Next week at the Supremes:  There are no anticipated military justice developments at SCOTUS on my radar screen.

Next week at CAAF:  CAAF has completed its scheduled oral arguments for the term. By my count, four argued cases remain undecided. We expect CAAF to decide these cases no later than 31 August. The four caess are: Ellerbrock (Mil. R. Evid. 412), Lusk (application of Melendez-Diaz), Sweeney (application of Melendez-Diaz), and Baker (Article 62 appeal identification evidence case).

Next week at the CCAs:  NMCCA will hear a rescheduled oral argument on Tuesday.  United States v. Caldwell was originally scheduled to be heard on 3 August, but was moved to 16 August.  Here’s the issue, presented in Garnerian deep-issue format:

APPELLANT WAS CONVICTED OF INTENTIONAL SELF-INJURY FOR ATTEMPTING SUICIDE. CAN INTENTIONAL SELF-INJURY BE USED AS A VEHICLE FOR CRIMINALIZING BONA FIDE SUICIDE ATTEMPTS INDUCED BY DEPRESSION, PTSD, OR OTHER MENTAL ILLNESS?

On Thursday, AFCCA will hear oral argument in United States v. Dease, Misc. Dkt. No. 2011-04, an Article 62 appeal case.  Here are the issues as framed by the government:

I.  WHETHER THE MILITARY JUDGE ERRED IN DETERMINING THAT THE ACCUSED MAINTAINED AN EXPECTATION OF PRIVACY IN URINE AFTER PROVIDING IT PURSUANT TO VALIDLY OBTAINED CONSENT.

II. WHETHER THE MILITARY JUDGE INCORRECTLY APPLIED THE DOCTRINE OF INEVITABLE DISCOVERY TO THE ADMISSION OF THE TEST RESULTS OF THE ACCUSED’S URINE SAMPLE.

The central decisional issue is whether the government can rely on a consent rationale to test urine after a servicemember consented to the collection of the urine but then revoked his consent to search the urine before the testing was conducted.  If so, then the question becomes whether the evidence obtained by the testing would have been inevitably discovered had the government honored the servicemember’s revocation of consent to search the urine.

5 Responses to “Next week in military justice — 13 August 2011 edition”

  1. Phil Cave says:

    On it’s face I find it troubling that a person with an apparent mental illness is court-martialed. Hopefully there will be some compelling evidence brought out at oral argument about why the appellant was prosecuted to begin with. Anybody have the briefs to share?

  2. SgtDad says:

    Geez, I thought we (American society) had got past the criminalization of mental illness.

    That said, the overwhelming majority of suicidal acts are gestures — not true suicidal attempts. It is very common for the suicidal gesture to be an effort to gain attention or avoid circumstances the patient deems disagreeable.

    Hypothesis: the “suicide attempt” was a gesture made avoid disagreeable duty — deployment, maybe?

  3. Phil Cave says:

    When I was SJA on JFK, back in the day, I helped develop the LIO of intentional self injury. Too many people trying to get out of everyday work is the way it was viewed as opposed to a more serious get out of deployment. There were proof problems under 115. I agree with SgtDad that some of the cases were attention getters without a legitimate mental illness; and those were the people we were directing the LIO at, as opposed to charging them with malingering Under Art. 115. This was no different than people who “feigned” or admitted homosexuality or drug use to get out of the military. But I don’t think we ever contemplated using the specification for the those with a legitimate mental illness. That’s why I’ll be interested to hear the governments arguments about the facts of the illness legitimate or not.

  4. stewie says:

    As long as insanity is the standard for not being prosecuted, then you are going to have folks with really serious mental illnesses getting tried and convicted and jailed in both the military and civilian systems.

    Now, if he truly was diagnosed with PTSD or some similar mental health issue and he was tried for a suicide attempt (or gesture for that matter) then it would take a pretty compelling set of facts for me to agree with that course of action.

  5. Michael Lowrey says:

    The oral argument in Caldwell is now are available online (nice of NMCCA to be so quick about it). It’s an ugly case that presents a lot of issues: Caldwell had been diagnosed with both PTSD and depression and prescribed Zoloft. He’d stopped taking the Zoloft as be believed it was causing him seizures. The suicide attempt (slitting his wrists) occurred after he was ordered back into pretrial confinement. (His gunny was outside the room while Caldwell had a half an hour to call his parents.)

    Note also that he been in PTC for 60 days previously awaiting a summary court martial (!) during which time he received exactly one visit from a command representative.