It looks like some mental health records of the alleged victim in the Tate case (the Naval Academy midshipman charged with sexual assault) were reviewed by the military judge, the judge prepared a summary of those records that might be disclosed to the Defense, and then the alleged victim sought extraordinary relief regarding those records.

CAAF’s daily journal for Thursday, March 13, shows that the court isn’t going to get involved, yet:

Misc. No. 14-8010/NA. L.C., Midshipman, U.S. Navy, Appellant v. United States, Appellee, Joshua L. Tate, Midshipman, U.S. Navy, Real Party in Interest. CCA 201400044. On consideration of Appellant’s writ-appeal petition, Appellant’s motion to request an emergency order, the motion of the Maryland Crime Victims’ Resource Center, Inc., to participate as an amicus curiae and file an amicus curiae brief, the motion of the United States to substitute itself for the named military judge appellee, the motion of the National Crime Victim Law Institute to participate as an amicus curiae and file an amicus curiae brief, the motion of Protect Our Defenders to participate as an amicus curiae and file an amicus curiae brief, the motion of the United States to attach the military judge’s ruling that is captioned, “In Camera Review YWCA Counseling Records,” and the motion of the United States to attach, under seal, the military judge’s sealing order and summary of mental health documents dated February 19, 2014, it is ordered that Appellant’s motion to request an emergency order is denied, that the motions of the United States to substitute itself for the named military judge appellee, to attach the military judge’s ruling that is captioned, “In Camera Review YWCA Counseling Records,” and to attach, under seal, the military judge’s sealing order and summary of mental health documents dated February 19, 2014 are granted, that the motions of the Maryland Crime Victims’ Resource Center, Inc., the National Crime Victim Law Institute, and Protect Our Defenders to participate as amicus curiae and file amicus curiae briefs are granted, and that upon consideration of all the pleadings filed, said writ-appeal petition is hereby denied without prejudice to any right Appellant may have to challenge the military judge’s disclosure of a summary of certain psychotherapy records to the defense.

Considering that these are “YWCA Counseling Records,” I wonder if the alleged victim has a claim against the provider who disclosed the records to the court-martial.

14 Responses to “CAAF sidesteps the Naval Academy case”

  1. RKincaid3 says:

    The practice of allowing a witness to participate in the litigation of a criminal case is fraught with more problems than it solves.  In addition to standing before the trial court, they now can appeal unfavorable trial court rulings.  When such appeals are granted, we are now interjecting the compulsory review and reconsideration the trial court’s decisions–before they are even final–much in the same manner as Congress has changed the rules to require that Convening Authorities, despite supposedly being the best to handle justice decisions, must be second guessed by their superiors when they decide not to prosecute, and is therefore unfavorable to the alleged victim.
     
     
     
    I just don’t get why the message here isn’t clear to everybody by now—it is not the process that counts, but the result.  Upon allegation of a sex assault, the perp is to be pilloried without due process of law.  Let’s bring back ordeal by fire.  And be up front about it.  Because right now, all these stumbling changes to the charging process and the procedures for securing a guaranteed result–a guilty verdict–are designed not to effectuate justice.  It is merely decorating with pretty sounding words the narrow and short road to the medieval rack–when justice was a result and not a process.

  2. Cloudesley Shovell says:

    I have heard it said, at least with regard to civil cases, that the process is the punishment.  That appears to also be the trend in criminal cases.  Who’s getting punished is another matter.
     
    In a system where a SpCM trial is contemplated within 3 days of referral, and a GCM in 5 days, any rational connection to good order and discipline is being lost.
     
    CS

  3. Zeke says:

    any rational connection to good order and discipline is being lost.

    And with it, the sole justification for using courts-martial rather than civilian judicial processes to try offenses with no military nexus.

  4. DCGoneGalt says:

    RK3: 

    The practice of allowing a witness to participate in the litigation of a criminal case is fraught with more problems than it solves.  In addition to standing before the trial court, they now can appeal unfavorable trial court rulings.

    This is one of the consequences of forcing the Special Complainant’s Counsel on the trial system.  They are now the metaphorical Fredo Corleone of the litigation world (I’m smart too!  I have things to say!) and in the Sinclair case all I could think of is their Oompa Loompa-esque veiled threats to the convening authority (Oompa, Loompa, doom-pa-da-dee.  If you are wise, you’ll listen to me). 

  5. RKincaid3 says:

    Zeke: civilian judicial process will not work simply because the civilian lawyers and judges won’t deploy and there must be deployed justice where the crimes, witnesses and victims are located.  There must be military systems of both discipline and justice that can and will operate worldwide.
     
    DCGG:  Well, that is nice metaphor to an otherwise very serious problem.  But generally, I concur.

  6. k fischer says:

    The Army’s SVP program has been around for a while.  Has anyone ever heard an SVP say that they would go to the press if the Brigade Commander dismissed the charges against an accused whom the IO recommended dismissal of charges?  Is there a difference?

  7. Zeke says:

    Zeke: civilian judicial process will not work simply because the civilian lawyers and judges won’t deploy and there must be deployed justice where the crimes, witnesses and victims are located.  There must be military systems of both discipline and justice that can and will operate worldwide.

    I don’t disagree with the idea that crimes committed abroad by military members present in those locations pursuant to military duties ought to be prosecuted in the military jurisdiction.  But, that has precious little to do with the Naval Academy case, with its crime allegedly having been committed in Annapolis, MD.  This is an allegation that could – and should – have been handled by civilian authorities.  Whatever interest in good order and discipline once existed to justify not providing that accused the full constitutional protections afforded by a civilian trial evaporated long ago – as soon the timeline for trial became extended and even disposition decisions in that case became a media circus.  There’s nothing about this prosecution that has served to aid the Navy – therefore, it shouldn’t be tried by the Navy.

