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.

AFCCA concluded:

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.

17 Responses to “AFCCA denies complaining witness’s petition for extraordinary relief”

  1. Anon says:

    This might be a first – a military appellate court limiting its own jurisdiction to decide a case.  It seems like the courts always think they have the authority to make some type of decision (i.e. Clinton v. Goldsmith).  I wonder if CAAF will weigh in.

  2. Zachary Spilman says:

    On 14 February 2013, attorneys serving as appellate SVC on behalf of A1C LRM filed a Petition for Extraordinary Relief in the Nature of a Writ of Mandamus and Petition for Stay of Proceedings.

    Slip op. at 4 (emphasis added). In contrast, exactly how many appellate attorneys does an accused get? I also wonder if this isn’t the first time (ever) that “the head of the Air Force JAG School and judge advocates on his faculty” teamed up to represent a single Airman?

    “By 2014, the goal is to have 60 full-time SVCs with 31 paralegals to provide support,” Bellflower said. “Right now, it’s more of a part-time assignment – when we have a client, that’s all we do, but when I’m not working on one of these cases, I still do my ‘day job’ as the wing’s deputy staff judge advocate.”

    http://www.afjag.af.mil/news/story.asp?id=123339736 (emphasis added). In contrast, I work in a defense shop with ~14 judge advocates and just two clerks (who, if we’re lucky and it’s a good day, do something more than just answering the phone), and we’re expected to represent actual parties.

    Our team of prosecutors is better than any you will see in the civilian community or on TV. I have 17 highly skilled senior trial prosecutors, who are selected from among hundreds of judge advocates for their top notch trial skills. They have the very best trial skills in the Air Force JAG Corps.

    COL Christensen, Chief Gov’t Trial and Appellate Counsel, My Job is Prosecuting Sexual Assault, Jul. 19, 2012 (link). So much for defending our brothers and sisters in arms. Heck, so much for quality spread.

    If we were to find jurisdiction in the scenario before us, we would, in effect, be granting a non-party to the court-martial judicially-recognized rights equal to those of party participants —albeit for a limited issue—in a fashion specifically granted nowhere in the UCMJ, the Manual, federal statutes, governing precedent, or even the SVC program guidance itself.

    Slip op. at 8 (emphasis added). Actually, in many ways, the court would grant a non-party rights that are greater than those of the party participants. Well, one of them anyway…

    That same day, A1C Daniels filed a petition for extraordinary relief in the nature of a writ of prohibition, asking the Court of Appeals for the Armed Forces (CAAF) to dissolve this stay. On 19 March 2013, CAAF denied that petition without prejudice.

    Slip op. at 4, N.9. A tragic injustice.

  3. ResIpsaLoquitur says:

    Seems like cooler heads prevailed to me.  I am increasingly distressed by the idea that we need to blur the civil and criminal justice systems.  It feels like sexual assault cases are increasingly becoming perceived as a mechanism for the government to act as the (purported) victim’s angel of justice.  That’s not how it works.  The government has a broad interest in keeping society safe, both for individuals and as a whole, but I get a little worried when we start promoting the full force of the prosecutor’s office for the sake of individuals (who may or may not be telling the truth).  The prosecutor’s client is the military service, not the individual. 
    Otherwise, do we let the victims start making decisions on trial strategy and sentence recommendations?  This is dangerous.  If we want to appoint Special Victims Counsel and have them assist in civil suits against the alleged offender, that’s fine and within our scope as legal service agencies.  Beyond that, I get nervous.

  4. Charlie Gittins says:

    It is only going to get worse.  Next time look for Susan Burke as complaining witness’ counsel.    

  5. Lieber says:

    ZS: I’d relax a bit…the higher-ups don’t necessarily have the best idea who has the best trial skills…those jobs tend to reward zeal more than skill….

  6. old trial counsel says:

    Why is the SVC program such a controversial issue?  A number of states permit a victim to be represented by an attorney in the 412 hearing, to include giving legal arguments on the victim’s behalf as to why the evidence should stay out.  As far as I am aware, no court has determined the defendant’s constitutional rights were violated under such a scenario.

  7. Anonymous Air Force Senior Defense Counsel says:

    OTC – Just because something doesn’t violate the constitution doesn’t mean it’s a good idea.  This program is controversial because it changes the dynamics of litigation.  The defense counsel has to respond to allegations from two sides.  You’ve got the prosecutor to contend with, and the SVC, who has no discovery obligations but in some cases has been allowed to speak and make objections from the gallery. 
    I don’t think most criminal lawyers, regardless of side, are against victims being well counseled.  The controversy arises when we ask ourselves if this sort of thing is really in the best interest of our justice system.  Whether or not a court has determined a constitutional right has been violated isn’t relevant to that more important question.

  8. Dew_Process says:

    One merely needs to look at the “style” of the case here to see a fundamental problem.  Whydoes the alleged “victim” get anonymity while the presumed innocent “Real Party in Interest” has his name splatterd across the internet universe?
     
