United States v. Best , 2005 CAAF LEXIS 952 ( 2005 )

UNITED STATES, Appellee
v.
Jermain J. BEST, Private
U.S. Army, Appellant
No. 00-0679
Crim. App. No. 9701222
United States Court of Appeals for the Armed Forces
Argued January 25, 2005
Decided September 1, 2005
CRAWFORD, J., delivered the opinion of the Court, in which
GIERKE, C.J., and EFFRON and ERDMANN, JJ., joined. BAKER, J.,
filed a separate opinion, concurring in the result.
Counsel
For Appellant: Captain Eric D. Noble (argued); Colonel Mark
Cremin, Lieutenant Colonel Mark Tellitocci, and Major Allyson G.
Lambert (on brief).
For Appellee: Captain Edward E. Wiggers (argued); Colonel
Steven T. Salata, Lieutenant Colonel Margaret B. Baines,
Lieutenant Colonel Mark L. Johnson, and Major Natalie A. Kolb
(on brief).
Military Judge: Peter E. Brownback III
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Best, No. 00-0679/AR
Judge CRAWFORD delivered the opinion of the Court.
Contrary to his pleas, Appellant was convicted by a general
court-martial of officer and enlisted members of unpremeditated
murder, assault with infliction of grievous bodily harm, and
carrying a concealed weapon, in violation of Articles 118, 128,
and 134, Uniform Code of Military Justice (UCMJ) , 10 U.S.C. §§
918, 928, 934 (2000). The convening authority approved the
sentence of twenty years of confinement, forfeiture of all pay
and allowances, reduction to E-1, and a dishonorable discharge.
The United States Army Court of Criminal Appeals affirmed the
findings and sentence. United States v. Best, No. ARMY 9701222
(A. Ct. Crim. App. Mar. 8, 2000) [hereinafter Best I]. After
Appellant raised issues of mental competence and responsibility
for the first time before this Court, we returned the record to
the Army Judge Advocate General on November 21, 2000, for
conduct of a mental examination under Rule for Courts-Martial
(R.C.M.) 706. United States v. Best, 54 M.J. 367 (C.A.A.F.
2000) (order granting additional inquiry into Appellant’s mental
capacity). That examination was conducted at Fort Leavenworth,
Kansas, on March 12, 2001, by a board consisting of a
psychiatrist and two psychologists, who agreed that: in 1997,
Appellant was not suffering from severe mental disease or
defect, nor was he “unable to appreciate the nature and quality
or wrongfulness of his conduct”; and at the time of the board,
2
United States v. Best, No. 00-0679/AR
Appellant was suffering from “Schizophrenia, Catatonic Type
Remission” and was able to “understand and cooperate in the
appellate proceeding.” After reviewing those proceedings, this
Court again set aside the lower court’s decision on December 20,
2001, questioning the reliability of the sanity board report on
the basis of an alleged conflict of interest created by
membership on the board of two psychotherapists who had
previously assessed Appellant’s mental condition. This Court
ordered the Army Court of Criminal Appeals to determine:
(1) Was there an actual conflict of interest
[involving Drs. Galloway and Kirubakaran] sufficient
to undermine the reliability of the sanity board’s
findings?
(2) Was appellant aware of the potential conflict of
interest at the time of the sanity board?
(3) If so, did appellant have an opportunity to raise
the issue?
(4) Did appellant waive [any] conflict of interest?
That, if the court concludes that there was a conflict
of interest that was not waived and further concludes
that the findings of the sanity board are not reliable
because of a conflict of interest, the court will
order another sanity board; and
That, after resolving the above issues, the court will
determine whether appellant has the mental capacity to
understand and to conduct or cooperate intelligently
in the appellate proceedings. If so, the court will
determine whether the evidence regarding appellant’s
mental responsibility at the time of the offenses
warrants setting aside the findings and sentence.
3
United States v. Best, No. 00-0679/AR
United States v. Best, 56 M.J. 251 (C.A.A.F. 2001) (order
setting aside decision of Court of Criminal Appeals in Best I
and returning record for further fact-finding) (citation
omitted).After reviewing the findings of the hearing convened
pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411(1967), the court below again affirmed the findings and
sentence. United States v. Best, 59 M.J. 886 (A. Ct. Crim. App.
2004)[hereinafter Best II]. On July 23, 2004, this Court
granted review of the following issue:
WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL
APPEALS ERRED IN HOLDING THAT THERE WAS NO ACTUAL
CONFLICT OF INTEREST INVOLVING MEMBERS ON APPELLANT’S
SANITY BOARD SUFFICIENT TO UNDERMINE THE RELIABILITY
OF THE SANITY BOARD’S FINDINGS.
We conclude for the reasons set forth below, the court did
not err.
FACTS
We accept the factual determinations of the court below,
which we include here for clarity:
At about midnight on 5 April 1997, appellant went to
the Happy Night Disco in Idar-Oberstein, Germany, with
Specialist (SPC) Fowlkes and SPC Wright. At
approximately 0200 hrs, 6 April 1997, SPC Brown
accidentally bumped into appellant. SPC Brown
apologized and turned away from appellant. Appellant
grabbed SPC Brown by the arm, turned him around, and
struck him in the face with a tall, heavy, beer glass.
The glass broke on impact and cut completely through
SPC Brown’s cheek to his teeth. This injury required
four stitches and left a permanent one-quarter to one-
half inch scar on SPC Brown’s face.
4
United States v. Best, No. 00-0679/AR
After appellant hit SPC Brown, several of the people
near them attempted to restrain appellant. Appellant
departed that area of the club and took off his easily
recognizable, red and white stripe shirt and placed it
under his white t-shirt. Shortly thereafter,
appellant and SPC Fowlkes departed the club and waited
for SPC Wright near the club entrance. A few minutes
later, SPC Wright joined them and stated “a guy inside
the club [] told three patrons to follow [appellant]
and see where he was going, and hold him until they
got out there[.]” Appellant asked to see SPC Fowlkes’
“buck knife.” Specialist Fowlkes gave it to him and
appellant placed it in his pocket.
Appellant, SPC Fowlkes, and SPC Wright then proceeded
toward SPC Wright’s automobile. Private First Class
(PFC) Little, SPC Bos, and SPC Woods caught up with
appellant and his friends. Private First Class Little
grabbed appellant by the arm, turned him around, and
said, “[Y]ou need to come back with us. You just
busted a dude in the face and you need to come back
with us, the MPs are on their way.” Appellant pulled
away from PFC Little and said, “You need to back off
me. Just get away,” and walked across the street to
SPC Wright’s car. Appellant stated that he just
wanted to leave. Private First Class Little again
approached appellant and told him “[C]ome back; you
got to be a man and live up to what you did.” Private
First Class Little pushed appellant back a couple of
feet and appellant came back at him. They started
wrestling and punching. Private First Class Little
dropped to his knees and said “Oh, you got to use a
knife.” Appellant replied, “[Y]eah, mother[******].”
