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.

At the outset, the Appellant’s brief is a huge piece of work-product. Consisting of 63 pages and over 12,000 words, the four “Appellate Special Victims’ Counsel” whose names appear on the first page are clearly flexing their muscle in this new program. But the Appellant’s substantive position is that numerous provisions give her a right to be heard – meaning a right to be heard through counsel – and that such a right necessarily includes the right to present argument and to present legal authority to support that argument. The asserted sources of this right are Military Rules of Evidence 412 and 513 (the “rape shield” and psychotherapist-patient privilege rules), the Crime Victims Rights Act (CVRA) (18 U.S.C. § 3771), and the right to privacy in the Constitution. The Appellant argues that the trial military judge deprived her of her right “to be heard” by redefining it into merely a right “to testify.” She also argues that the CCA erred in finding no jurisdiction to hear her petition, because she is not “a stranger to the court” (citing CAAF’s recent decision in CCR), but rather:

As the named victim in a case brought under UCMJ Article 120, she is an essential, though limited, participant. Her presence and participation may even be compelled against her will.

Appellant’s Br. at 13. The brief explains that the opportunity “to be heard” would mean nothing if it did not have at least the potential in influence the military judge’s rulings, thereby affecting the findings and sentence, and providing jurisdiction for this action.

The Appellee’s brief focuses largely on LRM’s non-party status, and he argues that the critical point in CCR was the non-support of the petitioners by any party.

Appellant incorrectly overgeneralizes that this Court recently held that jurisdiction is appropriate when the harm alleged by the petitioner has ‘ the potential to directly affect the findings or sentence.’ (Appellant ‘ s Brief at 13.) Appellant simply conflates the petitioner in Hasan v. Gross, the accused, with themselves in this case, a non- party witness .

Appellee’s Br. at 9. On the right “to be heard,” the Appellee argues that LRM’s first-person singular right to be heard does not include representation by a third party. He contends that the CVRA does not apply beyond the district courts, and even if it did then it does not apply to pretrial evidentiary hearings. Finally, the Appellee argues that a writ should not be issued, arguing among other things that LRM will suffer no injury if a writ is not issued, and that:

If this Court were to issue the writ as requested it would not solve the problems the Special Victims’ Counsel program has created in A1C Daniels’ court-martial, problems the military judge’s ruling has already resolved to ensure a fair trial for the Accused both in appearance and actuality. Rather, issuance of such a writ would revive fundamental fairness issues in AlC Daniels’ court-martial and generate them in untold courts-martial ad infinitum.

Appellee’s Br. at 20-21.

The Accused/Real Party in Interest’s brief tracks the Military Judge/Appellee’s brief in numerous respects. He argues that LRM does not have any due process right to be heard through counsel, that the CVRA does not apply to the military justice system, and that while the Military Rules of Evidence provide LRM with an opportunity to be heard, it only provides parties with the right to be heard through counsel. He sees the military judge’s denial of LRM’s request as the opposite of extraordinary; it follows “the norm for the entire history of the American military justice system.” Real Party in Int.’s Br. at 16. Finally, on the question of jurisdiction, the Accused notes that:

Appellant’s assertion that being denied a right will somehow affect a finding and sentence and therefore create jurisdiction is a fallacy. Appellant’s brief at 9. As Appellant concedes, she is not a party to the court-martial. Appellant’s brief at 13. A1C L.R.M. will never have a right to seek review. In the case of United v. Daniels, A1C L.R.M. will never be sentenced. Therefore, her case will not be available for review by an appellate court. Likewise, she will never be in position to seek relief from Judge Kastenberg’s ruling under Article 66 or 67, UCMJ.Because this Court has no jurisdiction to grant the requested relief, the petition must be denied.

Real Party in Int.’s Br. at 12-13.

These briefs raise a number of questions that are highlighted by things addressed in the Appellant’s reply brief, the first of which is if there is a practical limiting principle to the relief the Appellant seeks:

No participant, party or non-party, is harmed in a legal sense when a military judge is fully briefed by well-prepared advocates prior to making a decision that impacts their individual rights.

Appellant’s Reply Br. at 5. Individual rights is an interesting term to use here, since the individual right of the alleged victim is, at best, her privacy interest with respect to in-court testimony about her other sexual activity and access to her mental health records. Besides the fact that the word “privacy” does not appear in the Constitution (a problem that really needs to get fixed), and the fact that the Fifth Amendment’s guarantee of due process of law applies to circumstances involving deprivation of life, liberty, or property (none of which are at risk for LRM), the sexual privacy protected by M.R.E. 412 and the mental health communications protected by M.R.E. 513 are hardly secrets. One’s sexual partners are free to share their stories (as often happens) and medical records are shared and reviewed in innumerable ways. Moreover, “in the classic phrase of Lord Chancellor Hardwicke, ‘the public has a right to every man’s evidence.'” United States v. Monia, 317 U.S. 424, 432 (1943). Yet LRM and the Air Force Special Victims’ Counsel program would have us believe that they are privileged to litigate the opposite when somebody else’s life, liberty, and property are on the line. If this is true in this case and context, why not in every other?

