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In a published order in H.V. v. Commander Kitchen, Military Judge, and Randolph, Real Party in Interest, __ M.J. __, Misc. Docket No. 001-16 (C.G. Ct. Crim. App. Jul. 8, 2016) (link to order), a three-judge panel of the Coast Guard Court of Criminal Appeals holds that Mil. R. Evid. 513 (the psychotherapist-patient privilege) extends “to the psychotherapist’s conclusions (diagnoses) and resulting treatments.” Order at 3.

The privilege states that:

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the Uniform Code of Military Justice, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.

Mil. R. Evid. 513(a).

H.V. is a member of the Coast Guard and an alleged victim in a court-martial. The defense moved to compel production of her mental health records. Considering the motion the military judge, Commander Kitchen, determined that Mil. R. Evid. 513 does not apply to “the disclosure of dates on which a patient was treated, the identity of the provider, the diagnostic code, or the therapies used,” and accordingly ordered production of H.V.’s mental health records:

limited to ONLY those portions indicating a psychiatric diagnosis (as this phrase is used in the DSM-5), the date of such diagnosis, any medications prescribed, the duration prescribed medications were to be taken, type of therapies used, and the resolution of the diagnosed psychiatric condition, if applicable.

Order at 2 (quoting military judge’s ruling). H.V., however, does not want even these records disclosed, and so she sought a writ of mandamus under Article 6b from the CCA to compel the military judge to apply the privilege to these records.

In what I believe is a case of first impression, the panel of the Coast Guard CCA splits 2-1 to grant the writ and expand the privilege, with Chief Judge McClelland writing for the majority and Judge Bruce dissenting.

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In a published decision in United States v. Latour, __ M.J. __, No. 201600114 (N.M. Ct. Crim. App, Jul 12, 2016) (link to slip op.), a three-judge panel of the NMCCA rejects a Government appeal under Article 62 of a military judge’s ruling that excluded the accused’s admissions for lack of corroboration.

Confessions, and the corroboration rule (Mil. R. Evid. 304(c)), were our #10 Military Justice Story of 2015, and the corroboration rule was changed (significantly relaxed) in this year’s amendments to the Manual for Courts-Martial. However, Latour involves the old rule because the accused was arraigned before the change.

The accused is charged with four specification of sexual assault. Two of those specification allege that he penetrated the alleged victim’s vulva with his penis and with his finger, both while she was incapable of consenting due to impairment by a drug, intoxicant, or other similar substance.

The admissions requiring corroboration are the accused’s statement to the Naval Criminal Investigative Service in which he admitted to the penetrations but asserted that they were consensual, and the accused’s text message to the alleged victim that, “[w]e made whoopy lol.” Slip op. at 2-3 (marks in original).

However, “no witness, including [the alleged victim], testified to observations, physical sensations, or injuries that corroborated sexual activity. Investigators found no physical evidence of sexual activity, whether DNA or a condom wrapper.” Slip op. at 13. Accordingly, the military judge prohibited the prosecution from introducing the admissions, leading to the appeal.

In affirming the military judge’s ruling, the CCA rejects three arguments advanced by the Government.

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In the Air Force case of United States v. LaBella, 75 M.J. 52 (C.A.A.F. Dec. 11, 2015) (CAAFlog case page), a unanimous CAAF held that the Air Force Court of Criminal Appeals lacked jurisdiction to grant the appellant’s petition for reconsideration that was filed after the time for filing a petition for review by CAAF had expired.

The petition for reconsideration was filed after the appellant’s detailed Air Force appellate defense counsel failed to seek CAAF review before expiration of the 60-day deadline, and also failed to seek reconsideration from the CCA within the 30 day time period for seeking reconsideration (which would have reset the 60 day clock to petition CAAF). Instead, after a change in counsel, an out-of-time petition for reconsideration was submitted to the AFCCA in December 2014. The CCA allowed the petition but affirmed its prior decision that affirmed the findings and sentence. The appellant then petitioned CAAF, leading to the court’s December decision finding that the CCA did not have jurisdiction to allow the petition.

