Sanity And UCMJ

Mental responsibility in court-martial cases?

[Update, 23 April 2012] The Stars & Stripes reports that:

The Army Surgeon General's Office has issued new guidelines for diagnosing PTSD that criticize an approach once routinely used at Madigan Army Medical Center.

This is the local military hospital at SSG Bales's home base. Although it is not clear that the R.C.M. 706 Board ordered in his case will be done at Fort Lewis; it may be done at Fort Leavenworth.

Various news outlets are reporting that SSG Bales has been requested by his attorney not to cooperate with the R.C.M. 706 Board. How this may affect the case is uncertain at this time. A failure to cooperate at all with any R.C.M. 706 Board may either prohibit or limit the defense ability to present a mental health related defense. On the other hand, the defense could merely be waiting until a military judge is detailed to the case, and then they can take their issues with the conduct of a board to that judge.

Original post follows.

Let's look at lack of mental responsibility for a crime and court-martial sentencing using the example of Staff Sergeant Bales who is accused of multiple murders in Afghanistan. Keep in mind that this note is written in April 2012.

Did Staff Sergeant (SSG) Bales have full mental responsibility at the time of the alleged offenses and will his mental state have any impact on his trial?

If SSG Bales lacked the required mental capacity, he will have an affirmative defense to the charges. More likely based on information we are receiving (again as of April 2012), SSG Bales may raise a partial lack of mental responsibility (this is often referred to as a "diminished capacity" defense) that may help him challenge the premeditation required for guilt, combined with a military record that may help him at sentencing.

The easy point comes first: what about sentencing and his mental state at the time of the crimes and the trial?

In the sentencing part of a court-martial, the prosecution can present additional evidence about the facts and circumstances surrounding the crimes for which the person is convicted. The evidence can include witness impact statements, additional witness testimony about the facts of the crime, derogatory information from personnel records, and previous convictions or disciplinary actions as well as counseling's, and opinion testimony as to rehabilitative potential. Rule for Courts-Martial (RCM) 1001(b).

Under RCM 1001, SSG Bales' mental state at the time of the alleged offenses will be admissible as possible extenuation and mitigation evidence (colloquially called "E&M" by the defense, and often the "dog-and-pony show" by the prosecution). E&M evidence is introduced through testimony, character affidavits and witnesses, service records, and statements of SSG Bales. RCM 1001(c). If convicted of a death penalty eligible charge, SSG Bales has "broad latitude" to present E&M and just about anything else geared toward avoiding a death sentence. RCM 1004(b)(3). A court-martial accused will offer evidence about combat duty and associated consequences like post-traumatic stress (PTSD) in sentencing. In United States v. Seal, 38 M.J. 659, 663 (A.C.M.R. 1993), the Army Court of Military Review, addressed the "special distinction" of combat service. In United States v. Eslinger, 70 M.J. 193, 201 (C.A.A.F. 2011), the court stressed that combat service offered significant mitigation for a senior enlisted soldier who was a medic, with three combat tours, and Bronze Star with combat "V" device. Such evidence is not always helpful. But in United States v. Moore the appellate court did not "believe his [PTSD] disorder significantly mitigates the offenses." United States v. Moore, ACM 37138 (A.F. Ct. Crim. App. Sept. 12, 2008)(unpublished op.).

The harder question is can SSG Bales successfully claim he was not mentally responsible because of a constellation of factors including PTSD and traumatic brain injury effects?

Although a military judge may presume that an appellant is sane, there is no doubt that bipolar disorder - particularly in conjunction with PTSD - may constitute a severe mental disease or defect and, therefore, a complete defense. See [United States v.] Shaw, 64 M.J. 460, 462 (C.A.A.F. 2007) ("combat and other operational conditions may generate or aggravate certain mental health conditions, such as post-traumatic stress disorder); United States v. Martin, 56 M.J. 97, 103 (C.A.A.F. 2001)(bipolar disorder may exist with enough severity to raise a substantial question regarding the accused's mental responsibility).

