In a pair of petitions for extraordinary relief filed at the very end of last year, the Air Force Government Appellate Division (appearing as the United States) asks CAAF:

for an order directing the [Air Force Court of Criminal Appeals] to conduct a full in camera review of [appellate exhibits] and only allow appellate defense counsel and appellate government counsel to view any portions of those exhibits that the trial judge abused her discretion in not releasing to the parties at trial.

The petitions are captioned United States, Petitioner v. United States Air Force Court of Criminal Appeals, Respondent and Jerry C. Harrison, Real Party In Interest, No. 16-0251/AF (petition available here), and United States, Petitioner v. United States Air Force Court of Criminal Appeals, Respondent and Cory D. Phillips, Real Party In Interest, No. 16-0256/AF (petition available here).

Both cases involve convictions of sex offenses. The records in both cases include medical or mental health records of the alleged victims that were subject to in camera reviews by a military judge at trial but not released to the defense. Appellate defense counsel in both cases asked the Air Force Court of Criminal Appeals to permit them to review the sealed matters in order to determine if there is a basis to challenge the trial judge’s ruling that denied the defense access to the materials at trial. Such a review is a matter of routine, and the CCA granted the defense request in both cases. The Government, however, wants CAAF to prevent that review from occurring.

The petitions address R.C.M. 1103A(b)(4)(A) which states that:

Reviewing and appellate authorities may examine sealed matters when those authorities determine that such action is reasonably necessary to a proper fulfillment of their responsibilities under the Uniform Code of Military Justice, the Manual for Courts-Martial, governing directives, instructions, regulations, applicable rules for practice and procedure, or rules of professional responsibility.

Further, R.C.M. 1103A(b)(4)(D)(iv) defines reviewing and appellate authorities to include:

Appellate defense counsel

However, the petitions assert that:

The purpose of sealing records under Mil. R. Evid. 513 is to protect victims and others from having their records open to those who have no need to view them. It eviscerates the rule and undermines the policy behind it to then allow an appellate defense counsel to have access to the very records that a military judge has declared to be irrelevant. Furthermore, according to AFCCA’s expansive reading of R.C.M. 1103A, if an appellant were to conduct their appeal pro se, without AFCCA first conducting an in camera review, the appellant would then be granted access to the very records Mil. R. Evid. 513 was designed to protect.

Harrison Pet. at 10-11; Phillips Pet. at 11.

The AFCCA’s orders in both cases are attached to the petitions. Neither order addresses pro se litigants, nor does R.C.M. 1103A. Moreover, a pro se litigant does not lose their detailed appellate defense counsel (who is authorized access to sealed matters under R.C.M. 1103A). Accordingly, the assertion in the petitions that a pro se appellant would be granted access to sealed records appears to be baseless.

Further, the assertion that the purpose of the Rule is to protect records from persons “who have no need to view them” and that detailed appellate defense counsel are such people certainly appears fundamentally at odds with the purpose of appellate defense counsel (nevermind detailed appellate defense counsel) in our adversarial system.

The more substantial question, however, is the scope of an individual’s privacy interest under Mil. R. Evid. 513 (which states that “a patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist. . . if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition). Significantly, the Rule limits itself by R.C.M. 1103A:

The motion, related papers, and the record of the hearing must be sealed in accordance with R.C.M. 1103A and must remain under seal unless the military judge or an appellate court orders otherwise.

Mil. R. Evid. 513(e)(6) (emphasis added). Further, the R.C.M. 1103A(b)(4)(D) definition of reviewing and appellate authorities gives appellate defense counsel the same amount of access as it gives to a court, meaning that if counsel can be denied access on privacy grounds then so can a court of criminal appeals.

The petitions also assert that:

While the United States certainly supports the ability of appellate defense counsel to conduct a review of records of trial, sometimes the law imposes a higher priority.

Harrison Pet. at 10; Phillips Pet. at 10-11. One can only wonder about the Air Force Appellate Government Division’s feelings about an appellant’s right to due process.

