AFCCA has denied a petition for extraordinary relief filed on behalf of a complaining witness by her Special Victims Counsel. LRM v. Kastenberg, Misc. Dkt. No. 2013-05 (A.F. Ct. Crim. App. Apr. 2, 2013). We’ve posted the decision here.
As synopsized by AFCCA, at trial, the military judge ruled that the complaining witness “had no standing (1) to move the court, through her SVC or otherwise, for copies of any documents related to Mil. R. Evid. 412 and 513; (2) to be heard ‘through counsel of her choosing’ in any hearing before the court-martial; or (3) to seek any exclusionary remedy, through her counsel, during any portion of the trial.” Id., slip op. at 4. “Finding the ‘right to be heard’ in the Military Rules of Evidence does not denote the right to be heard through a personal legal representative, the military judge found A1C LRM was only authorized to be heard personally; through trial counsel in pretrial hearings under Mil. R. Evid. 412 and 513; and, in the event she became incompetent, through a guardian, representative or conservator.”
The complaining witnesses’ appointed appellate counsel (the head of the Air Force JAG School and judge advocates on his faculty) then filed a petition for writ of mandamus with AFCCA on behalf of the complaining witness. After receiving papers from the parties and amici, AFCCA heard oral argument then stayed further proceedings in the case. CAAF denied a defense request to dissolve the stay without prejudice.
Today, AFCCA held that it does not have jurisdiction to hear the complaining witness’s petition for extraordinary relief. AFCCA held, “We find the All Writs Act does not give us the authority to issue a writ of mandamus regarding this particular, collateral, civil/administrative issue involving a non-party to the court-martial.” The court reasoned:
The military judge’s ruling obviously occurred during a pending court-martial, but that fact alone cannot bring the issue within our jurisdictional ambit. The military judge’s ruling about the scope of the SVC’s role or the alleged victim’s access to motions does not directly involve a finding or sentence that was—or potentially could be—imposed in a court-martial proceeding, nor does it involve a Government interlocutory appeal under Article 62, UCMJ, or amount to a request for a new trial. The fact that his ruling may affect the procedures used in a future hearing designed to determine the admissibility of evidence under the Military Rules of Evidence does not mean our jurisdiction extends to the adjudication of complaints from the alleged victim regarding those procedures. The Manual for Courts-Martial (Manual) provisions regarding Mil. R. Evid. 412, 513 and 514 do not provide for any appellate or collateral review of the military judge’s decisions or how to conduct the hearings required by those rules, and we decline to create one through the All Writs Act under these circumstances.
Id., slip op. at 7 (footnote and internal citation omitted).
The court continued: “Furthermore, his ruling does not implicate constitutionally-based rights in a pending court-martial, which has led military appellate courts to exercise jurisdiction in petitions brought by non-parties prior to the entering of findings and sentence.” Id., slip op. at 8. Finally, AFCCA disagreed with the complaning witness’s “contention that the CVRA’s provision that states it applies to ‘any court proceeding involving an offense against a crime victim’ includes military courts-martial and thus gives us the authority to issue a writ of mandamus granting her the requested relief.” Id. The court also found “the decision of Congress, the President, and the Department to not apply the CVRA to the victims within the UCMJ system and to not adopt a mandamus provision during the years since the CVRA was enacted to be intentional.” Id. And even if the CVRA did apply, AFCCA noted, it wouldn’t give the complaining witness a right to the relief she sought.
Nothing in the UCMJ vests the service courts with open-ended jurisdiction to entertain every challenge brought by interested entities regarding aspects of the court-martial proceedings. . . . Nothing in the UCMJ vests the service courts with open-ended jurisdiction to entertain every challenge brought by interested entities regarding aspects of the court-martial proceedings. Because issuing this writ of mandamus would not be necessarily or appropriately in aid of our statutorily-limited jurisdiction, we conclude we do not have the authority to consider the Petitioner’s mandamus petition.
Id., slip op. at 8-9.