The US v. Bales town crier (AKA his attorney) recently disclosed to the press that his client would not participate in a “Sanity Board.” Let’s talk about this for a bit.

The military sanity board. Such an interesting little tool included in the Rules for Court-Martial. The rule is as follows (complete and unabridged). Note: The Convening Authority in the Bales case is the Commanding General for Joint Base Lewis-Mcchord.

Rule 706. Inquiry into the mental capacity or mental responsibility of the accused

(a) Initial action. If it appears to any commander who considers the disposition of charges, or to any investigating officer, trial counsel, defense counsel, military judge, or member that there is reason to believe that the accused lacked mental responsibility for any offense charged or lacks capacity to stand trial, that fact and the basis of the belief or observation shall be transmitted through appropriate channels to the officer authorized to order an inquiry into the mental condition of the accused. The submission may be accompanied by an application for a mental examination under this rule.

Discussion

See R.C.M. 909 concerning the capacity of the accused to stand trial and R.C.M. 916(k) concerning mental responsibility of the accused.

(b) Ordering an inquiry.

(1) Before referral. Before referral of charges, an inquiry into the mental capacity or mental responsibility of the accused may be ordered by the conven- ing authority before whom the charges are pending for disposition.

(2) After referral. After referral of charges, an inquiry into the mental capacity or mental responsibility of the accused may be ordered by the military judge. The convening authority may order such an inquiry after referral of charges but before beginning of the first session of the court-martial (including any Article 39(a) session) when the military judge is not reasonably available. The military judge may order a mental examination of the accused regardless of any earlier determination by the convening authority.

(c) Inquiry.

(1) By whom conducted. When a mental examination is ordered under subsection (b) of this rule, the matter shall be referred to a board consisting of one or more persons. Each member of the board shall be either a physician or a clinical psychologist. Normally, at least one member of the board shall be either a psychiatrist or a clinical psychologist. The board shall report as to the mental capacity or mental responsibility or both of the accused.

(2) Matters in inquiry. When a mental examina- tion is ordered under this rule, the order shall contain the reasons for doubting the mental capacity or mental responsibility, or both, of the accused, or other reasons for requesting the examination. In addition to other requirements, the order shall require the board to make separate and distinct findings as to each of the following questions:

(A) At the time of the alleged criminal conduct, did the accused have a severe mental disease or defect? (The term “severe mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, or minor disorders such as nonpsychotic behavior disorders and personality defects.)

(B) What is the clinical psychiatric diagnosis?

(C) Was the accused, at the time of the alleged criminal conduct and as a result of such severe men- tal disease or defect, unable to appreciate the nature and quality or wrongfulness of his or her conduct?

(D) Is the accused presently suffering from a mental disease or defect rendering the accused unable to understand the nature of the proceedings against the accused or to conduct or cooperate intelligently in the defense? Other appropriate questions may also be included.

(3) Directions to board. In addition to the requirements specified in subsection (c)(2) of this rule, the order to the board shall specify:

(A) That upon completion of the board’s investigation, a statement consisting only of the board’s ultimate conclusions as to all questions specified in the order shall be submitted to the officer ordering the examination, the accused’s commanding officer, the investigating officer, if any, appointed pursuant to Article 32 and to all counsel in the case, the convening authority, and, after referral, to the military judge;

(B) That the full report of the board may be released by the board or other medical personnel only to other medical personnel for medical purposes, unless otherwise authorized by the convening authority or, after referral of charges, by the military judge, except that a copy of the full report shall be furnished to the defense and, upon request, to the commanding officer of the accused; and

(C) That neither the contents of the full report nor any matter considered by the board during its investigation shall be released by the board or other medical personnel to any person not authorized to receive the full report, except pursuant to an order by the military judge.

Discussion

Based on the report, further action in the case may be suspended, the charges may be dismissed by the convening authority, administrative action may be taken to discharge the accused from the service or, subject to Mil. R. Evid. 302, the charges may be tried by court-martial.

(4) Additional examinations. Additional examinations may be directed under this rule at any stage of the proceedings as circumstances may require.

