CAAF decided the Marine Corps case of EV v. United States & Martinez, 75 M.J. 331, No. 16-0398/MC (CAAFlog case page) (link to slip op.), on Monday, June 21, 2016. In a short opinion the court finds no jurisdiction to entertain a writ-appeal by an alleged victim who sought to reverse a military judge’s order for disclosure of portions of her mental health records. As a result, CAAF dismisses the petition.

Judge Stucky writes for a unanimous court.

The case is a writ-appeal by an alleged victim (EV) who sought extraordinary relief from the Navy-Marine Corps CCA to reverse a military judge’s order for disclosure of portions of her mental health records. Such records are normally privileged from disclosure under Mil. R. Evid 513 (the psychotherapist-patient privilege), however the military judge found that disclosure was required to protect the constitutional rights of the accused (Sergeant Martinez) and also that the crime/fraud exception in Mil. R. Evid. 513(d)(5) applies to the facts of this case. That exception removes the privilege against disclosure for any communications that “clearly contemplate[] the future commission of a fraud or crime.”

EV filed her petition pursuant to the recently-enacted provision in Article 6b(e), which states that an alleged victim “may petition the Court of Criminal Appeals for a writ of mandamus to require the court-martial to comply with the Military Rule of Evidence.” The NMCCA denied the petition, concluding that EV did not have a clear and indisputable right to reversal of the judge’s order. EV appealed that denial to CAAF, raising three issues that challenged the military judge’s ruling and the NMCCA’s denial of relief. CAAF then specified a fourth issue questioning whether the court has jurisdiction to consider this case:

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.

IV. (specified by CAAF). 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.

CAAF finds the jurisdictional question dispositive, dismissing the petition for lack of jurisdiction because Article 6b:

is quite straightforward. It is a clear and unambiguous grant of limited jurisdiction to the Courts of Criminal Appeals to consider petitions by alleged victims for mandamus as set out therein. There is no mention whatsoever of this Court. Congress having legislated in this area and bestowed certain third-party rights on alleged victims, we must be guided by the choices Congress has made. Congress certainly could have provided for further judicial review in this novel situation. It did not.

Slip op. at 5. In so doing, Judge Stucky distinguishes this case from the court’s split decision in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAFlog case page), where the court’s jurisdiction was triggered by certification of the case by the Judge Advocate General of the Air Force. Slip op. at 5. Yet it’s debatable that CAAF would even reach the merits had this case been certified, as Judge Stucky explains that:

LRM was decided before Congress had legislated in this area, either through the enactment of the substantive victims’ rights provisions of Article 6b or through the later enactment of the remedial provision at issue here. The LRM decision was rendered without the benefit of Congress’s direction in the matter. Congress having now legislated in the area, we are bound by the choices it made.

Slip op. at 5 (emphasis added).

CAAF’s resolution of this case leaves for another day the questions of whether a patient’s rule-based privilege to maintain the privacy of communications with a psychotherapist must yield to an accused’s constitutional rights (such as the Sixth Amendment right to compulsory process), and whether the crime/fraud exception to that rule-based privilege applies in a case where the accused asserts that the communications were part of a fabricated allegation designed to fraudulently obtain a material gain (in this case a humanitarian transfer from Okinawa, Japan, to California for EV’s active duty husband).

Case Links:
NMCCA’s order denying writ petition
Blog post: A writ-appeal by an apparent alleged victim
Blog post: CAAF grants review of a writ-appeal by an alleged victim
EV’s brief (writ-appeal petition)
• EV’s brief (specified issue)
• Government’s brief
• Martinez’s brief
Martinez’s brief (specified issue)
EV’s reply brief
• Amicus brief in support of EV (Protect Our Defenders)
Blog post: Argument preview
• Oral argument audio
CAAF opinion
Blog post: Opinion analysis

29 Responses to “Opinion Analysis: CAAF lacks jurisdiction to review an alleged victim’s petition under Article 6b in EV v. United States & Martinez, No. 16-0398/MC”

  1. Zeke Kennen says:

    CAAF’s resolution of this case leaves for another day the questions of whether a patient’s rule-based privilege to maintain the privacy of communications with a psychotherapist must yield to an accused’s constitutional rights (such as the Sixth Amendment right to compulsory process), and whether the crime/fraud exception to that rule-based privilege applies in a case where the accused asserts that the communications were part of a fabricated allegation designed to fraudulently obtain a material gain (in this case a humanitarian transfer from Okinawa, Japan, to California for EV’s active duty husband).

