Courts of Criminal Appeals

Air Force Court of Criminal Appeals

In re DD v. United States

Petitioner requests we stay the military judge’s order and issue a writ vacating the military judge’s order to produce and discover certain non-privileged mental health information from two Veterans’ Affairs (VA) clinics. We deny the stay and find issuance of a writ is not appropriate.

Initial discovery being denied by the prosecution, the defense

h the military judge, trial counsel, and victim’s counsel. Specifically, the Defense offered that DD had shared with a witness that during DD’s time in the military, he “may have developed post-traumatic stress disorder (PTSD), was taking “several medications,” and had been seeking “mental health/medical services.” 

Does that disclosure waive any claim of privilege?

Is there enough information from the accused to establish the existence of related records? The prosecution argued at trial that there was insufficient notice under Mil. R. Evid. 513. The Petitioner appears to have made a similar claim, but

​Fourth, we disagree with Petitioner’s contention that the Real Party in Interest did not proffer the requested information existed. On 28 June 2024, the Defense filed a notice pursuant to Mil. R. Evid. 513 with the military judge, trial counsel, and victim’s counsel. They named a witness who stated he had overheard Petitioner discussing a diagnosis, treatment medications, and services. Significantly, on 26 August 2024, Petitioner testified in the closed hearing wherein he confirmed a certain mental health history existed prior to and potentially during the timeframe of the alleged offenses. This diagnosis resulted in treatment and counseling.

There appear to be some issues still to be resolved at trial.

Petitioner claims the military judge erred: (1) by issuing an order instead of a subpoena; (2) by issuing an order that is not from a court of competent jurisdiction; (3) by applying R.C.M. 701 to records in the possession, custody, and control of the VA; (4) by granting the Defense’s motion to compel evidence when the Defense failed to make a proffer of evidence; and (5) in determining a “constitutional exception” existed under Mil. R. Evid. 513 requiring discovery of certain mental health information.

Is a court-martial a court of competent jurisdiction?

On 24 September 2024, trial counsel issued and then served on the VA a subpoena with the military judge’s order attached. On 2 October 2024, the VA responded explaining the military judge’s order was issued by a court that was not of competent jurisdiction, citing the Privacy Act, 5 U.S.C. § 552a. The VA further advised that they could release the records with DD’s consent. DD denied consent to release his mental health records, therefore the VA did not provide the ordered information.

5 U.S.C. 552a(b)(11) merely states "pursuant to the order of a court of competent jurisdiction[.]"

Second, Petitioner’s concern that the VA would not comply with the military judge’s order as it was not issued by a competent court appears to reflect the VA’s perspective. In support of this position, Petitioner and the VA cite the Privacy Act, 5 U.S.C. § 552a(b)(11). We see no explanation in the Privacy Act for what may or may not be a court of competent jurisdiction. We do not subscribe to the logic of Petitioner’s argument, that the military judge was not “competent” to issue an order just because the VA would not honor it. 

Petitioner claims the military judge erred: (1) by issuing an order instead of a subpoena.

First, Petitioner’s concern that the military judge’s order should have been a subpoena is without merit. Article 46, UCMJ, allows for either format. Nonetheless, the military judge’s order was attached to a subpoena that complied with R.C.M. 703(g)(3) and was served on the VA by trial counsel on 24 September 2024. 

Is the Veterans' Administration a government agency for discovery purposes? Note that CAAF ducked the question of a military hospital being a government agency. See In re H.V.Z.

Third, while Petitioner accurately restates one paragraph of the military judge’s written ruling, the military judge did not find as a matter of fact or conclusion of law that the requested records are specifically within the possession, custody, and control of the military authorities, despite his citation to R.C.M. 701. In the context of what is before us, the military judge’s ruling and orders indicate he believed the records held by the VA were within the possession, custody, and control of the Government, as contemplated by R.C.M. 703. 

Assuming an appeal to CAAF.

Questions?

Will CAAF give guidance on the definition of a government agency--an issue that is likely to keep happening?

Will CAAF write on a military judge's authority to issue Orders and Subpoenas? Or deny the appeal and drop a footnote about enforcement of subpoenas on other government agencies not within the DoD?

If CAAF denies the appeal---

1. Can and how may the Government enforce the subpoena against the VA?  Seems like someone should be talking to the Civil Law Division?

2. What if the CLD and DoJ decide not to pursue enforcement?

3. What if the VA is right about an MJ's ability to order the records?

     a. Find a U.S. district court judge?
     b. Abatement?
     c. Dismiss with prejudice?
     d. Prohibit the CW from testifying? 
     e. Allow broad cross-examination on the mental health issues and effects? (Keep in mind it would likely be improper to ask questions in front of the jury when counsel knows the witness will invoke a privilege.)

4. What if the records are produced?

     a. Defense decides it's a nothing burger?
     b. Defense proceeds with its Mil. R. Evid. 513 motion to use the information, after having litigated an expert consultant to analyse the records, and had them evaluated for value added to the defense?

Navy-Marine Corps Court of Criminal Appeals

United States v. Espejo

The Appellant was convicted of a lot of offenses involving a child, over a period of six years and was sentenced to 50 years of confinement (limited to 43 years per the PTA and on sentence reassessment). The initial exposure was 200 years.

Appellant raises one assignment of error: whether Appellant’s sentence to 50 years of confinement was inappropriately severe.3 The Court specified five issues. After receiving briefing on the five specified issues, those issues are subsumed in the following rephrased specified issues: (1) whether the military judge erred in accepting Appellant’s guilty plea to attempting to sexually assault his daughter, which occurred outside of the statute of limitations; and (2) whether the novel provisions included in Appellant’s plea agreement violated Rule for Courts-Martial (R.C.M.)

When there is a guilty plea, and there is a potential statute of limitations issue, the MJ must inquire about that to ensure it is knowing and voluntary. Because, that is ““etched in military case law and procedure.”"

Be careful of novel pretrial agreement provisions.

In addition to the above provisions, the parties negotiated a novel provision in paragraph 10 of the plea agreement under the heading Notification provisions: h. My military attorneys and my attorney representing me in my State of California case have advised me that I am required at a minimum to remain in federal confinement until the date on which my concurrent State of California sentence would be satisfied after including credit for earned time in that penal system. This date is reflected in paragraph h.(2). (1) To facilitate that, I agree to defer using any earned time (ET) and special acts abatement (SAA) that I may earn while in confinement on my court-martial sentence until the date referenced in paragraph h.
The parties continued to discuss the provisions with the military judge, noting that if credit to confinement is deferred past what would be the accused’s minimum release date, such deferral would effectively operate as a waiver. The parties then agreed that if the provisions in question were found to be unenforceable on appeal, they would remain bound by the remainder of the plea agreement.
In their briefs on the specified issue, the parties agree that the provisions contained in paragraphs 10(h) and 10(h)(1) are unenforceable. We also agree. While trial counsel proffered to the trial court that these provisions did not require Appellant to waive any post-trial rights, but merely defer exercise of those rights, we see no functional difference in this case, where deferral of a confinement credit when it is due operates as a de facto, if not de jure, waiver of the credit to which Appellant is due.