(5) Disclosure to trial counsel. No person, other than the defense counsel, accused, or, after referral of charges, the military judge may disclose to the trial counsel any statement made by the accused to the board or any evidence derived from such statement.

Discussion

See Mil. R. Evid. 302.

There’s quite a bit there, so let me try to distill it a bit on a more practical scale. Here’s the usual procedure:

  • A sanity board is requested through the convening authority or the military judge.
  • If the defense did not request the board, they are allowed an opportunity to request an amendment to the sanity board order to address their own concerns.
  • A sanity board is ordered or declined.
  • If ordered, it is sent to a military treatment facility’s mental health department to be assigned to a psychologist or psychiatrist. I’ve seen some sanity boards that consisted of only one person. I have also seen ones that involved 2-4. The more serious the charges, the more professionals opine as to mental responsibility.
  • The board reviews the individual’s medical/mental history, the charges, any police reports, and interview the accused in order to ascertain their present and past mental states.
  • They complete two reports. The first merely answers the questions (yes or no) asked in RCM 706(c)(2). This is provided to the government (prosecutors, convening authority). The second report is a detailed account of their process, methodology, findings, interviews, and determinations. It can be as short as a few pages, or it can be exceptionally voluminous. This is ONLY given to the Defense Counsel. Exceptions to this are extremely limited (and likely not to apply in Bales)
  • The long report may need to be disclosed to the government, but only in the event that they intend to rely upon its findings in order to establish a lack of mental responsibility.
  • Total cost to the defense = $0.
  • Defense may request a new sanity board or a reopening of the old sanity board if new evidence or matters are discovered.

There you go. Pretty simple. So, pros and cons?

Pros

  • Free!
  • A detached psychologist or psychiatrist (or several) act as members of the board.
  • They make their decisions in a vacuum. In other words, nobody (defense or otherwise) may influence their process or decision-making-process.
  • The long report is provided only to the defense. If the report sucks (from the perspective of the defense, they can choose to not use it or the members of the sanity board in their defense). If the report is favorable to the defense……well…….then it is favorable. Nothing wrong with something being favorable.
  • Because the team is neutral from the beginning, they make very credible witnesses (if called), unlike your average hired-gun.
  • The prosecution is not privy to the interviews with your client by the board members.
  • The members of the board are occasionally receptive to defense needs.
  • Requests can be made to reopen the board or appoint a new board.

Cons

  • You don’t get to choose the docs. After all, a hired gun will often say what you want them to say, how you want them to say it.
  • You will not know the biases or issues with the assigned psych professionals until after the board is complete.
  • If you choose to use the results of the sanity board at trial, you may need to provide the full results and records to the prosecution. (After all, each affirmative defense comes with an affirmative cost).
  • You aren’t sitting with your client as they are interviewed by the board. You have no idea how much diarrhea of the mouth they may have that day.
  • The members of the sanity board are almost always government employees or members of the military. As such, they might be concerned about their careers and upward mobility.

Now, the defense could hire their own psychologist/psychiatrist. There are a few factors to consider on this one.

  • Costs money.
  • They will likely say what you want them to say. However, they could also be exposed as a hired gun on cross examination. This includes the question “Now, as I understand it you were hired by the defense, but they could have sent this to an impartial sanity board. Right?”
  • Will be countered by a government attorney who is likely not specifically hired to testify.

In this case, the government requested the sanity board from the convening authority. This occurs for two reasons:

  1. They believe that the accused lacks mental responsibility, or
  2. They figured the defense would request it anyway.

More often than not, #2 is the reason for the request, but #1 isn’t out of the question, especially considering what we know about Bales. It is important to know that, even when the government requests the board, the rules on disclosure still apply.

So, in this case, Bales and his attorney have decided to eschew a sanity board.

This is interesting because, in communications with most of my military law buddies (some with as much military law experience as Bales’ attorney has in law experience) out there, the overwhelming thought was to get him a sanity board ASAP.

So, what are the members of the defense thinking? I tried to brainstorm the idea and decided on the following possibilities:

  • They want the sanity board to occur once they receive discovery (because they think the sanity determination will hinge on a piece or pieces of discovery.
  • They believe that the sanity board will not be impartial.
  • They just want to be difficult (as is a tendency with us defense attorneys).
  • They don’t understand the benefit of a sanity board.
  • They think the possible drawbacks are too risky.
  • They think, overwhelmingly, he will be found mentally responsible.