     
    I don’t think there is question yet to be resolved regarding the lack of a constitutionally-required exception to MRE 513?  There is no such exception.  Nonetheless, an accused has a constitutional right to a fundamentally fair trial.  If evidence which is necessary to afford the accused a fair trial is made unavailable due to the lack of a constitutional exception to MRE 513, then a military judge is required to apply R.C.M. 703(f)(2) and grant “a continuance or other relief in order to attempt to produce the evidence or shall abate the proceedings.” Folks have been talking about this issue as if it is a zero-sum game – as if one or the other must give way – either the accused’s right to a fair trial under the due process clause or the witness’ right to privacy under MRE 513 must be sacrificed.  That’s a false dichotomy.  The two are not mutually exclusive.  There is a third path – the witness’ right to prevent access to mental health information can be preserved, and the accused’s right to not be made to face an unfair proceeding can be preserved.  But, to do that, the government’s interest in proceeding with the prosecution must be sacrificed through the application of RCM 703(f)(2).  That’s the balance Congress intended to strike.  The complainant gets to decide between privacy or prosecution.  Congress intended to take the decision away from the government and empower victims.  That’s what Congress has done.  The government may howl as it pleases that offenders will escape justice, but there is no question waiting to be answered – the sovereign’s ability to prosecute an offender will sometimes be conditioned on the victim consenting to the release of MRE 513 evidence.  

  2. MMQB says:

    this is a punt and a shanked punt at that. I thought they had “awesome plenary authority.”

  3. Zeke Kennen says:

    I didn’t mention it above, but RCM 703(b)(3) has the same provisions that RCM 703(f)(2) does regarding granting relief due to the unavailability of evidence – one applies to unavailable witness testimony and the other applies to unavailable records.  Either way, the analysis is the same:  A witness may refuse to allow anyone to disclose evidence provided to his or her mental health provider for treatment purposes under MRE 513, but that could have implications for the viability of the government’s prosecution under RCM 703(b)(3) or RCM 703(f)(2).
    I think we’ve had a lot of wringing of hands and gnashing of teeth over nothing.  Prosecutions to die on the vine all the time because of unavailable evidence.  MRE 513 just provides a new means by which evidence can be deemed unavailable, thereby invoking RCM 703’s provisions.  Under RCM 703, if the unavailable evidence is important enough, the accused walks.  That’s what Congress intended.

  4. stewie says:

    But there is a third “right” isn’t there Zeke, or at least a third consideration, and it’s society’s right to justice/due process.
     
    We don’t prosecute in the name of the alleged victim, we do so in the name of the sovereign.  So while I agree with you that one possible solution is abatement, and certainly it’s possibly a solution that is underused, not sure I like the idea of framing it solely as a “Battle” between the accused’s rights and the alleged victim’s rights, full stop, no other considerations present.
     
     

  5. Zachary D Spilman says:

    It’s the courts of criminal appealsMMQB, that have an “awesome, plenary de novo power of review.” United States v. Nerad, 69 M.J. 138, 144 (C.A.A.F. 2010) (citing cases). 

    As for abatement under R.C.M. 703, Zeke Kennen, that’s certainly one way to address the practical application of a privilege as written in the MCM. Cf. United States v. Simmermacher, 74 M.J. 196 (C.A.A.F. 2015) (CAAFlog case page) (destruction of evidence that was fundamental to a fair trial).

    However, that’s not how CAAF has previously addressed a rule that purported to “limit the introduction of evidence required by the Constitution.” United States v. Gaddis, 70 M.J. 248, 256 (C.A.A.F. 2011) (addressing Mil. R. Evid. 412). See also United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011). And see this post.

  6. Zachary D Spilman says:

    society’s right to justice/due process.

    And here I thought the Fifth Amendment’s guarantee of due process was only for persons.

    I guess my copy has a typo.

  7. MMQB says:

    Still a shank. I find it comical CAAF is saying no jurisdiction when they try whenever possible to find jurisdiction in most cases. They just don’t want to deal with this issue. So now Congress can put it in the next NDAA, etc.

  8. Zachary D Spilman says:
  9. Oops says:

    best argument for jurisdiction is that CAAF has authority to review CCA’s legal determinations where only the CCA had original jurisdiction on the writ, see Denedo.  Too bad no one brought that up.

