Does one Illegality Merit Another?

271 Pages·2001·2.23 MB·English

Volume 170 December 2001
ARTICLES
BALANCING THE SCALES OF JUSTICE: EXPANDING ACCESS TO MITIGATION
SPECIALISTS IN MILITARY DEATH PENALTY CASES
Major David D. Velloney
LET’S MAKE A DEAL! THE DEVELOPMENT OF PRETRIAL AGREEMENTS
IN MILITARY CRIMINAL JUSTICE PRACTICE
Major Mary M. Foreman
IN DEFENSE OF THE GOOD SOLDIER DEFENSE
Randall D. Katz & Lawrence D. Sloan
DOES ONE ILLEGALITY MERIT ANOTHER?
THE LAW OF BELLIGERENT REPRISALS IN INTERNATIONAL LAW
Andrew D. Mitchell
THE TWENTY-NINTH KENNETH J. HODSON LECTURE ON CRIMINAL LAW
Honorable Robinson O. Everett
BOOK REVIEWS
Department of Army Pamphlet 27-100-170
MILITARY LAW REVIEW
Volume 170 December 2001
CONTENTS
ARTICLES
Balancing the Scales of Justice: Expanding Access to Mitigation
Specialists in Military Death Penalty Cases
Major David D. Velloney 1
Let’s Make a Deal! The Development of Pretrial Agreements
in Military Criminal Justice Practice
Major Mary M. Foreman 53
In Defense of the Good Soldier Defense
Randall D. Katz & Lawrence D. Sloan 117
Does One Illegality Merit Another?
The Law of Belligerent Reprisals in International Law
Andrew D. Mitchell 155
The Twenty-Ninth Kenneth J. Hodson Lecture on Criminal Law
Honorable Robinson O. Everett 178
BOOK REVIEWS
A War of Nerves: Soldiers and Psychiatrists in the Twentieth Century
Reviewed by Major Susan L. Turley 197
Waging Modern War
Reviewed by Captain Heather L. Burgess 206
While God Is Marching On: The Religious World of Civil War Soldiers
Reviewed by Captain Kevin J. Huyser 215
Casual Slaughters and Accidental Judgements: Canadian War Crimes
Prosecutions, 1944-1948
Reviewed by Lieutenant-Colonel Joseph C. Holland 224
Ghost Soldiers: The Forgotten Epic Story of World War II’s Most
Dramatic Mission
Reviewed by Major Gary P. Corn 235
Resource Wars: The New Landscape for Global Conflict‘
Reviewed by Major Michael D. Tomatz 249
i
Headquarters, Department of the Army, Washington, D.C.
Pamphlet No. 27-100-170, December 2001
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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.
1. Judge Advocate, United States Army. Presently assigned as Professor, Criminal
Law Department, The Judge Advocate General’s School, United States Army, Charlottes-
ville, Virginia. LL.M., 2001, The Judge Advocate General’s School, United States Army;
J.D., 1994, The Yale Law School; B.S., 1988, United States Military Academy. Formerly
assigned as Senior Defense Counsel, Fort Knox, Kentucky, 1998-2000; Officer in Charge,
Augsburg Law Center, Augsburg, Germany, 1997-1998; Trial Counsel, Vilseck, Germany,
1996-1997; Command Judge Advocate, Task Force Able Sentry, Skopje, Macedonia, 1996;
Administrative and Civil Law Attorney, Grafenwoehr, Germany, 1995-1996; Legal Assis-
tance Attorney, Vilseck, Germany, 1995; Aide-de-camp to Assistant Division Commander
(Operations), 10th Mountain Division (Light), Fort Drum, New York, 1990-1991; Battalion
Personnel Officer (S-1), Company Fire Support Officer, and Battery Fire Direction Officer,
2d Battalion, 7th Field Artillery Regiment, 10th Mountain Division (Light), Fort Drum,
New York, 1989-1990. Member of the State Bar of Connecticut. This article was submit-
ted in partial completion of the Master of Laws requirements of the 49th Judge Advocate
Officer Graduate Course.
1
2 MILITARY LAW REVIEW [Vol. 170
As he ran, he noticed the shots were now much louder. Kreutzer
had grabbed the CAR-15. He used it to shoot Lafaro. Major
Stephen Badger, a career soldier and a father of eight, rushed to
within 25 feet of the gunman. Then a bullet drove through his
forehead, exiting behind his ear, leaving a hole the size of a hand.
He was the last soldier shot. . . . The damage was severe. In all,
18 men aside from Badger sustained wounds . . . . Lafaro went
into a coma that lasted 45 days. His mother died while he was
unconscious. Castillo was paralyzed; a bullet is still lodged in
his spine. Badger was dead before he made it to the hospital.2
I. Introduction
On 12 June 1996, a panel of five officers and seven enlisted members
unanimously sentenced Sergeant Kreutzer to death. Without consideration
of any mitigation evidence as required by the Supreme Court,3 such a
result may seem justified to supporters of the death penalty. Certainly, the
evidence surrounding murderous events almost always offends human
sensibilities. Retribution by killing the offender can seem to be the only
appropriate response. Based on the limited evidence presented during Ser-
geant Kreutzer’s short two-day court-martial, the members may have
reached an appropriate verdict. However, the constitutional standard
expressed in Lockett v. Ohio4 and its progeny requires presentation of all
relevant mitigation evidence. In the words of radio broadcaster, Paul Har-
2. Todd Richissin, Nobody Listened When a Soldier Warned of His Violent Inten-
tions, THE NEWS AND OBSERVER (Raleigh, N.C.), Mar. 9, 1997, at A1, LEXIS, News Group
File.
3. See generally Buchanan v. Angelone, 522 U.S. 269 (1998) (holding that an indi-
vidualized sentencing determination requires broad inquiry into all relevant mitigation evi-
dence); Penry v. Lynaugh, 492 U.S. 302 (1989) (finding the Eighth Amendment violated
where jury not properly instructed to consider all mitigating evidence); Eddings v. Okla-
homa, 455 U.S. 104 (1982) (finding error where trial court refused to consider relevant mit-
igating evidence regarding defendant’s emotional disturbance and turbulent family
history); Lockett v. Ohio, 438 U.S. 586 (1978) (holding that the Eighth and Fourteenth
Amendments require full consideration by capital sentencing authority of any aspect of
defendant’s character or record and any circumstance of the offense that defendant proffers
as basis for sentence less than death); Woodson v. North Carolina, 428 U.S. 280 (1976)
(finding mandatory sentencing schemes unconstitutional and requiring individualized sen-
tencing for all capital cases).
4. Lockett, 438 U.S. at 604.