A U.S. Soldier stationed in Germany finds himself in a nightmare from which he cannot awaken. Coming out of a fugue at the Provost Marshall’s Office in Vilseck with very few flash memories of the last twelve hours of his life, he is bloodied, bruised, his left knee swollen. This Sunday morning, his nose is broken, he has a gash across his face, dried blood in his hair, and his knuckles and hands are swollen and bruised as though he has been in a fight, one he cannot recall. A brief recollection of leaning up against a familiar club’s bar taking a shot with a woman with long dark hair and wearing a white shirt. A snapshot of being struck in the side of the head with a metal object like a fry pan. A moment hiding behind a white trailer looking down at his hands looking at blood and feeling hurt. Grabbing a woman by the chin and demanding over and over to know what she did to him. Talking with an older woman, telling her that her husband is his father and feeling a sense of urgency to get to him. And blue flashing lights.
The familiar face of his NCO greets him at the PMO station and signs for his release. The Soldier feels differently than he has ever felt, sluggish, even clouded, and normal tasks seem more difficult. He is not hungry, he feels nauseated, and different from any other hangover he has ever experienced. And he should know. He drinks often, to excess, and even has a tolerance so significant that he can in one evening finish two bottles of liquor. On this particular night, witness reports that over the course of about six hours, he only drank between eight and ten drinks. For him, the word “only” is appropriate. This Soldier tried the Army Substance Abuse Program once before by his own self-report, but his trusted counselor lost his job, his records were lost, and he was lost in the system. He knows this day he cannot account for what has happened, and he is scared for what he has done and afraid of what happened to him. As he explains to his NCO what he knows from the night before, his fear grows.
After being dropped off, he eventually is able to shower, change clothes, and lays down to rest. Four hours later repeated knocks awaken him. It is his NCO; it is time to go back to the PMO for his rights’ warning. His first trip there, no one will advise him because a German breathalyzer at the scene of his arrest reported some amount of alcohol in his system. When advised, the Soldier wisely invokes his right to counsel. What he knows does not make sense to him, and he still isn’t right. After being dropped off at his barracks room, he sleeps until duty the next morning. He finally feels hung-over on Monday, though all of his symptoms do not fully subside until late Monday afternoon. Monday evening he sends a text message to his NCO informing him that he would like to take a drug test. Because he wants answers. After going through his chain of command, on Tuesday morning he is given the clear to submit samples. The Soldier reports to the Grafenwoehr Troop Medical Clinic (TMC) and there bureaucracy pushes back because of the length of time that has elapsed. Still, he insists on providing samples. He wants answers. The tech takes two blood vials and a urine sample.
The woman from the TMC calls him weeks later to report that his tests were negative.
Before he hires civilian counsel, his urine sample is destroyed. And according to the government counsel, the blood vials were destroyed too. But then we found them. Sitting in a sub-contracting lab’s storage in the U.S. And the defense found the blood vials mere days before they were scheduled to be destroyed (one year after receipt) and one week before we were scheduled to go to trial the first time.
Defense submitted a request to the convening authority to fund private testing to run more than the standard drug screen panel that only tests for drugs like marijuana, cocaine, and run of the mill amphetamines. To search for the truth. The convening authority denied our request. Faced with the risk of another continuance and dragging out this nightmare even longer by filing a motion to compel private funding, we opted not to.
The Soldier’s family funded the private testing. After countless calls and Internet searches, I felt confident we found the best lab. The first step was to establish that the blood sample really belonged to the Soldier; with no chain of custody, we wanted first to test a comparison DNA standard. NMS Labs could perform both kinds of testing. And if the sample did not come up as consistent with our client’s DNA, then we knew our search would cease.
I was shocked when NMS Labs personnel explained we would never get a breakdown of all contents of the blood samples. NMS Labs personnel further explained that no lab provides a chemical analysis of every component of a given sample. Every lab possesses a library of component combinations to recognize as a given drug, even synthetic drugs. If the given components in a submitted sample do not match one of their known standards from the library, NMS and other labs will not call it. You’ll never see peaks, charts, or data. We chose NMS Labs because they have the largest library for comparison testing of all drugs to include synthetic and so-called “designer” drugs. NMS Labs provides a list of tests from which you must choose, and each test carries its own separate fee. We chose them all. We were searching for whatever had found its way into the Soldier’s system.
