CAAF decided United States v. Caldwell, No. 12-353, (opinion) (CAAFlog case page) on April 29, 2013, reversing the NMCCA and finding a substantial basis in law and fact for questioning the Appellant’s plea of guilty to wrongful self-injury without intent to avoid service, in violation of Article 134, UCMJ. CAAF remanded the case to the CCA for further action.

Chief Judge Baker writes for the court, joined by Judge Erdmann and Senior Judge Cox. Judge Ryan dissents, joined by Judge Stucky.

Private Caldwell was convicted pursuant to his pleas, by a special court-martial composed of a military judge alone, of orders violations, larceny, and wrongful self-injury, in violation of Articles 92, 121, and 134, UCMJ, and contrary to his pleas of a separate order violation for wrongfully possession of “spice.” He was sentenced to confinement for 180 days and a bad-conduct discharge. It is the conviction of wrongful self-injury that is the important part of this case:

The appellant was alone in his barracks room, located in Camp Schwab, Okinawa, when he intentionally cut open his wrists with a razor blade, leaving a trail of blood on the barracks floor. At the time of his self-injury, the appellant was in a highly distraught state having just learned that he was being ordered back into pretrial confinement. Gunnery Sergeant (GySgt) C, one of the staff noncommissioned officers in the appellant’s unit, informed the appellant he was going back to the brig and allowed the appellant the privacy to call his parents from his barracks room before processing the appellant for confinement. Moments later, GySgt C returned to the room and discovered the appellant in his injured state. GySgt C administered immediate first aid by wrapping socks around the appellant’s wounds and then called for the assistance of corpsmen, who responded with their medical kits. After the appellant received acute care for his self-inflicted injuries, he was kept for a day in the base hospital’s psychiatric ward for observation before being placed into pretrial confinement.

Caldwell, No. 12-0353/MC, Slip op. at 3-4 (quoting United States v. Caldwell, 70 M.J. 630, 633 (N-M.Ct.Crim.App. 2011)) (citations to record omitted). The NMCCA considered this case twice, once in a three-judge panel and then en banc. In the first review, the panel set-aside the findings of guilty of larceny and self-injury, but affirmed the sentence. The CCA then reviewed the case en banc, and affirmed all of the trial findings and the sentence in a published opinion that included an analysis rejecting a general prohibition against “criminal prosecutions of genuine suicide attempts,” and concluded that “if a convening authority feels it necessary to resort to court-martial to address this type of a leadership challenge, he or she should be allowed to do so, at least until the executive or legislative branches of government have proscribed this approach by law or regulation.” Caldwell, 70 M.J. at 633 (N-M.Ct.Crim.App. 2011).

Then CAAF granted review of a single issue:

Whether, as a matter of law, a bona fide suicide attempt is punishable as self-injury under Article 134.

However, CAAF doesn’t answer this question, but instead finds that:

Appellant’s plea does not establish that his conduct was to the prejudice of good order and discipline in the armed forces, or of a nature to bring discredit upon the armed forces, and thus does not satisfy the elements of the offense. Because we find Appellant’s plea improvident, we need not address the more general and specified question as to whether and when a bona fide suicide attempt would satisfy the elements of an Article 134, UCMJ, offense.

Caldwell, No. 12-0353/MC, Slip op. at 3.

Read more »

CAAF’s Caldwell decision is available here.  Chief Judge Baker wrote for a majority including Judge Erdmann and Senior Judge Cox.  Judge Ryan dissented, joined by Judge Stucky.

CAAF set aside the conviction on case-specific grounds rather than addressing whether attempted suicide could ever be a criminal offense: ”Appellant’s plea does not establish that his conduct was to the prejudice of good order and discipline in the armed forces, or of a nature to bring discredit upon the armed forces, and thus does not satisfy the elements of the offense. Because we find Appellant’s plea improvident, we need not address the more general and specified question as to whether and when a bona fide suicide attempt would satisfy the elements of an Article 134, UCMJ, offense.”

The majority determined that “there is a substantial basis in law or fact to question Appellant’s plea to undermining good order and discipline.”  The court found that the appellant slit his wrists in a “bona fide suicide attempt.”  CAAF rejected the indicia of prejudice to good order and discipline upon which NMCCA had relied in affirming the conviction, including appellant exposing a gunnery sergeant to his bodily fluids, the use of medical supplies by corpsmen responding to the suicide attempt, and the delay of pretrial confinement that resulted from the appellant’s hospitalization as a result of the suicide attempt.  CAAF also held that the “Government has not offered, and the Appellant has not admitted to facts that would make his conduct discrediting.”

Because CAAF held that the providence inquiry didn’t adequately establish one of Article 134′s terminal elements, the court “need not determine whether, as a general matter, a bona fide suicide attempt alone may be service discrediting, or is more properly considered a noncriminal matter requiring treatment not prosecution.”

