“On January 22, 2010, alone in his barracks room at Camp Schwab, Okinawa, Lazzaric T. Caldwell, a 23-year-old Marine Corps private, slit both his wrists with a razor blade in an effort to take his own life.” Appellant’s Br. at 4. In June of 2010 he was convicted, pursuant to his pleas, of orders violations, larceny, and wrongful self-injury, in violation of Articles 92, 121, and 134, UCMJ, and contrary to his pleas of a separate order violation for wrongfully possession of “spice.” He was sentenced to confinement for 180 days and a bad-conduct discharge.

The NMCCA reviewed these convictions twice. In the first review, a panel of three judges set-aside the findings of guilty of larceny and self-injury, but affirmed the sentence. The CCA then reviewed the case en banc, and affirmed all of the trial findings and the sentence in a published opinion that included this analysis:

As to the public policy argument, we are not persuaded that criminal prosecution of genuine suicide attempts should be prohibited under military law. As both parties note in their briefs, self-injury has long been a chargeable offense in military jurisprudence. We consider the analyses provided by the Court of Military Appeals in United States v. Ramsey, 40 M.J. 71, 75 (C.M.A 1994), and in United States v. Taylor, 38 C.M.R. 393, 395 (C.M.A. 1968) dispositive on the matter.

The decision to prosecute what could be viewed as a bona fide suicide attempt is a matter left to the convening authority’s unfettered discretion. Conceivably, some instances of self-injury or malingering could be concealed in the guise of a sincere suicide attempt. If a convening authority feels it necessary to resort to court-martial to address this type of a leadership challenge, he or she should be allowed to do so, at least until the executive or legislative branches of government have proscribed this approach by law or regulation.

United States v. Caldwell, 70 M.J. 630, 633 (N-M.Ct.Crim.App. 2011) (emphasis added). In Taylor (which did not involve a suicide attempt) the Court of Military Appeals rejected the contention that Congress intended malingering in violation of Article 115 to encompass all self-injury offenses under the UCMJ . In Ramsey, citing its opinion in Taylor, that court explicitly addressed attempted suicide, and determined:

Appellant’s attempted suicide was not the substantive crime he faced; rather, his attempt to kill himself was the basis for his crime of self-inflicting an injury to the prejudice of good order and discipline. If attempted suicide for the purpose to avoid military duty may be a sufficient basis for a charge of malingering, see United States v. Johnson, 26 MJ 415 (CMA 1988), then attempted suicide without such purpose surely may be a sufficient basis for a charge of intentional self-infliction of injury to the prejudice of good order and discipline.

Ramsey, 40 M.J. at 75. The NMCCA issued its en banc opinion on December 27, 2011. The next month the Appellant asked the Judge Advocate General to certify the case to CAAF, but that request was denied. The Appellant then petitioned the court for review, which was granted on July 11, 2012, for the following issue:

Whether, as a matter of law, a bona fide suicide attempt is punishable as self-injury under Article 134.

The Appellant’s brief distinguishes the CMA’s opinions in Johnson, Taylor, and Ramsey as not involving a bona fide suicide attempt (Johnson and Taylor) and as involving a bona fide suicide attempt not induced by mental illness (Ramsey), while the Appellant’s situation is that he committed a bona fide suicide attempt induced by various mental illnesses, including post-traumatic stress disorder. In support of this argument, the Appellant identifies three suicide-type situations:

1) What is commonly known today as a suicidal gesture (i.e., a self-inflicted injury, not prompted by serious suicidal intent);

2) A bona fide suicide attempt not induced by mental illness (e.g., suicide to protest a political event, suicide bombers, kamikaze pilots, etc.), and

3) A bona fide suicide attempt induced by mental illness (e.g., cases where PTSD or depression are the primary factors driving the attempt, and the suicidal intent is serious).

Appellant’s Br. at 32. In cases involving the third category, the Appellant contends that “(1) the mens rea element of intentional self-injury cannot be met by a genuine suicide attempt; and (2) the prejudicial/service-discrediting element (clauses 1 and 2) also cannot be met under such circumstances.” Appellant’s Br. at 9.

One interesting part of the Appellant’s brief addresses the factual circumstances of the suicide attempt, which the NMCCA discussed:

By cutting himself, the appellant caused a disorder in the barracks. He needlessly exposed GySgt C to his bodily fluids and he caused corpsmen to respond with their medical kits, presumably expending medical supplies in the process. Furthermore, the appellant did not go into pretrial confinement as ordered by his commanding officer; instead, he was transported to the hospital where he received acute medical care followed by treatment in the psychiatric ward for one day. The appellant himself stated that the impact of his actions on his fellow Marines was palpable by the way they acted around him after he returned to the unit.

