United States v. Jacinto--continues

In June 2018, Jacinto was convicted and sentenced for "rape of a child, sexual abuse of a child, and child endangerment by culpable negligence[.]"

Jacinto raised a number of appellate issues including that "(1) the military judge abused his discretion when he denied Appellant's motion to order the production of one of the child victims' mental health records or review them in camera[.]

In pretrial litigation, Appellant attempted to obtain medical records documenting Emily's week of inpatient treatment at the hospital. The military judge ordered the hospital to produce Emily's prescription records and her mental health diagnoses. He found the remainder of her records were privileged and that Appellant had not made a showing of vital necessity to require production or an in camera review.

The week before the trial began, the hospital produced the required records. While at the hospital, Emily was prescribed Tylenol and four other medications, including Thorazine. It was the Thorazine that was at issue. This medication was prescribed for "psychotic agitation." Appellant had a child psychologist provide expert testimony that Thorazine was a "known antipsychotic medication" used to assist patients who may be "stimulated internally by things that are not actually going on" or who could be "laboring under the burden of delusions." But Emily was diagnosed with "depression without psychotic features" and the Thorazine was prescribed "as needed." There was also no evidence Emily ever exhibited psychotic agitation or ever took Thorazine. The military judge denied Appellant's motion for in camera review of Emily's mental health records and denied his motion for a continuance based on the timeline of the disclosure of the records. The day before trial, Appellant moved the military judge to reconsider his denial of the continuance; the military judge denied the motion to reconsider.

United States v. Jacinto, 79 M.J. 870, 877-78 (N-M Ct. Crim. App. 2020). In its finding on the records issue, the court found that

The military judge applied the wrong legal standard in conducting his analysis. In his Conclusions of Law, he wrote that Appellant failed to demonstrate "a reasonable probability that the records contain information otherwise unavailable to the defense, and that the information sought is vital to the defense theory of the case." This standard "conflate[s] the constitutionally required standard envisioned in Mil. R. Evid. 412 [pertaining to the admission of constitutionally required evidence] with Mil. R. Evid. 513 [pertaining to the disclosure or in camera review of constitutionally required privileged materials]" which we have cautioned against. Because the military judge applied the wrong legal standard, we find he abused his discretion and turn to whether this materially prejudiced Appellant's substantial rights.
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We are convinced beyond a reasonable doubt that Appellant suffered no prejudice. First, there was no evidence Emily ever had the psychotic disorder Appellant alleges or that she ever took Thorazine because she was suffering from psychotic disorders or "laboring under delusions." Appellant was far from showing a "specific factual basis" demonstrating a "reasonable likelihood" the records would yield any evidence admissible under an exception to the privilege. More important, the timeline does not support Appellant's argument. Even if Emily had been suffering from psychotic delusions and had trouble appreciating reality in May 2017, Appellant would have to somehow tie those later-occurring problems to the timeframe when the alleged abuse actually happened, some four years prior. And there was absolutely no evidence she had any mental health problems when she was in fourth grade. Finally, the very fact that Emily merely repeated the same disclosure she had previously made to her mother four years earlier indicates she had at least some mental connection to a past event, which weakens any argument that she was experiencing psychotic disorders.
Despite his application of the wrong legal standard, we cannot find that the military judge's decision to deny production of the privileged records, or his refusal to conduct an in camera review, undermined Appellant's ability to make a constitutional defense or in any way contributed to the verdict. We find no prejudice.

Id. at 880-81. At CAAF in July 2021, the court discusses what's in the record.

The record before us contains conflicting information about whether E.B. was experiencing psychotic agitation when she was hospitalized shortly after her May 2017 outcry against Appellant. On the one hand, the record indicates that E.B. was diagnosed with PTSD and major depressive disorder without psychotic features. On the other hand, the medical records indicate that E.B. was prescribed Thorazine for psychotic agitation. Because of this conflicting evidence, there is a crucial dispute between the parties about whether the medical records indicate that E.B.'s physician diagnosed E.B. with psychotic agitation and authorized attending medical personnel to administer Thorazine when needed, or that E.B.'s physician was merely indicating in the charts that medical personnel were authorized to administer Thorazine if needed in the event E.B. subsequently displayed symptoms of psychotic agitation.

The military judge essentially sided with the Government in this dispute when denying the defense motions for a continuance and in camera review. Specifically, he made two key findings of fact: (1) Although the hospital prescribed Thorazine as needed for psychotic agitation, "[t]here is no evidence that E.B. ever experienced psychotic agitation"; and (2) "There is no evidence [that] the prescription for Thorazine was ever filled" or that "E.B. ever took Thorazine," and, in fact, Thorazine was "never administered to E.B." To properly assess the military judge's continuance and in camera rulings, we must determine whether these two factual findings are clearly erroneous. See Ayala, 81 M.J. at 27-28. However, we cannot evaluate the military judge's critical factual findings because of obvious omissions and ambiguities in the record.

First, this record omits five pages of hospital documents reviewed by the defense forensic psychologist (and presumably by the military judge) when she testified at the Article 39(a), UCMJ, session. This missing evidence may be important to the disposition of this case because the defense forensic psychologist's assessment of the hospital records directly contradicts the military judge's assessment of—and factual findings regarding—these same records. Without this evidence, our ability to assess the military judge's factual findings is significantly and substantively impeded.

Second, the record omits information that the military judge ordered the Government and the hospital to produce on June 14, 2018. Indeed, as previously noted, there is no indication whether the Government and the hospital even complied with the military judge's orders. However, this court-ordered information—if produced—likely would have resolved the questions surrounding E.B.'s diagnosis and her Thorazine prescription for psychotic agitation.
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Because the record before us is unclear and incomplete, we cannot make an informed decision about whether the military judge's crucial factual findings are clearly erroneous. Accordingly, we vacate the decision of the lower court in part and remand for further factual development of the record.

United States v. Jacinto, 81 M.J. 350, 354 (C.A.A.F. 2021). The record was returned to NMCCA for further review. NMCCA appears to have taken some action including issuance of an Order. (The Navy website Court Filings & Records does not list Jacinto. A note to the site tells us

This section provides public access to filings and records pertaining to Navy and Marine Corps courts-martial referred on or after December 23, 2020, in accordance with 10 U.S.C. § 940a (Article 140a, Uniform Code of Military Justice). The documents released have been selected and redacted in accordance with the standards and criteria published in 140a, Uniform Code of Military Justice, JAG Instruction 5813.2 - Public Access to Court-Martial Dockets, Filings, and Records Pursuant to Article 140a, UCMJ and the Privacy Act. Filings and court records at the trial court level will be published as soon as practicable after the certification of the record of trial.)

A 26 January 2023 Journal entry at CAAF includes an Interlocutory Order.

No. 20-0359/NA. U.S. v. Salvador Jacinto. CCA 201800325. On consideration of Intervenor E.B.'s motion for a permanent stay of the order of the lower court, motion for a hearing, and motion to file under seal Appendix C of the motion for a permanent stay, it is ordered that said motion to stay is hereby dismissed and that the Court's order issued December 22, 2022, temporarily staying the lower court's order is hereby vacated. This Court lacks jurisdiction over this matter because in United States v. Jacinto, 81 M.J. 350, 355 (C.A.A.F. 2021), the Court remanded both the record and the case to the United States Navy-Marine Corps Court of Criminal Appeals and because a writ petition is not before the Court. That said motion for a hearing is denied as moot; and that said motion to file under seal Appendix C of the motion for a permanent stay is denied as moot.

Almost five years after conviction, Jacinto's eight year term of confinement has not become final or modified. A very very rough estimate shows his MRD is sometime in 2024.