MILITARY JUSTICE INCOMPETENCE OVER COMPETENCY DETERMINATIONS, by Major David C. Lai. This is relevant to me because I have an appellate case where there are issues with the client’s current competency and there were at trial.

ALWAYS ON DUTY: CAN I ORDER YOU TO REPORT CRIMES OR INTERVENE? By Major Matthew E. Dyson. This is highly relevant in regard to the ongoing sexual assault issues and considerations of by-stander behavior.

V. Conclusion The momentum of the current Department of Defense push to prevent sexual assault should not be a reason to hastily promulgate criminal sanctions for not intervening or reporting sexual assault. A hyperreactionary response to the current political climate would fail to take into account practical considerations undermining the efficacy of such an approach. It is probably lawful to craft an order requiring the reporting of specific crimes witnessed by all service members regardless of rank; however, such an approach is short sighted. Moreover, a duty applicable to all soldiers to physically intervene to stop sexual assault or to stop a soldier from driving drunk is likely unlawful. Variations of these types of orders may be lawful, but they are, without question, not advisable, and frankly foolish. Converting all of the Army into law enforcement officials tasked with physical intervention to stop crimes would be trailblazing of historic proportions not seen in any other segment of society or the law. No other jurisdiction in America requires physical intervention as the only method to comply with duty to rescue laws. Even in the few jurisdictions that have enacted duty to rescue statutes, witnesses may comply by notifying law enforcement for assistance.265 Such a radical change must be avoided at all costs. Instead, the Army needs to focus its sexual assault prevention plan on fostering an environment of dignity and respect of all of its teammates. The Army requires a cultural shift and major changes in attitudes, not a change in the law. The center of gravity should be dignity and respect for all, with an emphasis on building trust. Appeasing political pressure should not be a reason to dramatically alter the law.

Compulsive lying, or mythomania, can be common in people with Borderline Personality Disorder.

ClearviewTreatment, Borderline Personality Treatment.

Diagnosed, suspected?

I believe there are several basic motivations to lie when you have BPD. There are also two types of lies: by admission (by telling) and by omission (by not telling). Both types are a problem with someone with BPD. The motivations for telling a lie (or omitting truth) by someone with BPD are as follows: 1. When it is more painful to admit or tell the truth. 2. When she wants the other person to think “better” of her than she thinks of herself. 3. To avoid the judgment of the other person or judgment of herself. 4. When she can’t see the “truth” because of emotional reasoning brought on by the refractory period of the emotion felt. In other words, when feelings = facts.

(From anythingtostopthe pain)

Here is a simple list of common signs.

• Intense Anger and Aggressive Behavior: Some people with BPD experience intense anger that they rarely or never express outwardly. Others express anger openly, sometimes in the form of physical aggression. Angry behavior, ranging from sarcastic comments to physical violence against other people, is one common sign of BPD.
• Abandonment Sensitivity: People with BPD tend to have difficulties in their relationships. In particular, people with BPD can be very sensitive to abandonment. They may believe they are being left by someone when that is not actually the case. They may also engage in behaviors meant to provide reassurance that the other person still cares about them. For example, they may call someone on the telephone repeatedly asking for confirmation that the relationship is still intact.
• Unstable and Intense Relationships: BPD is associated with patterns of very unstable and intense interpersonal relationships. These relationships can be characterized by alternating between idealization and devaluation. The relationship may start in the idealization phase with the person with BPD feeling intensely connected to and positive about the other person and wanting to spend a lot of time with this person. When the devaluation phase emerges, the person with BPD may see the other person as worthless, mean or uncaring, and may attempt to distance herself from them.
• Unstable Self-image or Sense of Self: The same instability in relationships can also apply to self-image or sense of self. A person with BPD may seem to believe that they are successful one moment, but the next may be extremely self-denigrating or hard on themselves. Their sense of self may also be unstable, which may lead them to behave differently in different contexts, such behaving one way around one group of friends but another way entirely around another group.
• Engaging in Risky Impulsive Behaviors: Many people with BPD exhibit risky impulsive behaviors, such as shopliftings, abusing drugs or alcohol, promiscuity or driving recklessly.
• Emotional Ups and Downs: Although this is not always something that can be observed from the outside, people with BPD tend to have intense and frequent mood changes that usually occur in response to something happening in the environment. They may go from seeming content to feeling upset in a matter of moments.

(From verywell.com.)

Sound familiar? In your current sexual assault case?

They engage in behavior referred to by therapists as splitting: Everyone else is treated either like a god or a complete pile of manure, with nothing in between. Interestingly, patients with BPD are often described by therapists as being superb manipulators.