Specialist Bos then came toward appellant. As SPC Bos
did so, he put his hand behind his back and pretended
to be holding a knife. Specialist Bos stated the
following to appellant: “Oh, you gotta use a knife.
I’m gonna show you a knife.” Appellant turned and ran
to SPC Wright’s car and departed with his friends.
Lieutenant Colonel Marzouk, a forensic pathologist,
testified that he conducted an autopsy on PFC Little’s
body. Private First Class Little was stabbed a total
of twelve times -– in the heart, left lung, left arm,
left armpit, and forearm. The fatal stab wound was to
the left axilla, armpit, which lacerated a major vein
5
United States v. Best, No. 00-0679/AR
and artery. Private First Class Little died as a
result of blood loss.
Best I, slip op. at 3-5.
Similarly, we accept the additional factual determinations
of the lower court in its April 12, 2004, decision that are
pertinent to Appellant’s claim of a fatal conflict of interest:
On or about 30 September 1997, appellant arrived
at the USDB [United States Disciplinary Barracks],
Fort Leavenworth, Kansas. Upon his arrival, he, like
all inmates, went through a three-week reception
process. The reception process included a battery of
tests to determine appellant’s current psychological
state. All USDB inmates are assigned case providers.
Because appellant’s test results did not indicate that
his case provider needed to be a psychologist, he was
assigned a mental health technician as his case
provider.
Sometime in the spring or summer of 1999,
appellant began “speaking in tongues” and,
infrequently, fell into trances. Appellant expressed
a belief that he “would be delivered from confinement
and received into heaven on the evening of the new
millennium.” Appellant’s conduct was not disruptive
until his belief was not confirmed and the millennium
passed.
In January 2000, appellant was on the “blotter”
for two separate incidents of disobedience and he
began “speaking in tongues” more frequently.
Appellant’s case provider requested an assessment of
appellant to determine whether appellant was suffering
from some type of psychosis or a religious calling.
Doctor Ellen Galloway3 was directed to assess
appellant to determine the cause of his disruptive
behavior. Before she met appellant, Dr. Galloway: 1)
discussed his status with the head chaplain and three
mental health technicians; 2) reviewed his mental
health records; 3) reviewed the battery of
psychological tests administered to him during the
reception process;4 and 4) researched “speaking in
tongues” on an Assemblies of God web page.
6
United States v. Best, No. 00-0679/AR
On 26 January 2000, Dr. Galloway met with
appellant while he was in his cell. The purpose of
the meeting was to make initial contact with
appellant, to gather preliminary data, and to advise
appellant that she planned to spend extensive time the
following day conducting a full assessment of him.
Appellant refused to discuss his “speaking in
tongues,” trances, or religious beliefs, and refused
to cooperate with any psychological testing or with
the clinical interview. Appellant smiled, stated God
was taking care of him, and told Dr. Galloway that he
did not need any mental health intervention. He
turned his head sideways and muttered “nonsensical”
syllables for approximately ten seconds. After
approximately five to ten minutes, appellant told Dr.
Galloway that he was uncomfortable and unwilling to
talk to her. At that point, Dr. Galloway stopped the
interview.
On 28 January 2000, Dr. Galloway prepared a
memorandum for the USDB Commandant regarding
appellant’s mental status. In it, Dr. Galloway stated
that without more cooperation, she could not determine
the driving force behind appellant’s behavior. She
decided that the most likely reasons for his
disruptive behavior were the result of two combined
factors, “traits of a personality disorder and
malingering.” Doctor Galloway further concluded, as
follows:
The personality disorder would have been sub-
clinical in nature and exacerbated by his
confinement. This would have been intensified
further when his expectation of deliverance
was not realized. The rigidity inherent in
personality disorders would explain why he
persists with his behavior despite starting to
experience adverse consequences. The
malingering would explain why his behavior
does not follow the pattern that [the head
chaplain] stated he would have expected from
an individual who speaks in tongues. It would
also explain his refusal to cooperate with any
form of assessment . . . .
7
United States v. Best, No. 00-0679/AR
Doctor Galloway recommended, at that time, that
any further disruptive or disobedient behavior should
be treated as a custody and control issue rather than
a mental health or religious issue. She stated that
all inmates, regardless of their mental status, are
expected to comply with the USDB regulations, but that
a psychological issue could result in mitigating
punitive action. Doctor Galloway even suggested that
she be called as a witness at any board to explain the
mental health circumstances.
By 3 April 2000, appellant was non-communicative
with the USDB non-commissioned officers, had been on
the “blotter” for more disruptive behavior, and had
“been refusing to eat or drink for . . . three or four
days.” A physician’s assistant, who was appointed to
treat appellant during his hunger strike, was alarmed
with appellant’s behavior and refused to engage in the
hunger strike protocol until appellant was
psychiatrically cleared. Doctor Galloway called Dr.
Kirubakaran5 and asked him to meet with appellant on an
emergency consultation.
Doctor Kirubakaran immediately met with appellant
in his cell. Appellant refused to look at Dr.
Kirubakaran, did not respond to any of his
instructions, kept his face covered with a blanket,
constantly talked to himself, and rocked his body.
Because Dr. Kirubakaran was unable to fully assess
appellant’s mental or physical condition, he
recommended appellant be sent to the nearest emergency
room for a complete examination. Later, Dr.
Kirubakaran diagnosed appellant with a “psychotic
disorder [not otherwise specified] and concerns about
catatonia.” He had appellant admitted to the
psychiatric services section of the Leavenworth
Veterans Administration (VA) Hospital.
The VA hospital staff initially determined that
appellant was depressed and was, perhaps, “playing
games” with them. The VA put appellant on anti-
psychotic and mood stabilizing drugs. Appellant
seemed aware of his surroundings because he shook his
head “no” when asked about taking his medication and
allowed the nursing staff to take his vital signs and
blood. Between 5 and 6 April 2000, Dr. Galloway made
more than ten phone calls to the VA doctors and
8
United States v. Best, No. 00-0679/AR
nurses, and Dr. Kirubakaran, discussing appellant’s
physical and mental condition. The VA nurse working
with appellant raised, with Dr. Galloway, the issue of
appellant’s actions as malingering. On 6 April 2000,
the VA discharged appellant and he returned to the
USDB. The VA’s chief of psychiatric services stated
that “1) Inmate Best was not catatonic[;] 2) Inmate
Best was not in the middle of an acute psychotic
episode[;] and 3) that he was filling an isolation
room that another patient might need.”
