Intent to Kill or Inflict Great Bodily Harm
Act Inherently Dangerous to Another
During Certain Offenses
The elements of the offense are relatively self-explanatory. A killing of a human being is unlawful when done without justification or excuse. Rule for Courts-Martial 916 describes the applicable justification and excuse defenses in the Uniform Code of Military Justice.
As a threshold matter though, certain definitional comments are worth discussion. Premeditation means that the though of taking a life was “consciously conceived and the act or omission by which it was taken was intended.” There is an imperceptibly fine line between premeditated murder and unpremeditated murder – which requires intent to kill or inflict great bodily harm. The difference, of course, is that premeditated murder carries a minimum mandatory sentence of lifetime confinement with eligibility for parole.
The difference between premeditated murder and unpremeditated murder is often a matter of discretion for convening authorities and prosecutors and nothing more. The minimum mandatory sentence of a lifetime of confinement is one of the worst features of our criminal justice system, but not likely to change given it’s propensity for facilitating guilty pleas for the risk averse client. The minimum mandatory sentence provides powerful incentive for witnesses to lie. The stakes are so high such that coercive law enforcement techniques can undermine faith in the integrity of the system.
We say the differences in specific intent is nothing more than discretionary, because in practical terms the difference is so imperceptible that juries may struggle to distinguish the two. The authors of this book have represented many service members over the last 10 years involved in combat related homicides. Two cases come immediately to mind. They are factually very similar and involved Soldiers who killed detainees on the battlefield during or immediately following the cessation of combat activities. They both had similar states of mind. The first Soldier was convicted of unpremeditated murder and received a 10-year sentence of confinement from a jury and received parole after service 6 years. The second Soldier, whom the authors represented on appeal, was convicted of premeditated murder and is serving a life sentence with eligibility for parole. The sentence disparity for factually similar offenses is obvious.
In that regard, defense counsel’s first task in defending a murder charge under the military system is to very closely examine the issue of specific intent. Expert assistance is a must. Defense counsel will immediately want to obtain the services of a forensic psychiatrist or forensic psychologist. Client interviews will need to explore the client’s:
-History of trauma, including post-traumatic stress disorder;
-History of head injury, including youth sports, auto accidents, and military related injuries;
-History of mental health issues, including depressive disorders, personality disorders, anxiety disorders, etc.; and,
-Physiological state at the time of the killing, including substance abuse, sleep deprivation, heat of sudden passion, etc.
Skillful use of expert testimony may help in convincing charging authorities to reduce a charge from premeditated murder to a lesser-included offense.
After examining the issues of specific intent, counsel will likely want to examine the factual circumstances and potential affirmative defenses under Rule for Courts-Martial 916. Those are examined in greater detail below. The most important thing that a lawyer can do in a murder crime is to preserve the crime scene. Witness testimony is the least reliable form of testimony. Its reliability is best judged against the forensic evidence. In military cases particularly, it is often not possible for military counsel to even visit the alleged crime scene. Counsel is almost always reliant on the work of military investigators – some of whom are more experienced than others.
The one area in which military defense counsel can serve his or her client well though, is in making efforts to preserve witness testimony. The sooner defense counsel becomes involved in a murder case, the sooner he or she can begin interviewing potential witnesses. This must occur without delay. Often witnesses in murder cases will be fearful of the potential of facing accessory or co-conspirator type charges. The mere threat of charges by a prosecutor quickly turns key witnesses into liars. Defense counsel must attempt to speak with witnesses as soon as practicably possible. Counsel must also be careful to preserve his or her conversations with witnesses. There are a variety of reasons for recording conversations with witnesses in a murder case. For ethical reasons, they may have a desire to accuse defense lawyers of impropriety. Additionally, the ability to produce a verbatim transcript of a witness interview is an invaluable tool that is not often used in military defense circles.
There are other tools that are available to defense counsel. In interviewing witnesses, you may desire to have the witness provide diagrams and drawings. Using maps obtained from online sources is always helpful. You will want to find out whether the witness had taken any photographs of the crime scene. In this day and age, most young service members have camera phones and memorialize events.
Military law enforcement agencies often overlook potential witnesses. The authors recently had a combat related case where authorities neglected to interview helicopter pilots who were overhead during the alleged discharges of weapons. Military murder cases often involved statements against interest and jailhouse snitches. Defense counsel will want to advise the client, who will likely be in pretrial confinement, not to discuss the case.
