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.
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.
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.
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.
Jonathan D. Herbst
The CAAF decision (United States v. Jacinto, 81 M.J. 350 (C.A.A.F. 2021) remanded the record to the NMCCA for further factfinding. Specifically, the record was missing five pages of the victim’s hospital records that were reviewed by the defense forensic psychologist. A DuBay judge obtained the missing five pages and also obtained for an in camera review all of the victim’s psychotherapy records. During the DuBay hearing, the parties reviewed the five missing pages but did not review the psychotherapy records.
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