                       UNITED STATES, Appellee

                                     v.

                       Robert W. MARTIN, Major
                         U.S. Army, Appellant


                               No. 99-0232

                       Crim. App. No. 9600413

___________________________________________________________

    United States Court of Appeals for the Armed Forces

                       Argued April 17, 2001

                       Decided November 15, 2001

BAKER, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE and EFFRON, JJ., and SULLIVAN, S.J.,
joined.
                           Counsel

For Appellant: Mr. Mark L. Waple and Mr. Hugh R. Overholt
(argued); Colonel Adele H. Odegard (on brief).

For Appellee: Captain Karen J. Borgerding (argued);
Colonel David L. Hayden, Lieutenant Colonel Edith M. Rob,
and Major Anthony P. Nicastro (on brief).


Military Judge:      Keith H. Hodges


  THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Martin, No. 99-0232/AR



     Judge BAKER delivered the opinion of the Court.

     On August 22 and October 23, 1995, and January 13,

February 5-9, 13-15, 20-23, and 26-29, 1996, appellant was

tried by a general court-martial with members.      Contrary to

his pleas, he was found guilty of attempted larceny (one

specification); disobedience of a superior officer (four

specifications); violating a lawful general regulation

(four specifications); larceny (twenty-nine

specifications); wrongful appropriation (one

specification); forgery (four specifications); making or

uttering worthless checks without sufficient funds (four

specifications); conduct unbecoming an officer and

gentleman (twenty-eight specifications); obtaining services

under false pretenses (one specification); and obstructing

justice (one specification).    These offenses violated

Articles 80, 90, 92, 121, 123, 123a, 133, and 134, Uniform

Code of Military Justice (UCMJ), 10 USC §§ 880, 890, 892,

921, 923, 923a, 933, and 934.       Appellant was sentenced to a

dismissal, confinement for two years, restriction for two

months, and total forfeitures.

     Appellant was charged with seventy-nine offenses.      The

members found him not guilty of two offenses.      The

convening authority disapproved one of the larceny



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United States v. Martin, No. 99-0232/AR


findings,1 approved the remaining findings, and approved the

sentence, with the exception of the restriction.               The

United States Army Court of Criminal Appeals affirmed.                48

MJ 820 (1998).        This Court in 1999 granted review of four

issues.2

         On March 21, 2000, this Court set aside the decision

of the court below and remanded the case to that court with



1
  The convening authority dismissed specification 12 of Charge IV, a
larceny charge, because the members found appellant not guilty of the
related conduct unbecoming an officer charge, specification 11 of
Charge VII.
2
    Those four issues were:

         I. WHETHER THE EVIDENCE OF RECORD CLEARLY AND CONVINCINGLY
         ESTABLISHES THAT THE ACCUSED WAS NOT MENTALLY RESPONSIBLE DURING
         THE PERIOD OF THE CHARGED OFFENSES, EFFECTIVELY OVERCOMING THE
         PRESUMPTION OF MENTAL RESPONSIBILITY, AND THE GOVERNMENT’S
         EVIDENCE WAS INSUFFICIENT TO REFUTE THE DETERMINATION THAT THE
         ACCUSED WAS NOT MENTALLY RESPONSIBLE.

         II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION FOR FAILING
         TO RECUSE HIMSELF AFTER BEING CHALLENGED BY THE DEFENSE.

         III. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS
         ABUSED ITS DISCRETION BY REFUSING TO RECUSE ITSELF FROM THE
         REVIEW OF APPELLANT’S CASE FOLLOWING A SEPTEMBER, 1997, ARMY JAGC
         REGIMENTAL DINING IN ATTENDED BY THE CHIEF JUDGE OF THE ARMY
         COURT OF CRIMINAL APPEALS AND OTHER SENIOR MEMBERS OF THE U.S.
         ARMY JAG CORPS, AT WHICH DINING-IN THE APPELLANT AND HIS COURT-
         MARTIAL CONVICTION WERE OPENLY RIDICULED.

         IV. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS
         COMMITTED PREJUDICIAL ERROR AND ABUSED ITS DISCRETION BY FAILING
         TO RECUSE ITSELF FROM CONTINUING THE REVIEW OF APPELLANT’S CASE
         FOLLOWING A JULY, 1997, AWARDS CEREMONY ATTENDED BY THE THREE
         APPELLATE JUDGES HEARING APPELLANT’S CASE, AT WHICH CEREMONY THE
         ASSISTANT ARMY JUDGE ADVOCATE GENERAL FOR MILITARY LAW AND
         OPERATIONS MADE DISPARAGING REMARKS CONCERNING APPELLANT, AND
         WHERE THE TRIAL COUNSEL IN APPELLANT’S CASE WAS PRESENTED AN
         AWARD FOR HER PARTICIPATION IN APPELLANT’S CASE, SIGNED BY THE
         ACTING CHIEF JUDGE OF THE ARMY COURT OF CRIMINAL APPEALS, AND BY
         DENYING APPELLANT’S MOTION TO ENTER AFFIDAVITS IN SUPPORT OF SUCH
         MOTION TO RECUSE INTO THE RECORD.


                                      3
United States v. Martin, No. 99-0232/AR


the following instruction:

                    With respect to Issue I, it is not apparent
               what standard was employed by the Court of
               Criminal Appeals in addressing the question of
               whether appellant carried his “burden of proving
               the defense of lack of mental responsibility by
               clear and convincing evidence.” See Art. 50a(b),
               Uniform Code of Military Justice, 10 USC §
               850a(b). Therefore, it is necessary to return
               the record to the Judge Advocate General for
               remand to the Court of Criminal Appeals for
               reconsideration of that question. On
               reconsideration, the court will determine whether
               the court-martial’s finding that appellant did
               not prove lack of mental responsibility by clear
               and convincing evidence was correct both in law
               and in fact. See Art. 66(c), UCMJ, 10 USC §
               866(c); United States v. Turner, 25 MJ 324 (CMA
               1987).

                    In determining whether the members’ finding
               was correct in fact, the court must weigh the
               evidence and determine for itself whether
               appellant proved the defense of lack of mental
               responsibility by clear and convincing evidence.
               In determining whether the finding was correct in
               law, the court must view the evidence and all
               reasonable inferences in the light most favorable
               to the Government and determine whether a court-
               martial composed of reasonable members could have
               found that appellant failed to prove lack of
               mental responsibility by clear and convincing
               evidence. See generally Jackson v. Virginia, 443
               U.S. 307, 319 (1979).[3]

3
    The order also provided:

               With respect to Issue II, the military judge was not
         required to recuse himself under the facts and circumstances of
         this case. See RCM 902(a), Manual for Courts-Martial, United
         States (1998 ed.).

