CAAFlog » September 2012 Term » LRM v. Kastenberg

CAAF decided the certified case of LRM v. Kastenberg, No. 13-5006/AF, 72 M.J. 364 (CAAFlog case page) (link to slip op.), on July 18, 2013, finding that it has jurisdiction to decide a challenge by the alleged victim in an Air Force sexual assault general court-martial (who is identified only by the initials LRM) to the trial judge’s ruling limiting the ability of the LRM’s counsel (who was assigned to her by the Air Force) to participate in the proceedings. CAAF reverses the Air Force CCA, which found that it lacked jurisdiction to decide LRM’s challenge to the judge’s ruling. CAAF also reverses the ruling, which had limited the ability of LRM’s assigned counsel to participate in the court-martial, finding that LRM has a limited right to be heard through counsel, including a limited right to have her counsel present legal arguments. CAAF remands the case for further action not inconsistent with its ruling.

Chief Judge Baker writes for the court, joined by Judge Erdmann and Senior Judge Effron. Judge Stucky concurs in part and agrees with the majority that the court has jurisdiction, but dissents in part and agrees with Judge Ryan that LRM lacks standing. Judge Ryan dissents, and writes a lengthy separate opinion.

LRM’s brief to CAAF provided the best glimpse into the otherwise well-hidden facts of this case:

Airman LRM, 627 LRS, McChord AFB, Washington, reported to authorities that on 13 August 2012, [the Accused], 49 CES, Holloman AFB, New Mexico, penetrated her vagina and anus with his finger and penis despite her repeated statements to him to stop, that he was hurting her, and that she was done having sex. This allegation led to two specifications of a violation of UCMJ Article 120 being preferred against him on 16 October 2012 and then being referred to trial by General Court-Martial on 28 November 2012.

LRM was assigned counsel through the Air Force Special Victims’ Counsel (SVC) program. That attorney filed a notice of appearance in the general court-martial, asserting that “LRM had ‘standing involving any issues arising under [M.R.E.] 412, 513, and 514 in which she is the patient or witness as the subject of the motion.’” Slip op. at 3-4. M.R.E. 412 is the “rape shield” rule; 513 is the psychotherapist-patient privilege rule, and 514 is the victim advocate-victim privilege rule.

During a pretrial hearing, LRM’s SVC “indicated that he did not intend to argue at any future M.R.E. 412 or 513 motions hearings.”  Slip op. at 4. But he then shifted this position, noting that “there may be instances where LRM’s interests . . . were not aligned with the Government, in which case [he] asked the court to reserve LRM’s right to present an argument.” Slip op. at 4. The military judge denied the SVC’s request to reserve a right to present argument, and “limited LRM’s right to be heard to factual matters.” The judge differentiated between standing of a party as “the right to present an argument of law before a court,” and the mere “opportunity to be heard” that is afforded to LRM as an alleged victim or a patient under M.R.E. 412, 513, and 514. Slip op. at 4. The judge also found that LRM lacked standing to litigate the production of documents, and that her SVC could not argue evidentiary matters on her behalf. Slip op. at 5.

LRM sought relief from the Air Force CCA, but that court concluded that “the All Writs Act does not give us the authority to issue a writ of mandamus regarding this particular, collateral, civil/administrative issue involving a non-party to the court-martial.” LRM v. Kastenberg, Misc. Dkt. No. 2013-05, slip op. at 7 (A.F.Ct.Crim.App. Apr 2, 2013). The Judge Advocate General of the Air Force then certified the case to CAAF, with three issues:

I. Whether the Air Force Court of Criminal Appeals erred by holding that it lacked jurisdiction to hear A1C LRM’s petitino for a writ of mandamus.
II. Whether the military judge erred by denying A1C LRM the opportunity to be heard through counsel thereby denying her due process under the Military Rules of Evidence, the Crime Victims’ Rights Act and the United States Constitution.
III. Whether this Honorable Court should issue a writ of mandamus.

The majority answers issues I and II in the affirmative, but finds that a writ of mandamus is not the appropriate remedy, instead returning the case to the JAG for remand to the trial judge for further action.

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CAAF today issued a 3-2 decision in LRM v. Kastenberg concluding that the trial judge erred by denying A1C LRM, the alleged victim of a sexual assault, the right to be heard through counsel at the accused’s court-martial, and that the Air Force CCA erred in concluding it lacked jurisdiction to hear A1C LRM’s appeal.  Chief Judge Baker delivered the decision of the court, with Judge Ryan dissenting and Judge Stucky concurring in part and dissenting in part and in the result.

