CAAF decided United States v. Caldwell, No. 12-353, 72 M.J. 137 (CAAFlog case page) (link to slip op.), on April 29, 2013, reversing the NMCCA and finding a substantial basis in law and fact for questioning the Appellant’s plea of guilty to wrongful self-injury without intent to avoid service, in violation of Article 134, UCMJ. CAAF remanded the case to the CCA for further action.

Chief Judge Baker writes for the court, joined by Judge Erdmann and Senior Judge Cox. Judge Ryan dissents, joined by Judge Stucky.

Private Caldwell was convicted pursuant to his pleas, by a special court-martial composed of a military judge alone, 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. It is the conviction of wrongful self-injury that is the important part of this case:

The appellant was alone in his barracks room, located in Camp Schwab, Okinawa, when he intentionally cut open his wrists with a razor blade, leaving a trail of blood on the barracks floor. At the time of his self-injury, the appellant was in a highly distraught state having just learned that he was being ordered back into pretrial confinement. Gunnery Sergeant (GySgt) C, one of the staff noncommissioned officers in the appellant’s unit, informed the appellant he was going back to the brig and allowed the appellant the privacy to call his parents from his barracks room before processing the appellant for confinement. Moments later, GySgt C returned to the room and discovered the appellant in his injured state. GySgt C administered immediate first aid by wrapping socks around the appellant’s wounds and then called for the assistance of corpsmen, who responded with their medical kits. After the appellant received acute care for his self-inflicted injuries, he was kept for a day in the base hospital’s psychiatric ward for observation before being placed into pretrial confinement.

Caldwell, No. 12-0353/MC, Slip op. at 3-4 (quoting United States v. Caldwell, 70 M.J. 630, 633 (N-M.Ct.Crim.App. 2011)) (citations to record omitted). The NMCCA considered this case twice, once in a three-judge panel and then en banc. In the first review, the panel 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 an analysis rejecting a general prohibition against “criminal prosecutions of genuine suicide attempts,” and concluded that “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.” Caldwell, 70 M.J. at 633 (N-M.Ct.Crim.App. 2011).

Then CAAF granted review of a single issue:

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

However, CAAF doesn’t answer this question, but instead finds that:

Appellant’s plea does not establish that his conduct was to the prejudice of good order and discipline in the armed forces, or of a nature to bring discredit upon the armed forces, and thus does not satisfy the elements of the offense. Because we find Appellant’s plea improvident, we need not address the more general and specified question as to whether and when a bona fide suicide attempt would satisfy the elements of an Article 134, UCMJ, offense.

Caldwell, No. 12-0353/MC, Slip op. at 3.

The Chief Judge’s opinion looks into what it takes for conduct to be either prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces, and distinguishes both of the major precedents dealing with attempted suicide in the wrongful self-injury context: United States v. Ramsey, 40 M.J. 71, 75 (C.M.A. 1994), and United States v. Taylor, 17 C.M.A. 595, 38 C.M.R. 393 (1968). Ramsey was a case where a deployed servicemenber intentionally shot himself in the shoulder. Taylor involved an confined prisoner who superficially slashed his wrists with a razor blade to outdo a another inmate’s similar performance. The majority finds neither controlling, but instead highlights that “the record is clear that Appellant engaged in a bona fide suicide attempt.” Slip op. at 9.

The Chief Judge then turns to the reasons the CCA found that there were sufficient facts to support a plea under the prejudicial prong:

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.

Slip op. at 10 (quoting Caldwell, 70 M.J. at 633 (N-M.Ct.Crim.App. 2011)). But the majority does not find any of these facts sufficient to establish a reasonably direct and palpable injury to good order and discipline:

The gunnery sergeant and medically trained corpsman administered first aid, as they would have in response to any other injury. The corpsmen acted as they were trained to do, and there was no evidence presented that any medical resources they used were needed elsewhere. Moreover, if the expenditure of medical resources alone undermined good order and discipline, then every bona fide suicide attempt requiring medical attention would be per se prejudicial to good order and discipline and on that basis alone could be subject to prosecution.

Slip op. at 10-11. Then the Chief Judge concludes with what seems to be a broad pronouncement: “Finally, Appellant’s impression that members in the unit felt uneasy also does not provide a sufficient factual basis to establish a direct and palpable effect on good order and discipline.” Slip op. at 11.

Turning to service discrediting, the Chief Judge begins by noting that both Ramsey and Taylor relied on the prejudice element, vice the discrediting element, to establish the terminal element. So too did the NMCCA in this case. But when the Appellant pleaded guilty, he also admitted that public knowledge of his attempted suicide could lessen the public’s favorable view of his unit and his superiors. The majority takes great exception to this:

Appellant’s speculation does not establish that his conduct had a tendency to bring the service into disrepute or to lower it in the public esteem. To the contrary, this statement indicates that in Appellant’s view it was not his actions that would cause discredit, but the failure of his unit’s leaders that would have a tendency to cause discredit. If this alone were discrediting, then it would appear to be discrediting for the whistleblower to disclose fraud or the victim of an offense to report a crime by a member of the military.