Sadly, the petitions make no mention of due process or Constitutional rights.

36 Responses to “Air Force Appellate Government Division asks CAAF to prevent appellate counsel from reviewing parts of the record that were sealed by a military judge”

  1. Matt says:

    This whole adversarial process thing is so overrated.  Star chambers are way more efficient anyway…  Everybody who attached their name to that petition should be ashamed of themselves.

  2. White Knights of the AFGAD says:

    Perversely, the hypersensitive posture with respect to these records helps to perpetuates the stigma associated with mental health treatment. It’s hard for me to view the sensitivity of these records as so acute that privacy trumps all opposing considerations. There is a real retrograde streak here, and it’s right in line with the government’s paternalistic, misogynistic stance towards young women who have gotten their intoxicated swerve on. Therapy is shameful. Drunk flings are shameful. Be ashamed. 
    On a more pragmatic note: The Government’s desired result would seem to have the effect of turning appellate judges into advocates. Judges are going to be looking at these records and coming to conclusions on whether the trial judge made the right call or not. In some cases, presumably, they’ll disagree with one another. They’ll argue among themselves about whether and how the records could have helped the defense. They’ll try to persuade, convince, sway one another. All this will be happening without the input of the appellate defense counsel, who, you know, might have some input. Seems whack.

  3. Monday Morning QB says:

    Interesting issues. NMCCA’s Klemick case (65 M.J. 576)(2006) sets out the test adopted in the FY15 NDAA.  The revised 513 will permit in camera review only when the moving party has met its burden.  It doesn’t really matter that counsel and judges have routinely ordered production first in the past; that’s a violation of the rule without the moving party having satisfied its initial burden.  So I think the G might be on to something here, and I disagree that appellate counsel have some sort of super standing to look through mental health records absent meeting the Klemick test. You don’t get to go fishing without first establishing some sort of good faith belief something relevant is in the records. 

  4. by the way... says:

    …that’s SJW-type White Knights, not KKK-type White Knights.

  5. Zachary D Spilman says:

    Fishing is a big word when we’re talking about material that was attached to the record.

    All sorts of sensitive materials are routinely attached to records of trial as sealed exhibits: Privileged documents, child pornography, personal and financial information, etc. Once part of the record, it is subject to review. There are ample safeguards available through protective orders. 

    It’s hardly the case that medical records are absolutely inviolate. Any number of persons have lawful access to medical records (nevermind the hackers). There are innumerable opportunities for impropriety. 

    That what makes JAJG’s position here so novel, extreme, and the beginnings of a slippery slope. A member of the AFCCA’s bar (nevermind a commissioned Air Force judge advocate), it seems, cannot be trusted to properly handle sensitive material attached to a record pending review by the AFCCA.

  6. (Former) ArmyTC says:

    Are the evil idea fairy and whoever the mastermind behind the prosecution of Steven Avery in Making a Murderer employed by JAJG as consultants?

  7. White Knights of the AFGAD says:

    Fishing? If it’s attached to the record, that means that the defense proved by a preponderance of the evidence:
    “(A) a specific factual basis demonstrating a reasonable likelihood that the records or communications would yield evidence admissible under an exception to the privilege;
    (B) that the requested information meets one of the enumerated exceptions under subsection (d) of this rule; [and]
    (C) that the information sought is not merely cumulative of other information available . . . .”
    When I trial judge makes that determination but then declines to release the records, it’s pretty reasonable for the appellate DC to want a look at what the trial judge saw.

  8. afjagcapt says:

    @ZDS, I don’t think the point is that JAGs can’t be trusted to properly handle sensitive material; the point is that the material is privileged and, absent a showing as to why it should not remain so, appellate counsel have no more a right to thumb through it than trial-level counsel. The point of Jaffee v. Redmond was that there is a societal benefit to people speaking with therapists without fear that these privileged communications would later be used against them (“Effective psychtherapy…depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communication made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede disclosure of the confidential relationship necessary for successful treatment).
    I’m not saying I don’t see the defense perspective here but, from the perspective of the patient, is there any lesser vitiatoion of privacy (and thus the central function of MRE 513) when appellate counsel review privileged records than when trial-level counsel do? Put another way, what is the point of applying Klemick at the trial level if you then dispense with it at the appellate level?

