In a published opinion, the Air Force Court of Criminal Appeals ruled that a military judge erred by failing to grant the defense’s request for an R.C.M. 706 board. United States v. Mackie, __ M.J. ___, No. ACM S31090 (A.F. Ct. Crim. App. Sept. 24, 2007). The Air Force Court ruled that the military judge erred by concluding that a stipulation of expected testimony from an Air Force staff psychologist with whom A1C Mackie had been consulting was a sufficient substitute for the requested R.C.M. 706 board.
The Air Force Court explained that “a sanity board does not have to be ordered if an adequate substitute has already been conducted.” Id., slip op. at 2. The court helpfully sets out the factors to consider when determining whether a substitute is adequate:
1) participation of a psychologist or someone with similar expertise; 2) performance of a forensic mental examination; 3) knowledge by the performing doctor(s) “of the reason for doubting” the subject’s “mental capacity;” 4) determination of whether the subject is capable of standing trial; 5) the ability to examine and cross-examine the performing doctor(s); . . . 6) the opinion that no further evaluation would be needed to answer the questions required by R.C.M. 706 . . . [and 7)] a description of the examiner’s familiarity with forensic evaluation or participation in previous sanity boards.
Id., slip op. at 3.
The court concluded that only four of those seven factors were satisfied in this case, and that they were insufficient to establish that the staff psychologist’s opinion was an adequate substitute for an R.C.M. 706 board.
The Air Force Court remedied the error by returning the case to the Judge Advocate General of the Air Force to send to a CA, who may order a sanity board to determine whether A1C Mackie is currently mentally competent, whether he was mentally competent at the time of trial, and whether he was mentally responsible at the time of his alleged offenses. Id., slip op. at 5. “Depending on the results of the board, the convening authority may order a rehearing or return the record to this Court for further review. If the convening authority finds ordering a sanity board impracticable, the record will be returned to this Court for further review.” Id., slip op. at 5-6.