By | 03/17/2018
This entry is part of On Watch 29.1 Spring 2018

by James M. Branum

Introduction

It is easy for attorneys to get into ruts, to assume that we understand everything that we need to know to do our jobs. But for maximum effectiveness as an advocate, we often need to get out of our complacency and intensively study the basics of our practice areas. We may think we may thoroughly know the issues, but in reality there is always more to learn.

For CDC’s[1], this continual self-directed reeducation is essential if we want to be at our best, and I think the most common area of weakness for many CDC’s is understanding the inter-related issues of defenses, mitigation, extenuation and aggravation (which I’ll refer to as “DMEA” in this article).

Some of the reasons that DMEA evidence is essential for the defense include:

  1. Finding a valid defense can lead to dropped charges or an acquittal.
  2. Mitigating and extenuating evidence can lead a command to consider alternatives to a court-martial prosecution.
  3. Mitigating and extenuating evidence can help convince the prosecution to agree to a favorable PTA (pre-trial agreement).
  4. In the event of a conviction, mitigating and extenuating evidence can help convince a military judge or a court-martial panel to deliver a more lenient sentence.
  5. Post-conviction, the effective use of mitigating and extenuating evidence can lead to the granting of relief under RCM 1105, including a reduction in the sentence.
  6. Understanding the last part of DMEA (aggravation) can help the defense to exclude irrelevant aggravating evidence or to be able put the aggravating evidence in a more favorable context.

Due to the breadth of this subject, I will be focusing on discussing these issues in the context of US military absence-related offenses (UCMJ articles 85-87[2]), but of course much of this discussion will be relevant in other contexts as well. I will also be spending significant time with the RCM (Rules for Courts-Martial) itself[3], especially as to how it defines these concepts. I am doing this primarily because knowing the RCM well will allow a defense attorney to effectively argue against prosecution objections regarding relevancy, especially in the context of the pre-sentencing hearing. We are fortunate that the RCM allows a broad range of relevant evidence to be admitted for sentencing purposes, but we need to be ready to argue against prosecution objections when they come; the best way to do this is by citing the RCM itself.

Preliminaries – The elements of UCMJ Articles 85, 86, and 87

To provide a foundation for the rest of this discussion, it may be helpful to briefly outline the key elements of the absence related offenses (UCMJ articles 85-87):

Article 85 – Desertion

The elements of the crime of desertion are:[4]

  1. Unauthorized absence
  2. One of two possible intent elements:
    1. The intent to remain away forever, or
    2. The intent to shirk hazardous or important duty.
  3. The intent elements must have existed at some point before or during the unauthorized absence, but there is no requirement that the intention must continue past that single moment.

To say it another way, desertion consists of AWOL plus one of two intent elements.

Article 86 – Absence without leave

The element of the crime of Absence without Leave[5] is simple:

  1. Not being at the location that a servicemember is legally required to be at.

Article 87 – Missing movement

The elements of the crime of Missing Movement are:

  1. Underlying fact – The servicemember was required to move with a ship, aircraft or unit
  2. Knowledge Element – The servicemember knew of the required movement
  3. Action Element -The servicemember in fact missed the movement.
  4. Intent Element – Missing movement was done through neglect or design.

Arguably the facts that might justify a charge under article 87 might also justify a charge of AWOL (since there is unauthorized absence) or even desertion (assuming that the intent elements are met).

Defenses

Defenses have unfortunately been a neglected area of inquiry in absence-related offenses, however, failing to fully examine the possibility of defenses can lead to several bad outcomes: (1) a defendant may be wrongly convicted of a crime, (2) a defendant’s desired pre-trial agreement (aka “plea bargain”) might be thrown out during a providence inquiry, or (3) the failure to investigate possible defenses might also lead an advocate to miss related extenuating and mitigating factors. It is for these reasons that a thorough investigation of relevant defenses is essential.

The prosecution has the burden of proof, to show “beyond a reasonable doubt” that a relevant defense does not exist, with the exceptions of (1) the defense of “lack of mental responsibility” (a defense for which the accused has the burden of proving the defense by way of “clear and convincing evidence”) and (2) the defenses of mistake of fact as to age or consent in sexual assault cases.