  9. Zachary D Spilman says:

    Four problems with your analysis afjagcapt.

    First, by rule, the CCA has no more right to review the sealed exhibit than the appellate defense counsel. This makes the Government’s argument a non sequitur. The more logical approach is to say that nobody may review the materials. 

    Second, the time to litigate privilege (and the potential for appellate review of the materials) was before they were attached to the record of trial. Once attached, the privilege must bend to the rights of the accused. 

    Third, this reeks of the worst kind of gamesmanship by the Government. There are only two possible results from appellate review of the records. The first is that they are confirmed to be irrelevant; the second is that they are discovered to be relevant (leading to litigation over their suppression). The former leaves the Government in no worse position; the latter is error with the potential to affect the accused’s rights.

    Finally, your description of appellate review as “thimb[ing] through” the materials betrays a remarkable lack of respect for the ethics and professionalism of appellate defense counsel. 

  10. k fischer says:

    I’m not surprised.  I’m not the least bit surprised.  The Government is the side that wants to suppress evidence, either by keeping defense counsel from obtaining it, or the panel from seeing it because otherwise, they know they will lose.  They say they are protecting the complaining witness’s “privacy.”  Riiiiiight.  Go on Facebook and see how “private” some of these alleged victims are, and you will understand how ridiculous that notion is.  Oh, it sounds good, but it just isn’t true.
     
    This is merely par for the course for a system that has slowly but surely been amended to chip away at what Accused’s could use to defend themselves.  Can’t use surreptitiously recorded videos of intercourse to exonerate yourself against false allegations because that is a violation of Article 120.  Can’t require a complaining witness to be deposed or subjected to questioning even when she is the ONLY evidence that a crime has occurred, so good luck with your preparation there, defense counsel.  Can’t get in evidence of the Accused’s intoxicated state to show how inequitable a drunk sex case is where the Accused is guilty by penis.  And, can’t order the production of mental health records until you show how they are relevant, which you are to explain without seeing the mental health records. 
     
    I’m waiting for the day where Congress allows an adult witness to testify by VTC, so she doesn’t have to face the man she is falsely accusing, where the accused is forced to submit to cross examination as a material fact witness, and for SVC’s being permitted to collect a 33% contingency fee for getting their clients paid.  I’m sure there are a couple of Government hacks reading this who are thinking, “That would really be awesome!”

  11. Chuck Bass says:

    k fischer – just out of curiosity, what percentage of accusers in the military justice system do you think are bring false allegations?  80%?  90%? 100%?

  12. Chuck Bass says:

    *bringing

  13. Monday morning QB says:

    Zach, you’re proceeding under the assumption that all judges follow Klemick, do an in camera, deny the records, then attach them to the ROT for appellate purposes.  I think that’s a faulty assumption in many cases.  Counsel state that some military judges just routinely order the records produced for an in camera before the movant has made the requisite showing under Klemick.  If THAT is the case – a judge has done an inappropriate in camera review without Klemick having been satisfied – then the MJ has breached 513 (yes, 513 applies to judges too) and just because the records are now attached to the ROT doesn’t mean they should be provided to counsel. 

  14. Zachary D Spilman says:

    Well Monday morning QB, the Government petitions don’t seem to present that issue.

    And even if they did, I still see how it is the slightest bit appropriate (or in keeping with the Rules) to allow the CCA to review the sealed materials but not appellate counsel. 

  15. afjagcapt says:

    Now, now @ZDS: I certainly did not intend to show a lack of respect for the folks at JAJA; they have an important job and do it well. I don’t see how “thumbing through” is disrespectful or derisive toward their eithics/professionalism (is there another way to read something?), but it certainly wasn’t intended to be. And, in any case, I was not confining my comment to JAJA; from the patient’s perspective WRT vitiation of their privacy, the comment would apply equally to JAJG, AFCCA or CAAF.
     