A rush test (and another fee), sample was confirmed to be the Soldier’s – 1 in 7 trillion, though the known standard sample did not yield a full profile. Thanks, Military Police Investigator for your ineptitude at collecting a buccal swab. To not obtain a full profile from a known standard (think someone swabbing the inside of our client’s mouth) is pretty grave ineptitude. Whatever, we had his blood. We were encouraged and hopeful.
With only so many milliliters of blood, we had to prioritize our most likely candidates. Nothing was coming up and we were running out of the blood sample. The government turned over only one vial that had the Soldier had provided and some of the sample had already been expended on the standard panel. Now, you might be wondering or expecting that the government was conducting its own testing on the second blood vial, but fear not – no way. The one fight in this war the government did not make us fight was releasing the second vial. Frankly, I believe someone figured out they had no ground upon which to fight us – this was a privately given sample by the Soldier for medical treatment and not one based upon a probable cause seizure; and with their repeated singsong mantra that still echoes in my ears of “he was just drunk”, I could hardly see them convincing a magistrate that probable cause existed to find evidence of a crime in his blood sample.
The government released the second vial. We had enough blood for all remaining tests. We exhausted all avenues. Still the results were negative. For all drugs in the NMS Labs library collection.
Our forensic psychiatrist expert consultant reached out to a forensic toxicologist for understanding about this library business and to help us understand how best potentially to explain the absence of any positive tests. The first explanation was easiest to understand – the time lapse between ingestion and sample collection made it difficult but not impossible to find the substance. The second explanation was unexpected – the duration that the sample went untested made the predictability of detection virtually unpredictable. No one knows or understands how synthetic compounds like bath salts (which was one of our top contenders given the signs and symptoms) and the like are preserved when stored for a long period of time. You know, like over a year. The third related explanation dealt with unknown variables in the manner the sample was stored, and we knew very little about how the sample had been stored for that time over one year.
We strategized whether to turn it all over to the government, and my inclination was to turn over the results, the explanation, everything. Because we needed to explain to the panel why we had no positive test results. [Note: the defense has no affirmative obligation to turn over any information which is not favorable to the accused or any materials the defense has in its possession but that it does not intend to introduce or upon which no witness has based their testimony or opinion]. Our expert explained the negative test results did not change his opinion that the Soldier’s behavior was consistent with a drug induced delirium and that in the state of delirium he would not have been able to appreciate the nature, quality, and wrongfulness of his actions. His inability to recall events prior to any ingestion at the club known as retrograde amnesia was a telltale sign of a drugging.
We handed over everything. The DNA report, the negative test results, articles upon which the expert was relying to explain the absence of the positive result, and information on drug induced delirium. We declared our expert consultant a witness, and we waited for the government to arrange an interview in advance of trial. But the government prosecutors did not call our expert.
Days later, in fact, the day before our last day of preparation, the government filed a motion to preclude the expert’s testimony, which meant a motion to preclude essentially our entire defense. The basis? Lack of notice. And a Daubert challenge. Because we had no positive drug test, and “he was just drunk.” Oh, and also, our expert was only a forensic toxicologist. But guess what? Our expert witness is a forensic psychiatrist. Did they bother to read anything? Defense requested to litigate the motion first thing the day of trial and to delay the trial by an hour, but the government insisted we litigate the motion during a time they knew we had plans to interview the local national witnesses. Because, you know, “justice.”
I filed our motion response at 1:51am local time. I finished the rest of my prep save witness interviews around 4am. Part of my response to the government’s motion documented that the government counsel had not bothered to interview our expert so it was difficult for me to understand a Daubert challenge without a report or summary of expected testimony. The government sent an email relaying that if the judge did not grant their motion to preclude the expert testimony, they would seek continuance due to the late notice of our defense of involuntary intoxication, which according to their pleading had not been given until 21 January 2017. In order to defend against this insinuation of late notice, defense’s motion response included documentation that six months before the government obtained an expert consultant in the same field, and their justification was that the defense was using the defense of… wait for it, involuntary intoxication. Our original formal notice of special defenses had disclosed on 8 August 2016 that the defense intended to “likely use the defense of innocent ingestion.” After the filing of the defense motion response, the government deigned to interview our expert witness. I thought for a brief moment the government might withdraw its motion, at least on Daubert grounds since the counsel must surely have realized the reliability and how the testimony would be helpful to the trier of fact. But, gosh, that never came either. Silly me.
