Congress created Article 6b in the National Defense Authorization Act for Fiscal Year 2014. As originally enacted, the statute had four sections (paragraphs (a-d)), the first of which outlined eight rights of a victim. The next year, in the National Defense Authorization Act for Fiscal Year 2015, Congress made some technical changes and added a fifth section – paragraph (e) – providing an enforcement mechanism. The following year, in the National Defense Authorization Act for Fiscal Year 2016, Congress expanded that enforcement mechanism, so that it now reads:

(e) Enforcement by Court of Criminal Appeals.

(1) If the victim of an offense under this chapter believes that a preliminary hearing ruling under section 832 of this title (article 32) [10 USCS § 832] or a court-martial ruling violates the rights of the victim afforded by a section (article) or rule specified in paragraph (4), the victim may petition the Court of Criminal Appeals for a writ of mandamus to require the preliminary hearing officer or the court-martial to comply with the section (article) or rule.

(2) If the victim of an offense under this chapter is subject to an order to submit to a deposition, notwithstanding the availability of the victim to testify at the court-martial trying the accused for the offense, the victim may petition the Court of Criminal Appeals for a writ of mandamus to quash such order.

(3) A petition for a writ of mandamus described in this subsection shall be forwarded directly to the Court of Criminal Appeals, by such means as may be prescribed by the President, and, to the extent practicable, shall have priority over all other proceedings before the court.

(4) Paragraph (1) applies with respect to the protections afforded by the following:

(A) This section (article).

(B) Section 832 (article 32) of this title [10 USCS § 832].

(C) Military Rule of Evidence 412, relating to the admission of evidence regarding a victim’s sexual background.

(D) Military Rule of Evidence 513, relating to the psychotherapist-patient privilege.

(E) Military Rule of Evidence 514, relating to the victim advocate-victim privilege.

(F) Military Rule of Evidence 615, relating to the exclusion of witnesses.

10 U.S.C. 806b(e).

This is a limited grant of authority that gives only a CCA – and not CAAF – jurisdiction over victim petitions. See Randolph v. HV and United States, 76 M.J. 27 (C.A.A.F. Feb. 2, 2017) (CAAFlog case page).

A three-judge panel of the Army CCA recently rejected a petition that went way beyond the limits of Article 6b(e).

In AG v. Hargis, Military Judge, 77 M.J. 501, No. 20170417 (A. Ct. Crim. App. Aug. 16, 2017) (link to slip op.), Judge Fleming writes for the panel and holds that:

petitioner, an alleged sexual assault victim, fails to establish that a referred court-martial, or even preferred charges, existed at the time of the military judge’s decision to take no action on a special victim counsel’s [hereinafter SVC] discovery and production request. We further hold the military judge did not err by advising the military magistrate to deny the SVC’s discovery request or by not acting on the SVC request, which created a de facto ruling denying the SVC’s discovery and production request. We, therefore, dismiss the petition for lack of jurisdiction.

Slip op. at 1 (marks in original).

AG is a service member who accused a fellow service member of sexual assault. “During CID’s investigation, a military magistrate signed a search authorization for AG’s cell phone.” Slip op. at 1. AG didn’t like that. After the authorization was signed:

a CID agent went to AG’s workplace to execute the search and seizure authorization. AG did not immediately provide her cellphone to the CID agent upon request, but instead attempted to depart a small office with the cellphone. AG asserts she was injured and her cellphone damaged when the CID agent blocked her egress from the small office in an attempt to control the whereabouts of the cellphone.

Slip op. at 2.

AG’s special victims counsel (see 10 U.S.C. 1044e) eventually received a copy of the authorization and then made a discovery request for the supporting affidavit and other documents related to the authorization. The request was denied by the issuing magistrate, and a supervising military judge refused to intervene. So the victims counsel filed the writ petition.

The CCA finds no jurisdiction to entertain the petition:

The relief petitioner apparently seeks is for this court to order discovery and compel the production of documents to an alleged victim where there is not yet—and may never be—a court-martial. This is an overly broad view of this court’s jurisdiction.

Slip op. at 3. I think this is a charitable interpretation of AG’s petition.

