Military court sidesteps ruling on whether suicide is a crime

05/01/2013 5:49 AM

05/01/2013 5:49 AM

The top military appeals court has set aside the court-martial conviction of a young Okinawa-based Marine who tried to kill himself, but it left intact the possibility that others may face similar charges of “self-injury” in the future.

In a closely watched case, amid what Pentagon officials call an epidemic of military suicides, the U.S. Court of Appeals for the Armed Forces threw out Lazzaric T. Caldwell’s guilty plea to charges of wrongful self-injury. The narrow ruling by a divided court cleans up a little of Caldwell’s personal record, while leaving to another day the bigger controversy that made his case so electrifying.

“I’m very pleased with the decision,” Navy Lt. Mike Hanzel, Caldwell’s Bremerton, Wash.-based attorney, said in an interview Tuesday. “Even though it was narrowly decided, it still sends the message that we should not be prosecuting attempted suicide.”

The setting aside of Caldwell’s guilty plea, because of facts specific to his case, means another military prosecution eventually could become a test case for the crime of self-injury. Congress or the Pentagon also could address the broader legal question if officials want to modify military law. The two dissenters in the 3-2 decision issued Monday believe that could be the better course.

“While I question whether punishing either bona fide suicide attempts or suicidal gestures (under the Uniform Code of Military Justice) is wise or fair, that is a determination to be made by the president and Congress, and not this court,” Judge Margaret A. Ryan wrote for the dissent.

The military suicide problem is severe in the wake of the protracted Iraq and Afghanistan wars, officials acknowledge.

Three hundred and one active-duty members of the military committed suicide in 2011, according to the most recent Department of Defense Suicide Event Report. An additional 915 services members attempted suicide that year, according to the report.

Firearms were most frequently used by those who succeeded, while drug overdoses were most common among those attempting suicide, the report states. It does not specify how many subsequently faced criminal charges for attempted suicide, although it is rare.

Active-duty members may be prosecuted under Article 134 of the Uniform Code of Military Justice for conduct that causes “prejudice to good order and discipline” or has a “tendency to bring the service into disrepute.” Self-injury is one of the enumerated examples of this kind of conduct, as are a variety of other actions, ranging from indecent language and perjury to straggling and wearing unauthorized insignia.

“This case is not about prosecuting suicide or attempted suicide,” Marine Corps Maj. David N. Roberts said during oral arguments in the Caldwell case in November. “It’s about prosecuting an act that was prejudicial to good order and discipline.”

Now a Southern California resident, Caldwell was a 23-year-old Marine private in January 2010. He had not served in either Iraq or Afghanistan but was diagnosed with depression and post-traumatic stress disorder as a consequence of assorted personal issues. After Caldwell was told he was being sent to the brig over the alleged theft of a belt, he slit his wrists with a razor in the barracks at Camp Schwab, Okinawa.

Caldwell eventually pleaded guilty to self-injury after also being convicted of larceny, driving without a license and possessing the drug known as “spice.” He was ordered confined for 180 days and given a bad-conduct discharge.

In its decision Monday, the court’s majority concluded that the set of facts in Caldwell’s particular case “does not establish that his conduct was to the prejudice of good order and discipline in the armed forces, or of a nature to bring discredit upon the armed forces.”

“We need not address the more general and specified question as to whether and when a bona fide suicide attempt would satisfy the elements of (a Uniform Code of Military Justice) offense,” Chief Judge James E. Baker of the military appeals court wrote.

Hanzel said the decision was a “very positive thing” for Caldwell, whose bad-conduct discharge potentially could be changed when his sentence is reassessed.

Lawmakers have introduced various bills in recent years in response to the surge of military suicides. In early April, for instance, Rep. Alcee Hastings, D-Fla., joined Rep. Andre Carson, D-Ind., and other lawmakers in a bill that calls for increased mental health assessments of deployed military personnel. So far, though, there have been no bills introduced to revise Article 134. The Pentagon and White House also could choose to modify the list of enumerated actions included under Article 134.

The Defense Department’s Joint Service Committee on Military Justice is now reviewing, at the request of top officials, whether it’s time to revise the military law provisions relating to self-injury or malingering, which includes intentional infliction of self-injury.

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