Let’s think about each of these.

I don’t buy the discovery argument. The earlier they get an initial sanity determination, the easier it is to ask for a reopened/new board based on discovery received later in the process. This is a great way to, at a minimum, litter the appellate record with ammunition to be used in the event of an appeal. Also, judge’s tend to be liberal with subsequent sanity board requests. I personally prosecuted a case where the accused repeatedly attempted suicide before his trial. This resulted in 2 delays to allow for reopened sanity boards. If that judge didn’t lose his cool, then I doubt the one eventually assigned to Bales would.

Impartiality. True, the members of the board are going to be government employees (and probably at least one will be an Army officer. However, it will not occur at Joint Base Lewis-Mcchord. It is assigned to Walter Reed Army Medical Center in Washington, DC. This will likely be a team of highly trained psychologists/psychiatrists who have no connection at all to Lewis-Mcchord or the Convening Authority/Prosecutors.

Additionally, the more serious the charges, more professionals tend to be assigned to sanity boards. I wouldn’t be surprised if his board consists of 3-5 professionals, and maybe more. The more professionals, the less the probability of partiality.

Perhaps they just want to be difficult. I’m not above that. However, considering that this has been touted as a case of mental responsibility from the beginning, the chance to prove this assertion should defeat the possible benefits of throwing garbage and trash cans in the way of the prosecution.

Perhaps they don’t understand the nature and benefit of Rule 706 of the Rules for Court-Martial. This is always a possibility since they decided to fire the Major assigned as appointed counsel (an experienced military lawyer by Army standards). At this point, they still maintain the more junior appointed counsel (a Captain), but his ability to contribute meaningfully is questionable considering their treatment of the Major.

There are drawbacks. Every tactic utilized by defense attorneys have drawbacks. It is our job to weigh the pros and cons. In this case, they may perceive that what he would say to a sanity board may be overwhelmingly damning. Even with this, never forget that the detailed report of the board will be given to the defense, and then the defense team can decide whether or not to utilize the results. Either way, if you’re going to try for lack of mental responsibility, you must start somewhere, with professionals. There will always be possible drawbacks. Considering their penchant for sharing everything with the media, I find it strange that they are afraid of something like RCM 706 and its procedural safeguards. This may also segue with the last point.

Perhaps they fear what they know to be the truth. They’ve talked to him, and perhaps they know that he was right as rain the entire time, and any educated psych professional would recognize this. This is the most dangerous thing this team must address, This would render their prior statements as nothing more than bloviation. As with most cases, we must defer to those who are closest to the case (and presumably understand it better than us).

But, its my blog, so I’ll say what I want. I hope they prove me wrong, for SSG Bales’ sake.

Frankly, I’d go with a sanity board early (and possibly even often in this case). I’ve never seen one of these blow-up in the face of defense counsel. However, I’ve only been an attorney for going-on 9 years. They’d probably tell me the same thing they said to his original appointed counsel:

“You are fired, sorry, but we have much more experience than you,” Seattle-based John Henry Browne, the outspoken lawyer who has been the public face of the defense of Staff Sergeant Robert Bales, said in an email to military lawyer Major Thomas Hurley.

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3 thoughts on “A Sanity Board: The Only Sane Thing To Do

  1. From the point of view of a civilian criminal-defense lawyer ignorant of the court-martial system, not allowing the government to interview your client makes a lot of sense: the separation that you describe among the various parts of the military involved is counterintuitive and, frankly, hard to fathom. Thanks for this explanation.

    Did you notice this in the CBS article you linked to?: “Browne said [that] Hurley ultimately leaked an email from Browne to a news agency.”

    1. No problem.

      I did notice the leak allegation. On one hand, it makes watching this case from afar pretty darn fun. On the other, it is sad. Really sad.

  2. (“Perhaps Browne is irate that Dr. Nidal Hasan has no chance of being on the sanity board at Walter Reed”, she thinks, bitterly. How unfair.)

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