               With respect to Issues III and IV, in view of the necessity
         for a remand, it appears that any further review by the Court of
         Criminal Appeals should be conducted by a panel of judges who
         were not present during either of the incidents that gave rise to
         Issues III and IV. This action is taken in the interests of
         judicial economy and does not reflect a decision on the question


                                      4
United States v. Martin, No. 99-0232/AR


53 MJ 221-22 (2000).

     On August 7, 2000, the United States Army Court of

Criminal Appeals issued an Opinion of the Court on Remand,

again affirming the findings and sentence.           53 MJ 745

(2000).     We then granted review of two issues.4

     The affirmative defense of lack of mental

responsibility requires proof that at the time of the

offense(s), the accused:           (1) suffered from a “severe

mental disease or defect” and (2) as a result, was “unable

to appreciate the nature and quality or the wrongfulness of

the acts.”     Art. 50a(a), UCMJ, 10 USC § 850a(a).          The

second element of this test is disjunctive.            An accused may



     of whether the particular judges who originally reviewed this
     case should have disqualified themselves. To the extent that
     appellant seeks to disqualify all Army judge advocates from
     serving as appellate judges, such action is not warranted under
     the facts and circumstances of this case.
     4
          Those two issues were:

             I. WHETHER THE EVIDENCE OF RECORD CLEARLY AND CONVINCINGLY
             ESTABLISHES THAT APPELLANT WAS NOT MENTALLY RESPONSIBLE
             DURING THE PERIOD OF THE CHARGED OFFENSES, EFFECTIVELY
             OVERCOMING THE PRESUMPTION OF MENTAL RESPONSIBILITY, AND
             THE GOVERNMENT’S EVIDENCE WAS INSUFFICIENT TO REFUTE THE
             DETERMINATION THAT APPELLANT WAS NOT MENTALLY RESPONSIBLE.


             II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS APPLIED AN
             OVERLY RESTRICTIVE STANDARD IN DETERMINING WHETHER
             APPELLANT PREVAILED AT TRIAL IN THE DEFENSE OF LACK OF
             MENTAL RESPONSIBILITY BY LIMITING ITS REVIEW TO WHETHER
             APPELLANT ESTABLISHED LACK OF MENTAL RESPONSIBILITY AT THE
             PRECISE MOMENT OF HIS MULTIPLE ACTS OF CHARGED MISCONDUCT
             AND BY REJECTING APPELLANT’S EVIDENCE THAT HE WAS NOT
             MENTALLY RESPONSIBLE DURING THE PERIOD THAT HIS MULTIPLE
             ACTS OF MISCONDUCT OCCURRED.



                                      5
United States v. Martin, No. 99-0232/AR


logically and legally satisfy this test by demonstrating

that he or she lacked mental responsibility over a period

of time that includes the time(s) of the offense(s).

However, as in this case, the Government may logically and

legally rebut this by demonstrating that the proponent of

this defense was mentally responsible at specific times

during the time period in question.     Therefore, applying a

substantial evidence standard of review to a jury finding

of fact,5 we hold that a reasonable trier of fact could have

found that appellant failed to prove by clear and

convincing evidence his affirmative defense of lack of

mental responsibility.

                               FACTS

        Appellant was a career Judge Advocate General’s Corps

(JAGC) Major with over twenty years of service.     As noted

by the court below:

              There is no substantial dispute about what
              appellant did in this case. Between September
              1992 and March 1995, appellant obtained
              approximately $100,000 from more than thirty
              victims in a complex web of unlawful, fraudulent,
              or unethical conduct that may be grouped into
              four categories: (1) unpaid personal loans, (2)
              fraudulent investment schemes, (3) unauthorized
              and incomplete legal services, and (4) worthless
              checks.

48 MJ at 821; see 53 MJ at 746.


5
    See infra, _MJ at (25).


                                 6
United States v. Martin, No. 99-0232/AR


     The issue at trial and on appeal was whether appellant

was mentally responsible for these offenses.    The evidence

presented by the defense and the Government is summarized

below.

                       Defense Experts

     A Sanity Board evaluation was requested by military

defense counsel, directed by the convening authority, and

performed by Drs. Orman and Hardaway.    On June 14, 1995,

they opined that at the time of the offenses, appellant did

not suffer from a severe mental disease or defect, did

appreciate the nature and quality or wrongfulness of his

conduct, and could understand and participate in the

proceedings against him.   Several months later, however,

appellant underwent extensive psychological testing by a

psychologist, Dr. Costello, that indicated possible bipolar

disorder.   And after appellant was diagnosed with the

disease by a psychiatrist, Dr. Bowden, the trial judge

ordered Drs. Orman and Hardaway to reconvene to reconsider

“the previous findings in light of this information made

available by the defense.”   The reevaluation by Drs. Orman

and Hardaway indicated that at the time of the offenses,

appellant suffered from a severe mental disease or defect,

namely Bipolar Disorder; that appellant was unable to

appreciate the nature and quality or wrongfulness of his


                              7
United States v. Martin, No. 99-0232/AR


conduct “while experiencing the manic episodes” (emphasis

added); and that appellant was able to participate in his

own defense “with concerns that the clinical course of the

bipolar disorder is variable even with treatment.”

     Dr. Costello testified that bipolar disorder is based

on the concepts of denial and grandiosity.    One denies one

is incompetent, inadequate, and impotent and substitutes

for that a grandiose self-image.   “Anything in the world is

possible.   Any scheme is foolproof.   Anything will

succeed.”   Dr. Costello also testified that the link

between appellant’s grandiose self-image and his ability to

appreciate the nature, quality and wrongfulness of his

behavior was direct.   He testified that appellant

substitutes a grandiose reality to enhance his self-image,

i.e., “There’s not a problem that I can’t solve.     There’s

not a deal that I can’t do.   There’s not a situation that I

can’t fix.”

     Dr. Costello stated, “That’s what the psychotic

reality is of the manic-depressive patient, and that’s what

I think was occurring between ’92 and ’94.    He felt

miserable and substituted this other reality where anything

– the sky was the limit.”   He concluded that it is “the

disassociation, the denial and the grandiosity that causes

the manic patient to be unable to be aware, to be conscious


                              8
United States v. Martin, No. 99-0232/AR


and knowledgeable of the nature, quality, and wrongfulness

of their behavior at the moment the behavior takes place.”

     Dr. Bowden, appellant’s treating psychiatrist,

diagnosed appellant with bipolar-1 disorder, or manic-

depressive illness.    Appellant began taking a mood

stabilizer, Depakote, just prior to the court-martial

proceedings.   Dr. Bowden testified that appellant had

recurrent hypomanic episodes, that his behavior fluctuated

from month-to-month and from week-to-week, and that he had

ultra-rapid cycling, which means a change in behavior

within a period of hours.    He testified that ultrarapid

cycling means that the disease of manic-depression is

usually more severe.

     When Dr. Bowden was asked whether appellant knew that

forging people’s names to documents was wrong the following

exchange took place:

          A: Knowing – not in a sense that it could affect
          his behavior because he felt justified at [sic],
          if not all, most of those points in what he was
          doing. He felt he was serving the greater good.
          He was going to make himself and these other
          people wealthy by virtue of what he was doing, so
          . . .

          Q: Sir, do you understand that in the military
          just because it doesn’t violate his own personal
          moral code, that doesn’t mean that it’s not
          wrong?