    I don’t really disagree with the analysis of anything you’ve said on this, my apparently unclear point was simply that there didn’t seem to be an ackowledgment of the policy behind 513 or the patient’s perspective; from the patient’s perspective, why would anything change on appellate review…I think a reasonable non-attorney could certainly not be faulted for asking: “if the records are private (at the trial level), why don’t they stay private (at the appellate level)?”
     
    I won’t quibble with you on appellate procedure as I’m far from an expert there, but I’ll note that both of these cases took place before the Klemick standard applied by the terms of 513. If and when MJs, particularly with the passage of time, stop reflexively doing in camera review (as the new test appears to intend), I think we will get past this issue as the records will likely then not be attached to the record and there will be nothing to fight over.

  16. Matt says:

     
    afjagcpt: I agree that defense counsel should be able to see these records at trial.  We put them in the nearly impossible state of arguing relevance without being able to see them to argue why.  I think the better procedure would be to allow them to see the information, but use a protective order to prohibit disclosure unless they can show why it is warranted. 
    That said, prohibiting TDS from seeing it but allowing appellate attorneys does make some sense.  At trial, there is a risk that an unscrupulous attorney could improperly mention privileged information which taints the members.  If they acquit, there is no recourse for the government to fix it.  However, there is no incentive for appellate attorneys to try to play such games.  They are not playing to the public or to lay-members, but to judges who know (or should know) how to properly separate such rhetoric.  However, they also are privileged to the theories of the defense and may have inside knowledge the appellate judges do not.  Therefore, they are in the best position to see the evidence, and argue why it is so important to the defense.  The government has probably already seen this evidence by now, so it should not be too big of a deal that one or two other people are allowed to know the information (especially if proper protective orders are used).
     

  17. stewie says:

    So the MJ shouldn’t look at either then? I mean really since this privacy right is so sacrosanct, we really shouldn’t ever look at it.  Who cares what mental illnesses/issues the alleged victim is dealing with, amirite?
     
    I mean this is ridiculous. It’s beyond ridiculous. It’s ludicrous. We’ve gone to plaid. We are now reaching the point where the government is arguing that even on appeal we cannot review the MJ’s decision on medical records reviewed in camera.  Well, sorry, the court can, but not the defense attorney because…help me out here, because I’m drawing a logical blank.
     
    The MJ sees it, the TC sees it, healthcare professionals see it, the GOV APP folks see it, the Service Court sees it at a minimum, and possibly CAAF…all sorts of people see these records, but heaven forbid appellate defense folks see it.
     
    Yes, maybe a reasonable non-attorney can ask that question afjagcapt…because they aren’t an attorney, and they don’t always understand concepts like due process and constitutional rights.  This isn’t a reasonable non-attorney though, these are real live went to law school graduated and passed the bar attorneys making a wholly ridiculous argument.
     
    We all acknowledge the general purpose behind the privacy rights tied to mental health.  One would hope we would also acknowledge that those rights are not so sacrosanct that due process and the Constitution fall beneath them.  At the very least, you’d hope actual attorneys would.
     
    I hope/suspect that most judges will still have a reasonable standard for what triggers in camera review.  It’s never been “reflexive.”  It’s always required more than a fishing expedition…but it’s not hard to understand that once it’s been established that an alleged victim has some sort of mental health issue, then the MJ is probably going to end up wanting to see what those issues were.  All the Klemick rule really does is force the DC in most cases to do a little more digging among friends and folks who know the alleged victim (which hello unintended consequences just leads to more witnesses in favor of the accused more often than not).
     
     

  18. Zachary D Spilman says:

    I mean this is ridiculous. It’s beyond ridiculous. It’s ludicrous. We’ve gone to plaid. We are now reaching the point where the government is arguing that even on appeal we cannot review the MJ’s decision on medical records reviewed in camera.  Well, sorry, the court can, but not the defense attorney because…help me out here, because I’m drawing a logical blank.