  10. Charlie Gititins says:

    The Due Process Clause is in the 5th Amendment, which is in the Bill of Rights which apply to persons.  It has nothing to do with the rights of the Government.  The few times the GOV has argued its “due process,” I have quoted the Due Process clause to the MJ and asked the MJ pointedly how it applies to the GOV’s rights and to please articulate it for the appellate court for appellate review.  I have never lost that argument.  DP is a personal right of an accused; it has no application to the rights of the GOV.
     

  11. Zeke Kennen says:

    Stewie, I think Congress’ changing of MRE 513 reflects a clear legislative intent to subordinate society’s interest in a prosecution to a witness’ interest in maintaining confidentiality of mental health data.  The narrative surrounding the legislation was consistently about needing to give victims power over criminal prosecutions.  It was about empowering victims.  This is one way Congress did that.  Whether the People’s elected representatives truly achieved the public interest in that legislation is an interesting but ultimately irrelevant discussion.  The law is what it is – the victim has statutory rights, the accused has constitutional rights, and the government has an interest in pursing justice that is subordinated to the aforementioned rights.  I think it’s just the way of the world – sometimes life ain’t fair.  Sometimes the guilty walk because the innocent don’t want to be put through what it takes to see justice done. When that happens, the sovereign, as always, is expected to wash its hands of the whole affair and get back to governing.

  12. DCGoneGalt says:

    1.  A statute says something is admissible if it is constitutionally required.
    2.  The statute has the constitutionally required provision removed.
     
    If something is constitutionally required, how does changing the statute change the admissibility of the constitutionally required evidence?  The constitution didn’t change, the statute did.  The statute cannot change the constitution.  

  13. Zeke Kennen says:

    DCGG,
     
    As I see it, it is possible for evidence to be necessary in order to provide the accused a fair trial (i.e., “constitutionally required”), and yet still be unavailable for any number of reasons, including due to the application of MRE 513.  The solution: the trial is abated (or possibly even charges dismissed) due to the unavailability of constitutionally required evidence.
    This issue is not about the admissibility of constitutionally required evidence, it is about the availability of such evidence.

  14. Ed says:

    Zeke Kennen  While I truly respect he rights of the accused our justice system should not be one  derived of personal feelings of victims. While there are many unjustified and unnecessary 120’s the prosecution of predators should not be restricted to those who happen to assault a certain class of victim less we stop being concerned about the next potential victim. We have an obligation to protect our cadre and to the extent Congress has limited the ability to properly do so our Jag’s should make it clear to them through proper channels.

  15. Zachary D Spilman says:

    One other problem with considering the mental health records as unavailable in this case, Zeke Kennen, is that they weren’t unavailable. Rather, they military judge got the records, reviewed them, and ordered some disclosed to the defense. EV’s challenge was about the propriety of those actions in light of the privilege. Had the medical provider refused to provide the documents in response to a subpoena, for example, that would have made the records unavailable (though it raises other issues. e.g., Article 47).

  16. Zeke Kennen says:

    Ed,
     
    I completely agree with your assessment that, by removing the “constitutionally-required” exception to MRE 513, “Congress has limited the ability” of the military to “protect our cadre.”  However, that’s the law as it stands and Art I, Section 8 of the Constitution clearly empowered Congress with the authority to make such a decision.  Congress has essentially given a witness a “veto” over the government’s ability to pursue a prosecution whenever pursing that prosecution would require the trial court to give the accused access to that witness’ mental health data.  (I note that MRE 513 protects witnesses of any stripe – whether they happen to be the victim or not.  We’re being unnecessarily narrow to construe this as being a victim-rights issue.  It’s actually a patient-rights issue.)  
     
    Congress appears to believe that empowering witnesses to be able to protect their mental health information is more important than allowing the government to hold offenders accountable.  Personally, I don’t presume to know whether Congress struck the right balance between a witness’ interest in privacy and the Republic’s ability to prosecute suspected offenders.  But, I wholeheartedly support your idea of JAGs communicating with their elected representatives regarding such an important topic.
     
