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