After CAAF’s decision, the appellant petitioned the AFCCA for a writ of error coram nobis asserting that his appellate counsel provided ineffective assistance of counsel by failing to timely petition CAAF. In an order issued last week and available here, the AFCCA denied the petition:

As Petitioner’s alleged deficient performance was the failure of counsel to file a timely appeal to the CAAF, to demonstrate prejudice, Petitioner must be able to demonstrate a reasonable probability that our superior court would have provided relief if the petition was submitted within the statutory window. For the reasons set forth in our prior opinion, we remain unpersuaded that Appellant is entitled to relief. See Labella, ACM 37679 (rem); see also United States v. Piolunek, 74 M.J. 107 (C.A.A.F. 2015) (affirming a general verdict of possessing and receipting child pornography when only 19 of the 22 images admitted by the government as evidence as to this offense constituted child pornography).

Petitioner, in his writ to this court, has not identified, and we have not found, any additional basis for relief as to the issues that he desired our superior court consider on further appeal.

Slip op. at 5. A footnote adds:

In so concluding, however, we understand that Petitioner may now appeal this writ to the United States Court of Appeals for the Armed Forces (CAAF). Compare Denedo, 556 U.S. 904, 915 (2009) (“Because the [service court] had jurisdiction over respondent’s petition for coram nobis, the CAAF had jurisdiction to entertain respondent’s appeal from the [service court]’s judgment.”) with Rittenhouse v. United States, 69 M.J. 174 (C.A.A.F. 2010) (declining a writ of error coram nobis submitted directly to the CAAF).

The deadline to file such an appeal is 20 days from the date of service of the CCA’s decision on the writ petition. C.A.A.F. R. 19(e) (2016).

Readers may recall that the last military case decided by the Supreme Court – United States v. Denedo, 556 U.S. 904 (2009) – ended when Denedo’s counsel missed this same 20-day deadline to file a writ-appeal (discussed here).

Update: The opinion in Tevelein II now appears on the CGCCA’s website as a published decision.

Two weeks ago, in United States v. Tevelein, CGCMS 24465, No. 002-69-13 (C.G. Ct. Crim. App. Jun. 29, 2016) (en banc op. on recon.) (Tevelein II) (link to slip op.) (mirror link), the Coast Guard CCA granted a Government request for reconsideration and reversed the original decision in the case that was issued by a three-judge panel of the court way back in 2013. See United States v. Tevelein, CGCMS 24465, No. 002-69-13 (C.G. Ct. Crim. App. Sep. 6, 2013) (Tevelein I) (link to slip op.) (mirror link). The unpublished opinion on reconsideration also reverses a 2013 published decision of the court regarding the language required to properly charge a violation of Article 134 for conduct not enumerated as an offense in the Manual for Courts-Martial (a novel specification). See United States v. Hughey, 72 M.J. 809 (C.G. Ct. Crim. App. 2013) (discussed here).

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In a published decision in United State v. Vidal, __ M.J. __, No. 20130892 (A. Ct. Crim. App. Jun. 21, 2016) (link to slip op.), a three-judge panel of the Army CCA orders a DuBay hearing to determine whether the appellant’s civilian appellate defense counsel has a conflict of interest.

A general court-martial composed of members with enlisted representation convicted Staff Sergeant Vidal, contrary to his pleas of not guilty, of numerous offenses in connection with a single sexual encounter in Afghanistan involving two junior soldiers, one male (SPC JA) and the other female (SPC JO). Vidal was sentenced to confinement for 15 years, reduction to E-1, total forfeitures, and a dishonorable discharge. The other male soldier, SPC JA, was a co-accused (both were accused of sexually assaulting SPC JO), and was administratively discharged in lieu of trial by court-martial after Vidal’s trial concluded.

The civilian counsel representing Vidal on appeal did not represent him at trial, but did represent SPC JA and successfully obtained the administrative discharge for SPC JA. The civilian then undertook representation of Vidal for post-trial matters and for appeal, first seeking a post-trial administrative discharge for Vidal and then arguing on appeal that Vidal received ineffective assistance of counsel at trial. The ineffective assistance claim was based upon the failure of Vidal’s trial defense counsel to seek SPC JO’s (the alleged victim’s) mental health records that were – the appeal asserts – completely exculpatory and instrumental in obtaining the administrative discharge. However, the civilian attorney had knowledge of the contents of the records (from his representation of the co-accused) but seemingly did not make full use of that knowledge during his post-trial representation of Vidal.

Accordingly, the CCA finds that:

[B]y arguing that the trial defense counsel was ineffective and lost appellant’s chance at an administrative discharge, it appeared he was also arguing his own ineffectiveness during post-trial representation of appellant. This presented us with what appeared to be a conflict of interest.

Slip op. at 5.

