CAAF on its own authority

4/3/2024

In Re BM:

"The procedural posture in which we confront this certified question is unusual and perhaps unprecedented. Although the Judge Advocate General certified the question, the Government asks this Court to answer the question in the negative and to affirm the NMCCA’s decision. The Government does not seek any relief from this Court based on this certified question.... "

Read the opinion here.

As the Court acknowledges, the ban on advisory opinions only applies to Article III federal courts, but it has adopted it "as a prudential matter." Many state high courts issue advisory opinions. International tribunals also do this. Another Article I court has noted that its ban on advisory opinions is self-imposed. Mokal v. Derwinski, 1 Vet. App. 12, 15 (1990).

So: Is this self-imposition a good thing?

"Article I courts, like courts created under Article III of the Constitution, derive their authority and their limitations from the Constitution. One such limitation, necessary for the protection of democratic liberty, is that bodies exercising the judicial power be confined to dealing with real disputes in concrete factual settings. This protects the people against the danger that unelected judges will engage in broad public policy making, contrary to our notions of popular government. Freytag v. Commissioner, 501 U.S. 868, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991)." Matter of Dep't of Def. Cable Television Franchise Agreements, 35 Fed. Cl. 114, 115–16 (1996).

Is CAAF issuing advisory opinions a threat to democracy?

Nathan Freeburg

4/4/2024 09:53:01

From a trial practitioner’s perspective, the discussion of Article 6b rights is of great interest.

Cloudesley Shovell

4/4/2024 11:05:15

A very interesting opinion. CAAF: "We don't issue advisory opinions." Chief Judge Ohlson. "I agree! Here's some, uh, well, let's call it 'guidance' but it definitely isn't advice! Also, I speak for myself, not the Court, so this definitely isn't an advisory opinion!" There seem to be quite a few angels dancing on the head of that grammatical pin.

My take on this case--the complaining witness (I don't like "victim" because it prejudges the case) seeks an order requiring the military justice system to prosecute the accused on the basis of her accusations while at the same time demanding that the same military justice system be prohibited from considering evidence of the complaining witness's possible mendacity. The necessary outcome is pretty clear under that framing (feel free to criticize my framing if I got it wrong).

One very troublesome aspect of this case, at least to me, is that it suggests that the parties or the military judge can somehow craft a discovery order to the custodian of mental health records precisely outlining what the military judge may or may not need to see. The way I see it, this shifts the very weighty and important decision on what records might be divulged from the judicial system to whomever is the records custodian interpreting the discovery order may be--is it the actual doctor, therapist, or nurse? Or is it Seaman Schmukatelli, fresh out of boot camp, stashed at the hospital records office while awaiting a slot at corpsman school, tasked with making "appropriate copies"? Or is it the SJA for the hospital, assuming one exists? Or is it some other person on the staff, who may or may not have the appropriate legal or medical training to determine what to divulge to the military judge and what to keep secret? How does such a system serve the constitutional rights of the accused in a criminal case?

If the goal of a justice system is to find the truth, clearly the only possible result is to have the judge review everything, for the military judge, far more than any other person, is in the best position to protect the rights of all parties involved. I note with some dismay that Judge Ohlson states that the military judge erred in continuing to review records--"What the military judge could not do was continue to examine the privileged records, as she did here. Such a step contravened her authority and the provisions of M.R.E 513." (p. 4 of Judge Ohlson's concurrence.) Thus, if the military judge had followed Judge Ohlson's "thoughts" on this matter, material that is consitutionally required to be disclosed might instead never have been discovered, thus leading to a possible miscarriage of justice. I don't think that's the path the military justice system wants to follow.

Kind regards,
CS

Trial Counsel

4/4/2024 11:55:34

Re: who should review the mental health file. I tend to agree with you, and so, apparently, did the Supreme Court in Pennsylvania v. Ritchie, 480 U.S. 39, 61 (1987):

"We agree that Ritchie is entitled to know whether the CYS file contains information that may have changed the outcome of his trial had it been disclosed. Thus we agree that a remand is necessary. We disagree with the decision of the Pennsylvania Supreme Court to the extent that it allows defense counsel access to the CYS file. An in camera review by the trial court will serve Ritchie's interest without destroying the Commonwealth's need to protect the confidentiality of those involved in child-abuse investigations. The judgment of the Pennsylvania Supreme Court is affirmed in part and reversed in part, and the case is remanded for further proceedings not inconsistent with this opinion."

Still, there are limits to a judge's in camera review. For example, a judge will not always be able to determine what the parties find to be the most salient facts. Perhaps that's why it's not unprecedented that counsel be the ones to review the documents. In United States v. Reece, 25 M.J. 93, 95 (C.M.A. 1987), the Court wrote:

"At this hearing, the military judge will order production of the subject documents for in camera inspection by counsel under an order of confidentiality. The judge will hear argument and rule on the relevance of the evidence."

At some point, though, we have to rely on hospital attorneys do parse through records for relevant information, make relevant redactions, and send that information to the court along with an affidavit stating under penalty of perjury that these are the responsive records.

Trial Counsel 2

4/4/2024 13:43:19

"material that is consitutionally required to be disclosed". What records are constitutionally required to be disclosed? That is the problem.

There is no constitutional right to discovery. The Supreme Court has been clear on that.

Brady does exist. But that is never going to apply to civilian healthcare records (not in the possession of the Government), and at least in the Army, MTF records are not considered in the possession of the Government either. So in effect, Brady is never going to apply.

