The Army CCA grants an alleged victim’s petition and reverses a military judge’s ruling regarding mental health records
In an opinion released yesterday in DB v. Colonel Lippert, Military Judge, and Ducksworth, Real Party in Interest, No. 201507690 (A. Ct. Crim. App. Feb. 1, 2016) (link to slip op.) (also available here), a three-judge panel of the Army CCA grants the petition of an alleged victim of sexual assault and reverses a military judge’s ruling that ordered her mental health records produced for an in camera review and then disclosed to the defense.
Writing for the panel, Judge Wolfe characterizes the problems in the case as “manifold,” slip op. at 6, and concludes that the military judge committed three errors.
First, the CCA finds that military judge improperly ordered the production of the alleged victim’s mental health records for an in camera review without first conducting a hearing under Mil. R. Evid. 513(e). Significantly, Judge Wolfe explains that the military judge ordered production of the records even “prior to the defense filing a motion for the production of the records.” Slip op. at 6. The defense later filed such a motion, but it “did not attempt to meet the procedural requirements set forth in the amended [Mil. R. Evid. 513(e)] and, in fact, explicitly disavowed them as being applicable.” Slip op. at 9.
Next, the CCA faults military judge for concluding that because the records include one unprivileged document (a journal entry that state law required be reported to authorities), “all of petitioner’s mental health records were subject to review.” Slip op. at 11. In particular:
[T]he military judge’s finding that because petitioner’s mental health records yielded one (unprivileged) inculpatory document, there was a reasonable likelihood that the remaining records would yield admissible defense information was clearly erroneous.
Slip op. at 13.
Finally, the CCA concludes that the military judge failed (in numerous ways) to apply the procedural requirements of Mil. R. Evid. 513(e), which were revised by Section 537 of the FY15 NDAA (discussed here) and Executive Order 13696 (discussed here).
The CCA refuses the petitioner’s request to declare the records inadmissible, instead merely reversing the military judge’s Mil. R. Evid. 513 ruling while permitting further proceedings to consider the records.