So says the Army CCA in a published opinion in United States v. Gean, No. 20100499 (A. Ct. Crim. App., April 30, 2012).

Private Gean was “aggrieved by the various difficulties of his service in the Army, and life in general, [and] was apparently apt to utter rather graphic remarks about what he would like to do to some of those who crossed him.” Slip op. at 2. This earned him an involuntary mental health examination. During that examination, he was not advised of his Article 31 rights and was required to answer the psychiatrist’s questions. He then made three statements regarding other persons that the psychiatrist understood to constitute actual threats to those persons. Those statements resulted in his conviction, contrary to his pleas, of three specifications of communicating a threat in violation of Article 134, UCMJ.

The CCA finds that “when a soldier is directed to undergo psychiatric evaluation, required to respond to questions about threats, or his thoughts of threats, as part of that evaluation, does so honestly, and in doing so communicates a threat, such a threat is not wrongful as a matter of law.” Slip op. at 3. The court notes that its decision does not immunize threats “levied directly against an evaluating psychiatrist or threats made outside the scope of responses to questions posed during any such evaluation.” Slip op. at 3, N.1.

But, the court concludes that:

“The law is not so dim as to damn a soldier for responding honestly to a psychiatrist when compelled by command directive and psychiatric need to do so.”

Slip op. at 3.

5 Responses to “Threats communicated during involuntary mental health exam not “wrongful””

  1. JWS says:

    So, the poor schmoe had to endure confinement, conviction & the time it takes to get a decision from the Army CCA before the blindingly obvious is stated? The troop is ill.  Treat him; confine him in a hospital if he is a clear & present threat to himself or others.  But prosecute him?  What sort of distorted moral compass at TC & CA allowed this case to go forward?
    Is the troop now to be indemnified for his unlawful confinement?  Nah, being the gov’t means never having to say your sorry or pay the costs of your mistakes.

  2. Zachary Spilman says:

    Perhaps I should have mentioned that he was also convicted, pursuant to his pleas, of two specifications of unauthorized absence, one for approximately three months and the other for approximately four months (after which he “did not return to duty voluntarily”), and that he was sentenced to reduction to E-1, 164 days confinement, and a BCD. Then he was credited with 164 days of confinement (presumably credit for lawful pretrial confinement).

  3. JWS says:

    Point well taken & I apologize — for the notion he might be entitled to indemnity.  I also take the inference that defendant’s mental status was not sufficiently impaired to undermine his culpability.  I stand by the notion, however, that using compelled responses to a shrink in a compelled psych eval against the troop in a CM should offend the moral compass of any honorable person.  It appears TC & CA had the troop dead-to-rights on what he actually did, so piling on a 5th Amend violation is especially offensive.
     

  4. Cap'n Crunch says:

    I think the dissent has the better argument on sentencing, but I do understand and appreciate the distinction made by the majority.  Looking at a Moffeit factors, I do not know how the penalty landscape did not change in terms of the seriousness of the charges.  Taking away the forum cap on sentence, the landscape changed from a maximum of 12 years confinement, DD, total forfeitures to 3 years, DD, total forfeitures.  I realize that the majority is looking to the forum maximum — and, I suppose, their argument is correct insofar as it goes — that actual exposure at this forum — one year and a BCD is one year and a BCD even without the diismissal of the more serious threatening charges.  But, in this case, the military judge basically imposed a sentence of time served and a BCD.  Maybe, in the absence of the threat charges, it would have been time served and no BCD.  How can the majority really be sure?  I think you cannot look at forum limits for penalty landscape issues — you need to look to the gravamen of the charges and, if the more serious charges are dismissed in a case, then reassessment by the CCAs should not be perimitted — and this is an issue that CAAF should take to clarify Moffeit.

  5. Tami says:

    Under Article 75, he receives 164 days of pay as an E-1 to compensate him for the confinement that ACCA decided he should not have served.