CAAF decided the Army case of United States v. Navarette, 79 M.J. 123, No. 19-0066/AR (CAAFlog case page) (link to slip op.), on August 1, 2019. Without explicitly holding that the Army CCA was wrong to deny the appellant’s request for an examination to determine his mental capacity to participate in the appellate process, a majority of CAAF remands the case to the Army court for further review of the request.

Judge Sparks writes for the court, joined by all but Chief Judge Stucky, who dissents.

Specialist (E-4) Navarette was convicted of a single specification of wrongful distribution of cocaine and sentenced to confinement for 90 days, reduction to E-1, total forfeitures, and a bad-conduct discharge. His defense at trial was that he was entrapped into selling the drugs to impress a pretty girl, and his mental health played a role in the defense (though he did not claim lack of mental responsibility). On appeal, Navarette’s military appellate defense counsel questioned Navarette’s mental capacity to participate in the appellate process and asked for an inquiry into Navarette’s mental health.

A three-judge panel of the Army CCA denied the request for three reasons: first, documents showed that the appellant responded well to mental health treatment; second, Navarette’s counsel had not actually asserted that he is unable to participate in the appeal; and third, Navarette had personally submitted matters to the CCA pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) (holding that a detailed appellate defense counsel must inform the military appellate courts of any issues raised by an appellant, even if the counsel believes they are frivolous). CAAF then granted review of two issues:

I. Whether the Army Court erroneously denied appellant a post-trial R.C.M. 706 inquiry by requiring a greater showing than a non-frivolous, good faith basis articulated by United States v. Nix, 15 C.M.A. 578, 582, 36 C.M.R 76, 80 (1965).

II. Whether the Army Court erred when it held that submitting matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), was evidence of Appellant’s competence during appellate proceedings.

Judge Sparks and the majority, however, “opt not to directly answer the granted issues,” slip op. at 2, because of “two concerns surrounding Appellant’s medical condition that we feel should be more thoroughly addressed to ensure a proper Article 66, UCMJ, review,” slip op. at 6. Chief Judge Stucky dissents, observing that:

the majority instead remands to the lower court without deciding that it abused its discretion and without telling it what standard it should apply. As the issue was granted, briefed, and argued, I see no reason not to provide that guidance, lest we need to return to this issue in this case again, further elongating these proceedings.

Diss. op. at 7.

Judge Sparks’ majority opinion explains that “R.C.M. 706 governs trial level inquiries into the mental capacity of an accused,” and “R.C.M. 1203(c)(5) allows that an appellate authority may order a psychiatric evaluation in accordance with R.C.M. 706 if a ‘substantial question is raised as to the requisite mental capacity of the accused.'” Slip op. at 4. Furthermore:

The requisite capacity contemplated by R.C.M. 1203(c)(5) is the capacity to “conduct and cooperate intelligently in the appellate proceedings.” “In the absence of substantial evidence to the contrary, the accused is presumed to have the capacity to understand and to conduct or cooperate intelligently in the appellate proceedings.” Id. Thus, the rule requires that an appellant establish a nexus between his mental impairment and his ability to participate intelligently in the proceedings.

Slip op. at 4-5 (emphasis added). The majority’s first concern is that such a nexus has not been established:

an appellant must, at a minimum, articulate how his mental condition prevents him from being able to understand or participate in the proceedings. Without such a nexus, Appellant does not raise a “substantial question” as to his mental capacity. Here, Appellant has yet to articulate how his mental condition affects his ability to participate in his appellate proceedings, and it was not an abuse of discretion for the lower court to require him to do so.

. . . we note the absence of even a prima facie statement by counsel or another witness that there is reason to question Appellant’s competence to participate in his appeal.

Slip op. at 6-7. But a footnote explains that CAAF has never explicitly required that an appellant establish such a nexus, and so the majority remands the case to the Army CCA to give Navarette’s defense counsel a chance to do so:

We recognize that, prior to this opinion, we have never explicitly held that such a nexus is required. It is appropriate given R.C.M. 1203(c)(5)’s mandate that “[a]n appellate authority may not affirm the proceedings while the accused lacks mental capacity to understand and to conduct or cooperate intelligently in the appellate proceedings” to afford Appellant the opportunity to establish this nexus.

Sliip op. at 8 n.7 (marks in original).

The majority’s second concern is that the Army CCA did not properly consider the evidence it had about Navarette’s mental illness. Judge Sparks writes:

Our second concern is that it is not clear the lower court appropriately considered the degree to which Appellant suffered from serious mental illness that may have impacted his decision-making capacity during the period of appellate representation. The discharge summary and letter from Appellant’s treating psychiatrist report ongoing and long-term struggles with mental health. As noted earlier, Appellant was involuntarily hospitalized March 26, 2018, to April 2, 2018, and April 7, 2018, to April 22, 2018. Appellant’s third, nearly seven-week long involuntary hospitalization covered a period of time from May 9, 2018, through June 26, 2018. Two of these periods of hospitalization appear to have occurred during the time appellate defense counsel was preparing the brief filed on April 27, 2018. With regard to the longest period of hospitalization, Appellant’s treating psychiatrist reported that, upon admission, he demonstrated “symptoms of profound levels of thought and behavioral disorganization” which included “severe loss of impulse control, confusion, [and] delusional and grandiose thinking.” Though we recognize that the discharge paperwork indicated Appellant was responding to treatment at the time of his release, we are not yet convinced that Appellant’s significant mental health struggles during the period of appellate representation were appropriately considered by the lower court.

