CAAF decided the Army case of United States v. MacDonald, No. 14-0001/AR, 73 M.J. 426 (CAAFlog case page) (link to slip op.) on Wednesday, August 27, 2014. The court unanimously finds that the military judge’s failure to give an involuntary intoxication instruction regarding Appellant’s use of the smoking-cessation drug Chantix was error that was not harmless, reversing the decision of the Army CCA that affirmed Appellant’s conviction for the premeditated murder of a fellow soldier by repeatedly stabbing him with a knife while he slept for which, along with, other offenses, Appellant was sentenced to life without the possibility of parole.
Chief Judge Baker writes for the court.
At trial Appellant asserted the defense of lack of mental responsibility, in part because of his use of the drug varenicline (known by the brand name Chantix) to help him quit smoking. Use of Chantix has been associated with homicidal ideations, and part of Appellant’s defense strategy was to claim involuntary intoxication by Chantix as a basis for a lack of mental responsibility. But the military judge quashed a subpoena for records related to Chantix from its manufacturer (Pfizer, Inc.) and also refused to give the members a Defense-requested instruction during the findings phase regarding the defense of involuntary intoxication (though the judge did instruct on the defense of lack of mental responsibility).
The Army CCA affirmed the findings and sentence after determining that quashing the subpoena and failing to give the instruction were errors, but that they were harmless in light of the evidence of Appellant’s ability to appreciate the wrongfulness of his conduct. CAAF then granted review of two 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 second issue is dispositive to the case and the court does not reach the first issue.
The Chief Judge’s analysis begins by noting that even though involuntary intoxication is not one of the defenses listed in R.C.M. 916, that rule “provides an illustrative rather than an exhaustive list of defenses.” Slip op. at 23-24. “In [United States v. Hensler, 44 M.J. 184, 187-88 (C.A.A.F. 1996)], this Court recognized involuntary intoxication as an affirmative defense and the Government has not challenged that legal conclusion at trial or on appeal. Rather, the Government challenge has been to the scope of the defense and its factual applicability in this case.” Slip op. at 24.
The Government’s view of involuntary intoxication (discussed the final paragraphs of my argument preview) what that it was “subsumed within the defense of mental responsibility” for which the members were properly instructed. Slip op. at 28. This position is based on the language of Hensler that “involuntary intoxication is treated like legal insanity. It is defined in terms of lack of mental responsibility.” Hensler, 44 M.J. at 188. But Chief Judge Baker’s opinion explains that there is substantial difference between lack of mental responsibility and involuntary intoxication.