Significantly, the opinion “only attempts to identify potential conflicts of interest,” and the CCA observes that “nothing in this opinion should be construed as a finding of misconduct.” Slip op. at 11 n.7 (emphasis in original).

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In a published opinion in United States v. Williams, __ M.J. __, No. 20140401 (A. Ct. Crim. App. Mar. 30, 3016) (link to slip op.), a three judge panel of the Army CCA splits 2-1 to hold that the offense of indecent exposure in violation of Article 120(n) (2006) and 120c(c) (2012) does not include showing a person a photograph or digital image of one’s genitalia.

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In United States v. Buford, No. 2016-04 (A.F. Ct. Crim. App. Jun. 9, 2016) (link to slip op.), a three-judge panel of the Air Force CCA grants a Government appeal under Article 62 and reverses the suppression of the accused’s statement to criminal investigators, concluding that the military judge made incomplete findings of fact regarding the accused’s invocation of his right to a lawyer. Writing for the panel, Judge Brown vacates the suppression remands and remands the case for further proceedings. However, one member of the panel, Judge Dubriske, dissents in part, and would hold that that the military judge’s findings were clearly erroneous and that any request the accused made for an attorney was ambiguous.

In a published opinion issued Tuesday and captioned In re: United States v. Roberts, __ M.J. __, No. 201600119 (N.M. Ct. Crim. App. Jun. 28, 2016) (link to slip op.), the NMCCA grants a Government petition for extraordinary relief in the form of a writ of mandamus to prohibit the military judge from allowing the defense to introduce evidence of general military character in his defense of the charge of sexual assault in violation of Article 120(b) (2012).

Such evidence used to be permitted in any case, in accordance with longstanding precedent. In 2014, however, Congress mandated changes to this practice, restricting when such character evidence may be offered. The change was our #1 Military Justice Story of that year.

In Roberts, the military judge found that the 2014 change did not apply to the case because its effective date (June 17, 2015; Executive Order 13696)  was after the date of the alleged offenses, and also that application of the change to his case violates the ex post facto clause of the Constitution. The Government then sought extraordinary relief to reverse the military judge’s ruling. The NMCCA grants the relief, reversing the military judge.

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In an unpublished, per curiam opinion in United States v. Castillejo, No. 20130507 (A. Ct. Crim. App. Jun. 20, 2016) (link to slip op.), a three-judge panel of the Army CCA reverses the appellant’s convictions of sexual assault and abusive sexual contact because:

During appellant’s trial the government played certain portions of the appellant’s interview with a U.S. Army Criminal Investigation Command (CID) Special Agent (SA). These excerpts were played for the panel without ever being admitted into evidence.

Slip op. at 2.

The defense did not object, but the CCA finds plain and obvious error, and prejudice:

Clearly the members were expected to consider the recording of the accused’s statement as evidence, and the only reason the members did not have access to the video during deliberations was due to technical insufficiencies in the government’s software. The substance of the video was likely highly prejudicial to the outcome of the trial. While it is not clear precisely what portions of the DVD were played before the panel, it is evident from the record that significant portions of the appellant’s interview with CID were played. This video was also referenced throughout the entire trial, and trial counsel referred to it as evidence for the panel to consider in its deliberations. Furthermore, despite acknowledging that the video statement was published to the panel but never admitted into evidence, the military judge gave no curative instruction to the panel. Accordingly, we cannot be reasonably confident that the accused was convicted on the basis of the evidence alone.

Slip op. at 4.

The CCA authorizes a rehearing.

In my article Consent and Mistake of Fact as to Consent: Defenses to Adult Sexual Offenses under the Uniform Code of Military Justice, 2014 Emerging Issues 7277 (2014) (discussed here), I analyzed the difference between a defense and an affirmative defense:

There is a significant difference between a defense and an affirmative defense (also called a “special defense” in military practice). A defense denies commission of an act that constitutes an element of the charged offense. An affirmative defense does not “deny[] that the accused committed the objective acts constituting the offense charged [but instead] denies, wholly or partially, criminal responsibility for those acts.” R.C.M. 916(a). Put differently, a defense disproves an element while an affirmative defense addresses something that isn’t an element but nevertheless avoids criminal responsibility. For example, it is a defense that an accused did not kill a victim, while it is an affirmative defense that even though an accused did kill a victim, the killing was done in self-defense.

