John Browne said Friday that he has refused to let his client participate in what’s known in the Army as a 706 Board or “sanity board.” His client is Army Staff Sergeant Robert Bales, who stands charged by the U.S. Army with murdering 17 Afghan civilians outside Kandahar last month during a nighttime of fury.
As I noted here a couple of weeks ago, 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. Criminal responsibility is the technical term for what is often called by the public as “insanity”. The actual procedure is covered in the Manual for Courts Marital, under the Rule for Court Martial 706. There are high stakes here for both sides, and for justice.
Browne, according to news reports, declined to have his client participate, because: 1) they were not allowed to record it; 2) an attorney was not allowed to be present; and 3) a neuropsychologist was not part of the board.
There is actually an active debate with the field of forensic psychiatry as to whether to allow recording and/or observers. There are pros and cons to each.
The pros of recording are fairly obvious. It preserves the record, for both sides. If claims of bias or leading questions are made later, a recording can show what actually happened. On the other hand, snippets of the proceedings can be taken out of context. And the videotaping processing can be distracting.
An observer is more problematic. Another person in the room can interrupt or send signals to the defendant, inhibiting the questioning. However, these issues can be managed by having the observer behind a one-way mirror, or otherwise out of sight.
Then there is the issue of the neuropsychologist. A neuropsychologist is a clinical psychologist who has completed additional training in testing and treatment of brain trauma, seizure disorders, memory problems, and other dysfunctions.
To remind readers: the sanity board is usually conducted by three military psychiatrists or psychologists, often with specialized training in forensic psychiatry or psychology. It is actually fairly common to have a neuropsychologist for someone accused of a major crime like the one Bales allegedly committed.
I know of no downsides to having a neuropsychologist involved. Indeed the sanity board could be criticized as not having all the needed skill sets without the ability to do neuropsychological testing.
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 is designed to be neutral — not working for either the defense or prosecution — but for the court. There are high stakes here. Therefore having an accurate and thorough record is critically important.