A. The Defense of Justification – RCM 916 (c)

Justification is defined under RCM 916 (c)  as “A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful.” Some common examples of justification are found in the discussion section to RCM 916 (c):

The duty may be imposed by statute, regulation, or order. For example, the use of force by a law enforcement officer when reasonably necessary in the proper execution of a lawful apprehension is justified because the duty to apprehend is imposed by lawful authority. Also, killing an enemy combatant in battle is justified.

By its nature, being absent without leave, requires that the accused’s legal duty (of being at a specified place) not be carried out, so the defense of justification would not normally apply to absence offenses.

B. Obedience to Orders – RCM 916 (d)

According to RCM 916 (d), “It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful. “

In the context of absence offenses, a scenario I have seen multiple times is one in which a NCO (non-commissioned officer) will give a verbal order that a soldier should just “go home and not come back” or something to this same effect (often promising that “you will get your discharge papers in the mail” or “we’ll take care of everything on our end”), but where the order was not in fact authorized by the CO (commanding officer). Arguably a servicemember who did “go home” and not come back was complying with the order given by his or her NCO, however, the question remains as to whether the servicemember “knew” that the orders were unlawful, as well as whether a “person of ordinary sense and understanding would have known” that the orders were not in fact lawful.

This is a tricky issue of fact, as it hinges on two questions: (1) what did the servicemember know about the validity of verbal orders given by an NCO, or[6] (2) what would a hypothetical ordinary “person” know about the validity of verbal orders given by an NCO?

In practice, the first question is only addressed if the defendant him or herself made an admissible statement to indicate their state of mind (as otherwise, mind reading would be required to know the truth), so instead most prosecutors seek to meet their burden of proof by focusing on the “ordinary person” standard, arguing that an ordinary person would have known the orders were not valid. The challenge is that this issue is less than clear, since it refers to an “ordinary person” rather than an “ordinary servicemember.”

For defense attorneys who are seeking to raise this defense for an experienced or higher ranking servicemember, we need to that remember that the verbiage here does not say “ordinary servicemember of the same rank and experience as the accused,” and hence we need to make it clear that an “ordinary person” might well believe that that an order delivered by an NCO would be a lawful order, even if an “average person of the same rank and experience as the accused servicemember” would understand that an informal verbal order given an NCO to “go home and don’t come back” isn’t really a lawful order, especially if it isn’t accompanied by leave papers and/or discharge papers.

While the issue of rank and experience is still relevant for other purposes (i.e. the defense of “ignorance or mistake of fact,” discussed below, has a “reasonableness” element; also in the context of mitigation, extenuation and aggravation, a defendant’s rank and experience may be very relevant), it is not relevant as it relates to the defense of “obedience to orders.” Attempts by the prosecution to argue that rank/experience testimony for this purpose should be objected to, referencing the plain language of RCM 916 (d).

3. Self-Defense – RCM 916 (e)

According to RCM 916 (e), this offense only applies to certain kinds of acts of physical violence so it is not relevant to absence offenses.

4. Accident – RCM 916 (f)

The defense of accident is defined under RCM 916 (f) as: “A death, injury, or other event which occurs as the unintentional and unexpected result of doing a lawful act in a lawful manner is an accident and excusable,” with the discussion section of this rule stating that “The defense of accident is not available when the act which caused the death, injury, or event was a negligent act.”

The only scenario where RCM 916 (f) might be valid for an absence offense, would be a case in which a servicemember was in transit back to post after a time of leave but then was in either a plane, train or bus accident, or in a car accident which was not the result of their neglect (i.e. failing to maintain the car) or unlawful behavior (i.e. speeding, DUI, etc.). Arguably though, this scenario might as easily fall under the defense of “inability” rather than “accident.”

