While trolling on NKO tonight, I bumped into a recent NMCCA published opinion that isn’t yet on NMCCA’s public web site or LEXIS. I’ve asked the No Man whether he can figure out how to post it on the new CAAFlog web site he set up. In the meantime, I will provide my unfrozen caveman lawyer synopsis of the case.
United States v. Wright, __ M.J. ___, No. NMCCA 200602491 (N-M. Ct. Crim. App. July 17, 2007) [No Man: US v. Wright is available here], is a Senior Judge Geiser opinion, joined by Judges Mitchell and Bartolotto. Corporal Wright pled guilty to various offenses at a special court-martial, including communicating a threat. NMCCA holds that Wright’s “plea to the Article 134, UCMJ, offense of communicating a threat was improvident in that the charged threatening words were not wrongful because the words communicated the appellant’s current mental state to a mental health provider for the purpose of obtaining a mental health evaluation and treatment.” Id., slip op. at 2.
This charge arose from statements that Cpl Wright made to a doctor at the Balboa Naval Hospital’s psychiatric ward, where Wright sought assistance for mental health issues the day before he was scheduled to deploy to Iraq. Wright told the doctor that he anticipated being treated badly by his chain of command when he rejoined his unit in Iraq. He told “the doctor that ‘if provoked in any way’ he would ‘just snap and los[e] it and lose control’ of himself.” Id. Cpl Wright explained that he believed he would ‘injure his commanding officer, sergeant major, gunnery sergeant and staff sergeant by ‘beating them to a pulp with his E-tool shovel.'” Id.
In finding the plea to communicating a threat improvident on that factual basis, NMCCA reasoned:
There is no question that the literal language charged in the specification was threatening in nature. The circumstance of the utterance, however, gives us pause. The appellant’s uncontradicted statements during the providence inquiry indicate that he was seeking assistance from a mental health care provider about his current mental state of frustration, anger, and anxiety and how he believed this mental state would affect his future actions. While we see nothing to suggest that the appellant’s words were said in jest or were idle banter, it does appear that the words were spoken to communicate the appellant’s current mental state to a health care provider for the purpose of obtaining evaluation and treatment.
Id. at 3.
After reviewing several CAAF/CMA cases dealing with communicating a threat, NMCCA announced this decisional rule: “We hold that threatening statements (1) uttered in the context of an exchange of information with medical personnel, (2) which express the declarant’s current mental state or distress, and (3) which are uttered for the purpose of obtaining medical evaluation and treatment are not wrongful and do not constitute communicating a threat under Article 134, UCMJ.” Id. at 4.
The court’s opinion is both reasonable and well-reasoned. While it is probably silly to assume that what NMCCA writes will actual influence Marines’ behavior, the last thing we should do is discourage Marines and other servicemembers from expressing hostility to their command to mental health professionals. Perhaps the opinion will actually have some positive effect by letting mental health professionals know that the correct response to a Marine who makes such a statement is not to have him prosecuted.
Unfortunately, having rendered such a fine opinion, NMCCA immediately tarnishes its luster by applying the abominations of military law — Sales and Peoples — to uphold the adjudged and approved sentence despite having set aside the communicating a threat conviction.
I also noticed something in the Wright decision that I don’t remember seeing in previous NMCCA opinions: it lists the SJA who signed the SJAR. Is that now a common feature in NMCCA opinions?