CAAF did not issue the requested mandamus, but instead “returned [the record] to the Judge Advocate General of the Air Force for remand to the military judge for action not inconsistent” with CAAF’s opinion.

Lots of analysis to follow.

CAAF now has only one case left from this term:  United States v. Salyer. 

Audio of today’s oral argument in LRM v. Kastenberg, No. 13-5006/AF, is available at this link.

I haven’t listened to the recording yet, but I do see that it’s an hour and 18 minutes long. Since each of the participants was to receive 15 minutes to argue, there was apparently a lot of bonus time granted.

CAAF will hear oral argument in LRM v. Kastenberg, No. 13-5006/AF, on Tuesday, June 11, 2013. The case involves three issues certified to CAAF by the Judge Advocate General of the Air Force addressing whether LRM (an alleged victim in a sexual assault case pending trial by court-martial) has a right to make legal arguments to the trial judge on evidentiary matters by and through her counsel. That counsel is an Air Force judge advocate provided to LRM through the Air Force Special Victims’ Counsel (SVC) program.

The military judge denied LRM’s request, finding that the right to be heard in the Military Rules of Evidence only allows an alleged victim the right to be heard personally, of through a guardian in the case of incompetency. LRM petitioned the AFCCA for a writ of mandamus, but that court found that it lacked jurisdiction to grant the writ “regarding this particular, collateral, civil/administrative issue involving a non-party to the court-martial.” The JAG then certified the following issues:

I. Whether the Air Force Court of Criminal Appeals erred by holding that it lacked jurisdiction to hear A1C LRM’s petitino for a writ of mandamus.
II. Whether the military judge erred by denying A1C LRM the opportunity to be heard through counsel thereby denying her due process under the Military Rules of Evidence, the Crime Victims’ Rights Act and the United States Constitution.
III. Whether this Honorable Court should issue a writ of mandamus.

The parties to the petition are the alleged victim and Appellant (LRM), the trial military judge and Appellee (Lieutenant Colonel Kastenberg), and the accused and Real Party in Interest (Airman First Class Daniels). The Appellant’s brief provides the only real glimpse into the facts of the case:

Airman LRM, 627 LRS, McChord AFB, Washington, reported to authorities that on 13 August 2012, [the Accused], 49 CES, Holloman AFB, New Mexico, penetrated her vagina and anus with his finger and penis despite her repeated statements to him to stop, that he was hurting her, and that she was done having sex. This allegation led to two specifications of a violation of UCMJ Article 120 being preferred against him on 16 October 2012 and then being referred to trial by General Court-Martial on 28 November 2012.

This case has attracted numerous amicus briefs: The Air Force Appellate Government division wrote a brief that has been re-captioned as the Amicus Brief of the United States, and the division will receive time during oral argument. This brief supports finding that the AFCCA erred in finding no jurisdiction, and remanding the case to the CCA for consideration of the underlying issues. Additionally, the United States Air Force Trial Defense Division, Navy-Marine Corps Appellate Defense Division, the Army Appellate Defense Division, and the United States Marine Corps Defense Services Organization wrote in support of the Appellee and Real Party in Interest. Finally, the National Crime Victim Law Institute and “Protect Our Defenders,” wrote in support of the Appellant. Some of these briefs are available on CAAF’s website (links provided at the end of this post).

While the jurisdictional issue is a threshold question, I think that any practical consideration of this case first requires determining if an alleged victim has a firmly-grounded right to engage in what amounts to interpleading in a court-martial. If the answer to this question is yes (and I doubt that it is), then the rulings of the military judge (i.e., should the writ issue) and the jurisdiction of the appellate courts to review them (i.e., can the writ issue) must be addressed.

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CAAF has scheduled oral argument in LRM v. Kastenberg, No. 13-5006 for Jun. 11, 2013 at 9:30 am in the CAAF courtroom.  CAAF granted counsel for the victim, government, and the accused each 20 minutes to argue.  Prior coverage of the certified issues and AFCCA decision are here and here. H/t AFADD

The Judge Advocate General of the Air Force has certified three issues to CAAF following AFCCA’s holding that it didn’t have jurisdiction to provide extraordinary relief to the complainant in a sexual assault case who sought to reverse Judge Kastenberg’s ruling that she had no right to have her “special victims counsel” address the court during an MRE 412 or MRE 513 hearing:

I.  Whether the Air Force Court of Criminal Appeals erred by holding that it lacked jurisdiction to hear A1C LRM’s petitino for a writ of mandamus

II.  Whether the military judge erred by denying A1C LRM the opportunity to be heard through counsel thereby denying her due process under the Military Rules of Evidence, the Crime Victims’ Rights Act and the United States Constitution

III.  Whether this Honorable Court should issue a writ of mandamus.

AFCCA’s unpublished decision in the case is available hereLRM v. Kastenberg, Misc. Dkt. No. 2013-05 (A.F. Ct. Crim. App. Apr. 2, 2013). We previously discussed the case here.

