In A.M. v. United States, No. 201700158 (N-M. Ct. Crim. App. Jul. 31, 2017) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA denied an alleged victim’s petition for a writ of mandamus under Article 6b, making two significant findings regarding the scope of an alleged victim’s rights during the Article 32 preliminary hearing process.

First, the CCA found that the Article 6b(a)(5) right to confer with trial counsel does not include contemporaneous access to written comments submitted by the trial counsel to an Article 32 preliminary hearing officer, nor does it include participation in discussions about the case between trial and defense counsel. Second, the CCA found that the Article 6b(a)(3) right to not be excluded from a preliminary hearing does not include contemporaneous access to exhibits submitted by the parties but not displayed during the preliminary hearing.

Ultimately, the CCA concludes that:

Article 6b affords the petitioner no greater access to the documents not publically displayed while passing between the parties during the hearing than it affords to any other courtroom observer watching the proceeding.

Slip op. at 9.

The petition involved an Article 32 preliminary hearing about two Article 120 specifications. The preliminary hearing was a paper 32; no testimony was offered, only exhibits:

For approximately 30 minutes, on 25 April 2017, an Article 32, UCMJ, preliminary hearing addressed two preferred Article 120, UCMJ, violations that the real party in interest is alleged to have committed against the petitioner. The petitioner, her civilian VLC, and her military VLC attended the proceeding, during which “the government and defense submitted documentary and recorded exhibits,” but presented no witness testimony.

Slip op. at 2 (quoting petitioner’s brief). Counsel for A.M. (the alleged victim) objected to some of the exhibits and the preliminary hearing officer agreed to consider those objections. The hearing officer then agreed to accept written comments on the evidence from the prosecution, the defense, and A.M.’s counsel. Three significant events happened next:

First,

According to the petitioner, “[u]pon closure of the in-person proceedings, [the civilian defense counsel] voiced his dismay to the [trial counsel] at the PHO’s decision to allow VLC to submit written comments on the evidence,” and they, along with “the Government’s Highly Qualified Expert . . . then retreated to [the trial counsel]’s office in an apparent attempt to discuss this outside VLC’s presence.”

Slip op. at 3. Put differently, the trial and defense counsel discussed the case outside the presence of A.M. and her counsel.

Second, A.M.’s counsel requested “a complete copy of all defense exhibits from the trial counsel.” Slip op. at 3 (marks omitted).

Third, A.M.’s counsel requested copies of the written comments submitted by the prosecution and the defense to the preliminary hearing officer.

The preliminary hearing officer responded to these requests with an email agreeing to send A.M.’s counsel a copy of the written comments from the prosecution and the defense, but (apparently) the hearing officer never actually sent the documents. Instead, the hearing officer completed his report, finding no probable cause to support the specifications.

A.M.’s counsel then made numerous requests of the convening authority’s staff judge advocate, including that the preliminary hearing be reopened. The staff judge advocate responded by:

repeatedly offer[ing] opportunities “for the VLC team to view the PHO report and all the accompanying documents” at his office or at the Legal Services Support Team offices. There was no indication that the remaining requests would be granted.

Slip op. at 5. The Article 6b petition followed.

Article 6b gives an alleged victim eight specific statutory rights. None of them are discovery rights, nor does Article 6b include the word discovery. Because of this, A.M.’s petition is something of an effort to push a square peg into a round hole (or an invitation for the CCA to judicially rewrite the statute), and it shows in the CCA’s opinion.

For example, the CCA first considered whether A.M. has a right to access the written comments of the trial and defense counsel before the preliminary hearing officer completed his report. Article 6b does not give an alleged victim a right to receive copies of any documents, but it does give an alleged victim “the right not to be excluded” from the preliminary hearing. Article 6b(a)(3). So the petition asserted that the written comments were part of the hearing.