    You nailed it, stewie.

    As for your point afjagcapt, I think that you make an entirely fair observation:

    I think a reasonable non-attorney could certainly not be faulted for asking: “if the records are private (at the trial level), why don’t they stay private (at the appellate level)?”

    However, allowing appellate counsel to review the records is a minor (near inconsequential) intrusion into the privacy of the material after they’ve been reviewed by a military judge, attached to the record, and will inevitably be reviewed by a panel of appellate military judges. 

    Moreover, the rights of the accused outweigh the rights of the patient, every time. 

    Let’s also not lose sight of the fact that attorneys are particularly good at keeping secrets (especially defense attorneys).

     

  19. k fischer says:

    Chuck,
     
    No, not that high.  I think that Kanin’s study of a small Midwestern town is probably accurate at 40%.  And, by “false allegation,” I include allegations that are based upon a misunderstand of what constitutes sexual assault, either through intoxication or force, as well as misidentifications. 
     
    In my opinion, the false allegation rate in the military hovers between 30% and 40%.  This opinion is based on the statistics where allegations have been unfounded in the annual sexual assault reports to Congress.  I’ve written about it here before, but you divide the number of unfounded cases by law enforcement and dismissals at the Article 32 through by the number of reported sexual assaults.  I believe that number is 36%.
     
    To further buttress my opinion, I consider my trial from Spring of 2015 at Ft. Benning that did make it to a Court-martial where anybody exercising the slightest amount of intelligent thought would be able to see the charges were false.  If that case made it to a court-martial, then I shudder to think what the facts were for the large number of cases unfounded by law enforcement, Commanders, and the Article 32 Investigating officers.
     
    By the looks of your question, I would imagine that you adhere to the 2% – 8% range. 
     
    But, back in my younger years I learned a lot from the Proverbs 5 women whom I pursued.  Thankfully, I met a Proverbs 31 woman who showed me the error of my ways.  Nonetheless, I have maintained a fully functioning craydar that has provided a healthy intuition for when women are lying. 
     
    I remember my first false allegation case as a Legal Assistance attorney at Yongsan Garrison that began my journey in defending the rights of Servicemembers who were falsely accused.  A Korean National who worked the drive through at Burger King on South Post accused my client of hurting her.  He was teaching her English, and she wanted a little more, but he rebuffed her advances.  She began stalking him, and one morning he went to his car to find her sleeping in the back seat.  So, he told her to get out and leave him alone.  She started trying to hit him and he grabbed her wrists, pushed her away, and got into his car.  When he tried to drive away, she jumped in front of his car, so he backed up all the way up the hill and went to work at a different route while she stood there crying.  He came to me because he was scared of her.
     
    I called her and asked her to come down to the office, so we could chat.  She said, “He hurt me,” and showed me the bruise on her wrist from where he grabbed her.  Then, she said, “He tried to hit me with his car!”  Now, it was in the Spring time when the yellow sands of the Mongolian desert whip through the atmosphere and land on the Korean peninsula.  So, I asked her to step outside where his car was.  It was covered in yellow dust.  Clearly, there were two hand prints on the center of his hood, which slid down to the front of his hood, indicating that she placed her hands on his hood as he described, then backed up the hill causing two distinct lines to slide down the hood of his car as he made his getaway away from her.  I felt like Bobby Lee Cook.
     
    As I explained this to her, she looked at me and smiled and put her hand in front of her mouth.  We were taught at in processing that’s what Koreans do when they lie.  They smile, and they put their hands in front of their face when they smile.  So, I asked her, “Look, what do you want out of this?”  She exclaimed, “I no want him to go to my Burger King no more!”  So, I told her I would take care of that and sent her on her way.  I told him, “Bromigo, you lost all your South Post Burger King privileges.  Just go to the one on North post.”

  20. DCGoneGalt says:

    It honestly seems they are just trying to pick an insane position and see whether it will be taken seriously.
     