The Reply Brief also asserts that:

The notion that a victim and patient may not vindicate her interests through her own attorney or even by making her own legal arguments is deeply troubling.

Appellant’s Reply Br. at 5. This case isn’t about a protective order prohibiting LRM’s health care providers from releasing her records to the prosecution (something that would involve a civil proceeding where she would actually be a party). Nor is it about whether LRM will have the opportunity to tell the military judge, in a closed hearing, having been prepared by her own attorney (or whoever else she wants to consult with), why she doesn’t want her medical records released to the accused or discussed in open court. Nor is it about whether LRM can be held in contempt if the judge rules that the defense can ask her embarrassing questions and she then refuses to participate. Rather, LRM seeks to place her counsel on equal footing with that of counsel for the Government and for the Accused in a proceeding where her right to counsel – if it exists at all – is hardly coexistent with that of the parties (and where, but for the Air Force electing to allocate a seemingly limitless supply of creative and well-read attorneys to her case at no cost to her, she likely wouldn’t have an attorney at all).

But that’s my take. The Air Force Appellate Government Division’s amicus brief, that has been re-captioned as the Amicus Brief of the United States (see CAAF’s Daily Journal for May 31, 2013), takes something of a middle-ground, and makes key points. First, the brief asserts that the CCA erred, and that is does have jurisdiction to hear the petition, because:

AFCCA was not being asked to adjudicate “what amounts to a civil action, maintained by persons who are strangers to the court-martial.” See CCR, slip op. at 8. Instead, the Court was asked to interpret the legal contours of specific evidentiary rules; rules governing evidentiary matters deemed so meaningful to the findings and sentence of a court-martial that an erroneous interpretation or application of them can rise to the level of constitutional error.

Br. of the United States at 6. The Government sees that LRM has a “limited right to be heard,” and that “by fettering Petitioner’s limited right to be heard, the jurisdictional threshold was exceeded.” Id. at 8. But the Government also believes that CAAF cannot consider the merits of the petition without first remanding it to the AFCCA for its consideration:

If this Court were to render a decision on the substantive issues in this case, its action would be analogous to granting interlocutory review of a decision of a Court of Criminal Appeals resulting from an Article 62 appeal and rendering a decision on the substantive issues even though the lower court’s decision only addressed the government’s failure to satisfy the jurisdictional requirements of Article 62 and R.C.M. 908, without deciding the substantive issues of the interlocutory appeal.

Br. of the United States at 11-12. In other words, the only thing for CAAF to review is the jurisdictional decision of the AFCCA, and CAAF can’t go further without the CCA acting first.

Finally, the government sees that LRM’s right to be heard derives from the Military Rules of Evidence only, with Rules 412 and 513 providing her with a limited right to be heard, which includes the right to be heard through counsel. The government analogizes this case to circumstances involving intervention to quash a subpoena:

As demonstrated by Wuterich I and Wuterich II, the right of limited intervention in the motion to quash context encompasses the right to be represented by counsel and advocate legal arguments to demonstrate why compliance with the subpoena should not be required. These cases also demonstrate the nonparty’s right to seek a writ of mandamus with military appellate courts to resolve such question of law. Similar to R.C.M. 703(e)(2)(F) in providing a right to challenge a subpoena, the President has expressly stated the victim/patient has a right to attend and be heard in evidentiary hearings under Mil. R. Evid. 412 and 513.

Br. of the United States at 11-12. However, the Government sees significant limitations:

The Air Force Appellate Government Division only interprets Mil. R. Evid. 412 and 513 as conferring a regulatory right for a victim to be heard through counsel during these limited evidentiary hearings. Nothing in the plain language of the Rules authorize a victim to seek reconsideration of a military judge’s ruling, appeal the ruling, or petition an appellate court to challenge the correctness of the judge’s substantive decision concerning Mil. R. Evid. 412 and 513.

Id. at 16. The Government also rejects the contentions that the CVRA applies to courts-martial and that a victim’s rights are based on Constitutionally-protected interests. The Government’s view as articulated by the Air Force Appellate Government Division’s brief is awfully appealing, and if it prevails then the AFCCA will likely need to decide if the military judge correctly limited LRM’s right to be heard to the contours of the Military Rules of Evidence.

The many other amicus briefs are certainly worthy of analysis, but unfortunately I don’t have the time. But speaking of time, CAAF has granted each counsel a mere 15 minutes to present argument on Tuesday. It’s hard to imagine that this will be enough time. Fortunately, throughout the term, Chief Judge Baker has been very liberal with granting “bonus time” to counsel who get lots of questions from the court. I think there will be a lot of bonus time granted in the argument of this case.

