Sunday, 17 November 2019
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Navigating Your Way Through a Mental Competency Hearing

This article was originally published in the 2017 edition of The Reporter, Volume 44, Number 3. Additional resources have been added to enhance the digital version.

The sanity board concludes that the accused is currently suffering from a mental disease or defect and is not competent to stand trial…. What do you do? Where do you begin?

Defense counsel requests the military judge order a sanity board under Rule for Courts-Martial (RCM) 706. The military judge grants the request. A board convenes and answers the questions set forth in RCM 706(c)(2).[1]

  1. “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.)
  2. What is the clinical psychiatric diagnosis?
  3. Was the accused, at the time of the alleged criminal conduct and as a result of such severe mental disease or defect, unable to appreciate the nature and quality or wrongfulness of his or her conduct?
  4. 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?”

This almost seems pro forma. Isn’t the accused always fine? Maybe the accused is depressed or has Post Traumatic Stress Disorder (PTSD)—trial is going to go as planned and there is no need to do anything out of the ordinary. But this time it is different. The sanity board concludes that the accused is currently suffering from a mental disease or defect and is not competent to stand trial. You re-read it. Sure enough, there is a serious diagnosis.[2] What do you do? Where do you begin?

Whether you are a trial counsel, defense counsel, or a military judge, when you are faced with an accused diagnosed with a severe mental disease or defect, you have a unique legal mission. While it may not be common, when an accused is diagnosed with a severe mental disease that may affect his ability to stand trial, the rights of the accused must be protected. Whatever thoughts you have about our criminal justice system or about the accused or the crimes he allegedly committed, there must still be a process which must be done correctly. The current process is a hybrid of military and civilian practice. This article provides perspectives from all three of these viewpoints. This article is not designed to be doctrine; rather, it proposes approaches to assist practitioners navigating through these complex circumstances. This article focuses on competency of an accused to stand trial, not on the affirmative defense of not guilty only by reason of lack of mental responsibility.[3]

Familiarize Yourself With The Law

The pertinent law regarding mental competency of the accused is a hybrid of military rules and federal statutes. Within the Manual for Courts-Martial (MCM), the primary rules practitioners must familiarize themselves with are RCM 706, Inquiry into the mental capacity or mental responsibility of the accused; RCM 909, Capacity of the accused to stand trial by court-martial; RCM 916(k), Lack of mental responsibility; RCM 921(c)(4), Not guilty only by reason of lack of mental responsibility; RCM 1102A, Post-trial hearings for person found not guilty only by reason of lack of mental responsibility; and Article 76b, Uniform Code of Military Justice (UCMJ), Lack of mental capacity or mental responsibility: commitment of accused for examination or treatment.

The MCM, at RCM 909 and Article 76b, refer practitioners to the applicable statutes within the federal criminal system: 18 U.S.C. §§ 4241–4248. An accused who is not competent to stand trial or who is found not guilty only by reason of lack of mental responsibility must be transferred to the federal system. Reviewing these laws will provide perspective as you begin the process.

RCM 706 – Where It Begins

Sanity board requests may be forwarded by a number of parties before or after referral.

If it appears to any commander who considers the disposition of charges, or to any preliminary hearing 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, that fact and the basis of the belief or observation shall be transmitted…to the officer authorized to order an inquiry into the mental condition of the accused.[4]

After the referral of charges to court-martial, the convening authority or the military judge may sua sponte order such an inquiry.[5]

The purpose of the inquiry is to make findings concerning the presence and diagnosis of a severe mental disease or defect, whether any diagnosis could have had an effect on the accused at the time of the alleged criminal conduct, and his present ability to understand the nature of the proceedings against him. Accordingly, if any evidence exists that an accused may be suffering from any sort of mental condition, if he has made statements that he is suicidal or is exhibiting aberrant behavior, it is wise to initiate a sanity board. While the usual determination of a sanity board may show that if the accused has any sort of mental disease or defect it does not affect his ability to understand the nature of the proceedings or cooperate intelligently in his defense, it is still the necessary first step in understanding the accused.