By 17 April 2000, appellant was again non-
communicative, frequently shaking and covering his
head with a blanket, and most of the time refusing to
eat or drink. Doctor Galloway once more requested
that Dr. Kirubakaran assess appellant. Doctor
Kirubakaran met with appellant at appellant’s cell for
approximately fifteen to twenty minutes. Appellant
appeared to be psychotic and agitated. Doctor
Kirubakaran did not develop a treatment plan for
appellant, however, because he was told that appellant
was to be transferred to the United States Medical
Center for Federal Prisons (Federal Medical Center) in
Springfield, Missouri, because of his refusal to eat
or drink.
On 26 April 2000, appellant was transferred to
the Federal Medical Center. Initially, Dr. Robert
Denny, a staff psychologist, assessed appellant and
concluded that he probably had a serious psychotic
disorder. Doctor Denny transferred him to the
psychiatric hospital for closer observation to
accurately diagnose appellant.
On 28 April 2000, appellant met Dr. Richard
Frederick, a staff psychologist board certified in
forensic psychology. Doctor Frederick was appellant’s
primary clinician -- responsible for conducting
assessments and determining appellant’s mental health
status -- for approximately four months. Doctor Tom
Mallory, Chief of Psychiatry, assisted in assessing
and medicating appellant. Initially, they
hypothesized that appellant may have been faking his
illness. After weeks of observation, however, they
determined that their hypothesis was illogical. “His
condition was very, very serious. He was not eating.
He was not responding rationally or even at all, at
9
United States v. Best, No. 00-0679/AR
times. He was demonstrating very strange postural
changes and mannerisms that were indicative of
probably the most severe psychotic disorder.”
In early May 2000, Drs. Mallory and Frederick
started appellant on an involuntary, non-consensual
medication regimen because they considered appellant
gravely disabled and without it, at risk of death.
They began medicating appellant with very large doses
of extremely powerful anti-psychotic drugs. Even with
the medication, it took appellant approximately one
month to respond to staff interactions in any
consistent fashion. On 18 May 2000, Dr. Frederick
diagnosed appellant as having “Schizophrenia,
catatonic type, in acute exacerbation[.]” In early
June, Drs. Mallory and Frederick augmented the anti-
psychotic medication with anti-depressant medication.
Doctor Frederick advised Dr. Galloway that he
thought it would be in appellant’s best interest to
continue his treatment at the Federal Medical Center.
On 15 September 2000, a Vitek hearing6 was conducted at
Fort Leavenworth. Doctor Frederick testified that
appellant suffered from catatonic schizophrenia. He
added that many of the symptoms of the mental disorder
were currently in remission because of appellant’s
medication regimen. Because Dr. Galloway had not had
any personal contact with appellant since April 2000,
she testified that she did not have a professional
opinion as to appellant’s current mental condition.
After hearing all of the evidence, the military judge
recommended that appellant remain at the Federal
Medical Center for as long as the staff at the center
determined it necessary.
Appellant continued his treatment at the Federal
Medical Center from September 2000 until his transfer
back to the USDB on 8 June 2001. Once he returned to
the USDB, Dr. Kirubakaran began seeing him on a
monthly basis. Appellant did “extremely well,” his
medication was reduced, and he did not exhibit any of
the symptoms he had before. Appellant was called to
testify, by the defense, at the DuBay hearing. He
discussed his relationships with Drs. Galloway and
Kirubakaran, the Vitek hearing, and the sanity board.
He answered all of the questions of the defense
10
United States v. Best, No. 00-0679/AR
counsel, trial counsel, and military judge in a
logical, coherent manner.
_______________
3
Doctor Galloway, Chief of the Mental Health Division
at the Directorate of Treatment Programs at the USDB,
is a Doctor of Psychology. At the time of the DuBay
hearing, Dr. Galloway had held her position for
approximately two years as an active duty officer,
captain, and for approximately one and one-half years
as a civilian.
4
Doctor Galloway determined these test results were
invalid because of appellant’s “need to present
himself in an unrealistically socially desirable
light. He was unwilling to admit to even minor flaws
which are considered within normal limits.”
5
Doctor Kirubakaran, the psychiatry medical officer
for Community Mental Health, which is part of the
Munson Health Center on Fort Leavenworth, is board
certified in Psychiatry, and is a consulting
psychiatrist for the USDB. At the time of the DuBay
hearing, Dr. Kirubakaran had been a psychiatrist for
thirty-three years.
6
Because the military does not have adequate
facilities to provide long-term, inpatient psychiatric
treatment for its prisoners, those prisoners requiring
such treatment are typically transferred to the
custody of the Federal Bureau of Prisons under the
provisions of Article 58(a), UCMJ. Before a prisoner
can be involuntarily transferred from a prison to a
psychiatric treatment facility, he is entitled to
certain procedural safeguards, including notice,
counsel, and a hearing before an independent decision-
maker. Vitek v. Jones, 445 U.S. 480, 63 L. Ed. 2d
552, 100 S. Ct. 1254 (1980); Army Reg. 190-47, The
Army Corrections Systems, para. 3-3 (15 Aug. 1996).
59 M.J. 888-91 (footnotes in original).
11
United States v. Best, No. 00-0679/AR
DISCUSSION
Appellant argues that R.C.M. 706 contains an implicit, per
se prohibition of membership on a so-called “sanity board” by
any physician or psychologist who has previously “diagnosed
and/or treated” the subject of that board. In the alternative,
we are urged to conclude that the results of the board convened
under R.C.M. 706 to examine Appellant are fatally unreliable
because of an actual or apparent conflict of interest on behalf
of one or more members of that board.
At the outset, we decline the Government’s invitation to
view both the question of whether a conflict of interest existed
and the effect of any such conflict as questions solely of fact,
and thus limit our review to a determination of whether the Army
Court of Criminal Appeals abused its discretion in denying
relief. While there are factual questions in issue, the lower
court’s interpretation of R.C.M. 706 and assessment of the
reliability of trial proceedings are matters of law that we
review de novo, not only because the lower court’s decision
constitutes the recognition and formulation of legal standards,
but because “the reasoning upon which it is based shows it to be
a matter of law.” United States v. Benson, 3 C.M.A. 351, 354,
12 C.M.R. 107, 110 (1953). Consistent with other mixed
questions of fact and law, the findings of fact made by the
12
United States v. Best, No. 00-0679/AR
court below are accepted unless clearly erroneous. United
States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F. 1995).
A. NATURE OF AN R.C.M. 706 BOARD IN THE POST-TRIAL ARENA
A sanity board is a creature not of statute, but of
executive order and long-standing military practice, dating to
at least 1917. See Captain Charles E. Trant, The American
Military Insanity Defense: A Moral, Philosophical, and Legal
Dilemma, 99 Mil. L. Rev. 1, 66 n.349 (1983). Referring to
sanity inquiries based on the Manual for Courts-Martial, United
States (MCM)(1951 ed.), para. 121, this Court has held that
“[m]edical board proceedings, of course, are not judicial in
nature, purpose, or effect; they are entirely administrative.”
