Solving the Mystery of Insanity Law: Zealous Representation of Mentally Ill Servicemembers

Zealous representation of mentally ill servicemembers requires trial defense counsel to be familiar with a complex body of substantive and procedural law. Within this body of law, evidence of the accused's mental illness maybe relevant in five specific areas: mental capacity to stand trial, mental responsibility for offenses, the accused's possession of criminal mens rea, the accused's commission of a voluntary act, and mitigation and extenuation of offenses. Although relevance of the accused's mental illness has deep roots in the common law, the law within the military justice system is unsettled and in need of revision and clarification.

Specifically, this paper argues that those provisions of Rule for Courts-Martial (RCM) 909 that allow for involuntary commitment of the accused prior to referral are contrary to statute and violate the Due Process Clause of the Fifth Amendment. Consequently, RCM 909 must be amended to prevent involuntary commitment of a servicemember prior to referral of charges. In addition, RCM 909 should be amended to restore the convening authority's discretion to dispose of charges as he or she sees fit, removing the rule's provisions that make commitment of a mentally incompetent servicemember mandatory.

Within the law of mental responsibility, the Military Judges' Benchbook defines "severe mental disease or defect" too narrowly. Instruction 6-4 excludes "non psychotic behavior disorders and personality disorders" from the definition of "severe." This exclusionary language is unsupported by Article 50a, UCMJ, and is arguably contrary to military case law. Furthermore, Instruction 6-4 should be improved by defining the key terms of the mental responsibility defense, including "appreciate," "nature and quality," and "wrongfulness."

The Military Justice Amendments of 1986, along with a recent amendment of RCM 916(k)(2), abolished the doctrine of partial mental responsibility. Nevertheless, evidence of the accused's mental illness may still be relevant to whether or not he or she possessed a criminal mens rea at the time of the offenses. This paper proposes a revised Benchbook instruction that removes the inapplicable standard for partial mental responsibility and clarifies the relevance of the accused's mental illness to the government's proof of mens rea.

Finally, the accused may present evidence of mental illness to demonstrate that his or her actions were involuntary. Commonly referred to as the defense of unconsciousness or automatism, neither the Manual for Courts-Martial nor the Military Judges' Benchbook contains a provision defining the defense. Evidence that the accused's actions were involuntary, whether characterized as negating the mens rea or the actus reas, undermines the government's proof of the elements. This paper proposes a new panel instruction to be given when there is evidence that the accused's actions were involuntary.

Note: Abstract extracted from PDF file via OCR.

TJAGSA Thesis 2005 Ball;

Published: The Army Lawyer, December 2005, page 1.