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, 75 M.J. 331, 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.

12 Responses to “An accused appeals to CAAF for relief from a CCA’s decision on an Article 6b petition”

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

    I think that since CAAF held it lacked jurisdiction to consider EV’s appeal of a CCA’s decision, it will have to decline consideration of Randolph’s too.

  2. Zeke Kennen says:

    Why isn’t this just another decision of the CCA reviewable upon a showing of good cause by the accused, per the plain language of UCMJ Art 67(a)(3)?

  3. Zachary D Spilman says:

    Because, Zeke Kennen, there’s a difference between a writ-appeal of a CCA’s decision under Article 6b(e) and an accused’s own writ-petition under the All Writs Act (drawing jurisdiction from Articles 66 and 67). 

    CAAF’s unanimous decision in EV held that:

    [Article 6b(e)] 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. Accordingly, CAAF has no jurisdiction to review the decision of a CCA on an Article 6b(e) petition, whether requested to do so by the 6b petitioner, the accused, or the Government.

    However, both the accused and the Government can submit their own writ petitions, and those submissions may originate in CAAF (bypassing the CCA). See CAAF R. 4(b). CAAF’s jurisdiction over a writ petition filed by an accused is well-established (its jurisdiction over one filed by the Government is also relatively secure, but faces challenges; see, for example, United States v. Howell, __ M.J. __ (C.A.A.F. Jul. 19, 2016) (CAAFlog case page)).

    CAAF could perhaps treat the writ-appeal filed in this case as an original writ petition, but I doubt it will do that (because the burden of persuasion is on the party who seeks the writ).

  4. Zeke Kennen says:

    Under Art 67, CAAF has jurisdiction to review CCA decisions, regardless of the statute that led the case to be docketed at the CCA, upon petition of the accused with good cause shown.  There is not a similar provision allowing the victim to petition CAAF in Art 67, and that’s the difference between this case and EV.  The accused shouldn’t have filed a writ appea, and should have just filed a petition for grant of review of the CCA’s decision under Art 67.  This is just the same analysis that allows an accused to appeal an adverse decision from the CCA on an appeal by the government under Art 62.  There’s nothing in Art 62 that mentions the accused being able to appeal to CAAF – but that’s what Art 67 is for.  Same thing applies here.

  5. Zeke Kennen says:

    But, just because a petition for grant of review would have been cleaner, that is not to say the writ appeal is not without jurisdiction.  EV’s problem was that there was no existing jurisdiction at CAAF for the All Writs Act to aid.  That’s not true here.  CAAF’s existing jurisdiction to review the CCA’s decision under Art 67 could be aided by the issuance of a mandamus order.  If so, then such a writ should issue, and the request for such a writ, whether framed as an original writ or an appeal, is jurisdictional.  Error in framing a writ is not supposed to be fatal.

  6. Philip Cave says:

    And there is still time to submit a petition and supplement to the petition–round about 7 or 8 September methinks.  If it were me, I’d do it out of an excess of caution as there appears to be time.
    Of course I’m disagreeing with CAAF in EV.
    Agreed, the statute was intended to do something similar in federal district court and allow a victim to assert and protect her privacy.  Prior to the statute there was no way to do this.
    However, just because the statute creates a limited right of the victim (A NON PARTY), shouldn’t remove CAAF’s power under 67 to review a decision of the CCA.  There’s nothing in 6b that says that no party may appeal from the CCA decision.  What the Congress has done has said to victims, we’ll give you one shot at the CCA, but as interpreted by CAAF that’s it.  That’s limited in the sense that it’s only a restriction on the victim — who is not (a point I’m litigating) a party.  The accused is a party and is entitled to a petition under 67 for a CCA decision.  CAAF doesn’t have to grant the petition, just as it often doesn’t under 66.  But that’s a different issue.
     In addition, isn’t the sort of issue from which we can all benefit from CAAF guidance??????  Or will be have the following.
    1. MJ says give it.
    2. CW appeals to CCA.
    3. CCA says no MJ, you are wrong, don’t give it.
    4. Accused gets convicted.
    5. Accused on 66 says “CCA” erred” on the CW’s writ.  
    6. CCA says no we didn’t.
    7. Appellant petitions CAAF that CCA erred to substantial prejudice.
    8. CAAF grants, AND decides in favor of Appellant that MJ was correct and CCA erred AND ORDERS A NEW TRIAL.
    So years later, with time money, etc., etc., etc., plus a bunch of other cases along the way all now wanting to get in the trailer park, see Pease, see Hills.. . . .See McClour.

