CAAF will hear oral argument in the case of United States v. Mott, No. 12-0604/NA, on Wednesday, January 23, 2013. The court granted review of the following issues:
I. A lack of mental responsibility defense exists when a mentally diseased accused cannot appreciate the wrongfulness of his conduct. Here, experts testified that appellant’s paranoid schizophrenia and severe delusions created his subjective belief that stabbing the victim was justified. But the military judge and NMCCA adopted an objective standard for “wrongfulness.” What is the appropriate standard in determining whether an accused can appreciate the wrongfulness of his conduct?
II. Under the Fifth Amendment, an accused’s statement to investigators is admissible only if it was obtained with a voluntary, knowing, and intelligent waiver where the accused understands his rights and the consequences of waiving them. Here, expert witnesses testified that appellant could not understand his rights or the consequences of waiving them because of his severe mental disease. Did the military judge err by admitting the statement?
This case arose out of a stabbing that occurred aboard USS Cape St George in 2007. The Appellant believed that the victim (a fellow sailor he had never seen before) had participated in a gang rape of the Appellant in 2003. The Appellant was suffering from paranoid delusions at the time of the stabbing, and he was later diagnosed as a paranoid schizophrenic (and was initially declared incompetent to stand trial, followed by eight months of treatment at the Prison Mental Health Facility at Butner, North Carolina). He was eventually tried and convicted, contrary to his pleas, by a military judge sitting as a general court-martial, of attempted premeditated murder, in violation of Article 80, UCMJ. The approved sentence was confinement for 12 years, total forfeitures, reduction to E-1, and a dishonorable discharge.
However, the findings and sentence were set-aside by the NMCCA in 2009 due to a Behenna-esqe discovery violation. Specifically, the Government expert “verbally informed the trial counsel that he agreed with the defense expert that the appellant suffered from a severe mental disease and that said disease caused the appellant not to understand the wrongfulness of his actions at the time of the charged misconduct. . . . We find, therefore, that the trial counsel’s failure to disclose the expert medical opinion of their expert, Dr. [H], was error.” United States v. Mott, No. 200900115, slip op. at 5 (N-M.Ct.Crim.App. Nov 24, 2009) (unpublished) (Mott I).
The Appellant was retried in 2010, this time before a general court-martial composed of officer members. He was again convicted, contrary to his pleas, of attempted premeditated murder, in violation of Article 80, UCMJ. He was sentenced to confinement for nine years, reduction to E-1, and a dishonorable discharge. The NMCCA affirmed the findings and sentence in April, 2012.
During the retrial, the Appellant unsuccessfully presented the affirmative defense of lack of mental responsibility. At the NMCCA, he argued that his conviction was legally and factually insufficient because he was unable to appreciate the wrongfulness of his actions. The CCA began its analysis by “not[ing] that the Court of Appeals for the Armed Forces has not defined the phrase ‘appreciate the wrongfulness’ in its existing case law.” United States v. Mott, No. 200900115, slip op. at 10 (N-M.Ct.Crim.App. Apr 30, 2012) (unpublished) (Mott II). It then considered the three possible definitions recognized in federal caselaw:
(1) legal wrongfulness, as in “contrary to law”;
(2) moral wrongfulness, as in “contrary to public morality,” determined objectively by reference to society’s condemnation of the act as morally wrong; or
(3) moral wrongfulness, as in “contrary to personal morality,” determined subjectively by reference to the defendant’s belief that his action was morally justified
Mott II, slip op. at 10 (quoting United States v. Ewing, 494 F.3d 607, 616 (7th Cir. 2007)). The Appellant asked the court to adopt the third definition (subjective belief of wrongfulness), but the court “agree[d] with the Seventh Circuit’s well-reasoned analysis in Ewing and . . . conclude[d] that the phrase ‘appreciate the wrongfulness’ must employ an objective societal standard of moral wrongfulness.” Mott II, slip op. at 10. This action (and the trial military judge’s similar adoption of the objective test in his instructions to the members) is the subject of the first granted issue before CAAF.
Additionally, in a pretrial motion, the Appellant sought to suppress a confession he made to NCIS shortly after the stabbing, on the basis that his waiver of his right against self-incrimination was not knowing and intelligent based on the opinion of a “a forensic psychiatrist, who opined that the appellant’s diagnosed paranoid schizophrenia prevented him from understanding the consequences of the waiver.” Mott II, slip op. at 3. The trial judge denied the motion, and the NMCCA affirmed based on the totality of the circumstances. This action is the subject of the second granted issue.
