CAAFlog » Extraordinary Relief

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 As originally enacted, the statute had four sections (paragraphs (a-d)), the first of which outlined eight rights of a victim.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, __ M.J. __, 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 Lewis v. United States, __ M.J. __, No. 2017-05 (A.F. Ct. Crim. App. Sep. 20, 2017) (link to slip op.), Senior Judge Johnson writes for a three-judge panel of the Air Force CCA and denies a petition for extraordinary relief in the nature of a writ of coram nobis.

The petition is based on CAAF’s decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), holding that charged offenses may not be used for propensity purposes under Mil. R. Evid. 413. The petitioner was convicted of numerous sexual offenses at a general court-martial during which the military judge allowed charged offenses to be used for propensity purposes, and the Air Force CCA affirmed the convictions in 2014. United States v. Lewis, No. 38321 (A.F. Ct. Crim. App. 9 Oct. 2014) (link to slip op.), pet. denied, 74 M.J. 263 (C.A.A.F. 2015). The extraordinary relief petition seeks retroactive application of Hills to the case.

The approved sentence, however, included confinement for nine years and the petitioner is still confined, creating a significant hurdle to coram nobis relief. There are six threshold requirements for a coram nobis petition:

(1) the alleged error is of the most fundamental character;

(2) no remedy other than coram nobis is available to rectify the consequences of the error;

(3) valid reasons exist for not seeking relief earlier;

(4) the new information presented in the petition could not have been discovered through the exercise of reasonable diligence prior to the original judgment;

(5) the writ does not seek to reevaluate previously considered evidence or legal issues; and

(6) the sentence has been served, but the consequences of the erroneous conviction persist.

Slip op. at 4-5 (citing United States v. Denedo, 66 M.J. at 113, 126 (C.A.A.F. 2008), aff’d, 556 U.S. 904 (2009)) (paragraphing added). Senior Judge Johnson explains that the second and sixth requirements aren’t satisfied in this case:

Petitioner remains in confinement; therefore, coram nobis is not the sole remedy available to him because he is eligible to seek a writ of habeas corpus from a federal district court. Similarly, Petitioner has failed to demonstrate his sentence to nine years of confinement has been served.

Slip op. at 5.

But Senior Judge Johnson also considers the underlying error, concluding that the “petition would fail on the issue of retroactive application of Hills.” Slip op. at 6.

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In 1988 Specialist Ronald Gray, U.S. Army, was convicted of the premeditated murder of two women, the attempted premeditated murder of a third woman, three specifications of rape, two specifications of robbery, two specifications of forcible sodomy, and also of burglary and larceny, contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation.

The members sentenced Gray to death, a dishonorable discharge, total forfeitures, and reduction to E-1. He is one of only four prisoners on military death row, our #2 Military Justice Story of 2016 (the others are Hennis, Akbar, and Hasan; Witt is pending a sentence rehearing that could return him to death row; Loving’s capital sentence was commuted).

Prior to Gray’s court-martial, in a wholly separate North Carolina proceeding, Gray pleaded guilty to the murder and rape of two additional women, and other offenses, for which he received three consecutive life sentences and five concurrent life sentences.

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