UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                               HAIGHT, PENLAND, and WOLFE
                                  Appellate Military Judges

              DB, by and through Captain RANDY L. JOHNSON,
                            Special Victim Counsel
                                       v.
          Colonel JEFFERY D. LIPPERT, Military Judge, Respondent

            Sergeant OTIS R. DUCKSWORTH, Real Party in Interest

                                   ARMY MISC 20150769

                       Headquarters, United States Army Alaska
                          Jeffery D. Lippert, Military Judge


For Petitioner: Captain Randy L. Johnson (on brief); Captain Randy L. Johnson (on
reply brief).

For Real Party in Interest: Lieutenant Colonel Jonathan F. Potter, JA; Major Andres
Vazquez, Jr., JA (on brief).

Amicus Curiae:

For the Air Force Special Victims’ Counsel Program: Lisa R. Kreeger-Norman, Esq.

For Protect Our Defenders: Peter Coote, Esq.


                                        1 February 2016

                   ----------------------------------------------------------------
                        MEMORANDUM OPINION AND ACTION ON
                    PETITION FOR EXTRAORDINARY RELIEF IN THE
                            NATURE OF A WRIT OF MANDAMUS
                   -----------------------------------------------------------------

WOLFE, Judge,

       Petitioner DB has requested that this court issue a writ of mandamus setting
aside the military judge’s ruling on Military Rule of Evidence [hereinafter Mil. R.
Evid.] 513 and that we declare the mental health records that were the subject of that
ruling to be inadmissible at trial. Additionally, petitioner asked this court to stay the
court-martial proceedings pending such a decision. We granted petitioner’s request
DUCKSWORTH – ARMY MISC 20150769

for a stay on 30 November 2015. 1 We now address the substance of the petition and
lift the stay.

      Petitioner assigns four errors. 2 As we agree with the first, second, and fourth
assignments of error, we do not reach the third. The petition is GRANTED in part in
that we set aside the military judge’s ruling under Mil. R. Evid. 513. The petition is
DENIED in that we make no determination on whether petitioner’s mental health
records would be admissible at trial, assuming a properly conducted hearing under
Mil. R. Evid. 513. 3




1
 In granting the stay we also specifically provided for the opportunity for the
Government and Defense Appellate Divisions to file responsive briefs and to “attach
any matters they believe are necessary to the resolution of this petition” in order to
provide an opportunity to supplement the record. The accused, as the real party in
interest submitted a responsive brief but did not attach new matters. The
government submitted neither a brief nor additional matters. Accordingly, we will
resolve the petition based on the limited record before us.
2
    The assignments of error are as follows:

         I. Whether the military judge erred as a matter of law when he ruled that the
         disclosure of [petitioner’s] mental health records prior to an evidentiary
         hearing as required by Mil. R. Evid. 513(e)(2) did not violate her privilege
         under Mil. R. Evid. 513(a).

         II. Whether the military judge erred as a matter of law in determining that a
         mandatory disclosure under Mil. R. Evid. 513(d)(2) was sufficient to trigger
         an in camera review of [petitioner’s] mental health records.

         III. Whether the military judge erred as a matter of law by ruling that the
         constitutional exception applies under Mil. R. Evid. 513.

         IV. Whether the military judge abused his discretion when he ruled that the
         defense met its burden under Mil. R. Evid. 513 and United States v. Klemick
         [56 M.J. 576 (C.A.A.F. 2006)] where the defense offered no evidence or
         witnesses in support of their motion to compel production of [petitioner’s]
         mental health records.
3
 We granted two motions to submit briefs as amicus curiae from “Protect Our
Defenders” and The United States Air Force Special Victims’ Counsel Division.



                                               2
DUCKSWORTH – ARMY MISC 20150769

                                 I. JURISDICTION

       Before we can address petitioner’s questions, we must first determine whether
we have jurisdiction to issue the writ requested. Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94-95 (1998) (Jurisdiction must be established as a threshold
matter without exception). As the provisions of Article 6b(e), UCMJ, are relatively
new, some inquiry is necessary.

       The Army Court of Criminal Appeals is a court of limited jurisdiction,
established by The Judge Advocate General. UCMJ art. 66(a). (“Each Judge
Advocate General shall establish a Court of Criminal Appeals . . . .”). The mandate
to establish this court was made pursuant to the authority of Congress to pass laws
regulating the Armed Forces. See U.S. Const. art. I, § 8, cl. 14. Our jurisdiction has
generally been limited to appeals by the United States under Article 62, UCMJ, and
reviewing the findings and sentences of certain courts-martial under Article 66(b),
UCMJ. While not a separate grant of jurisdiction, this court may also issue writs
under the All Writs Act. 28 U.S.C. § 1651(a) (2012). Our ability to issue writs
under the All Writs Act is limited to our “subject matter jurisdiction over the case or
controversy.” United States v. Denedo, 556 U.S. 904, 911 (2009); see also UCMJ
art. 66.

