CAAFlog » Article 6b

CAAF decided the Air Force case of United States v. Hamilton, 78 M.J. 335, No. 18-0135/AF (CAAFlog case page) (link to slip op.), on Thursday, February 28, 2019. Concluding that the military judge erred in admitting three victim impact statements into evidence during the sentencing phase of the court-martial – because they were not admissible under any rule – the court avoids answering the separate question of whether a statement by a crime victim admissible under R.C.M. 1001A (the President’s implementation of the Article 6b right to be reasonably heard) is evidence that is subject to any of the Military Rules of Evidence. Nevertheless, despite finding error, CAAF finds no prejudice and it affirms the findings ans sentence as affirmed by the Air Force CCA.

Judge Ryan writes for a unanimous court.

Senior Airman (E-4) Hamilton pleaded guilty to wrongful possession and distribution of child pornography, and a military judge sentenced him to confinement for two years, reduction to E-1, total forfeitures, and a bad-conduct discharge. During the sentencing phase of the court-martial, the prosecution offered three exhibits as either evidence in aggravation (admissible under R.C.M. 1001(b)(4) (2016)) or statements of victims (admissible under R.C.M. 1001A (2016)). The exhibits were:

Prosecution Exhibit 4: A statement from the child (identified as B) depicted in some of the images possessed by Hamilton, and also a statement from her mother.

Prosecution Exhibit 5: A video of a speech given by B at a conference about crimes against children.

Prosecution Exhibit 6: A written statement from another child (identified as J) depicted in other images possessed by Hamilton.

Hamilton’s defense counsel objected but the military judge overruled the objection. His ruling, however, did not clearly identify the basis for admission of the exhibits. Hamilton renewed his objection on appeal, but the Air Force CCA rejected it. The CCA concluded that the exhibits were admissible as statements of a victim under R.C.M. 1001A and that such statements “are not evidence” and so the Military Rules of Evidence “do not apply” to them. United States v. Hamilton, 77 M.J. 579, 584–86 (A.F. Ct. Crim. App. 2017) (analyzed here).

CAAF then granted review of two issues:

I. Are victim impact statements admitted pursuant to R.C.M. 1001A evidence subject to the Military Rules of Evidence?

II. Whether the military judge erred in admitting prosecution exhibits 4, 5, and 6.

Finding that the military judge erred in admitting the exhibits under any rule, CAAF does answer not address whether a R.C.M. 1001A statement is evidence subject to the Military Rules of Evidence (though it does give some hints) because to decide that question “would constitute an advisory opinion.” Slip op. at 11.

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Two years ago, Article 6b was the #6 Military Justice Story of 2016. Enacted as part of the 2013 changes to the UCMJ, and then modified the following year, the scope and reach of Article 6b is still somewhat unsettled. But a significant decision from 2018 puts Article 6b – and the corresponding Rule for Courts-Martial 1001A (renumbered as 1001(c) in the 2019 MCM) – back on our list as the #9 Military Justice Story of 2018.

In United States v. Barker, 77 M.J. 377 (C.A.A.F. May 21, 2018) (CAAFlog case page), CAAF reviewed three victim-impact letters from a child pornography victim that were admitted into evidence under R.C.M. 1001A, which is the President’s implementation of a crime victim’s Article 6b(a)(4)(B) “right to be reasonably heard at . . . [a] sentencing hearing relating to the offense.” Baker pleaded guilty at a general court-martial to wrongful possession of child pornography and the letters were offered by the prosecution during the sentencing phase of the proceeding. The trial counsel proffered that the victim (identified by the initials KF) provided the letters to the FBI years before Barker’s misconduct, but KF did not participate in Barker’s court-martial in any way. The defense vigorously objected to the admission of the letters, but the military judge overruled the objections and admitted them.

That was error, ruled CAAF, because of KF’s non-participation.