    Maybe Congress didn’t realize that its removal of the “constitutionally required” exception from MRE 513 hurt’s the government, not the accused.  The accused was never, now or in the past, going to be made to stand trial without being given access to all evidence the judge determines is required for a fair trial.  Therefore, removing the “constitutionally required” exception to MRE 513 could only hurt society’s interest in seeing suspected offenders tried because it halts the government’s prosecution in cases where, in the past, the government would have been able to overcome the privacy interests of the witness and release evidence to the defense as necessary to bring a suspected offender to trial.  Congress has chosen to no longer allow the government to do that.  
     
    Congress has essentially exercised prosecutorial discretion for the government.  There’s nothing legally improper about that to my eyes – I think it’s merely a question of whether it was wise.  It’s a question, I think, of whose interest should prevail – the patient/witness’ privacy interest, or the government’s interest in promoting justice and maintaining good order and discipline in the armed forces?  That seems like a lively, and perfectly appropriate, topic of conversation for someone who happens to be a military justice practitioner (JAG or otherwise) to have with their elected representative.  I suspect that conversation has already been had, though.  I find it hard to believe this was not the express intention of Congress all along.  They’ve got lots of sharp lawyers advising them.

  17. Zeke Kennen says:

    One other problem with considering the mental health records as unavailable in this case, Zeke Kennen, is that they weren’t unavailable. Rather, they military judge got the records, reviewed them, and ordered some disclosed to the defense. 

    Z,  I don’t think the term “unavailable” actually means not physically in the control or care of the government.  Unavailable, under RCM 703, merely means “otherwise not subject to compulsory process.”  MRE 513 makes mental health records not subject to compulsory process (except under a specifically-enumerated exception) – therefore, legally, they’re “unavailable.’

  18. DCGoneGalt says:

    Zeke,
     
    That was precisely my point.  If something is constitutionally required as admissible evidence to have a trial, Congress cannot simply change a statute to remove a provision that contained constitutionally required evidence as an exception to the protection of the records. 
     
    If Congress wants to protect victim mental health records in that scenario . . . then they can forego a trial.  I understand stewie’s point about the societal interests in pursuing crime but if evidence is constitutionally required and cannot be introduced then the elected representatives of society have determined that a trial cannot happen in that circumstance, despite their best efforts to say “Constitutionally required!?!  But this is sexual assault we’re talking about!”.

  19. stewie says:

    Sigh…it takes a pretty uncharitable reading of what I typed to come to the conclusion a couple of you came to…read it again and ask what society’s right to justice/due process might mean. Particularly when this entire discussion is about balancing rights.

  20. stewie says:

    Let me be clear. Society has an interest in both prosecuting crimes AND ensuring due process. My point is that the balance is more or at least as much between society and the accused vice the victim vs the accused.

  21. Zeke Kennen says:

    stewie said:
     

    My point is that the balance is more or at least as much between society and the accused vice the victim vs the accused.

     
    My point is that the balance is more or at least as much between society’s interest in prosecuting the accused v. the victim’s right to not make evidence available that is necessary in order for that prosecution to proceed.
     

  22. Vulture says:

    Stewie.
    I think the point of discussion is one of the truth seeking function of the Court.  Society may have an interest in truth, it may have an interest in fact, it has a right to neither. 

  23. Zachary D Spilman says:

    Rights vs. privileges, stewie.

  24. stewie says:

    I see where are going to waste time debating semantics.  Whether you call them rights, privileges, interests, or pick your word, the bottom line is that we have always had two sides with competing ____ and now, more and more we have a third side.
     
    Those sides ebb and flow in priority.  The accused’s side is not paramount and always winning, neither is the government’s. There was a balance where one side gave or the other did. In certain areas, one side was paramount (e.g. self-incrimination), in others there was a sort of balance.
    Now, we’ve extended more and more this binary battle into a three-way contest. Here, we are talking about society’s goal in having a trial to deal with an alleged crime v the accused’s right to a fair trial v. the alleged victims’ privacy interests.  To suggest that the right answer is to simply have the trial hover in a Schrodinger’s cat world in the situation described of a victim’s mental health records through abatement is to assume the last two members of this contest have equally competing interests and the first member has none.
     
    Of course, up until now, the right answer has been that societies interest in having a resolution won, but was limited significantly by the accused’s right to a fair trial.  The alleged victim’s interest were protected by requiring that admission only happen if the evidence were reasonably relevant and probative. It worked, it was the right balance between the ____ of all three sides.
     
    The right answer in my opinion is not to pretend as if the government/society has no “rights” or “interests” and that only the accused and the alleged victim do, or that those latter two are equivalent…in most cases they are not, or shouldn’t be. One side should definitively trump the other most of the time.
     