In dissent, Judge Ryan noted that it’s Congress’s responsibility to enact laws governing the military and that it had done so by enacting Article 134, whose proscriptions can be violated by a suicide attempt.  “While the convening authority’s decision to refer charges against Appellant in the instant case may well be unfair or ill advised, the wisdom of that decision is not within our jurisdiction to review.”  Neither Article 134′s text nor the presidentially prescribed Article 134 offense of self-injury without intent to to avoid service supports a distinction between a bona fide suicide attempt and a suicidal gesture.

Judge Ryan continues, “While I question whether punishing either bona fide suicide attempts or suicidal gestures under Article 134, UCMJ, is wise or fair, that is a determination to be made by the President and Congress, not this Court.  . . . Until Congress or the President takes action with regard to the criminality of bona fide suicide attempts, this Court is bound to apply the law as it currently exists.”  She added that in other Article 134 contexts, the providence inquiry supporting the terminal element would have been deemed sufficient.  Judge Ryan also rejected any legally relevant distinction between bona fide suicide attempts and suicidal gestures.  The dissent concluded that “because the factual circumstances as revealed and admitted to by Appellant objectively support the plea as to each element of self-injury in violation of Article 134, UCMJ, the military judge did not abuse his discretion in accepting Appellant’s guilty plea to this offense as provident under the ordinary standards employed to review this issue.”

I’m abandoning the podcasting effort for now, due to some technological hurdles that I don’t have the time to figure out. Here’s a rundown of oral argument audio from cases heard in November:

CAAF Arguments:

• Wednesday, November 7:
  • United States v. Irizarry, No. 12-0451/AF

• Tuesday, November 13:
  • United States v. Goings, No. 11-0547/AR
  • United States v. Altier, No. 12-0496/NA
  • United States v. Hutchins, No. 12-0408/MC

• Tuesday, November 27:
  • United States v. Cote, No. 12-0522/AF
  • United States v. Caldwell, No. 12-0353/MC

NMCCA Arguments:

• Thursday, November 29:
  • United States v. Moreno

Caldwell Case Response
Here is a brief Op-ed from National Review Online about the criminalization of a suicide attempt at issue in the Caldwell case. 

Manning Unlawful Pretrial Confinement Hearing
Here (AP via Baltimore Sun) and here (LA Times) are coverage of the hearing.  News organizations are waiting for Manning to take the stand, though that seems unlikely given the other testimony in the case.  But nice job creating a buzz defense counsel!

Manning Unlawful PTC Hearing
Here (CBS), here (WaPo), and here (Baltimore Sun) are articles covering the Manning pre-trial hearing on unlawful pre-trial confinement issues.

Caldwell Argument Coverage
Here is Army Times coverage of yesterday’s United States v. Caldwell oral argument. Times writer Andrew Tilghman reports that Caldwell’s attorney argued the injustice of prosecuting a failed suicide attempt, ” “If [Caldwell] had succeeded,like 3,000 service members have in the past decade,he would have been treated like his service was honorable,his family would have received a letter of condolence from the president and his death would have been considered in the line of duty. Because he failed,he was prosecuted.”  Here is our Caldwell coverage page.

Women Sue to Be in Combat
Several reports (e.g. WaPo here) about a lawsuit by a group of four women, including two Marine Corps officers, are suing DoD for moving too slowly in changing service bans on women in combat. The women allege that they have de facto served in combat but are being hurt in career advancement by the policy.

General Allen Investigation Narrows
Here is NYT coverage of the ongoing IG review of emails between General Allen and a Florida woman that worked with CENTCOM senior leaders in a social capacity.

“On January 22, 2010, alone in his barracks room at Camp Schwab, Okinawa, Lazzaric T. Caldwell, a 23-year-old Marine Corps private, slit both his wrists with a razor blade in an effort to take his own life.” Appellant’s Br. at 4. In June of 2010 he was convicted, pursuant to his pleas, of orders violations, larceny, and wrongful self-injury, in violation of Articles 92, 121, and 134, UCMJ, and contrary to his pleas of a separate order violation for wrongfully possession of “spice.” He was sentenced to confinement for 180 days and a bad-conduct discharge.

The NMCCA reviewed these convictions twice. In the first review, a panel of three judges set-aside the findings of guilty of larceny and self-injury, but affirmed the sentence. The CCA then reviewed the case en banc, and affirmed all of the trial findings and the sentence in a published opinion that included this analysis:

As to the public policy argument, we are not persuaded that criminal prosecution of genuine suicide attempts should be prohibited under military law. As both parties note in their briefs, self-injury has long been a chargeable offense in military jurisprudence. We consider the analyses provided by the Court of Military Appeals in United States v. Ramsey, 40 M.J. 71, 75 (C.M.A 1994), and in United States v. Taylor, 38 C.M.R. 393, 395 (C.M.A. 1968) dispositive on the matter.