In a recent decision in United States v. Teague, __ M.J. __, No. 20140394 (A. Ct. Crim. App. Mar. 15, 2016) (link to slip op.), the Army CCA notes this difference in rejecting the appellant’s appellate claim that the Government failed to disprove the affirmative defense of mistake of fact as to consent to his conviction for sexual assault of an incapacitated person in violation of Article 120(b) (2012). However, the statute requires that the prosecution prove, as an element of the offense, that the incapacity of the victim be “known or reasonably should be known by the [accused].” Article 120(b)(3)(A). Accordingly:

If the government proves that an accused had actual knowledge that a victim was incapable of consenting, then, by definition, such an accused could not simultaneously honestly have believed that the victim consented. Similarly, if the government proves that an accused should have reasonably known that a victim was incapable of consenting, the government has also proven any belief of the accused that the victim consented was unreasonable.

Slip op. at 3. Put differently:

[A] mistake of fact defense is “baked in” to the elements of the offenses themselves. If, by way of example, the offense requires only that an accused commit a sexual act with someone who was incapable of consenting, it would be an affirmative defense that the accused honestly and reasonably believed the person was capable of consenting. By requiring the government prove that appellant knew, or reasonably should have known that AC was incapable of consenting, the government was required to disprove any defense of mistake of fact appellant may have had with regards to AC’s ability to consent.

Slip op. at 4. The CCA finds the evidence sufficient to sustain the appellant’s conviction.

In a published decision in United States v. Meador, 75 M.J. 682, No. 20160419 (C.G. Ct. Crim. App. Apr. 19, 2016) (link to slip op.), a three-judge panel of the Coast Guard CCA grants a Government appeal and reverses the military judge’s ruling that dismissed a charge because the Article 32 Preliminary Hearing Officer (PHO) found that probable cause did not exist. Writing for the panel, Judge Judge holds that:

The statutory scheme does not make the PHO’s determination as to probable cause binding on the SJA or the convening authority (CA).

Slip op. at 2. The case involves the same military judge, and the CCA’s decision is authored by the same appellate military judge, as in the CCA’s recent decision in United States v. Mercier, 75 M.J. 643, No. 20160318 (C.G. Ct. Crim. App. Mar. 18, 2016) (discussed here), in which the CCA held that the Government must present some evidence to support a Staff Judge Advocate’s Article 34(a)(2) determination that s specification is warranted by the evidence.

In Meador, comparing the text of Article 32 to that of Article 34, Judge Judge finds that:

There is nothing in this statutory scheme that makes a determination of probable cause by the PHO a precondition of referral to a general court-martial, nor is there any language making the PHO’s determination binding on the SJA or the CA. By contrast, the SJA’s advice is a clear precondition of referral to a general court-martial. The statutory language consequently provides no support for the proposition that the PHO’s determination of probable cause is dispositive.

Slip op. at 3.

In an unpublished decision in United States v. Marsh, No. 38688 (A.F. Ct. Crim. App, Apr. 19, 2016) (link to slip op.), a three-judge panel of the Air Force CCA rejects an appellant’s claim that the military judge should have sua sponte recused herself because of her hostility toward his civilian defense counsel. Specifically, the appellant asserted that:

the military judge took a hostile tone toward his civilian defense counsel, especially when compared to her discussions with the trial counsel. Appellant bases his assertion on the military judge electing to hold his civilian defense counsel in contempt, while not taking a similar action against the trial counsel.

Slip op. at 3 (emphasis added). The civilian counsel is not identified in the CCA’s opinion and no punishment was imposed in connection with the finding.

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In United States v. Mercier, 75 M.J. 643, No. 20160318 (C.G. Ct. Crim. App. Mar. 18, 2016) (link to slip op.), a three-judge panel of the court denies a Government interlocutory appeal of a military judge’s ruling that found that a specification was improperly referred and dismissed the specification without prejudice.

The specification at issue alleges a violation of Article 134 by communicating certain indecent language to a civilian woman. The woman did not participate in the Article 32 preliminary hearing, and the preliminary hearing officer’s report concluded that there was no probable cause to believe that the accused communicated the language because of the lack of evidence. Nevertheless, the convening authority’s staff judge advocate recommended referral of the charge on the basis that “the specification is supported by the expected testimony of Ms. C.M.” Slip op. at 2.