                               9
United States v. Martin, No. 99-0232/AR


          A: What he did had nothing to do with moral
          code. It had to do with the misperception of the
          prospects of this cockamamie venture succeeding.

          Q: So he thought it wasn’t wrong because he
          thought this would succeed?

          A: I think in – yes, he thought that he was
          going to give people unreasonable returns on
          their investment in short periods of time, and
          lost credibility in his own career in the
          process.

Dr. Bowden further testified that to be manic is to be

severely functionally impaired, and that the only

difference between mania and hypomania is that the duration

or the severity is viewed as shorter or does not entail

some evidence of severity such as hospitalization.    He also

testified:

             There was no way for me to link descriptions of
             periods when he was symptomatic with each and
             every incident which he committed in relationship
             to taking money. There was simply no way to do
             that. The only way is that in some of the
             instances he clearly was delusional in his
             thinking about them and grandiose in his
             thinking, and those where that was described as
             part of the recollection of the various
             individuals of his behavior, it supports the
             diagnosis of manic and hypomanic, and/or
             hypomanic, and in some instances depressed
             episodes at the time, but there is no way to
             determine either negatively or positively for
             each and every incident.



     A third defense expert in psychiatry, Dr. Francis,

testified that in his opinion, appellant was “impaired”



                                10
United States v. Martin, No. 99-0232/AR


during part, but not all, of the time period covered by the

charged misconduct.      Dr. Francis testified that appellant

may have understood that his acts were illegal, but

committed them because he believed they were for a greater

good, i.e., that he would deliver on his promises.

                         Government Experts

      The government experts, who did not examine appellant

for treatment purposes, were forensic psychiatrists who

examined appellant for purposes of preparing the

prosecution for trial.6      Their focus was on whether the

evidence demonstrated that appellant was legally mentally

incompetent, as defined by the UCMJ, at the time of the

charged offenses.     In particular, they focused on two main

points, the degree of impairment suffered by appellant, and

the effect that various degrees of impairment had on

appellant’s ability to appreciate the nature and quality

and the wrongfulness of his acts at the time of the

offenses.    The consensus of the government experts was that




6
 The main government witness, a forensic psychiatrist, Dr. Moore, did
not interview appellant until approximately one month after appellant
was prescribed and had been taking Depakote. Drs. Sparks and Raisani,
also forensic psychiatrists, did not interview appellant at all, but
based their testimony on a review of documents and witness statements.


                                  11
United States v. Martin, No. 99-0232/AR


appellant was not psychotic but was hypomanic and suffered

at least one manic episode during that time period.   They

also agreed that appellant could appreciate the

wrongfulness of his acts.

     Dr. Moore testified that people are psychotic if they

have “a disturbance in the form of their thought, the

pattern, the way that they put their thoughts together, or

it may mean they have delusions, or it may mean they have

hallucinations.”   Additionally, Dr. Moore testified that it

could also be defined “as a complete break between reality

and fantasy, where they are unable to distinguish between

the two.”   He also testified that people considered manic

have, by definition, impairment in their functioning, and

that a person who is hypomanic could be, but is not always,

impaired.

     As to the charged offenses, Dr. Moore testified that

in his assessment, appellants scheme to sell Spurs tickets

and the Honeybaked Ham franchise scheme, while possibly

unwise or unjustified, were not delusions; rather, they

were grounded in reality.   As to the other offenses, Dr.

Moore testified that he reviewed the statements of the

victims and looked for behavioral observations.   Dr. Moore

did not find any examples of victims describing appellant

as acting really bizarre or strange.   He noted, however,


                              12
United States v. Martin, No. 99-0232/AR


that a few statements made by friends and acquaintances

indicated “different periods of time where [appellant]

showed hypomanic symptoms” or “depressed symptoms.”    Dr.

Moore indicated that it might be possible to extrapolate

and link the time periods indicated in those statements

that showed hypomanic or depressed symptoms to the time

periods of the charged offenses, but that there was no

direct evidence from the victims that showed such symptoms.

     Dr. Moore concluded that appellant was not psychotic,

and that he suffered from hypomanic rather than manic

episodes during the timeframe at issue.   Dr. Moore based

this on both the complexity of the crimes that involved

writing checks and making promissory notes and on

appellant’s attempts to conceal the true nature of what he

was doing.

     Dr. Sparks, also a forensic psychiatrist, testified

that in order for bipolar illness to relieve criminal

responsibility, it must rise to the level that the person

cannot differentiate between reality and a delusion.    He

also testified that concealment would play a part in

determining whether someone could appreciate the

criminality of his acts.

     Dr. Raisani, a forensic psychiatrist, testified that

“[c]linically an individual cannot really be at the same


                             13
United States v. Martin, No. 99-0232/AR


level for two years.   One cannot have the same intensity of

bipolar disorder across the board for 24 hours a day.”

He also testified that concealment is an important part of

determining whether someone could appreciate the nature and

quality or the wrongfulness of his acts.   Specifically, he

cited examples where appellant asked that checks be made

out to someone else for work to be performed by appellant;

stated to another individual that “I cannot officially work

for you”; told another person with respect to a loan that

“finance has made a mistake and stopped the wrong

allotment”; moved to a separate location, closed the door,

and said he was not allowed to do this before accepting

$1,700 in cash.   Dr. Raisani found it significant that only

two or three statements out of the twenty or thirty

provided to him reflected rapid speech or some indication

of bipolar disorder.

                        Lay Witnesses

     The court below found the following facts:

          1. Appellant committed virtually all of these
          offenses away from his office. Appellant
          generally told his legal clients that he was not
          permitted to perform the needed legal service
          himself, but that he had a friend or relative who
          could provide the service. Appellant then
          usually obtained a retainer check for the friend
          or relative, which was to be returned after the
          legal work was completed. He would then forge
          the payee’s signature and cash the check.



                              14
United States v. Martin, No. 99-0232/AR


          Appellant sometimes asked for payment in cash and
          made numerous excuses to avoid giving a receipt.

          2. When appellant was pressured to write a
          refund check to a complaining victim, he
          initially paid these debts with worthless checks.
          He frequently forged his wife’s signature rather
          than sign his own. Appellant wrote his victims
          eighteen worthless checks, totaling more than
          $18,000.00, on an account that he knew had been
          closed since November 1990. When a check
          “bounced” and a victim threatened to report
          appellant’s misconduct to his command or the
          police, appellant usually paid the debt in
          question, often in cash or with a check from
          another investor or client. Occasionally,
          appellant begged his victims not to report him
          because he would lose his retirement.

          3. Appellant’s OERs [Officer Efficiency Reports]
          from 1988 until the discovery of these offenses
          in early 1994 reflect a solid, professional duty
          performance except for an overweight condition
          attributed to a knee problem. These OERs do not
          indicate that appellant failed to understand or
          follow Health Services Academy rules and training
          schedules or that he taught his classes in
          anything but a timely and professional manner.
          None of these OERs stated anything that would
          indicate appellant was suffering from any mental
          impairment or that he was not occupationally
          fully functional in the academic environment.