Caldwell, 70 M.J. at 632. The Appellant’s brief addresses this analysis aggressively:

By the lower court’s logic . . . the scope of “prejudice to good order and discipline” has expanded to include circumstances in which no actual prejudice to the good order and discipline of the unit must be shown. . . . all that the Government must demonstrate now to meet the requirements of clause 1 is that people in the unit felt uneasy or “weird,” or that supplies were used . . .

Under the logic of the lower court’s opinion, for example, a service member who requires medical treatment because he had a motorcycle accident has prejudiced good order and discipline and can be prosecuted under a novel Article 134 specification. . . .

The legal gymnastics required to affirm Pvt Caldwell’s conviction have, in effect, caused the NMCCA to interpret clause 1 of Article 134 in such an extreme way that it has become a strict liability offense.

Appellant’s Br. at 16-17. The Government’s response characterizes the Appellant’s argument as a “strawman.” “Appellant argues that Ramsey and Taylor should be jettisoned in favor of a rule that suicide attempts can never be prosecuted as intentional self-injury. In essence, Appellant argues that times have changed since Vietnam and Desert Storm, and the concept of suicidal intent is better understood now than when Ramsey and Taylor were decided. Gov’t Br. at 10. “As in Ramsey, Appellant’s argument is a “strawman,” based not in law but policy. . . . [T]his Court should not substitute its judgment for that of the political branches on this policy question, no matter how much society’s ‘current views on suicide’ have changed.” Gov’t Br. at 11.

The Government also argues that “Appellant’s argument conflates mens rea with the principle of mental responsibility.” Gov’t Br. at 12. “By pleading guilty, however, Appellant here gave up his right to a contested trial of the facts, including his ability to present evidence supporting this affirmative defense [of lack of mental responsibility].” Govt. Br. at 13.

Finally, the Government engages in an unpersuasive discussion of the factors that it contends make the Appellant’s self-injury prejudicial to good order and discipline or service discrediting. For instance, the Appellant “recognized that his actions could create a negative perception about the senior leadership in his unit that might deter other members of the unit from looking to the leadership for assistance.” Gov’t Br. at 16. Practically speaking, most folks would think twice about looking to the Appellant’s leadership for assistance (if we knew their identities), considering this example of the consequences of their brand of leadership.  Additionally, “Appellant also knew that his suicide attempt could cause people outside of the military to think less of his service and his unit.” Gov’t Br. at 16. Yet it is the prosecution of the Appellant for his suicide attempt that has raised concern (see, for example, this article from Stars and Stripes, and this discussion of the DoD’s General Counsel ordering a review of this offense).

In a reply brief, the Appellant’s counsel charges that “[t]he Government dismissively attempts to paint Pvt Caldwell’s position as purely a policy argument.” Reply Br. at 4. “To be clear, Appellant’s argument is that the elements of Article 134 were not and cannot be met when a diagnosed mentally-ill service member such as Pvt Caldwell is driven to make a bona fide suicide attempt as a result of his mental illness.” Reply Br. at 4. “‘Self-injury’ under Article 134 requires specific intent. But that intent is not present in situations like Pvt Caldwell’s. . . . They do not appreciate the morality or immorality of their suicide attempt.” Reply Br. at 6.

CAAF could reverse the CCA without making a sweeping pronouncement, by finding that the military judge erred in not ordering a mental examination of the Appellant prior to accepting his plea, or that he elicited an insufficient factual basis to support the plea. However, the Government’s response – including the argument that by trying to kill himself, the Appellant made his command look bad – all but begs the court to go further. Suicide is a touchy subject on its own, military suicide is a high-profile touchy subject, and a court-martial for an attempted suicide is a classic David v. Goliath storyline. Under the circumstances, it’s hard to see CAAF siding with Goliath on this one.

Case Links:
NMCCA opinion
Blog post: NMCCA to reconsider en banc in Caldwell
NMCCA’s published opinion on reconsideration (70 M.J. 630 (N-M. Ct. Crim. App. 2011) (en banc))
Blog post: JSC to review self-injury offenses
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

One Response to “Argument Preview: United States v. Caldwell, No. 12-0353/MC”

  1. commentary says:

    As a senior judge might say, whose position is it that such conduct could be criminal under the UCMJ?  The appellate attorney for the government?  The TJAG?  The Secretary of Defense?  The President?  I would bet good money that it’s certainly not the coordinated view of the Obama administration.