United States v. Erb, 12 C.M.A. 524, 529-30, 31 C.M.R. 110, 115-
6 (1961). By comparing the participation of Drs. Galloway and
Kirubakaran in Appellant’s R.C.M. 706 board to a trial judge who
reviews his own rulings, Appellant fails to recognize the
distinction between administrative and judicial bodies. As an
administrative board, whose members are typically appointed by a
medical commander and not by the convening authority, and whose
findings do not bind the court-martial in its determination of
either competence (R.C.M. 909(e)) or mental responsibility
(R.C.M. 916(k)(3)(C) and 921(c)(4)), a board convened under
R.C.M. 706 cannot be analogized to a court of members. For
example, doctors serving on an R.C.M. 706 board would not only
13
United States v. Best, No. 00-0679/AR
be granted access to an appellant’s prior medical records,
including previous diagnoses by other doctors, but would be
encouraged to read those prior records to develop a full picture
of an appellant’s mental history. Thus, in this case, Drs.
Galloway and Kirubakaran would have access to previous diagnoses
of Appellant regardless of whether they made those diagnoses.
Nonetheless, we have frequently recognized the important
protections afforded by R.C.M. 706 and its predecessors to
servicemembers facing the court-martial process. We have
emphasized the responsibility of the convening authority and the
military judge to order a sanity board when required, as well as
the duty of all participants in the process to bring to the
attention of the convening authority or military judge any
condition or behavior that may reasonably call into question the
mental responsibility or competence of an accused. United
States v. Collins, 60 M.J. 261 (C.A.A.F. 2004).
Although post-trial R.C.M. 706 boards are not expressly
sanctioned by the rule (or by its predecessors, MCM (1951 ed.),
para. 121, and MCM (1969 ed.), para. 121), this Court has
historically addressed issues associated with such boards:
In the Uniform Code of Military Justice, sanity is
mentioned directly only with respect to trial
proceedings, and not at all in connection with post-
trial review. See Articles 51 and 52, 50 USC §§ 626
and 627. Paragraph 121 of the 1951 Manual is entitled
“Inquiry before Trial” -- and therefore, on its face,
would appear to be inapplicable to mental disease
14
United States v. Best, No. 00-0679/AR
first appearing during the appellate process, and not
present either at the time of the crime or that of the
trial. However, this same Manual division is
referenced in paragraph 124, which is concerned with
the post-trial action of the convening, or of higher,
authority. This mention we construe to be directed to
insuring that, in a proper case, the convening
authority will direct the convention of a medical
board of inquiry -- as provided in paragraph 121 --
for the purpose of answering three questions
concerning the accused’s mental condition. The first
two of these have to do with mental responsibility for
the crime; the third concerns mental capacity and is
phrased as follows: “Does the accused possess
sufficient mental capacity to understand the nature of
the proceedings against him and intelligently to
conduct or cooperate in his defense (120c)?”
United States v. Washington, 6 C.M.A. 114, 118, 19 C.M.R. 240,
244 (1955).
Further, “when not restrained by the 2-year limitation of
Article 73, [UCMJ, 10 U.S.C. § 873] we have given preferential
treatment to the question of mental responsibility when raised
for the first time on appeal.” United States v. Murphy, 50 M.J.
4, 15 (C.A.A.F. 1998) . In so doing, however, this Court has
made plain that to constitute reversible error, the existence or
outcome of a sanity board must have had a substantive effect on
the trial:
It is true that, historically, sanity has occupied a
special status in military law. However, to prevail
on appeal an accused must convince an appellate court
that a “different verdict might reasonably result” if
the trier of fact had evidence of a lack of mental
responsibility that was not available for
consideration at trial.
United States v. Breese, 47 M.J. 5, 6 (C.A.A.F. 1997).
15
United States v. Best, No. 00-0679/AR
See also United States v. Young, 43 M.J. 196, 197 (C.A.A.F.
1995); United States v. Dock, 28 M.J. 117, 119, 120 (C.M.A.
1989).
B. QUALIFICATION AND DISQUALIFICATION OF SANITY BOARD MEMBERS
1. Federal Civilian References
Although applicable only by analogy, we note that 18 U.S.C.
§ 4247(b)(2000), provides, in part:
A psychiatric or psychological examination ordered
pursuant to this chapter shall be conducted by a
licensed or certified psychiatrist or psychologist,
or, if the court finds it appropriate, by more than
one such examiner. Each examiner shall be designated
by the court, except that if the examination is
ordered under section 4245 [commitment of those
already imprisoned] or 4246 [commitment of prisoners
due for release], upon the request of the defendant an
additional examiner may be selected by the defendant .
. . Unless impracticable, the psychiatric or
psychological examination shall be conducted in the
suitable facility closest to the court.
Neither this section nor Federal Rule of Criminal Procedure
12.2, on the same subject, precludes examination of a defendant
by a psychotherapist who has previously assessed, examined,
diagnosed, or treated that defendant. In fact, by allowing the
defendant to pick his own additional examiner in certain
situations, the statute appears to invite participation in the
process by a treating psychotherapist, though not in the
specific context of a pretrial sanity inquiry.
Few cases in the federal circuits have examined conflicts
of interest involving psychotherapists, and none has considered
16
United States v. Best, No. 00-0679/AR
the precise question of whether a psychotherapist who has
entered even a limited practitioner-patient relationship should
be excluded from participation in future, unbiased evaluations
of that patient. Even so, we are aided by the logic of the
Third and Seventh Circuits on related topics.
Addressing whether a treating physician should be allowed
to testify as an expert witness for the patient he had treated,
the Third Circuit said:
Opinions by physicians who have neither examined nor
treated a patient “have less probative force, as a
general matter, then they would have if they had
treated or examined him.” Wier ex rel. Wier v.
Heckler, 734 F.2d 955, 963 (3d Cir. 1984). In the
context of social security disability cases, in fact,
we afford greater weight to a treating physician’s
opinion. See Dorf v. Bowen, 794 F.2d 896 (3d Cir.
1986); Brewster v. Heckler, 786 F.2d 581 (3d Cir.
1986). “The rationale for giving greater weight to a
treating physician’s opinion is that he is employed to
cure and has a greater opportunity to know and observe
his patient. . . .” Sprague v. Bowen, 812 F.2d 1226,
1230 (9th Cir. 1987).
Holbrook v. Lykes Bros. S.S. Co., Inc., 80 F.3d 777, 782-783 (3d
Cir. 1996).