AFCCA has denied a petition for extraordinary relief filed on behalf of a complaining witness by her Special Victims Counsel.  LRM v. Kastenberg, Misc. Dkt. No. 2013-05 (A.F. Ct. Crim. App. Apr. 2, 2013).  We’ve posted the decision here.

As synopsized by AFCCA, at trial, the military judge ruled that the complaining witness “had no standing (1) to move the court, through her SVC or otherwise, for copies of any documents related to Mil. R. Evid. 412 and 513; (2) to be heard ‘through counsel of her choosing’ in any hearing before the court-martial; or (3) to seek any exclusionary remedy, through her counsel, during any portion of the trial.”  Id., slip op. at 4.  “Finding the ‘right to be heard’ in the Military Rules of Evidence does not denote the right to be heard through a personal legal representative, the military judge found A1C LRM was only authorized to be heard personally; through trial counsel in pretrial hearings under Mil. R. Evid. 412 and 513; and, in the event she became incompetent, through a guardian, representative or conservator.”

The complaining witnesses’ appointed appellate counsel (the head of the Air Force JAG School and judge advocates on his faculty) then filed a petition for writ of mandamus with AFCCA on behalf of the complaining witness.  After receiving papers from the parties and amici, AFCCA heard oral argument then stayed further proceedings in the case.  CAAF denied a defense request to dissolve the stay without prejudice.

Today, AFCCA held that it does not have jurisdiction to hear the complaining witness’s petition for extraordinary relief.  AFCCA held, “We find the All Writs Act does not give us the authority to issue a writ of mandamus regarding this particular, collateral, civil/administrative issue involving a non-party to the court-martial.”  The court reasoned:

The military judge’s ruling obviously occurred during a pending court-martial, but that fact alone cannot bring the issue within our jurisdictional ambit. The military judge’s ruling about the scope of the SVC’s role or the alleged victim’s access to motions does not directly involve a finding or sentence that was—or potentially could be—imposed in a court-martial proceeding, nor does it involve a Government interlocutory appeal under Article 62, UCMJ, or amount to a request for a new trial.  The fact that his ruling may affect the procedures used in a future hearing designed to determine the admissibility of evidence under the Military Rules of Evidence does not mean our jurisdiction extends to the adjudication of complaints from the alleged victim regarding those procedures. The Manual for Courts-Martial (Manual) provisions regarding Mil. R. Evid. 412, 513 and 514 do not provide for any appellate or collateral review of the military judge’s decisions or how to conduct the hearings required by those rules, and we decline to create one through the All Writs Act under these circumstances.

Id., slip op. at 7 (footnote and internal citation omitted).

The court continued:  “Furthermore, his ruling does not implicate constitutionally-based rights in a pending court-martial, which has led military appellate courts to exercise jurisdiction in petitions brought by non-parties prior to the entering of findings and sentence.”  Id., slip op. at 8.  Finally, AFCCA disagreed with the complaning witness’s “contention that the CVRA’s provision that states it applies to ‘any court proceeding involving an offense against a crime victim’ includes military courts-martial and thus gives us the authority to issue a writ of mandamus granting her the requested relief.”  Id.  The court also found “the decision of Congress, the President, and the Department to not apply the CVRA to the victims within the UCMJ system and to not adopt a mandamus provision during the years since the CVRA was enacted to be intentional.”  Id.  And even if the CVRA did apply, AFCCA noted, it wouldn’t give the complaining witness a right to the relief she sought.

AFCCA concluded:

Nothing in the UCMJ vests the service courts with open-ended jurisdiction to entertain every challenge brought by interested entities regarding aspects of the court-martial proceedings.  . . .  Nothing in the UCMJ vests the service courts with open-ended jurisdiction to entertain every challenge brought by interested entities regarding aspects of the court-martial proceedings. Because issuing this writ of mandamus would not be necessarily or appropriately in aid of our statutorily-limited jurisdiction, we conclude we do not have the authority to consider the Petitioner’s mandamus petition.

Id., slip op. at 8-9.