          4. Unlike most appellants, this appellant was a
          JAGC officer and an ethics counselor with unique
          training and experience concerning criminal and
          ethical offenses, including the consequences for
          violating them.

          5. Appellant’s brother testified that, in
          December 1994, appellant bragged to him that he
          could “con anybody into doing what he wanted.”

48 MJ at 823-24; see 53 MJ at 746.   Additionally, on

remand, the court below found:



                             15
United States v. Martin, No. 99-0232/AR


                  There was also substantial testimony by lay
             witnesses concerning many irrational, even
             bizarre, acts of appellant, including actions or
             activities that were consistent with the
             diagnosis of bipolar disorder. At the times of
             the various illegal activities, however, no
             witness described appellant’s conduct as bizarre
             or aberrant. There was also substantial lay
             testimony that the witnesses had no difficulty
             understanding or following appellant’s
             conversations, although he tended to talk fast
             and to change subjects abruptly (which are also
             indications of bipolar disorder). Witnesses also
             testified that appellant had no difficulty
             communicating the plans he devised as investment
             opportunities, in convincing numerous persons to
             invest money in his schemes, or to loan appellant
             money. When later approached by an “investor” or
             creditor, usually seeking reimbursement of funds
             given to appellant, appellant had no difficulty
             remembering the transaction at issue and usually
             was able to convince the creditor that there was
             a rational, innocent explanation for appellant’s
             failure to reimburse.

53 MJ at 748-49.

                                 ISSUE I

       The defense of lack of mental responsibility (the

insanity defense) is codified in Article 50a, UCMJ, which

is substantively identical to 18 USC § 17.            Article 50a

remains unchanged since it was enacted in the Military

Justice Amendments of 1986,7 following enactment of similar

legislation applicable to the federal civilian courts in

The Insanity Defense Reform Act of 1984.8           As articulated by


7
    Pub. L. No. 99-661, § 802(a)(1), 100 Stat. 3905-06.
8
 Pub. L. No. 98-473, § 402(a), 98 Stat. 2057, renumbered Pub. L. No.
99-646, § 34(a), 100 Stat. 3599.


                                    16
United States v. Martin, No. 99-0232/AR


the court below, this act was intended, inter alia, to

narrow the definition of insanity, shift the burden of

proof to the accused to prove the defense by clear and

convincing evidence, and prohibit expert testimony on the

ultimate legal issue, thus leaving the ultimate issue to

the trier of fact alone.

     Under Article 50a(a), lack of mental responsibility is

an affirmative legal defense requiring proof that the

accused, at the time of the offenses: (1) suffered from a

“severe mental disease or defect,” and (2) as a result of

that disease, was “unable to appreciate the nature and

quality or the wrongfulness of the acts.”   Federal courts

have recognized that proof is required on each element of

the defense.   See United States v. Dixon, 185 F.3d 393, 399

(5th Cir. 1999)(The plain language of 18 USC § 17 instructs

that the defendant must show that (1) “as a result of a

severe mental disease” (2) he “was unable to appreciate the

nature and quality or the wrongfulness of his acts.”);

United States v. Shlater, 85 F.3d 1251, 1257 (7th Cir.

1996)(The accused must prove by clear and convincing

evidence first, “that he suffered from a severe mental

disease or defect,” and second, “that his severe mental

disorder rendered him unable at the time of the crime to




                              17
United States v. Martin, No. 99-0232/AR


appreciate the nature and quality or the wrongfulness of

his acts.”).

     At trial, it was undisputed that appellant’s bipolar

disorder qualified as a severe mental disease or defect

under Article 50a(a) with respect to the entire time period

during which all charged offenses occurred.   Accordingly,

the only factual matter before the members was whether, as

a result of his disease, he was “unable to appreciate the

nature and quality or the wrongfulness of the acts.”

     Article 50a(b) provides that the “accused has the

burden of proving the defense of lack of mental

responsibility by clear and convincing evidence.”   Clear

and convincing evidence is that weight of proof which

“produce[s] in the mind of the factfinder a ‘firm belief or

conviction’ that the allegations in question are true.”

Clifford S. Fishman, Jones on Evidence:   Civil and Criminal

§ 3:10 at 239 (7th ed. 1992); United States v. Montague, 40

F.3d 1251, 1255 (D.C. Cir. 1994); Child v. Child, 332 P.2d

981, 986 (Utah 1958).   The insanity defense is unusual

among affirmative defenses in that it is currently one of

only two defenses under the UCMJ for which the accused, not

the Government, bears the burden of proof at trial.

Moreover, the burden never shifts back to the Government to




                              18
United States v. Martin, No. 99-0232/AR


prove sanity beyond a reasonable doubt.9          In addition,

mental responsibility is the only affirmative defense for

which the jury is instructed to vote on a finding of fact

distinct from its finding of guilt.         RCM 921(c)(4), Manual

for Courts-Martial, United States (2000 ed.).10

                         Standard of Review

                   Review of findings of guilt

      In our remand order, we required the court below to

reconsider the question of “what standard was employed. . .

in addressing the question of whether appellant carried his

‘burden of proving the defense of lack of mental

responsibility by clear and convincing evidence.’"            We also

directed that court to “determine whether the court-

martial’s finding that appellant did not prove lack of

mental responsibility by clear and convincing evidence was

correct both in law and in fact.”         53 MJ at 221, citing


9
  RCM 916(b), Manual for Courts-Martial, United States (2000 ed.),
provides:

      (b) Burden of proof. Except for the defense of lack of mental
      responsibility and the defense of mistake of fact as to age . . .
      in a prosecution of carnal knowledge, the prosecution shall have
      the burden of proving beyond a reasonable doubt that the defense
      did not exist.

This rule was amended after appellant’s court-martial to include
mistake of fact as to age in a carnal knowledge case. However, the
current language dealing with lack of mental responsibility is
substantially the same as the language in effect at the time of
appellant’s court-martial.
10
  The current version of this rule is identical to the one in effect at
the time of appellant’s court-martial.


                                  19
United States v. Martin, No. 99-0232/AR


Art. 66(c), UCMJ, 10 USC § 866(c); United States v. Turner,

25 MJ 324 (CMA 1987).    We articulated the following tests

for the court to apply:

            In determining whether the members’ finding was
            correct in fact, the court must weigh the
            evidence and determine for itself whether
            appellant proved the defense of lack of mental
            responsibility by clear and convincing evidence.
            In determining whether the finding was correct in
            law, the court must view the evidence and all
            reasonable inferences in the light most favorable
            to the Government and determine whether a court-
            martial composed of reasonable members could have
            found that appellant failed to prove lack of
            mental responsibility by clear and convincing
            evidence.

Id. at 222, citing Jackson, 443 U.S. at 319.        In an effort

to address appellant’s burden of proof on his insanity

defense, we inserted “clear and convincing” into the Turner

and Jackson tests for reviewing findings of guilt, both of

which require proof beyond a reasonable doubt.       See In re

Winship, 397 U.S. 358, 364 (1970), and Turner, 25 MJ at

325.