Case Links:
AFCAA opinion
Blog post: AFCCA denies complaining witness’ petition
Appellant’s (complaining witness) brief
Appellee’s (military judge) brief
Real Party in Interest’s (accused) brief
Appellant’s reply brief
Amicus brief of Air Force Appellate Government Division (Brief of the United States)
Amicus brief of Army Appellate Defense Division
Amicus brief of Navy-Marine Corps Appellate Defense Division
Blog post: Argument preview

7 Responses to “Argument Preview: LRM v. Kastenberg, No. 13-5006/AF”

  1. Phil Cave says:

    I realize my procedure may be a little rough here.
    But why is the AF Government Appellate Division not representing Judge Kastenberg.  Why is it the Defense.  Did not someone ask for counsel, not counsel for one of the parties to represent him.  Which leads to the question of why they are filing amicus.  Is it not the duty of AG to represent military judges who have writs pending against them for actions in an ongoing trial?  Certainly the rules at AFCCA would prohibit that by specific rule because they are from the same service as the case.
    I’m wondering if CAAF Rule 26A is not the same as the AFCCA rule and the amicus of AF appellate government is prohibited by the rule.  (a) A brief of an amicus curiae may be filed (1) by an appellate government or defense division of an armed service other than that in which the case has arisen
    Was the trial defense counsel given pro hac vice leave to file on behalf of the judge?
    Is there a jurisdictional question for the jurisdictional question.  Is the AFTJAG in fact authorized to certify this case.  This is not a 62 appeal and this is not a 66 case where the gov lost at AFCCA.  Or stated another way, is that a real stretch of 67(a)(2)?  It’s not a case, it’s a Writ of an interloper.

  2. Contract Lawyer says:

    Perhaps this cert is the PC thing to do?   No one wants to be caught in front of this bus as it leaves the station or thrown under it.  Or perhaps this is what they believe the process should be?

  3. ADAFTC says:

    Bit of a misnomer–the “AF Appellate Government Counsel” is actually the “Appellate Special Victims’ Counsel”–those of you who have been through the AF JAG School likely recognize counsel. 

  4. UBH says:

    There’s fairness, then there’s the appearance of fairness. Even if it is the former, it certainly isn’t the latter.
    The number of counsel (even just the four given to the non-party without a right to counsel at trial, much less on appeal) on one side far outweigh the number on the other. Even accounting for the practice of having senior attorneys sign at appellate government, this is terribly unbalanced. If you know the experience and current assignments of all the folks involved, it’s even worse. The “Brief of the United States” name change makes it look like the appellate government division recaptioned their brief to circumvent the CAAF rule against them filing an amicus brief. (I note that they were given time to argue, so they may have been invited or filed on motion, still…that recaption is strange.)
    Correctly or not, a reasonable person easily could believe the AF is so intent on achieving its desired outcome that it’s stacking the deck. Whatever outcome one favors, this is not a banner day for the appearance of fairness.

  5. k fischer says:

    You mean “appearance of fairness” like when the Air Force allowed Lt. Col. Wilkerson at Aviano to be prosecuted by an O6 Colonel who used to be a military judge, but detailed Wilkerson an O-3 as counsel?
    At least the Army only requires a senior Captain or Major to be an SVP.  The AF, akin to the honey badger, plain doesn’t give a rats rear end and details an O6.  Now, I know that Wilkerson hired Frank Spinner who would have had much more experience than your typical Captain and perhaps the O6 would not have been detailed if the case involved a PFC who had committed the misconduct, but the AF  shows that it will go all out to get a conviction.
    You raise a good point on the fairness optics.  4 versus 1.  After hearing all the hysterics like “I would never let my daughter join the military out of fear of being sexually assaulted,” I will now say that I would never let my Son join the miltiary out of fear that his rights to due process, a fair trial, and presumption of innocence will be trampled. 

  6. FordhamJAG says:

    This is clearly something TJAG wants to succeed, and so it should not surprise that he has gone into whole hog.  But as for fairness, some of the conduct of the front office over this and the Art 120 issue defies common sense.  Prior to the AFCCA brief, TJAG sent out an AFJA wide directive on the on-line news service – and from appearances, it was intended to influence the AFCCA on the issue.  Then, prior to the motion for en banc reconsideration, TJAG did it again.  Problematic to this is the prohibition against statements that may have an influence on the proceedings, found both in the Air Force Instruction as well as inthe PR rules.  Generally these rules apply to prosecutors, but as TJAG, he should have known what these statements could have resulted in. Namely an allegation of UCI (which failed).  But as for fairness, one ought to consider that there will likely be no admonishment for this conduct – but G-d forbid should a defense counsel commit a similar infraction.  When a judge makes a ruling adverse to the prosecution in terms of UCI his or her motives are questioned (see the pending appeal on UCI in relation to the commander in chief); and when a judge makes a ruling adverse to prize TJAG program, apparently the rules governing appeals are relaxed.  Look to the double standards in favor of those who support this program.

  7. Michael Lowrey says:

    CAAF is fast. Oral arguments are already up. Total running time is 79 minutes. I haven’t listened to them yet, so can’t comment as to the direction of the questioning.