CAAF decided United States v. Mott, No. 12-0604/NA, 72 M.J. 319 (CAAFlog case page) (link to slip op.), on July 8, 2013. The case presented two significant but distinct issues. The first asked CAAF to determine the appropriate standard for an insanity defense under Article 50a, and CAAF finds that an objective standard of wrongfulness is appropriate under the Code, affirming the trial judge’s instruction to the members and the decision of the NMCCA. The second issue addresses the admission of Appellant’s confession to NCIS, and CAAF finds that the trial military judge abused his discretion when he admitted the confession because he failed to conduct a proper analysis, and that this error was not harmless. CAAF sets aside the findings and authorizes a rehearing in this case where Appellant has already been twice-convicted of attempted premeditated murder.
Chief Judge Baker writes for a unanimous court.
This case arose out of a stabbing that occurred aboard USS CAPE ST GEORGE in 2007. Appellant, who was suffering from paranoid delusions and was later diagnosed with schizophrenia, believed that the victim (a fellow sailor he had never seen before) participated in a gang rape of Appellant some four years earlier. Appellant was tried and convicted in 2008, contrary to his pleas, by a military judge sitting as a general court-martial, of attempted premeditated murder. The approved sentence was confinement for 12 years, total forfeitures, reduction to E-1, and a dishonorable discharge. But the NMCCA set aside the findings in 2009 due to a Government discovery violation (Mott I).
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, and 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 (Mott II)
During the second trial, Appellant unsuccessfully presented the affirmative defense of lack of mental responsibility. In response to a question from a member regarding the legal definition of wrongfulness, the military judge instructed that:
When the law speaks of wrongfulness[,] the law does not mean to permit the individual to be his own judge of what is right or wrong. What is right or wrong is judged by societal standards. The standard focuses on the accused’s ability to appreciate that his conduct would be contrary to public or societal standards.
Slip op. at 7. But at trial, before the CCA, and at CAAF, Appellant argued that the definition should “incorporate the subjective beliefs of the accused in determining wrongfulness.” Slip op. at 8. Appellant also unsuccessfully moved to suppress his confession at trial.
Chief Judge Baker’s opinion begins by noting that the insanity defense in Article 50a is “substantively identical” to the federal insanity defense created by the Insanity Defense Reform Act of 1984 (IDRA). The IDRA broadened the common law test developed in the English law M’Naghten’s Case, 8 Eng. Rep. 718 (1843), and requires that a defendant suffering from a severe mental disease or defect be unable to appreciate (rather than merely know) the nature and quality or the wrongfulness of his acts. But “wrongfulness” is not defined in the UCMJ, and Appellant argued that it should be “determined by an accused’s sense of right and wrong.” Slip op. at 13. CAAF rejects this argument, and Chief Judge Baker notes that M’Naghten’s Case and the decisions of many of our federal courts have settled on an objective test that refers to societal or public standards of morality:
Society formally expresses its determinations of “right and wrong” and “public morality” through law. Thus, wrongfulness is based on the law, even if it does not require the accused to have actual knowledge of the law. While “appreciate” is subjective, “wrongfulness” must be objective. Thus, “appreciating wrongfulness” is the accused’s ability to understand and grasp that his conduct violates society’s essential rules, and is supported by an accused’s understanding that his conduct violated the law, and is contradicted by evidence that — if the facts of the accused’s delusions were true — then his conduct would not violate the law.
Slip op. at 15-16 (citations omitted). Thus, CAAF concludes that the panel was properly instructed by the trial judge.
But CAAF finds significant fault with a different action of the trial judge: “Without deciding whether Appellant knowingly and intelligently waived his right to counsel, we hold that the military judge abused his discretion by failing to analyze as a matter of law whether Appellant could and did knowingly and intelligently waive his rights.” Slip op. at 17.
The admissibility of Appellant’s confession was litigated during a pretrial hearing where the Government called one of the NCIS agents who took the statement, and the Defense called a psychiatrist who gave expert testimony “that Appellant was not competent to waive his right to remain silent.” Slip op. at 23. Considering the result of this hearing, Chief Judge Baker notes that:
In his ruling, the military judge did not address [the psychiatrist’s] testimony, but apparently rejected it in finding (as a finding of fact, not law) that Appellant “knowingly, intelligently, and voluntarily waived his rights.” The military judge found that the “accused’s memory and thought processes were functioning” during the interrogation and that “[t]he accused gave, although bizzare [sic] in content, logical answers to the questions that were asked.”
Slip op. at 25. “[T]here are two branches to the waiver analysis. First, was the waiver voluntary? And, second, was the waiver knowing and intelligent?” Slip op. at 28. But, “[t]he military judge’s analysis does not address the issue of knowing and intelligent waiver, but rather focuses solely on the question of voluntariness. This is despite the fact that Appellant’s suppression motion was based on knowing and intelligent waiver, and not voluntariness.” Slip op. at 30 (emphasis added). Chief Judge Baker focuses on the trial judge’s flawed analysis:
the findings do not address the uncontested expert testimony. In fairness, the Edwards test as applied in the context of mental illness has not been articulated in military jurisprudence. The military judge did find a number of facts that would support a legal finding of knowing and intelligent waiver; however, these facts were not discussed or explicitly analyzed and applied to a finding of law.
As a result, the military judge abused his discretion in his analysis. The military judge did not apply the Edwards framework, which requires a separate analysis of voluntary waiver and knowing and intelligent waiver. . . . The military judge also erred when he addressed whether Appellant’s waiver was knowing and intelligent solely as a conclusory finding of fact, rather than as a conclusion of law.
Slip op. at 30-31. He concludes with an implicit reminder that confessions (which are the least reliable form of proof known to the law) are presumed inadmissible, with the burden on the Government to demonstrate otherwise:
We find that the military judge abused his discretion by not separately analyzing whether Appellant’s waiver was knowing and intelligent. Therefore, we do not reach a conclusion as to whether the confession in this case could be admissible — only that it was not properly admitted in this case.
Slip op. at 33. Finally, under the circumstances of this case (where the prosecution made extensive use of the confession during argument), the constitutional error in admitting Appellant’s confession was not harmless beyond a reasonable doubt, requiring reversal of the conviction. CAAF authorizes a rehearing.
But that rehearing will be the third trial of Seaman Mott where:
The facts of this case are largely undisputed. On 6 March 2007, Seaman JG checked onto USS CAPE ST GEORGE (CG 71) for duty. Two days later, while Seaman JG was eating breakfast on the ship’s mess deck, the appellant attacked and stabbed Seaman JG with a pocketknife. The appellant was pulled away from the victim by other shipmates and emergency medical assistance was rendered which saved Seaman JG’s life.
United States v. Mott, No. 200900115, slip op. at 5 (N-M.Ct.Crim.App. Nov 24, 2009) (unpublished) (Mott I). With a literal boatload of witnesses and a confession, the Government has already snatched defeat out of the jaws of victory twice. We’ll see if the third time is the charm.
• 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
• CAAF argument audio
• CAAF opinion (Mott III)
• Blog post: Opinion analysis