In Silagy v. Peters, when invited to find a due process
violation in the alleged incompetence of one or more of the
psychiatrists appointed to examine that appellant, the Seventh
Circuit observed:
[W]e would be reluctant to open up this type of [Ake
v. Oklahoma, 470 U.S. 68 (1985)] claim to a battle of
the experts in a “competence” review. Every aspect of
a criminal case which involves the testimony of
17
United States v. Best, No. 00-0679/AR
experts could conceivably be subject to such a review
-- a never[-]ending process. In this case, as the
district court noted, three experienced, board-
certified, independent practicing psychiatrists were
appointed to examine the Petitioner. Each
psychiatrist conducted a thorough examination and
submitted his diagnosis to the court . . . Without
regard to their ultimate diagnoses, we believe that
this meets the requirements set forth in Ake. A
conclusion to the contrary would require this court
and other federal courts to engage in a form of
“psychiatric medical malpractice” review as part-and-
parcel of its collateral review of state court
judgments. The ultimate result would be a never-
ending battle of psychiatrists appointed as experts
for the sole purpose of discrediting a prior
psychiatrist’s diagnosis. We do not believe this was
the intent of the Court in Ake when it held that
indigent defendants who raise a defense of insanity
are entitled to psychiatric assistance in the
preparation of their defense. Accordingly, we reject
Petitioner’s fourteenth amendment due process claim
concerning the competence of the psychiatrists at his
trial.
905 F.2d 986, 1012-13 (7th Cir. 1990).
While the Seventh Circuit specifically noted that each of
these psychiatrists was “independent” –- the quality Appellant
claims is missing in his case –- we believe that reference was
to the right to an expert independent of the prosecution
established by Ake: “In the cases, ‘independent’ as opposed to
‘neutral’ means that the expert must be additional to, and
separate from, court-appointed experts or experts engaged by the
prosecution.” Orbe v. True, 233 F. Supp. 2d 749, 776 (E.D. Va.
2002) (discussing a mental health expert in a capital case).
18
United States v. Best, No. 00-0679/AR
2. Military References
The UCMJ specifies numerous qualifications for participants
in the military justice process. Congress has established
statutory qualifications for convening authorities (Articles 22,
23, 24, UCMJ, 10 U.S.C. §§ 822, 823, 824 (2000)), court members
(Article 25, UCMJ, 10 U.S.C. § 825 (2000)), military judges
(Article 26, UCMJ, 10 U.S.C. § 826 (2000)), trial and defense
counsel (Article 27, UCMJ, 10 U.S.C. § 827 (2000)), and
investigating officers (Article 32, UCMJ, 10 U.S.C. § 832
(2000)). Congress provided for court reporters and interpreters
(Article 28, UCMJ, 10 U.S.C. § 828 (2000)) but left their
qualifications to the service secretaries.
Likewise, pursuant to his authority under Article 36, UCMJ,
10 U.S.C. § 836 (2000), the President has promulgated the Manual
for Courts-Martial establishing or embellishing qualifications
for convening authorities, court members, military judges,
counsel, court reporters, bailiffs, interpreters, escorts,
clerks, and guards. See generally R.C.M., ch. V.
R.C.M. 706 establishes requirements for sanity boards,
including membership qualifications:
By whom conducted. When a mental examination is
ordered under subsection (b) of this rule, the matter
shall be referred to a board consisting of one or more
persons. Each member of the board shall be either a
physician or a clinical psychologist. Normally, at
least one member of the board shall be either a
psychiatrist or a clinical psychologist. The board
19
United States v. Best, No. 00-0679/AR
shall report as to the mental capacity or mental
responsibility or both of the accused.
R.C.M. 706(c)(1).
R.C.M. 706 does not address professional conflicts of
interest for sanity board members. Both the discussion and
the drafter’s analysis are silent on the issue. Neither
the 1951 Manual for Courts-Martial, nor the May 1953
edition of the Department of the Army’s Technical Manual
(TM) 8-240, Psychiatry in Military Law, addressed conflicts
of interest for sanity board members or prohibited
appointment to such boards of mental health practitioners
who may have previously diagnosed or treated an accused.1
However, in 1961, this Court noted, without comment, the
appointment of a treating psychiatrist to a “competency
board” (predecessor of the R.C.M. 706 board) pursuant to a
local requirement that the doctor “personally responsible”
for the accused be a member of the board. Erb, 12 C.M.A.
at 529, 31 C.M.R. at 115. In fact, in Erb, the accused’s
psychiatrist was appointed as a member of the second
competency board, notwithstanding his participation in the
first board as the psychiatrist who “presented the case to
the board.” Erb, 12 C.M.A. at 529, 31 C.M.R. 115. This
second board found that Sergeant Erb was a chronic
1
Subsequent editions of these references are similarly silent.
20
United States v. Best, No. 00-0679/AR
schizophrenic, but could distinguish right from wrong and
had an impaired ability to form the specific intent for
“homicide.” Id. This Court’s silence on the issue of
board membership is noteworthy because, on appeal, one
claim raised by Sergeant Erb was that improper command
influence had affected the result of the second board
appointed to inquire into his sanity. The defense
contended that the board results had been manipulated
“without regard to their reliability or trustworthiness” to
ensure the trial and conviction of Sergeant Erb. Erb, 12
C.M.A. at 530, 31 C.M.R. 116 (emphasis added). This
Court’s opinion did not question participation on the board
by Sergeant Erb’s treating psychiatrist. Finally, Erb
cautions against looking for a “correct” diagnosis:
“Psychiatry is not an exact science; and individual
psychiatrists may differ strongly in their findings
regarding an accused.” Erb, 12 C.M.A. at 529, 31 C.M.R. at
115 (citing United States v. Carey, 11 C.M.A. 443, 29
C.M.R. 259 (1960); United States v Kunak, 5 C.M.A. 346,
369; 17 C.M.R. 346 369 (1954) (Quinn, C.J., dissenting)).
Responding to one appellant’s broad challenge to the
neutrality of military psychotherapists appointed to sanity
boards, this Court said:
21
United States v. Best, No. 00-0679/AR
[i]n the many records that have passed through this
Court, we have observed no tendency on the part of
military psychiatrists to favor either the prosecution
or the defense. We are satisfied that their
determinations are impartial and that they seek not to
uncover evidence for the Government but truly to
determine the mental condition of the accused. . . .
Military psychiatrists are paid by the Government, but
so are defense counsel. We are certain that neither
group shirks its professional responsibilities because
they are employees of the United States.
United States v. Johnson, 22 C.M.A. 424, 427, 47 C.M.R.
402, 405 (1973).
In United States v. Loving, this Court declined to expand
the membership requirements of R.C.M. 706:
The next question is whether the requirements of
RCM 706 (Change 3) have been met. RCM 706(c)(1)
provides that an inquiry into mental capacity or
mental responsibility “shall be referred to a board
consisting of one or more persons. Each member of the
board shall be either a physician or a clinical
psychologist.”