  25. Vulture says:

    Somewhat Stewie.  But you know what I mean when I say “I remember when the meaning of words began to change.”  That’s not semantics.  The inquisition, Salem witch trials, and the Committee on Un-American Activities where examples of Society’s “right the truth” and they are the darkest times in our history.  Mental health records are becoming more and more a point of discussion in our society on both sides of the arguments.  When I see that I wonder if we really need another reason to finger the other guy.

  26. stewie says:

    I don’t think Norsefire is taking over anytime soon Vulture.  Unless Trump figures out how to not be so…Trump.

  27. Vulture says:

    Well said, Stewie, well said.

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

    Very disappointed with this decision.  CAAF could have exercised jurisdiction under the AWA to review the MJ’s and NMCCA’s rulings as a matter of law and issued definitive guidance on MRE 513.  We could have all benefited from that.  It didn’t help that the quality of oral argument was pretty low.  Oral arguments don’t always win cases, but they can lose them.  In this case, we all lost because no one argued the issues well.
     
    A “privilege” is a matter in which the balance is made between the public’s right to evidence and the privilege holder’s right to keep secrets shared with certain individuals secret.  United States v. Bryan, 339 U.S. 323, 331 (1950).  Note the reference is to the public’s right to the evidence (i.e. Government’s), not an accused’s right to evidence.
     
    When something qualifies as “privileged,” the balance has been tipped in favor of the privilege holder.  The determination has been made that the benefit to society of respecting the privileged matter is greater and/or more important than society’s interests in gaining all of the evidence to get to “the truth” of what happened.  Only where the benefit to society is so great as to justify intentionally withholding relevant, obtainable evidence, thus inhibiting the ability to “get to the truth,” will the matter be recognized as a “privilege.”  The restraint discussed in case law is not in recognizing existing privileges (which is what some people seem to focus on arguing), but rather the restraint is in creating new privileges.
     
    In the federal civilian sector, the courts are the ones who perform the balancing act.  In military justice, POTUS is the one who balanced these factors.  Where POTUS did not include an exception to a privilege, military courts are not free to insert any exceptions, not even a “when constitutionally required” exception.  The accused only has a constitutional right to access evidence in the Government’s possession.  MH records are not in the Government’s possession.  If the Government doesn’t get access, then neither does the accused.  Additionally, the accused does not have a constitutional right to pretrial discovery.
     
    In order to get the AV’s mental health records, it is incumbent on the defense to argue a specified exception exists.  With MH records, if the theory is that they contain evidence of a crime or fraud, then argue a theory that the AV intentionally lied about being sexually assaulted.  In this case, argue that EV intentionally faked being suicidal to enable hubby to get a transfer.  Argue that the records reflect EV intentionally lying about being sexually assaulted.  Arguing “general impeachment” purposes is not sufficient to argue an MRE 513 exception.
     
    Instead of arguing an accused has a constitutional right to evidence (which the accused does not), argue that, in the interests of justice, an adverse inference should be made from the AV’s invocation of the privilege.  MRE 512(a)(2).  Certainly the possibility of a conviction for a false allegation of sexual assault is a “perversion of justice,” justifying an inference that the evidence the AV seeks to keep hidden must undermine the Government’s case.

  29. stewie says:

    I’ll stick with my thought that we focus too much on specific word meanings. I know, we are lawyers, that’s what we do…but regardless of whether an accused has a right to evidence, and accused does have a right to a fair trial, which often involves the admission or viewing of…evidence.
     
    I agree that the public has a strong interest/right (nice that you found an actual quote that puts to lie the idea that the government/public don’t have “rights” particularly since right can have multiple meanings) just like the accused does, and just like the alleged victim does.
     
    It’s the balancing of those rights/interests/privileges that gets tricky. We should focus more on that balance and less on worrying about definitional issues…because IMO, we are losing that balance quickly.
     
    I get the tactical arguments you are making, but you shouldn’t have to argue something, not because it is necessarily true, but because it better opens up the door you can’t see behind. The MJ is best positioned to do this, we should have left it with the MJ to look at these records and make the call.  Now we are reduced to making often speculative arguments to try and generate a specified exception…or arguments that the mere invocation of a legal privilege should be interpreted against the party making it…all just to get it in front of a MJ.