Judge Ryan wrote for a functionally-unanimous court (Chief Judge Stucky dissented, but agreed with Judge Ryan’s analysis of R.C.M. 1001A) and explained that:

the rights vindicated by R.C.M. 1001A are personal to the victim in each individual case. Therefore, the introduction of statements under this rule is prohibited without, at a minimum, either the presence or request of the victim, R.C.M. 1001A(a), the special victim’s counsel, id., or the victim’s representative, R.C.M. 1001A(d)–(e).

77 M.J. at 382 (emphasis added). In other words, victim’s who don’t participate won’t be heard. Judge Ryan concluded:

All of the procedures in R.C.M. 1001A contemplate the actual participation of the victim, and the statement being offered by the victim or through her counsel. Moreover, they assume the victim chooses to offer the statement for a particular accused, as they permit only the admission of information on victim impact “directly relating to or arising from the offense of which the accused has been found guilty.” R.C.M. 1001A(b)(2).

In this case, trial counsel appears to have had no contact with KF, KF did not in fact participate in the proceedings, and there is no indication that KF was even aware of Appellant’s trial. Most importantly, the statements were not offered by either KF or her advocate as R.C.M. 1001A requires. Thus, the military judge abused his discretion in admitting these statements under R.C.M. 1001A.

77 M.J. at 383.

The decision provided no benefit for Barker, however. Barker faced a maximum authorized punishment of confinement for 20 years, had a pretrial agreement that limited his confinement to four years, and was actually sentenced to a comparatively light two years and six months. Considering that along with the “particularly horrific” nature of the images at issue, 77 M.J. at 384, CAAF found the error harmless and affirmed the findings and sentence.

Two years ago, in EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page), a unanimous CAAF found no jurisdiction under Article 6b to entertain a writ-appeal by an alleged victim who sought to reverse a military judge’s order for disclosure of portions of her mental health records.

The military judge – Marine Corps Lieutenant Colonel Robinson – ordered release of the records on the basis that disclosure was required to protect the constitutional rights of the accused (seemingly reviving the constitutionally-required exception that was deleted from the Manual for Courts-Martial in 2015) and on the basis that the crime/fraud exception applies (as EV’s mental health treatment was – perhaps fraudulently – used to justify an expedited transfer of her active-duty husband).

Soon after CAAF dismissed the petition, EV (who is an alleged victim of sexual assault) filed suit in U.S. District Court seeking to prevent the release of her mental health records. The suit was dismissed on the basis that the United States has not waived its sovereign immunity from such actions. I discussed the dismissal order in this post.

EV appealed that dismissal to the 9th Circuit. The court heard oral argument in June (link to audio) (link to video). Last month it affirmed the dismissal, in E.V. v. Robinson, __ F.3d __, No. 16-16975, 2018 U.S. App. LEXIS 29166 (9th Cir. Oct. 17, 2018) (link to slip op.).

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CAAF decided the Air Force case of United States v. Barker, 77 M.J. 377, No. 17-0551/AF (CAAFlog case page) (link to slip op.), on Monday, May 21, 2018. Reviewing a written statement from a child pornography victim that was admitted during the sentencing phase of a court-martial under Rule for Courts-Martial 1001A – the President’s implementation of the Article 6b right of an alleged victim to be reasonably heard – CAAF concludes that the statement was not admissible under that rule because the victim did not actually participate in the proceeding (and perhaps didn’t even know about the appellant’s prosecution). Nevertheless, the court concludes that the erroneous admission of the statement was harmless because the appellant pleaded guilty and was sentenced by a military judge alone, the defense sentencing case was weak, and the prosecution’s sentencing case was otherwise strong. Accordingly CAAF affirms the findings, sentence, and decision of the Air Force CCA.

Judge Ryan writes for the court joined by all but Chief Judge Stucky, who dissents (because he would find the issue waived by the pretrial agreement).

Airman First Class (E-3) Barker pleaded guilty, pursuant to a pretrial agreement, to possession and viewing child pornography. A general court-martial composed of a military judge alone sentenced Barker to confinement for 30 months, reduction to E-1, total forfeitures, and a bad-conduct discharge.

