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.

The underlying authority on which Hensler is based, namely United States v. F.D.L., however, is more nuanced than the segment quoted in Hensler suggests. 836 F.2d at 1117 (citing 73 A.L.R.3d 203–04 (1976)). In that case, the Eighth Circuit held that involuntary intoxication “cases all require a finding that there has been involuntary ingestion of an intoxicant, usually through trickery, and that the defendant was unable to appreciate the nature and quality or wrongfulness of his acts.” F.D.L., 836 F.2d at 1117. Thus, F.D.L. articulates a two-part test for involuntary intoxication. First, that there was an involuntary ingestion of an intoxicant. And second, due to this ingestion, defendant was unable to appreciate the nature and quality or wrongfulness of his acts. This is substantially distinct from a mental responsibility test requiring demonstration of a mental disease or defect and the inability to appreciate the nature and quality or wrongfulness of conduct. To conflate these two defenses is not logical. If the test for involuntary intoxication required a showing of a mental disease or defect in addition to the two-part F.D.L. test, this would essentially be a mental responsibility defense and there would be no reason to utilize an involuntary intoxication defense. Based on the foregoing, we conclude there was not sufficient overlap between an instruction of involuntary intoxication and the given instruction of mental responsibility.

Slip op. at 30-31 (emphasis added). There was no dispute at trial that Appellant used Chantix, and CAAF rejects the Government’s argument that Appellant should have been aware of the possible side effects. Slip op. at 32. So,

Given that a defense of involuntary intoxication is substantially different from a defense of mental responsibility, because it includes a distinct threshold prong, we are unable to conclude it was harmless beyond a reasonable doubt not to instruct the members on this separate defense. Several experts provided “some evidence” that Chantix affected Appellant’s ability to appreciate the nature and quality or wrongfulness of his acts. There was also “some evidence” from Pfizer and the FDA, including the rapidly escalating warnings that culminated in a Black Box warning, that Chantix could have dramatic adverse effects on some patients.

Slip op. at 34. The Chief Judge also gives two reasons why the court rejects the CCA’s conclusion about the overwhelming nature of the evidence:

First, although the evidence that the Government cites could be viewed as compelling evidence that Appellant was mentally responsible for his actions, it does not account for the defense expert testimony that the Chantix may have affected Appellant’s mental state and capacity at the time of the incident such that he was “under the influence” of Chantix. In a related manner, some if not all of the evidence that the Government cites could support an involuntary intoxication defense as well as refute it. For example, Appellant’s statements to his girlfriend could manifest premeditated intent, or they could manifest the sort of uncontrolled “homicidal ideation” Appellant argues Chantix may induce. That leads to the second reason we are not ultimately persuaded that the evidence was sufficiently overwhelming on the question of intent to negate any error. Where the evidence can support multiple arguments, the accused is entitled to have the trier of fact, in this case the members, and not an appellate court, hear and test the credibility of the evidence based on proper instructions.

Slip op. at 36.

At the end of my argument preview I made two predictions about the issues that would decide this case. They were 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, and whether an appellate court, with a sterile record, can fairly make such a harmlessness determination about the weight of the evidence. The Chief Judge’s unanimous opinion tracks this prediction. CAAF clarifies that the defense of involuntary intoxication does not require that accused suffered from a mental disease or defect, and it refuses to substitute its own judgment for that of the members.

And while CAAF avoids the discovery issue in its ruling, the court authorizes a rehearing. So Appellant’s quest for records from Pfizer may yet require CAAF’s attention.

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
Oral argument audio
CAAF opinion
Media report: New trial ordered for soldier who says anti-smoking drug drove him to kill
Blog post: Opinion analysis

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