Slip op. at 12. And so the majority finds a substantial basis in fact and law to question the Appellant’s plea of guilty, and the court reverses. In doing so, the majority avoids the granted issue entirely.

But Judge Ryan, joined by Judge Stucky, dissents. She begins by tackling the granted issue and attacking any distinction between a “bona fide suicide attempt” and a “mere suicidal gesture,” because this is “a distinction that is unsupported by the statutory elements of Article 134, UCMJ, or any of the elements of self-injury without intent to avoid service, as defined by the President.” Diss. op. at 2. But she also questions whether punishing bona fide suicide attempts (and even suicidal gestures) is wise or fair. However, she sees that as a question for Congress and the President, and notes that:

As a threshold matter, however counterintuitive it seems to me, a suicide attempt that rises to the level of self-inflicting an injury is punishable conduct under Article 134, UCMJ.

Diss. op. at 4. It is the self-injury, and not the suicide attempt, that is criminalized under Article 134. However, the dissenters see the majority as effectively creating an exception to this prohibition for “bona fide” suicide attempts that is unsupported in law.

Judge Ryan then turns to an analysis of the plea itself. The elements of the offense are: “(1) [t]hat the accused intentionally inflicted injury upon himself or herself; [and] (2) [t]hat, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.” Diss. op. at 7. The majority focused on the second element, but the dissenters begin with a discussion of the first, and of the presumption of sanity. Judge Ryan notes that the Appellant admitted to intentionally cutting his wrists with a razor blade, and his defense counsel explicitly disclaimed any mental responsibility issues. Accordingly, there are sufficient facts to meet the first element.

But on the second element, the dissenters disagree with all of the conclusions the majority makes about the facts of the case regarding the provision of medical services, the expenditure of supplies, and the perception of others in the unit. Particularly, a long footnote discusses the “unsupported assertion” that the mere expenditure of medical resources, without more, does not undermine good order and discipline. Diss. op. at 11 N.6. Moreover, Judge Ryan’s opinion notes that the “Appellant pleaded to facts that demonstrate his belief that his conduct was service discrediting.” Diss. op. at 12 (emphasis in original). She disagrees with the majority’s conclusion that the Appellant’s plea explains how the command’s conduct, and not his own conduct, was service discrediting, in part because “by not reaching out to his command for help, Appellant precluded the command’s help.” Diss. op. at 14. So she concludes:

The majority ignores the purpose of the Care inquiry, and Appellant’s own express words as to why he felt his conduct was service discrediting, obfuscating the issue and flipping the genesis of the “act” that is potentially service discrediting to protect hypothetical whistleblowers and victims, despite the nonexistence of an enumerated Article 134, UCMJ, offense proscribing such conduct.

Diss. op. at 14. She concludes with a warning:

I question whether the majority’s approach will prevail in other contexts where the offense is one they deem more suitable for prosecution, even though that is not a matter within our purview, but is one committed to the convening authority’s discretion.

Diss. op. at 14.

During my argument preview, I predicted that:

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.

I think the David v. Goliath struggle is still an undertone to this case, and the majority didn’t want to side with Goliath but also didn’t want to go outside the boundaries that Judge Ryan highlights in her discussion of the role of Congress and the President, so the majority found a third way. But I also think that calling the majority’s approach solely results-oriented or paternalistic is an oversimplification. The majority’s approach doesn’t foreclose the possibility of a prosecution for a bona fide suicide attempt. Self-injury without intent to avoid service can be wrongful in a number of ways (see Jackass: The Movie), but threading that needle to show wrongfulness in a military plea inquiry involving a bona fide suicide attempt requires, in my mind, something more than the mere disruption caused by the attempt in a military setting. I think the majority agrees.

Suicide is tragic, but I don’t see how it discredits the armed forces. Further, the disruption of a suicide attempt to a unit’s day-to-day is bothersome, but I don’t see how it injures good order and discipline. Instead, Private Caldwell’s decline and ultimate attempt at self-destruction is a lesson, and I suspect that his leadership spent a lot of time during the aftermath wondering what they could have done differently. But the temptation to seek out a wrongdoer – to point a finger whenever something goes wrong – can be dangerous.

Wrongful is a fuzzy term, and calling a bona fide suicide attempt wrongful requires something more than the facts elicited in this case. I think that the Chief Judge’s majority opinion says this without actually saying it, and I don’t think that’s incompatible with Judge Ryan’s concern about this approach in other contexts where the the conduct is deemed “more suitable for prosecution.” Rather, by taking apart this plea inquiry and finding the facts insufficient to support the conviction, the majority creates a roadmap for what must be proven in a future prosecution. That’s the the right way to achieve the “right” result.

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
Oral argument audio
CAAF opinion
Blog post: CAAF sets aside attempted suicide conviction
Blog post: Opinion analysis

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