We hold that the requirements of RCM 706(c)(1)
have been met in appellant’s case. A board consisting
of a single psychiatrist would have satisfied the
rule. Furthermore, even assuming arguendo that CPT
Coleman had not received his Ph.D. degree at the time
he participated in the board, there is nothing in the
rule requiring that a “clinical psychologist” possess
a Ph.D. The record before us reflects that CPT
Coleman was a trained psychologist, was credentialed
by Army medical authorities as a clinical
psychologist, and was assigned to duties as a clinical
psychologist. RCM 706 was amended in 1986 to parallel
prevailing federal practice of allowing use of
clinical psychologists in mental status evaluations.
Drafters’ Analysis of RCM 706(c)(1), Manual, supra at
A21-36 (Change 3). Unlike 18 USC § 4247(b), RCM
706(c)(1) does not specify that the psychiatrist or
psychologist performing the evaluation be “licensed or
certified.” Nevertheless, in the absence of evidence
22
United States v. Best, No. 00-0679/AR
to the contrary, the fact that CPT Coleman was
credentialed by military medical authorities to
perform duties as a clinical psychologist raises a
presumption that he was qualified to do so. See
United States v. Masusock, 1 U.S.C.M.A. 32, 35, 1
C.M.R. 32, 35 (1951) (“presumption of regularity in
the conduct of governmental affairs”). That
presumption has not been rebutted in this case.
41 M.J. 213, 241 (C.A.A.F. 1994).
3. Medical and Analogous References
Although there are no readily applicable ethical guidelines
for psychiatrists,2 the American Psychological Association’s
(APA) Ethical Principles of Psychologists and Code of Conduct,
which became effective in 1992, contains at least two applicable
standards:
1.17 Multiple Relationships.
(a) . . . Psychologists must always be sensitive to
the potential harmful effects of other contacts on
their work and on those persons with whom they deal.
A psychologist refrains from entering into or
promising another personal, scientific, professional,
financial, or other relationship with such persons if
it appears likely that such a relationship reasonably
might impair the psychologist’s objectivity or
otherwise interfere with the psychologist’s
effectively performing his or her functions as a
psychologist, or might harm or exploit the other
party.
(b) Likewise, whenever feasible, a psychologist
refrains from taking on professional or scientific
2
See 3 Jay Ziskin & David Faust, Coping with Psychiatric and
Psychological Testimony 17 (5th ed. 1995). See also American
Academy of Psychiatry & the Law Ethical Guidelines for the
Practice of Forensic Psychiatry (adopted 1987, revised 1995).
23
United States v. Best, No. 00-0679/AR
obligations when pre-existing relationships would
create a risk of such harm.
(c) If a psychologist finds that, due to unforeseen
factors, a potentially harmful multiple relationship
has arisen, the psychologist attempts to resolve it
with due regard for the best interests of the affected
person and maximal compliance with the Ethics Code.
. . . .
7.02 Forensic Assessments.
(b) . . . psychologists provide written or oral
forensic reports or testimony of the psychological
characteristics of an individual only after they have
conducted an examination of the individual adequate to
support their statements or conclusions.
Both Drs. Galloway and Kirubakaran testified that they were
aware of these guidelines, had considered them, and had
concluded that no conflict of interest existed. No case law,
commentary, or analysis is available to enlighten our
consideration of their conclusions.
While not in force at the time of Appellant’s sanity board,
the 2003 revision of the APA ethical standard for multiple
relationships is enlightening:
3.05 Multiple relationships.
(a) A multiple relationship occurs when a psychologist
is in a professional role with a person and (1) at the
same time is in another role with the same person . .
. . A psychologist refrains from entering into a
multiple relationship if the multiple relationship
could reasonably be expected to impair the
psychologist’s objectivity, competence, or effective-
ness in performing his or her function as a
psychologist, or otherwise risks exploitation or harm
24
United States v. Best, No. 00-0679/AR
to the person with whom the professional relationship
exists.
Multiple relationships that would not reasonably be
expected to cause impairment or risk exploitation or
harm are not unethical.
. . . .
3.06 Conflict of Interest.
Psychologists refrain from taking on a professional
role when personal, scientific, professional, legal,
financial, or other interests or relationships could
reasonably be expected to 1) impair their objectivity,
competence, or effectiveness in performing their
function as psychologists or 2) expose the person or
organization with whom the professional relationship
exists to harm or exploitation.
APA Ethical Principles of Psychologists and Code of Conduct
§§ 3.05, 3.06 (2003).
Neither the Office of Government Ethics’ Standards of
Ethical Conduct for Employees of the Executive Branch, 5
C.F.R. pt. 2635 (2005), nor the Department of Defense
supplement thereto, provides any directly pertinent
provision, as the conflict of interest rules therein are
primarily aimed at financial or employment conflicts.
Finally, we note that this case does not require us to
decide whether, or in what circumstances, a practitioner
who receives a privileged communication under M.R.E. 513
may be ineligible to serve as a member of a board appointed
under R.C.M. 706.
25
United States v. Best, No. 00-0679/AR
C. TEST FOR EVALUATION OF POTENTIAL CONFLICTS
Because we are neither a legislative nor executive body,
and because even an expansive interpretation of R.C.M. 706 does
not suggest such an intent by the drafters, we decline to read
that rule so as to contain a per se exclusion from participation
in examining boards of practitioners who have either treated or
diagnosed the subject of such a board.
After reviewing historical practice, our own precedent, and
the legal reasoning of the court below, we agree that “an actual
conflict of interest exists if a psychotherapist’s prior
participation materially limits his or her ability to
objectively participate in and evaluate the subject of an R.C.M.
706 sanity board.” Best II, 59 M.J. at 892.
D. APPLYING THE NEW TEST
1. Dr. Galloway’s prior involvement
As Chief, Mental Health Division, USDB, Dr. Galloway was
directed in January 2000 to assess Appellant to determine
whether he was suffering from a psychosis and to determine the
cause of his disruptive behavior. When Dr. Galloway attempted
to interview Appellant, he resisted and then declined, saying
that God was taking care of him and he needed no mental
treatment. Best II, 59 M.J. at 889. Dr. Galloway then reported
to the commandant that she was unable to “determine the driving
force behind Appellant’s behavior,” and posited a combination of
26
United States v. Best, No. 00-0679/AR
personality disorders and malingering as the most likely causes.