(From Psychology Today)

Many things can destroy trust and intimacy between partners when one is a high conflict person, often someone with borderline or narcissistic personality disorder. But one of the top ones is lying–especially when it is about extramarital contact. A disclaimer: not all people with BPD or knowingly NPD lie. It’s just that those who do lie so thoroughly and often that they spoil it for those who do not.

(From BPDcentral) This is particularly interesting with a discussion of the types of lies a BPD engages in, and possibly why.

WHETHER THE MILITARY JUDGE ERRED BY ACCEPTING APPELLANT’S PLEA OF GUILTY AND NOT REOPENING THE PROVIDENCE INQUIRY WITHOUT QUESTIONING BOTH APPELLANT AND HIS TRIAL DEFENSE COUNSEL REGARDING APPELLANT’S BIPOLAR DISORDER, HIS EXTENSIVE HISTORY OF PSYCHIATRIC DISORDERS, AND POSSIBLE MENTAL RESPONSIBILITY DEFENSE.

The decision of the Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for reconsideration of the aforementioned issue in light of United States v. Harris, 61 M.J. 391 (C.A.A.F. 2005).[See also ORDERS GRANTING PETITION FOR REVIEW this date.]

Moved by a huge tide of troops returning from Iraq and Afghanistan with post-traumatic stress, Congress has pressured the Department of Veterans Affairs to settle their disability claims — quickly, humanely and mostly in the vets’ favor. This 1969 photo shows Keith Roberts in Navy uniform. Starting in 1987, Roberts filed a string of disability claims with the Veterans Affairs, eventually blaming PTSD for everything from smoking addiction to arthritis. In 1999, Roberts was declared 100 percent disabled and got a lump sum payment, retroactive to August 1993. He was convicted of wire fraud, sentenced to 48 months in prison and ordered to pay $262,943.52 in restitution. Marine Corps Times The problem: The system is dysfunctional, an open invitation to fraud. And the VA has proposed changes that could make deception even easier. PTSD’s real but invisible scars can mark clerks and cooks just as easily as they can infantrymen fighting a faceless enemy in these wars without front lines. The VA is seeking to ease the burden of proof to ensure that their claims are processed swiftly.

There is an interesting appellate procedural history. The court intially denied various efforts to have a post-trial R.C.M. 706 evaluation. But, the court did sua sponte reconsider the denial and did order a new R.C.M. 706 examination.

On 6 January 2010, the ordered R.C.M. 706 evaluation report was released. The evaluation found that during all relevant time periods, the appellant suffered from Schizophrenia (paranoid type), a severe mental disease, but that at the time of his offenses, the appellant was able to appreciate the nature and quality of his actions. The report, however, concluded that at the time of his trial, the appellant’s mental disease rendered him unable to understand the nature of the proceedings against him or to cooperate intelligently in his defense. In view of the 6 January 2010, R.C.M. 706 competency report, we find a substantial basis in law and fact to question the knowing and voluntary nature of the appellant’s guilty pleas. In view of our determination above, the appellant’s remaining assignments of error are moot.

A lieutenant colonel said because he suffers from kleptomania he should not be court-martialed for shoplifting last year at Fort Benning, Ga. Lt. Col. Rodney Page, a 28-year Army veteran, admits to stealing $37 worth of challenge coins at the post exchange, but he blames the Army for mistakenly reducing medication he takes to curb his urge to steal. “That impulse is so strong that it just overrides your common sense,” said Page, 58, recalling the theft. “I am ethical, even though I have this problem. I’ve never taken anything from anyone I know. You can leave money on the table; I’m never going to touch it.” Army medical records supplied by Page’s attorney confirm that the incident led to the diagnosis that Page was a kleptomaniac. Kleptomania is a rare and embarrassing impulse control disorder characterized by the theft of items regardless of value, with little or no premeditation. There is a sense of guilt or shame associated with the thefts.

Army Times reports.

I have posted before about honest people who shoplift and why they might do that. I’m not sure the prior blog would explain this particular case, but here is a link back to it anyway — shoplifting. For me this has come up recently with a couple of “inquiries.” Here is an article about PTSD and shoplifting, Did Iraq veteran’s PTSD spark his shoplifting charge? In the post I referenced a resource I have used in the past in shoplifting cases.

Will Cupchik, Why Honest People Shoplift or Commit Crimes of Theft (Revised), Tagami Comms., 2002. Here is a link to The Cupchik Center for the Assessment and Treatment of Atypical Theft Offenders.

Presumably he will present a combination of witnesses and documents. The media is reporting that prior to reporting to Fort Hood Major Hasan had “problems” so there will be witnesses to odd or strange behavior; there will be witnesses to the nature of his work and whether he could suffer vicarious traumatization; and there will be other witnesses to how he behaved. Then there may well be psychological testimony.

Here is a link to the Digest for the Court of Appeals for the Armed Forces (CAAF): “Core Criminal Law Subjects: Defenses: Lack of Mental Responsibility.”