After several hours on the record laying out the expert’s testimony, its reliability, and basis, the military judge ruled against the government’s challenge to preclude his testimony. I have a hard time imagining that anyone in that room believed the judge would ever grant the government’s motion, but it was filed to waste our time in preparation (bravo, government!) and to try to justify continuance (your tax dollars hard at work). In the judge’s chambers, the government counsel had the audacity to propose continued trial dates which they had “taken the liberty” of clearing with the judge’s calendar and their own. But not mine. After explaining that I was not available for this date almost a month out, defense opposed continuance beyond an hour to give the government time to consult with THEIR OWN EXPERT in the same field.
And then, during litigation, when I formally opposed the government’s request for continuance, the proverbial cat came screeching out of the bag… the government had not travelled their expert to trial. We would find out later he was on leave. The government explained that they needed the time to secure a rebuttal witness because the defense expert would not admit on cross-examination that all of the Soldier’s signs and symptoms could be explained by him “just being drunk.” I opposed the judge’s consideration of such a matter as merely the proffer of government counsel and that I could not envision the government finding a witness to testify that the Soldier’s signs and symptoms were consistent with alcohol intoxication alone. The only hang up was that defense still had not yet received the affidavit from a forensic toxicologist that explained the issues with storage and time lapse in sample testing. The military judge denied the government’s continuance but warned us that if defense had not disclosed the affidavit by morning, he would revisit the government’s motion for continuance. We turned over the affidavit at 9:52pm as soon as we received it from the toxicologist.
Despite the government’s attempts to gain tactical advantage and to derail our preparation, we laid out concrete evidence during trial that the Soldier was drugged. Even without a positive drug test. Then came the government’s Hail Mary… On cross-examination of our expert witness, the government suggested that the Soldier knowingly ingested whatever drug caused his psychotic behavior. The only way that an Involuntary Intoxication defense applies is if the Soldier ingested the substance unwittingly, so by suggesting he ingested the drug on purpose, they were going with an insulting “plan B.” I’m not sure why I was so surprised; it had briefly crossed my mind before trial but represented more of the same. In hindsight a better capture of my feeling was more disgust than anything. The Soldier’s service record was pristine, and the government could not find one infraction in his past or any misbehavior since his arrest more than a year before his trial.
After railing on the government for their inept investigation (failing to collect blood and urine right away, you know, after the guy is delusional and screaming at an 82 year-old German woman that her husband is his father) and the government’s eleventh hour baseless assertion that Involuntary Intoxication should not defend the Soldier’s actions because he must have knowingly taken drugs so as to “build his confidence to talk to a girl at a bar and dance with her” and to “celebrate his approved MEB,” the panel saw the evidence for what it was: clear and convincing evidence of Involuntary Intoxication, a complete defense to all charged misconduct.
And the panel reached their conclusion in only 24 minutes. They saw what the government had been ignoring for months. Because as I hissed during my closing argument, the government attorneys “care more about winning, than they do about justice.”
This Soldier’s nightmare is over. We will never know what chemicals made their way into his system, or even concretely who is to blame for drugging him. There are hours of his life unaccounted for, and those responsible for beating him will go unpunished. What precisely were their motives or how many people were working in concert will not be revealed.
But for now, the risk of conviction, jail time, and punitive discharge for him is gone. A good man is free.
My sincere hope is training is implemented to assist those responders (especially those in Europe) to recognize the symptoms at play to help detect these compounds and upon clear articulation of those symptoms that blood and urine samples are taken on any “DUI pickup” where the symptoms are not consistent with only alcohol. Synthetic drugs are dangerous, and U.S. service members (those abroad especially) are vulnerable to being targeted.
Sadly, I have no doubt that those who work in the prosecutor’s office from the above case came away from this trial believing that a slick lawyer helped thwart justice; I’m not sure if they would recognize justice if it hit them in the side of their head with a fry pan.
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