During the sentencing phase of the court-martial the prosecution offered an exhibit consisting of three victim-impact letters dated December 2011, January 2013, and September 2013. All of the letters pre-dated Barker’s offenses. The defense made numerous objections to admission of the letters, but the military judge admitted the exhibit in its entirety.

On appeal, the Air Force CCA considered the letters under two different rules: R.C.M. 1001(b)(4), which allows the prosecution to present evidence in aggravation, and R.C.M. 1001A, which implements a crime victim’s Article 6b(a)(4)(B) “right to be reasonably heard at . . . [a] sentencing hearing relating to the offense.” The CCA found (in a published decision analyzed here) that “[w]hile the Prosecution did not indicate whether they were offering the statements under R.C.M. 1001(b)(4) or R.C.M. 1001A(e), both the trial defense counsel and the military judge treated the Prosecution’s offer as a victim exercising her right to be reasonably heard under R.C.M. 1001A.” United States v. Barker, 76 M.J. 748, 754 (A.F. Ct. Crim. App. 2017). The CCA then found that the December and September statements “lacked any evidence that would have permitted the military judge to determine that they were authentic and, if authentic, relevant to Appellant’s court-martial.” 76 M.J. at 756. The January statement, however, “indicated that it was written by the victim of the ‘Vicky series’ child pornography, one video of which Appellant downloaded.” Id. at 756. Accordingly, the CCA found that the January statement was admissible under R.C.M. 1001A, but the December and September statements were not. Nevertheless, the CCA concluded that the improperly-admitted statements were harmless because “all three statements were from the same victim.” Id. at 757.

CAAF then granted review of two issues challenging the CCA’s conclusion that the January statement was admissible and the improper consideration of the other statements was harmless:

I. Whether the Court of Criminal Appeals erred when it held proper foundation had been laid to admit evidence in aggravation.

II. Whether the Court of Criminal Appeals improperly conducted a review of the prejudice resulting from the military judge’s erroneous admission of evidence in aggravation.

Writing for the majority, Judge Ryan concludes that the January statement was not admissible as a statement of a crime victim under R.C.M. 1001A (and does not address whether it might have been admissible as evidence in aggravation under R.C.M. 1001(b)(4) because that issue was not before the court). But the majority concludes that the erroneous admission of the statement was harmless.

Chief Judge Stucky dissents – even though he agrees with the majority’s conclusions that the statement was improperly admitted under R.C.M. 1001A but was harmless – because he finds that a term of the pretrial agreement served to waive this issue and precludes Barker from raising it on appeal. Accordingly, Chief Judge Stucky would would vacate the grant of review as being improvidently granted.

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Monday’s daily journal has this entry:

No. 18-0228/AR. United States, and ST, Appellees v. Colby Morris, Appellant. CCA 20180088. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

The filing involves a petition for extraordinary relief in the nature of a writ of mandamus that was granted by the Army CCA last month, in United States and ST v. Lieutenant Colonel Shahan, Military Judge, and Morris, No. 20180088 (A. Ct. Crim. App. Apr. 18, 2018) (link to slip op. (on CAAFlog)).

Last year, in a case with a similar (but different in a significant way) procedural posture, CAAF ruled 3-2 that it lacks jurisdiction to consider a writ-appeal of a CCA’s action on an alleged victim’s Article 6b writ peition. See Randolph v. HV and United States, 76 M.J. 27 (C.A.A.F. Feb. 2, 2017) (CAAFlog case page).

But this writ-appeal is different because the petition was brought by both the prosecution and the alleged victim; “pursuant to the All Writs Act, 28 U.S.C. § 1651 and Article 6b, Uniform Code of Military Justice, 10 U.S.C. § 806b.” Slip op. at 1 (emphasis added). So it’s a hybrid petition, and jurisdiction may exist under Article 66 (for the CCA) and Article 67 (for CAAF), and not merely under Article 6b.

The case also raises an interesting question about Mil. R. Evid. 412, the military’s rape shield rule.

