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 lawSales 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?

8 Responses to “New NMCCA published opinion on communicating a threat”

  1. John O'Connor says:

    Two things:

    1. Without having the benefit of reading the entire decision, I agree that the analysis, as described by CAAFlog, is reasonable. There’s a fine line there, as I do think it should be punishable when a Marine goes to sick bay and says “if you make me deploy, I swear to God I will kill my CO.” But as CAAFlog describes this, it appears more in the nature of discussing feelings rather than seeking to pressure the docs into a particular result by virtue of a threat.

    2. I noticed that one of the other services (maybe it was the Coast Guard) had started listing the SJA in unpublished decisions, which I view as a good thing. As I have suggested before, at least in the case of screwed up SJARs and CA actions, I think it’s a very good idea to identify the SJA by name. That might encourage greater attention to post-trial processing matters. As it stands, there is precious little fallout back at the command level for screw-ups in the post-trial process, which can lead to a “just get it out the door mentality.”

  2. H Lime says:

    Every ACCA and NMCCA opinion now appears to have the SJA and MJ listed. CGCCA and AFCCA appear to have caught the slow train.


  3. Anonymous says:

    FYI — don’t ask me how it’s done (someone else set it up for me) but if you have an NKO account you can “subscribe” to the NMCCA opinions and they’ll be delivered to your “library” as soon as NMCCA posts them (this case has been out for awhile). You can also bundle them with other pertinent subscriptions within the Military Justice “Community of Practice”.


  4. Jason Grover says:

    The Judge Advocate General has asked the Chief Judge to include SJAs in opinions as part of the push to eliminate sloppy post-trial errors. A little incentive to avoid bad press (for the small amount of the JAG Corps that read NMCCA opinions, but that is another problem).

    As a SJA, I have mixed feelings about it. It certainly will have some effect on SJAs concerned about their career. As a prior defense counsel, my name has been on lots of opinions that may not have been career-enchancing. So it seems par for the course. But I wonder if the SJA will be seen as the sole responsible party when he or she is only part of the process. CAs themselves pretty involved. Why don’t we put the CAs names on opinions as well? If we see a bunch of opinions from BGen So-And-So with problems, wouldn’t that be a good thing? Shouldn’t the CA get some bad press as well, if deserved?

    Of course, we have no problems out here in Sicily . . . . And I am off to the local “weekend della birra.” Some sort of beer festival in this hardship duty post.

  5. Gene Fidell says:

    Surely there must be a way to permit those of us who are not entitled to access to NKO accounts to have equally ready access to CCA decisions. While I am grumbling, I too have noticed the addition of SJAs’ names at the top of CCA decisions. This is very silly. The role of the SJA has shrunk, rather than grown, over time, and no purpose aside perhaps from vanity is served by the change. (I do not view the possible public embarrassment of SJAs whose work may at times be faulted in a CCA decision as a proper reason for putting their name in lights.) In much the same vein, I have always bridled at the shorthand reference to the SJA as the “staff judge.” An SJA is no more a judge than a judge advocate is. She is simply the command’s lawyer; no more and no less. The CA has what may be thought of as quasi-judicial functions, but a legal advisor is only that, and enjoys no decisional independent powers under the Code (or at least I cannot think of any off-hand). What’s next? Listing the Art 32 IO? Let’s get real, friends.

  6. John O'Connor says:

    I disagree with Gene to an extent. I don’t think there is any good reason to list the SJA at the top of all opinions. My point, which I made in discussing prior cases, is that when the SJAR is screwed up, I think it would serve a useful purpose forn the court to say in its opinion, “the SJAR prepared by LtCol Smith failed to correctly reflect the offenses of which the accused was convicted,” or words to that effect. I think at the command level (meaning within SJA shops and among TCs and DCs) there is insufficient appreciation of the effect that shoddy work can have on a case on appal and remand, as none of the players at the command level are likely to be inconvenienced (or embarrassed) by screwups because counsel don’t truly follow their cases on appeal and there is a frequent rotation of billets in the legal community.

    Now, a case may be made that none of this really matters because nobody reads appellate decisions except those in the appellate shops, but that’s another problem altogether . . .

  7. Gene Fidell says:

    John, we actually don’t disagree. If the SJA really deserves to take a hit, one could argue that there is no reason to omit his/her name from the text of the opinion–although I don’t believe a judicial opinion should substitute for a fitness report or other adverse action. Naming names in an opinion can be very unfair; after all, what if there’s another side to the matter? An unfairly maligned SJA (or counsel at trial, for that matter) has no recourse. It’s putting the SJA’s name up there with counsel and the MJ that I question. I haven’t made a point of reading civilian appellate decisions for analogous naming of names, but it might be a useful exercise.

    Those who read D.C. Circuit slip opinions, incidentally, have probably noted that that court does not disclose the name of the trial judge (except, I seem to recall, in the rare case where they direct reassigment), although counsel are noted.

    Speaking of opinions, wouldn’t it be good for CAAF decisions to reveal when the offense was committed or the trial was conducted? The system has long had what Lincoln (referring to McClellan) called “a case of the slows.” This might be an indirect way of reminding all concerned of the importance of moving things along and the effect of cumulative delays in our (in my view) excessively complicated post-trial and appellate structure.

  8. John O'Connor says:

    Like listing the name of the SJA, I don’t know if there’s a need to list the date of trial unless there’s a point to be made in a particular case (though it would hardly shock my conscience if CAAF decided to list it). I will say that the date of trial is, to me, much more useful a piece of information than the date something was argued at CAAF, though that information is listed in every opinion.