CAAF decided the Air Force case of United States v. Torres, 74 M.J. 154 No. 14-0222/AF (CAAFlog case page) (link to slip op.), on Tuesday, May 12, 2015. The court unanimously finds that the military judge erred in instructing the members on the defense of lack of mental responsibility when Appellant asserted the defense of automatism in that that his act of choking his wife with his hands was involuntary because he had suffered a seizure. However, the court splits 3-2 to find this error harmless, affirming the findings, sentence, and the decision of the Air Force CCA.

Judge Ohlson writes for the majority, joined by Chief Judge Baker and Judge Ryan. Judge Stucky dissents, joined by Judge Erdmann.

CAAF granted review of 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.

The aggravated assault specification alleged that Appellant assaulted his wife by “choking her throat with his hands with a force likely to produce death or grievous bodily harm.” Slip op. at 2. Appellant’s defense was that he suffered a seizure and his actions were involuntary. Specifically:

Appellant sought to show that he had an epileptic seizure on the morning of May 13, 2008, and that he thus was experiencing an altered state of consciousness when he assaulted his wife. Appellant further asserted that this altered state of consciousness rendered his actions involuntary, and argued that the Government had therefore failed to prove that his conduct “was done with unlawful force or violence” as required for aggravated assault.

Slip op. at 4 (emphasis in original) (citation omitted). Appellant’s defense counsel also asked the military judge to instruct the members that they must be “satisfied beyond a reasonable doubt that the accused, at the time of the alleged offense acted voluntarily” in order to convict him. Slip op. at 5 (quoting record).

However, the military judge refused to give the instruction requested by the defense. Rather, the military judge instructed the panel consistent with the affirmative defense of lack of mental responsibility, and “consistent with this affirmative defense, the military judge further instructed the panel that if it concluded that the Government had proved all of the elements of the offense beyond a reasonable doubt, the burden then shifted to the defense to show by clear and convincing evidence that the accused suffered from a severe mental disease or defect, making him unable to appreciate the nature and quality or wrongfulness of his conduct.” Slip op. at 5.

CAAF holds that the military judge erred in giving this instruction, though it acknowledges that military law is not exactly clear on how to handle a defense of automatism:

Thus, as noted above, at the time of trial in the instant case, the state of the law was not particularly clear in regard to whether automatism should be viewed as potentially negating an accused’s mens rea, or potentially negating the actus reus, or both. What was clear, however, was that neither epilepsy nor automatism constituted a mental disease or defect and this Court has never held that the affirmative defense of lack of mental responsibility applies in these cases. Indeed, we find it was error for the military judge in the instant case to instruct the panel in that manner.

Slip op. at 7-8 (emphasis in original).

Judge Ohlson’s majority opinion explains that the military judge’s error was in the fact that his instructions relieved the Government of the burden to prove that Appellant’s actions were voluntary and therefore unlawful:

[B]y instructing the panel pursuant to the provisions of R.C.M. 916(k)(1), the military judge shifted the burden of proof to the defense to show that the accused suffered from a severe mental disease or defect, which made him unable to appreciate the nature and quality or wrongfulness of his conduct. This the military judge could not do. At trial the burden always was required to rest with the Government to prove beyond a reasonable doubt that Appellant had committed each element of the offense, and one of those elements pertained to the issue of whether Appellant’s actions were voluntary, and hence, “unlawful.” Article 128(a), UCMJ. Thus, we find that the instructions given by the military judge constituted error.

Slip op. at 8. Nevertheless, the majority finds the error to be harmless based on the weight of the evidence admitted at trial. That evidence enables the majority to conclude that “it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” Slip op. at 9 (citation and marks omitted).

However, Judge Stucky’s dissent shows that the court was deeply divided on the question of harmlessness:

The military judge’s failure to give the voluntariness instruction “eviscerated” Appellant’s theory of the case and thereby deprived him of a defense. See Dearing, 63 M.J. at 485. Without a correct instruction, “the members did not have guideposts for an informed deliberation.” Id. (internal quotation marks omitted). The omission of the instruction meant that the panel members were unable to consider the defense of involuntariness in their deliberations. In a close case such as this, this error cannot be harmless beyond a reasonable doubt.

Diss. op. at 2-3 (marks in original).

Interestingly, Judge Ohlson’s majority opinion does not stop at finding that the military judge’s instruction was erroneous and that the error was harmless; Judge Ohlson also provides guidance to future courts-martial:

[T]he state of the law regarding the appropriate way to instruct a panel in an automatism case has been somewhat unsettled. We now seek to remedy that situation by holding as follows: In cases where the issue of automatism has been reasonably raised by the evidence, a military judge should instruct the panel that automatism may serve to negate the actus reus of a criminal offense.

Slip op. at 11. While practical, this guidance seems entirely superfluous to the decision in Torres because of the majority’s conclusion that the improper instruction was harmless beyond a reasonable doubt. The military judge could have given the members rules for draw and stud poker as instructions, and the majority would presumably still have found the error harmless. Using this case to “adopt the actus reus approach in automatism cases,” slip op. at 12, seems to be little more than an advisory opinion.

Nevertheless, for the next military judge facing an automatism defense, Judge Ohlson’s opinion is likely to be welcome advice.

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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

3 Responses to “Opinion analysis: The law unclear but the military judge clearly wrong in United States v. Torres, No. 14-0222/AF”

  1. RKincaid3 (RK3PO) says:

    Query:  how does one overcome a higher burden of proof–BRD–with a lower burden–preponderance–tautologically (and practically) speaking?  If memory serves, the 2007 Art 120 so-called “double burden shift” that was struck down after several years suffered the same fatal legal (and logical) defect since the lower burden could NEVER trump the higher burden.  Why would the judge–the allegedly smartest person in the room–ever give such an instruction?
    What am I missing here?

  2. Zachary D Spilman says:

    You’re referring to the burden shift for lack of mental responsibility, RKincaid3 (RK3PO)? It’s not an issue because of the difference between a defense and an affirmative defense. As I wrote in my argument preview:

    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.

    The judge’s instruction treated involuntariness (by automatism) as an affirmative defense. This had the effect of eliminating the voluntariness component of a wrongful touching (that is, relieving the Government of its burden to prove the element of wrongfulness). This was – as I wrote – clearly wrong.

  3. RKincaid3 (RK3PO) says:

    As always, Z, many thanks!  I am indeed tracking your point now!  Appreciate it!