CAAFlog » October 2017 Term » United States v. Chisum

Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Katso, No.17-0326/AF (CAAFlog case page): Oral argument audio.

United States v. Chisum, No.17-0199/AF (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Air Force case of United States v. Chisum, No.17-0199/AF (CAAFlog case page), on Tuesday, December 5, 2017, after the argument in Katso. A single issue questions the military judge’s application of Mil. R. Evid. 513 (the psychotherapist-patient privilege):

Whether the military judge’s failure to conduct an in camera review of the mental health records of AB AK and AB CR deprived Appellant of his right to confront the sole witnesses against him in violation of the Sixth Amendment to the Constitution.

The scope of Mil. R. Evid. 513 has been a hot topic recently (see posts categorized here). Congress ordered modification of the rule the National Defense Authorization Act for Fiscal Year 2015 (discussed here), and the Rule was modified by the President in Executive Order Number 13696 (discussed here). But those modifications are not at issue in this case because it was tried before they took effect.

Precisely what is at issue, however, is hard to tell because both of Chisum’s briefs are sealed, and the Air Force Appellate Government Division’s brief is heavily redacted; out of 47 numbered pages, 19 are totally redacted and 5 are partially redacted. The only brief that isn’t redacted is an amicus brief filed by the victims-rights group Protect Our Defenders in support of the Appellate Government Division that argues that the privilege trumps any constitutional rights of the accused (but that the conviction should be affirmed nevertheless).

What we do know about the case, however, is that a special court-martial composed of officer members convicted Senior Airman Chisum was of a single specification of wrongful use of cocaine on a single occasion, and sentenced him to confinement for 3 months, reduction to E-1, forfeiture of $1031.00 pay per month for 3 months, and a bad-conduct discharge. The convening authority approved only 49 days of the adjudged confinement.

The mental health records at issue belong to two prosecution witnesses who testified about using drugs with Chisum. The Air Force CCA observed that “the credibility of these two witnesses, as well as their ability to accurately perceive and recall what occurred that evening in New Orleans, were critical to the Government’s ability to prove, beyond a reasonable doubt, that Appellant used cocaine in New Orleans.” United States v. Chisum, 75 M.J. 943, 946 (A.F. Ct. Crim. App. 2016) (discussed here). But the CCA concluded:

Based upon our review of the mental health records at issue in this case, we are convinced that any error in failing to provide any portion of those records to the Defense was harmless beyond a reasonable doubt. The Defense already had sufficient information to cross-examine these witnesses on the matters found in their mental health records, and, after considering the entirety of the trial, the additional information contained in the records would not have changed the substance or effectiveness of their cross-examination or defense theory.

Chisum, 75 M.J. at 950. This seemed to be an entirely ordinary conclusion, except that:

On 16 August 2016, this court ordered that the Government produce the sealed mental health records of AB AK and AB CR for appellate review. On 19 September 2016, the Government complied with the order and provided the requested records to this court.

Chisum, 75 M.J. at 946 n.3. A CCA obtaining and reviewing mental records not obtained at trial is rather extraordinary.

Those records, however, produced so willingly then and discussed so casually in the CCA’s published decision, are now guarded so carefully that it’s impossible to determine what CAAF is going to focus on during tomorrow’s argument. This is despite the fact that the witnesses – who seem otherwise entirely unrelated to Chisum – are identified only by initials.

The Air Force Government Appellate Division’s brief, however, gives a hint of what the court might discuss.

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Update: While I initially noted five grants of review, I only wrote about four. I eventually realized that I failed in counting to five and now update this post to include the fifth grant (in Bailey).

Some interesting cases recently joined CAAF’s docket, with a certification and five grants of review.

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Mil. R. Evid. 513 is the military psychotherapist-patient privilege. The scope of the rule, and its exceptions, have been a topic in recent high-profile cases including EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. 2016) (CAAFlog case page), and Randolph v. HV. and United States, No. 16-0678/CG (CAAFlog case page) (argued Tuesday, October 11, 2016).

A recent published opinion by the Air Force CCA in United States v. Chisum, 75 M.J. 943, No. S32311 (A.F. Ct. Crim. App. Nov. 29, 2016) (link to slip op.), provides additional analysis of the rule. Specifically, the CCA addresses when a military judge is required to conduct an in camera review of mental health records. Acknowledging the three-prong test stated by the NMCCA in United States v. Klemick, 65 M.J. 576, 580 (N-M. Ct. Crim. App. 2006), the Air Force CCA concludes that:

in applying this three-prong test, we recognize that the burden for in camera review is not high because the moving party will often be unable to determine the specific information contained in a psychotherapist’s records. See [Klemick]. We also note that “[w]here discovery obligations potentially impact a recognized privilege, an in camera review is generally the preferred method for resolving the competing compulsions.” Bowser, 73 M.J. at 897.

Slip op. at 6 (emphasis added).

Applying this not high burden, the CCA finds that the military judge abused his discretion by failing to conduct an in camera review of the mental health records of the two prosecution witnesses whose testimony was the primary evidence that the appellant wrongfully used cocaine. The witnesses acknowledged receiving mental health treatment for perception and memory issues, and the CCA finds that this was “a reasonable basis for the military judge to conclude that the mental health records contained further information reflecting the extent and severity” of those conditions. Slip op. at 7.

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