She further recommended that Appellant’s disruptions be treated
as misconduct rather than medical issues. Id. About nine weeks
later, when Appellant’s behavior worsened and he began a hunger
strike, Dr. Galloway asked Dr. Kirubakaran to effect an
emergency consultation. Id. at 890. During the two days after
Appellant’s admission to the Department of Veterans Affairs (VA)
hospital, Dr. Galloway made “more than ten phone calls to the VA
doctors and nurses, and Dr. Kirubakaran, discussing appellant’s
mental and physical condition.” Id. Amid questions of
potential malingering, Appellant was released from the VA on
April 6, 2000, by order of the VA’s chief of psychiatric
services. On April 17, Dr. Galloway again asked Dr. Kirubakaran
to assess Appellant’s symptomatic behavior in his cell. Id. At
a hearing pursuant to Vitek v. Jones, 445 U.S. 480 (1980), on
September 17, Dr. Galloway testified that, because she had not
seen Appellant since April 2000, she had no current opinion of
his condition. Best II, 59 M.J. at 891. Dr. Galloway did not
treat or diagnose Appellant during their initial visit; she did
only a brief assessment. Appellant was not one of her patients.
Dr. Galloway is usually involved in sanity boards on prisoners
because she works “behind the walls” and can gather necessary
documents and information. Dr. Galloway does not believe she
had any conflicts in her dealings with Appellant because she was
27
United States v. Best, No. 00-0679/AR
wearing the same hat –- performing assessments on someone who
was not her patient. She also was not “protecting” her earlier
diagnosis.
Q. You talked about the questions that the board had
prior to it’s [sic] meeting. Did you know the answers
to those questions before the board met on the 21st of
March?
A. I knew that Springfield had diagnosed him as
schizophrenia. It’s my job to make my own diagnosis,
but in terms of the earlier questions like can he
assist counsel right now, or whatever that – let me
look at what the questions were.
Q. No, no, just testify from your recollection.
A. Okay. Okay, from my recollection, sir, I had
Springfield’s diagnosis, but my responsibility to make
my own, and frankly theirs and mine didn’t match, so
it was my job to figure out what was going on, and who
in my opinion was right. In terms of whether or not
he was competent to assist counsel, I had no clue,
because I hadn’t seen him, and in terms of his --
Q. So the short answer is you didn’t know before the
board met?
A. No.
Q. You didn’t know the answers to the questions?
A. Well, except that I did know their opinion on the
diagnostic piece. I didn’t know the rest at all.
Q. And you knew theirs disagreed with yours?
A. Right.
Q. Okay, now after the board met though, and after
you –- I take it you were able to answer the four
questions, as a member of the board, and your answer
as to the diagnosis agreed with that of Springfield,
did it not, after the board?
28
United States v. Best, No. 00-0679/AR
A. Um-hum. In essence, sir, they were right and I
was wrong.
Q. I see.
A. Or at least my earlier one was wrong.
Q. And you said it was your responsibility to reach a
diagnosis. How exactly do you do that at this board?
How did you reach the diagnosis that agreed with
Springfield’s?
A. The same way you reach a diagnosis of anybody.
You ask them a whole lot of questions, because I know
what symptoms are associated with what illnesses.
2. Dr. Kirubakaran’s prior involvement
When called by Dr. Galloway, Dr. Kirubakaran (the
psychiatry medical officer at the Fort Leavenworth hospital)
“immediately met with appellant in his cell.” Because Appellant
was uncommunicative and appeared abnormal, Dr. Kirubakaran
referred Appellant to the nearest emergency room for a complete
examination. He “diagnosed appellant “with a ‘psychotic
disorder [not otherwise specified] and concerns about
catatonia’” and had Appellant admitted to the psychiatry ward of
the Leavenworth VA hospital on April 3. Best II, 59 M.J. at
890. On April 17, when requested by Dr. Galloway, Dr.
Kirubakaran met with Appellant in his cell for about fifteen to
twenty minutes, observed that Appellant was “psychotic and
agitated,” but didn’t make a treatment plan because Appellant
was being transferred to federal prison because of Appellant’s
hunger strike. Id. After more than thirteen months at the
29
United States v. Best, No. 00-0679/AR
federal medical center, Appellant returned to the USDB, where
Dr. Kirubakaran “began seeing him on a monthly basis.” Id.
Prior to the sanity board, Dr. Kirubakaran saw Appellant twice,
both for brief assessments, not amounting to evaluations and not
amounting to treatment. Because Dr. Kirubakaran’s contacts with
Appellant, prior to the sanity board, had been brief
assessments, Dr. Kirubakaran did not believe that, clinically,
he had a conflict of interest; however, once he became
Appellant’s treating psychiatrist, that analysis would be
different.
CONCLUSION
Adopting and applying the test formulated by the court
below, we conclude that even if there exists some evidence of
conflict, that evidence is insufficient to comprise an “actual
conflict of interest.” There was no material limitation of
either Dr. Galloway’s or Dr. Kirubakaran’s ability to
participate objectively in the board or evaluate Appellant.
Although there are conflict of interest rules for psychologists
and commentary to the ethical guidelines for the practice of
forensic psychiatry suggesting that psychiatrists “should
generally avoid agreeing to be an expert witness or to perform
evaluations of their patients for legal purposes,” American
Academy of Psychiatry and the Law Ethical Guidelines for the
Practice of Forensic Psychiatry (adopted 1987, revised 1995),
30
United States v. Best, No. 00-0679/AR
those conflict rules do not apply to these facts. As Dr.
Galloway put it, at least through the time of Appellant’s sanity
board, both Dr. Galloway and Dr. Kirubakaran were each wearing
only “one hat.” Neither was Appellant’s psychotherapist.
Neither did more than a brief assessment, followed in some cases
by referral to those who could diagnose Appellant and offer him
treatment. Consequently, there is no reason to question whether
the board’s membership complied with R.C.M. 706 or question the
reliability of the trial results.
The decision of the United States Army Court of Criminal
Appeals is affirmed.
31
United States v. Best, No. 00-0679/AR
BAKER, Judge (concurring in the result):
Dr. Galloway and Dr. Kirubakaran assessed Appellant’s
mental condition while Appellant was an inmate at the
Disciplinary Barracks, Fort Leavenworth, Kansas. As recounted
in the majority opinion, neither doctor assessed Appellant as
suffering from a severe mental disease or defect. As a result,
neither doctor treated Appellant for such a disease or defect.
Dr. Galloway indicated in her assessment a suspicion that
Appellant was malingering and that abnormalities in his behavior
should be treated in the framework of custodial discipline and
not as medical problems. However, there came a time when
Appellant’s behavior required medical treatment, and he was
subsequently diagnosed with acute schizophrenia. Appellant was
eventually referred to a board convened pursuant to Rule for
Courts-Martial (R.C.M.) 706 by order of this Court. United
States v. Best, 54 M.J. 367 (C.A.A.F. 2000). The board
concluded that Appellant was not suffering from a severe mental
disease or defect at the time of his original offense. Dr.
Galloway and Dr. Kirubakaran served as two of the three members
of Appellant’s R.C.M. 706 board.
The question on appeal is whether Dr. Galloway or
Dr.Kirubakaran had a conflict of interest that should have
disqualified them from serving on Appellant’s R.C.M. 706 board.
