Update: Links to the briefs are at the end of this post.

In this post I noted CAAF’s docketing of a writ-appeal petition by an apparent alleged victim.

Yesterday CAAF granted review:

No. 16-0398/MC. EV, Appellant v. E.H Robinson, Military Judge, Appellee, and David A. Martinez, Real Party in Interest. Upon consideration of the writ-appeal petition of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, the motion of Protect Our Defenders to file a brief in support of the writ-appeal petition as amicus curiae, and the motion for a stay of trial proceedings, it is ordered:

That the motion of Protect Our Defenders to file a brief in support of the writ-appeal petition as amicus curiae is granted;

That oral argument will be held on May 11, 2016, following the hearing in Howell v. United States, on the following three assigned issues:

I. WHETHER THE NMCCA ERRED BY ERRONEOUSLY DENYING EV’S PETITION FOR A WRIT OF MANDAMUS DESPITE EV’S CLEAR AND INDISPUTABLE RIGHT TO THE ISSUANCE OF A WRIT.

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ERRONEOUSLY RULING THE DEFENSE SATISFIED EACH PRONG OF MIL. R. EVID. 513(e)(3) AND BY RULING THAT MIL. R. EVID. 513(d)(5) APPLIED.

III. WHETHER THE MILITARY JUDGE VIOLATED EV’S ARTICLE 6b RIGHTS BY ERRONEOUSLY APPLYING IMPERMISSIBLE EXCEPTIONS AND DENYING EV A RIGHT TO RECEIVE NOTICE AND TO BE HEARD.

That oral argument will also be held on the following specified issue:

IV. WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS STATUTORY AUTHORITY TO EXERCISE JURISDICTION OVER DECISIONS OF THE COURTS OF CRIMINAL APPEALS RENDERED PURSUANT TO ARTICLE 6b, UCMJ.

That Appellant will file a brief on the specified issue within 5 days of the date of this Order. Appellee and the Real Party in Interest will file answers within 5 days of the filing of Appellant’s brief. Appellant may file a reply within 2 days of the filing of the said answers;

That the motion for a stay of trial proceedings, incorporated in the writ-appeal petition, is denied because Rule 30(d), Rules of Practice and Procedure, prohibits a motion from being incorporated in any other pleading.

The specified issue immediately bring to mind Judge Ryan’s dissent in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAFlog case page).

Case Links:
Writ-appeal (Appellant’s) petition
Appellee’s (Government) brief
Real Part in Interest (accused’s) brief
Appellant’s reply brief
Brief of Amicus Curiae (Protect our Defenders)

4 Responses to “CAAF grants review of a writ-appeal by an alleged victim”

  1. Dew_Process says:

    COL Winthrop is spinning in his grave . . . .

  2. Dew_Process says:

    OK, if you haven’t read the briefs – all of them – load up on strong libation and contemplate what legal system would tolerate in criminal cases, the 3-ring circus happening here.
     
    But first, an appeal to the Army! C’mon folks, this case is calling out for an amicus contribution from you because:
     
    1)  The appellant/petitioner “victim” is being represented by two Air Force JAGs;
     
    2)  The respondent / government is being represented by Navy / USMC appellate government counsel;
     
    3)  The accused is being represented by a Navy Appellate Defense JAG; and
     
    4)  The PoD’s have submitted an amicus brief.  So, we really need the Army’s input on something here!
     
    But, seriously, this case is going to be the waive of the future unless CAAF puts the breaks on just what “SV’s'” have standing for, coupled with their purported rights to interlocutory appeals – something that an Accused has no real right to do with very limited exceptions. Also of interest is the crime-fraud exception which the MJ used in part to order a limited release of the SV’s mental health records, noting — what many of us have long experienced — that the SV apparently “gamed” the system [i.e., lied] to get a transfer from Okinawa to California.  That’s of particular interest because now we have a judicially recognized “motive” – is this whole thing a fabrication just to get the h*ll out of Okie?
     
    Stay tuned!

  3. k fischer says:

    Ah…..the old crime fraud exception to privilege.  Brilliant!!!  Kudos to the MJ and defense counsel for using it.
     
    I recently drafted a motion to compel discovery of an attorney client communication of corporate counsel (a memorandum) regarding a federal law that a company clearly violated.  We settled the case before we could file the motion, but I think it would have been successful.  SVC’s beware of SV clients with borderline personality disorders.  When cases don’t go their way, who do you think they will blame when they get impeached on cross?  i.e., “My lawyer told me to say that!!!!”   What other lies did your lawyer tell you to say?  Objection!  Crime Fraud exception, your Honor.

  4. Tami a/k/a Princess Leia says:

    Once again, an example of lawyers and judges who are stuck in the old school way of litigating this stuff.  If you want to argue crime-fraud exception, then first identify the crime/fraud allegedly committed by the AV in her statements to her therapist.  False allegation of SA?  Fine, there needs to be something in her MH records where she acknowledges her allegation is false.  Fake suicide ideations?  Fine, argue there’s something in her MH where she acknowledges she made it up to help her hubby get a transfer.  think she and hubby colluded to make this up?  Great, you have joint criminal venture, no spousal comms privilege.  But without some argument that this was an intentional lie, all you have is impeachment, which falls under “when constitutionally required,” which is no longer an existing exception to MRE 513.
     
    The AV in this case was a civilian spouse, her hubby was the airman (which is probably why there are AF JAGs involved) who used her records to support his request for a transfer.  Defense didn’t argue crime-fraud exception at trial, so it would be error for the MJ to disclose MH records on that basis.  “She has a motive to lie” is impeachment; “she lied” is crime-fraud.  There’s a huge difference.
     
    This is not a “purported” interlocutory right, this is a right that Congress intentionally gave, so what is CAAF’s basis for “putting the brakes” on this appeal?  The Army doesn’t need to provide input because ACCA already decided a case similar to this, in favor of the AV–DB v. Lippert.
     
    I can understand CAAF specifying the issue of whether they have jurisdiction, this issue is one of first impression.  However, I think the answer is yes due to Article 6b specifically giving CCA’s jurisdiction to consider appeals by AVs of MJ rulings on MRE 513 matters.  This doesn’t bring to mind Ryan’s dissent in LRM b/c in LRM, there was no statutory basis for the writ, it was based on interpretation by courts.