Should Major Hasan be convicted this is the highest court in the military appeals system that could review his case. If he receives a death sentence then they must review his case, in the event of a non-death sentence their review is mandatory. When CAAF reviews a case the person then has the option to petition the Supreme Court of the United States.

You can immediately see why PTSD might not be sufficient of a mental health issue to be a defense rather than mitigation, because:

However, as the discussion to the Rule points out, an issue of partial mental responsibility may go to rebut a specific intent (e.g. premeditation) required for an offense.

The presumption of competence places the burden on the defense to raise it. The Members Panel, likely from Fort Hood, will have to decide whether any evidence presented overcomes the presumption of responsibility for the acts at Fort Hood. Next a look at some of the cases that apply the defense (or don’t). The defense is a very hard one to make.

There are two reports: the first is a short form with the answers to the basic questions. The short form is given to the commander at Fort Hood, his legal advisor, the prosecution, and the military judge. A long and detailed report is given only to the defense. Thus the examination and a large part of the work is privileged. Mil. R. Evid. 302 sets out the privileged nature of the examination, and the exceptions. The defense becomes the gatekeeper of the report. Should the defense seek to put on a lack of mental responsibility (insanity) defense the report may well have to be disclosed. Should the examination find the major currently incompetent, then he’s off to the federal confinement facility at Butner, NC, under Article 76b, UCMJ. There is currently one service-member at Butner under Article 76b.

Stayed tuned for the defense.

Here are some links relating to secondary traumatization.

Zimmering, Munroe, & Gulliver, Secondary Traumatization in Mental Health Care Providers, 20 Psych. Times (Apr. 2003).

KevinMD.com, Did Nadal Malik Hasan suffer from compassion fatigue or vicarious traumatization? 6 November 2009.

The majority held that the Confrontation Clause was violated by the restrictions on cross-examination about the informant’s mental health and use of prescription medication. The jury was deprived of evidence concerning his ability to perceive and recall what transpired and the informant’s credibility. On this point, the majority noted: “Had the jury learned that the CI had recently admitted to ‘hearing voices,’ ‘seeing things out the window that [were] not really there,’ and experiencing suicidal ideation, it could have reasonably concluded that the CI had a reduced capacity to observe, remember, and recount. Absent the district court’s restrictions on cross-examining the CI about his hospitalization, Robinson would have likely revealed these problems with perception and narration, along with the CI’s ‘long history of mental illness.’” Robinson, _ F.3d at _.

Defense, when this happens you have to raise the issue on a 39(a) after the witness has testified. It is common to have evidence excluded in a motion in-limine pretrial. But once the prosecution opens the door you need to ask the judge to reconsider her decision. FederalEvidence. ————————————————— N.1. I think this is misconduct because the prosecution’s presentation lacked candor and was knowingly inconsistent with the facts known to them. The prosecution knew that there was damaging evidence and yet they deliberately set out to cast their witness in a good light, knowing full well the judge was preventing the defense from challenging the prosecutions characterizations. If the prosecution wants to have something ruled off-limits, then it’s off-limits to them as well.

The shooting deaths drew attention to the issues of combat stress and morale as troops have to increasingly serve multiple combat tours because the nation’s volunteer army is stretched thin by two long-running wars. Key lapses in assistance, care, and observation of troubled soldiers. ]]> https://www.court-martial.com/blog/new-acca-decision/ https://www.court-martial.com/blog/new-acca-decision/ Tue, 06 Oct 2009 22:56:15 GMT United States v. Brasington, ARMY 20060033 (A. Ct. Crim. App. 5 October 2009). On 10 September 2008, our superior court granted appellant’s petition for grant of review on the following issue: WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE TRIAL DEFENSE COUNSEL ALLEGEDLY PROVIDED INCOMPETENT ADVICE REGARDING THE…

Do you have client accused of shoplifting, a senior officer or senior enlisted perhaps, a really good person who no-one would have imagined as stealing from the Exchange? Can you explain that?

For some years I have successfully argued from this book (e.g. in a Gen. Off. Art.15, or with the AFBCMR).

Will Cupchik, Why Honest People Shoplift or Commit Crimes of Theft (Revised), Tagami Comms., 2002

Here is a link to The Cupchik Center for the Assessment and Treatment of Atypical Theft Offenders.

Here is a link to a comment about “Criminal Responsibility of War Veterans with PTSD.”

