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

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...

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