Highlighting Mental Health Issues

Yesterday. I read Geoff Ziezulewicz's article, Family of sailor who died by suicide in brig appeals Navy’s denial of medical negligence claim. Navy Times, Nov. 30, 2021.

I had a flashback to one client from almost 20 years ago. Some might say he killed himself for a stupid reason. That would be a "rational" thought perhaps. He had been back at the USDB several weeks when I got the MJ's findings and conclusions from a Dubay hearing. I was mildly ecstatic because there was a good chance ACCA would grant a new trial, so I promptly mailed everything to the client. When the client went to the mailroom to get the letter they refused to give it over. He reacted very badly by grabbing a pencil and stabbing himself in the hand. That got him moved to the SHU where shortly after, he hanged himself.

If you practice long enough, there is a good chance of an accused committing suicide, being stopped in the act, or seriously thinking about it.

A lot of attention has rightly been given to the issue of military suicides and their prevention. For complaining witnesses that's a big part of their program. But I wonder if we give sufficient attention to the mental health and stresses on the accused, especially those who may already have a "history" of mental health issues. In some cases it might be easy to simply to suggest a diagnosis of anxiety due to legal proceedings, but in others?

There are two earlier comments of mine on this subject; Jan. 16, 2010 and Feb. 5, 2010.

Let me say that over the years I have come across many leaders who care and are concerned about the potential mental health and suicide issues with those accused.

Last night I had reread United States v. Nelson. It is worth the read within a larger context as a moment of learning and reflection.

I'm asking you to be sensitive about what may be going on in the accused's mind and to be alert to potential mental health issues. Some issues may be relevant to the case and certainly relevant to a life.

A modest proposal. Many years ago now, at what was then NLSO Norfolk, the government was concerned about the number of R.C.M. 706 requests--they are time consuming and a "burden." So the STC and I got together and developed an in-house "R.C.M. 706A" evaluation, coordinated with the clinic. We agreed that a referral to mental health after preferral would be treated as privileged under the real R.C.M. 706. It was a little more complex than that in operation. But the number of 706 requests went down, there was a better screening mechanism to justify a real 706, and concerns about the accused's mental health were identified and addressed.

This might be done as a modification to the rules on command directed mental health evaluations or through an R.C.M. 706A.

Some final comment on the issue of bi-polar disorder as a defense.

 Appellant points to our decisions in United States v. Martin, 56 M.J. 97 (C.A.A.F. 2001), and Harris, 61 M.J. at 391, for the proposition that "[t]he military judge must have known that a bipolar disorder was a viable defense for Appellant." However, these cases establish that bipolar disorder, like other disorders, may exist with enough severity to raise a substantial question regarding the issue of the accused's mental responsibility. However, the disorder does not negate responsibility in all cases. Martin was a contested case in which the defense was attempting to carry its burden of proving lack of mental responsibility  due to the severity of the accused's bipolar condition. 56 M.J. at 100-01. Two defense psychiatrists testified that Martin's condition was severe enough that he was unable to appreciate the nature and quality or wrongfulness of his conduct. Id. Conversely, three government psychiatrists testified that Martin could appreciate the wrongfulness of his acts at the time of the offenses. Id. at 101. The question was whether Martin had carried his burden in proving the defense of lack of mental responsibility by clear and convincing evidence, and we concluded that a reasonable jury could have concluded that he did not. Id. at 110.

United States v. Shaw, 64 M.J. 460, 463 (C.A.A.F. 2007).

There is no premium placed upon lay opinion as opposed to expert opinion, nor on “objective” as opposed to “subjective” evidence. Thus, the court below applied an improper test by requiring “clear and convincing objective evidence, not merely subjective medical opinion” of a lack of mental capacity.”

United States v. Dubose, 47 MJ 386, 388-89 (C.A.A.F. 1998).

The CAAF considers that the LMR affirmative defense enjoys a “special status,” which “in part reflects the recognition that combat and other operational conditions may  generate or aggravate certain mental health conditions, such as post-traumatic stress disorder.” 64 M.J. at 462. “Historically [the court] has given preferential treatment [to the defense of LMR] even though the matter was not litigated at trial.” United States v. Navarette, 79 M.J. 123, 129 (C.A.A.F. 2021) (Stucky, C.J., dissenting).

Phil Cave

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