In a published decision in United State v. Vidal, 75 M.J. 686, No. 20130892 (A. Ct. Crim. App. Jun. 21, 2016) (link to slip op.), a three-judge panel of the Army CCA orders a DuBay hearing to determine whether the appellant’s civilian appellate defense counsel has a conflict of interest.

A general court-martial composed of members with enlisted representation convicted Staff Sergeant Vidal, contrary to his pleas of not guilty, of numerous offenses in connection with a single sexual encounter in Afghanistan involving two junior soldiers, one male (SPC JA) and the other female (SPC JO). Vidal was sentenced to confinement for 15 years, reduction to E-1, total forfeitures, and a dishonorable discharge. The other male soldier, SPC JA, was a co-accused (both were accused of sexually assaulting SPC JO), and was administratively discharged in lieu of trial by court-martial after Vidal’s trial concluded.

The civilian counsel representing Vidal on appeal did not represent him at trial, but did represent SPC JA and successfully obtained the administrative discharge for SPC JA. The civilian then undertook representation of Vidal for post-trial matters and for appeal, first seeking a post-trial administrative discharge for Vidal and then arguing on appeal that Vidal received ineffective assistance of counsel at trial. The ineffective assistance claim was based upon the failure of Vidal’s trial defense counsel to seek SPC JO’s (the alleged victim’s) mental health records that were – the appeal asserts – completely exculpatory and instrumental in obtaining the administrative discharge. However, the civilian attorney had knowledge of the contents of the records (from his representation of the co-accused) but seemingly did not make full use of that knowledge during his post-trial representation of Vidal.

Accordingly, the CCA finds that:

[B]y arguing that the trial defense counsel was ineffective and lost appellant’s chance at an administrative discharge, it appeared he was also arguing his own ineffectiveness during post-trial representation of appellant. This presented us with what appeared to be a conflict of interest.

Slip op. at 5.

Significantly, the opinion “only attempts to identify potential conflicts of interest,” and the CCA observes that “nothing in this opinion should be construed as a finding of misconduct.” Slip op. at 11 n.7 (emphasis in original).

The opinion observes that:

[T]he civilian attorney representing appellant on appeal also represented appellant in the post-trial processing of his case. Appellant’s second assigned error asserts the trial defense counsel was ineffective in “inexcusabl[y]” not requesting SPC JO’s mental health records. In briefing the issue, counsel asserted that the mental health records are “completely exculpatory” and that these records were the reason that appellant’s co-actor, SPC JA, received a Chapter 10 discharge.

Our concern is that whatever should have been expected of the trial defense counsel in seeking to breach the privilege under Military Rule of Evidence [hereinafter Mil. R. Evid.] 513 and obtain SPC JO’s mental health records, at least the same diligence would be expected of the counsel representing appellant post-trial. This is especially the case when the post-trial counsel had the records in hand, had actual knowledge of their “completely exculpatory” nature, and was submitting a request for a Chapter 10 on behalf of appellant. In other words, there is the potential for a conflict of interest when during the course of representation, by demonstrating the mistakes of the trial defense counsel, an attorney implicitly and simultaneously reveals the possibility that his or her own performance fell short.

Slip op. at 8 (marks in original).

Other complications are revealed in two significant footnotes. First, after Vidal was convicted (but before SPC JA’s administrative dsicharge was approved) the Government tried to turn Vidal against SPC JA:

Although the unclear chronology makes it difficult for us to analyze this issue, this is a case where the government sought to have appellant testify against SPC JA after appellant’s trial. That is, having secured a fifteen-year sentence against appellant, the government sought appellant’s cooperation in testifying against SPC JA. Again, appellant’s counsel also represented SPC JA.

Slip op. at 10, n. 5. Second, the CCA indicates concern with the way the mental health records were handled:

Additionally, we note that counsel asserts in his brief that he was provided SPC JO’s mental health records as part of his representation of SPC JA. Ordinarily, when such records are released pursuant to Mil. R. Evid. 513, they are accompanied by a protective order which usually requires that the records either be destroyed or returned to the court at the completion of the proceedings. Although counsel moved for this court to consider the records, and asserted that they were obtained during the court-martial of SPC JA, we were not provided with a copy of the order releasing the records.

Slip op. at 10, n.6.

The CCA orders a post-trial fact-finding hearing to determine if there is a conflict of interest:

The purpose of the DuBay hearing is to determine whether appellant has conflict-free appellate counsel, and if not, to develop a record of whether any conflict has been appropriately waived. At the hearing, the DuBay military judge shall discuss with appellant his right to conflict-free counsel. The DuBay military judge shall include in that discussion the potential conflicts of interest raised by this case. In identifying potential conflicts of interest, the military judge is not limited to those potential conflicts identified in this opinion. For each potential conflict of interest identified, the military judge shall determine whether appellant wishes to waive his right to conflict-free counsel, and, if applicable, determine whether SPC JA has also waived any conflict.

Slip op. at 13.

The CCA also finds that the circumstances of the case cause it to believe that Vidal did not have a full opportunity to present post-trial matters to the convening authority, and so it orders a new convening authority’s action to occur after the DuBay hearing. Slip op. at 13.

Defense access to mental health records is an area of great concern. Such records are normally privileged from disclosure under Mil. R. Evid 513 (the psychotherapist-patient privilege), and that privilege was strengthened in 2015 by Executive Order Number 13696 (discussed here). Furthermore, Article 60 was amended in 2013 to prohibit post-trial consideration of matters related to the character of a victim that were not admitted into evidence at trial (discussed here). Vidal’s court-martial pre-dates both of these changes, however more recent concerns include the limited appellate jurisdiction for a victim to challenge a piercing of the privilege (see EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page)) and the ability of appellate counsel to review such records when they are only reviewed in camera at trial (discussed here).

Now a new concern is whether (and how) an appellant can introduce seemingly exculpatory mental health records of a victim into the post-trial processing of a court-martial.

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