United States v. Anderson

From 2014 to 2016, petitioner Billy Counterman sent hundreds of Facebook messages to C. W., a local singer and musician. The two had never met, and C. W. did not respond. In fact, she tried repeatedly to block him, but each time, Counterman created a new Facebook account and resumed contacting C. W. Several of his messages envisaged violent harm befalling her. Counterman’s messages put C. W. in fear and upended her daily existence: C. W. stopped walking alone, declined social engagements, and canceled some of her performances. C. W. eventually contacted the authorities. The State charged Counterman under a Colorado statute making it unlawful to “[r]epeatedly . . . make[] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.” Colo. Rev. Stat. §18–3–602(1)(c). Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not “true threats” and therefore could not form the basis of a criminal prosecution. Following Colorado law, the trial court rejected that argument under an objective standard, finding that a reasonable person would consider the messages threatening. Counterman appealed, arguing that the First Amendment required the State to show not only that his statements were objectively threatening, but also that he was aware of their threatening character. The Colorado Court of Appeals disagreed and affirmed his conviction. The Colorado Supreme Court denied review.

​Held: The State must prove in true-threats cases that the defendant had some subjective understanding of his statements’ threatening nature, but the First Amendment requires no more demanding a showing than recklessness. 

On January 1, 2022, the most radical change to the American jury in at least thirty-five years occurred in Arizona: peremptory strikes, long a feature of American trial adjudication, were abolished. Arizona’s move is part of an important trend (one that has largely escaped scholarly attention): after decades of inaction at the federal level, states have begun experimenting with new ways to counter racial exclusion in the selection of juries. Nearly one-sixth of the country now lives in a jurisdiction where Batson v. Kentucky does not provide the basic framework governing peremptory strikes, and more states are contemplating reforms. Perhaps as noteworthy as the scope of Arizona’s reform is how the state’s abolition of peremptory strikes came about: wielding its rulemaking authority, the Arizona Supreme Court simply got rid of them. Indeed, the court did not even issue an explanation for its new rule, despite the private reservations—disclosed here for the first time—of some justices. Most of the other states’ reforms have followed the same trajectory: rather than announce new constitutional rules through adjudication (or call upon their legislatures to enact new statutes), state supreme courts have exercised their broad quasi-legislative authority to promulgate new rules of criminal procedure.

​This Article makes four main contributions. 

The Fourth Amendment’s primary remedy is the exclusion of unlawfully obtained evidence at trial. But not every defendant whose rights are violated gets a remedy. The most substantial obstacle for defendants is the good faith exception, which directs courts to admit unlawfully collected evidence if the police can show they relied in good faith on existing authority. If the police rely on a statute that turns out to be unconstitutional, or a warrant or precedent that turns out to be invalid, the evidence they obtain will nonetheless be admitted under the good faith exception. The Supreme Court has justified this doctrine on the grounds that excluding evidence is only worthwhile if it deters misconduct by police officers. When officers rely in good faith on existing authority, the Court has found there is no misconduct to deter, and exclusion is unjustified.

We challenge this conventional account of the good faith exception in several ways.

[T]he developing practices in other federal districts suggest that the DPPA provides the opportunity for courts to go beyond a perfunctory reminder, if inclined. In the Southern District of New York, for example, Judge Laura Taylor Swain has crafted a Rule 5(f) order that highlights the key holdings of Brady and its progeny, carefully outlines the government’s disclosure obligations, and states explicitly the potential consequences of a failure to comply. See United States v. Shalon, No. 15 CR 333, 2020 WL 6873447 (S.D.N.Y. Nov. 23, 2020). While the court did not impose specific deadlines for disclosure, it did state plainly the requirement that prosecutors disclose to the accused material, favorable evidence “promptly after its existence becomes known” to the government, regardless of whether the government credits it. Id. The order further reminded prosecutors that, even in the context of a guilty plea, Brady evidence must still be disclosed in some circumstances, and encouraged the government to seek in camera review of materials for which disclosure may run afoul of a substantial government interest – such as witness safety, victim rights, or protection of law enforcement sensitive techniques. Id. Finally, the court cautioned that it may impose a wide variety of consequences on prosecutors for failures to comply with its order, including evidentiary sanctions, dismissal of charges, and vacatur of a conviction after trial or a guilty plea. Id.

