Last week CAAF granted review in an Army case where Appellant was sentenced to life without the possibility of parole for, among other things, the premeditated murder of a fellow soldier under circumstances described by the ACCA as:
Appellant stabbed another soldier to death under rather mysterious circumstances. There was no apparent motive for the killing, Appellant presented, in essence, an insanity defense, claiming that the drug prescribed to him by Army doctors to help him stop smoking, Varenicline (popularly known as and hereinafter referred to as Chantix), contributed to his lack of mental responsibility for the offenses alleged.
United States v. MacDonald, No. 20091118, slip op. at 1 (A.Ct.Crim.App. Jul 3, 2013) (link to unpub. op.). The granted issues are:
No. 14-0001/AR. U.S. v. George D. MACDONALD. CCA 20091118. Review granted on the following issues:
I. Whether the Army Court of Criminal Appeals erred in determining that the military judge’s error in quashing a subpoena issued to Pfizer, Inc., to produce relevant and necessary documents regarding clinical trials, adverse event reports, and post-market surveillance of the drug varenicline was harmless beyond a reasonable doubt.
II. Whether the military judge abused his discretion in denying a defense requested instruction on involuntary intoxication, and erred in failing to instruct the members on the effect of intoxication on appellant’s ability to form specific intent and premeditation.
The details of the killing, discussed at some length in the CCA’s opinion, are both puzzling and disturbing. The opinion also describes in detail the similarly-disturbing side effects of Chantix. The Defense sought production of documents from Pfizer and then from the FDA regarding these side effects, and the trial counsel issued a subpoena, but the military judge refused to enforce the subpoena. The CCA found this to be an abuse of the judge’s discretion, but harmless. Notably, in making this conclusion, the CCA found:
a reasonable possibility that the information in Pfizer’s and/or the FDA’s possession might establish that Chantix inspired appellant to entertain homicidal ideas and facilitate any tendency toward violent and hostile behavior he otherwise possessed.
Slip op. at 12.
The Defense (along with the Government, though separately) also proposed a findings instruction on the defense of involuntary intoxication. The military judge gave no such instruction, nor did he mention Chantix in the findings instructions. The CCA finds that this too was error but also harmless, concluding:
Appellant cannot escape the overwhelming evidence of his mental responsibility for the offenses he committed.
As to whether the judge had a sua sponte duty to address involuntary intoxication as it related to the questions of intent and premeditation, we also find that even if such an instruction were rendered, a rational panel would have found appellant guilty of premeditated murder, as well as the other offenses charged, in light of the overwhelming evidence that appellant was fully able to form the intent necessary to be held criminally liable.
Slip op. at 13-14 (citations omitted). What is this “overwhelming evidence of [Appellant’s] mental responsibility,” you wonder? Well the briefs to CAAF will likely provide significantly more facts, but here’s what the CCA’s opinion offers:
Several hours [after the stabbing and Appellant’s apprehension], appellant waived his right to remain silent and admitted the crime, asserting that he intended to kill when he stabbed and that he must have been temporarily insane, describing the idea of murder as coming to him in an ever forceful manner until he felt compelled to kill at that moment. He acknowledged that what he did was wrong, expressed remorse and disgust with himself for killing, and requested help. It should also be noted that a day prior to the assault upon PVT Bulmer, appellant telephoned his girlfriend and asked her whether she would still love him if he were to kill someone.
Private Bulmer died from the wounds inflicted by appellant, and appellant was charged with premeditated murder among other offenses. His defense was that Chantix, combined with preexisting mental conditions, drove him to a tragic, psychotic, homicidal assault upon PVT Bulmer and that he was not guilty by reason of lack of mental responsibility.
Slip op. at 3-4.
I wonder if Pfizer will try to interplead. . .