Argument Preview: An alleged victim tests the limits of military judicial authority in EV v. United States & Martinez, No. 16/0398/MC
The case is a writ-appeal by an alleged victim (EV) who sought extraordinary relief from the Navy-Marine Corps CCA to reverse a military judge’s order for disclosure of portions of her mental health records. Such records are normally privileged from disclosure under Mil. R. Evid 513 (the psychotherapist-patient privilege), however the military judge found that disclosure was required to protect the constitutional rights of the accused (Sergeant Martinez) and also that the crime/fraud exception in Mil. R. Evid. 513(d)(5) applies to the facts of this case. That exception removes the privilege against disclosure for any communications that “clearly contemplate the future commission of a fraud or crime.”
EV filed her petition pursuant to the recently-enacted provision in Article 6b(e), which states that an alleged victim “may petition the Court of Criminal Appeals for a writ of mandamus to require the court-martial to comply with the Military Rule of Evidence.” The NMCCA denied the petition, concluding that EV did not have a clear and indisputable right to reversal of the judge’s order. EV appealed that denial to CAAF, raising three issues that challenge the military judge’s ruling and the NMCCA’s denial of relief. CAAF then specified a fourth issue questioning whether the court has jurisdiction to consider this case:
I. Whether the NMCCA erred by erroneously denying EV’s petition for a writ of mandamus despite EV’s clear and indisputable right to the issuance of a writ.
II. Whether the military judge abused his discretion by erroneously ruling the defense satisfied each prong of Mil. R. Evid. 513(e)(3) and by ruling that Mil. R. Evid. 513(d)(5) applied.
III. Whether the military judge violated EV’s Article 6b rights by erroneously applying impermissible exceptions and denying EV a right to receive notice and to be heard.
IV. (specified by CAAF). Whether the United States Court of Appeals for the Armed Forces has statutory authority to exercise jurisdiction over decisions of the courts of criminal appeals rendered pursuant to Article 6b, UCMJ.