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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