I get the analysis may be different if the records are already in the possession of the military judge or trial counsel, but this creates its own problems if such possession only occurred because of improper over disclosure.

The constitutional right to Confrontation is a trial right, and the Supreme Court has been clear that Confrontation does not create a right to discovery.

So what Constitutional provision is mandating the turn over of these records?

Nathan Freeburg

4/4/2024 14:40:28

TC2:

Blackmun's concurrence in Ritchie is worth reading...but leaving that aside:

Browning v. Trammell, 717 F.3d 1092 (10th Cir. 2013). is the federal case most directly on point. In that case the privileged psychiatric records were inadvertently faxed to the prosecution and contained Brady material. Even though they tried to pull the records back, they should have been disclosed to the defense once the prosecution had them (even though temporarily and inadvertently). Full stop. You don't have to find it persuasive but it's a well-written discussion of all of the issues we are discussing.

Trial Counsel 2

4/4/2024 17:04:15

Nathan, thanks. I agree that inadvertently disclosed material in the possession of the prosecution or the judge is the difficult case. I think it should probably be disclosed, but that is a much smaller "constitutional exception" than is commonly advanced by Defense.

I will check out the case you cited. Also check out "When Disclosure under Brady May Conflict with Attorney Client Privilige" by Vincent Falvo. It is a tough issue.

Tami a/k/a Princess Leia

4/5/2024 11:32:58

Doesn't due process mean anything? What about getting to the truth? Not the complainant's "truth," but THE truth. What about cases where the Government charges sexual assault based on "mental incompetence," making mental health records necessary. I actually litigated such a case almost 20 years ago, turned out the mental health diagnosis was phony to keep the complainant as a "dependent."

Civilian records can also contain Brady material. For example, records from "child advocacy centers", a/k/a hearsay manufacturing facilities, where the records are available to law enforcement and prosecutors when they're helpful, but they'll fight tooth and nail to have to provide them to the defense when exculpatory. Fortunately, we were able to argue waiver, not just the child disclosing her therapist "taught" her what "abusing" was, but also the mother.

Donald G Rehkopf, Jr.

4/5/2024 11:56:11

Due Process-Fair Trial. See Phillips, The Constitutional Right to a Remedy, 78 N.Y.U. L. Rev. 1309 (2003):
https://www.nyulawreview.org/wp-content/uploads/2018/08/8.pdf
Wexler, Privacy Asymmetries: Access to Data in Criminal Defense Investigations, 68 UCLA L. Rev. 212 (2021):
https://www.uclalawreview.org/wp-content/uploads/securepdfs/2021/08/Wexler-Final-Article-Pages_no-bleed.pdf

And perhaps the best scholarly analysis, is: Mosteller, Admissibility of Fruits of Breached Evidentiary Privileges: The Importance of Adversarial Fairness, Party Culpability, and Fear of Immunity, 81 WASH. U. L. Q. 961 (2003). Available at: https://openscholarship.wustl.edu/law_lawreview/vol81/iss4/2

And, in addititon to Richie, which someone cited, see also Davis v. Alaska, 415 U.S. 308 (1974).

Trial Counsel 2

4/5/2024 22:35:06

I don’t understand the cites to Ritchie…I understand Blackmun’s concurrence supports your points on the Confrontation clause, but the plurality opinion rejected the idea that the confrontation clause gives a right to discovery. Blackmun lost.

And Tami, due process means what the Supreme Court says it means. Which is no discovery right outside of Brady. See Weatherford v. Busey.

SVC

4/4/2024 15:14:38

@nathan - there is a case in front of SCOTUS that will get to these issues. https://www.scotusblog.com/case-files/cases/glossip-v-oklahoma-3/

(1) Whether the state’s suppression of the key prosecution witness’ admission that he was under the care of a psychiatrist and failure to correct that witness’ false testimony about that care and related diagnosis violate the due process of law under Brady v. Maryland and Napue v. Illinois; (2) whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims;[…]

CAAF Disagreement

4/4/2024 20:55:00

Was it not just recently this blog exclaimed a CAAF resurgence with its Gilmet opinion? And now, less than a year later, CAAF is looking to Article III justiciability factors to refuse to issue an opinion on issues certified by a TJAG. This is not good for military justice. This is not good for the civilian oversight that CAAF is supposed to provide.

Scott

4/4/2024 21:29:00

I don't understand the comparison to Gilmet. In Gilmet CAAF overturned the lower court's decision thay directly impacted the future/existance of the case. What does Gilmet have to do with this opinion?

Brenner Fissell

4/4/2024 21:43:39

To be fair to them, it appears all the Article I courts self-impose Article III justiciability, even though they don't need to.

CAAF Disagreement

4/5/2024 07:50:49

Do the other Article I tribunals have a TJAG Certification process? Article 67 says CAAF “SHALL review the record in…all cases….TJAG…orders sent to CAAF for review.” In some ways, now that I think of it more, this is actually consistent with a “CAAF resurgence” as it is defying its mandate in Article 67 under some guise of Article III justiciability. The fact that CAAF seems to only do this in victims rights cases is telling, and its unwillingness to enter the Article 6b arena will be noticed by Congress - possibly to the detriment of military justice at large.

Donald G Rehkopf, Jr.

4/5/2024 12:00:42

Brenner, if you haven't seen this article, check it out:

Pfander The Supreme Court, Article III, and Jurisdiction Stuffing, 51 Pepp. L. Rev. 433 (2024)
Available at: https://digitalcommons.pepperdine.edu/plr/vol51/iss3/1

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