Navy-Marine Corps Court of Criminal Appeals

In re B.M., __ M.J. ___, No. 202300050 (N-M. Ct. Crim. App. Jun. 14, 2023).

In this petition for a writ of mandamus and MJ recusal, the court addresses several issues related to Mil. R.Evid. 513 and the abatement of proceedings where the rule prevents defense access to otherwise discoverable information.

The real party in interest [RPI], Lieutenant Commander [LCDR] Dominic R. Bailey, U.S. Navy, is charged in the general court-martial, United States v. LCDR Dominic R. Bailey, U.S. Navy, with violating Articles 120 and 128, UCMJ. Pursuant to facts that form the basis of this Petition for Extraordinary Relief, the military judge abated the proceedings.

On 1 February 2023, Petitioner filed a Petition for Extraordinary Relief in the Nature of a Writ of Mandamus and Stay of Proceedings. Petitioner seeks a Writ of Mandamus ordering the military judge to seal or destroy all of Petitioner’s mental health records, and a Writ of Mandamus directing the military judge to recuse herself from the court-martial proceedings because of actual and implied bias, and to reinstate this case to trial with a new military judge.

​On 12 April 2023, this Court ordered the United States to answer the following questions: (1) Does the United States oppose the Petition for Extraordinary Relief in the Nature of a Writ of Mandamus, and if so, why?; and (2) Did the United States provide timely notice of appeal to the military judge’s order abating the case in accordance with Article 62, UCMJ?2 At the same time, we granted the RPI leave to file a response to the Government’s answer. On 3 May 2023, Respondent filed its response, opposing the Petition for Extraordinary Relief, and answering the second question in the negative. 

The defense requested,

​(11) Any evidence that any potential witness sought or received mental health treatment, including specifically the mental health treatment records of the complaining witness [Petitioner] including records of any diagnosis or prescribed medications before or after the offense.

​     (a) This request also includes mental health diagnoses and prescription medications that the [Petitioner] had prior to or during the alleged offense as well as any mental health treatment records pertaining to the allegations asserted and treatment discussed in [Petitioner’s published autobiographical book].

Trial counsel demurred on the basis of relevance or alternatively, TC would produce if the complaining witness produced them to TC. The defense filed a motion to compel. The military judge held a hearing and ordered the complaining witness to testify about 

​her mental health treatment, specifically, names, dates, and treatment facilities she used before, during, and after the alleged assaults.

The military judge ordered production to her. In the written order, reviewed and "approved" by SVC, the military judge ordered

​[T]he appropriate records custodian at the [mental health clinic] SHALL deliver to the Court a copy of all written mental or behavioral health records for [Petitioner] from 15 January 2022 to the present ONLY to the extent those records reflect:

Any mental/behavioral health diagnosis or list thereof; Any mental/behavioral health prescriptions for medication or list thereof;

and Any prescribed mental/behavioral health treatment or list thereof.

It is requested that the review for responsive material be conducted by a health care professional who has training in mental or behavioral health. The appropriate records custodian SHALL NOT provide any portion of a written mental or behavioral health record that memorializes or transcribes actual communications made between the patient and a psychotherapist or assistant to the psychotherapist. The custodian of records shall produce only records containing no actual communications and indicating a diagnosis, medication, and/or treatment, the date of diagnosis, prescriptions, and/or treatment, and the date the diagnosis was resolved, ​if applicable. The records custodian is authorized to produce records which have been partially reacted consistent with this Order.

(Bolding and underlining in the original.)

Unfortunately, the MJ was provided more information than was requested and which shouldn't have been disclosed. The MJ read everything provided and in the process she found information helpful to the defense.

​In accordance with this Court’s guidance in J.M. v. Payton-O’Brien,11 the military judge determined that the privileged records were “constitutionally required to guarantee the accused a meaningful opportunity to present a defense” because of “possible memory confabulation or conflation as a result of [her] past abuse” and “highlighting multiple inconsistencies in [her] account of the assaults.”

Because of the way in which the MJ came to have the "discoverable" information and the complaining witness refused to waive the applicable privilege, the MJ abated the proceedings. In the ensuing writ,

​Petitioner argues that the writ should be granted because the military judge erred by: (1) failing to perform a full analysis under Mil. R. Evid. 513 prior to performing an in camera review of Petitioner’s mental health records; (2) compelling Petitioner to testify, and requesting her mental health records when defense had not established that the records were relevant or necessary in accordance with R.C.M. 703; (3) abating the proceedings based on a Mil. R. Evid. 513 remedy in response to a R.C.M. 703 production request; (4) relying on the holding in Payton-O’Brien to find that the Constitution pierced Petitioner’s Mil. R. Evid. 513 privilege; and (5) failing to recuse herself because of her actual and implied bias.

NMCCA concludes, "The military judge unintentionally and inadvertently reviewed privileged material under Mil. R. Evid. 513."

Petitioner now demands a writ of mandamus because the military judge erroneously compelled and improperly viewed Petitioner’s privileged records. Petitioner argues that because a Mil. R. Evid. 513 hearing was not held, the military judge’s receipt and review of Petitioner’s privileged information violated her constitutional and statutory rights to privacy such that the records must be sealed.32 We disagree. We find the military judge did not erroneously compel Petitioner’s mental health records, and in fact ordered the records after a R.C.M. 703 hearing to address the relevance and necessity of the non-privileged records. The error lies with the mental health facility in releasing the complete mental health file. We find that the military judge inadvertently reviewed the privileged material, and because the records are now sealed in accordance with the military judge’s order, we find no further remedy is necessary. We evaluate the merits of the writ of mandamus request below.