       In reviewing the findings of guilt, the lower court

correctly noted that “[s]hifting the burden of proof on

mental responsibility to the accused does not, however,

change the standard of review or the tests for either

factual or legal sufficiency.”      53 MJ at 747.   That court

was correct with respect to review of findings of guilt for




                               20
United States v. Martin, No. 99-0232/AR


factual and legal sufficiency under the Jackson and Turner

tests.

     The court below also concluded, as did the court-

martial, “that appellant failed to carry his burden of

proving, by clear and convincing evidence, that he lacked

the ability to appreciate the nature and quality or the

wrongfulness of his acts constituting any specific

offense.”   Id. at 749.   Implicit in this conclusion is the

lower court’s review of the non-guilt finding of fact by

the court-martial (in this case, the members) as well as

its findings of guilt.    We agree with the conclusion of the

court below for the following reasons.

             Review of non-guilt findings of fact

     This review is conducted separately from the review of

the findings of guilt and allows the reviewing court to

apply the appropriate degree of deference to the decision

of the factfinder and the applicable burden of proof to the

party carrying the burden.

     The distinction between findings of guilt and non-

guilt findings of fact as to whether a defendant has proven

lack of mental responsibility is clear from RCM 921(c)(4),

which provides for two separate votes:

            Not guilty only by reason of lack of mental
            responsibility. When the defense of lack of
            mental responsibility is in issue under RCM


                               21
United States v. Martin, No. 99-0232/AR


          916(k)(1), the members shall first vote on
          whether the prosecution has proven the elements
          of the offense beyond a reasonable doubt. If at
          least two-thirds of the members present (all
          members for offenses where the death penalty is
          mandatory) vote for a finding of guilty, then the
          members shall vote on whether the accused has
          proven lack of mental responsibility. If a
          majority of the members present concur that the
          accused has proven lack of mental responsibility
          by clear and convincing evidence, a finding of
          not guilty only by reason of lack of mental
          responsibility results. If the vote on lack of
          mental responsibility does not result in a
          finding of not guilty only by reason of lack of
          mental responsibility, then the defense of lack
          of mental responsibility has been rejected and
          the finding of guilty stands.

(Emphasis added.)   The result of this separate vote is that

the members first determine whether the prosecution proved

the elements of the offense beyond a reasonable doubt and

then decide, as a factual matter, whether the accused

proved his affirmative defense of lack of mental

responsibility by clear and convincing evidence.

     It is the second vote by the members, on the defense

of lack of mental responsibility, that is at issue.   In

other contexts, this court has reviewed non-guilt findings

of fact under the clearly erroneous standard of review.

See, e.g., United States v. Allen, 53 MJ 402 (2000)(finding

that affidavit in support of search warrant was not

knowingly and intentionally false nor made with reckless

disregard for the truth); United States v. Starr, 53 MJ 380



                              22
United States v. Martin, No. 99-0232/AR


(finding that there was no intent to punish); United States

v. Chaney, 53 MJ 383 (2000) (finding that there was no

purposeful discrimination); United States v. Youngman, 48

MJ 123 (1998)(finding that decision to prosecute was not

independent of immunized testimony); United States v.

Maxwell, 45 MJ 406 (1996)(finding that appellant had a

subjective expectation of privacy); United States v.

Kelley, 45 MJ 275 (1996)(finding that declarant had

expectation of medical benefit under Mil. R.Evid. 803(4),

Manual for Courts-Martial, United States (1995 ed.));

United States v. Radvansky, 45 MJ 226 (1996)(finding that

appellant voluntarily consented to search); United States

v. Proctor, 37 MJ 330 (CMA 1993)(finding that appellant was

mentally competent to stand trial).

     In these cases, the non-guilt findings were made by

the military judge, because they involved preliminary

questions of law and fact.   However, in cases where trial

by members is selected and the affirmative defense of

mental responsibility is raised, the members are

responsible for making a separate non-guilt finding as to

whether an accused carried his burden of proving the

defense by clear and convincing evidence.   RCM 921(c)(4).

     Other federal courts have approached the review of

factual findings on this affirmative defense by applying


                              23
United States v. Martin, No. 99-0232/AR


either the “clearly erroneous” or “reasonableness” standard

of review.    The two approaches devolve from the difference

in the deference accorded to review of non-guilt findings

of fact made by judges and those made by juries.

             The Clearly Erroneous Standard of Review

     In reviewing non-guilt findings of fact made by

judges, federal courts apply the “clearly erroneous”

standard.    See 2 Steven Childress and Martha Davis, Federal

Standards of Review § 10.04 at 10-12 to 10-13 (3d ed.

1999).   With respect to this question, the Supreme Court

held:

            As this Court frequently has emphasized,
            appellate courts are not to decide factual
            questions de novo, reversing any findings they
            would have made differently. See, e.g., Anderson
            v. Bessemer City, 470 U.S. 564, 573 (1985);
            Zenith Radio Corp. v. Hazeltine Research, Inc.,
            395 U.S. 100, 123 (1969). The Federal Rules of
            Criminal Procedure contain no counterpart to
            Federal Rule of Civil Procedure 52(a), which
            expressly provides that findings of fact made by
            the trial judge “shall not be set aside unless
            clearly erroneous.” But the considerations
            underlying Rule 52(a) – the demands of judicial
            efficiency, the expertise developed by trial
            judges, and the importance of first-hand
            observation, see Anderson, supra at 574-575 – all
            apply with full force in the criminal context, at
            least with respect to factual questions having
            nothing to do with guilt. Accordingly, the
            “clearly erroneous” standard of review long has
            been applied to non-guilt findings of fact by
            district courts in criminal cases. See Campbell
            v. United States, 373 U.S. 487, 493 (1963); 2 C.
            Wright, Federal Practice and Procedure § 374 (2d
            ed. 1982).


                                24
United States v. Martin, No. 99-0232/AR



Maine v. Taylor, 477 U.S. 131, 145 (1986).

     The Supreme Court, in a different context, explained

that “[a] finding is ‘clearly erroneous’ when although

there is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm

conviction that a mistake has been committed.”    United

States v. United States Gypsum Co., 333 U.S. 364, 395

(1948).

     In the case of bench trials, federal courts have

applied the “clearly erroneous” standard to the finding of

fact on lack of mental responsibility/insanity.    United

States v. Freeman, 804 F.2d 1574, 1577 (11th Cir. 1986)(the

district court finding that the defendant had failed to

prove by clear and convincing evidence that he was unable

to appreciate the nature and quality of his acts at the

time of the offense was not clearly erroneous); United

States v. Reed, 997 F.2d 332, 334 (7th Cir. 1993)

(“[W]hether [the defendant] has proven that he was legally

insane at the time he robbed the bank is a question to be

decided by the trier of fact . . .   and we will not reverse

that finding unless it is clearly erroneous.”); United

States v. Hiebert, 30 F.3d 1005, 1007 (8th Cir.), cert.

denied, 513 U.S. 1029 (1994)(“Whether a defendant has



                             25
United States v. Martin, No. 99-0232/AR


proven that he was legally insane is a factual question,

and we will reverse the trial court’s finding only if it is

clearly erroneous.”).

