Opinion Analysis: Reviewing mental health records not reviewed at trial, CAAF finds no prejudice in United States v. Chisum
CAAF decided the Air Force case of United States v. Chisum, __ M.J. __, No.17-0199/AF (CAAFlog case page) (link to slip op.), on Friday, January 26, 2018. Reviewing the mental health records of two prosecution witnesses – even though the records were not reviewed by the trial military judge and were made available for the first time on appeal – CAAF holds that any error in failing to produce them at trial was harmless, affirming the findings, sentence, and decision of the Air Force CCA.
Chief Judge Stucky writes for a unanimous court.
Back in 2016, in United States v. Chisum, 75 M.J. 943 (A.F. Ct. Crim. App. Nov. 29, 2016) (discussed here), the Air Force CCA “ordered that the Government produce the sealed mental health records of AB AK and AB CR for appellate review.” 75 M.J. at 946 n.3. Such records are protected by Mil. R. Evid. 513, the military psychotherapist-patient privilege. The rule was significantly modified after the trial of this case (discussed here and here), but at the time of trial the rule included an exception for “when admission or disclosure of a [psychotherapist] communication is constitutionally required.” Mil. R. Evid. 513(d)(8) (2014) (deleted in 2015).
Despite this exception, the military judge rejected a request from Chisum’s defense counsel to review the mental health records of two key prosecution witnesses – Airman Basic AK and CR – for evidence related to their ability to accurately perceive and recall Chisum’s alleged illegal drug activity. Having obtained the records (for the first time), however, the Air Force CCA reviewed them and concluded that the military judge was wrong to refuse to conduct such a review. But the CCA also found the error harmless because “the additional information contained in the [mental health] records would not have changed the substance or effectiveness of [the defense] cross-examination or defense theory.” 75 M.J. at 950.
CAAF then granted review to determine:
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.
In today’s short opinion the court unanimously concludes that any error was harmless. But it does so after the taking the unusual step of duplicating the CCA’s review of evidence not presented at trial.
Chief Judge Stucky concludes:
Having reviewed the sealed materials, we agree with the conclusion of the CCA that, under these circumstances, any error by the military judge in failing to inspect and order the disclosure of the mental health records of AB AK and AB CR was harmless beyond a reasonable doubt. Appellant was able to fully cross-examine the witnesses on their credibility and motive to misrepresent Appellant’s conduct. There is no reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.
Slip op. at 7. This conclusion isn’t too remarkable considering that Chisum’s appellate defense counsel “conceded that any error regarding the production of AB AK’s mental health records was harmless.” Slip op. at 5. But CAAF also finds that “the information in the sealed records would have added little to the defense counsel’s strong cross-examination of AB CR.” Slip op. at 6. Furthermore:
Appellant was charged with five offenses. It is obvious that the panel was unwilling to believe the uncorroborated testimony of AB AK, as they acquitted Appellant of every charge, except one use of cocaine, which was witnessed by both AB AK and AB CR.
Slip op. at 5.
CAAF’s conclusion is very much fact-dependent and the court functionally does the fact-finding itself (by reviewing the records and determining what they say and don’t say). That’s the sort of thing that is typically reserved for a Court of Criminal Appeals. See United States v. Piolunek, 74 M.J. 107, 110 (C.A.A.F. 2015) (discussing difference between questions of fact and questions of law). But by resolving this case in this fashion, CAAF sidesteps the difficult question of what it means for evidence to be constitutionally required under the old version of Mil. R. Evid. 513. Considering that the exception is no longer in the rule, it’s a question with a short lifespan.
• 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
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis