Oral argument at CAAF in United States v. Hayes, No. 11-5003/NA, occurred on 2 November at Washington University School of Law. The case focuses on the availability of a duress defense when an accused is faced with a person threatening to commit suicide. The case was certified to CAAF by the Navy after the N-MCCA set aside the findings, which were entered in accordance with the pleas of the accused. The facts of the case are discussed in the argument preview.
Early in the argument, the government settled on two primary points: (1) that suicide cannot form the basis for a duress defense, and (2) even if suicide could form the basis, there isn’t enough evidence in this case to create a substantial conflict with the plea. The court probed these points, seeking a reason (i.e., a policy basis) why the government seeks to exclude suicide as a basis for a duress defense, and questioning the scope of review (whether the review is of the trial military judge’s acceptance of the plea, or of the CCA’s action setting aside the convictions) and trying to determine what the court must decide if it does not go so far as to exclude suicide as a basis for duress. These were recurring themes throughout the oral argument.
Part of the government’s argument was that an accused must establish a prima facie defense, either to create a possible defense (obligating the trial military judge to conduct an inquiry) or to create a substantial conflict with the plea (for relief at appeal). However, the government agreed that if an accused says something that is inconsistent with his plea, the trial judge must resolve the inconsistency. In the context of this case, the government argued that there is no inconsistency, and the prima facie defense rule, while desirable, is not necessary for the government to prevail.
The appellee’s argument focused on the availability of suicide as a basis for the duress defense, citing R.C.M. 916 and the context of this case. This drew scrutiny from Judge Stucky, who asked why the appellee’s mother (who had threatened suicide) was “another innocent person” under the rule. The appellee’s counsel argued that this is “the most difficult question for us to answer” (audio at 21:50). He also presented an alternative theory that an accused’s subject belief and the circumstances of the case matter when determining if someone is “another innocent person” under the legal rule.
The appellee’s counsel also argued that the terms “mere possibility” and “possibility” of a defense are just names and labels, and that a possible defense is either raised or not, depending on the facts. However, the facts of this case are that the appellee, in the course of his plea, repeatedly disavowed any extraneous force that compelled him to commit the offense, and the record does not identify an immediate threat to another innocent person (the offenses occurred over a number of months, during which time the appellee’s mother repeatedly expressed her financial and emotional distress).
A separate line of questioning by Senior Judge Cox raised the possibility that the defense at issue is not duress, but rather some other type of necessity or justification, where an accused commits an offense in order to prevent another from taking their own life. An undertone to this questioning was earlier discussion of suicide in the armed forces.
The appellee’s counsel closed his argument with the following (beginning at 39:40 of the audio): “There’s no principled reason, policy, legal, or otherwise, that the government can offer this court, as to why the duress defense should not be available [under these circumstances].” This challenge went unanswered in rebuttal, but certainly the appellee’s failure (or unwillingness) to seek alternative, lawful avenues to help his mother, such as assistance from the Navy-Marine Corps Relief Society, or involvement of law enforcement or medical professionals, is a principled reason to contest the need for the appellee to steal tens of thousands of dollars worth of government property over a course of months.
Law student Justin Lepp, appearing as amicus curiae and arguing only that suicide can, under certain circumstances, form the basis for a duress defense, began with a textual analysis of R.C.M. 916, to support the conclusion that suicide threats generally fall within the plain language of the rule because the rule must be interpreted subjectively from the perspective of the accused and the rule does not categorically bar the application. He then offered a plain-language description of the duress threat: “If a person is under a threat and they cannot avoid acting unlawfully, they lack a fair opportunity to avoid that, then the law recognizes that they should be excused [for] their criminal conduct.” He also distinguished a duress defense in the context of military offenses (where, for example, lawful commands can compel a person to endanger himself) and other offenses.
In rebuttal, the government’s counsel returned to the argument that an accused must lay out a prima facie defense in order to create a matter in substantial conflict with a plea. He then stated that such a rule would not be in conflict with precedent or create a heightened standard, and would create a clear rule for practitioners and trial military judges.
Case Links:
• N-MCCA’s unpublished opinion
• Appellant’s (government) brief
• Appellee’s brief
• Argument preview
• Oral argument audio