Not so, said the CCA:

[I]t is not clear that the trial and civilian defense counsel’s written comments are part of the preliminary hearing, such that the petitioner must be provided a copy of them before the PHO completes the report to the convening authority, if those written comments involve only the ultimate issues to be addressed in the PHO’s report—probable cause, jurisdiction, form of the charges, potential recommended additional charges, and disposition of the charges. Comments by counsel, or their arguments on the evidence, are not included as components of the preliminary hearing. They are not even mentioned in Article 32, UCMJ, or R.C.M. 405.

. . .

. . . Therefore, preventing the petitioner from viewing those written comments and not affording her an the opportunity to consult with the trial counsel regarding them before the PHO completed and submitted his report to the convening authority resulted in no violation which gave the petitioner a clear and indisputable right to the requested relief. Even the PHO’s ex parte discussions with the civilian defense counsel regarding whether to serve the VLC with the written comments did not clearly violate the petitioner’s right to not be excluded from the Article 32, UCMJ, proceeding.

Slip op. at 7.

Additionally, the CCA next considered whether A.M. has a right to review all evidence submitted during a preliminary hearing and to make unrestricted comments on it before the preliminary hearing officer completed his report. Article 6b(a)(4) gives an alleged victim “the right to be reasonably heard” during certain hearings, but not during a preliminary hearing. However, Article 6b(a)(5) gives an alleged victim the right to confer with trial counsel at a preliminary hearing. So the petition asserted that the right to confer means a right to participate which means a right to review the evidence.

Not so, said the CCA:

The petitioner further argues that she has “a right to . . . reasonably participate in the preliminary hearing proceedings,” and that this right to “meaningful participation and [for] her ‘voice’ to be heard” is part of “the express right to be present for the entirety of the preliminary hearing proceeding.” To the extent that the petitioner avers she has a right to review all of the defense documents—even those submitted as exhibits without being openly published during the preliminary proceeding—and a right to “voice” her general views at the preliminary hearing with oral or written comments independent of the trial counsel, we disagree.

. . . latitude to represent the petitioner’s concerns at the preliminary hearing, since the petitioner was present but did not testify, was limited to MIL. R. EVID. 412, 513, 514, and 615 matters. . . .

. . . Therefore, the petitioner’s right to not be excluded from an Article 32, UCMJ, preliminary hearing ensures her the opportunity to attend the entire proceeding that relates to the offenses involving her (with possible exceptions under Article 6b(a)(3), UCMJ, or based on MIL. R. EVID. 505 or 506 privileges), but not to receive all of the exhibits submitted by the parties.

Slip op. at 8 (marks in original).

The CCA’s opinion also briefly discusses Marine Corps-specific rules requiring a trial counsel to provide certain items to an alleged victim, but those aren’t implicated by the petition.

It’s important to note the limited reach of this decision. A.M. ultimately received access to all of the requested exhibits (when the SJA gave her counsel the opportunity to review the PHO report and all the accompanying documents), so the opinion does not stand for the proposition that preliminary hearing exhibits may be hidden from an alleged victim forever.

10 Responses to “The NMCCA rejects an alleged victim’s discovery demands”

  1. k fischer says:

    Let me preface this by saying that I abhor the notion that a complaining witness has any special rights in a Court-martial to participate, appeal, make argument, etc.  A Court-martial is not a court of equity.  The codification of their special rights is the catalyst for false accusers to see evidence and adjust fire so that their target is convicted, which outweighs the benefits it provides.
     
    However, it seems like R.C.M. 405(i)(2)(C) is pretty clear:   “A victim has the right not to be excluded from any portion of a preliminary hearing related to the alleged offense.”  Congress was pretty clear when it passed Article 6b(3) that mirrors the aforementioned language of R.C.M. 405, except for the words “any portion.”
     
    I think that this very clear language would extend to the “portion” of the hearing where Defense Counsel, Government Counsel, and the PHO huddled in an office outside the presence of the VLC and the hearing should have been reopened.  If that wasn’t an extension of the “hearing,” then I would argue that the communication could be considered an ex parte communication and the hearing should have been reopened. 
     
