CAAF’s daily journal shows the following entry for May 29, 2015:
No. 15-0606/MC. CB, Appellant v. Moira Modzelewski, Captain, U.S. Navy, In her official capacity as Military Judge, and Donald Foster, Lance Corporal U.S. Marine Corps, Real Party in Interest, Appellees.CCA 201500058. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b), together with Appellant’s motion for a stay proceedings, on this date. The Judge Advocate General is directed to appoint counsel to represent the Appellee military judge. The answer is due no later than June 8, 2015.
Captain Modzelewski is a military judge who previously served as Chief Judge of the Navy-Marine Corps Court of Criminal Appeals.
After noting this entry early last week, I submitted a FOIA request to the Navy seeking copies of the pleadings in the case. I have not received a response to that FOIA request. However, I have received a copy of the writ-appeal petition filed at CAAF (without the sealed appendix). The petition is available here.
CB is an alleged victim of sexual assault. Her alleged assailant is a junior enlisted Marine. The petition challenges the military judge’s ruling on M.R.E. 412 issues. Specifically:
Ms. CB respectfully requests that this Court set aside the Trial Court’s rulings made under M.R.E. 4122 and M.R.E. 608(c), and direct the Trial Court to exclude any evidence of previous or subsequent sexual assault incidents unrelated to the present case from being introduced at trial. When the Military Judge ordered Ms. CB to reveal her private Restricted Reports and other reports of sexual assault and allowed these to be utilized as extrinsic impeachment evidence at trial, this violated the M.R.E., constitutional due process, and the right to be treated with fairness and respect for the dignity and privacy of the victim, thus requiring the Trial Court’s ruling be overruled.
Pet. at 4. The petition also notes the following significant finding of fact by the military judge:
At this Motion Session, the Military Judge stated that there was “significant indicia” of falsity regarding Ms. CB’s prior sexual assault incidents.
Pet. at 13.