CAAF decided the certified case of LRM v. Kastenberg, No. 13-5006/AF, 72 M.J. 364 (CAAFlog case page) (link to slip op.), on July 18, 2013, finding that it has jurisdiction to decide a challenge by the alleged victim in an Air Force sexual assault general court-martial (who is identified only by the initials LRM) to the trial judge’s ruling limiting the ability of the LRM’s counsel (who was assigned to her by the Air Force) to participate in the proceedings. CAAF reverses the Air Force CCA, which found that it lacked jurisdiction to decide LRM’s challenge to the judge’s ruling. CAAF also reverses the ruling, which had limited the ability of LRM’s assigned counsel to participate in the court-martial, finding that LRM has a limited right to be heard through counsel, including a limited right to have her counsel present legal arguments. CAAF remands the case for further action not inconsistent with its ruling.
Chief Judge Baker writes for the court, joined by Judge Erdmann and Senior Judge Effron. Judge Stucky concurs in part and agrees with the majority that the court has jurisdiction, but dissents in part and agrees with Judge Ryan that LRM lacks standing. Judge Ryan dissents, and writes a lengthy separate opinion.
LRM’s brief to CAAF provided the best glimpse into the otherwise well-hidden facts of this case:
Airman LRM, 627 LRS, McChord AFB, Washington, reported to authorities that on 13 August 2012, [the Accused], 49 CES, Holloman AFB, New Mexico, penetrated her vagina and anus with his finger and penis despite her repeated statements to him to stop, that he was hurting her, and that she was done having sex. This allegation led to two specifications of a violation of UCMJ Article 120 being preferred against him on 16 October 2012 and then being referred to trial by General Court-Martial on 28 November 2012.
LRM was assigned counsel through the Air Force Special Victims’ Counsel (SVC) program. That attorney filed a notice of appearance in the general court-martial, asserting that “LRM had ‘standing involving any issues arising under [M.R.E.] 412, 513, and 514 in which she is the patient or witness as the subject of the motion.'” Slip op. at 3-4. M.R.E. 412 is the “rape shield” rule; 513 is the psychotherapist-patient privilege rule, and 514 is the victim advocate-victim privilege rule.
During a pretrial hearing, LRM’s SVC “indicated that he did not intend to argue at any future M.R.E. 412 or 513 motions hearings.” Slip op. at 4. But he then shifted this position, noting that “there may be instances where LRM’s interests . . . were not aligned with the Government, in which case [he] asked the court to reserve LRM’s right to present an argument.” Slip op. at 4. The military judge denied the SVC’s request to reserve a right to present argument, and “limited LRM’s right to be heard to factual matters.” The judge differentiated between standing of a party as “the right to present an argument of law before a court,” and the mere “opportunity to be heard” that is afforded to LRM as an alleged victim or a patient under M.R.E. 412, 513, and 514. Slip op. at 4. The judge also found that LRM lacked standing to litigate the production of documents, and that her SVC could not argue evidentiary matters on her behalf. Slip op. at 5.
LRM sought relief from the Air Force CCA, but that court concluded that “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.” LRM v. Kastenberg, Misc. Dkt. No. 2013-05, slip op. at 7 (A.F.Ct.Crim.App. Apr 2, 2013). The Judge Advocate General of the Air Force then certified the case to CAAF, with three issues:
I. Whether the Air Force Court of Criminal Appeals erred by holding that it lacked jurisdiction to hear A1C LRM’s petitino for a writ of mandamus.
II. Whether the military judge erred by denying A1C LRM the opportunity to be heard through counsel thereby denying her due process under the Military Rules of Evidence, the Crime Victims’ Rights Act and the United States Constitution.
III. Whether this Honorable Court should issue a writ of mandamus.
The majority answers issues I and II in the affirmative, but finds that a writ of mandamus is not the appropriate remedy, instead returning the case to the JAG for remand to the trial judge for further action.
