The 2008 homicide of Fresno, Calif., native Rick Bulmer riveted the nation’s top military appeals court Tuesday, as judges weighed the killer’s claims that he’d snapped under the influence of a potent anti-smoking drug called Chantix.
A convict’s chance for freedom, a family’s wish for punishment and a company’s efforts to keep its secrets are all at stake.
During a 40-minute oral argument, judges on the U.S. Court of Appeals for the Armed Forces sounded sympathetic to at least some claims made by George D.B. MacDonald, the former Army paratrooper convicted of murdering Bulmer.
In particular, several judges seemed inclined to agree that the original trial judge had fumbled when he refused to instruct jurors about the potential defense of involuntary intoxication.
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“It certainly was error not to give the instruction,” Judge Scott W. Stucky said, adding later that “you have a unique defense here, which is not based on junk science.”
If the military appeals court decides that the trial judge erred and that this error was prejudicial, MacDonald might get a new trial. He’s currently serving life without possibility of parole.
MacDonald attacked Bulmer while the 23-year-old Fresno native was sleeping in a Fort Benning, Ga., barracks. MacDonald stabbed or slashed Bulmer more than 50 times before fleeing. Prosecutors cite this escape attempt as evidence that MacDonald could tell the difference between right and wrong.
“He understood he was killing a human being,” Army Capt. Daniel M. Goldberg told the court Tuesday. “If he thought that what he was doing was right, or wasn’t wrong, he would have continued doing it.”
A New York City native, MacDonald in 2008 was an Eagle Scout, an honor graduate of the Army’s Airborne School and on his way to enroll at the U.S. Military Academy Preparatory School.
“He was a golden boy,” Stucky said Tuesday. “He was going places.”
In April 2008, a physician prescribed Chantix to help MacDonald quit smoking. MacDonald said he began experiencing unusual dreams and strange feelings. A month after starting the drug, he attacked Bulmer, without provocation.
Chantix, also known as varenicline, combats nicotine addiction. Nicotine stimulates the brain receptors responsible for releasing a neurotransmitter called dopamine. Chantix stimulates those same receptors, blocking the nicotine but releasing enough dopamine to ease withdrawal.
The number of Chantix prescriptions for military personnel reached 67,580 in 2007, according to the Pentagon. With the use, though, has come concerns about potential neuropsychiatric effects. On Tuesday, Chief Judge James E. Baker revealed that the Defense Department now prohibits the drug’s use among deployed troops.
Some have blamed the prescription pill for suicides, suicidal thoughts or other psychiatric problems. More than 2,000 joined in lawsuits against Pfizer, the drug’s manufacturer. Most have since been settled, at a cost to Pfizer of at least $299 million.
In a previous statement to McClatchy, Pfizer said, “It is important to note that there is no reliable scientific evidence that Chantix causes serious neuropsychiatric events, including those at issue here.”
Chantix’s sales totaled $486 million during the first nine months of 2013.
MacDonald’s appeal focuses, in part, on the trial judge’s denial of the defense’s request for a variety of Chantix documents, including clinical trial records, adverse event reports and other materials. Pfizer refused to hand over the documents, except for stability studies that showed how long the drug stays in the body. The company called the document request overly broad, and the trial judge quashed the subpoena.
“We literally have a million pages of material that we have no idea what it says,” defense attorney William E. Cassara told the court Tuesday. “Somewhere in the millions of pages of documents that were not provided, there is something that would have been relevant.”
While Cassara argued that the quashing of the Pfizer subpoena was an error, he agreed with appellate judges who indicated that his strongest challenge centered on the trial judge’s refusal to specifically instruct jurors about an involuntary-intoxication defense.
Involuntary intoxication may happen when someone is tricked or is mistaken or ignorant about the effects of a medication. It can be a complete defense if the defendant can prove by clear and convincing evidence that he couldn’t distinguish between right and wrong while under the influence.
“He was unable to appreciate the wrongfulness of his actions,” Cassara said.
Judge Margaret A. Ryan noted that jurors “didn’t have an opportunity to determine” whether the killing of Bulmer could be explained as a product of involuntary intoxication.
A decision by the appellate court is expected by this fall.