Opinion Analysis: CAAF closes all doors for review of Article 6b decisions in Randolph v. HV and United States, No. 16-0678/CG
CAAF decided the Coast Guard case of Randolph v. HV and United States, __ M.J. __, 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.