  8. RKincaid3 says:

    K fisch:  You are correct–no difference.  My only point is that there should be no SVP with any role greater than providing support and counseling.  The victim/patient’s advocate/counselor should have neither standing to appear and/or litigate (even if they are lawyers) nor appeal adverse nisi prius court rulings, etc.  If that counselor, with the patient’s consent wishes to go to the media, they can and should do so.  But that is a far different matter than assigning a lawyer to interfere in the criminal trial–no matter which side they might find themselves assisting.
     
    Zeke:  Point well taken–the Academy case is a mess.  But that is due to the hysteria surrounding this issue in this climate than anything else.  But there are two practical considerations, too:  when and where are military practitioners supposed to get their real world experience and training that will eventually deploy?  
     
    Additionally, the simple fact of the matter is that the DoJ, for example, does not take (or didn’t when I was dealing with this issue) any military larceny case where the loss is less than $300K.  They also have a pretty good record of declining to prosecute cases under MEJA when asked by the military to do so (I have heard that the first MEJA prosecution was to have been a U.S. civilian, but the DoJ allegedly didn’t want to prosecute an American for overseas crimes as the test case), so they waited and prosecuted the case of U.S. v. Alex Ali, a Canadian born Iraq civilian, instead.   
     
    So I don’t see dismissing from the service all the military attorneys who need to be trained to prosecute/defend cases down range and ship those assets to the DoJ which lacks the interest, funding or the political wherewithal to avoid cherry picking cases based upon political un-palatability.  The DoJ cherry picks its case load just as does any other prosecutor.  
     
    Hmmm, now there is a thought. the DoJ uses their discretion to decide which cases to prosecute and which not to–the whole reason that Congress is upset with the military.  Go figure….
     
    So the problem is NOT who prosecutes or where a prosecution takes place.  The problem is when Congress is displeased with when the discretion to prosecute is exercised in the negative.  Congress can beat up military commanders more easily than it can the DoJ precisely because they have their foot on the jugular vein of every commander’s career.
     
    So, we have seen and exposed the true problem…political UCI.  That is why we have this problem and this toxic climate in our nation’s service.

  9. Darrow says:

    Zeke:
    The civilian authorities declined prosecution in the Academy cases.

  10. Zeke says:

    @RK:

    But there are two practical considerations, too:  when and where are military practitioners supposed to get their real world experience and training that will eventually deploy?  
    Additionally, the simple fact of the matter is that the DoJ, for example, does not take [many cases which the military jurisdiction is interested in prosecuting.]

    We would need fewer judge advocates overall if civilians handled the prosecutions.  That means the judge advocates left would have a larger share of whatever criminal prosecutions remained.  You’d still have them prosecuting military members for purely military offenses – desertion, AWOL, a slew of Article 134 offenses, etc.   The really serious crimes that occur downrange could be handled by adding reservists to the prosecution and defense teams who deal with serious crimes in their civilian professions.  Turning prosecutions over to civilian authorities would have the added benefit of reducing personnel at a time when we’re trying to cut budgets.  Having two full-blown parallel systems of justice when your primary one would work well enough isn’t terribly fiscally responsible.

    The DoJ cherry picks its case load just as does any other prosecutor. 

    I don’t see a problem with that because I support the proper exercise of prosecutorial discretion.  It’s something I think is sorely lacking in the military justice system.  It’s lacking because we have commander-driven dispositions which is a situation that can leave judge advocates free to avoid making the really tough calls.  I think we take many cases to trial that should not be there, and we do so only because we know we don’t have to worry about having to convince 12 jurors, unanimously.  If military prosecutors were made to carry the full burden of proof before a unanimous panel – where you know that even if your case is rock solid you still might lose – then I think they would “cherry pick” too.

  11. Zeke says:

    @Darrow:

    The civilian authorities declined prosecution in the Academy cases.

    That’s interesting, isn’t it?  Makes me wonder whether all prosecuting authorities, civilian and military, are evaluating cases with the same standard of proof in mind?  I think civilian prosecutors might be less inclined than their military counterparts to take a given case to trial because they know they will have to convince 12 unanimous jurors of guilt.  A military prosecutor is relieved of that burden, and therefore feels significantly more strident in his or her estimation of what they can win.

  12. stewie says:

    The problem Zeke is that military bases, at least Army bases, aren’t located in large metropolitan areas generally speaking.  Instead they are located in very small rural jurisdictions.  So dumping all those cases on the civilians in Fayetteville NC or Clarksville VA or Junction City KS or St. Robert MO is not very tenable.
     
    Neither are the Feds well disposed to add thousands of cases a year onto their dockets.  Rights of the accused are very important, but so’s a timely, functioning justice system.

  13. k fischer says:

    Stewie, 
     
    That’s why those jurisdictions have SAUSA’s provided by the JAG Corps to assist with those prosecutions.  As a civilian defense counsel, I wouldn’t mind if the Army started sending all the Ft. Benning Soldiers accused of rape to the Columbus Division of the Middle District of Georgia.

  14. stewie says:

    I’m sure you wouldn’t.  SAUSA’s wouldn’t address any of the issues I raised to any real degree.
    We have to be protective of both sides here, rights of the accused and the need for justice.  I do not believe giving it all up to the civilians ultimately does either.