Chief Judge Baker’s opinion begins with the issue of jurisdiction, and the related issues of standing and ripeness. He begins by noting that CAAF has statutory jurisdiction to review the CCA’s finding that it lacked jurisdiction, as the CCA took “final action . . . on a petition for extraordinary relief.” Slip op. at 7. He then finds that the CCA erred in finding that it lacked subject-matter jurisdiction because the court did not accurately apply the analysis recently articulated by CAAF in Center for Constitutional Rights, et al. v. United States and Colonel Lind, No. 12-8027/AR:
To establish subject-matter jurisdiction, the harm alleged must have had the potential to directly affect the findings and sentence. There is no jurisdiction to adjudicate what amounts to a civil action, maintained by persons who are strangers to the courts-martial, asking for relief that has no bearing on any findings and sentence that may eventually be adjudged by the court-martial. The CCA’s holding that the present case “does not directly involve a finding or sentence that was –– or potentially could be imposed –– in a court-martial proceeding,” does not accurately reflect this analysis.
Slip op. at 8-9 (marks and citations omitted). “Under the appropriate analysis, LRM prevails,” because “[t]he military judge’s ruling has a direct bearing on the information that will be considered by the military judge when determining the admissibility of evidence, and thereafter the evidence considered by the court-martial on the issues of guilt or innocence — which will form the very foundation of a finding and sentence.” Slip op. at 9. Moreover, LRM isn’t a stranger to the court-martial, she is “the named victim . . . seeking to protect the rights granted to her by the President in duly promulgated rules of evidence.” Slip op. at 9. Chief Judge Baker also notes that convictions have been reversed for erroneous M.R.E. 412 rulings.
On the issue of standing, Chief Judge Baker writes that LRM’s status as a non-party does not preclude standing because, “There is long-standing precedent that a holder of a privilege has a right to contest and protect the privilege.” Slip op. at 10. However, the Chief Judge does not address a question raised by Judge Ryan in her dissent, specifically that LRM cannot identify an injury-in-fact because “at this point in the proceedings, LRM — having no intention to speak or legal arguments to raise — has not suffered any actual harm. She alleges no certainly impending harm and does not allege any divergence between her interests and those of the Government, or that such a divergence in interests is likely, let alone certain, to occur at a later stage in the proceedings.” Ryan, J., Diss. op. at 2. Instead, the Chief Judge appears to assume that LRM will eventually take a position different from that of the Government and the Accused. Though, this is hedged a bit in the Chief Judge’s conclusion that the issue is ripe, as he interprets the trial judge’s ruling as “a concrete ruling” that LRM lacks standing under all circumstances (noting that the SVC had asked the judge to reserve LRM’s right to present argument through counsel if her interests diverge from those of the parties).
Turning to the second issue, the Chief Judge writes that:
A reasonable opportunity to be heard at a hearing includes the right to present facts and legal argument, and that a victim or patient who is represented by counsel be heard through counsel.
Slip op. at 14. He considers the language of the rules to determine that “the President intended, or at a minimum did not preclude, that the right to be heard in evidentiary hearings under M.R.E. 412 and 513 be defined as the right to be heard through counsel on legal issues, rather than [merely] as a witness.” Slip op. at 14. He finds this conclusion consistent with military and federal caselaw, noting that “there are many examples of civilian federal court decisions allowing victims to be represented by counsel at pretrial hearings.” Slip op. at 15. But, while the majority finds that there is a right to be heard through counsel, the Chief Judge sees significant limitations:
this right is not absolute. A military judge has discretion under R.C.M. 801, and may apply reasonable limitations, including restricting the victim or patient and their counsel to written submissions if reasonable to do so in context. Furthermore, M.R.E. 412 and 513 do not create a right to legal representation for victims or patients who are not already represented by counsel, or any right to appeal an adverse evidentiary ruling. If counsel indicates at a M.R.E. 412 or 513 hearing that the victim or patient’s interests are entirely aligned with those of trial counsel, the opportunity to be heard could reasonably be further curtailed.
Slip op. at 17 (emphases added). The Air Force SVC program leadership should put down their champagne glasses and read CAAF’s recent unanimous opinion in United States v. Brown, No. 13-0244/NA, for an example of the significant power greanted to a military judge under R.C.M. 801. Moreover, as I noted in my argument preview in this case, LRM’s position would have put her counsel on equal footing with counsel for the parties. Chief Judge Baker’s opinion makes it clear that her counsel is significantly limited from the start.