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Article 6b states that a crime victim has a “right to be reasonably heard at . . . [a] sentencing hearing relating to the offense.” Article 6b(a)(4)(B). It does not, however, say precisely how the victim may be heard.

Article 42(b) states that “each witness before a court-martial shall be examined on oath.”

R.C.M. 1001A states that a victim may make a sworn or unsworn statement during the sentencing phase of the court-martial “independent of whether the victim testified during findings or is called to testify [in sentencing].” R.C.M. 1001A(a).

In United States v. Hamilton, 77 M.J. 579, No. 39085 (A.F. Ct. Crim. App. Dec. 20, 2017) (en banc) (link to slip op.), the Air Force CCA reconciles the Article 42(b) requirement for testimony under oath with the Article 6b(a)(4)(B) right to be heard in sentencing and concludes:

unsworn victim impact statements offered pursuant to R.C.M. 1001A are not evidence. See also United States v. Provost, 32 M.J. 98, 99 (C.M.A. 1991) (if an accused elects to make an unsworn statement, he is not offering evidence). Both R.C.M. 1001(c)(2)(C) and R.C.M. 1001A(e) allow facts in an unsworn statement to be contradicted or rebutted. This does not change the character of the right to speak.

Slip op. at 5 (emphasis added). Furthermore, because a victim’s unsworn statement is not evidence, the Military Rules of Evidence (including the balancing test in Mil. R. Evid. 403) “do not apply to victim unsworn statements.” Slip op. at 9.

The majority specifically “does not address the application of the Mil. R. Evid. to sworn victim impact statements.” Slip op. at 5 n.3.

The conclusion that an unsworn statement from a victim is not evidence is consistent with precedent explaining that an accused’s unsworn statement “is not evidence.” United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011) (quoting United States v. Breese, 11 M.J. 17, 23 (C.M.A. 1981)) (last discussed here). But it is not unanimous. Three judges dissent, with Senior Judge Harding writing:

As R.C.M. 1001A victim statements, sworn or unsworn, are presented to the court-martial for use and consideration on the determination of sentence, in addition to empowering a victim to speak, I would treat them as sentencing “evidence” by any other name and follow the Military Rules of Evidence, absent an exception otherwise provided.

Slip op. at 15 (Harding, S.J. dissenting).

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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.

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Last year, in EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page), a unanimous CAAF found no jurisdiction under Article 6b to entertain a writ-appeal by an alleged victim who sought to reverse a military judge’s order for disclosure of portions of her mental health records. The NMCCA had denied the writ petition summarily (order available here).

I just discovered that the alleged victim then sought collateral review in U.S. District Court, asking for a writ of mandamus to reverse the military judge’s order. On October 5, 2016, in an order available here, Judge John A. Mendez dismissed the case on the basis that “the United States has not waived its sovereign immunity.” Order at 3.

EV appealed that order to the Ninth Circuit, where the case is still pending (docket number 16-16975).

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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).

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In J.M. v. Payton-O’Brien and Ravenscraft, 76 M.J. 782, No. 201700133 (N-M. Ct. Crim. App. Jun 28, 2017) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA grants an alleged victim’s Article 6b petition for a writ of mandamus and reverses the military judge’s ruling that ordered disclosure of portions of her mental health records to the defense.

The military judge’s ruling was based on “the now-excised, constitutional[ly-required] exception to the psychotherapist-patient privilege,” Mil. R. Evid. 513. Slip op. at 2. The CCA rejects application of this former exception, concluding that an order for production or release of privileged records must be based on an actual, enumerated exception to the rule. However, the CCA finds that the military judge may take other actions to protect an accused’s constitutional rights.

Writing for the panel, Judge Jones explains that:

a military judge may not order production or release of MIL. R. EVID. 513 privileged communications when the privilege is asserted by the holder of the privilege unless the requested information falls under one of the enumerated exceptions to the privilege listed in MIL. R. EVID. 513(d). However, when the failure to produce said information for review or release would violate the Constitution, military judges may craft such remedies as are required to guarantee a meaningful opportunity to present a complete defense.