Discussions of affirmative defenses should be carefully explored with the client. Generally, affirmative defenses are of two varieties – excuses and justifications. Excuse defenses relieve the client of culpability by virtue of some defect in the client’s mental state. Those defenses include intoxication related issues that could serve to reduce the degree of specific intent and insanity related defense. Justification defenses relieve the client of culpability by virtue of the nature of the act itself - self-defense, obedience to orders, legal justification.
Generally, the government has the burden of providing that an affirmative defense does not exist once raised. Justification defenses are found in Rule for Courts-Martial 916 (c). The basic framework under that provision provides for justification of a homicide where the act was done in the proper performance of a legal duty.
Excuse defenses generally consist of lack of mental responsibility and partial mental responsibility.
As a side anecdote and history lesson on justification defenses, the authors were involved in the defense of a Marine accused of killing several Iraqis in the city of Haditha. Mr. Myers had, many, many decades before represented a Soldier who was a witness to the My Lai massacre. I was a young law clerk nearing graduation from law school and a prior enlisted Marine. Mr. Myers immediately recalled the case of United States v. Medina. Another prior Marine had represented CPT Ernesto Medina – F. Lee. Bailey. CPT Medina was ultimately acquitted in that case and so there is little published about his case relevant to the issue of justification.
At the beginning of the Haditha case, I was sent on a mission by Mr. Myers to locate the record of trial in United States v. Medina. More specifically, I was sent to locate a copy of the jury instructions and arguments by F. Lee Bailey on the issue of justification. The Army JAG School in Virginia now holds at least one copy of the record of trial. After talking to several prosecutors from the My Lai trials I was able to locate a transcript of the instructions and Bailey’s arguments. He was careful to note that a killing on the battlefield is not the same as a killing on the street. In many respects, F. Lee Bailey was correct that the Manual for Courts-Martial is not well crafted to proscribe rules and defenses in combat related allegations of murder.
Whether a murder is justified or not is a question of legal duty.
The next affirmative defense is that of obedience to orders. It basically involves two elements:
Self-defense is perhaps the most common defense in murder cases.
-That the accused apprehended, on reasonable grounds, that death or grievous bodily harm was about to be inflicted wrongfully on the accused; and
-That the accused believed that the force the accused used was necessary for protection against death or grievous bodily harm.
The test, of course, is objective. In the military, the objective test is that of a reasonable, prudent person under the circumstances. The test for the second element is entirely subjective. The accused loses the right to self-defense when he or she is the aggressor, engaged in mutual combat, or provoked the attack. The same principles apply in defense of another.
Coercion or duress is not a defense to murder.
Mistake of fact can be a defense to murder. This is particularly true in combat related cases where the service member may have incorrectly perceived a threat.
DA Pamphlet 27-9
3-43-1 - Premeditated murder
3-43-2 - Unpremeditated murder
3-43-3 - Murder while engaging in an act inherently dangerous to another
3-43-4 - Felony murder
The maximum punishment for premeditated murder or murder during certain other offenses is death. There is a mandatory minimum sentence of life imprisonment with eligibility for parole. For unpremeditated murder or reckless murder, the maximum sentence is such punishment other than death as a court-martial may direct.
Lesser Included Offenses
The lesser-included offenses for premeditated murder and murder during certain offenses includes all murders under Article 118, manslaughter under Article 119, all assaults under Article 128, negligent homicide under Article 134, assault with intent to commit voluntary manslaughter under Article 134, and Article 80 attempts.
 MCM, Pt. IV, ¶ 43a.
 MCM, Pt. IV, ¶ 43a.
 MCM, Pt. IV, ¶ 43a.
 MCM, Pt. IV, ¶ 43a.
 MCM, Pt. IV, ¶ 43c.
 Military Judges Benchbook, ¶ 3-43-1 - Premeditated murder.
 Military Judges Benchbook, ¶ 3-43-2 - Unpremeditated murder.
 Military Judges Benchbook, ¶ 3-43-3 - Murder while engaging in an act inherently dangerous to another.
 Military Judges Benchbook, ¶ 3-43-4 - Felony murder.
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