    AF Government Appellate –  The Donald Trump of Military Justice Litigation.

  21. AirForceVet says:

    This is an actual scenario in a sexual assault case. Alleged victim was allegedly raped in 1995 after she came in the Air Force. End result the accused got busted for adultery. This same victim was later involved in another sexual assault case with an incident that allegedly happened in Aug 2013. This alleged victim seeked mental health help between 1995 and 2013. Actually the victim didn’t seek any mental health assistance until right before the original trial date in April 2014. She actually reported she didn’t know if anything happened even though she rembered everything throughout the night up until 5 minutes before. Defense requested the judge do an open camera review and ultimately allow the defense to see those records. Ultimately the judge did not allow the defense to see the records. Being that there were several different versions of the alleged victims stories don’t you think these records should be seen? 

  22. 513 Evidence More Protected Than Classified says:

    JAJG’s petitions are both premised on the idea that appellate defense counsel should not have access to info which trial defense counsel did not see.  That position is dependent on a definition of “in camera” review at trial that does not include the involvement of trial defense counsel.  That’s a strange assumption for the United States to make given the fact that “in camera” does not necessarily mean counsel is absent in the district courts.
     
    Heck, “in camera” does not necessarily mean “without counsel present” even under the MREs.  MREs 505 and 506 make clear that “in camera” can mean the sort of judge-only examination of evidence JAJG is presuming.  But, those rules also provide that “in camera” more often means a hearing closed to the public where the counsel for both sides are present and the defendant is only given select information.   MRE 513 has no language suggesting that the drafters intended “in camera” to mean exclusion of counsel – the language in 505 and 506 show that the drafters knew how to write a rule to do that if that was their intent.  Accordingly, there’s no reason to think the drafters meant to foreclose trial defense counsel from 513 in camera proceedings when they didn’t do that for classified or sensitive info under 505 and 506.  JAJG’s petition is therefore based on the false premise that trial defense counsel either was not present for the in camera proceedings, or, if they were excluded, that they should have been.  If the drafters didn’t intend to keep trial counsel out of in-camera 513 proceedings, which seems likely, then even less did they intend to exclude appellat defense counsel.  On that point, 505(k) and 505(l) are also instructive – the drafters clearly intended to give appellate counsel access to classified info and sensitive info – even when the judge doesn’t allow trial counsel or trial defense counsel to be part of the in camera review.  If the drafters intended to permit appellate access for classified or sensitive info that the trial judge did not let counsel see in-camera, why wouldn’t they intend the same for 513 info?  Does JAJG really think the government more concerned with patient privacy than protecting classified or sensitive info?

  23. Dew_Process says:

    Once upon a time, not that long ago, the USAF prosecuted people for wrongfully disposing government property, i.e., military medical records.  See, e.g., US v. Coleman, 2000 WL 1880273 (A.F.Ct.Crim.App. 2000); US v. Brown, 1998 WL 246669 (A.F.Ct.Crim.App. 1998); and US v. Walts, 1997 WL 392592 (A.F.Ct.Crim.App. 1997).  So if the records at issue are “military” records, they are government property – much like classified documents – which should form the discussion. A “protective order” is all that is needed.
     
    Indeed, CAAF has ordered production of “protected” medical records for its in camera review. See U.S. v. Huberty, 53 M.J. 369 (CAAF 2000).
     
    The first issue is separating medical records from psychotherapist-patient records, because – to quote CAAF – “there is generally no doctor-patient privilege in the military.” US v. Clark, 62 M.J. 195, 1998 (CAAF 2005).  The second issue is that the government ignores DoDI 6025.18-R, DoD Health Information Privacy Regulation (2003), which covers release of such information (1) when “required by law” [para. DL1.1.31]; and (2) “Disclosures for Judicial . . . Proceedings,” [Para. C7.5].
     
    Notably – at least in Harrison (I haven’t read the other Petition) – the government ignores Davis v. Alaska and Pennsylvania v. Richie, and their progeny on this issue.  For an interesting and scholarly analysis of this issue, check out this Article.