Slip op. at 2. Such other remedies could include an order to:

(1) strike or preclude all or part of the witness’s testimony;

(2) dismiss any charge or charges, with or without prejudice;

(3) abate the proceedings permanently, or for a time certain to give the witness an opportunity to reconsider; or

(4) declare a mistrial.

Slip op. at 15 (paragraphing added).

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CAAF decided the Coast Guard case of Randolph v. HV and United States, 76 M.J. 27, No. 16-0678/CG (CAAFlog case page) (link to slip op.), involving a writ-appeal filed by an accused, on Wednesday, February 2, 2017. Sharply divided, the court narrowly concludes that it does not have jurisdiction to review an interlocutory decision by a Court of Criminal Appeals rendered under the victim-focused Article 6b when the accused seeks such review and regardless of how the accused seeks such review. Accordingly, a three-judge majority dismisses the writ-appeal petition.

Judge Stucky writes for the court, joined by Judges Ryan and Ohlson. Judge Ryan also writes a separate concurring opinion. Chief Judge Erdmann dissents, joined by Judge Sparks who also files a separate dissenting opinion.

The writ-appeal challenged 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 an Article 6b petition for mandamus filed by HV, who is the alleged victim in a case against the petitioner, Coast Guard Damage Controlman Second Class (E-5) Randolph. Article 6b – our #6 Military Justice Story of 2016 – is known as the Military Crime Victims’ Rights Act, because its provisions generally mirror those of the federal Crime Victims’ Rights Act, 18 U.S.C. § 3771. Among those provisions is one allowing an alleged victim to appeal a trial-stage ruling that affects the victim’s rights, and HV used that provision to win additional protections from the CCA for her mental health records.

Randolph 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 communications” protected by MRE 513 includes records of diagnosis.

Implicit in the specified issue was the fact that last year, in EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page), a unanimous CAAF found that it has no jurisdiction under Article 6b to entertain a writ-appeal by an alleged victim. In Randolph, CAAF wondered if an accused is similarly deprived of the opportunity for review.

Judge Stucky answer this question in the affirmative, concluding that:

the same analysis applies to Appellant’s petition. Article 6b expressly provides that enumerated victims’ rights can be enforced through a writ of mandamus obtained at a Court of Criminal Appeals. There is no mention of additional appellate rights for the accused, or of a grant of jurisdiction to this Court. Accordingly, we lack jurisdiction to consider Appellant’s petition.

Slip op. at 4 (citations omitted). A footnote adds this bit of rhetoric:

it makes no sense to allow the accused to utilize Article 6b, a victim’s statute, to go where the victim may not.

Slip op. at 6 n.2.

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Many call Article 6b of the UCMJ the Military Crime Victims’ Rights Act, because its provisions generally mirror those of the federal Crime Victims’ Rights Act, 18 U.S.C. § 3771.

Enacted as part of the 2013 changes to the UCMJ, and then modified the following year, the scope and reach of Article 6b is still somewhat unsettled. While not limited to alleged victims of sex crimes, Article 6b is most often invoked in such cases because Congress mandated creation of Special Victims’ Counsel programs in 10 U.S.C. § 1044e and the statute only makes those services available to “the victim of an alleged sex related offense.” Those counsel are authorized to assist alleged victims in a far-reaching set of circumstances, and they have brought a measure of chaos to courts-martial by demanding discovery, filing motions, and occasionally even sitting at a third table during proceedings while avoiding the requirements placed on actual parties to the case.

But 2016 brought some clarity to Article 6b.

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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.

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Earlier this year, in the Marine Corps case of 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 by an alleged victim who sought to reverse a military judge’s order for disclosure of portions of her mental health records. Article 6b(e) gives an alleged victim the right to petition a court of criminal appeals for mandamus to enforce various protections, but CAAF determined that the review ends at the CCA.