The decision to prosecute what could be viewed as a bona fide suicide attempt is a matter left to the convening authority’s unfettered discretion. Conceivably, some instances of self-injury or malingering could be concealed in the guise of a sincere suicide attempt. If a convening authority feels it necessary to resort to court-martial to address this type of a leadership challenge, he or she should be allowed to do so, at least until the executive or legislative branches of government have proscribed this approach by law or regulation.

United States v. Caldwell, 70 M.J. 630, 633 (N-M.Ct.Crim.App. 2011) (emphasis added). In Taylor (which did not involve a suicide attempt) the Court of Military Appeals rejected the contention that Congress intended malingering in violation of Article 115 to encompass all self-injury offenses under the UCMJ . In Ramsey, citing its opinion in Taylor, that court explicitly addressed attempted suicide, and determined:

Appellant’s attempted suicide was not the substantive crime he faced; rather, his attempt to kill himself was the basis for his crime of self-inflicting an injury to the prejudice of good order and discipline. If attempted suicide for the purpose to avoid military duty may be a sufficient basis for a charge of malingering, see United States v. Johnson, 26 MJ 415 (CMA 1988), then attempted suicide without such purpose surely may be a sufficient basis for a charge of intentional self-infliction of injury to the prejudice of good order and discipline.

Ramsey, 40 M.J. at 75. The NMCCA issued its en banc opinion on December 27, 2011. The next month the Appellant asked the Judge Advocate General to certify the case to CAAF, but that request was denied. The Appellant then petitioned the court for review, which was granted on July 11, 2012, for the following issue:

Whether, as a matter of law, a bona fide suicide attempt is punishable as self-injury under Article 134.

Read more »

The lead article in the latest issue of Reveille, the newsletter of the ABA’s Military Lawyer Conference (part of the Government and Public Sector Lawyers Division), is headlined:  “DoD General Counsel Directs JSC Review Of Self-Injury Offenses.”  The article reports:

On August 10, 2012, in light of a decision by the U.S. Navy-Marine Corps Court of Criminal Appeals in United States v. Caldwell, 70 M.J. 630 (N-M. Ct. Crim. App. 2011), the General Counsel of the DoD directed the Joint Service Committee on Military Justice to consider amending the Manual for Courts-Martial (MEM) with respect to the offenses of “Self-injury without intent to avoid service”) (Article 134, UCMJ) and “Malingering,” which includes “intentional infliction of self-injury” (Article 115, UCMJ).  Specifically, he asked that as part of DoD’s “ongoing efforts to be sensitive to and address the rising levels of suicide within the military,” the MCM should reflect that evidence that the servicemember’s self-injury was a genuine attempt at suicide be considered as a factor relevant to whether disciplinary action should be taken with respect to these offenses.

As the article also notes, CAAF will hear oral argument in Caldwell on 27 November.

Where all think alike, no one thinks very much.

Although journalist and author Walter Lippmann would have appreciated a splintered NMCCA’s unpublished opinion in United States v. Caldwell, I’m not surprised to see that the court quickly decided on its own motion to reconsider the case en banc.

Private Lazzaric Caldwell, a Marine stationed in Japan and troubled by a host of personal and discipline difficulties, attempted suicide by cutting his wrists.  He had just learned that his commanding officer had ordered him into pretrial confinement.

At court-martial, Caldwell pleaded guilty to order violations, larceny, and self injury.  He pleaded not guilty but was convicted of another specification of an order violation alleging that he used spice.  On appeal, Caldwell raised five assignments of error, among them an assertion that the military judge should have ordered a R.C.M. 706 examination, that the guilty plea to larceny was improvident, and that public policy ought to prohibit conviction for self injury in the case of suicide attempts.  If you’re keeping score at home, that’s three charges, six specifications (it would appear), and five assignments of error.  Now go sharpen your pencil and we’ll add the panel of three CCA judges.

For our purposes, it’s easiest to deal with Senior Judge Maksym’s dissenting opinion first.  Senior Judge Maksym concluded that the trial judge should have ordered a 706 board.  Having reached that conclusion, he was unable to affirm any findings or sentence.

That leaves Senior Judge Booker and Judge Beal to deal with the remaining assignments of error, and when one of them found merit in one, that vote, combined with Senior Judge Maksym’s 706 vote, tipped the balance on the charge.

As Judge Beal would have affirmed all the findings and sentence, the swing vote proved to be Senior Judge Booker’s.  He agreed with the appellant that his role in the larceny of a belt from a retail store–which seemed to essentially amout to a wink and a nod to his girlfriend as she stole the belt–didn’t amount to larceny.  Regarding the self injury charged under Article 134, Senior Judge Booker was unconvinced that the act of self injury in question was sufficently prejudicial to good order and discipline or that it had a tendency to discredit the service.

Because Senior Judge Booker was confident that the military judge would have at least imposed a bad-conduct discharge for the remaining offenses (Caldwell had a prior summary court-martial in his record) the court affirmed the discharge.  The court set aside a 180-day sentence to confinement.  The day after the date of the opinion NMCCA on its own motion ordered reconsideration en banc.