JCTG issus second published opinion in one week: United States v. Markert

In his second published opinion in one week, Judge Couch the Great (JCTG) addresses the issue of proximate cause in involuntary manslaughter cases where family members elect to terminate life support of a person who may survive with limited functioning.

PFC Markert was playing quickdraw with a fellow Marine in the back of a moving HMWWV. Tragically, his pistol discharged into the head of a fellow Marine. Six days later, the Marine’s family elected to terminate life support because their son may have been blind and severely disabled and, according to his mother, “he wouldn’t want to live that way.”

According to the Court, PFC Markert’s plea to involuntary manslaughter was still provident because his actions still played a “material role in the death” of his fellow Marine, and were therefore the proximate cause of the Marine’s death.

JCTG’s opinion is scholarly, and relies upon the courts of the sister services as well as decisions from state supreme courts:

"We adopt the holding of the Stanley court that an accused is not shielded from a voluntary manslaughter charge when artificially administered ventilation is withdrawn as part of a foreseeable, well-reasoned medical decision based upon what is considered of greatest benefit to the victim. 60 M.J. at 628."

Because this is not the first or last case involving sailors and Marines playing quickdraw with loaded weapons, JCTG’s opinion is a welcome addition to this area of the law. But the CAAF may yet wish to weigh in on this issue instead of leaving the matter to the Navy and Air Force Courts of Criminal Appeals. This case is certainly a close call.