Hafemeister & Stockey on Criminal Responsibility of War Veterans with PTSD

Thomas L. Hafemeister (University of Virginia School of Law) and Nicole A. Stockey have posted Last Stand? The Criminal Responsibility of War Veterans Returning from Iraq and Afghanistan W ith Post-Traumatic Stress Disorder (Indiana Law Journal, Forthcoming) on SSRN. Here is the abstract:

As more psychologically-scarred troops return from combat in Iraq and Afghanistan, society’s focus on and concern for these troops and their psychological disorders has increased. With this increase and with associated studies confirming the validity of the Post-Traumatic Stress Disorder (PTSD) diagnosis and the genuine impact of PTSD on the behavior of war veterans, greater weight may be given to the premise that PTSD is a mental disorder that provides grounds for a “mental status defense,” such as insanity, a lack of mens rea, or self-defense. Although considerable impediments remain, given the current political climate, Iraq and Afghanistan War veterans are in a better position to succeed in these defenses than Vietnam War veterans were a generation ago. This Article explores the prevalence and impact of PTSD, particularly in war veterans, the relevance of this disorder to the criminal justice system, and the likely evolution of related mental status defenses as Iraq and Afghanistan War veterans return from combat.

/tip CrimProfBlog

By Chris Roberts / El Paso Times

Posted: 08/30/2009 12:00:00 AM MDT

EL PASO — Combat veterans with post-traumatic stress disorder who are accused of certain crimes may soon have a choice between a trial or mental-health treatment.

El Paso judges last week took the first step in creating a Veterans Mental Health Treatment Court. They authorized the program for Judge Ricardo Herrera’s county criminal court.

This case discusses the different issues that can come up when there is an indication that the client is having a bad mental health day at trial. The problem can come from medications the client is on, or an ongoing diagnosed illness such as PTSD or TBI related issues. In Usry there are quite a few “issues.”

The report of the R.C.M. 706 board, Defense Exhibit D, records diagnoses of bipolar disorder, panic disorder, anxiety disorder, chronic posttraumatic stress disorder, and attention deficit disorder, predominantly inattentive subtype. It states that he is suffering from severe depression and is at significant risk for suicide. The report acknowledges that its findings “were made without access to all of the member’s mental health records, including documentation relating to his recent inpatient psychiatric hospitalization. . . . Nevertheless, the Board is confident of their findings and does not feel that possession of knowledge of the contents of the other treatment records would alter their findings.” The report goes on to note “that the member’s severe depression may have influenced him to accept a plea bargain or plead guilty because of his hopelessness. Nevertheless, he is deemed mentally competent to consider his legal options, to cooperate in his defense, and to understand the legal proceedings.” According to the letter, New England Forensic Associates conducted a comprehensive psychosexual evaluation of Appellant. Appellant “presented with an array of psychological problems to include significant symptoms of a mood disorder with both depressive and anxiety features,” reporting extended depression, suicidal thoughts, panic attacks, auditory hallucinations and “idiosyncratic thought patterns.” Dr. Shapiro had spoken with Ms. Bergson and was aware of Appellant’s medications. Dr. Shapiro also noted “overly compliant and dependent personality characteristics” in Appellant.

Experience tells us that most R.C.M. 706 reports are accepted often without question. Usry challenges the reliability of the report. The court notes:

We have found no comprehensive standards in military case law for evaluating the quality and reliability of reports required under R.C.M. 706.

While there may be no standard, the court is clear on who decides whether the client is competent.

Moreover, if an R.C.M. 706 board’s report is flawed in some degree, neither a new report nor a new inquiry is necessarily required, because the board’s conclusion is not determinative. The military judge is ultimately responsible for the determination of an accused’s competence to stand trial. If an R.C.M. 706 board concludes that an accused is incompetent to stand trial, the board’s conclusion is not the end of the matter. The military judge must conduct a hearing to determine the accused’s competence. R.C.M. 909(d). If the board concludes the accused is competent, the military judge likewise retains responsibility to determine the accused’s competence (as Appellant points out in his Assignment of Errors and Brief). R.C.M. 706(b); United States v. Collins, 60 M.J. 261, 266 (C.A.A.F. 2004).

Perhaps CAAF will be visiting with Usry soon, although based on the nature of the providency inquiry and the responses elicited from the client I would be surprised if they grant him relief.

Michael de Yoanna & Mark Benjamin, “I am under a lot of pressure to not diagnose PTSD,” Salon, 10 April 2009.

Thanks to Karen Franklin, and here is her commentary on the article.

If you want to get away from the cold and visit a pretty place, you might want to check out this excellent training down in Charlottesville, Virginia. Richard Rogers, whom most of you all know as a leading forensic psychology practitioner and scholar, is presenting this full-day training sponsored by the always-excellent Institute of Law, Psychiatry and Public Policy (ILPP) at the University of Virginia. Dr. Rogers will be presenting one-half day on malingering (the topic of his classic reference text) and one-half day on evaluation of Miranda Rights, another of his specialty areas.

Click HERE for more information and to register.

tip: Karen Franklin.

It can be obtained free — but only in a .pdf download (unless you want to pay $70.20 for a paper copy).