Article 6b(e)(1) requires “a preliminary hearing ruling” or “a court-martial ruling,” and Article 6b(e)(2) requires “an order to submit to a deposition.” None of those – nor even a court-martial or a preliminary hearing – exist in this case. Accordingly, Article 6b(e) doesn’t apply, and the petition is frivolous.

But Judge Fleming is a good sport and takes the analysis a little further:

Even if this court were to have jurisdiction over such a case, petitioner has established no right to relief. . . .

Petitioner asserts two grounds upon which she is entitled to discovery and the production of documents. The first is 18 U.S.C. § 3771(d)(8), which establishes a crime victim’s “right to be treated with fairness and with respect for the victim’s dignity and privacy.” (See also 10 U.S.C. § 806b(a)(8)) (establishing the rights of victims under Article 6b, UCMJ). However, a right to be treated with fairness, dignity, and privacy does not give a victim a right to receipt of discovery and documents without an analysis of the case status and pending legal issue.

Petitioner’s second basis is the Standard Operating Procedure [hereinafter SOP] for Military Magistrates, Section IV, dated 10 September 2013 , gives her a right to discovery and production. Specifically, the SOP provides “[a]t the request of counsel . . . military magistrates will provide a copy of the affidavit, authorization, notes and any other documents prepared as part of the military magistrate’s duties at issue.” See SOP, Section IV, 1.b. Assuming “counsel” is meant to include SVCs and a mere SOP establishes an alleged victim’s right to the receipt of military magistrate’s documents, an alleged victim’s discovery and production request is not ripe for decision by a military judge in a non-referred case. Even an accused has no right to discovery and production of an affidavit or other documents used by a military magistrate in issuing a search and seizure authorization until the referral stage pursuant to Rules for Courts-Martial 701 and 703.

Slip op. at 4 (emphases added). All I can add is: Duh.

It’s self-evident that an alleged victim can’t complain about a preliminary hearing or court-martial ruling before there is a preliminary hearing, a court-martial, or a ruling. A footnote, however, reveals just how much of an abuse of process this petition really was:

The SVC asserts that the search and seizure authorization was facially invalid; that the military magistrate and/or CID agents violated AG’s constitutional and statutory rights in the issuance and/or the execution of the search and seizure authorization; and that the military magistrate and/or the supervisory military judge violated AG’s constitutional and statutory rights by failing to produce the requested documents to the SVC.

Slip op. at 2 n.2. A military search authorization is roughly the equivalent of a civilian search warrant. It’s not clear whether AG’s phone was made the subject of a search authorization because she refused to provide it to those investigating her allegation against the other service member, or whether she is a suspect in a separate investigation into other misconduct. But either way, Article 6b does not give her a broad platform to litigate grievances against military commanders conducting military functions that she doesn’t like. Nor does Article 6b – or the possibility that AG is the victim of a crime – immunize her for her own misconduct.

11 Responses to “The Army CCA rejects a pre-referral Article 6b petition”

  1. PJM says:

    Labeling the exercise as an abuse of process diminishes the fact that everybody laughed at Miranda’s lawyer.

  2. Zachary D Spilman says:

    Not only is that a false historical account, PJM, as Miranda was actually the consolidation of four separate cases and the Court’s “holding is not an innovation in our jurisprudence, but is an application of principles long recognized and applied in other settings,” Miranda v. Arizona, 384 U.S. 436, 442 (1966), but it also totally ignores the fact that:

    Article 6b(e) is a limited grant of CCA review to enforce certain enumerated victims’ rights. 

    Randolph v. HV, 76 M.J. 27, 31 (C.A.A.F. 2017) (CAAFlog case page) (citing EV v. United States & Martinez, 75 M.J. 331, 334 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page).

    As discussed in my post above, there isn’t even a colorable claim that the right asserted in AG is contained within Article 6b.

  3. k fischer says:

    Just another headache resulting from the codified presumption that the accused is guilty in sexual assault cases and that his accuser has standing as a party to be heard in criminal cases where they are simply fact witnesses.
    So, did the CID agent present the search authorization to AG prior to detaining her?  Because unless they did, AG would be within her right to tell him to go spit. But, just like a falsely accused, AG would not have a right to the affidavit upon which the search authorization was based until charges were referred against her.

