Mellette redux

Appellant was convicted in 2019, contrary to his pleas, of sexual abuse of a child in violation of Article 120b, Uniform Code of Military Justice (UCMJ). This case is before us again following remand by the Court of Appeals for the Armed Forces (CAAF) in July 2022 and an extensive fact-finding process described further below. The issue here is whether the military judge’s denial of Appellant’s discovery motion seeking production of the complaining witness’s mental health records materially prejudiced Appellant at trial. Appellant asserts that the erroneous denial of production of the complaining witness’s mental health documents deprived him of the right to present a complete defense. We disagree

Part B, Documents Responsive to Appellant’s Discovery Motion Existed and Should Have Been Produced.

In response to the DuBay judge’s vorder, the providers turned over nearly 60 pages of mental health documents which are largely redacted leaving exposed only information that complied with the CAAF’s ruling. From the non-redacted portions of these documents, Appellant identified five pieces of information that he claims are new. The non-redacted portions of the documents turned over were non-privileged and responsive to this request and should have been provided to Appellant prior to his court-martial. The Government, in its Answer, concedes this point. But, there's no prejudice.

Part C, The Required Production of Evidence in the Discovery Process Does Not Automatically Equate to Admissibility of That Evidence at Trial.
​(Keep in mind that this is a Monday morning review of the discovery required and the effects or lack of effect in hindsight.)

Appellant asserts that the DuBay judge reached confusing conclusions when she found the new information relevant and necessary but cumulative. We see no confusion here. The DuBay judge correctly found that the mental health records discussed above were relevant and necessary in accordance with R.C.M. 703(e). This holding reflects the nature of the discovery process. Logically, R.C.M. 703(e) is primarily applicable during the pretrial phase of the military justice process – it would be counterintuitive and judicially inefficient to require discovery only be turned over to the defense at trial. Relevant evidence, in the discovery stage, is necessary when it is not cumulative. But, that same information could become cumulative, for admissibility and confrontation purposes, with other evidence presented at trial.

At the time of Appellant’s original motion to compel, some of the information from the mental health records was “relevant and necessary.” But it was cumulative at trial with other information the Defense had access to or possession of.

The point here is that production and use are two different steps. A cumulative analysis is not required at the discovery stage. And, while such a discovery might ultimately be cumulative and objectionable on that basis, what is produced might lead to other investigative steps, a different approach to cross-examination, or the prosecution might open the door. So it seems reasonable to suggest that a cumulative evidence analysis would be inappropriate at the discovery stage.

Part D, Information From the Documents That Should Have Been Produced Was Not Admissible at Trial.
(Keep in mind that this is a Monday morning review of the discovery required and its admissibility in hindsight.)

Three of the five items that were identified as new were found to be relevant and necessary by the DuBay judge in accordance with R.C.M. 703 and warrant further discussion. We have reviewed the redacted mental health records turned over by the providers and agree with the DuBay judge concerning the status of the information.

* Post-Traumatic Stress Disorder (PTSD) diagnosis from 2019 requires a psychotherapist to specify “with dissociative symptoms” when they are present – there is no evidence in the record of such things and none noted. “A review of [her] underlying symptoms, and when those symptoms first occurred would be required.”Major Whiskey’s general assessment that “thePTSD could prove relevant” because “individuals with a history of PTSD may experience dissociated symptoms” and that “PTSD can taint perception” is entirely speculative. Nothing in the records suggest these things happened. A selective focus on some generally associated conditions has little, if any, probative value.

Rule 513 protects communications between a Patient and a Psychotherapist. Because there is nothing in either the original record or the additional documents from the providers that forms a basis to suggest Stacy suffered dissociated symptoms or perception issues, the only way MAJ Whiskey, and thus Appellant, could get the underlying symptoms that led to this diagnosis would be prohibited by Mil. R. Evid. 513. Therefore, the PTSD diagnosis offers no additional information or lines of inquiry to Appellant.

* Nothing about [the prescribed] Effexor suggests it impedes memory, recollect, or contributes to delusions. Indeed, knowing that Stacy was prescribed Effexor would have prohibited Appellant from speculating before the members (as his counsel did) about what the then-unknown medication was. So, while learning Stacy was prescribed Effexor was new, that information provided no additional or alternative avenues of impeachment.

