                        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,


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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.




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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.



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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



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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.


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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 . . . .




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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


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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



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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).




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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




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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


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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


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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).


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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


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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


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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’


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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.




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