  4. Former DC says:

    Zack: Like your analysis in the last paragraph.  Would the situation be different if the phone were in the SVCs possession?

  5. Zachary D Spilman says:

    Not really, Former DC. I assume you recall our #8 Military Justice Story of 2014

  6. Former DC says:

    Precisely where I was going.  I believe there was something mentioned about a corpse…
    Seriously, though, setting aside the legitimate question of whether SVC should exist or not, it seems at the bottom to be a straight-up question of what the statute provides.  SVC presumably can read, so how can there be any argument that, in the civilian world, would probably not be a Rule 11 frivolous one?

  7. DCGoneGalt says:

    Former DC:  Yes, it is safe to presume SVC can read.  However, what you fail to understand is that the statute, like the Constitution, is a living, breathing document that is subject to change at the whim of societal attitudes or judicial whim without something so outdated as a new law, or amendment.  You are so old-fashioned.

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

    Cases like this don’t help the SVC cause.  Either there is evidence on the AV’s phone related to the investigation, in which case the authorization is valid, or the AV is accused of falsely alleging sexual assault and there is evidence of that lie on her phone, in which case, the authorization is valid.  She has to comply with the agent’s order to hand over her phone.  There isn’t a requirement to show her the authorization before ordering her to turn it over, it’s only a requirement to give her a copy of the inventory after it’s seized.  I’m not sure about obstruction of justice just for refusing to turn over the phone, but definitely disobeying an order from a law enforcement officer is a very viable charge.  And if she threatened to damage or destroy it, then obstruction of justice is also a viable charge.
    If you don’t want CID to seize your phone, then leave your phone off base.  If the phone was in the SVC’s possession, then only a military judge could authorize the search for, and seizure of, the phone.  Then IF the case goes to trial, the SVC can litigate the search and seizure issue.

  9. Former DC says:

    DCGG: I assume that’s sarcastic. If so, I like. If not, don’t get me started. I’ve been fighting that nonsense since I was a 1L. 
    Tami: Good point. I will take it to the next step. Cases like this demonstrate why the SVC should be abolished. I will bet your lunch money that no matter how egregious, no alleged “victim” will ever face a charge for obstruction or anything else. Too bad accused’ counsel don’t have the same right to make messes in cases and derail the whole process. The rest of my thoughts are unprintable. 

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

    Former DC, I have no problem with the SVC Program per se.  It gives AVs an advocate, when they otherwise wouldn’t have one (TCs can’t really advocate for the AV, they are an advocate for the United States), so to the extent the SVC Program helps instill “confidence in the system” I’m for it.  But most SVCs are legal assistance attorneys, meaning brand new to the military justice system, and sometimes too “gung ho,” as in this case. 
    I don’t blame the SVC for trying to advocate for his client, but this petition is misplaced.  There is no opportunity to litigate this issue until after the case is referred to court-martial, or until POTUS or Congress changes the rules on objecting to a search authorization.  In which case, those rules would also apply to the accused.
    If I was the defense attorney in this case, I would push for the AV to be charged.  She doesn’t get to refuse to turn over her phone in the face of a valid search authorization, anymore than a suspect would.

  11. Vulture says:

    How are we to reconcile that a military judge(s) are to be lauded for staying in their wheelhouse for not entering into a reasoning on a question of a search authorization?   This while encouraging a Defense Counsel for the prosecution of the alleged victim.  It is no great act of heroism to determine that 2 + 2 doesn’t equal 5.  Nor that it equals an imaginary number.
     No new ground has been seeded, broken, or mapped and for the nothing ventured there should be nothing gained.  Justice requires a courage that gives others courage.  Until we see whether this military judge is actually going to stand up for his prior statements, here, we are left only with the same dominion that Sterling was in.  Are CID looking for evidence of prior sexual acts viz a viz (4)(C)?  Personally, I can sleep better at night NOT knowing whether AG was slinging the coochy. 
    In September 95, in the Army Lawyer, this Military Judge, as a SDC prompted for the reporting of hundreds of military crimes to organizations outside of his jurisdiction so maybe he would completely agree with seeking the prosecution of this AV.  It’s a shit proposition, though, to reap what he sowed now when he has done for military justice what Thomas Midgley has done for the environment.