CAAF decided the Coast Guard case of Randolph v. HV and United States, 76 M.J. 27, 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.

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

United States v. Nieto, No. 16-0301/AR (CAAFlog case page): Oral argument audio.

Randolph v. HV. and United States, No. 16-0678/CG (CAAFlog case page): Oral argument audio.

Today CAAF will hear oral argument on the writ-appeal petition filed by an accused, in Randolph v. HV. and United States, No. 16-0678/CG (CAAFlog case page).

The case challenges 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 a petition for mandamus filed by HV, who is the alleged victim in a case against Coast Guard Damage Controlman Second Class (E-5) Randolph. The accused 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 commuincations” protected by MRE 513 includes records of diagnosis.

Notably, CAAF refused to consider Randolph’s contention that Article 6b only allows a CCA to review application of an alleged victim’s procedural rights and not substantive rulings. See Pet. Br. at 6-9.

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Earlier this year, in the Marine Corps case of EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page), CAAF determined that it lacks jurisdiction to entertain a writ-appeal by an alleged victim who sought to reverse a military judge’s order for disclosure of portions of her mental health records. Article 6b(e) gives an alleged victim the right to petition a court of criminal appeals for mandamus to enforce various protections, but CAAF determined that the review ends at the CCA.

Subsequently, in  H.V. v. Commander Kitchen, Military Judge, and Randolph, Real Party in Interest, 75 M.J. 717, Misc. Docket No. 001-16 (C.G. Ct. Crim. App. Jul. 8, 2016) (discussed here), the Coast Guard CCA expanded Mil. R. Evid. 513 (the psychotherapist-patient privilege) to also include the psychotherapist’s conclusions (diagnoses) and resulting treatments. The Coast Guard court’s decision was issued under Article 6b(e), and I noted CAAF’s limited jurisdiction at the time, writing:

The accused, however, didn’t file an original writ. Rather, he filed a writ-appeal with CAAF (petition discussed here).

Last Friday, CAAF ordered briefs on the question of whether it has jurisdiction to review the accused’s appeal:

No. 16-0678/CG. Thomas J. Randolph, Appellant v. HV., Appellee and United States, Respondent. CCA 001-16. On further consideration of the writ-appeal petition from the decision of the United States Coast Guard Court of Criminal Appeals rendered pursuant to Article 6b, Uniform Code of Military Justice, it is ordered that the Appellant and Appellee submit briefs on the following specified issue:

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.

It is further ordered that the United States be substituted for the military judge as a party respondent, that the United States submit a brief on Issue II in the writ-appeal petition and on the issue specified in this Order, that the Appellate Government and Appellate Defense Divisions of the Army, Navy-Marine Corps and Air Force are invited to submit amicus curiae briefs on the issue specified in this Order, that all briefs mentioned in this Order be filed on or before September 30, 2016, and that oral argument will be heard on October 11, 2016, as previously scheduled. Appellant, Appellee, and the United States will each be allotted 20 minutes to present oral argument.

Yesterday CAAF was asked to review the Coast Guard CCA’s decision in H.V. v. Commander Kitchen, Military Judge, and Randolph, Real Party in Interest, 75 M.J. 717, Misc. Docket No. 001-16 (C.G. Ct. Crim. App. Jul. 8, 2016) (discussed here):

No. 16-0678/CG. Thomas J. Randolph, Appellant v. H.V., Appellee v. Cassie A. Kitchen, Commander, U.S. Coast Guard Military Judge, Respondent Below. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Coast Guard Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

The CCA’s decision in H.V. expanded the scope of Mil. R. Evid. 513 (the psychotherapist-patient privilege) to include “the psychotherapist’s conclusions (diagnoses) and resulting treatments.” Slip op. at 3.

The CCA’s involvement in the case, however, was upon a petition for a writ of mandamus made by the alleged victim. Such a writ petition is allowed by Article 6b(e) as amended by the FY15 National Defense Authorization Act (discussed here). Yet CAAF lacks jurisdiction for further appeal because Congress narrowly tailored the statute. See EV v. United States & Martinez, 75 M.J. 331, No. 16-0398/MC (C.A.A.F. Jun. 21, 2016) (CAAFlog case page).

The caption of the writ-appeal filed yesterday at CAAF (identifying the accused as the appellant and the alleged victim as the appellee) suggests to me that the appeal is of the CCA’s decision on the 6b(e) petition and not on a separate writ petition made by the accused himself. If that’s correct, then I suspect the writ-appeal will be dismissed for lack of jurisdiction.

That’s not to say that the accused is without options; he could seek his own writ from the CCA and then appeal that to CAAF. However, that does not seem to be what’s happening now.

In a published order in H.V. v. Commander Kitchen, Military Judge, and Randolph, Real Party in Interest, 75 M.J. 717, Misc. Docket No. 001-16 (C.G. Ct. Crim. App. Jul. 8, 2016) (link to order), a three-judge panel of the Coast Guard Court of Criminal Appeals holds that Mil. R. Evid. 513 (the psychotherapist-patient privilege) extends “to the psychotherapist’s conclusions (diagnoses) and resulting treatments.” Order at 3.

The privilege states that:

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the Uniform Code of Military Justice, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.

Mil. R. Evid. 513(a).

H.V. is a member of the Coast Guard and an alleged victim in a court-martial. The defense moved to compel production of her mental health records. Considering the motion the military judge, Commander Kitchen, determined that Mil. R. Evid. 513 does not apply to “the disclosure of dates on which a patient was treated, the identity of the provider, the diagnostic code, or the therapies used,” and accordingly ordered production of H.V.’s mental health records:

limited to ONLY those portions indicating a psychiatric diagnosis (as this phrase is used in the DSM-5), the date of such diagnosis, any medications prescribed, the duration prescribed medications were to be taken, type of therapies used, and the resolution of the diagnosed psychiatric condition, if applicable.

Order at 2 (quoting military judge’s ruling). H.V., however, does not want even these records disclosed, and so she sought a writ of mandamus under Article 6b from the CCA to compel the military judge to apply the privilege to these records.

In what I believe is a case of first impression, the panel of the Coast Guard CCA splits 2-1 to grant the writ and expand the privilege, with Chief Judge McClelland writing for the majority and Judge Bruce dissenting.

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