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Mental State May Play Pivotal Role in Afghan Shooting Trial

JURIST Guest Columnist Philip D. Cave, a solo practitioner in the The Law Offices of Philip D. Cave, argues that Staff Sergeant Bates's mental state at the time of his alleged rampage will likely play a major role at trial and during sentencing...

The discussion has started: was Staff Sergeant (SSG) Bales legally "insane" at the time of the alleged offenses and how will his mental state impact his trial? There will be some impact at sentencing, but it is harder to determine impact on the merits of a contested case.

Easy question first: what about sentencing? Bales's mental state at the time of the alleged offenses will be admissible as potential extenuating and mitigating (E&M) evidence. That evidence [PDF] is introduced through testimony, service records and statements of Bales himself. The accused has "broad latitude" to present E&M in a death penalty case. It is not uncommon for a court-martial accused to offer evidence about combat duty and associated consequences, like post-traumatic stress disorder (PTSD) in sentencing. In United States v. Seal, the Army Court of Military Review addressed the "special distinction" of combat service. This issue was also addressed in United States v. Eslinger [PDF], which found that combat service offered significant mitigation. The Veterans Administration and Department of Defense [PDF] have some simple outlines about PTSD and traumatic brain injury (TBI). Caution is required because a diagnosis and assessing implications are not subject to a black and white checklist.

The harder question remains: can Bales successfully claim he was not mentally responsible based on a constellation of factors: PTSD effects, traumatic brain injury effects, alcohol and possibly medications?

Bales is presumed to have been "sane" at the time of the offense and competent at the time of trial according to the Manual for Couts-Martial (RCM).

In a contested trial, the burden is on the Bales 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. Bales can raise a partial lack of mental responsibility as a defense to specific intent offenses that are charged such as premeditated murder. Diminished capacity may cause the Members Panel (jury) to find him guilty of unpremeditated murder and not premeditated murder. If that were the case, he could not be sentenced to death because death is not an authorized punishment for unpremeditated murder.

Bales will undergo extensive and multiple psychological tests and evaluations, both from military experts and his own. Initially there will be a "sanity board" appointed under RCM 706. Under military law, the defense can also seek expert assistance. The military has adopted and broadened the Supreme Courts expert assistance jurisprudence. A military accused does not have to be indigent to get experts in courts-martial. The accused has to demonstrate necessity for the expert by showing why the expert 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.

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 and traumatic brain injury. In essence, the appellant posits that he was mentally unable to form the mens rea required for any of the charges — including 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.

A number of "PTSD cases" have been diverted from court-martial as a matter of prosecutorial discretion, but 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 been on sentencing, although there is anecdotal evidence of jury nullification in some cases. Military law prohibits counsel from arguing nullification and the military judge from instructing on such a concept.

As Charles Dickens said in Hard Times, "Now what I want is, Facts..."

Philip D. Cave practices in the field of military law as a solo practitioner. He graduated from Wright State University in Political Science, earned his law degree at Case Western University and a Masters of Law at George Washington University. He has served a tour of duty at the Naval Legal Service and the Judicial Advocates General of the Navy.

Suggested citation: Philip Cave, Mental State May Play Pivotal Role in Afghan Shooting Trial, JURIST - Sidebar, Apr. 17, 2011, http://jurist.org/sidebar/2012/04/philip-cave-court-martial.php.

This article was prepared for publication by Jordan Barry, an assistant editor for JURIST's professional commentary
service. Please direct any questions or comments to him at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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