  24. Zachary D Spilman says:

    A “protective order” is all that is needed.

    I really don’t understand why this isn’t the answer.

    Particularly since we’re talking about Air Force cases and Air Force officers.

  25. stewie says:

    Of course you understand why it isn’t the answer for them, we all do. The end goal is to make it so that anyone seeing the mental health records of an alleged victim is exceedingly rare if it happens at all. That will make it easier to get convictions.  For whatever reason, it feels like the AF folks have decided to be the leading edge on pushing the boundaries as far as possible in SA cases.

  26. RY says:

    To be fair, I have no qualms with victim’s counsel pressing this issue.  I think it’s a valid argument (though without merit) for counsel to question the disparity between trial practice and appellate practice.  Certainly some of their clients will question this practice and it is fair to raise the question.  IMHO, however, I question the role of appellate government here in carrying the banner for a third party issue.  All too often, appellate government seems to champion win-at-all-costs rules rather than those that best serve justice.
     
    WRT the substantive issue, how can a judge’s decision be reviewed on appeal (one of the primary purposes of appeal) if the parties to the case are not permitted the ability to assess the appropriateness of that decision in light of the final record?  There are a host of reasons a judge may get it wrong and it does not serve justice to expect judges, who are not parties to the case and not as well acquainted with the evidence, to unilaterally review a trial judge’s decision on appeal without the benefit of party input.   

  27. k fischer says:

    Mental health records are becoming more and more relevant to cases particularly where the falsely accused is married to a spouse who has a borderline personality disorder.  Borderlines are manipulative, often separated from reality, fear abandonment, and engage in chaotic interpersonal relationships.  It is important to see a history of these traits to determine whether a spouse has the marker of a personality disorder.  Lately, there have been many cases where the spouse goes to Family Advocacy to make a complaint after being served with divorce or a discussion of divorce.  And,Servicemen are often targeted by people, and this includes women who have personality disorders.  It is important to obtain mental health records to show a history of traits that show a borderline personality disorder.  Here is a post giving good tips to Servicemen who are thinking of divorcing the spouse who suffers from BPD.
     
    Here is an article about a former US Army Ranger who used a go pro to record his wife threatening to make a false allegation against him after she abused him by hitting him in the balls.
     
    Defense counsel will see a lot more of these cases as time goes on, and it is important to understand the dynamics of their client’s marriage.  Men do not like to admit that they are abused, or they might even think its not a crime when their female spouse slaps, punches, or kicks them for no reason.  Sometimes they think they have done something wrong because they protected themselves against their abusive female spouse because they were raised to never hit a woman.  This is deeply ingrained in American culture.  When this case pops up, it is important to gather evidence showing that the falsely accused is actually the victim, i.e. contact the ex-spouse of the accuser, obtain recordings, look at the criminal history of the accuser, search for other false allegations the accuser has made, take photographic evidence of the abuse, record their arguments, and look at the accuser’s mental health records.   If you can show that the falsely accused is the victim in the case of psychological and physical abuse, then a borderline personality disorder could be used to explain false allegations in a divorce situation.  Wakefield did a study here that shows a prevalence of false allegations with borderlines.

  28. another TC says:

    I know the discussion has been centering around the lack of access for trial and appelate defense counsel, but has anyone experienced the same thing on the government side?  I have had multiple cases where a victim counsel has fought against the TC seeing mental health records under MRE 513.  

  29. Dew_Process says:

    @ K Fischer:  Beware of anything published by Wakefield & Underwager: see this CASE from the 7th Circuit.
     
    But switch gears for a second for those of you  who handle civil cases – what if the “victim” filed a civil suit for money damages; there’s little doubt that with a protective order, that a court would order the disclosure of her/his mental health records as part of discovery.  And for those of you who don’t normally look at the WaPo, check out this ARTICLE about the pending law suits resulting from the false rape allegations at the U of VA a couple of years back.  Stay tuned.