Preparing for Sanity Board—Other Considerations

Clearly Lay Out the Facts

No doubt there is a draft request for a sanity board saved in your office files. This is a good starting point, but it should not be the ending point. Whether you are requesting or responding to a request for a sanity board, there are a number of things to consider which will help the process in the long run. To begin with, both trial and defense counsel know more about the case than the convening authority or the military judge. Be clear in your justification of why a sanity board is needed. You must clearly explain the facts that support your request. Trial counsel should consider approaching it as you would a motion: attach statements, affidavits, or other evidence to your request documenting the behaviors the accused has exhibited or the statements made. Defense counsel may opt to do the same, while taking into account client confidentiality.

It may be wise to have more than one member make up the sanity board. Only one person is required, but there are certainly advantages to having more than one.

Think Beyond the Basic Sanity Board

Consider whether there are other questions you want the board to answer. For example, if you are a defense counsel and the accused does not want your assistance and you believe it has to do with his mental condition, consider requesting an additional question: “Is the accused choosing self-representation both competently and intelligently?” This answer will help the military judge in deciding whether the accused can represent himself, not just at the trial but also at a competency hearing. Prior to requesting additional inquiries from the board, a defense counsel should consult with his or her senior defense counsel.

If the accused is an officer, it may be best to ensure that the board members outrank him. In a recent Air Force case, an O-3 accused refused to participate in a sanity board being conducted by one O-3 psychologist. The psychologist determined that the accused was mentally competent. Defense counsel knew this result was not accurate based on the accused’s behavior and lack of participation, and requested a new sanity board, clearly explaining to the court his client’s specific behavioral exhibitions and outlining his lack of participation. Perhaps if someone of a higher rank had been initially appointed to the board, the accused would have been more motivated to participate. The second sanity board included two higher ranking doctors, and the accused subsequently participated.

Furthermore, it may be wise to have more than one member make up the sanity board. Only one person is required, but there are certainly advantages to having more than one. Besides the fact that there could be differing opinions, if there is a need for a competency hearing, there is more than one person you could call as a witness. This will also allow flexibility in setting the date for the RCM 909 hearing. This is not merely a defense issue; the government may request that more than one doctor be appointed to avoid future problems.

You may not always need to include any of these other considerations in your request for a sanity board. Additionally, there may be other unique factors that you may have to contemplate on a case-by-case basis. Do not be afraid to request a second or even third inquiry if you discover evidence that undermines the findings of the original results; the rule allows for this.[6] There is no need that you always recommend appointing a high-ranking psychiatrist/psychologist or more than one member, but all these factors require deliberation by both trial and defense counsel. If the defense counsel has retained an expert psychologist consultant, he or she can advise on all of these considerations. If one is retained following the sanity board, have the expert consultant review the board’s reports and advise on whether another board should be requested.

Using the Board Results to Prepare for the Next Step

Once you have the sanity board results indicating the accused is presently suffering from a mental disease or defect that renders him unable to understand the nature of the proceedings or to conduct or cooperate intelligently in the defense, you need to prepare for the next step—a competency determination. Both trial and defense counsel should have a firm understanding of the relevant RCMs and the accused’s mental status—past, present, and future. Learn about the diagnosis and whether the accused can be restored to competency, how long it will take to restore the accused to competency, and whether the accused can be released and treated as an out-patient. Although both sides should seek to understand the diagnosis as much as possible, trial counsel should be aware that significant limitations exist regarding their access to information specific to the board inquiry.[7]

RCM 909(e)–Incompetence Determination Hearing[8]

An accused is presumed to have the capacity to stand trial unless the contrary is established.[9] The Supreme Court set out the legal test for competency in Dusky v. United States,[10] and it is refined by Article 76b. An accused cannot stand trial if he is “presently suffering from a mental disease or defect rendering the person mentally incompetent to the extent that the person is unable to understand the nature of the proceedings against that person or to conduct or cooperate intelligently in the defense of the case….”[11] The accused “must be able to comprehend rightly his own status and condition in reference to such proceedings; that he must have such coherency of ideas, such control of his mental faculties, and such power of memory as will enable him to identify witnesses, testify in his own behalf, if he so desires, and otherwise properly and intelligently aid his counsel in making a rational defense….”[12]