                       Jury Deference:
       The “Substantial Evidence” Standard of Review.

     By contrast, for some time, federal courts have

employed the “substantial evidence” standard for reviewing

factual determinations by a jury.     Glasser v. United

States, 315 U.S. 60, 80 (1942).     This is in great part due

to the constitutional deference accorded the role of juries

over that of judges.    Duncan v. Louisiana, 391 U.S. 145,

156 (1968)(“the jury trial provisions in the Federal. . .

Constitution[] reflect a fundamental decision about the

exercise of official power--a reluctance to entrust plenary

powers over the life and liberty of the citizen to one

judge or to a group of judges.”).     The Supreme Court has

described “substantial evidence” as “such relevant evidence

as a reasonable mind might accept as adequate to support a

conclusion,. . . and it must be enough to justify, if the

trial were to a jury, a refusal to direct a verdict when

the conclusion sought to be drawn from it is one of fact

for the jury.”   NLRB v. Columbian Enameling & Stamping Co.,

306 U.S. 292, 300 (1939)(emphasis added) (internal citation

omitted).



                               26
United States v. Martin, No. 99-0232/AR


     As explained by Professors Childress and Davis,

substantial evidence and the reasonableness test are “two

facets of the same standard: In order for a reasonably

minded jury to find guilt beyond a reasonable doubt, there

must be a quantum of evidence in support of that finding

amounting to substantial, assuming that all doubtful areas

are resolved in favor of the jury’s verdict.”   Federal

Standards of Review, supra, §9.03 at 9-11.   Accordingly,

Childress and Davis have also noted with respect to the

Supreme Court decision in Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133 (2000), that

          the U.S. Supreme Court settled the circuit
          conflict in favor of whole record review. Now it
          is clear that “both sides” of the record are
          considered in applying the usual test of
          reasonableness to a jury decision or factfinding.

1 Federal Standards of Review, supra, §3.01 at 15 (2000
Supp.).

     The Fifth Circuit has further refined this test of

“reasonableness” in employing the standard of review to

non-guilt findings of fact made by juries regarding mental

responsibility.   Specifically, the Fifth Circuit has

determined that an appellate court “should reject the jury

verdict [on insanity] . . . only if no reasonable trier of

fact could have failed to find that the defendant’s

criminal insanity at the time of the offense was



                              27
United States v. Martin, No. 99-0232/AR


established by clear and convincing evidence.”     See United

States v. Barton, 992 F.2d 66, 68 (5th Cir. 1993); United

States v. Abou-Kassem, 78 F.3d 161, 166 (5th Cir.), cert.

denied, 519 U.S. 818 (1996).   Such an appellate

determination, in turn, depends on whether there is

substantial evidence in the record supporting the jury’s

finding of fact.

     We agree with the Fifth Circuit’s approach in the case

of a non-guilt finding of fact by members on the question

of mental responsibility.   Such a test of reasonableness is

consistent with congressional intent that determinations of

mental responsibility are for the trier of fact to make

alone, and not experts offering ultimate opinions.     It also

recognizes that the trier of fact is better positioned than

are appellate courts to appraise and weigh the evidence and

apply the appropriate burden of proof to the party that

bears the burden.   This may be particularly true of an

insanity defense, such as that presented in this case,

where there are multiple competitive experts, complex

facts, and numerous witnesses testifying to the accused’s

demeanor at the time of offense.

     A reasonableness standard is also appropriate because

appellate courts have only a jury’s conclusion, implicit in

an ultimate finding of guilt, against which to test for


                               28
United States v. Martin, No. 99-0232/AR


error.     In contrast, where a trial judge makes a finding of

fact on mental responsibility, an appellate court tests for

clear error - against the judge’s specific findings of

fact, included in the record, underpinning his or her

conclusion.    Finally, the reasonableness standard is

consistent with our preference for, and deference afforded

to, juries in our constitutional system of justice.

             Elements of the Insanity Defense at Issue

     During the cross-examination of one of the defense

experts, Dr. Costello, the parties agreed to a “legal

definition” of “appreciate.”    The military judge instructed

the members that

            the word “appreciate” in terms of that a person
            was unable to appreciate the nature and quality
            of his acts, appreciation has three components,
            that is, a person is aware, that they are
            conscious of that, which is a type of awareness,
            and that they know it.

     The word “appreciate” was chosen with legislative

care.
            The choice of the word “appreciate,” rather than
            “know” in the first branch of the test also is
            significant; mere intellectual awareness that
            conduct is wrongful, when divorced from
            appreciation or understanding of the moral or
            legal import of behavior, can have little
            significance.

United States v. Freeman, 357 F.2d 606, 623 (2d Cir. 1966).

This construct mirrors that contained in the legislative

history.    While Congress otherwise chose to adopt the


                                29
United States v. Martin, No. 99-0232/AR


framework laid out in M’Naghten’s Case, 8 Eng. Rep. 718

(1843), in this word choice,

          Congress adopted the language of the Model Penal
          Code rather than the M’Naghten rule (“appreciate”
          vs. “know”) and thereby broadened the inquiry.
          Model Penal Code § 4.01 comment 2 at 166
          (“[K]now” leads to an excessively narrow focus on
          “a largely detached or abstract awareness that
          does not penetrate to the affective level.”);
          S.Rep. No. 307, 97th Cong., 1st Sess. 100-01
          (1981) (Model Penal Code “uses the more affective
          term ‘appreciate’ for the more coldly cognitive
          ‘know’ of M’Naghten.”), referred to in S.Rep. No.
          225, 98th Cong., 2d Sess. (1984), reprinted in
          1984 U.S.C.C.A.N. 3182, 3404 n. 1; accord ABA
          Criminal Justice Mental Health Standards 7-6.1 at
          343-44 (1989).

United States v. Meader, 914 F.Supp. 656, 658 n.2 (D. Me.

1996).

     Before this Court, appellant asserts that the focus

should not only be on the word “appreciate,” but on the

terms that follow, “nature and quality” or “wrongfulness."

Appellant further argues that these terms should be read in

the disjunctive.   Thus, lack of mental responsibility can

be established alternatively by clear and convincing

evidence of an inability to (1) “appreciate” the “nature

and quality” of the criminal act, or (2) “appreciate” the

“wrongfulness” of the criminal act.   This seems self-

evident from the plain language of the article and is the

view of this Court.




                               30
United States v. Martin, No. 99-0232/AR


     As a result of this construction, appellant claims

that it was error for the court below to not specifically

address whether appellant was able to “appreciate” the

“nature and quality” of his criminal acts and to only focus

on whether appellant could “appreciate” the “wrongfulness”

of his acts.

        Unlike the word “appreciate,” the terms “nature and

quality” and “wrongfulness” were not individually defined

at trial.     Nevertheless, the words and phrases contained in

Article 50a are not devoid of meaning.     The terms “nature

and quality” and “wrongfulness” were part of the M’Naghten

test.    The pertinent language is:

             [T]o establish a defence on the ground of
             insanity, it must be clearly proved that, at the
             time of the committing of the act, the party
             accused was labouring under such a defect of
             reason, from disease of the mind, as not to know
             the nature and quality of the act he was doing;
             or, if he did know it, that he did not know he
             was doing what was wrong.

