In an issue-packed unpublished opinion in United States v. Hudgins, No. 38305 (A.F.Ct.Crim.App. Apr. 3, 2014) (link to slip op.), the Air Force CCA considers the tardy disclosure to the Defense of mental health records of an alleged victim of sexual assault, finding no prejudice in a case where the Government employed an in camera review of the records by the military judge to avoid its discovery obligation.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of two specifications of abusive sexual contact, one specification of rape, one specification of forcible sodomy, and one specification of assault consummated by a battery, in violation of Articles 120, 125, and 128. He was sentenced to confinement for eleven years, a reprimand, and a dishonorable discharge.

The charges involved encounters with two female airmen, DB and PS. The appellant and DB had a pre-existing sexual relationship, but she claimed that he forcibly raped her while she was sleeping with him in her bed. DB made this allegation within a day of the encounter. The allegation by PS involved an encounter that occurred before the encounter with DB, but PS did not report it until after being encouraged to do so by her boyfriend and after seeking counseling.

The Defense sought production of the active duty mental health records of PS. Such records are generally privileged against disclosure (to either side) under Military Rule of Evidence 513.

Defense counsel sought several pieces of information they believed were contained in the mental health records, including “where she talks about issues with her current boyfriend.” The defense asserted this information was relevant and necessary because it would further the defense theory that A1C PS reported the sexual assault because her boyfriend might surmise it was consensual if she did not report it, possibly jeopardizing the relationship. The Government opposed producing her mental health records. The military judge reviewed A1C PS’s mental health records in camera and determined none of the mental health records were relevant, at least in regard to findings.

Slip op. at 6. The Defense also sought production of records related to prior statements PS might have made about sexual abuse that contradicted her in-court testimony during a pre-trial motions session. Slip op. at 9.

After the appellant was convicted, a Government expert psychologist testified about post-traumatic symptoms exhibited by both victims. In particular, the psychologist “testified that he had interviewed or examined both A1C PS and A1C DB, and testified that both Airmen exhibited many symptoms consistent with PTSD.” Slip op. at 9-10. As a result, the military judge determined “that the Government had placed the mental health of A1C PS and A1C DB at issue in sentencing proceedings, and therefore he planned to disclose certain records to the defense.” Slip op. at 10. But first the judge allowed DB to testify in sentencing. Then he provided records to the Defense that included information about prior allegations of sexual assault made by PS. Slip op. at 10. The basis for the jude’s disclosure to the Defense was “a possible contradiction” with the pre-trial motions testimony by PS, “potentially providing a basis to impeach her.” Slip op. at 10.

Upon reviewing the records, the Defense moved for a mistrial.

The military judge determined a possible contradiction was raised and the information should have been made available to the defense in findings. He then considered and rejected the defense’s motion for a mistrial, finding a less drastic remedy was available and appropriate. He ruled that under Rule for Courts-Martial (R.C.M.) 924(c), it was appropriate for him to reconsider his findings and allow the defense to reopen its case in findings and present additional information.

Slip op. at 10. The military judge then reopened findings, heard additional testimony (including Defense cross-examination of PS), heard new closing arguments from both sides, deliberated, and again convicted the appellant of the offenses. The judge then made a statement about his findings, saying in part:

I had the opportunity to observe both the accused and [A1C PS’s] demeanor on the stand as well as consider all inconsistencies, motives to fabricate, all evidence either supporting or contradicting the two differing accounts and at the end of the day I was firmly convinced of the accused’s guilt beyond a reasonable doubt. Had I not been re-convinced of the accused[’s] guilt I would have found him not guilty but, I was.

Slip op. at 11.

On appeal the Defense asserted three errors in the military judge’s denial of the defense motion for a mistrial:

(1) The military judge erroneously permitted the Government to call A1C DB as a sentencing witness before disclosing records to the defense and reconsidering his findings;

(2) By denying the motion for a mistrial, the military judge countenanced “sandbagging” by the Government in withholding evidence of A1C PS’s and A1C DB’s mental health information from the defense until sentencing; and

(3) The military judge’s remedy of reconsidering his findings did not address harm to the defense in preparing its case.

