Thursday, December 06, 2007

United States v. Whiteside cont'

At the risk of throwing more gasoline on the Sigmund Freud/Anonymous TC fire, here's a link to today's WaPo editorial on the Whiteside case.


Anonymous said...

Numbers challenge:

1. Estimate the total worldwide number of military prosecutors?

2. Estimate the total worldwide number of military psychologists?

(I honestly do not know the answer to these two questions. My guestimate would be 1,500 : 250. Any other guesses?)

I would be interested in figuring out these numbers first and then discussing whether military priorities properly align.

I must confess, though, that CAAFlog dialogue reached a new level with input from the likes of big daddy long stroke, 1stLt Kendrick, Col Jessup...and the anonymous Army Reserve Officer Recruiter.

Jason Grover said...

I don't really have a clue how many uniformed trial counsel there are, but not having a clue really prevents me from posting. In the Navy JAG Corps of about 750, I would guess that there are probably not more than 75 trial counsel. Even if you double that, to 150, I cannot imagine the other services have significantly more. This is especially true in light of the numbers of Marine judge advocates. And when you consider the high percentage of total courts-martial the DON has, I think your 1,500 is way too high.

Anonymous said...

Hope I’m not rekindling the early heated discussion about the merits of the WaPo story or the claims of the officer in questions (I’m reminded of that nauseating schlock of a song by Billy Joel, “We Didn’t Start the Fire”—no we didn’t light it, but we tried to fight it!), but I wonder if anyone else’s experiences with RCM 706 mesh with mine.

Specifically, it seems (from my trial and appellate experiences) that we get wildly inconsistent results or, maybe more accurately, wildly disparate quality in the makeup and execution of the 706 boards. This might be as big of a problem as anything, if it is truly indicative of practice across the miljus spectrum.

Perhaps this is a problem (if a problem) to be sorted out by DC’s on a case-by-case basis. Yet considering the increased prominence this process could have in the very near future, perhaps the 706 process should be revisited. Or, perhaps there should be some sort of supplementary instructions for the professionals who sit on the boards? Not that I, as an attorney, want to tell them how to go about doing their job, but maybe we could agree (using advice from professionals in the field) what, at a minimum, should be done to ensure an adequate inquiry (especially since I’m an attorney who may not really know when he is confronted with a faulty 706 board)?

Or, perhaps there should be more options available regarding the results. The black and white answers demanded by 706 aren’t necessarily adequate for covering the spectrum of psychological maladies, which are often very difficult to diagnose, especially after minimal contact with the accused. Some diagnoses can take months to properly establish, like, for example, schizophrenia. If a board needed/wanted more time to reach a conclusion, should the rule explicitly state that this is an option for them to choose? Or, is it safe to rely upon a DC to recognize this and seek expert assistance as needed?

While some may complain that this could be an open invitation for malingerers to, well, malinger, it seems we owe our service men and women, considering the nature of their jobs, a quality examination capable of establishing possible defenses. And, frankly, I don’t think that always happens under the current system.

Anonymous said...


You're right. My guesstimate was way too high. Maybe 500 military prosecutors worldwide, tops. I should stick to psychology.

Anonymous said...

Heavy Hermeneus,

I concur with most of your comments. To call the usually lone 706 doctor - usually the "go-to-guy" - "board" is a misnomer.

Anonymous said...

How many of us have had a client with serious psychiatric problems that CA, SJA, TC refused to address? A few years ago I painfully struggled to get a SILT for a marine who was overtly psychotic. When I went in to discuss a PTA with him he later told me he thought I was proposing marriage. He had no memory of my visits to him, nor the MDC.

I have no interest in arguing the merits of Whiteside here, but, really, isn't it easy to see why soldiers fear seeking psychiatric help?

It is not just the military that has problems with psychiatric issues. Most civilians criminal lawyers will affirm that civilian jails have become a substitute for psychiatric hospitals, warehousing many of the mentally ill.

It has become more of an issue in the military, because I would bet most military law practitioners are seeing clients having OEF/OIF related psych issues. It will be interesting to see how this case is resolved, because it has been picked up by the press and become a bit of a cause.