United States v. Zaruba, NMCCA 201000382 (N-M Ct. Crim. App. Feb. 28, 2011)(unpublished op.).

And in several civilian cases the courts have looked to constellation of mental and physical health issues bearing on the question of mental status at the time of the alleged offense, for example, United States v. Jensen, 639 F.3d 802 (8th Cir. 2011). In State of North Dakota v. Jones, 2011 ND 234 (2011) the appellant unsuccessfully sought to withdraw a guilty plea because he alleged he had TBI at the time of the plea and he was not on his medications.

SSG Bales is presumed to have been mentally responsible at the time of the alleged offense and competent at the time of trial. Art. 50a, UCMJ, 10 U.S. Code §850a, RCM 916(b). The top military appellate court:

set the standard for deciding whether a sanity board is proper in United States v. Nix, 15 U.S.C.M.A. 578, 36 C.M.R. 76 (1965). There, we stated that "the motion should be granted if it is not frivolous and is made in good faith." 15 U.S.C.M.A. at 582, 36 C.M.R. at 80. Despite changes in the Manual, this approach has remained intact.

United States v. English, 47 M.J. 215, 221 (C.A.A.F. 1997) (Crawford, J., dissenting). The Nix standard remains the applicable one today. See United States v. Mackie, 66 M.J. 198 (C.A.A.F. 2008).

If SSG Bales wants to raise a total lack of mental responsibility defense, the burden is on him to demonstrate by a preponderance of the evidence that he suffered from a severe mental disease or defect, and as a result of that disease or defect was unable to appreciate the nature and quality or the wrongfulness of the charged acts. Article 50a, UCMJ, 10 U.S.C. § 850a(a), United States v. Martin, 56 M.J. 97 (C.A.A.F. 2001), RCM 916(k)(1).

SSG Bales can present evidence of a partial lack of mental responsibility to specific intent offenses that are charged such as premeditated murder. A partial lack of mental responsibility is not an affirmative defense at court-martial. RCM 916(k)(2). The evidence challenges specific intent, such as the premeditation required to find a person guilty of the alleged charge. Partial lack of mental responsibility evidence may cause the Members Panel (the military name for a jury) to find SSG Bales guilty of unpremeditated murder not premeditated murder because they do not believe he had the ability to premeditate the murders. If that were the case, he could not be sentenced to death because death isn't an authorized punishment for unpremeditated murder.

If SSG Bales proffers a partial lack of mental responsibility, he does not have the burden to prove it. The Army case of United States v. Axelson, 65 M.J. 501 (A. Ct. Crim. App. 2007), has an interesting discussion of mental health issues and how they work when the appellant defended on a theory of automatism, or "unconsciousness defense." There are a couple of recent cases involving an alleged unconscious act as a result of parasomnia, and the potential for sleepwalking. United States v. Harvey, 66 M.J. 585 (A.F. Ct. Crim. App. 2008), pet. denied, 67 M.J. 249 (C.A.A.F. 2009), see also United States v. Savage, 67 M.J. 656 (A. Ct. Crim. App. 2009), pet. denied, 68 M.J. 329 (C.A.A.F. 2009), discussing the Army court's view of parasomnia as a defense.

It is certain that SSG Bales will undergo extensive and multiple psychological tests and evaluations, from both military and his own experts. Although the law is, "there is no per se requirement that a convening authority or military judge order a sanity board absent a sufficient proffer that such a proceeding is necessary. United States v. Pattin, 50 M.J. 637, 639 (A. Ct. Crim. App. 1999), citing to United States v. English, 47 M.J. 215, 217 (1997). Mental health evaluations will be done out of an "excess of caution" and because of the visibility of the case.

