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Traumatic Brain Injuries and Insanity Under the UCMJ Regarding March 11, 2012 Shooting in Afghanista

There is no doubt that the recent shooting in Afghanistan of 16 civilians, including many children, by a United States soldier was a tragic event that drastically impacts US-Afghani relations. Reports, however, indicate that the Army Staff Sergeant a

ccused of the shooting may have suffered a recent head wound. These reports add an interesting legal element to an already complicated issue. Should this information prove accurate, it raises the question of whether this soldier will have a valid diminished capacity or insanity defense in a military court based on his suffering a traumatic brain injury.

Under the Uniform Code of Military Justice, insanity is an affirmative defense, which states, “at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts.” 10 U.S.C. § 850a(a). This provision closely follows the insanity defense outlined in the Federal Criminal Code. 18 U.S.C. § 17.

This defense is common in conjunction with service members suffering from Post-Traumatic Stress Disorder (PTSD). However, because “the symptoms of PTSD do not always negate the accused’s volition,the illness rarely serves as a complete affirmative defense based on a lack of mental capacity.” Vanessa Baehr-Jones, A “Catch-22” for Mentally-Ill Military Defendants: Plea-Bargaining Away Mental Health Benefits, 204 Mil. L. Rev. 51, 57 (2010). Additionally, military courts have recognized a variety of other mental disorders that can qualify for the insanity defense. See United States v. Harvey, 66 M.J. 585, 587-88 (A.F. Ct. Crim. App. 2008). However, military case history is less clear in regards to traumatic brain injury and post-injury insanity.

Instead, it is necessary to look at the non-military judicial system in order garner an understanding of how traumatic brain injuries and the insanity defense align. The military courts have a history of turning to other courts for guidance, particularly in regards to insanity. See Harvey, 66 M.J. at 587-88 (addressing lack of military cases discussing unconscious acts such as sleep walking in regards to insanity defense and court’s examination of non-military decisions).

Recent cases have begun to address the impact of traumatic brain injuries on an insanity defense. The United States District Court of Colorado ruled that a defendant’s counsel had “…misrepresent[ed] the law in telling [the defendant] that a plea of not guilty by reason of insanity (NGRI) based on his traumatic brain injury was “not allowed by law.” Ansteensen v. Davis, 11-CV-01099-BNB, 2011 WL 6153107 (D. Colo. Dec. 9, 2011). Additionally, the Court of Appeals for the 8th Circuit ruled that traumatic brain injury could be one of multiple causes of mental disease or defect. United States v. Jensen, 639 F.3d 802, 806 (8th Cir. 2011).

Criminal cases are not the only areas where traumatic brain injuries have seen an increased presence. Football players at all levels have received increasing

diagnoses of serious brain damage and mental problems because of the many high impact collisions suffered during games. In fact, Kevin Guskiewicz, a researcher at the University of North Carolina at Chapel Hill, has documented a high correlation among retired NFL players “who have suffered multiple concussions in their careers and the early onset of neurodegenerative changes like depression and dementia following retirement from sport.” Additionally, there are an increasing number of lawsuits surrounding football related head injuries and subsequent mental and physical ailments.

Based on the quantity of new research and other court decisions, it is entirely feasible for a traumatic brain injury to substantiate an insanity defense. While it is still not clear whether this shooting in Afghanistan falls into that category, based on the sheer number of soldiers suffering from some combination of head injury and PTSD, this issue is bound to arise more frequently. It is essential that the military courts establish an internal precedent that addresses traumatic brain injuries in the context of insanity and diminished capacity. If this soldier did indeed suffer a recent head injury, this case may become that determinative military precedent. Furthermore, based on the recent trends in science and case law, it is likely that the head injury could serve as at least a partial defense.

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