The Act was passed with broad bipartisan consensus, by unanimous consent in the Senate and by a voice vote in the House of Representatives. 
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​The Act’s sparse legislative history reveals that Congress decided to require mandatory Brady orders in every case because there were previously "inadequate safeguards in Federal law" to ensure that prosecutors complied with their constitutionally-mandated disclosure obligations. House Sponsor Representative Sheila Lee Jackson explained the consequences of these inadequate safeguards by pointing to the case of Alaska Senator Ted Stevens. After Senator Stevens' conviction, Judge Emmet Sullivan dismissed the case at the Department of Justice's request due to post-trial revelations that the government had failed to turn over exculpatory evidence. After the dismissal, Judge Sullivan appointed a special prosecutor to determine whether criminal contempt or other sanctions were warranted against the prosecution team. Ultimately, Judge Sullivan accepted the special prosecutor's recommendation that such sanctions were not viable because the court had not issued an enforceable order requiring the prosecutors to abide by their Brady obligations. The Due Process Protections Act will make such Brady orders mandatory and enforceable in every case to avoid a similar outcome.

In re B.M., __ M.J. ___, No. 202300050 (N-M. Ct. Crim. App. Jun. 14, 2023).

The real party in interest [RPI], Lieutenant Commander [LCDR] Dominic R. Bailey, U.S. Navy, is charged in the general court-martial, United States v. LCDR Dominic R. Bailey, U.S. Navy, with violating Articles 120 and 128, UCMJ. Pursuant to facts that form the basis of this Petition for Extraordinary Relief, the military judge abated the proceedings.

On 1 February 2023, Petitioner filed a Petition for Extraordinary Relief in the Nature of a Writ of Mandamus and Stay of Proceedings. Petitioner seeks a Writ of Mandamus ordering the military judge to seal or destroy all of Petitioner’s mental health records, and a Writ of Mandamus directing the military judge to recuse herself from the court-martial proceedings because of actual and implied bias, and to reinstate this case to trial with a new military judge.

​On 12 April 2023, this Court ordered the United States to answer the following questions: (1) Does the United States oppose the Petition for Extraordinary Relief in the Nature of a Writ of Mandamus, and if so, why?; and (2) Did the United States provide timely notice of appeal to the military judge’s order abating the case in accordance with Article 62, UCMJ?2 At the same time, we granted the RPI leave to file a response to the Government’s answer. On 3 May 2023, Respondent filed its response, opposing the Petition for Extraordinary Relief, and answering the second question in the negative. 

​(11) Any evidence that any potential witness sought or received mental health treatment, including specifically the mental health treatment records of the complaining witness [Petitioner] including records of any diagnosis or prescribed medications before or after the offense.

​     (a) This request also includes mental health diagnoses and prescription medications that the [Petitioner] had prior to or during the alleged offense as well as any mental health treatment records pertaining to the allegations asserted and treatment discussed in [Petitioner’s published autobiographical book].

​her mental health treatment, specifically, names, dates, and treatment facilities she used before, during, and after the alleged assaults.

​[T]he appropriate records custodian at the [mental health clinic] SHALL deliver to the Court a copy of all written mental or behavioral health records for [Petitioner] from 15 January 2022 to the present ONLY to the extent those records reflect:

Any mental/behavioral health diagnosis or list thereof; Any mental/behavioral health prescriptions for medication or list thereof;

and Any prescribed mental/behavioral health treatment or list thereof.

It is requested that the review for responsive material be conducted by a health care professional who has training in mental or behavioral health. The appropriate records custodian SHALL NOT provide any portion of a written mental or behavioral health record that memorializes or transcribes actual communications made between the patient and a psychotherapist or assistant to the psychotherapist. The custodian of records shall produce only records containing no actual communications and indicating a diagnosis, medication, and/or treatment, the date of diagnosis, prescriptions, and/or treatment, and the date the diagnosis was resolved, ​if applicable. The records custodian is authorized to produce records which have been partially reacted consistent with this Order.

​These amendments shall take effect as of the date of this order, subject to the following: (a) Nothing in these amendments shall be construed to make punishable any act done or omitted prior to the date of this order that was not punishable when done or omitted. (b) Nothing in these amendments shall be construed to invalidate any nonjudicial punishment proceeding, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to the date of this order, and any such nonjudicial punishment, restraint, investigation, referral of charges, trial, or other action may proceed in the same manner and with the same effect as if these amendments had not been prescribed. ​