Court of Appeals for the Armed Forces

NOTE: Decisions have been issued in the three Mendoza cases: Serjak, Hennessy, Moore. I'm not commenting as one of them is mine and has been remanded, like the others.

U.S. v. Jacinto

On the eve of Appellant’s 2018 trial, the defense received E.B.’s medical records which the defense had been seeking throughout the pretrial proceedings.
. . . . 
The week before the trial began, the hospital produced the required records. While at the hospital, Emily was prescribed Tylenol and four other medications, including Thorazine. It was the Thorazine that was at issue. This medication was prescribed for “psychotic agitation.” Appellant had a child psychologist provide expert testimony that Thorazine was a “known antipsychotic medication” used to assist patients who may be “stimulated internally by things that are not actually going on” or who could be “laboring under the burden of delusions.” But Emily was diagnosed with “depression without psychotic features” and the Thorazine was prescribed “as needed.” There was also no evidence Emily ever exhibited psychotic agitation or ever took Thorazine. The military judge denied Appellant’s motion for in camera review of Emily’s mental health records and denied his motion for a continuance based on the timeline of the disclosure of the records. The day before trial, Appellant moved the military judge to reconsider his denial of the continuance; the military judge denied the motion to reconsider.

United States v. Jacinto, 79 M.J. 870, 878 (N-M Ct. Crim. App. 2020).

Why denial of a continuance?

Appellant requested the continuance so he could have more time to research whether Emily ever took Thorazine or was having psychotic delusions when she made her 2017 report against Appellant. Our resolution of the Mil. R. Evid. 513 issue weighs heavily on our analysis here.
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Appellant had ample time—before the Government's production of Emily's medical records—to gather evidence of Emily's psychotic delusions from non-privileged sources. Prior to Emily's 2017 disclosure, Appellant lived with her and saw her almost continuously for nearly a decade. Appellant's counsel also could have spoken with Emily's friends and teachers, or even gathered evidence of psychotic delusions on social media. It stands to reason that if Emily did have actual psychotic delusions—contrary to her diagnosis of "depression without psychotic features"—this behavior would have manifested itself in some way other than solely in the repeated disclosure of her four-year-old allegations against Appellant.

Similar to the reasons stated above, the issue was not necessarily whether Emily experienced psychotic delusions in 2017, but whether she experienced psychotic delusions in 2013 when the sexual abuse is said to have occurred. Even if she was experiencing mental health problems in 2017, the relevant issue was whether those same mental health problems caused her to make a false report in 2013. We find there was no possible impact on the verdict because there appears to be no evidence Emily was having psychotic delusions in 2017, and even if she were, it would not necessarily be relevant to the allegations she made in 2013. The military judge did not abuse his discretion.

This case is again before us, with a lengthy and complicated appellate procedural history. United States v. Jacinto, No. 201800325, 2024 CCA LEXIS 14, at *1 (N-M Ct. Crim. App. Jan. 18, 2024).

Whatever happened, the denial of continuance led to significant, unnecessary delay and litigation post-trial, including several rounds of appeals and two Dubay hearings. Notably NMCCA, to which the Government agreed, found error in not granting the continuance.

From CAAF's per curiam opinion.

Appellant appealed to this Court, arguing that the military judge abused his discretion when he denied the defense motion for a continuance and when he denied a defense motion for in camera review of E.B.’s mental health records.

[CAAF] concluded that the record is unclear and incomplete, we cannot make an informed decision about whether the military judge’s crucial factual findings are clearly erroneous.

[CAAF] We specifically noted a crucial dispute between the parties about whether the medical records indicate that E.B.’s physician diagnosed E.B. with psychotic agitation and authorized attending medical personnel to administer Thorazine when needed, or that E.B.’s physician was merely indicating in the charts that medical personnel were authorized to administer Thorazine if needed in the event E.B. subsequently displayed symptoms of psychotic agitation.

[CAAF] set aside the lower court’s decision in part and remanded for additional proceedings to obtain more information.

On remand, the CCA ordered a DuBay hearing. However, the DuBay judge did not resolve whether E.B. was diagnosed with psychotic agitation in May 2017. Nevertheless, the CCA concluded that the military judge abused his discretion in denying the continuance motion, but the lower court then held that Appellant was not prejudiced by the military judge’s error. The CCA again affirmed the findings and sentence.