    I can imagine that I would be pretty miffed if the SVP and SVC met with the PHO in his office outside my presence to discuss the case prior to me submitting written comments on the evidence I believe to be most important.

  2. Zachary D Spilman says:

    I don’t see anything in the opinion, k fischer, that suggests that the prosecution and defense met with the hearing officer outside the presence of AM or her counsel. 

  3. Former DC says:

    Zack:
    Two quotes from the opinion:

    According to the petitioner, “[u]pon closure of the in-person proceedings, [the civilian defense counsel] voiced his dismay to the [trial counsel] at the PHO’s decision to allow VLC to submit written comments on the evidence,” and they, along with “the Government’s Highly Qualified Expert . . . then retreated to [the trial counsel]’s office in an apparent attempt to discuss this outside VLC’s presence.”

    and

    Even the PHO’s ex parte discussions with the civilian defense counsel regarding whether to serve the VLC with the written comments did not clearly violate the petitioner’s right to not be excluded from the Article 32, UCMJ, proceeding. 

    Am I missing something in these two quotes?  Sure looks like the PHO met with at least the CDC, and (although it may be loose use of pronouns and punctuation by NMCCA) the Gov’ts HQE and probably TC (it was his office), after the hearing was closed.
    All that said, it is debatable whether this was an extension of the hearing or not.  That would depend on facts I don’t see, although it appears NMCCA did not see it as an extension.
    All that said, this “special rights” nonsense is exactly that: nonsense.

  4. k fischer says:

    According to the petitioner, “[u]pon closure of the in-person proceedings, [the civilian defense counsel] voiced his dismay to the [trial counsel] at the PHO’s decision to allow VLC to submit written comments on the evidence,” and they, along with “the Government’s Highly Qualified Expert . . . then retreated to [the trial counsel]’s office in an apparent attempt to discuss this outside VLC’s presence.” 
     

    I might have incorrectly read the above reference to “they” to include the previously referenced PHO, TC and CDC.  So, if the PHO wasn’t at the meeting, then it is not quite as bad.  However, I still think the parties’ written comments to the PHO should have been provided to the VLC, as these seem to be an extension to the 32 hearing.  

  5. stewie says:

    All this PHO talk is making me hungry!

  6. Lone Bear says:

    Isn’t a “hearing” by definition the oral, in-person part. Written comments are not a hearing, not even a portion. They are a reading, which isn’t mentioned in 6b. 

  7. k fischer says:

    Lone Bear, 
     
    Why not submit documents for a reading along with the written comments?  Why have a hearing at all?

  8. stewie says:

    kf, as you no doubt know, technically, an Article 32 can now be almost exclusively documents.

  9. k fischer says:

    Stewie, 
     
    Correct.  And, as a defense counsel, my client has a right to participate in the hearing and have a copy of all the documents that are presented to the PHO.  Would it be fair for the Government to submit comments in a written format after the hearing to the PHO without me seeing them? 
     
    So, likewise, if we are going to give a complaining witness, aka victim, a right to participate in a 32 hearing, then they should be privy to all the communications made to the PHO, so they can participate by making their noted objections to comments.  My tax dollars pay the salary of SVC/VLC’s who are supposed to represent their clients and participate in preliminary hearings, but they can’t see the communications made to the PHO by the defense and government counsel prior to the PHO making a decision? 
     
    Either let them do their jobs or give me back my money!  But, like many things in the military, we taxpayers have to pay for something that appears to be effective on paper, but made rather ineffective in practice.

  10. Lone Bear says:

    KF, I don’t see anything in Article 6b that gives VLC’s or their clients access to written submissions, but they are welcome to submit them or be present (presumably to ensure their privacy rights).  It doesn’t matter how much Congress spends, a witness’s attorney can have only so much involvement without sacrificing due process.  The question on the return on investment for VLC’s is a totally different subject.