Slip op. at 7 (marks in original). That leads the majority to remand the case to “give the lower court the opportunity to more fully evaluate Appellant’s R.C.M. 1203 motion.” Slip op. at 8.

Chief Judge Stucky’s dissent criticizes the majority for its approach, as he is “troubled by the manner in which the majority disposes of this case.” Diss. op. at 1. He writes:

Appellant is clearly deeply troubled, and I question how the lower court could conclude on the facts before it that there was not a substantial question about his competence. But I am more troubled by this Court’s decision not to determine whether or not the lower court abused its discretion. That is, in my view, the only appropriate course here. Instead, however, the Court remands the case to afford appellate defense counsel a fifth bite at the proverbial apple for reasons that are, at best, strained.

Diss. op. at 3-4 (emphasis in original).

Chief Judge Stucky then focuses on the requirements for an appellate-stage inquiry into mental capacity, writing that R.C.M. 1203:

clearly and unambiguously requires the Appellant, through counsel, to raise a “substantial question” as to his “present” competence—his “capacity to understand and to conduct or cooperate intelligently in appellate proceedings.” A nexus, in other words. It is inconceivable that any litigant or judge involved in this case has any other understanding of this rule, and I struggle to believe that anyone could reasonably think Appellant is urging a contrary interpretation. If there were any doubt about the meaning of this provision, our case law is unequivocal: mere diagnosis with a mental health condition, even bipolar disorder, is not on its own sufficient to require a sanity board. See, e.g., United States v. Inabinette, 66 M.J. 320 (C.A.A.F. 2008); United States v. Shaw, 64 M.J. 460 (C.A.A.F. 2007); Young, 43 M.J. 196. There must be substantial evidence that any mental condition interferes with (in fact, disables) his capacity to understand and participate in the proceedings.

Diss. op. at 5. But Chief Judge Stucky also explains that:

the nexus need not actually be established—an appellant need only raise a substantial question as to that nexus. The issue is not whether Appellant’s condition rendered him incompetent to participate in appellate proceedings; that is, after all, to be decided by the court after the completion of a sanity board. The issue is, rather, whether the evidence of Appellant’s condition raises a substantial question as to his present competence.

Diss. op. at 6 (emphasis in original). That seems to be a clear break with the majority opinion, in which Judge Sparks writes that “the rule requires that an appellant establish a nexus,” slip op. at 5, and not merely raise a substantial question as to a nexus. But Chief Judge Stucky sees no conflict with anyone, writing that “on these points of law, it does not appear that I am in meaningful disagreement with the majority, the CCA, Appellant, or the Government.” Diss. op. at 6.

Assuming, however, that CAAF is in total agreement that an inquiry must be ordered whenever there is a substantial question as to the appellant’s capacity to conduct and cooperate intelligently in the appellate proceedings, Chief Judge Stucky observes that:

the divergence must be over what sort of showing must be made to establish that substantial question, and the standard the CCA must apply in evaluating that showing. The latter, despite being a granted issue here, goes unanswered by the majority, leaving the CCA to repeat a possibly erroneous analysis on remand.

Diss. op. at 6-7. Put differently, it’s not clear what constitutes a substantial question as to an appellant’s capacity.

Chief Judge Stucky offers two possibilities. The first is “an independent, subjective determination by the CCA that a substantial question [as to capacity] has or has not been raised.” Diss. op. at 7-8. The second is “whether Appellant’s claim rises to the level of frivolity or bad faith.” Diss. op. at 8 (citation omitted). See also diss. op. at 7 (“Appellant contends that a request for a sanity board should be granted if the request is nonfrivolous and made in good faith. . . . The Government agreed that this is the standard.”). Chief Judge Stucky finds that the Army CCA abused its discretion under either standard, and he criticizes the majority for “remand[ing to the lower court without deciding that it abused its discretion and without telling it what standard it should apply.” Slip op. at 7. But it’s also not entirely clear what standard Chief Judge Stucky believes is the right one:

Turning to the question of what a movant must show to warrant a sanity board under the applicable standard, I see no need for complicated or sui generis burdens. The movant will present his or her evidence, and, in the opinion of the CCA, subject to review for abuse of discretion by this Court, that evidence will satisfy the applicable standard or it will not. Simple enough.

I share the majority’s frustration that appellate defense counsel refused to articulate a personal concern about Appellant’s competence based on their interactions. Yet his failure to do so simply detracts from (or, perhaps more accurately, fails to add to) the weight of the evidence in support of Appellant’s motion. If, as a result of that choice, the evidence is such that Appellant has not met his burden, the CCA did not abuse its discretion and we should affirm its judgment. If, despite that choice, the evidence is still strong enough to meet his burden, the CCA did abuse its discretion, and an R.C.M. 706 inquiry should be ordered.

It is not immediately clear whether the majority accepts or rejects my straightforward rule that an appellant’s motion for a sanity board should be granted if, and only if, the evidence he presents meets the applicable standard.

Diss. op. at 8 (emphasis added). Whether that standard is a subjective determination by the CCA of the existence of a substantial question as to mental capacity, or merely a review for frivolity or bad faith in the claim of such a substantial question, is not clear.

Nevertheless, Chief Judge Stucky concludes that the Army CCA abused its discretion and “that an R.C.M. 706 inquiry should be ordered” in this case. Diss. op. at 12.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
• Oral argument audio (wma) (mp3)
CAAF opinion
Blog post: Opinion analysis

Comments are closed.