* Global Assessment Functioning (GAF) score. Major Whiskey, in his declaration to the DuBay judge, correctly notes that a GAF scale of 21-30 indicates it is “possible” Stacy “may” have been experiencing delusions. Major Whiskey states that this level indicates “severe dysfunction: Behavior is considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment . . . OR inability to function in almost all areas.”

However, the DSM IV also indicates this GAF level indicates “brief psychotic disorder” where delusion is one of four symptoms that could have lasted 1 day to less than 1 month with eventual full return to premorbid level of function.

Maj. Whiskey further stated that one of several delusions possible is Erotomania or “delusional love.”49 In fact, the DSM-5 lists Erotomania as one of seven possible delusions. There is nothing in the record that suggests Stacy suffered from Erotomania or any of the other six possible delusions. Further, as pointed out by the Amicus, the GAF system was abandoned by the DSM-5 that was published in 2013. This DSM change alone raises the question of legitimacy in the GAF scale and puts the issue directly under the Mil. R. Evid. 403 microscope. [W]e are convinced beyond a reasonable doubt that the military judge would have and should have properly excluded the GAF scales in accordance with Mil. R. Evid. 403.

Part E. ​The Non-privileged Records Would Not Have Led to Full Discovery of Protected Military Evidence under Rule 513 or Other Evidence.

Appellant asserts that absent the erroneous denial of the discovery motion, he would have had access to the protected records. This sentiment both exaggerates the nature of the evidence at hand and undercuts the essence of J.M. v. Payton-O’Brien. Appellant relies on, and places great stock in, Maj. Whiskey’s declaration [which is not very helpful].

[Applying] Mil. R. Evid. 513(e)(3), there's was not enough information available to the trial judge or the Dubay judge, and NMCCA agrees there is no basis to conclude there was an abuse of discretion.

Part F. ​The Non-Privileged Mental Health Records Were Not Material to Cross-Examination.

At trial, Stacy testified to substantially the same facts as appear in her family court deposition.66 She admitted her week-long stay at Vista for mental health treatment67 and she acknowledged memory problems as they related to times and dates.
. . . 
Stacy’s agreement with trial defense counsel’s questions and her testimony on direct examination, conceding a lack of memory to specific dates, did not necessitate impeachment. Nothing in the non-privileged mental health records would have enhanced or changed the nature of that cross-examination. Trial defense counsel highlighted memory problems and bias; even if the military judge had allowed inquiry into specifics despite Mil. R. Evid. 403, we have no doubt the result would have been the same. The erroneous denial of the non-privileged mental health records did not impact Appellant’s ability to cross-examine the witness.

On the necessity of impeachment, keep in mind that inconsistency for purposes of Mil. R. Evid. 613, may be found “not only in diametrically opposed answers,” but also in “inability to recall,” United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.A.A.F. 1993), or equivocation. United States v. Meghdadi, 60 M.J. 438, 444 (C.A.A.F. 2005). But the issue for Mellette is the lack of anything useful to impeach with.

Part G. Prejudice.

Where any errors statutory or did they have a constitutional component--it matters.

Prejudice for such a statutory violation would be evaluated under Kerr: (1) the strength of the Government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question.

However, where an error includes a “constitutionally improper denial of a defendant’s opportunity to impeach a witness,” the question is whether the error is harmless beyond a reasonable doubt.79 For such a review, we weigh factors including: the importance of the witness’ testimony in the prosecution’s case; whether the testimony was cumulative; the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; the extent of cross-examination otherwise permitted; and, of course, the
overall strength of the prosecution’s case.
. . .
Even under the stricter test, which both parties [but not amicus] agree applies, Appellant is not entitled to relief. Assuming denial of the non-privileged mental health records was constitutional error, the question is whether that error was harmless beyond a reasonable doubt [--it wasn't].

NMCCA also addressed other assigned errors, which included a challenge to expert testimony about "grooming." NMCCA found testimony was erroneously admitted as profiling evidence and was improperly used by the prosecution, but there was no prejudice.

There was also a challenge to the VIS specifying five years as an appropriate sentence--which the members gave. But that was not prejudicial in light of the overall case and sentencing. However, because of some factual insufficiency findings, NMCCA only affirmed three years confinement. Because of the time taken to appeal, Mellette has served his five years. He would have served confinement up to his Minimum Release Date (MRD) (5 years minus good time) and then likely placed on MSRP for the remainder of the five years.