Put into factual context, in light of their prior assessments,
United States v. Best, No. 00-0679/AR
which did not identify the severity of Appellant’s condition,
were they capable of impartially serving on Appellant’s board
without in some manner trying to validate or justify their prior
judgments regarding Appellant?
Like this Court, the Court of Criminal Appeals found this
to be a question of first impression. The lower court
analogized to both the American Psychological Association’s Code
of Conduct (applicable to psychologists) and the American
Medical Association’s Principles of Medical Ethics (applicable
to psychiatrists), as well as the conflict of interest standard
for legal counsel articulated by the Supreme Court in Mickens v.
Taylor, 535 U.S. 162, 172 n.5 (2002), to develop its standard
for psychotherapist conflict of interest review. The Court of
Criminal Appeals “conclude[d] that an actual conflict of
interest exists if a psychotherapist’s prior participation
materially limits his or her ability to objectively participate
in and evaluate the subject of an R.C.M. 706 sanity board.”
United States v. Best, 59 M.J. 886, 892 (A. Ct. Crim. App.
2004). However, the lower court, this Court, and the parties
have struggled to place this issue in broader legal context.
The majority, for example, concludes that the process associated
with R.C.M. 706 boards is entirely a function of administrative
law and executive discretion, and fails to place the issue
presented into constitutional context.
2
United States v. Best, No. 00-0679/AR
While I agree with the majority’s conclusion that Dr.
Galloway and Dr. Kirubakaran did not bear a disqualifying
conflict in this case, I believe the question presented finds
its root in constitutional due process. The Fifth and
Fourteenth Amendments of the U.S. Constitution restrain
government from depriving any person of life, liberty, or
property without due process of law, and “protect[] the
individual against the arbitrary action of government.”
Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 459-60
(1989); Ex parte Wilson, 114 U.S. 417, 426 (1885) (“The purpose
of the [Fifth] Amendment was to limit the powers of the
legislature, as well as of the prosecuting officers, of the
United States.”). A protected liberty interest may arise from
either the text of the Due Process Clause itself, or as a result
of a statute or regulation that places substantive limitations
on official discretion. See Thompson, 490 U.S. at 462; Vitek v.
Jones, 445 U.S. 480, 488 (1980); see also Ford v. Wainwright,
477 U.S. 399, 428 (1986) (O’Connor, J., concurring in part and
dissenting in part) (“Our cases leave no doubt that where a
statute indicates with ‘language of an unmistakable mandatory
character,’ that state conduct injurious to an individual will
not occur ‘absent specified substantive predicates,’ the statute
creates an expectation protected by the Due Process Clause.”)
(quoting Hewitt v. Helms, 459 U.S. 460, 471-72 (1983)).
3
United States v. Best, No. 00-0679/AR
Under R.C.M. 706, once a mental examination is ordered, the
matter shall be submitted to a sanity board charged to report on
the mental responsibility or capacity of the accused. The rule
includes specific, discretion-narrowing directives for both the
order authorizing the board and for the conduct of the board
itself. R.C.M. 706(c). While Appellant may have had no
independent constitutional right to an R.C.M. 706 board, once
such a board was ordered, its evaluation must have been
conducted in a manner consistent with the requirements
of procedural due process. See Wainwright, 477 U.S. at 428-29;
see also Diaz v. Judge Advocate General of the Navy, 59 M.J. 34,
38 (C.A.A.F. 2003) (where statute has created appellate process
as integral part of criminal justice system, procedures used in
deciding appeal must comport with demands of due process and
equal protection).
Such due process includes the right to a fair and impartial
adjudicator. Concrete Pipe & Prods. v. Constr. Laborers Pension
Trust, 508 U.S. 602, 617 (1993) (“That officers acting in a
judicial or quasi-judicial capacity are disqualified by their
interest in the controversy to be decided is, of course, the
general rule.”) (quoting Tumey v. Ohio, 273 U.S. 510, 522
(1927)). Cf. United States v. Dowty, 60 M.J. 163, 169 (C.A.A.F.
2004) (“This right [to an impartial jury] ‘is the cornerstone of
the military justice system.’”) (quoting United States v. Hilow,
4
United States v. Best, No. 00-0679/AR
32 M.J. 439, 442 (C.M.A. 1991)); Article 37, Uniform Code of
Military Justice, 10 U.S.C. § 837 (statute prohibiting any
attempt to improperly influence the determinations of a court-
martial or reviewing authority). In the context presented at
bar, the Court of Criminal Appeals adopted by analogy the
conflict standards for psychotherapeutic professionals and for
legal counsel to determine if the members of Appellant’s R.C.M.
706 board were indeed impartial. While I defer on whether this
is the correct standard to apply in all R.C.M. 706 conflict of
interest contexts (i.e., for both psychologists and
psychiatrists), I am satisfied that this standard appropriately
tested whether Dr. Galloway and Dr. Kirubakaran were
“impartial.”
I believe the facts as applied against this standard
indicate that both were capable of impartial judgment. Among
other things, Dr. Galloway acknowledged under direct examination
and cross-examination that she was incorrect in her initial
assessment of Appellant. Further, she demonstrated a
willingness to reassess her judgment and to do so without
apparent defensiveness or protection of her prior judgment. As
judges are asked on occasion to reconsider their judgments on
appeal, based on perceived errors in law or fact, See, e.g.,
C.A.A.F. R. 31, I do not believe doctors as professionals are
inherently incapable of doing the same absent a showing of
5
United States v. Best, No. 00-0679/AR
actual conflict. In the context of the liberty interest
associated with this particular R.C.M. 706 board, there was
added protection in that the integrity and impartiality of the
doctors’ evaluation was subject to the crucible of cross-
examination.
This would appear to leave Appellant in the position of
arguing for a per se disqualification where an assessing
psychotherapist subsequently serves on a R.C.M. 706 board.
However, such a position is not required as a matter of
statutory law or constitutional due process, where as here,
Appellant has had the opportunity to test for impartiality.
Moreover, in the military context, there may be good operational
reasons why an assessing or treating physician may also be
required to serve on an R.C.M. 706 board.
That being said, while the Government may be satisfied that
a doctor can appropriately function as both a treating physician
and subsequent board member in specific situations, that does
not mean that a treating physician should always do so. The
Government might choose as a prudential matter to eliminate any
possible appearance of a conflict of interest, and related
litigation, by affirmatively selecting qualified R.C.M. 706
board members with no prior connection to the subject of the
review. Such an approach is consistent with the admonition in
both the psychologists’ Code of Conduct and the psychiatrists’
6
United States v. Best, No. 00-0679/AR
Principles of Medial Ethics, which disfavor, and in some cases
bar, a treating psychotherapist’s performance of multiple roles.
7