Courts of Criminal Appeals

Air Force

In re KS, et. al. is another SVC writ petition.

​Petitioners are three named victims in the general court-martial at Vandenberg Space Force Base, California. The charges include, inter alia, violations of Article 128 and 128b, UCMJ, In re KS et al., Misc. Dkt. No. 2023-06 2 10 U.S.C. §§ 928, 928b.1 Petitioner KS requests we issue a writ requiring the military judge to apply certain provisions of R.C.M. 703 and Mil. R. Evid. 513.2 We deny the petition. 

Essentially the MJ was presented with a "joint" TC and DC motion to compel the production of various medical records of the alleged victims.

They continued:

     The Government’s intent would be to provide (1) the non-communication mental health records, and (2) medical records relating to physical injuries potentially consistent with the allegations in this case for the named victims during the individual charged timeframes, along with any other potentially relevant records, such as indications to medical provide[r]s as to whether they feel safe at home or not.

In its response to the Government’s motion, trial defense counsel asserted that “because the Defense has requested non-communication mental health records, both the Prosecution and Defense recognize these records fall outside of [Mil. R. Evid.] 513 pursuant to the holding by the [United States] Court of Appeals for the Armed Forces in [United States v.] Mellette, 82 M.J. 374 [(C.A.A.F. 2022)].” The military judge ruled on the government motion on 20 July 2023. In it, he ordered trial counsel to identify “non-privileged mental health records [that] are within the possession, custody, or control of military authorities, located at Vandenberg Space Force Base, . . . .” He also ordered trial counsel to “discover” ​any medical or mental health record that is subject to disclosure and “is relevant to the [D]efense’s preparation.” 

At this the petition was filed with a request to stay the proceedings. The stay was denied. KS filed a supplemental brief in which "the two other victims "do not join[.]""

Neither the Government nor the RPI filed any response to the writ filings.

​Petitioner KS alleges the military judge made three errors: (1) concluded the requested records were in the possession of a “military authority;” (2) abrogated his duty to review matters subject to Mil. R. Evid. 513; and (3) violated KS’s right under Article 6b(a)(8), UCMJ, to be treated with fairness and with respect for her privacy and dignity. We find Petitioners failed to show that the right to issuance of the writ is clear and indisputable, and that the issuance of the writ is appropriate under the circumstances.

First takeaway--records held by the military medical group are "in the possession of a "military authority.""

Second takeaway (on the facts here)--the defense request did not ask for records covered by Mil. R. Evid. 513, so there is no MJ duty to follow that Rule before ordering production.

Petitioner KS also asserts the military judge “underwrote a fishing expedition into the private confines of KS’s life, disregarding her rights.” To this point, we return to issue (1). The military judge applied R.C.M. 701, which includes a requirement for relevance—a low bar, but a bar nonetheless. Additionally, in his order to the medical group, the military judge emphasized that no privileged records should be provided to counsel. In his order to trial counsel, the military judge ordered that only those records “subject to disclosure” and “relevant to the [D]efense’s preparation” should be provided to the Defense. While the military judge did not determine or require the records to be necessary for the accused’s defense—as is required under R.C.M. 703—we do not conclude the military judge allowed an unregulated “fishing expedition” or disregarded Petitioners’ victims’ rights such that it is clear and indisputable that a writ should issue. We also address Petitioner KS’s broad claim that “[i]t remains unclear in this entire proceeding wherein the rights of KS were recognized or protected” and “[t]here appears no legitimate, reasoned support for the [m]ilitary [j]udge’s intransigent refusal to acknowledge the rights and equities of KS in this process.” We read Petitioner KS to mean that the military judge did not allow her to be heard, or the military judge did not give her the outcome she wanted.

Army

United States v. Watkins is a lesson in expert assistance and instructions.

Where the military judge erred in denying the appellant's requests for expert assistance and a centrally-important findings instruction, we will set aside the result and authorize a rehearing. (fn. 2, ​These errors jointly and severally prejudiced appellant.)

An R.C.M. 706 evaluation had determined that the accused was fit for trial, etc. However, it also said that the appellant has a "Cannabis Use Disorder with Cannabis-Induced Psychotic Disorder." This disorder is discussed at pps 509-516, DSM-V (5th ed.) One noted result of the abrupt cessation can cause irritability, anger, aggressiveness, etc. There are a number of helpful articles about this disorder and its potential effects. E.g., Pearson & Berry, Cannabis and Psychosis Through the Lens of DSM-5. 16 Int. J. Environ. Res. Public Health 4149 (2019).

At trial and before us, the government asserts the defense did not meet its burden to demonstrate assistance was necessary. This is not an unfair argument, especially considering the defense's proffered justification at trial that it was "exploring [the] implications[]" of appellant's behavior. This is exactly the kind of phrasing that might cause a military judge to conclude a fishing expedition is underway. However, the defense did write in its motion:

     A mental condition not amounting to a lack of mental responsibility is not an affirmative defense, but may be admissible to determine whether [appellant] entertained the state of mind necessary to prove an element of the offense.

While lacking case-specific detail, this passage does proffer the theory of partial mental responsibility under RCM 916(k)(2), and the motion separately recounted behavioral details that raised questions about appellant's mental state.

The motion also referred to the R.C.M. 706 report, which diagnosed appellant with "Cannabis Use Disorder with Cannabis-Induced Psychotic Disorder" at the time of the alleged Article 91 and 115 offenses." At oral argument, appellee conceded government counsel's limited understanding of the interplay between a substance use disorder and resultant psychoses. We do not point this out to criticize appellee's advocacy, rather we do so to acknowledge these are medically complex phenomena, particularly when diagnosed together - even more reason to grant the defense request for expert assistance.

The court appropriately spends time analyzing the litigation issue of how detailed and specific the defense request was. They conclude,

Appellant met his burden below to show both: (1) that an expert was necessary to explain the relationship between the multiple reported instances wherein he appeared to be suffering from mental health issues and his psychotic disorder diagnosis; and (2) the inability of defense counsel to undertake this analysis themselves. Given that appellant's apparent diminished mental capacity went to the core of his defense, the government cannot meet its burden to demonstrate the military judge's error in declining to appoint an expert consultant is harmless beyond a reasonable doubt.

There is an almost missed comment on an issue that comes up with R.C.M. 706's--the quality of the evaluation. Footnote 7,

To a lay reader, at least, the report also included a potential internal inconsistency, stating that the appellant "did not have a severe mental disease or defect at the time of the alleged criminal conduct." The military judge adopted both as findings of fact in denying the defense motion without addressing that they appeared to conflict with one another. With this observation, we question the military judge's conclusion, "no irregularities with the board's proceedings [were] presented to the Court."

One of the defense issues had been to have the expert evaluate the reliability of the R.C.M. 706. Experienced practitioners will tell others to never take military R.C.M. 706s at face value, to always get a qualified psych to at least review the long form.