Whether an accused has the mental capacity to stand trial by court-martial is an interlocutory matter which must be resolved by a military judge.[13] In order to determine that the accused is not mentally competent, the military judge must make a finding by a preponderance of the evidence;[14] thus, counsel must present evidence to support their position. Unfortunately, there is no script for the incompetence determination hearing.[15] Discuss with the military judge how to proceed.

At a competency hearing the accused “shall be represented by counsel…[and] be afforded an opportunity to testify, to present evidence, to subpoena witnesses on his behalf, and to confront and cross-examine witnesses who appear at the hearing.”[16] When a military judge goes through the script to begin the hearing, he will inform the accused about his right to counsel and the accused will make his choice of representation.[17] The issue of mental competency is made more complex when counsel or the military judge has a concern regarding mental competency, but the accused waived his right to counsel and insists on self-representation.

When RCM 909 Intersects with RCM 506[18]

The constitutional right to self-representation depends on a knowing and intelligent waiver of the right to counsel. The current standard regarding the right of self-representation originates from Faretta v. California,[19] and is set forth in RCM 506(d). An accused, in the exercise of a free and intelligent choice and with the considered approval of the court, may competently and intelligently waive his constitutional right to assistance of counsel.[20] Additionally, the waiver shall be accepted only if the military judge finds that the accused is competent to understand the disadvantages of self-representation and that the waiver is voluntary and understanding.[21]

In order to represent himself, the accused must “knowingly and intelligently” relinquish “the traditional benefits associated with the right to counsel.”[22] If a military judge is going to deprive an accused of his constitutional right to represent himself, he will need evidence to establish facts to support this decision. A military judge will ask the accused questions to determine whether there is a knowing and intelligent waiver to establish that the member “knows what he is doing and his choice is made with eyes open.”[23] Since you have prepared for an RCM 909 hearing, you should present evidence and proceed just as you would during the competency hearing.

Evidence for the Competency Hearing

Either trial counsel or defense counsel may request a hearing. In fact, trial and defense counsel may not always have opposite positions at a competency hearing. Counsel should approach this hearing like they would a motion hearing. No matter your position on the accused’s mental competency, you will want to call a doctor from the sanity board to testify. You can be creative when looking for evidence. Think beyond the short form of the report and the sanity board members; consider calling lay witnesses who have observed the accused and his behaviors. Co-workers and friends may provide valuable information on the accused’s mental digression or lack thereof. Keep in mind that proffers are not evidence. In addition to the short-form report and any other documentary evidence of the accused’s mental health, the military judge will also consider any evidence presented at the hearing, the accused’s demeanor and conduct in court as well as the accused’s responses concerning his right to counsel, his understanding of, and thoughts relating to his request to proceed pro se.

A doctor from the sanity board should be present the entire hearing. Encourage and facilitate the board to evaluate the member in as many settings as possible, especially the courtroom if the opportunity presents itself. As an alternative, provide courtroom audio or a transcript to the board for its evaluation. Any opportunity for the board to evaluate the accused’s ability to self-represent, interact with the military judge, and ultimately understand the implications of his or her decisions is highly useful. Did the accused question witnesses? Did the accused take the stand? If so, did he admit to elements of a charged offense? These situations are unique opportunities for the board to determine if the accused can “cooperate intelligently” in his own defense.

