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