Slip op. at 11 (paragraph marks added).

The CCA acknowledges that “once the military judge noted the mental health condition of A1C PS and A1C DB had been placed at issue, he should have provided the records at that point instead of allowing A1C DB to testify in sentencing.” Slip op. at 12. However, it finds that the judge did not abuse his discretion by denying the Defense motion for a mistrial, noting that the Defense made a significant concession at trial:

There is no reason to believe the defense was in any way hampered by not having received the information in A1C PS’s mental health records earlier. In fact, at the conclusion of the defense’s reopened case in findings, the military judge asked trial defense counsel, “[h]ad this information been provided earlier, is this everything that you would have done in the presentation of your case?” Trial defense counsel responded, “[y]es, this is what we would have done if we had known this information.”

Slip op. at 12. Notably, the Defense also did not recall DB for additional cross-examination after the military judge reopened the findings. Slip op. at 12-13.

The CCA also rejects the allegation of sandbagging, concluding that “there is no reason to believe the Government was aware of the inconsistency between A1C PS’s testimony in motions practice and the mental health records.” Slip op. at 12. This seems like a significant misstatement of the law. While “Brady liability is not strict,” United States v. Boyd, 208 F.3d 638, 645 (7 Cir. 2000), it does include material that is constructively possessed by the prosecution. See, e.g., United States v. Risha, 445 F.3d 298, 303-306 (3rd Cir. 2006). See also Robert Hochman, Brady v. Maryland and the Search for Truth in Criminal Trials, 63 U. Chi. L. Rev. 1673, 1679-1683 (1996) (discussing constructive possession from the perspective of the same-sovereign, the prosecution team, the availability of the evidence to the prosecutor, and the availability of the evidence to the defense).

The CCA doesn’t state whether or not the trial counsel in this case actually reviewed the mental health records before providing them to the military judge for in camera review, but the records were undeniably in the possession of the Government and were presumably reviewed by the Government expert witness (a psychologist who also interviewed/examined the victims). The trial counsel also presumably discussed the victims’ mental health with the victims and with the psychologist prior to trial (a privileged topic that the victims further presumably consented to being disclosed – this is somewhat reminiscent of the clergy privilege issue that led to CAAF’s reversal in United States v. Jasper, 72 M.J. 276 (C.A.A.F. 2013) (CAAFlog case page)). While there are a lot of presumptions in these comments, I think them all reasonable. 

Moreover, the allegation by PS was a he-said/she-said type of claim, making her credibility critical factor. For this reason alone, I think the CCA’s observation that there is no reason to believe that the Government was aware of the inconsistency between what PS told her mental health providers and her testimony misses the mark. The issue in this case is what the Prosecution should have known.

Ultimately, however, the CCA affirms the findings due to an absence of prejudice:

Despite the unusual procedural matters that led to this issue, the appellant received a fair trial, and the military judge’s comments following the re-announcement of findings confirm the appellant received the full benefit of the presumption of innocence upon reconsideration, just as he did in the initial findings phase. Reconsideration of findings by a military judge is a permissible option when information is raised that may cause the military judge to question the findings. We are fully satisfied that any error in failing to earlier provide the defense with the mental health record excerpts was cured when the military judge reopened the case and reconsidered the findings, again applying the proof beyond a reasonable doubt standard to determine the appellant’s guilt. We see no reasonable possibility that earlier disclosure of this information would have affected the outcome of the trial. We therefore deny the appellant relief on this issue.

Slip op. at 13. This conclusion might be unavoidable because of concessions made and actions taken by the Defense at trial, but it’s hardly a model for future cases. The military judge failed to disclose exculpatory information to the Defense until after the appellant was convicted, and then employed a rather obscure procedural provision to permit a belated re-litigation of the case. The judge then made an unusual and self-serving pronouncement about his deliberative process. Notably, the judge didn’t even make the tardy disclosure for one of the reasons the Defense originally requested it – he felt that the mental health of PS was put in issue by the Government’s sentencing case, not by her inconsistent pre-trial testimony or by her relationship with her boyfriend. It’s hard to understand why the CCA would ratify this conduct.