Moreover, the doctor will need to testify at the hearing regarding the diagnosis and potential treatments. As an added benefit, the doctor will be able to observe the accused’s behaviors during the hearing in a public, non-privileged setting, providing valuable insight to the military judge. This is especially helpful because the doctor cannot disclose comments the accused made during the sanity board inquiry. When the doctor testifies, treat the testimony as you would that of an expert witness. That is, explain the doctor’s credentials, background, and, if applicable, how many other sanity boards of which she was a part. If a doctor opines that an accused presently suffers from a severe mental disease or defect rendering him mentally unfit to stand trial, it is helpful to provide evidence about the likelihood of the accused being restored to competency and the approximate time frame.[24] If the accused’s competency cannot be restored, he will be committed to a federal institution, and no trial will be held.[25] If the accused’s competency can be restored through treatment, he still faces commitment, but can be brought to trial.

Finding of Not Competent to Stand Trial

If the military judge determines by a preponderance of the evidence that the accused is not competent to stand trial, the military judge will stay the proceedings. The military judge’s findings will be transmitted through the legal office to the General Court Martial Convening Authority (GCMCA). The GCMCA then consults his Staff Judge Advocate and determines how best to dispose of the charges. If it is determined the court-martial proceedings will continue, the GCMCA shall commit the accused to the custody of the Attorney General of the United States.[26] Ultimately, the GCMCA decides whether to commit the accused.[27]

The Attorney General is the custodian of mentally incompetent persons.[28] The Federal Bureau of Prisons (FBOP) is the Department of Justice agency that houses and treats such persons.[29] Within the FBOP, the Psychology Services Branch oversees the facilities that house and treat mentally incompetent patients.[30]

Once the accused is transferred to the custody of the Attorney General and a suitable facility for psychiatric treatment, doctors will attempt to restore the accused to competency through medication. The accused will be there for up to 120 days and for reasonable, but not indefinite, extensions of time.[31] An accused can continue to suffer from a severe mental disease or defect, yet be restored to legal competency through medication such that he can cooperate intelligently in his criminal defense. The Constitution permits the government to involuntarily administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if certain conditions are met.[32] To do so, the government must demonstrate by clear and convincing evidence that (1) that important governmental interests are at stake given the specific facts of the individual case as well as the concomitant, constitutionally essential interest in assuring that the defendant’s trial is a fair one; (2) that the involuntary medication will significantly further those interests; (3) that involuntary medication is necessary, that is, an alternative or less intrusive treatments are unlikely to achieve substantially the same results; and (4) the administration of the drugs is medically appropriate.[33]

If the accused is restored to competency, the facility director will notify the GCMCA, who must then take custody of the accused.[34] After the time period allowed for restoration of competency expires, if the federal psychiatric doctors determine the accused cannot be restored to a competency level at which he can stand trial, the government should dismiss the charges. The accused will then remain in the custody of the Attorney General and will eventually be released to his home state’s psychiatric service.[35]

Tips for Trial Counsel

(1) Working with a pro se accused

Communication with the pro se accused through the pre-trial and sanity board process is more difficult when the accused is in pre-trial confinement. Trial counsel should work with the confinement staff to serve hard copies of emails on the accused. If this method fails, a legal office representative, not trial counsel, should physically go to the confinement facility to serve documents on the accused. It is important to document receipt of all documents served on the accused as an accused who may be suffering from a mental disease or defect may have memory issues.

(2) How to hospitalize the accused[36]

From the trial counsel’s perspective, the largest obstacles are logistical. Once the GCMCA decides to commit the accused to the Attorney General of the United States, trial counsel working with their Numbered Air Force, or equivalent, legal office, contacts Army Corrections Command, which falls under the Army Office of the Provost Marshal General and is located at the Pentagon. Army Corrections Command is the single point of contact for DoD prisoners who have been committed to the Attorney General of the United States[37], The Army Corrections Command facilitates, the GCMCA’s commitment order, and works with the FBOP to locate the appropriate federal medical center (FMC) to hospitalize the accused and conduct competency restoration procedures. The convening authority is responsible for facilitating and funding the transfer of the accused to the FMC. Maintaining contact with the FMC is crucial to facilitating the logistics of the transfer.

