CAAF will hear oral argument in the Air Force case of United States v. Chisum, No.17-0199/AF (CAAFlog case page), on Tuesday, December 5, 2017, after the argument in Katso. A single issue questions the military judge’s application of Mil. R. Evid. 513 (the psychotherapist-patient privilege):

Whether the military judge’s failure to conduct an in camera review of the mental health records of AB AK and AB CR deprived Appellant of his right to confront the sole witnesses against him in violation of the Sixth Amendment to the Constitution.

The scope of Mil. R. Evid. 513 has been a hot topic recently (see posts categorized here). Congress ordered modification of the rule the National Defense Authorization Act for Fiscal Year 2015 (discussed here), and the Rule was modified by the President in Executive Order Number 13696 (discussed here). But those modifications are not at issue in this case because it was tried before they took effect.

Precisely what is at issue, however, is hard to tell because both of Chisum’s briefs are sealed, and the Air Force Appellate Government Division’s brief is heavily redacted; out of 47 numbered pages, 19 are totally redacted and 5 are partially redacted. The only brief that isn’t redacted is an amicus brief filed by the victims-rights group Protect Our Defenders in support of the Appellate Government Division that argues that the privilege trumps any constitutional rights of the accused (but that the conviction should be affirmed nevertheless).

What we do know about the case, however, is that a special court-martial composed of officer members convicted Senior Airman Chisum was of a single specification of wrongful use of cocaine on a single occasion, and sentenced him to confinement for 3 months, reduction to E-1, forfeiture of $1031.00 pay per month for 3 months, and a bad-conduct discharge. The convening authority approved only 49 days of the adjudged confinement.

The mental health records at issue belong to two prosecution witnesses who testified about using drugs with Chisum. The Air Force CCA observed that “the credibility of these two witnesses, as well as their ability to accurately perceive and recall what occurred that evening in New Orleans, were critical to the Government’s ability to prove, beyond a reasonable doubt, that Appellant used cocaine in New Orleans.” United States v. Chisum, 75 M.J. 943, 946 (A.F. Ct. Crim. App. 2016) (discussed here). But the CCA concluded:

Based upon our review of the mental health records at issue in this case, we are convinced that any error in failing to provide any portion of those records to the Defense was harmless beyond a reasonable doubt. The Defense already had sufficient information to cross-examine these witnesses on the matters found in their mental health records, and, after considering the entirety of the trial, the additional information contained in the records would not have changed the substance or effectiveness of their cross-examination or defense theory.

Chisum, 75 M.J. at 950. This seemed to be an entirely ordinary conclusion, except that:

On 16 August 2016, this court ordered that the Government produce the sealed mental health records of AB AK and AB CR for appellate review. On 19 September 2016, the Government complied with the order and provided the requested records to this court.

Chisum, 75 M.J. at 946 n.3. A CCA obtaining and reviewing mental health records not obtained at trial is rather extraordinary.

Those records, however, produced so willingly then and discussed so casually in the CCA’s published decision, are now guarded so carefully that it’s impossible to determine what CAAF is going to focus on during tomorrow’s argument. This is despite the fact that the witnesses – who seem otherwise entirely unrelated to Chisum – are identified only by initials.

The Air Force Government Appellate Division’s brief, however, gives a hint of what the court might discuss.

The brief argues:

In light of [Pennsylvania v. Ritchie, 480 U.S. 39 (1987)], failure to disclose evidence in AB A.K. and AB C.R.’s mental health records did not violate Appellant’s rights under the Confrontation Cause. Arguably though, pursuant to Ritchie, the nondisclosure could have affected Appellant’s rights under the Due Process Clause of the Fifth Amendment or the Compulsory Process Clause of the Sixth Amendment. However, Appellant has failed to complain on appeal that those constitutional rights were violated, and those constitutional rights are not included the granted issue. Any such argument concerning Appellant’s other constitutional rights should be considered waived by this Court. But assuming this Court does not apply waiver, it will have to consider a question it has not yet addressed in a prior opinion: what it means for evidence to be “constitutionally required” in the context of Mil. R. Evid. 513.

Gov’t Div. Br. at 25 (emphasis added). Unfortunately, the brief doesn’t suggest a clear (or really any) answer to this question. Or maybe the answer is redacted.

Case Links:
• AFCCA opinion (75 M.J. 943)
• Blog post: AFCCA obtains & reviews 2 set of mental health records
• Appellant’s brief (sealed)
• Appellee’s (A.F. Gov’t App. Div.) answer (redacted)
• Appellant’s reply brief (sealed)
• Amicus brief (Protect Our Defenders) in support of A.F. Gov’t App. Div.
Blog post: Argument preview

One Response to “Argument Preview: Sealed and heavily-redacted briefs about the mental health records of witnesses, in United States v. Chisum”

  1. Alfonso Decimo says:

    Of course, sealed appellate exhibits may be accessed by many individual attorneys and their staffs, including the CA’s SJA for the SJAR, the defense and the government appellate attorneys, and the appellate judges. I believe that is the standard order issued by the military judge after an in camera review. Would it be lawful for the military judge to also permit the government and defense trial counsel to review the records and submit motions (also subject to sealing) on which portions should be considered relevant? Is that a crazy idea?