5. Entrapment – RCM 916 (g)

According to RCM 916 (g), the defense of entrapment exists when “the criminal design or suggestion to commit the offense originated in the Government and the accused had no predisposition to commit the offense,” with the discussion section for RCM 916(g) stating that:

The “Government” includes agents of the Government and persons cooperating with them (for example, informants). The fact that persons acting for the Government merely afford opportunities or facilities for the commission of the offense does not constitute entrapment. Entrapment occurs only when the criminal conduct is the product of the creative activity of law enforcement officials. When the defense of entrapment is raised, evidence of uncharged misconduct by the accused of a nature similar to that charged is admissible to show predisposition. See Mil. R. Evid. 404(b).

While it might be possible to imagine a scenario where this defense might be raised (i.e. the case of a verbal statement by an NCO that a servicemember would be “better off” if they just went AWOL”), the problem is that most servicemembers who absent themselves from a unit without permission do so after they have already said or done things that might tend to indicate that they had a “predisposition” to go AWOL. Still this question is a matter of fact, an issue for which the prosecution bears the burden of proof.

6. Coercion or duress – RCM 916 (h)

The defense of Coercion or duress is defined under RCM 916 (h) as:

It is a defense to any offense except killing an innocent person that the accused’s participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately suffer serious bodily injury if the accused did not commit the act. The apprehension must reasonably continue throughout the commission of the act. If the accused has any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person to the harm threatened, this defense shall not apply.

The most common scenario that this defense to AWOL might apply to, would be cases in which the accused was suicidal, with the accused believing that they either must leave their unit or they would end up killing themselves. The problem from a defense perspective is often a matter of timing, in other words, did the accused believe that he or she was in fact going to kill themselves immediately if they did not leave their post? A generalized fear of committing suicide at some point in the future is not enough to prove up this defense. Also, even if the fear of death was immediate in nature, the defense would not exist if there was any reasonable alternative to being absent, such as reporting immediately to the Emergency room or law enforcement that one is having suicidal ideations. These challenges (immediacy and the lack of reasonable alternatives) are a difficult barrier to get past, however we need to remember that: (1) the prosecution has the burden of proof, and (2) even if the prosecution prevails in deflating the defense of duress, this evidence is still useful as mitigation and extenuation for later sentencing purposes.

7.  Inability – RCM 916(I)

RCM 916 (i) states that “It is a defense to refusal or failure to perform a duty that the accused was, through no fault of the accused, not physically or financially able to perform the duty.”

The challenge with this defense is that it requires that the inability (either physical or financial) must not be through the “fault of the accused.” So, if a servicemember voluntarily spent every penny of their funds while on leave and had no funds to buy a bus ticket back to post, the defense of inability would not exist, however, if the servicemember had sufficient money to purchase a bus ticket but was robbed on the way to the bus station, then the defense would exist.

Other plausible inability defense scenarios that may apply to absence cases would include: (1) bad weather and natural disasters, (2) physical injuries (again by no fault of the accused), (3) being kidnapped, and (4) being involuntarily intoxicated (such as being “slipped a roofie”).

With regards to attempting to apply this defense to the issue of mental health making it impossible for a servicemember to return, RCM 916 (i) only discusses the issue of when a servicemember is “physically or financially” unable to perform a duty, not “mentally” unable, which might indicate the drafters of the RCM intended for the defense of “lack of mental responsibility” to be used to cover this scenario; yet, it might make sense to argue that modern brain science (including the use of functional MRI) shows that the physical structure of the brain affects cognitive patterns and decision making,[7] especially for people with neurodevelopmental differences[8] (such the autism spectrum[9]) but also for people who have suffered from TBI (traumatic brain injury).[10] While it may seem like a long-shot to prove that a defendant’s head injury or other physical brain structural issue made the defendant “unable” to perform their duties, the burden of proof is on the prosecution to prove that the defense does not exist, while the seemingly more straight-forward defense of “lack of mental responsibility” is one in which the burden of proof is reversed.

