Navy-Marine Corps Court of Criminal Appeals

NMCCA has denied a petition in In re K.J. because it is not ripe--something Appellate Government had agreed with. Note that by statute and regulation, a trial counsel has to consult with and get permission from Appellate Government before filing an Article 62 appeal. See also R.C.M. 908.

The trial debate relates to a Mil. R. Evid. 513. After litigating the issue, the final ruling of the MJ preceding the petition went as follows.

[A]pplying J.M. v. Payton-O’Brien, the military judge provided that Petitioner had to elect whether or not to waive her Mil. R. Evid. 513 privilege to permit in camera review of these records. The military judge then forecast several possibilities as to what could happen if Petitioner did, or did not, waive the privilege for this limited review, depending on what the military judge might find in the records if he were permitted an in camera inspection. Rather than make an election, Petitioner filed a motion for reconsideration, which the military judge denied, explicitly finding that the diagnostic criteria for BPD were themselves not privileged. Again, the military judge gave Petitioner the option to waive the privilege for an in camera review, and a date by which to inform the court of her election: 3 April 2023. However, the Victim’s Legal Counsel [] requested a[n] 802[], informing the military judge that Petitioner would seek relief with this Court. As a result, the military judge suspended the date by which Petitioner was to make her election. Petitioner ultimately filed this Petition with the Court, and, so far as we are aware, has not yet made an election. 

​Why not ripe?

• 1. "[W]e do not know whether the undisclosed diagnostic criteria at issue constitute privileged communications because we do not know what they are or how they were reached; therefore, the military judge did not abuse his discretion in deciding that an in camera review was required. Nor do we know the result of that future review might be, or what eventualities might flow from it."
• 2. "Petitioner has not demonstrated that the right to the issuance of this writ is clear and indisputable as to her second and fifth issues because those issues are not ripe. Nor can Petitioner demonstrate that issuance of the writ is appropriate as to her third and fourth issues, because Petitioner’s argument rests on the faulty premise – rejected by this Court in J.M. v. Payton O’Brien – that court-martial convictions resulting from the withholding of constitutionally required evidence from accused are somehow tolerable in the military justice system."
  
• 3. "Finally, we decline to issue an advisory opinion as to Petitioner’s first issue, as to what standard of review would apply to a ripe petition for extraordinary relief filed under Article 6b, UCMJ."
• 4. "We reject Petitioner’s argument that the military judge lacked authority to request Petitioner waive the privilege for the limited purpose of the military judge reviewing in camera Petitioner’s mental health records.. . . We are confident that a military judge’s request that an alleged victim waive the privilege for the limited purpose of in camera review, does not dilute the privilege because “the victim always holds the key to the privilege and the victim’s rights will be protected by the military justice system to the greatest extent possible, even if that results in an abatement of the entire court-martial.”
• 5. "There are at least three possibilities here: (1) Petitioner waives the privilege and permits an in camera review and the military judge finds evidence that is constitutionally required, in which case Petitioner has another election to make; (2) Petitioner waives the privilege and permits an in camera review and the military judge does not find any constitutionally required evidence; or (3) Petitioner does not waive the privilege and the military judge must therefore craft a remedy. In sum, this dispute has not crystalized sufficiently to permit appellate review at this point."

This decision raises a number of questions, which I have decided to take out of the post. Comments are, however, welcome.

​Cheers.