Articles Posted in Mental Health Issues

No. 10-0337/AR. U.S. v. David ANTAR. CCA 20080836. Review granted on the following issue:

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.]

Marine Corps Times reports:

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.

United States v. Sezginalp:

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.

If Major Hasan raises an insanity defense for his acts at Fort Hood, how might the defense actually work if at all.

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.

In Part I, I briefly outlined the formal examination process prior to presenting an insanity/lack of mental responsibility defense.  Now here is some information on the “law” or legal standard for an insanity defense.  This is the defense that Major Hasan and his lawyers are going to have to consider for his actions at Fort Hood.  The outlines can be found in Rule for Courts-Martial (RCM) 916(k).

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

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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.

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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.

The military (insanity) lack of mental responsibility defense is set out in several places relevant to Major Hasan and the events at Fort Hood.  The first step that should be taken by a prudent convening authority in this case is to order a mental examination under R.C.M. 706, as soon as Major Hasan is medically fit.  Major Hasan and his counsel could arrange for a private examination at the major’s own expense.  But should they attempt to put on an insanity/lack of mental responsibility defense the prosecution will certainly persuade the military judge to order a government examination.

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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.

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Stayed tuned for the defense.

Will Major Hasan successfully use PTSD as a defense, or will it at least become a mitigating factor to be considered.  If the trial is at Fort Hood, as seems likely at the moment, many of the Members (jury) panel will already have quite a bit of extra-judicial information.

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.

Here’s a case discussing access to mental health records of a primary prosecution witness.

This was a due process and confrontation case.  Here, as is not an infrequent issue, the prosecution succeeded in having damaging information about their witness excluded.  The prosecution then went on to give an “incomplete and inaccurate picture” of their witness.  The prosecution did this knowing full well that they were presenting a misleading picture.  (Why that’s not prosecutorial misconduct I have no idea. [N.1])

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.

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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.


MiamiHerald.com
An American soldier accused of killing five fellow troops at a counseling center in Iraq had been unraveling for nearly two weeks but the U.S. military lacked clear procedures to monitor him or deal with the deadly shooting spree once it began to unfold, a military report found.

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.