CAAFlog » September 2013 Term » United States v. MacDonald

Last term, in United States v. MacDonald, 73 M.J. 426 (C.A.A.F. Aug. 27, 2014) (CAAFlog case page) CAAF unanimously reversed a premeditated murder conviction after concluding that the military judge’s failure to give an involuntary intoxication instruction regarding the appellant’s use of the smoking-cessation drug Chantix was error that was not harmless.

In a McClatchy report available here, it appears that the parties have reached a pretrial agreement in the case:

The promising young soldier who killed a Fresno, Calif., native in a Fort Benning, Ga., barracks could eventually regain his freedom, under a new plea agreement.

In a case that ravaged several families, while it raised provocative questions about the smoking cessation drug Chantix, Army Pfc. George D.B. MacDonald has agreed to plead guilty to the unpremeditated murder of Pvt. Rick Bulmer, according to relatives and other informed individuals who declined to be identified in order to talk about the case.

 

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.

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Audio of this week’s oral arguments is available at the following links:

United States v. MacDonald, No. 14-0001/AR (CAAFlog case page): Argument audio.

United States v. Treat, No. 14-0280/AR (CAAFlog case page): Argument audio.

United States v. Leahr, 14-0265/CG (CAAFlog case page): Argument audio.

CAAF will hear oral argument in the Army case of United States v. MacDonald, No. 14-0001/AR (CAAFlog case page), on Tuesday, May 13, 2014. Appellant was sentenced to life without the possibility of parole for, among other things, the premeditated murder of a fellow soldier by repeatedly stabbing him with a knife while he slept.

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. CAAF will review these decisions, in the following granted 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.

In advance of trial, the trial counsel issued a subpoena to Pfizer for materials related to Chantix that were requested by the Defense. Subsequently, the Defense moved the military judge to order Pfizer to produce the requested materials. Pfizer, in a letter to the trial counsel, objected that the subpoena was “‘overbroad, oppressive, and unreasonable’, inasmuch as it would [have] ‘required the review and production of literally millions of pages of documents, at enormous expense to Pfizer, which is not a party to this case.'” App. Br. at 34. The military judge denied the Defense motion to compel, in part due to the fact that tests of Appellant’s blood and urine conducted by the Armed Forces Institute of Pathology showed no evidence of Chantix in Appellant’s system. However, a private lab found the drug in Appellant’s urine, but the military judge did not change his ruling.

The Army CCA found that this was error, but it concluded that the error was harmless because:

The evidence that appellant appreciated the nature, quality and wrongfulness of his acts is sufficiently powerful and overwhelming to establish the reliability of the conviction in this case, and we find that enforcement of the subpoena and discovery of the information in Pfizer’s and the FDA’s possession would not create a reasonable doubt that did not otherwise exist.

United States v. MacDonald, No. 20091118, slip op. at 11 (A.Ct.Crim.App. Jul 3, 2013) (marks and citation omitted) (link to unpub. op.). Appellant also sought a tailored instruction to the members on findings addressing the defense of involuntary intoxication, but the judge refused to give the instruction. The CCA found that this too was error, but also harmless “in light of the overwhelming evidence that appellant was fully able to form the intent necessary to be held criminally liable.” Id., slip op. at 12-13.

And it’s that overwhelming evidence that is most likely to be the key issue in CAAF’s consideration of this case. The Government’s brief explains:

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Here are links to two news stories by McClatchy reporter Michael Doyle about United States v. MacDonald, No. 14-0001/AR (CAAFlog case page):

CAAF is reviewing two issues in MacDonald:

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.

My argument preview will post tomorrow morning.

Case Links:
• ACCA opinion
• Blog post: CAAF to explore the bounds of possible drug-induced psychosis
• Appellant’s Brief
• Appellee’s (Government) Brief
• Blog post: Media coverage of United States v. MacDonald, No. 14-0001/AR

Last week CAAF granted review in an Army case where Appellant was sentenced to life without the possibility of parole for, among other things, the premeditated murder of a fellow soldier under circumstances described by the ACCA as:

Appellant stabbed another soldier to death under rather mysterious circumstances. There was no apparent motive for the killing, Appellant presented, in essence, an insanity defense, claiming that the drug prescribed to him by Army doctors to help him stop smoking, Varenicline (popularly known as and hereinafter referred to as Chantix), contributed to his lack of mental responsibility for the offenses alleged.

United States v. MacDonald, No. 20091118, slip op. at 1 (A.Ct.Crim.App. Jul 3, 2013) (link to unpub. op.). The granted issues are:

No. 14-0001/AR. U.S. v. George D. MACDONALD. CCA 20091118. Review granted on the following 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 details of the killing, discussed at some length in the CCA’s opinion, are both puzzling and disturbing. The opinion also describes in detail the similarly-disturbing side effects of Chantix. The Defense sought production of documents from Pfizer and then from the FDA regarding these side effects, and the trial counsel issued a subpoena, but the military judge refused to enforce the subpoena. The CCA found this to be an abuse of the judge’s discretion, but harmless. Notably, in making this conclusion, the CCA found:

a reasonable possibility that the information in Pfizer’s and/or the FDA’s possession might establish that Chantix inspired appellant to entertain homicidal ideas and facilitate any tendency toward violent and hostile behavior he otherwise possessed.

Slip op. at 12.

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