At the conclusion of the FMC’s evaluation, the FMC will issue a report. It is likely that the FMC will issue the report to the military judge because in the federal court system, it is the federal judge who commits the defendant.[38] However, in the military justice system, it is the GCMCA who commits the accused, not the military judge.[39] This is an important distinction because if the FMC releases the accused, he or she is released to the GCMCA, not the military judge.

(3) Determining appropriate action at conclusion of hospitalization

If the Sell factors, above, for involuntary medication are not present, the GCMCA should withdraw and dismiss the charges. If charges are withdrawn and dismissed while the accused is hospitalized in FMC, the FMC will conduct a dangerousness assessment prior to release.[40] If an accused is determined not to be a danger to himself or others, he can be released to custody of the Air Force. If he is determined to be dangerous, he is not released to Air Force custody; rather, he is hospitalized indefinitely and possibly transferred to the appropriate state.[41] If the FMC concludes that the accused is not dangerous and releases him to the Air Force, he does not go back into pretrial confinement. The legal office must work with the command and mental health providers to determine the appropriate course of action. The command can simultaneously process a Medical Evaluation Board (MEB) and an administrative discharge. This process is long and can be especially frustrating for commanders, so trial counsel and the legal office should coordinate with their medical legal consultant and mental health providers to assist the command in determining the appropriate course of action.

Tips for Defense Counsel when a client does not want representation yet may be incompetent to stand trial under RCM 909

Under RCM 506(a), “The accused has the right to be represented before a general or special court-martial by civilian counsel…and either by the military counsel detailed under Article 27 or military counsel of the accused’s own selection, if reasonably available.”

When detailed to a new case, defense counsel rightfully assume their new client will be willing and able to assist in his own defense. However, unfortunate circumstances do exist when this will not be the case. The easy response for a military defense counsel might be to shake hands with the accused and wish him good luck. After all, an accused can choose self-representation. It may be worthwhile to explore further before sending the member on his way. There could be several reasons contributing to a member’s refusal to engage in an attorney-client relationship with a newly appointed military defense counsel. Distrust of attorneys and the military justice process, or sheer frustration and shock are all possibilities. These feelings could also be symptomatic of a severe mental health disorder. Newly detailed counsel need a firm grasp of RCM 506(d) in these circumstances and should consult with their supervisors.

If the member’s mental health becomes a concern and self-representation and competency might be questioned, consider the following.

(1) Do not force the issue.

Trying to forge a relationship because you believe it is in the member’s best interest is a mistake. An attorney making decisions the client doesn’t understand or trust could prove disastrous. Explain to the accused your detailing and what alternatives exist. Continually communicate your understanding of your relationship with the accused. Document these conversations. If taken by surprise, gather as much information from the accused as possible. It’s possible that no further military defense counsel will be appointed, so consider reaching out to the accused again with a defense paralegal. Even if the accused refuses counsel, the military judge might say otherwise and appoint an attorney. Like it or not, you may be it.

 The experience of being a detailed defense counsel without an attorney-client relationship is unique. As detailed counsel, the military judge may request your presence throughout. It may feel you are walking a fine line. That is because you are; which takes us to our second consideration.

(2) Continue to educate the member while recognizing your limitations.

I hesitate to use the word advocate under these circumstances. To educate is more precise. Ultimately, avoid phrases like, “you should,” “I recommend,” or even “we” when communicating with the accused. The education might only occur at the counsel’s table. The accused might also desire to meet outside of that context in anticipation of a courtroom appearance. This is when recognizing the limitations and boundaries of the relationship is most necessary. Depending on the accused, it may not be wise not to do so. Maybe the member wants to know where to sit, how to obtain an MCM, or even the difference between a sworn and unsworn statement. A general discussion of each could certainly be accomplished.

The accused should be educated about the consequences of speaking too freely. This concept might be clear on the attorney’s end, but it is easily forgotten on the accused’s.

The accused should be educated about the consequences of speaking too freely. This concept might be clear on the attorney’s end, but it is easily forgotten on the accused’s. Re-direct the member if necessary. Remind him that the scope of the relationship is not one protected by the “Lawyer-Client Privilege” of Military Rule of Evidence 502.

