mTBI, PTSD and Stress (Catch All)

[jmm99]

Hell, you just took it - relative to this oldster.

GBMI Defense = Guilty but mentally ill

NGBI defense = Not Guilty by reason of insanity.

Huge difference to the client between these defenses.

1. GBMI Defense. There are two aspects to the sentence: (1) court ordered mental treatment; and (2) the punitive sentence. Logically, the mental treartment comes first; and that fits in with the usual intake system for felons given prison terms, a pre-incarceration psychologocal examination. BTW: if you have a client or are faced with a witness who has done prison time, obtain copies of his psychologiocal examinations. After the mental treatment ends, the prisoner is then sent off to prison to complete the punitive sentence.

2. NGBI defense. No sentence; but only court ordered mental treatment. Once that ends, the client is as free as a bird. And, if the mental capacity problem is transitory (occured only at the time of the alleged offense), the client walks free from the courtroom.

So, the default rule is not to plead to a GBMI; unless it's a dodge out of a death penalty case. In fact, if the defendant pleads a NGBI defense, I would be well advised as a prosecutor to request a GBMI instruction to give the jury an option to send the guy to prison (eventually).

The NGBI defense, in its pure form, has some hurdles - ability to distinguish right from wrong. Of course, if the vet actually suffers from delusions and thought he was being attacked by Viet Cong, NGBI would apply in full measure.

PTSD could also come up indirectly in other circumstances.

1. Where a temporary loss of mental capacity is allowed as a NGBI defense - as in Michigan (Anatomy of a Murder), where the LT was acquitted. However, based on jury interviews, the jury found that his wife had been raped and beaten by the deceased; and that the LT was justified to take his retribution and defend her honor. So, there the proofs of PTSD (which were introduced) were a hook on which the jury could hang its hat.

2. Where intent, deliberation, premeditation is an issue - as in the Astan HT case where the gal was torched by the bad guy who was then executed by her bodyguard. PTSD could be a valid argument vs formation of intent, deliberation, premeditation. In fact, a fair argument could be made under the right facts that the killing was involuntary manslaughter.

3. Where the defendant's perception is an issue - as in self-defense situations. E.g., the defendant viewed the deceased as a hostile threat (even if objectively he might be viewed otherwise) and reactions kicked in, etc.

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Haditha is a timely citation, but involved a combat situation (not PTSD from events decades ago). LtCol Jeffrey Chessani's Board of Inquiry convenes today, December 2, at Camp Pendleton.

Polarbear1605 knows more about Haditha in his little claw than I know. Of course, you know the story about him. It began "in the snows of far off Northern lands ...", where the Marines found him behind a log as an abandoned cub. They took him back to Quantico, raised him and then made him an officer and gentleman. Truly, an inspiring saga.

Cheers

Mike

[Polarbear1605]

Ah Yes, Haditha! A bit surprised that it popped up in this discussion but probably a good example of how bad the government can goof up a high profile war crime/court martial. The case spun out of control when Rep Jack Murtha, spent two weeks hitting the news shows stating that the Haditha Marines “cracked’ and committed “cold blooded murder” while the investigation was still ongoing. The Marine Corps has since been trying to get all the worms back into the can (4 plus years). As a quick update: Eight Marines were referred to Court Martial in the Haditha incident where 26 Iraqis (16 civilians and the remained combatants but those numbers vary) were killed when a Marine rifle squad reacted to an ambush sprung on them in the recently occupied city of Haditha, in Nov 2005. Five of the cases were dismissed based on the Article 32 investigation. The sixth case, one of the battalion’s intelligence officers (Lt), went to court martial and was found not guilty. I should note that the Lieutenant was never charged with any of the deaths. He was charged with making false official statements and discharging himself illegally from the Marine Corps. He was found not guilty of all charges. The Battalion commander was next. At the beginning of the Court Martial the military judge found that undue command influence had tainted the case…case dismissed. The undue command influence was upheld by the Navy Appeals Board. Not to be denied, the Commandant referred the Bn CO to a Naval Board of Inquiry. The BOI started on Wednesday, Dec 2, at Camp Pendleton. The last case is against the squad leader (then Sgt now) SSgt Frank Wuterich. The SSgt did an interview with 60 Minutes and the prosecutor subpoenaed CBS for the out takes in hope of getting evidence. CBS, surprisingly, rolled over and provided the out-takes once it got to a federal court. Since the undue command influence goes back to the Marine Col (lawyer type) that did the Commander of Multi-National Corps – Iraq investigation and then was assigned to the Marine Command Convening Authorities staff, it also taints the squad leader’s case. I believe that the squad leader will eventually also receive a BOI after his court martial is dismissed for undue command influence.
Collateral Damage: A number of other officers were relieved and censored including a Capt, two Cols and a Marine general, again before the investigation was complete. The Capt was a company commander located in one of Haditha’s adjacent cities (never figured that one out); the Cols were the regimental commander and the chief of staff for the Marines Forces Hq Iraq; and of course the commanding general of the Marine Forces Hq Iraq.
This baby has worms and flaming ducks crawling all over the place. The best place to get additional information is at the DefendOurMarines web site:
http://warchronicle.com/TheyAreNotKi...OurMarines.htm