  7. Zachary D Spilman says:

    Read the rest of the statute, Zeke Kennen:

    In any case reviewed by it, the Court of Appeals for the Armed Forces may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals. 

    Article 67(c). An Article 67(a)(3) petition for review isn’t cleaner because there are no findings and sentence. 

    As for CAAF’s Article 67 jurisdiction providing a basis for a writ-appeal by the accused in HV, you’re going to have to distinguish EV (and not on standing; on jurisdiction) to make that point. 

    Nevertheless, as I’ve now said a number of times, the accused can seek his own writ from CAAF either now or after the military judge applies the CCA’s decision (an application that might end up giving the accused what he needs to present his defense). The practical consequences of such a writ petition is – broadly speaking – that the burden will shift to the accused (as the new petitioner) to show a clear and indisputable right to the relief requested. 

    As for your prediction of the future, Philip Cave, take a look at United States v. Cote, 72 M.J. 41 (C.A.A.F. 2013) (CAAFlog case page) (CAAF declined an interlocutory challenge to the AFCCA’s reversal of a military judge’s suppression ruling, but then reinstated the suppression ruling on appeal after conviction). History repeats.

  8. Zeke Kennen says:

    Zach, that clause in Art 67 has never stopped CAAF from considering a good cause petition from an accused on a government interlocutory appeal under Art 62… why should it stop CAAF from considering a good cause petition from an accused on an interlocutory appeal from the victim?  For purposes of determining CAAF’s jurisdiction to entertain an appeal from the accused after a CCA decision on an interlocutor question, it shouldn’t matter whether that interlocutory appea was taken by the government under Art 62 or the victim under Art 6b.  Neither of those statutes mention CAAF.

  9. Zachary D Spilman says:

    The case you’re looking for, Zeke Kennen, to understand the application of Article 67(a) to Article 62 interlocutory appeals, is United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008).

    The dissent is particularly significant considering the composition of the court in EV.

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

    “Neither of those statutes mention CAAF.”

    Zeke Kennen, that is precisely why CAAF held it had no jurisdiction to consider EV’s appeal of a CCA’s decision regarding MRE 513.
    With the advent of Article 6b and CAAF’s recent opinion in EV, CAAF doesn’t have jurisdiction to consider an appeal of an erroneous CCA ruling, when the basis for CCA’s jurisdiction was Article 6b.  Personally, I think EV was incorrectly decided:  (1) CAAF could’ve (and should’ve) exercised jurisdiction under the AWA and (2) the CCA’s decision was incorrect.  But since CAAF has definitely spoken on the jurisdictional issue, it will literally take an act of Congress for them to take jurisdiction of an appeal of an erroneous CCA decision originating under Article 6b.
    Even if Randolph could convince CAAF it had jurisdiction, he wouldn’t get the writ, as he’ll fail his burden of showing a clear and indisputable right to relief from CCA’s decision.  The fact that it was a 2-1 decision against him is fatal to the “clear and indisputable” right to relief.  I think Randolph will have to deal with this issue in the normal course of appellate review, assuming it reaches that point.  Totally sucks, and I would prefer CAAF dealt with it now than later.  But as things currently stand, the defense will first have to convince CAAF that it erred in holding no jurisdiction in EV.

  11. Huig de Groot says:

    Zachary D Spilman, I’m missing your point on Lopez de Victoria; it seems to me the holding is that an Accused can file a petition at CAAF in all cases reviewed by a CCA in which the accused’s petition establishes good cause.  After looking at Solorio and Goldsmith, the Lopez de Victoria court, read Articl 67(c) to only limit CAAF’s jurisdiction to cases in which a finding or sentence was (or could have been) imposed in a court-martial proceeding.  A finding and sentence could be imposed in this case, related to the issue appealed.  Why won’t the court just construe the writ appeal as a petition (potentially) showing good cause?  I may be remembering wrong, but I thought Judge Stukcy’s questions in EV went straight to this point, a TJAG could certify or an accused could petition a CCA’s Article 6b decision, but 6b didn’t grant jurisdiction for an alleged victim to appeal beyond the CCA to CAAF. I do take your point that J. Erdman and J. Ryan wrote the dissent in Lopez de Victoria, but will they really overturn 8 years of precedent when the only intervening event is the passage of Article 6b? Since 6b is silent as to an accused’s rights, wouldn’t that imply the accused has the same appellate options under Article 67 as before passage of Article 6b? 

  12. Peanut Gallery (The Original) says:

    Always weird when you see one of your former NJS instructors (she was then-LT Kitchen) as an appellee.