(3) If competency to stand trial is apparent to you as detailed counsel, by all means, raise it.

A “sanity board” can be initiated by “any…defense counsel…or member” under RCM 706(a). A detailed defense counsel is in a good position to raise the issue. This is the limited form of advocacy alluded to above. Those documented meetings with the member might form a good basis to inquire as to whether the member has “the mental capacity to stand trial” or lacked “mental responsibility” in regard to the offense(s). The detailed defense counsel may be in the best position to make this initial assessment. Unless the trial counsel or the accused’s unit has observed odd or erratic behaviors, a sanity board may not be considered. This is especially true when the offense(s) alleged is particularly egregious. The desire to preserve “good order and discipline” may understandably fog the minds of those charged with enforcing it.

Conclusion

The RCM 706 sanity board often presents itself to trial and defense counsel as pro forma until one day it is not. Many members facing courts-martial live with mental health disorders, and it is easy to dismiss those diagnoses as irrelevant to the charged misconduct. It is incumbent upon us all to protect our members’ rights. With some forethought and understanding of the process, trial counsel will be better equipped to advise commanders and defense counsel will be better prepared to assist their clients.

About the Authors

Lieutenant Colonel Tiffany M. Wagner, USAF

(B.A., Purdue University; J.D., Valparaiso University School of Law; LL.M., The George Washington Law School) is the Staff Judge Advocate at Offutt Air Force Base, Nebraska.

Captain Mark L. Steitz Jr., USAF

(B.A., Fairleigh Dickinson University; J.D., Rutgers School of Law) is the Chief of Military Justice for the 87th Air Base Wing, Joint Base McGuire-Dix-Lakehurst, New Jersey.

Captain Brittany D. Tedford, USAF

(B.A., Samford University; J.D., Samford University, Cumberland School of Law) is the Special Victims’ Counsel at Shaw Air Force Base, South Carolina.