But I think the CCA’s conclusion on prejudice betrays the real flaw in the court’s approach to this issue. The Government functionally shifted its affirmative disclosure obligation to the military judge. The Prosecution didn’t hesitate to use the mental health of PS to support its case against the appellant by presenting the testimony of a psychologist in sentencing, but when the Defense sought equal access in advance of trial, the Prosecution demurred and let the judge guess at how the case would unfold. The CCA overlooks this fact, and provides a roadmap for future prosecutions to employ the same dubious technique of putting the judge on the spot.

While the CCA employs a characterization of “unusual procedural matters that led to this issue,” I just don’t agree. There’s nothing unusual about the well-settled requirement for the Government to disclose “evidence favorable to the defense.” R.C.M. 701(a)(6).

9 Responses to “The AFCCA lets the Government put the burden on the judge”

  1. J says:

    Ok, so I don’t understand statements like this “in a case where the Government employed an in camera review of the records by the military judge to avoid its discovery obligation,” “but when the Defense sought equal access in advance of trial,” and this “dubious technique.”
    Color me baffled. I’ve been a TC in similar cases and I never had the mental health records. It wasn’t about avoiding my discovery obligation, denying defense “equal access,” or employing a “dubious technique,” it was about balancing the victim’s privacy rights under 513 with the accused’s discovery rights. I never saw the information, I subpeoned it and had it delivered under seal directly to the military judge. To that extent, there was equal access, we both got what the Judge determined was relevant. Which, also, seems to be what happened here, “We also reject the appellant’s contention that the military judge’s ruling sanctioned ‘sandbagging’ on the part of the Government. The Government timely provided this information to the military judge for his review and there is no reason to believe the Government was aware of the inconsistency between A1C PS’s testimony in motions practice and the mental health records.”

  2. Former DC says:

    I see what you are saying.  Surely, if your method was followed, the opinion is on a lot more solid footing.  I think what Zack is getting at is that the events as they unfolded seem to suggest that it wasn’t followed.  Specifically, the fact that the TC brought out the mental health issues strongly suggests that his expert saw the records.  If that is so, then the analysis is on target.  Personally, I think this case cries out for a Dubay hearing.  But – and I have said this on this blog before – this is yet another example of a TC failing to protect the record.  Whatever the procedure that was used, it should have been memorialized in a memorandum and attached as an appellate exhibit.  I think every one of us – whether at Maxwell, Charlottesville, or Newport – had it pounded into our head that it is the TC’s job to protect the record.  Failure to do that is an underlying theme of at least half the cases that we see on here, and this is another one.

  3. Phil Cave says:

  4. J says:

    @Former DC:
    A fair, and correct, point. I sometimes wonder what the CCA’s would do all day if we improved protection of the record across the board. Guess we’ll never know.

  5. Zachary D Spilman says:

    I follow your point J, but you say that when you handled 513 evidence:

    I never saw the information, I subpoenaed it and had it delivered under seal directly to the military judge. To that extent, there was equal access, we both got what the Judge determined was relevant. Which, also, seems to be what happened here…

    Well, that’s not exactly what happened in Hudgins. While (as I wrote) the CCA doesn’t say whether or not the TC actually reviewed the records before providing them to the judge, the TC did review something else: the testimony of a psychologist who took statements from the witnesses!

    In findings, the Government called its expert psychologist, Dr. DL, to testify about responses exhibited by victims of sexual assault, including tonic immobility. Dr. DL did not testify in findings that he had actually examined either A1C PS or A1C DB, and he did not specifically testify as to responses by A1C PS or A1C DB. After the military judge found the appellant guilty of all charges and specifications, the Government recalled Dr. DL, who testified as to conditions commonly experienced by victims of sexual assault, including post-traumatic stress disorder (PTSD). He then testified that he had interviewed or examined both A1C PS and A1C DB, and testified that both Airmen exhibited many symptoms consistent with PTSD.

    Slip op. at 9-10. Anything PS or DB said to Dr. DL was covered by the M.R.E. 513 privilege (it was “made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition” – diagnosis in this case, the doctor’s conclusions about their symptoms). 