Initially there will be a "sanity board" appointed under RCM 706. SSG Bales's current commanding officer, the same appointing authority who directs there be an Article 32, UCMJ, hearing in his case, will order the examination. United States v. Dobson, 63 M.J. 1 (C.A.A.F. 2006), lays out the challenges for both sides when a person's mental state at the time of alleged offenses is at issue.

Under military law, the defense can seek expert assistance beyond official examinations. The military has adopted and broadened the Supreme Court's expert assistance jurisprudence. A military accused does not have to be indigent to get the military to pay for experts in courts-martial, unlike a civilian accused. However, there are some significant hoops the accused has to go through to get that assistance. See United States v. Garries, 22 M.J. 288 (C.M.A. 1986), Ake v. Oklahoma, 470 U.S. 68 (1985). The accused must demonstrate necessity for the expert by showing why the expert is needed, what the expert would accomplish, and why the defense counsel is unable to gather and present the evidence that the expert would be able to develop. United States v. Gonzalez, 39 M.J. 459, 461 (C.M.A. 1994), see generally, Army Lawyer, June 2008, p. 28, about getting experts. United States v. Kreutzer, 61 M.J. 293 (C.A.A.F. 2005), is a death penalty reversed on appeal because of failures to gather all relevant mental health evidence, to have a mitigation specialist appointed, and therefore a failure to challenge the accused's premeditation. (On rehearing Kreutzer was sentenced to life without parole in 2011. United States v. Kreutzer, 70 M.J. 444 (C.A.A.F. 2012).

Here is a recent example of how a military appellate court handled PTSD/TBI as a defense to charges.

The appellant asserts that the evidence is insufficient to support the convictions because of the "overwhelming evidence" that the appellant suffers from post traumatic stress disorder (PTSD) and traumatic brain injury (TBI). In essence, the appellant posits that he was mentally unable to form the mens rea required for any of the charges, to include conspiracy and kidnapping, due to his medical conditions.

Our review of the record leads us to a contrary conclusion . . . . The record contains testimony and other evidence that demonstrate this Marine's ability to remember, plan, evaluate, decide, brief, and then finally execute the actions needed to accomplish the objects of the conspiracy. Based on these capabilities, a member could reasonably infer that he also possessed the capability to form the requisite specific intent required for culpability notwithstanding his PTSD and TBI.

United States v. Thomas, NMCCA 200800327 (N-M Ct. Crim. App. Aug. 11, 2009)(unpub.), slip op. at 8, pet. denied 69 M.J. 49 (C.A.A.F. 2010).

The cases seem to show that PTSD by itself is not likely to result in a complete acquittal. There are a number of PTSD related cases which have been diverted from court-martial as a matter of prosecutorial discretion. In these cases there would be administrative punishments, but that diversion is unlikely to happen with SSG Bales.

Once a court-martial begins, the history of the "PTSD defense" as a complete defense to the merits has not been good. The benefit has usually been on the sentence imposed. But there is anecdotal evidence of "jury nullification" in some cases. Military law prohibits counsel arguing nullification and the military judge cannot instruct the members panel on such a concept.

What happens SSG Bales is found not guilty by reason of insanity? Article 76b(b), UCMJ, 10 U. S. Code §876b(b), applies when a person is found not guilty by reason of insanity. The person is turned over to be placed in "a suitable facility until the person is eligible to be released in accordance with this section." Basically the person is committed to the custody of the attorney general, and usually sent to Butner Federal Correctional Complex, North Carolina. From then on 18 U. S. Code §4243 and 4247 apply to his treatment and potential for release. Anecdotally, there was a case in 2011 of an Air Force officer, United States v. B., found not guilty by reason of "insanity" in a contested military judge alone trial. Afterwards a hearing was held and the military judge found that he could be released because he was not currently a danger to society. The Air Force initially sought to appeal those decisions, but ultimately understood they could not.

So for the moment that's the legal landscape. As Charles Dickens said in Hard Times, "Now what I want is, Facts . . ."

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