United States v. Usry, __ M.J. __, No. 1298 (C.G. Ct. Crim. App. Aug. 5, 2009).
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.