Turning to the military judge’s ruling limiting LRM’s counsel in this case, Chief Judge Baker and the majority see three errors. First, the judge totally prohibited LRM from making legal arguments, which was erroneous because a reasonably opportunity to be heard includes the right to present legal argument. Second, the judge’s ruling was a blanket prohibition on LRM being heard through counsel, which was erroneous because the rules permit – or at least do not prohibit – being heard through counsel, and because the military judge did not consider the reasonableness of the request under the circumstances. Third, the military judge “cast the question as a matter of judicial impartiality [but] [i]t is not a matter of judicial partiality to allow a victim or a patient to be represented by counsel in the limited context of M.R.E. 412 or 513 before a military judge, anymore than it is to allow a party to have a lawyer.” Slip op. at 18-19.
Finally, turning to the remedy, the majority rejects the Government’s argument that CAAF cannot act with respect to matters of law where the CCA has not acted. This rejection is based both on the text of Article 67 and “prudential concerns, such as the impending court-martial start date, the parties’ interest in the speedy resolution of these issues, and the JAG’s certification of all three issues.” Slip op. at 20. But, because it finds that LRM has a limited right that may be reasonably limited by the military judge, the majority concludes that the requested writ of mandamus is not appropriate, and instead remands for action not inconsistent with its opinion.
This final action is interesting, as it opens the door to allow the trial judge to enforce a wide variety of limitations on LRM’s counsel (and the SVC program in general), so long as those limitations are based on an accurate view of the law (now provided by CAAF) and are reasonable under the circumstances. Of course, a creative judge can make findings of fact that establish circumstances to justify practically anything. In fact, the majority seems to encourage the trial judge in this case to take some risks, with Chief Judge Baker concluding:
However, these rights are subject to reasonable limitations and the military judge retains appropriate discretion under R.C.M. 801, and the law does not dictate the particular outcome that LRM requests.
Slip op. at 22 (emphasis added). The Government wanted the CCA to get another shot at this case – perhaps it still will.
Finally, Judge Ryan’s dissent is blunt. Judge Ryan (joined by Judge Stucky in this part) sees that LRM has no injury-in-fact because she will receive the documents she seeks to have produced, and her counsel has said that her interests are aligned with the Government’s, and so “[t]he issues before us are not justiciable . . . I can see no injury to be remedied, rendering any decision from this Court purely advisory.” Diss. op. at 4-5.
But in a separate section (not joined by Judge Stucky), Judge Ryan takes aim at the Air Force JAG:
Further exacerbating the impropriety of the situation is that the instant certification was made in the early stages of a criminal case; TJAG’s actions having ground the accused’s proceedings to a halt ostensibly to determine the contours of a right of a witness who has identified no injury-in-fact and no divergence between her interests and those of the Government. Considering that the exercise of prosecutorial discretion is a prerogative of the executive branch of government, and the ordinary state of affairs in our adversarial system where the government, not TJAG, is the accused’s adversary, TJAG’s decision to certify the question whether this nonparty should be allowed to effectively intervene in this criminal proceeding is all the more remarkable.
Diss. op. at 6-7 (marks and citation omitted). She considers numerous factors and concludes:
What the instant certification amounts to is an improper attempt by TJAG to shortcut proper procedure without statutory authority to do so at this juncture and force this Court to review an interlocutory ruling that (1) does not come before us in the form of a petition for extraordinary relief, (2) is neither case dispositive nor an adjudged finding or sentence, and (3) does not involve an injury-in-fact to anyone (other than perhaps the accused’s right to a speedy trial). This is not an effort that should be rewarded.
Diss. op. at 12 (emphasis added).
• AFCAA opinion
• Blog post: AFCCA denies complaining witness’ petition
• Appellant’s (complaining witness) brief
• Appellee’s (military judge) brief
• Real Party in Interest’s (accused) brief
• Appellant’s reply brief
• Amicus brief of Air Force Appellate Government Division (Brief of the United States)
• Amicus brief of Army Appellate Defense Division
• Amicus brief of Navy-Marine Corps Appellate Defense Division
• Blog post: Argument preview
• CAAF argument audio
• CAAF opinion
• Blog post: Opinion analysis