The Appellant’s brief gives some history and context of the objective and subject tests for wrongfulness (see App. Br. at 11-14), but his ultimate argument on the first issue isn’t that CAAF should adopt a purely subjective standard, but instead that:
SN Mott’s case should have been analyzed through a hybrid approach given his delusional justification.
By employing a purely objective standard here, the military judge and the NMCCA ignored vital evidence that distinguishes SN Mott’s case. The irregular way that SN Mott thought and processed information at the time of his attack is paramount. Adopting a purely objective insanity test discounted SN Mott’s insanity. To be sure, SN Mott does not request that all military cases involving insanity defenses employ a subjective component. Some evidence should be present to trigger the test and its associated instruction. But in SN Mott’s case, a standard that in some way accounts for his subjective morals is required. Such a standard can exist where the definition of “wrongfulness” could lay somewhere on a spectrum that incorporates a hybrid, objective and subjective approach.
App. Br. at 16-17. On the second issue, the Appellant’s brief notes that “[t]he question of whether a mentally impaired person can validly waive his Article 31(b) rights remains unanswered.” App. Br. 21. The brief cites the Supreme Court’s holding in Blackburn v. Alabama, 361 U.S. 199 (1960), to support the argument that “convicting a person based on a statement made while insane violates a fundamental sense of justice.” App. Br. at 21. The brief also explains that the Appellant’s mental state (illustrated by his pretrial hospitalization) shows that he was incapable of understanding the consequences of waiving his rights. Finally, the brief attacks the NMCCA for conducting its own analysis of the Appellant’s actions and his understanding of their consequences, rather than relying on the expert testimony at trial that the Appellant could not understand the consequences of the waiver due to his mental disease.
The Government’s brief begins with a discussion of the Insanity Defense Reform Act (“IDRA”) of 1984, and the analysis employed by the Seventh Circuit in United States v. Ewing. Particularly, the brief discusses the 19th century English law M’Naghten’s Case, 8 Eng. Rep. 718 (1843), that developed into the common law of the insanity defense, and was incorporated into the IDRA:
[consider the hypothetical of] if the accused was aware that he was acting ‘contrary to law, but did the act complained of with a view, under the influence of an insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit . . . . The judges responded that such a defendant “is nevertheless punishable according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law.”‘
Gov’t Br. at 10-11 (quoting Ewing, 494 F.3d at 618-619). The Government argues that current federal law calls for an objective test. Additionally, the Government sees this as a case where “an Appellant thought his ‘delusions justified his attack.’” Gov’t Br. at 17 (quoting App. Br. at 17). But, “(1) [the Appellant] clearly understood that society would not approve of his actions, (2) he took measures to conceal his conduct, and (3) his actions fail to support his assertion that he acted in self-defense.” Gov’t Br. at 17. The brief then argues that even under a subjective-objective test, the Appellant’s defense fails because the “motivation for his actions was revenge for a traumatic experience that he believed, based on his delusions, was caused by [the victim]. This does not equate to justification for murder. And it does not lead to the conclusion that Appellant was unable to appreciate the wrongfulness of his actions.” Gov’t Br. at 23. This is a convincing argument by the Government.
On the suppression issue, the Government makes the simple argument that “Appellant’s statements, though bizarre in their delusions, are not alone sufficient evidence that he lacked [sic] the very simple fact that he was under no obligation to speak with police.” Gov’t Br. at 29. The Government also highlights the Appellant’s “understanding of his surroundings during the interview and his repeated desire to soften his conduct” by editing his written statement. Gov’t Br. at 31. The brief concludes with the argument that “testimony before the Military Judge supported a belief that Appellant understood his rights and that his delusions while surfacing to some degree during the interview were not so pervasive as to destroy his cognitive ability to understand his rights as explained to him by NCIS.” Gov’t Br. at 33.
In a reply brief, the Appellant continues to press his argument based on his mental state, noting that “Appellant’s severe mental defect compromised his ability to think rationally, significantly disrupted his perception abilities, and affected his cognitive abilities.” Reply Br. at 1 (citations to joint appendix omitted).
Issues of mental health and disease took a high spot on our list of the Top 10 Military Justice Stories of 2012, and this case keeps that spotlight lit. CAAF may well adopt the prevailing federal standard and affirm the NMCCA’s adoption of the objective test, particularly as the Appellant does not give a reason for departing from the prevailing federal standard. However, the Appellant could still win relief through recognition that someone suffering from so severe a mental illness cannot validly waive his rights during an interrogation. Accordingly, I suspect that the second issue will get the most attention from the court during oral argument.
• NMCCA opinion (Mott I)
• Blog post: Second conviction in Mott
• NMCCA opinion (Mott II)
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview