Today CAAF will hear oral argument on the writ-appeal petition filed by an accused, in Randolph v. HV. and United States, No. 16-0678/CG (CAAFlog case page).

The case challenges the decision of the Coast Guard CCA that significantly expanded the scope of Mil. R. Evid. 513 (the psychotherapist-patient privilege). The CCA’s decision (discussed here) was made on a petition for mandamus filed by HV, who is the alleged victim in a case against Coast Guard Damage Controlman Second Class (E-5) Randolph. The accused appealed the CCA’s decision to CAAF (discussed here). CAAF agreed to hear the appeal and replaced the military judge as a party with the United States (discussed here). However, the court also specified an issue that questions whether it has jurisdiction to consider the appeal in its current form:

I. Whether the United States Court Of Appeals for the Armed Forces has jurisdiction over a writ-appeal petition filed by an accused who is seeking review of a court of criminal appeals’ decision rendered pursuant to Article 6b(e), UCMJ.

II. Whether the “confidential commuincations” protected by MRE 513 includes records of diagnosis.

Notably, CAAF refused to consider Randolph’s contention that Article 6b only allows a CCA to review application of an alleged victim’s procedural rights and not substantive rulings. See Pet. Br. at 6-9.

Randolph, HV, and the Government (in a brief authored by the Coast Guard) all agree that CAAF has jurisdiction to consider the writ-appeal on the basis that jurisdiction for an accused’s petition flows from Article 67 and not Article 6b. This is an important distinction because a few months ago, in EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page), CAAF determined that it lacks jurisdiction to entertain a writ-appeal filed under Article 6b. A group of amici join this argument, including the the Coast Guard Appellate Defense Division, the Navy-Marine Corps Appellate Government Division, and the Air Force Appellate Defense Division (in a brief that is joined by the Army Appellate defense Division and the Navy-Marine Corps Appellate Defense Division).

Only the Air Force Appellate Government Division asserts that CAAF lacks jurisdiction, but its brief conflates extraordinary relief with an interlocutory appeal (asserting, on page 6, that “[t]his case involves only an interlocutory appeal brought by the victim.”).

Still, I don’t think CAAF’s jurisdiction is so clear. The court’s rules recognize a difference between an original writ petition and a writ-appeal. See C.A.A.F. R. 18(a)(4) and 18(b). Here the accused sought a writ-appeal of the CCA’s decision under Article 6b, rather than an original writ that would confine the CCA (and the military judge) to a proper application of the law. While CAAF could, perhaps, re-style Randolph’s petition as an original writ and then reach the substantive issue, its failure to do so (or to reject the petition) could blur the distinction between an original writ petition and a writ-appeal.

As for the substantive issue, Randolph asserts that Mil. R. Evid. 513 must be interpreted narrowly and in accordance with its plain language that states:

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the Uniform Code of Military Justice, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.

Mil. R. Evid. 513(a) (emphasis added). Only later in the rule – in a section detailing procedures for determining the admissibility of certain communications – in there reference to “records or communications.” See Mil. R. Evid. 513(e)(1). Seizing on this difference, Randolph asserts that:

The actual privilege is found at M.R.E. 513(a). That section clearly limits the privilege to “confidential communications between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.” While closely related, records of a diagnosis or treatment of a patient’s mental or emotion condition is plainly not the same thing as a communication purposely made to facilitate diagnosis or treatment.

Reply Br. at 2-3.

HV, however, argues a bigger-picture:

Unlike a medical doctor who can assess, diagnose, and treat a laceration, broken bone, contusion, or other medical condition based on a physical examination or medical testing, a psychological diagnosis and treatment is largely based on communications with the patient and cannot exist wholly independent of communications made by the patient. Therefore, a mental or emotional health diagnosis or treatment plan necessarily pertains to communications made by the patient and is privileged under Mil. R. Evid. 513.

Answer at 11.

Interestingly, the Coast Guard Appellate Government Division’s brief – captioned as BRIEF ON BEHALF OF THE UNITED STATES – aligns the Government with Randolph on the scope of Mil. R. Evid. 513:

As Judge Bruce noted in the dissenting opinion, nothing in the rule states that “communication” includes diagnosis and treatment. Kitchen, No. 001-16 at *7. “The facts that there was a diagnosis, that medications were prescribed, or that other treatments were given, exist regardless of whether or to what extent they were discussed with the patient.” Id. at *8. Thus, a plain-language analysis results in the conclusion that only communications, and not matters such as records of diagnoses, medications, or treatments, are privileged.

Gov’t Br. at 20 (emphasis in original).

Case Links:
CGCCA opinion
Blog post: CGCCA opinion analysis
Blog post: Randolph appeals
• Blog post: CAAF grants
• Petitioner’s (Randolph) brief
Respondent’s (HV) Answer
Petitioner’s (Randolph) reply brief
Respondent’s (HV) brief on specified (jurisdiction) issue
United States’ brief
Amicus Curiae brief: Coast Guard Appellate Defense
Amicus Curiae brief: Air Force Appellate Government
Amicus Curiae brief: Navy-Marine Corps Appellate Government
Amicus Curiae brief: Air Force Appellate Defense (joined by Army Appellate Defense and Navy-Marine Corps Appellate Defense)
• Blog post: Argument preview

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