8. Ignorance or mistake of fact.

8. IGNORANCE OF MISTAKE OF FACT RCM 916(J)

RCM 916 (j) states that:

Generally: Except as otherwise provided in this subsection, it is a defense to an offense that the accused held, as a result of ignorance or mistake, an incorrect belief of the true circumstances such that, if the circumstances were as the accused believed them, the accused would not be guilty of the offense. If the ignorance or mistake goes to an element requiring premeditation, specific intent, willfulness, or knowledge of a particular fact, the ignorance or mistake need only have existed in the mind of the accused. If the ignorance or mistake goes to any other elements requiring general or intent or knowledge, the ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. However, if the accused’s knowledge or intent is immaterial as to an element, then ignorance or mistake is not a defense.

The discussion section of the text of RCM 916 (j) provides some specific discussion on the issue of absence offenses (emphasis added is my own):

Examples of ignorance or mistake which need only exist in fact include: ignorance of the fact that the person assaulted was an officer; belief that property allegedly stolen belonged to the accused; belief that a controlled substance was really sugar. Examples of ignorance or mistake which must be reasonable as well as actual include: belief that the accused charged with unauthorized absence had permission to go; belief that the accused had a medical “profile” excusing shaving as otherwise required by regulation. Some offenses require special standards of conduct (see, for example, paragraph 68, Part IV, Dishonorable failure to maintain sufficient funds); the element of reasonableness must be applied in accordance with the standards imposed by such offenses.

The section emphasized in the quotation above directly relates to the hypothetical scenario discussed above, in which the accused was given an order to leave post, but that the order was given someone without the legal authority to give this order. Based on the discussion of RCM 916 (j), the accused’s actual beliefs are not sufficient alone to prove this defense, but rather it also must be shown that the belief was “reasonable.” And unlike the defense of “obedience to orders” (discussed above), there is no definition of in whose eyes the reasonableness is judged by. Is it a hypothetical “ordinary person” or an “ordinary servicemember” or is the issue of reasonableness judged based on whether the belief would be reasonable in the eyes of a servicemember of the same rank and experience as the accused? Since RCM 916 (j) does not answer this question, defense attorneys should free to argue for a more permissive standard (i.e. “ordinary person”) but should not be surprised if the prosecution argues for a strict definition of what a reasonable belief might be.

9.  Lack of mental responsibility- RCM 916 (k)

RCM 916 (k) states that:

(1) Lack of mental responsibility. It is an affirmative defense to any offense that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts. Mental disease or defect does not otherwise constitute a defense.

(2) Partial mental responsibility. A mental condition not amounting to a lack of mental responsibility under subsection (k)(1) of this rule is not an affirmative defense.

(3) Procedure.

(A) Presumption. The accused is presumed to have been mentally responsible at the time of the alleged offense. This presumption continues until the accused establishes, by clear and convincing evidence, that he or she was not mentally responsible at the time of the alleged offense.

(B) Inquiry. If a question is raised concerning the mental responsibility of the accused, the military judge shall rule finally whether to direct an inquiry under R.C.M. 706. In a special court-martial without a military judge, the president shall rule finally except to the extent that the question is one of fact, in which case the president rules subject to objection by any member.

(C) Determination. The issue of mental responsibility shall not be considered as an interlocutory question.

To summarize and breakdown the elements of this rule, a defendant who would be protected by the defense of “lack of mental responsibility,” must satisfy the following three requirements:

1. The accused must have had a “mental disease or defect” at the time that the alleged crime was committed.

2. The mental disease or defect must be “severe” in nature, and

3. The mental disease or defect must have made the defendant “unable to appreciate the nature and quality of the wrongfulness of his or her acts,” at the time that the alleged act was committed.

If the accused does not meet these three requirements, then there would be no defense of “lack of mental responsibility.” However, the accused may be able to still prove that he or she had a “partial lack of mental responsibility” which does not serve as an affirmative defense but can be used to show that a required state of mind (mens rea) was not in effect at the time of an offense. This may be helpful for defense attorneys in contesting the intent elements of the charges of desertion and missing movement.

In practical terms, many defendants have documentable mental health issues at the time they leave their posts without permission (satisfying element #1), however it is difficult to prove that these issues were “severe” in nature (a subjective issue of fact, not given a definition) or that these issues made the defendant “unable to appreciate the nature and quality of the wrongfulness of his or her acts.” And given the defense having the burden of proof for this defense (remember this defense is one of two exceptions to the general rule that the prosecution has the burden of proof with regard to defenses), raising this defense is seldom successful.

