U.S. v. Shaw, 64 M.J. 460

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. if an accused sets up matter inconsistent with the guilty plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea
2. when, either during the plea inquiry or thereafter, and in the absence of prior disavowals, circumstances raise a possible defense, a military judge has a duty to inquire further to resolve the apparent inconsistency; the existence of an apparent and complete defense is necessarily inconsistent with a plea of guilty
3. military judges should take particular care to make sure that considerations of mental health do not put the providence of a guilty plea at issue; RCM 706(a) imposes an obligation on a military judge to notify the officer authorized to order a mental exam when there is reason to believe that the accused lacked mental responsibility for any offense charged or lacks capacity to stand trial
4. at trial, the military judge may reasonably rely on both a presumption that the accused is sane and the long-standing principle that counsel is presumed to be competent; moreover, the President has assigned the burden of proving lack of mental responsibility to the accused; thus, when the accused is presenting his sentencing statement through or with the assistance of counsel, the military judge may properly presume, in the absence of any indication to the contrary, that counsel has conducted a reasonable investigation into the existence of the lack of mental responsibility defense; this is particularly so when a matter raised during sentencing does not in and of itself present an apparent or possible defense
5. it may be prudent for a military judge to conduct further inquiry when a significant mental health condition is raised during a guilty plea inquiry in light of military law and practice regarding mental health issues and to obviate such issues on appeal; whether further inquiry is required as a matter of law is a contextual determination

Core Criminal Law Subjects: Defenses: Lack of Mental Responsibility

1. in military law, given that lack of mental responsibility is an affirmative defense, mental health issues bear special status; this is reflected in RCM 706 and MRE 302; this status in part reflects the recognition that combat and other operational conditions may generate or aggravate certain mental health conditions, such as post-traumatic stress disorder; as a result, military judges should take particular care to make sure that considerations of mental health do not put the providence of a guilty plea at issue
2. RCM 706(a) imposes an obligation not only on defense counsel but also on any commander, investigating officer, trial counsel, military judge, or member to notify the officer authorized to order a mental exam when there is reason to believe that the accused lacked mental responsibility for any offense charged or lacks capacity to stand trial; MRE 302(a) provides a limited privilege to the accused who participates in an RCM 706 examination even if a rights warning has been provided under Article 31(b), UCMJ; these two examples distinguish mental responsibility from other affirmative defenses
3. the accused is presumed to be mentally responsible at the time of the alleged offense
4. at trial, the military judge may reasonably rely on both a presumption that the accused is sane and the long-standing principle that counsel is presumed to be competent; moreover, the President has assigned the burden of proving lack of mental responsibility to the accused; thus, when the accused is presenting his sentencing statement through or with the assistance of counsel, the military judge may properly presume, in the absence of any indication to the contrary, that counsel has conducted a reasonable investigation into the existence of the lack of mental responsibility defense; this is particularly so when a matter raised during sentencing does not in and of itself present an apparent or possible defense
5. bipolar disorder, like other disorders, may exist with enough severity to raise a substantial question regarding the issue of the accused’s mental responsibility; however, the disorder does not negate responsibility in all cases
6. it may be prudent for a military judge to conduct further inquiry when a significant mental health condition is raised during a guilty plea inquiry in light of military law and practice regarding mental health issues and to obviate such issues on appeal; whether further inquiry is required as a matter of law is a contextual determination

Trial Stages: Merits: Guilty Pleas

1. if an accused sets up matter inconsistent with the guilty plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea
2. when, either during the plea inquiry or thereafter, and in the absence of prior disavowals, circumstances raise a possible defense, a military judge has a duty to inquire further to resolve the apparent inconsistency; the existence of an apparent and complete defense is necessarily inconsistent with a plea of guilty
3. military judges should take particular care to make sure that considerations of mental health do not put the providence of a guilty plea at issue
4. in this guilty plea case, appellant’s statement during his unsworn statement that he had been diagnosed with bipolar disorder did not set up matter raising a possible defense in the guilty plea context; rather it presented only a mere possibility of a defense; there was no factual record developed during or after the trial substantiating appellant’s statement or indicating whether and how bipolar disorder may have influenced his plea; nor did appellant’s conduct during the plea inquiry raise concerns that might have suggested to the military judge that appellant lacked the capacity to plead; moreover, appellant has not asserted, nor does his statement reflect, that he was unable to appreciate the nature and quality or wrongfulness of his acts as a result of a mental disease or defect; thus, appellant’s statement without more, did not raise an apparent inconsistency with his plea, and the military judge did not abuse his discretion in not conducting a further inquiry
5. it may be prudent for a military judge to conduct further inquiry when a significant mental health condition is raised during a guilty plea inquiry in light of military law and practice regarding mental health issues and to obviate such issues on appeal; whether further inquiry is required as a matter of law is a contextual determination

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion
2. pleas of guilty should not be set aside on appeal unless there is a substantial basis in law and fact for questioning the guilty plea
3. once the military judge has accepted a guilty plea as provident and has entered findings based on it, an appellate court will not reverse that finding and reject the plea unless it finds a substantial conflict between the plea and the accused’s statements or other evidence of record; a mere possibility of such a conflict is not a sufficient basis to overturn the trial results