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Endnotes

[1] “(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 mental 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?”
[2] While these are rare occurrences, there were five sanity boards between January 2015 through September 2016 in which a finding indicated that an Air Force accused either currently suffered from a severe mental disease or defect that rendered him unable cooperate in his own defense or had previously suffered from a disease that rendered him unable to appreciate the wrongfulness of his conduct. In two of those cases, the accused wanted to represent himself and in both cases they were found to be not competent to stand trial. While a serving as a military judge, Lt Col Wagner presided over a mental competency hearing in which Capt Tedford was the Trial Counsel and Capt Steitz was the Defense Counsel. The accused in that case was diagnosed by a sanity board with schizophrenia and psychotic disorder and was found not competent to stand trial. This article includes lessons and guidance from their experience.
[3] Manual for Courts-Martial, United States, R.C.M. 921(c)(4) (2016) [hereinafter MCM].
[4] MCM, supra note 4, R.C.M. 706(a).
[5] MCM, supra note 4, R.C.M. 706(b)(2).
[6] MCM, supra note 4, R.C.M. 706(c)(4).
[7] Once the board is complete, only a statement consisting of the board’s ultimate conclusions should be furnished to all counsel and the officer ordering the examination. R.C.M. 706(c)(3). This is commonly referred to as the “short report.” The full report of the board may be released by the board or other medical personnel for medical purposes and to defense counsel, unless otherwise authorized by the convening authority or if after referral, the military judge. R.C.M. 706(c)(3)(B). This is commonly referred to as the “long report,” and unless authorized by the convening authority or military judge, trial counsel does not have access to the long report.
[8] At a pre-referral competency hearing, government counsel should begin making a record of the trial by using a court reporter to record the hearing, as one would record an Article 39(a) session, and preserve a transcript of the hearing. If the case goes to trial, the transcript of the competency hearing will be appended to the record of trial as an appellate exhibit. The official record of trial for a court-martial begins when the military judge calls the court to order at the initial Article 39(a) session for an accused’s arraignment.
[9] Mental capacity or mental competency to stand trial emphasizes an accused’s ability to “consult with counsel and to comprehend the proceeding.” Pate v. Robinson, 383 U.S. 375, 388 (1966).
[10] 362 U.S. 402 (1960). “[T]he test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Id. at 402.
[11] UCMJ art. 76b(a)(1) (2016).
[12] United States v. Proctor, 37 M.J. 330, 336 (C.M.A. 1993) (citing United States v. Williams, 17 C.M.R. 197, 204 (C.M.A. 1954)).
[13] Pre-referral, R.C.M. 909(c) specifies the convening authority’s ability to order an inquiry into the accused’s mental capacity under R.C.M. 706. Although R.C.M. 909(c) does not specifically authorize a military judge to preside over a competency hearing before referral, the rule does not prohibit the judge from conducting a hearing at this stage of the process, either. Additionally, a military judge presiding over the hearing aligns with the essence of 18 U.S.C. §§ 4241 – 4248. After referral, the military judge must conduct a hearing.
[14] MCM, supra note 4, R.C.M. 909(e)(2).
[15] In the rare situation where there has not yet been referral, the convening authority makes a determination. This article is written from the perspective of the actions happening after referral of charges.
[16] 18 U.S.C.S. § 4247(d) (LexisNexis 2017); R.C.M. 909 and Article 76 refer to the guidance in the federal statute.
[17] If an accused elects to pro se representation, the judge must conduct an inquiry under R.C.M. 506 to ensure his waiver is voluntary and intelligent before conducting the competency hearing.
[18] In two of the five recent Air Force cases where the accused was diagnosed with currently having a severe mental disease or defect, the accused wanted to represent himself. In both those situations, a finding was made that the waiver was not knowing and intelligent.
[19] Faretta v. California, 422 U.S. 806 (1975).
[20] Id. at 814, explaining Adams v. United States ex rel. McCann, 317 U.S. 269, 275 (1942).
[21] MCM, supra note 4, R.C.M. 506(d).
[22] Faretta, 422 U.S. at 835 (citations omitted).
[23] Id., quoting Adams, supra, at 279.
[24] See MCM, supra note 4, 909(f) discussion.
[25] 18 U.S.C.S. § 4241(d) (LexisNexis 2017).
[26] MCM, supra note 4, R.C.M. 909(e)(3); 18 U.S.C. § 4241(d).
[27] MCM, supra note 4, R.C.M. 909(e)(3).
[28] R.C.M. 909(f); 18 U.S.C. § 4241(d)
[29] United States Department of Justice Federal Bureau of Prisons Program Statement, Number P5310.17, Psychology Services Manual (2016); available at: https://www.bop.gov/policy/progstat/5310_017.pdf
[30] Id.
[31] MCM, supra note 4, R.C.M. 909(f) discussion.
[32] Sell v. United States, 539 U.S. 166 (2003).
[33] Id. at 180–82 (citations omitted). The Sell Court did not specify the burden on the government, but courts have considered the issue have held that facts supporting the Sell factors must be found by clear and convincing evidence. State v. Cantrell, 179 P. 3d 1214, 1221 (N.M. 2008); United States v. Valenzuela-Puentes, 479 F.3d 1220, 1224 (10th Cir. 2007); United States v. Bradley, 417 F.3d 1107, 1114 (10th Cir. 2005); United States v. Gomes, 387 F.3d 157, 160 (2d Cir. 2004).
[34] UCMJ art. 76b(a)(4) (2016).
[35] 18 U.S.C.S. § 4246 (LexisNexis 2017).
[36] The authors would like to thank Maj Timothy Ward, Chief of Military Justice at AFCENT/JA for his contribution to this portion of the article.
[37] Army Corrections Command, available at https://www.army.mil/e2/c/downloads/340241.pdf (accessed 28 June 2017)
[38] See 18 U.S.C.S. § 4241(d) (LexisNexis 2017).
[39] See MCM, supra note 4, R.C.M. 909(e)(3).
[40] See 18 U.S.C.S. § 4246 (LexisNexis 2017).
[41] Id.

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