Nonetheless, defense advocates should not fail to fully investigate whether the defense might apply and then be ready to raise the issue, most often initially through a pre-trial motion for a sanity board under RCM 706 (a). But we need to be careful to not give our clients false hopes. Many servicemembers go through the sanity boards and are declared to be “mentally responsible,” even though they may in fact be suffering from various serious mental health issues; this injustice can be particularly painful to defendants who are already suffering, so they need to know what to expect.

Finally, it should be said that much of the evidence that might be used to argue for this defense, will likely also be useful as mitigating and extenuating evidence for sentencing[11], so it is never wasted effort to dig deep and attempt to prove this up.

Part 2 will provide detailed discussion of Mitigation, Extenuation and Aggravation.

___

James M. Branum has practiced military defense law since 2006, both in solo practice and through his work as legal director of the Oklahoma City-based Center for Conscience in Action. He is as a past Co-Chair of the Military Law Task Force of the National Lawyers Guild and is the author of the book US Army AWOL: A Practice Guide and Formbook. He lives in Oklahoma City with his wife, son, and two delightful dogs. His website can be found at: www.jmbranum.com.

  1. CDC = Civilian Defense Counsel, these are civilian defense attorneys who appear in military courts-martial.
  2. The UCMJ is contained in Appendix 2 of the Manual for Courts-Martial. The 2016 edition can be found at: https://archive.org/details/ManualForCourtMartial2016
  3. The RCM is contained in part II of the Manual for Courts-Martial. The 2016 edition can be found at: https://archive.org/details/ManualForCourtMartial2016
  4. UCMJ Article 85 mentions two other kinds of desertion, both of which are extremely rare: (1) an officer who leaves his or her post with the intent to remain away forever, after they have submitted a resignation of their commission but before that resignation was accepted, and (2) a servicemember who enlists in another branch of the US military or in a unit of a foreign military, without having the permission to do so. For simplicity’s sake, I will not be discussing these types of desertion outside of this footnote.
  5. Referred to as “AWOL” in the US Army and Air Force and “UA “ in the US Navy, Marine Corps and Coast Guard.
  6. The choice of the conjunction in the quotation from the RCM is important here. If either of these questions are answered in the affirmative, the defense does not stand.
  7. Moskowitz, Clara “Criminal Minds Are Different From Yours, Brain Scans Reveal” LiveScience.com (March 4, 2011) Online at: https://www.livescience.com/13083-criminals-brain-neuroscience-ethics.html
  8. My use of the word “differences” rather “disability” is intentional, since growing evidence indicates that so-called neurodevelopmental disorders are better seen as a set of differences from the norm (with positive and negative aspects) rather than as simply a disability. – For more discussion on this see Stevenson, Nikki “Autism doesn’t have to be seen as a disability or a disorder” The Guardian (July 16, 2015), online at https://www.theguardian.com/science/blog/2015/jul/16/autism-doesnt-have-to-be-viewed-as-a-disability-or-disorder
  9. See Zeliadt, NIcholette “Study unfolds brain structure changes in children with autism” Spectrum News (March 3, 2016) online at: https://spectrumnews.org/news/study-unfolds-brain-structure-changes-in-children-with-autism/
  10. For general discussion on TBI and mental responsibility under the law (in and English context) see: Mantell, Andy, Lucy Underdown and Jane Bennett “Mental Capacity and Traumatic Brain: Injury England’s Legislative Responses” (Presentation from London South Bank University: School of Health and Social Care, 2016) Online at: http://researchopen.lsbu.ac.uk/1631/1/MCA%20and%20TBI%2025_11_16.pdf
  11. One important piece of information: a sanity board gives its final report in two forms, a short form which only answers the questions posed to the board (which is given to both sides) and a long form (which is only given to the defense), which is often very helpful since a defendant may be quoted as saying things (i.e. past drug use) that the defense would not want the prosecution to know about.
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