  30. k fischer says:

    DP,
     
    Thanks for the tip.  I’ll certainly keep that in mind.
     
    Typically, if the vic files a civil lawsuit for sexual assault, then one of her claims will probably be for intentional infliction of emotional distress.  At that point you would be able to obtain mental health records in order to determine if she had a pre-existing condition.
     
    What if the falsely accused filed a lawsuit for defamation of character immediately when charges are preferred?  At that point, the statute of limitations haven’t run, and you would be able to find obtain mental health records if not privileged under state law.  Unfortunately, in Georgia mental health records are privileged, except when they are at issue in a personal injury lawsuit for claims of intentional infliction of emotional distress.  Also, don’t forget divorce cases where children are involved.  You can request a mental evaluation.
     
    I am beginning to see the unique contribution that a civilian defense counsel brings to the table if hired early.  File a defamation suit or a divorce.  You have access to depose the alleged vic in civilian court, and the military rules do not apply. You might have access to mental health records.  Military attorneys can’t do that. 

  31. k fischer says:

    Yeah, so in Georgia, the privilege is as strong as the attorney client privilege.  And, a visit to a mental health professional is not covered by the privilege, but the communications to a mental health professional is. 
     

    The privilege covers “communications and admissions” between the patient and the mental-health professional, and any information that the professional holds which has its origins in those communications.14 But “the fact of employment of or treatment by a mental health provider and the dates thereof do not fall within the mental health privilege and may be disclosed.”15

    Mincey v. Georgia Dept. of Community Affairs, 708 S.E.2d 644, 650 (Ga. App. 2011)

     
    So, good luck getting mental health records in Georgia in discovery even if she is suing him for intentional infliction of emotional distress.  Of course, this says nothing about diagnosis by a psychiatrist.

  32. Dew_Process says:

    @ K fisher – also, consider federal court if you can establish diversity jurisdiction or bring a federal defendant into play, for defamation. F.R.Civ.P., Rule 26(b), is pretty broad as far as discovery goes, and there’s considerable precedent to the effect that:
     

    Nor is discovery limited to the merits of a case, for a variety of fact-oriented issues may arise during litigation that are not related to the merits.”  Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).
     

    In that vein, take a look at this ARTICLE if you haven’t already seen it.  SMH because if that had happened in a barracks . . . .
     

  33. Phil Cave says:

    This case highlights some of the problems many military accused’s have with a civil action.
    http://www.court-martial-ucmj.com/new-cases/sue-her-ahem-them/
    But, as DP points out.  There is now starting to be robust litigation in college false sexual assault cases.  I’ve mentioned before being close on a military case of a clear false claim, but the client for obvious reasons didn’t want the publicity attending the civil suit.
     

  34. Dew_Process says:

    @ Phil – can you give us the citation to that case when you get a moment, please.
     
    I’ll agree that “employment” cases – especially if there’s a superior-subordinate relationship involved – are tough and they’re VERY expensive to litigate, because generally there are numerous depositions to conduct, the defendant’s motion you to death if they’re the USG, etc.  In a case such as the one which you quoted, the failure to achieve a complete acquittal at the court-martial, most likely doomed the “retaliation” suit from the beginning.

  35. k fischer says:

    DP,
     
    Phil has a link imbedded on the case description; just click on it. 
     
    It seems that the claims regarding the spitting were dismissed because the Plaintiff did not file an affidavit or a verified complaint.  The outcome might have been different.  
     
    Also, I am glad the US district court in Louisiana thinks that filing false sexual assault allegations in the military is job related.

  36. Concerned Defender says:

    One way to reduce false allegations is to start going after the law licenses of the SJAs and TCs and SVPs who push these to trial without taking a VERY HARD look at the evidence.   Make them do their job, and hold them accountable after every acquittal and overturned conviction. 
    Right now they have zero skin in the game, and their OERs never reflect an acquittal or reversed conviction.  Put their law licenses on the line.  See how fast the system changes when BS cases stop going to trial.