The specification was referred to a general court-martial, the accused objected, and the military judge agreed:

On November 25, 2015, the defense moved to dismiss Specification 6 of Charge II, arguing that (1) since no probable cause existed to support Charge II, specification 6, referral to a general court-martial violated the accused’s right to due process; and (2) that the Article 34 advice was misleading in that it stated that the charges were “warranted by the evidence indicated in [the PHO’s report].” A hearing on the defense’s motion was held on 14 December 2015. The military judge granted the defense’s motion on January 5, 2016, dismissing Specification 6 of Charge II. The military judge also held that “even if a determination by the PHO that probable cause exists is not a necessary precondition to referral to a GCM . . . to the extent the Article 34 advice relied on evidence not before the PHO, it is defective.”

Slip op. at 3 (omission in original).

Judge Judge, writing for the CCA, addresses only the military judge’s conclusion that the staff judge advocate’s advice was defective because it relied on expected testimony that was not part of the preliminary hearing report, concluding that “the Article 34 advice was therefore defective.” Slip op. at 5.

This conclusion involves two significant holdings.

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R.C.M. 1001(b)(2) permits Government counsel to introduce documents from an accused’s service record during the sentencing phase of a court-martial to prove “the accused’s marital status; number of dependents, if any; and character of prior service.”

But in United States v. Ponce, __ M.J. __, No. 20140556 (A. Ct. Crim. App. Mar. 11, 2016) (link to slip op.), the Government was allowed to introduce (over defense objection) the appellant’s entire official military personnel file (OMPF), including:

appellant’s United States Office of Personnel Management Standard Form 86, Questionnaire for National Security Positions (revised September 1995) . . . In response to questions on the SF 86, appellant listed offenses he had been arrested for, charged with, or convicted of, and described his experimental use and possession of illegal drugs. All incidents and activities appellant entered on the SF 86 predated his military service, and several entries involved juvenile misconduct.

Slip op. at 2. The CCA finds error:

We hold the military judge erred by admitting the SF 86 included in PE 2 under the facts of this case. Information that is properly maintained in a military personnel record is not automatically admissible under R.C.M. 1001(b)(2).

Slip op. at 5. In particular, the CCA notes that the military judge focused his analysis of the SF 86 on whether it qualified as a business record rather than on whether it was probative of the appellant’s character of prior service as required by the R.C.M.:

In this case, the military judge lost sight of the service connection parameters of R.C.M. 1001(b)(2). In response to defense counsel’s hearsay objection, the military judge erred by exclusively focusing on whether the SF 86 in PE 2 was a business record under Mil. R. Evid. 803(6) that was properly authenticated in compliance with Mil. R. Evid. 902. While R.C.M. 1001(b)(2) provides an opportunity for the government to introduce evidence from appellant’s personnel records regarding his character of prior service, an SF 86 security clearance questionnaire filled with information that predates appellant’s enlistment is not admissible under this rule. The relevance of the SF 86 does not expand to reflect appellant’s military history merely because the document is in his OMPF.

Slip op. at 6.

That’s functionally the conclusion reached by a three-judge panel of the Navy-Marine Corps CCA in United States v. Guin, No. 201500062 (N-M. Ct. Crim. App. Feb. 11, 2016) (link to slip op.).

The appellant was charged with sexual assault and abusive sexual contact, in violation of Article 120(b) and (d) (2012), by committing a sexual act and causing sexual contact with the alleged victim “by causing bodily harm to her.” Slip op. at 4. The bodily harm at issue was the sexual activity itself, as the specifications alleged:

Abusive sexual contact: “Specification 1: Art.120(d): In that [the appellant], did, at or near Juffair, Kingdom of Bahrain, on or about 13 June 2013, cause sexual contact by [MASN LA], to wit: touching his penis with her hand, by causing bodily harm to her, to wit: touching his penis with her hand.”

Sexual assault: “Specification 2: Art. 120(b)(1)(B): In that [the appellant], did, at or near Juffair, Kingdom of Bahrain, on or about 13 June 2013, commit a sexual act upon [MASN LA], to wit: penetrating the vulva of [MASN LA], with his penis by causing bodily harm to her, to wit: penetrating the vulva of [MASN LA], with his penis.”

Slip op. at 4. This is a permissible method of charging these offenses because:

The term ‘bodily harm’ means any offensive touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact.

Article 120(g)(3) (2012). Nevertheless, the appellant moved to dismiss the specifications at trial, asserting that they fail to state offenses. Specifically, the appellant claimed that “by pleading the sexual activity as the basis of the alleged bodily harm, the Government fatally omitted the victim’s lack of consent as a separate element.” Slip op. at 4.

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