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:

On 18 May 2008, appellant, a permanent party at Fort Benning, Georgia, entered an open-bay barracks and discovered Private (PVT) Rick Bulmer asleep in his bunk.  PVT Bulmer, who had been excused from training due to a leg injury, was the only other person in the bay with appellant. Appellant attacked the sleeping PVT Bulmer with a double-edged knife, stabbing or cutting him over 50 times. PVT Bulmer eventually died from his wounds. Appellant was interrupted by PVT Justin Harrison and PVT Kyle Hansard, who were alerted by PVT Bulmer’s screams. When PVT Harrison called out to appellant, appellant stopped stabbing PVT Bulmer and charged at PVT Harrison with the knife. Although appellant’s hand connected with PVT Harrison’s body, the knife did not. Appellant then ran out of the bay and back to his room, whereupon he showered off PVT Bulmer’s blood, put his bloody clothes and the knife into a knapsack, and fled with the knapsack to an isolated, densely-wooded part of post.

Staff Sergeant Martin Jones was dispatched to search for appellant. He soon found appellant near the wood line and confronted him. After telling SSG Jones he didn’t “have time to deal with [him]” because he was going to buy a pair of sneakers, appellant took off running into the woods. Staff Sergeant Jones gave chase and eventually captured appellant. Because appellant continuously struggled to break free, SSG Jones held appellant until the police arrived. Fort Benning police officer Corey Michael discovered the bloody clothes in appellant’s knapsack.

Appellant voluntarily waived his Article 31(b), UCMJ, rights at CID and confessed to killing PVT Bulmer. Appellant explained that he was “stretched thin” due his extended stay as a private at Fort Benning. He also complained of being abused by drill instructors. 22 Appellant wrote that he spent 30 seconds contemplating PVT Bulmer’s murder, and generally had been thinking about killing someone for the previous five days.

Gov’t Br. at 2-4. The Government’s brief also notes that:

Appellant was prescribed Chantix on 18 April 2008. On 17 May 2008, one day before the murder, appellant asked his girlfriend, “If I killed someone would you still love me?” According to appellant’s own expert, someone operating under a delusion would have thought that he was supposed to kill. Yet appellant’s question demonstrates that he knew murder was wrong and contrary to societal mores, and that he was risking disapproval from someone who loved him.

Gov’t Br. at 21. The Government’s position is that these facts undercut any defense based on mental state, and that the circumstances of the killing “overwhelmingly demonstrates that [Appellant] appreciated the nature and quality or wrongfulness of his acts.” Gov’t Br. at 6. And it’s a strong argument.

But Appellant’s brief explains that:

[T]here may be evidence in [the subpoenaed] records that reveals that [Appellant’s] experience was remarkably consistent with the experiences of others who had adverse reactions to Chantix consistent enough to convince the members that he was not mentally responsible. Yet the Army Court found, with apparent clairvoyant certainty, that there is nothing in any of those documents that might be helpful to the defense.

App. Br. at 44. Significant in this assertion is the fact that the records were never obtained (because of the erroneously – according to the CCA – quashed subpoena), and the fact that the Army CCA rejected Appellant’s efforts to obtain discovery of the records at the appellate level. But the Government’s brief identifies portions in the record that indicate that the defense expert witness had all of the data he needed to give his opinion. So even if the evidence of guilt is not so overwhelming as to render the discovery error harmless, the error might still be harmless because the defense team had everything it needed.

On the involuntary intoxication instruction issue, the Army CCA explained that:

The evidence presented at trial raised the involuntary intoxication defense. The defense of involuntary intoxication is similar to that of lack of mental responsibility in that the defense must prove by clear and convincing evidence that he did not appreciate the nature and quality or wrongfulness of his acts, but different in that he need not prove that he suffered a severe mental disease or defect, but rather that he was intoxicated by some substance that results in what amounts to legal insanity.

MacDonald, No. 20091118, slip op. at 12. The Government disputes this statement of the law, and disagrees with the CCA’s finding that the failure to give the instruction was error. See Gov’t Br. at 43. The Government asserts that “the proposed instructions disregard the requirement that the fact-finder determine whether the accused was suffering from a severe mental disease or defect…” Gov’t Br. at 46. But whether an involuntary intoxication defense requires the defense to prove a mental disease or defect caused by the intoxication, or just requires the defense to prove that the intoxication prevented the accused from appreciating the nature and quality or wrongfulness of his act, will likely be at the heart of CAAF’s resolution of this case.

Still, the CCA found the failure to give the instruction to be harmless because “in light of the entire record, we find nothing credible about any indication that Chantix or appellant’s mental condition prevented or undermined his ability to form the specific intent necessary for the crimes alleged.” MacDonald, No. 20091118, slip op. at 14. Perhaps the biggest question in this case will be whether an appellate court, with a sterile record (or one infected by the erroneous failure to obtain materials requested by the losing party), can fairly make such a determination.

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
Blog post: Argument preview

3 Responses to “Argument Preview: United States v. MacDonald, No. 14-0001/AR”

  1. Charlie Gittins says:

    Sounds like this one is ripe for a DuBay, to get the documents and see what they actually say.

  2. Tom Grieger says:

    They could have gone directly to the FDA for a breakdown of adverse drug reactions.  There are also third party sites the collect and make available such information.  There are approximately 3,856 reports of aggression [1.5% or all reported events] – similar numbers for suicidal ideation

  3. RY says:

    It can be difficult sometimes to read the tea leaves on CAAF grants in cases like this.  When we’re dealing with a LWOP sentencing, a rarity in the military, some of the judges feel a sense of duty to hear the case even if they don’t actually see an issue given what’s at stake and because there can be no appeal to SCOTUS without a grant, at least that’s how I’ve understood their comments in various conferences I’ve attended.  True, they could always summarily affirm but there are a few issues that at least merit discussion.  IMHO, I don’t think the discovery gets much traction as DC is often in a catch-22 to demonstrate what was significant about evidence they never got.  I suspect the required instruction is more of a concern and agree the main result of this case may be clarification on the rather unique defense of involuntary intoxication and what the standard is.  Interestingly, if the MJ didn’t understand the standard or if the CCA got it wrong, as I suspect they did, how can we surmise BRD what a jury would have done with it?