Court of Appeals for the Armed Forces

United States v. Jacinto

"A general court-martial convicted Appellant, contrary to his pleas, of rape of a child, sexual abuse of a child, and child endangerment by culpable negligence[.]" United States v. Jacinto, 79 M.J. 870, 875 (N-M Ct. Crim. App. 2020).

In it's latest opinion (per curiam), the Court explains why a another remand to NMCCA is necessary.

In 2021, we initially granted review to determine whether the military judge abused his discretion when he denied defense requests for a continuance [1] and for in camera review of E.B.’s mental health records. Jacinto, 81 M.J. at 351. However, upon review, we found that the record was “unclear and incomplete,” and that we could not make “an informed decision about whether the military judge’s crucial fact findings [were] clearly erroneous.” We therefore “vacate[d] the decision of the lower court in part and remand[ed the case] for further factual development of the record.” In doing so, we directed the lower court to “obtain the missing record evidence and any other evidence (such as affidavits from medical providers) relevant to whether E.B. was diagnosed with psychotic agitation in and to make “any other findings of fact necessary to resolve the granted appellate issues.”

n.1. The basis for the defense request for a continuance was the Government’s “bombshell” disclosure “on the eve of trial” that E.B. had been prescribed Thorazine for psychotic agitation while also being diagnosed with “PTSD and major depressive disorder without psychotic features.” Trial defense counsel explained that the question of whether E.B. was experiencing psychotic agitation at the time of her accusation against Appellant “goes to the heart of [E.B.’s] credibility, memory, and ability to accurately perceive events.”

Slip op. at 5. The nature of the disclosure and issue was,

In pretrial litigation, Appellant attempted to obtain medical records documenting Emily's week of inpatient treatment at the hospital. The military judge ordered the hospital to produce Emily's prescription records and her mental health diagnoses. He found the remainder of her records were privileged and that Appellant had not made a showing of vital necessity to require production or an in camera review.

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"19 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, 877-78 (N-M Ct. Crim. App. 2020).

​Upon remand from CAAF the first time, NMCCA ordered a Dubay hearing after which Jacinto returned to CAAF. However, 

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

Having received various additional "facts," the Court concluded that,

​Even after all of this litigation, this Court still does not know the answer to two crucial questions: Why was E.B. prescribed Thorazine, and was E.B. diagnosed with psychotic agitation in May 2017? Dr. Gill’s affidavit was unresponsive on these points. He stated that he no longer works at the hospital where E.B. was treated, he does not remember E.B.’s case, and “[r]etrieving the hospital records would be the only way to answer the Court’s questions.”

The Court observed that during the Dubay hearings all of the relevant records of the alleged treatment were obtained for in camera review by the military judge. Slip Op. at 3. Ever helpful, CAAF writes n.3.

One obvious step that should be considered is providing Dr. Gill with relevant portions of E.B.’s medical records so that he can attempt to answer the key questions noted above. If this approach is unproductive for whatever reason, at a minimum Dr. Gill should be asked about the circumstances that would cause him, as the Medical Director at the Department of Psychiatry at a public hospital, to prescribe Thorazine to a minor who had been hospitalized for inpatient mental health treatment.

The alleged offenses appear to have happened well before 2017 when an investigation began.

Sentence adjudged 25 June 2018. He was sentenced to eight years confinement. If he got only the standard good time credit he should have been released by now at his Minimum Release Date (MRD). If he's been classified as a "denier," then it's unlikely he got paroled.

NMCAA first decides the case in April 2020. United States v. Jacinto, 79 M.J. 870 (N-M Ct. Crim. App. 2020).
​
Subsequent History:

Review granted by United States v. Jacinto, 81 M.J. 57, 2021 CAAF LEXIS 68 (C.A.A.F., Jan. 14, 2021).

Later proceeding at United States v. Jacinto, 81 M.J. 235, 2021 CAAF LEXIS 363, 2021 WL 1940027 (C.A.A.F., Apr. 20, 2021).

Vacated by, in part, Affirmed by, in part, Remanded by United States v. Jacinto, 81 M.J. 350, 2021 CAAF LEXIS 686, 2021 WL 3043325 (C.A.A.F., July 15, 2021).

Writ denied by, Stay denied by, Motion granted by, Motion denied by In re E.B., 2022 CCA LEXIS 155 (N-M.C.C.A., Mar. 17, 2022).

Stay granted by United States v. Jacinto, 83 M.J. 145, 2022 CAAF LEXIS 913, 2022 WL 18275846 (C.A.A.F., Dec. 22, 2022).

Stay denied by, Motion denied by, As moot, Stay denied by, As moot United States v. Jacinto, 83 M.J. 182, 2023 CAAF LEXIS 52, 2023 WL 2115977 (C.A.A.F., Jan. 26, 2023).

Decision reached on appeal by United States v. Jacinto, 2024 CCA LEXIS 14, 2024 WL 234699 (N-M.C.C.A., Jan. 18, 2024).

Petition for review filed by United States v. Jacinto, 2024 CAAF LEXIS 255, 2024 WL 2963489 (C.A.A.F., May 7, 2024).

Review granted by United States v. Jacinto, 2024 CAAF LEXIS 415 (C.A.A.F., July 19, 2024)

Later proceeding at United States v. Jacinto., 2025 CAAF LEXIS 123, 2025 WL 464277 (C.A.A.F., Jan. 29, 2025) (oral argument).

Later proceeding at United States v. Jacinto, 2025 CAAF LEXIS 74, 2025 WL 466921 (C.A.A.F., Jan. 31, 2025).

Petition for review filed by United States v. Jacinto, 2025 CAAF LEXIS 110 (C.A.A.F., Feb. 12, 2025).