CAAF’s opinion in United States v. Hayes, No. 11-5003/NA, may turn out to be one step forward, two steps back, in the continuing evolution of the Care inquiry. Hayes focuses on the availability of a duress defense when an accused is faced with a person threatening to commit suicide, and was certified to CAAF by the Navy after the NMCCA set aside the findings (entered in accordance with the pleas of the accused). CAAF agreed that the NMCCA erred and reversed, however in a unanimous decision (Stucky, J. concurring) CAAF rejected the government’s argument that an accused must establish a prima facie defense, either to create a possible defense (obligating the trial military judge to conduct an inquiry) or to create a substantial conflict with the plea (for relief at appeal). CAAF also concluded that R.C.M. 916 does not preclude a duress defense based on the threat of suicide.
The opinion begins with a rejection of the government’s position that an accused must lay out a prima facie defense in order to meet the threshold for further inquiry. Noting that the “possible defense” standard is “intended to serve as a lower threshold … as a trigger to prompt further inquiry pursuant to Article 34, UCMJ, and United States v. Care,” CAAF explains that the government’s position “asks too much.” Slip op. at 9-10. The opinion then restates the distinction between the “possibility of a defense” and the “mere possibility of a defense,” explaining that the military judge must inquire further when the accused raises “a possible defense,” but need not inquire further if there is only “the mere possibility of a defense.” The only thing missing is the familiar admonition, “that’s why he gets the big bucks.”
CAAF then agrees with one of the government’s primary points from the oral argument: that there isn’t enough evidence in this case to create a substantial conflict with the plea. Rejecting the argument by the appellee’s counsel that “there’s no principled reason” why the duress defense should not be available under the circumstances of this case, CAAF identified three essential elements of duress missing from the facts here: (1) immediacy between the accused’s actions and the perceived threat, (2) continuation of the immediacy throughout the conduct in question, and (3) lack of opportunity to avoid the harm threatened. Slip op. at 14. Perhaps these elements will appear again as the Hayes test.
Finally, the court dedicates nearly a third of the opinion to the determination that suicide can, as a matter of law, be the threat necessary to establish the defense of duress, noting that addressing this issue is a matter of prudence and not compelled in light of its decision on the error below (and guaranteeing that government counsel will forever refer to this reasoning as “dicta”). However, the court does not elaborate on the circumstances, clearly missing in this case, that would give rise to the suicide-duress defense.
It is this last analysis that draws the only objection in Judge Stucky’s concurring opinion. Seizing on the term “innocent party” in the R.C.M. 916 definition of duress, he writes: “Although a person threatening suicide may be innocent in some colloquial or moral sense of the word, that person is not innocent as that term has been interpreted in the duress defense situation.” Concurring op. at 2. Judge Stucky concludes his opinion with the statement that “any significant change to the understanding of the common law defense of duress should require legislative enactment.”