    We don’t know exactly what disclosures PS and DB permitted when they spoke with the Government’s expert psychologist (though they have the potential to be significant; that’s why I referenced Jasper). But we do know that the Government avoided (or maybe just ignored) 513 for the privileged communications it wanted, while pushing onto the non-prophetic judge the responsibility to determine what part of the other privileged communications would later become relevant and necessary by the evidence the Prosecution would present.

    The CCA explains:

    The military judge advised the parties he would review the records only to determine what information should be disclosed for findings at that point, and that he would revisit the issue in sentencing if applicable.

    Slip op. at 8-9. Assuming the trial counsel knew that Dr. DL was going to be part of the Prosecution team at that point, they sandbagged the judge right there by not stating that the Prosecution was going to call a psychologist to give a (quasi) diagnosis in sentencing. To this end I think it’s notable that the doctor didn’t testify about the statements (or even acknowledge speaking with the witnesses) until after the appellant was convicted.

  6. AF Capt says:

    In my experience we do exactly what J does.  Where there is a person like Dr DL, that interview isn’t made for the purpose of diagnosis in the sense that it’s for the patient’s benefit.  Rather, it’s with the consent of the victim to undergo the diagnostic for the purpose of trial.  Big difference.  See US v. Clark, 62 M.J. 195, discussing how the purpose of MRE 513 is to allow psychotherapists to provide comfort to patients.

  7. DCGoneGalt says:

    J handles it like I believe it should be handled and AF Capt hits the nail on the head with respect to the basis for MRE 513 protection and why “treatment for the purpose of trial” should be disclosed. 
    It makes me wonder whether DC actually asked the witness during pre-trial prep whether the VICs were examined prior to trial?  And if people aren’t asking that, why not?  Because if the Government’s expert is not the normal treating physician and is doing an interview as part of trial prep that is certainly not treatment for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition and I cannot fathom how it would not be disclosed to DC and/or fair for DC to interview the witness on.  As TC I never even had to have that discussion with the forensic psychs, it was understood.  As a DC, if the witness said there was an interview with the VICs and refused to discuss it then that would be a pre-trial motion I would file ASAP.  If there was a dodgy answer/something I took as a denial and then they tried to testify in sentencing as in this case then I would probably hit the roof jumping out of the chair to object.

  8. Zachary D Spilman says:

    What’s really interesting about Clark is its discussion of how an accused can open the door to the release of otherwise-privileged communications with a mental health provider:

    Following the Supreme Court’s decision in Jaffee v. Redmond, the President adopted a psychotherapist-patient privilege for the military justice system with the implementation of M.R.E. 513. The rule allows a patient the privilege to refuse to disclose, or allow another to disclose, a confidential communication between the patient and a psychotherapist. But this rule “is not a physician-patient privilege.” Rather, it is “based on the social benefit of confidential counseling recognized by Jaffee , and similar to the clergy-penitent privilege.” M.R.E. 513 intends to safeguard statements “made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.” An exception to M.R.E. 513, however, eliminates the privilege “when an accused offers statements or other evidence concerning his mental condition in defense, extenuation, or mitigation.” Because Appellant presented an insanity defense, he could not have claimed a psychotherapist-patient privilege under M.R.E. 513.

    Clark, 62 M.J. 195, 199 (C.A.A.F. 2005) (footnotes omitted) (emphasis added).

    In this case, the Prosecution offered evidence concerning the victims’ mental conditions as evidence in aggravation (and presumably it did so with their informed consent). Then the judge found that that evidence opened the door to allow the Defense to receive material that was otherwise privileged under 513. One would think that the Prosecution saw that coming.

  9. J says:

    ZS: I understand your concern here, and the difference in treating the records of their treating physician and the expert.
    I agree the TC should have been (if they weren’t) upfront about their sentencing plans, if necessary. As a former TC, there were certainly cases I thought sentencing would be necessary where it ultimately wasn’t. Back in my DC days, I remember having my expert psychologist sitting in the front row during the verdict to ensure he was ready to review any documents that might become relevant during a sentencing case.
    I keep coming back to the point Former DC made, and I think it applies to both parties here: the record could be a lot clearer on both sides of this one.