Afghan Massacre: The Coming Sanity Board

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What’s next in the case ofArmy Staff Sergeant Robert Bales, formally charged Friday with murdering 17 Afghan civilians? I will not try to answer that question regarding the courtroom proceedings. But what I can discuss is the normal military procedure for assessing competency to stand trial, and criminal responsibility at the time of the crime. Criminal responsibility is the technical term for what is often called by the public as “insanity.”

When there is a reasonable question of whether an accused lacks competency or criminal responsibility, the military judge may order a so-called “sanity board.” The actual procedure is covered in the Manual for Courts Marital, under the Rule for Court Martial 706, so it also is commonly referred to as a “706.” The 706 board is designed to be neutral — working for neither the defense nor prosecution — but for the court. These procedures are similar to those in most states, but with some important differences.

The sanity board is usually conducted by three military psychiatrists or psychologists, often with specialized training in forensic psychiatry or psychology.

Typically the following questions are asked:

— At the time of the alleged criminal conduct, did the accused have a severe mental disease or defect?

— What is the clinical psychiatric diagnosis?

— Does the accused have sufficient mental capacity to understand the nature of the proceedings and to conduct or cooperate intelligently in the defense? (Competency)

— 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? (Criminal Responsibility)

The sanity board normally takes up to a week to complete.  A full account of the person’s life, medical and psychiatric history, as well as the account of the crime is elicited. Psychological testing may or may not be done. There may be other questions added, depending on the case.

It is essential for the sanity board to strive for objectivity. The report is usually quite long, and the findings must be bolstered by data. The sanity board provides its findings to a select readership: the judge, government and defense attorneys, and selected others.

In addition, usually the defense hires a psychiatric expert in addition to assist with developing a defense strategy. The government may also retain an expert, to assist with prosecution. These experts, since they are working for one side or the other, will be more focused on the case strategy, but still must strive to avoid bias.

In the military, it is rare for the accused to be found not competent. In contrast to the civilian world, few of the defendants have chronic schizophrenia or developmental disabilities.  Similarly, few are found to lack criminal responsibility — to be “insane” — as few Soldiers have a long history of severe mental illness.

On the other hand, the sanity board (and other experts) often reveal mitigating circumstances. They may unearth medical illnesses that lead to impaired judgment, such as a thyroid problem. (Alcohol and drug use are not usually perceived as mitigating circumstances.)

The discussion of the insanity defense is a tremendously complicated one, and there are many textbook chapters and tomes devoted to it. This is only a brief outline to help guide the reader as to the sanity board procedures