CAAF will hear oral argument in the Air Force case of United States v. Torres, No. 14-0222/AF (CAAFlog case page), on Wednesday, December 10, 2014. The case is the latest in a series of instructional error cases considered by the court, and presents a single issue:

Whether the military judge erred by denying the defense requested instruction.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of aggravated assault and three specifications of assault consummated by a battery, in violation of Article 128. He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge.

Appellant was charged with assaulting his wife, “VJT,” by “choking her throat with his hands with a force likely to produce death or grievous bodily harm.” App. Br. at 2. Appellant’s defense was that he had suffered a seizure and his actions were involuntary. At trial, the Defense called a neurologist as an expert witness who testified that in the “postictal period” after a seizure a person may become involuntarily violent. App. Br. at 7-8. The Defense then asked the military judge to instruct the members that the Government was required to prove voluntariness beyond a reasonable doubt, with an instruction that:

began by stating, “The evidence in this case has raised an issue whether the acts alleged in the Specification of Charge I were committed voluntarily.” App. Ex. IV; J.A. 190. The instruction ended by stating, “What is in issue is whether the government has proven beyond a reasonable doubt that the accused acted voluntarily.” Id.

App. Br. at 10. The Defense also explicitly disclaimed the affirmative defense of lack of mental responsibility, noting that it “would unfairly shift the burden to the defense to prove that Appellant was not acting voluntarily.” App. Br. at 9.

The Defense position at trial highlights the difference between a defense and an affirmative defense – something that I analyzed in my recent article about defenses to adult sexual offenses (discussed here). Broadly speaking, a defense is something that disproves an element of the crime, while an affirmative defense is something that does not disprove an element but rather seeks to avoid criminal responsibility. Due process requires that the prosecution disprove all defenses, but due process permits a statutory scheme that requires the defense to prove an affirmative defense.

In Torres, the military judge refused to give the instruction requested by the Defense. Moreover, he gave the standard instruction regarding lack of mental responsibility. In accordance with Article 50A, that instruction requires the Defense to prove the affirmative defense lack of mental responsibility by clear and convincing evidence. In doing so, the military judge may have improperly relieved the Government of its burden to disprove Appellant’s defense that his actions were involuntary.

Appellant’s brief notes that:

“If bodily harm is inflicted unintentionally and without culpable negligence, there is no battery.” Manual for Courts-Martial United States (MCM), Part IV, para. 54 (c)(2)(d) (2008 ed.). Involuntary acts are rarely treated as an affirmative defense, but instead almost universally treated as a required element of every offense.

App. Br. at 12. A footnote adds the Model Penal Code and numerous state statutes as further support for the proposition that voluntariness is an element that the prosecution must prove beyond a reasonable doubt.

Appellant’s brief also highlights an important factual twist:

During closing arguments, the trial counsel exploited [the mental responsibility] instruction by arguing that the defense has the burden to show Appellant was suffering from a severe mental disease or defect. J.A. 183. The trial counsel conceded that Appellant had epilepsy. Id. Trial counsel also conceded that the testimony showed the defense’s theory was “a possibility.” Id. However, the trial counsel argued, “That does not meet the clear and convincing evidence standard.” Id.

App. Br. at 10. This certainly appears to require that the Defense prove involuntariness; or, put differently, to improperly require the Defense to disprove an element of the offense.

The Government’s brief addresses this issue in a somewhat oblique fashion:

There is no separate defense of unconsciousness or “automatism” in the military, nor should there be. Appellant, however, was at liberty to cast doubt on the elements that the Government was required to prove. Appellant was, thus, never prevented from arguing the lawfulness of his conduct–the members merely chose not to believe the defense’s theory.

Gov’t Br. at 10. The Government also asserts that the instruction requested by the Defense would create a new type of mental responsibility defense:

The defense’s requested instruction failed the first prong of Damatta-Olivera and Carruthers because instructing the members that the actus reus of the offense had been called into question would not have been a “correct” recitation of the law. Additionally, Appellant’s new argument on appeal–that the judge was required to give a special instruction regarding mens rea–also would be an incorrect recitation of the law. If that proposed instruction were allowed, it would wholesale create a new mental responsibility standard for general intent crimes.

Gov’t Br. at 18-19. Yet the Government acknowledges that a battery requires an intentional act:

Further, the judge defined a “battery” as an “assault in which bodily harm is inflicted” that is both unlawful and intentional. (J.A. at 194.)

Gov’t Br. at 19 (emphasis in original). A final section of the Government’s brief argues that any error is harmless:

If, however, this Court believes the specific mens rea issue was not waived, Appellant was still able to argue to the members and present evidence that his epilepsy and the postical state called into question whether he intentionally hit his wife. So, even though he was not given his desired instruction, there can be no prejudice because he was allowed to argue the theory that the Government had not proved general intent beyond a reasonable doubt.

Gov’t Br. at 22. I think the shortcoming in this argument is the fact that the instruction that was given (and the argument of the trial counsel) shifted the burden to the defense to prove involuntariness. Appellant’s reply brief captures this rather succinctly:

While Appellant’s trial defense counsel was able to argue something, he was not able to argue the correct instruction, that “if the [Appellant], due to a medical condition such as a seizure disorder, is incapable of acting voluntarily at the time of the offense, then his actions were involuntary, and he may not be found guilty of the offense listed in the Specification of Charge I.

Reply Br. at 3.

CAAF has never been particularly tolerant of instructions that improperly shift the burden to the Defense (the most infamous of which was the burden shift in the 2006 version of Article 120). Whether the court will conclude that the instructions in Torres suffered from this flaw remains to be seen.

Case Links:
AFCCA opinion
Blog post: CAAF grants review in 7th instructional error case of the term
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

2 Responses to “Argument Preview: United States v. Torres, No. 14-0222/AF”

  1. AF JAG says:

    Just listened to the audio on the U.S. v. Torres case–FASCINATING.
    So the appellate defense counsel argues to CAAF that he thinks the trial defense counsel “was confused” (3 minute mark of the oral argument) when at trial the trial defense counsel argued that the alleged epileptic seizure leading up to the domestic violence incident should serve to undermine the actus reus, NOT, the mens rea of the offense.
    The more I think about it, I think its the appellate defense counsel who is “confused.” 
    The trial defense counsel (from what I understand of the case from the briefs and argument) did something kind of brilliant here:  an end run around the “clear and convincing evidence” standard or RCM 917 for a mental responsibility defense by arguing that an epileptic seizure would make an act INVOLUNTARY, and therefore fail on the actus reus prong.  That’s kind of brilliant because then all you have to do is to create reasonable doubt on the actus reus prong by saying that this alleged epileptic seizure created a “real possibility” that the act was involuntary.
    Sounds to me like the appellate defense counsel just lacked the imagination of the trial defense counsel.
    I think the government still has the overall better argument in this case (i.e. that there is no “automatism” defense in the military and that defense counsel’s epilepsy defense in substance relates to mens rea, and accordingly should be analyzed from a RCM 916(k) perspective), but kudos to trial defense for the inventive theory.

  2. AF JAG says:

    Whoops–obviously in my 4th paragraph when I say “clear and convincing evidence” standard for a RCM 917 mental irresponsibility defense” I meant to put “RCM 916 mental irresponsibility defense.”
    Looks like I’m the one who’s “confused”!  LOL