[CAAF] then granted review of two issues: I. Did the lower court fail to comply with this
Court’s remand order? II. Did Appellant suffer prejudice from the military judge’s erroneous continuance denial?

Following oral argument, we ordered the Government to submit an affidavit from Dr. Harwant Gill, E.B.’s treating psychiatrist, to address “why E.B. was prescribed Thorazine and whether E.B. exhibited psychotic agitation in May 2017.”

The Government procured Dr. Gill’s affidavit, but this affidavit was “unresponsive on these points.”

Consequently, we remanded the record yet again for further factfinding regarding two key questions: 1. Why was E.B. prescribed Thorazine in May 2017? 2. Did E.B. exhibit signs of psychotic agitation in May 2017?

The CCA ordered another DuBay hearing. Dr. Gill appeared at a closed session of the hearing and only the DuBay judge questioned him. Dr. Gill stated that he had prescribed Thorazine “as a standard precautionary medication available to nurses.” He explained that he took this step just in case any instances of “acute agitation, self-injury, [or] attempts to harm
others” arose but the nurses could not immediately contact a physician. He stated that prescribing Thorazine on an “as needed” basis was standard “admission protocol” for patients E.B.’s age, and thus this prescription was “not specific to E.B.’s presenting symptoms or illness.” Dr. Gill also testified that E.B. did not exhibit signs of psychotic agitation and that E.B. denied experiencing hallucinations and delusions. Further, Dr. Gill stated that E.B. was not “actually administered Thorazine.”

[Query: NMCCA laid out reasons why the defense failure to produce some evidence of psychosis (although NMCCA does not clarify when the defense first became aware of the Thorazine issue in time to investigate). But, (1) why did the Trial Counsel in 2018, on the eve Appellant's trial, not know the basics at the time of trial from the medical records and witness interviews, (2) could Trial Counsel have called Dr. Gill earlier during litigation, and (3) if there was an SVC at trial, why was there no clarification at trial, a proffer perhaps? Was none of this available in the E.R./hospital records?

Dr. Gill, hypothetically, if a minor presents to you at the E.R. alleging rape, is it common practice to prescribe thorazine? Why? When you saw (observed) victim did she exhibit the common signs of XYZ? Without disclosing what she said, did she exhibit symptoms of psychosis, acute distress, hallucinations and delusions that were concerning? I see her chart shows the victim being "oriented x 5," what does that mean? Based on hospital records, was the victim ever administered Thorazine? Um, no. The medicine cabinet record for the ward is negative for that.]'

It turns out, that in 2025 people learned the answers:

1. Why was E.B. prescribed Thorazine in May 2017 Answer: E.B. was prescribed Thorazine as a standard precautionary measure for use on an “as needed” basis as part of an admissions protocol for all patients in E.B.’s age group. The Thorazine prescription was not specific to E.B.’s case or circumstances. In May 2017, E.B. was never administered Thorazine as it was not needed.

2. Did E.B. exhibit signs of psychotic agitation in May 2017? Answer: No.]

After this testimony, the defense sought to qualify Dr. Gill as an expert and to pose questions to him. The DuBay judge found that it would be unhelpful and irrelevant. See infra.

Upon completing the hearing, the DuBay judge issued written findings of facts which the CCA adopted.

The findings and sentence are to be affirmed. Appellant was not prejudiced, even if the denial of the continuance was in error, because seven years later we find out the issue of the victims mental health at the time of the offense and trial was a nothing burger.
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One practice note for Dubay hearings.

Here, the MJ only asked questions of Dr. Gill, despite what appears to be a valid request of the defense to ask questions. CAAF says, 

We begin our analysis by noting that this Court has repeatedly stated that a DuBay hearing must afford an accused due process, and we have explicitly held that due process in a DuBay hearing includes the right to cross-examine witnesses. For example, in United States v.
Miller, 47 M.J. 352, 359 (C.A.A.F. 1997), we wrote:

"Post-trial DuBay hearings must satisfy basic due process concepts. At the very least, accused persons should have notice of the post-trial hearing, the right to be heard at the proceeding, the right to present witnesses and “be represented by counsel, have an opportunity to cross-examine witnesses, . . . and have a verbatim record of the proceedings.”