CAAF decided the certified case of LRM v. Kastenberg, No. 13-5006/AF, 72 M.J. 364 (opinion) (CAAFlog case page) 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.