Anonymous said...

I was co-counsel with anonymous above on the case referenced. It was instructive to me because it revealed just how strong a cultural bias the military has against mental illness. We were able to get the Marine brig officer to agree to "sneak" the accused to a Navy brig for a mental evaluation (where he was eventually transferred to a civilian institution for in-patient treatment), only because the brig officer decided nobody could "fake" being crazy enough to endure being tied naked in a freezing cell for days and periodically hosed off with water.

I think, though, there are two issues here that often need to be addressed separately, even if in the end they ultimately wind up together. One is the issue of whether any substantive mental health evaluation/treatment is necessary. The second is what, if any, effect the accused's mental state should have on the prosecution/defense.

One example of distinguishing between the issues: if the only thing counsel wants is a solid mental health evaluation of the accused, why do some many opt first to employ the procedures under RCM 706? At one time, I had heard talk in appellate defense circles that volunteering a client to submit to a 706 was IAC per se.

I'm not sure I'd go that far (although it's not a bad thing to ask why I would ever want my client's CO to know what he has to say about the offense, see 706(c)(3)), but I am sure that too many defense counsel view the 706 simply as a medical procedure. In my experience, most counsel do not even attend with their clients, or even contact the examiner beforehand to provide evidence, to orient the examiner to the issues, or to advocate on behalf of the defense position. The 706 examiner is a government agent: would you ever let your client sit down and talk to NCIS, without making some preparations?

At any rate, maybe if we can distinguish between the two issues, it would be easier for commanders to do so. A request for a mental health referral is always a defense trick to get the accused off, sometimes it's because the accused is actually sick.


Anonymous said...

Hmmmm - I heard from a fairly well placed source that this was an ART 15 turn down. If that is the case, is the Army getting a bad rap here?

Anonymous said...

Anonymous and SD make great points about issues lying at the nexus of the military justice community and the military mental health community. The two communities do not work congruently. If top brass is serious about servicemember support, more detailed guidance would come out on mental health issues that went beyond the bare minimum 706 inquiry. For instance, when referrals and treatment should be triggered, with a Chinese Wall of privacy for the treating docs, independent of the 706 report. An experienced litigator JAG O-6 should be appointed to run a mental health tiger team of military psychs for the defense side of the bar and proactively working on these issues and providing expert advice and consultation.

But, no, the Art. 15 turndown was based on the loss of 1LT Whiteside's medical benefits and loss of treatment that she needs in the future. The Army's change in position - from "I'll make you an offer you can't refuse: resign and we will just feggetahboutit" - to - "Whiteside, you talk'n to me? Are you talk'n to me?" -demonstrates that the Army's position is somewhat disingenous. The crime was not so serious at first; now it is. Hmmmmm.

Another policy proposal: somewhat parallel to the exception in the military where dependent family member victims continue to get benefits after the accused is convicted - there should be an exception that allows servicemembers suffering from mental defects (not so serious that they rise to the level of a not guilty finding) an exemption from a post-discharge loss of medical benefits.

Anonymous said...

SF, I think the article mentioned that she withdrew her offer to resign in lieu of trial (a SILT for your Marines). So I don't think it was a case of the Army "making her an offer she could not refuse." Sounds like she made an offer to resign and then changed her mind.

But an Article 15 turn down is a whole different story. She could have gotten an ART 15 and still stayed in the military and still kept all her benefits. If she turned down an ART 15 and demanded court martial, she brought the potential loss of benefits on herself.

Anonymous said...

People keep talking about this case reflecting "the Army's position" on Whiteside and mental health in general. It may reflect the position of the TC, the SJA, and the GCMCA on this particualar case, but not the Army of the military in general. There are hundreds of TCs, SJAs, and GCMCAs out there - let's not assume these folks in the Whiteside cas speak for all of them.

Dwight Sullivan said...

Here's a link to a letter to the editor about the Whiteside case printed in Tuesday's Post signed by Major General Tony Cucola, the Army's Chief of Public Affairs: