Yesterday CAAF was asked to review the Coast Guard CCA’s decision in H.V. v. Commander Kitchen, Military Judge, and Randolph, Real Party in Interest, 75 M.J. 717, Misc. Docket No. 001-16 (C.G. Ct. Crim. App. Jul. 8, 2016) (discussed here):
No. 16-0678/CG. Thomas J. Randolph, Appellant v. H.V., Appellee v. Cassie A. Kitchen, Commander, U.S. Coast Guard Military Judge, Respondent Below. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Coast Guard Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.
The CCA’s decision in H.V. expanded the scope of Mil. R. Evid. 513 (the psychotherapist-patient privilege) to include “the psychotherapist’s conclusions (diagnoses) and resulting treatments.” Slip op. at 3.
The CCA’s involvement in the case, however, was upon a petition for a writ of mandamus made by the alleged victim. Such a writ petition is allowed by Article 6b(e) as amended by the FY15 National Defense Authorization Act (discussed here). Yet CAAF lacks jurisdiction for further appeal because Congress narrowly tailored the statute. See EV v. United States & Martinez, __ M.J. __, No. 16-0398/MC (C.A.A.F. Jun. 21, 2016) (CAAFlog case page).
The caption of the writ-appeal filed yesterday at CAAF (identifying the accused as the appellant and the alleged victim as the appellee) suggests to me that the appeal is of the CCA’s decision on the 6b(e) petition and not on a separate writ petition made by the accused himself. If that’s correct, then I suspect the writ-appeal will be dismissed for lack of jurisdiction.
That’s not to say that the accused is without options; he could seek his own writ from the CCA and then appeal that to CAAF. However, that does not seem to be what’s happening now.