M’Naghten’s Case, supra at 722 (emphasis added).

     The M’Naghten language reflected a trend away from the

medieval and renaissance requirement that a defendant “lack

understanding of good and evil or be devoid of all reason,”

a mens rea test, toward a more relaxed standard that

recognized that a person might also not be convicted who

“delusionally perceived facts that amounted to a



                                31
United States v. Martin, No. 99-0232/AR


justification.”    Christopher Slobogin, An End to Insanity:

Recasting the Role of Mental Disability in Criminal Cases,

86 Va.L.Rev. 1199, 1208-10 (2000).

     “Nature and quality” and “wrongfulness” have otherwise

been explained as follows:

          The first portion relates to an accused who is
          psychotic to an extreme degree. It assumes an
          accused who, because of mental disease, did not
          know the nature and quality of his act; he simply
          did not know what he was doing. For example, in
          crushing the skull of a human being with an iron
          bar, he believed that he was smashing a glass
          jar. The latter portion of M’Naghten relates to
          an accused who knew the nature and quality of his
          act. He knew what he was doing; he knew that he
          was crushing the skull of a human being with an
          iron bar. However, because of mental disease, he
          did not know that what he was doing was wrong.
          He believed, for example, that he was carrying
          out a command from God.

2 Charles E. Torcia, Wharton’s Criminal Law § 101 at 17

(15th ed. 1994).

     Although often used, the term “nature and quality” has

rarely been defined in modern jurisprudence.    Even the

legislative history of 18 USC § 17 does not parse this

phrase as it does the word “appreciate.”    Two jurisdictions

that have defined the phrase have given it different shades

of meaning.   Under Pennsylvania state law, “[t]he nature of

an act is that it is right or wrong.    The quality of an act

is that it is likely to cause death or injury.”

Commonwealth v. Young, 572 A.2d 1217, 1226 (Pa. 1990),


                               32
United States v. Martin, No. 99-0232/AR


cert. denied, 511 U.S. 1012 (1994).          By contrast, the

Court of Criminal Appeals of Texas has stated:

            The “nature of an act,” as defined in the Century
            Dictionary, is “the attributes which constitute
            the thing, and distinguish it from all others,”
            while “the quality of an act” is defined to be
            the power to clearly and distinctly apprehend its
            nature. . . .

Montgomery v. State, 151 S.W. 813, 817 (Tex. Crim. App.

1912).

      In essence, the Pennsylvania and Texas definitions

both recognize what is inherent in the M’Naghten test, that

a defendant who is unable to appreciate the nature and

quality of his acts is one that does not have mens rea

because he cannot comprehend his crimes, including their

consequences.     The Military Judges’ Benchbook captures this

concept by offering an instruction that

            if the accused had a delusion of such a nature
            that (he) (she) was unable to appreciate the
            nature and quality or wrongfulness of (his)(her)
            acts, the accused cannot be held criminally
            responsible for (his)(her) acts, provided such a
            delusion resulted from a severe mental disease or
            defect.

Para. 6-4, Note 2, Department of the Army Pamphlet 27-9 (1

April 2001).11




11
  The Benchbook provision applicable at appellant’s trial also captured
this concept, although it used slightly different language.


                                  33
United States v. Martin, No. 99-0232/AR


     On the question of wrongfulness, appellant claims that

he believed he was morally justified because he believed

that some of his financial schemes would ultimately make

his victims rich.   Other federal circuits recognize that a

defendant’s delusional belief that his criminal conduct is

morally or legally justified may establish an insanity

defense under federal law.   United States v. Dubray, 854

F.2d 1099 (8th Cir 1988).    However, the Eighth Circuit has

also held that “[t]he jury should be instructed on the

distinction between moral and legal wrongfulness . . . only

where evidence at trial suggests that this is a meaningful

distinction in the circumstances of the case.”   Id. at

1101.   For example, evidence of concealment can rebut

claims of legal and moral justification, negating the need

to address legal and moral justification separately.     See

Freeman, 804 F.2d at 1577 (evidence demonstrating that the

defendant knew robbing a bank was wrongful included,

changing clothes after robbing the bank to avoid

identification, employing a mask, handgun, and satchel to

execute the robbery and avoid apprehension, informing bank

personnel that if the police were called, he would come

back and kill everyone, running from police to avoid

apprehension, and the probation officer’s observation of

defendant’s demeanor as entirely appropriate following his


                               34
United States v. Martin, No. 99-0232/AR


arrest); United States v. Newman, 889 F.2d 88 (6th Cir.

1989), cert. denied, 495 U.S. 959 (1990)(there was

sufficient evidence to sustain conviction for interstate

transportation of stolen property and stolen motor vehicle,

in light of evidence relating to defendant’s performance of

intricate and delicate tasks, driving rig, negotiating for

sale of shingles, fabricating story to mislead arresting

officers, and orientation as to time, place, and person);

Reed, 997 F.2d at 334 (defendant admitted he knew that the

voices were telling him to do something wrong); Hiebert, 30

F.3d at 1007 (evidence of defendant’s attempt to conceal

involvement in murder-for-hire scheme was relevant to

whether defendant appreciated the wrongfulness of

distributing marijuana and possessing firearm; “knowledge

that one crime was wrong evidences that he understood that

other criminal acts were inappropriate”).

    Appellant’s Ability to “Appreciate” the “Nature and
       Quality” or the “Wrongfulness” of his Conduct

     As described by the court below, between September

1992 and March 1995, appellant obtained approximately

$100,000 from more than thirty victims:

          Appellant borrowed more than $26,000.00 in
          personal loans, some of which he secured with
          forged promissory notes. Appellant received
          approximately $20,000.00 for legal services that
          he was not authorized to perform and never
          completed. Appellant collected almost $30,000.00


                             35
United States v. Martin, No. 99-0232/AR


          in investment schemes for a “honey baked ham”
          concession at the installation post exchange,
          season tickets for the San Antonio Spurs
          professional basketball team, and a land deal.
          Appellant wrote forty-three worthless checks
          totaling more than $28,000.00.

48 MJ at 821.    In addition, appellant threatened an

individual who threatened to testify against him.

     On appeal, appellant claims that he neither

“appreciated” the “nature of his financial transactions”

nor “the quality –- soundness, profitability or likelihood

of success.”    Final Brief at 44.   The question before the

members was much broader and encompassed all charges, i.e.,

whether at the time of the offenses, appellant was

delusional and unable to comprehend that he was borrowing

money with forged promissory notes; receiving money for

performing legal services that he was not authorized to

perform; collecting money for fraudulent investment

schemes; writing worthless checks; and making a threat.

     As recounted above, the evidence before the members

consisted of conflicting testimony by expert witnesses

concerning the severity of appellant’s bipolar disorder.

