitude, it must be tested for prejudice under the standard of harmless beyond a reasonable doubt
5. 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; the UCMJ and the RCM assure that the defense counsel has the resources, including expert assistance, to prepare and present the defense; 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

Core Criminal Law Subjects: Defenses: Lack of Mental Responsibility

1. this Court has not limited military justice jurisprudence to a narrow use of mental health evidence; indeed, in Ellis v. Jacob, this Court dispelled any construction of Article 50a(a), UCMJ, 10 USC § 850a(a), that would eliminate evidence of mental conditions relevant to premeditation, specific intent, knowledge, or willfulness, i.e., elements of offenses

Core Criminal Law Subjects: Witnesses: Ake Appointments

1. the right to the expert assistance of a mitigation specialist in a capital case is determined on a case-by-case basis
2. when an accused 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; because there is no professional death penalty bar in the military services, it is likely that a mitigation specialist may be the most experienced member of the defense team in capital litigation
3. where a request for the expert assistance of a mitigation specialist is erroneously denied, that ruling 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 RCM 703(d)
4. the erroneous denial in capital cases of an accused’s request for the expert assistance of a mitigation specialist to aid in the preparation of the case, is a denial of due process, and as an error of constitutional magnitude, it must be tested for prejudice under the standard of harmless beyond a reasonable doubt
5. 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; the UCMJ and the RCM assure that the defense counsel has the resources, including expert assistance, to prepare and present the defense; 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

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the erroneous denial in capital cases of an accused’s request for the expert assistance of a mitigation specialist to aid in the preparation of the case, is a denial of due process, and as an error of constitutional magnitude, it must be tested for prejudice under the standard of harmless beyond a reasonable doubt
2. 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 accused’s conviction or sentence; an appellate court will reverse a conviction unless it finds that a constitutional error was not a factor in obtaining that conviction; when constitutional error is substantial, and where that error contributes to a conviction, the conviction cannot stand
3. an appellate court reviews de novo the issue of whether a constitutional error was harmless beyond a reasonable doubt
4. the party benefiting from a constitutional error bears the burden of demonstrating that the error was harmless beyond a reasonable doubt; in this case, as the party benefiting from the constitutional error of denying the request for a mitigation specialist, 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
5. 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 who bears the burden of demonstrating prejudice
6. to establish prejudice for ineffective assistance of counsel, the appellant must demonstrate a reasonable probability that, but for counsel’s deficiency, the result would have been different; the appellant must demonstrate such prejudice as to indicate a denial of a fair trial, a trial whose result is unreliable
7. 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 tests, it is therefore not unreasonable or illogical to come to two different conclusions, even in a single case
8. in this case, the erroneous denial of the accused’s request for a mitigation specialist was error of constitutional magnitude; as such, the government had to show that there was no reasonable possibility that even a single court member might have harbored a reasonable doubt as to the premeditation element 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 inexperience and lack of training of the accused’s defense counsel in capital litigation and the wealth of evidence relating to the accused’s dubious mental health, the government failed to meet its burden of demonstrating that the error in denying the accused’s request for employment of a mitigation specialist was harmless beyond a reasonable doubt as to the contested findings of premeditated murder and attempted premeditated murder