Compelled testimony: 

Compelling Petitioner to testify and requesting her non-privileged mental health records was not an abuse of discretion.

NMCCA takes issue with the petitioner's characterization of her right to privacy.

​Petitioner argues that the Constitution guarantees the right to privacy in her mental health records, and the military judge violated that right by ordering the release of her mental health information. Petitioner cites cases that hold the Fourth and Fifth Amendments of the Constitution protect her from unreasonable searches and seizures, that the military judge’s order compelling Petitioner’s mental health records exceeded the scope of the military judge’s authority and was patently unreasonable and unconstitutional, violates the Crime Victims’ Rights Act [CVRA], and Implementation of the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule in DoD Health Care Programs [DoD HIPAA Manual].35 These arguments were made before the trial court in a motion filed by Petitioner, who argued then, as now, that her right to fairness, respect and privacy, as granted to crime victims in Article 6b, UCMJ, was violated.36 We note initially a slight correction to counsel and ​admonish them that the right to privacy is not an enumerated right; Article 6b(a)(8) states, “The right to be treated with fairness and with respect for the dignity and privacy of the victim of an offense under this chapter.”37 The right is for fairness and respect; the word “for” is a preposition that shows the relationship of fairness and respect to dignity and privacy. Article 6b does not grant a crime victim the right to privacy, though it does grant them the right to be treated with fairness and respect for their dignity and privacy.

The NMCCA then takes up In re AL, 2022 CCA LEXIS 702 (A.F. Ct. Crim. App. Dec. 7, 2022) (unpublished), quoting In re Grand Jury Subpeona, 197 F. Supp. 2d 512, 514 (E.D. Va. 2002) (citations omitted).

• "Petitioner’s reliance on Article 6(b) for granting a right of privacy such that victims of crimes are not required to testify at motions hearings about non-privileged matters such as the identity and location of mental health providers is misplaced."
  
• " the military judge did not abuse her discretion when she ordered the mental health clinic to release Petitioner’s medical records. The military judge’s order was narrowly tailored so as to avoid Mil. R. Evid. 513 evidence and was reasonable given the circumstances."
  
• "The military judge did not abuse her discretion when she abated the proceedings." What else could she do? She had seen potentially exculpatory information, she couldn't show it to the defense, and so the defense was hamstrung is advancing a claim for production and ultimate use to confront the witness with information relating to credibility and reliability.

Petitioner invites this Court to remedy the wrongs she finds in PaytonO’Brien. Petitioner asserts, “[t]he Military Judge clearly and indisputably erred by relying on the unenumerated constitutionally-required exception in its analysis. Before returning this matter to a military judge, this Court should overturn [Payton-O’Brien] to prevent additional Article 6b, U.C.M.J. violations and resolve the conflict in the service courts of criminal appeal.” Petitioner argues that Payton-O’Brien stands for the proposition that “the constitutionally-required exception is still a viable basis to pierce the privilege.” We do not share Petitioner’s view that Payton-O’Brien was wrongly decided and poorly reasoned, and in fact take the opportunity to build upon what we believe to be sound legal footing.

​All statutes and regulations are subject to the Constitution. “

The NMCCA discusses whether a confrontation or  Brady is the issue. The NMCCA concludes that the only exceptions to Mil. R. Evid. 513 are those listed in the rule. This gets us to abatement as a remedy rather than ordering production.

​Although the discussion below highlights how our courts are not as divided as they may be perceived to be, it is critical here to at least mention that rarely are psychotherapist-patient records as material as they are in the present case. This fact alone distinguishes the present matter from McClure and Tinsley, cases in which the relevance of the requested records could not be established by the accused. It is a unique situation indeed where a victim has shared so much past personal medical history in a public space (although later determined to be false), such that an accused can make a valid, substantiated, and targeted request without ever speaking with the victim. As outlined above, Petitioner here levied allegations against RPI that clearly made her mental health status an issue of exploration for RPI. It is no surprise at all that the military judge ordered production of the non-privileged records in light of RPI’s strong showing of necessity and relevance, which was entirely based on information pulled from the public realm. Petitioner’s recantations under oath in which she denied mental health treatment for her childhood abuse only confuse the issue more and make her current mental health records all the more relevant.

On the facts, abatement was not an abuse of discretion. And in a quasi advisory gesture,

Petitioner argues that the “military judge’s decision to improperly review privileged communications and deem them releasable under the unenumerated constitutionally-required exception, warrants disqualification under R.C.M. 902(b)(1).” Petitioner’s basic factual assertion is incorrect. As discussed previously, the military judge did not release any privileged records to anyone but Petitioner. Because Petitioner refused to further release the records, the military judge abated the proceedings rather than proceed with a constitutionally unfair trial. Although the proceedings are abated, which renders the matter moot, we will reiterate that pursuant to Art. 26, UCMJ, military judges cannot sit as a witness for the prosecution. This has been interpreted to mean activity in the case greater than what we see here. We also note that a military judge must leave the proceedings “free from substantial doubt in the mind of reasonable persons with respect to the impartiality of the trial judge.” Military judges regularly view evidence that is otherwise inadmissible in court and need not recuse themselves. This is indeed an interesting case where only the military judge and the SVC know of information not otherwise known to the parties, but this does not require recusal. 

Confabulation is at times a legitimate avenue for the defense (and should I say TC) to investigate where there is some indication of prior sexual trauma. Check out Jerrod Brown, Deb Huntley, Stephen Morgan, Kimberly D Dodson, and Janina Cich, Confabulation: A Guide for Mental Health Professionals. 4 Int. J. Nuero Nuerother 70 (2017). Some professionals refer to this as honest lying.