    But, who says that the defense has anyobligation to do anything or respond to anything from a SVC?  They are not a party to the court-martial proceedings as the Court made clear.  With respect to MRE 412(c)’s purported requirement to notify the “alleged victim,” defense counsel can simply “object” to serving a non-party and wait for a Motion to Compel from someone who lacks standing.  Let the TC serve them if they feel it necessary.
     
    Alternatively, and the better defense practice imho in any event, is to file any MRE 412 notices “under seal.”  There is a reason for the “sequestration” rule, and yes, I know what MRE 615 says – you just seek a Protective Order.

  9. old trial counsel says:

    I agree that the defense counsel is not obligated to provide the SVC with requested information.  I’m sure most DCs will ignore the SVC unless the judge tells them to turn it over.  Now that would be an interesting issue.  What if the DC refuses to comply?  
    However, the question is whether the “victim’s” right to be heard can be through counsel.  Nothing in the rule prohibits that and I disagree that an SVC amounts to a second prosecutor.  The SVC will make legal arguments to the judge, not providing evidence to the members.

  10. Christian Deichert says:

    “exactly how many appellate attorneys does an accused get?” 
    Looking at the Air Force ROSTER page for AFLOA/JAA, the USAF appellate defense shop, I count eleven attorneys assigned, including Mr. Sullivan, plus eight reserve billets currently filled. Clicking on a random AFCCA opinion, US v. DiMatteo, I count five plus Frank Spinner.
    As for the SVC appellate program, last time I counted, it remains at two attorneys who maintain the same teaching schedule as the other four of us in the military justice shop.  I wouldn’t lose any sleep over the numbers just yet.

  11. Dwight Sullivan says:

    On DiMatteo, I count only four military appellate defense counsel.  And what do they all have in common?  None of them is still at Air Force Appellate Defense.  DiMatteo is a better example of the lack of continuity of military appellate counsel than the staffing level of JAJA.

  12. Dwight Sullivan says:

    Ah, I see the disconnect — you were looking at AFCCA’s January 2013 DiMatteo decision and I was looking at AFCCA’s December 2012 DiMatteo decision.

  13. RY says:

    Having worked at JAJA, I can tell you that looking at an opinion is misleading. Airmen get just 1 appellate counsel. The additional names are from having everything reviewed by at least one other senior appellate counsel. With some of these cases taking years to get through the process, or senior counsel going TDY or on leave, others end up doing a review.  More importantly, it’s still one counsel but when that counsel PCSs, someone else has to enter appearance.
    The difference is thus that DiMatteo got one counsel, a supervisor, and a few PCSs, deployments, or changes in counsel.  The alleged victim actually has a posse of counsel who are all present and all signed the brief.  It’s a big disparity but not unexpected given the excessive resources being thrown at the SVC program, especially while everyone else is suffering significant cutbacks from sequestration.

  14. Christian Deichert says:

    Having worked at AFJAGS for the past three years, your comment on “excessive resources” made me spew coffee on my keyboard. 

  15. Richard Stevens says:

    It is important not only to look at the stated purpose, justification and rules for this program, but to look at what we are seeing at the actual trial level.  Some of the huge problems with this program are described in the Air Force Trial Defense amicus brief in this case, which details SVC abuses in various courts-martial.  I have had more than one SVC formally object to my requested discovery that was non 412 or 513 related.  And, because in one instance the complainant possessed the discovery, the objection was actually meaningful in (thus far) denying the requested discovery.  I have had an SVC refuse to allow us to interview the complainant before the Article 32 hearing, while allowing the trial counsel to interview her.  So, when deciding whether SVCs amount to another prosecutor in these cases, don’t just look to how this program is described, look at how it is practiced. 
    I would be interested to know what states allow complainant’s counsel to argue 412 issues in court, and to see what the rules/limitations on that counsel’s role are in those jurisdictions.  I would also be interested to see if the state in those jurisdictions is assigning those additional counsel (as the USAF is doing) or if they’re privately retained. 

  16. Nelson1807 says:

    After the AFCCA denied en banc reconsideration, it appears that the SVC, with TJAG’s certification, are appealing to CAAF.  This is, of course, within TJAG’s right to do so.  Kudo’s though, to Rich for pointing out the obvious flaw in the program.  If a prosecutor has a duty to strike hard (but not foul) blows, and to find exculpatory evidence; and a defense counsel is bound by the ethical duty of not providing perjured evidence to the trier of fact, what are the rules for an SVC? What happens when an SVC stumbles on a witness the government doesnt know of, but the witness could be helpful to the accused.  Is there a duty?  These issues have never fully been explained.

  17. Ed says:

    The rules for disclosure by SVC should be made clear. Without commenting on the usefulness of the SVC program no counsel should be left to guess what responsibilities they have.