Subsequently, in  H.V. v. Commander Kitchen, Military Judge, and Randolph, Real Party in Interest, 75 M.J. 717, Misc. Docket No. 001-16 (C.G. Ct. Crim. App. Jul. 8, 2016) (discussed here), the Coast Guard CCA expanded Mil. R. Evid. 513 (the psychotherapist-patient privilege) to also include the psychotherapist’s conclusions (diagnoses) and resulting treatments. The Coast Guard court’s decision was issued under Article 6b(e), and I noted CAAF’s limited jurisdiction at the time, writing:

Another interesting twist is CAAF’s limited jurisdiction to review this decision. CAAF just recently determined that it does not have jurisdiction over Article 6b petitions. See EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page). However, the accused could seek a writ himself challenging the military judge’s application of the CCA’s decision, and that writ could even be sought directly from CAAF. See CAAF R. 4(b). Alternatively, the military judge could apply the CCA’s decision, the accused could be convicted, and CAAF could review the decision in the ordinary course of appeal. Cf. United States v. Cote, 72 M.J. 41 (C.A.A.F. 2013) (CAAFlog case page) (CAAF declined an interlocutory challenge to the AFCCA’s reversal of a military judge’s suppression ruling, but then reinstated the suppression ruling on appeal after conviction).

The accused, however, didn’t file an original writ. Rather, he filed a writ-appeal with CAAF (petition discussed here).

Last Friday, CAAF ordered briefs on the question of whether it has jurisdiction to review the accused’s appeal:

No. 16-0678/CG. Thomas J. Randolph, Appellant v. HV., Appellee and United States, Respondent. CCA 001-16. On further consideration of the writ-appeal petition from the decision of the United States Coast Guard Court of Criminal Appeals rendered pursuant to Article 6b, Uniform Code of Military Justice, it is ordered that the Appellant and Appellee submit briefs on the following specified issue:

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.

It is further ordered that the United States be substituted for the military judge as a party respondent, that the United States submit a brief on Issue II in the writ-appeal petition and on the issue specified in this Order, that the Appellate Government and Appellate Defense Divisions of the Army, Navy-Marine Corps and Air Force are invited to submit amicus curiae briefs on the issue specified in this Order, that all briefs mentioned in this Order be filed on or before September 30, 2016, and that oral argument will be heard on October 11, 2016, as previously scheduled. Appellant, Appellee, and the United States will each be allotted 20 minutes to present oral argument.

Yesterday CAAF was asked to review the Coast Guard CCA’s decision in H.V. v. Commander Kitchen, Military Judge, and Randolph, Real Party in Interest, 75 M.J. 717, Misc. Docket No. 001-16 (C.G. Ct. Crim. App. Jul. 8, 2016) (discussed here):

No. 16-0678/CG. Thomas J. Randolph, Appellant v. H.V., Appellee v. Cassie A. Kitchen, Commander, U.S. Coast Guard Military Judge, Respondent Below. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Coast Guard Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

The CCA’s decision in H.V. expanded the scope of Mil. R. Evid. 513 (the psychotherapist-patient privilege) to include “the psychotherapist’s conclusions (diagnoses) and resulting treatments.” Slip op. at 3.

The CCA’s involvement in the case, however, was upon a petition for a writ of mandamus made by the alleged victim. Such a writ petition is allowed by Article 6b(e) as amended by the FY15 National Defense Authorization Act (discussed here). Yet CAAF lacks jurisdiction for further appeal because Congress narrowly tailored the statute. See EV v. United States & Martinez, 75 M.J. 331, No. 16-0398/MC (C.A.A.F. Jun. 21, 2016) (CAAFlog case page).

The caption of the writ-appeal filed yesterday at CAAF (identifying the accused as the appellant and the alleged victim as the appellee) suggests to me that the appeal is of the CCA’s decision on the 6b(e) petition and not on a separate writ petition made by the accused himself. If that’s correct, then I suspect the writ-appeal will be dismissed for lack of jurisdiction.

That’s not to say that the accused is without options; he could seek his own writ from the CCA and then appeal that to CAAF. However, that does not seem to be what’s happening now.