The main controversy centered on the extent that appellant

suffered acute, manic episodes, as opposed to lower level

hypomanic episodes over the course of the approximately

twenty-eight months during which the charged offenses



                               36
United States v. Martin, No. 99-0232/AR


occurred.   There was no consensus of opinion as to whether

appellant was psychotic, i.e., that he suffered a complete

break between reality and fantasy, or that he was

delusional at any point in time, and even less agreement

that appellant was psychotic over the entire twenty-eight-

month time frame.

     The defense experts who evaluated and treated

appellant were of the view that appellant’s disorder was

more severe than the government expert witnesses believed.

The government experts looked to the testimony of the

numerous victim-witnesses and other lay witnesses for

evidence of the severity of appellant’s disorder at the

time of each offense.

     In addition to the testimony of expert witnesses, the

members had the benefit of assessing the statements and the

testimony of numerous lay witnesses, including appellant’s

victims, as well as his friends and relatives.   The members

are entitled to consider the testimony of both expert and

lay witnesses in their deliberations.   See United States v.

DuBose, 47 MJ 386, 389 (1998)(all relevant evidence must be

considered; ”There is no premium placed upon lay opinion as

opposed to expert opinion, nor on ‘objective’ as opposed to

‘subjective’ evidence.”).




                              37
United States v. Martin, No. 99-0232/AR


     This testimony established that there were numerous

instances where appellant attempted to conceal his acts.

Appellant asked that checks be made out to someone else for

work to be performed by him; he stated to another

individual, “I cannot officially work for you.”; he told

another person that the reason a loan payment was not being

made was because “finance made a mistake and stopped the

wrong allotment”; and he moved to a separate location,

closed the door, and said he was “not allowed to do this”

before accepting $1,700 in cash for what should have been

free military legal services.    This testimony also included

statements by appellant to his brother that he could “scam

anybody,” and a request by appellant that he should not

tell anybody or he would lose his retirement.

                            Conclusion

     Based on these and other facts, the court below

concluded “that appellant failed to carry his burden of

proving, by clear and convincing evidence, that he lacked

the ability to appreciate the nature and quality or the

wrongfulness of his acts constituting any specific

offense.”   53 MJ at 749.   Applying the “reasonableness”

standard of review, and interpreting the facts in the

manner most favorable to the prevailing party below, we

conclude that a reasonable jury could have found that


                                38
United States v. Martin, No. 99-0232/AR


appellant failed to meet his burden of proving by clear and

convincing evidence that he suffered a complete break

between reality and fantasy, or was unable to appreciate

either the nature and quality of his acts or the

wrongfulness of his acts, on either a legal or moral plane.

     We also conclude that because the Court of Criminal

Appeals conducted a de novo review of appellant’s finding

of guilt, and determined that the members’ finding of fact

on mental responsibility was correct in law and fact, that

appellant has received the benefit of appellate review at

least as vigorous as the more deferential standard of

review articulated in this opinion applicable to jury

findings of fact on mental responsibility.    Therefore,

further remand does not serve the best interests of

justice.

     Accordingly, we hold that appellant failed to prove

his affirmative defense of lack of mental responsibility.

                           Issue II

     Appellant also asserts that “[p]roof of lack of mental

responsibility during the period of the charged offenses

meets the statutory requirement of proof of lack of mental

responsibility at the time of the criminal act, if the time

of the act falls within the period of lack of mental

responsibility.”   Final Brief at 47.   Appellant asserts


                              39
United States v. Martin, No. 99-0232/AR


that the Army Court placed an “arbitrary, overly

restrictive” burden on appellant by requiring him “to prove

that at a particular moment of a charged offense, over a

two and a half year period of time, on more than one

hundred and ten separate occasions, two years after the

fact, that he lacked mental responsibility.”   Id. at 43-44.

     We agree with appellant that the large number of

charged offenses (seventy-nine) and the lengthy time frame

over which the offenses occurred (two-and-a-half years)

complicated the exigencies of proving this affirmative

defense.   Dr. Bowen testified that “there was simply no

way” to link descriptions of periods with every incident

for which appellant was charged.   Under the facts of this

case, and in light of the Government’s concession that

appellant suffered from a severe mental disease or defect

during the entire time span of appellant’s offenses,

appellant argued at trial that he could not “appreciate”

the “nature and quality” or the “wrongfulness” of his acts

(the second prong of the mental responsibility analysis)

during the entire period the offenses were committed,

rather than at specific moments within this same time span.

     The Government sought to rebut appellant’s “all or

nothing” argument by presenting evidence that appellant was

able to “appreciate” the “nature and quality” or the


                              40
United States v. Martin, No. 99-0232/AR


“wrongfulness” of his acts at least during specific times

within the overall time frame.       Specifically, the

Government pointed to instances where appellant attempted

to conceal his crimes, arguing that such actions

demonstrated that appellant understood the “wrongfulness”

and nature and quality of his acts.

     We agree with appellant that such an all-or-nothing

defense can be legally and logically relevant in proving

that an accused did not appreciate the nature and quality

or wrongfulness of his actions at the time of an offense.

This is not to say that the members were required to accept

appellant’s all-or-nothing strategy in this case, in light

of the Government’s rebuttal.    The military judge fully

instructed the members on the elements of each offense and

on their responsibility to consider each charge separately.

It was up to the members to determine whether the

affirmative defense of mental responsibility applied to

all, some, or none of the charged offenses.

     A similar scenario was addressed succinctly by a New

York intermediate appellate court:

          The implicit premise of defendant’s principal
          argument on appeal is that, in a case involving
          multiple related crimes, if an affirmative
          defense is established with respect to one crime,
          it necessarily must be established with respect
          to all crimes during a specific time period.
          Defendant cites no authority for that


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United States v. Martin, No. 99-0232/AR


          proposition. There may be instances involving
          affirmative defenses, other than insanity, (e.g.,
          entrapment, duress, renunciation) in which a
          defendant may establish the defense with respect
          to some but not all of the related crimes
          charged. For example, a defendant charged with
          multiple robberies or burglaries may be found to
          have acted under duress with respect to some but
          not all of the crimes. Similarly, a defendant
          charged with multiple drug offenses may be found
          to have been entrapped by the police with respect
          to some but not all of the offenses. Defendant
          cites no reason why the affirmative defense of
          insanity is not equally susceptible of partial,
          rather than total, success or failure. Although
          both the prosecutor and defense counsel may have
          tried the case on the all or nothing theory that
          defendant was either sane or insane throughout
          the period in question, the jury was not
          obligated to accept that assumption and, on the
          contrary, was entitled to reject it when the
          court repeatedly charged the jury to consider
          each charge separately.

People v. Justice, 173 A.D.2d 144, 147-48 (N.Y.S.2d 1991)

(emphasis added).

     Based on the facts of this case, we hold that a

reasonable jury could have found that appellant failed to

carry his burden of proof by clear and convincing evidence

that he was not mentally responsible throughout the period

in question, and therefore at the time of each offense, in

light of the Government’s evidence in rebuttal that he did

at times appreciate the nature and quality or wrongfulness

of his acts during the time period in question.




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United States v. Martin, No. 99-0232/AR


                          Decision

     The decision of the United States Army Court of

Criminal Appeals is affirmed.




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