      Accordingly, writ jurisdiction under the All Writs Act is limited to those
matters that are “in aid of [our] respective jurisdiction[]” under Article 66, UCMJ.
28 U.S.C. § 1651(a). Jurisdiction under the All Writs Act is therefore limited to
matters that “have the potential to directly affect the findings and sentence.” Ctr.
For Constitutional Rights v. United States, 72 M.J. 126, 129 (2013) (citing Hasan v.
Gross, 71 M.J. 416 (C.A.A.F. 2012)); see also LRM v. Kastenberg, 72 M.J. 364, 368
(2013).

       Many victim rights are procedural, and even if a court-martial disregards the
rights, such action may often be unlikely to have the potential to directly affect the
findings or sentence. 4 However, in December 2014, Article 6b, UCMJ, was amended


4
  For example, the ability to be heard has been described as both a both a “right” and
a “rite.” See Mary Margaret Giannini, Equal Rights for Equal Rites?: Victim
Allocution, Defendant Allocution, and the Crime Victims' Rights Act, 26 Yale L. &
Pol'y Rev. 431, 433 (2008) (“Being afforded the right to participate in the solemn
rite of a trial signals to the speaker that what she has to say is valued. She has been
called to participate in one of the weightiest of our community rituals because her
presence and observations are deemed an important part of the legal process. The
speaker’s views may not prevail, but her insights, experiences, and contributions are
nonetheless acknowledged and validated by the mere fact that she was heard in an
official forum.”).



                                           3
DUCKSWORTH – ARMY MISC 20150769

to provide that a victim of an offense may petition this court for a writ of mandamus
to enforce certain statutory and procedural rights. UCMJ art. 6b(e); 10 U.S.C. §
806b(e) (2012 Supp. II); see Carl Levin and Howard P. “Buck” McKeon National
Defense Authorization Act for Fiscal Year 2015 [hereinafter 2015 NDAA], Pub. L.
No. 113-291, § 535, 128 Stat. 3292, 3368 (2014) (Enforcement of Crime Victims’
Rights Related to Protections Afforded by Certain Military Rules of Evidence).
We understand the mandate of Article 6b(e)(3), UCMJ (as recently amended), for
such petitions to be forwarded “directly” to this court and “to the extent
practicable,” for this court to give such petitions “priority over all other
proceedings” to be a new and separate statutory authority for this court to issue
writs. National Defense Authorization Act for Fiscal Year 2016, Pub. L. 114-92, §
531(e)(3) (2015) (Enforcement of Certain Crime Victim Rights by the Court of
Criminal Appeals). That is, Article 6b, UCMJ, is a distinct authority from the All
Writs Act.

       To consider a petition for a writ under Article 6b, UCMJ, we need not find
that the matter is in aid of our jurisdiction under Article 66. Or, more precisely, we
need not find that the matter(s) raised in the petition has “the potential to directly
affect the findings and sentence.” LRM, 72 M.J. at 368. Instead, to find jurisdiction
to issue a writ under Article 6b we need only determine that the petition addresses
the limited circumstances specifically enumerated under Article 6b(e). 5 As this
petition alleges that the military judge failed to follow Mil. R. Evid. 513, a matter
specifically enumerated in Article 6b(e)(4)(D), we find that we have jurisdiction to
consider the merits of the petition.




5
  Were writ jurisdiction under Article 6b, UCMJ, limited to matters that had the
potential to directly affect the findings and sentence, we would lack jurisdiction over
a writ petition in cases where Congress specifically authorized a victim to file a
petition. Consider, for example, a writ petition that alleges that the victim petitioner
was improperly excluded from attending the trial. Under Article 6b(a)(3), a victim
may only be excluded if the military judge finds by clear and convincing evidence
that the victim’s presence would materially alter the victim’s testimony.
Accordingly, a writ petition alleging the improper exclusion of a victim is
permissible only when a victim was excluded and the victim’s presence would not
materially alter testimony. In other words, Article 6b authorizes a writ petition only
in circumstances where the exclusion of the victim is unlikely to affect the findings
and sentence. It would be difficult to imagine that Congress intended to authorize
the filing of a writ to this court but not authorize this court to have jurisdiction to
consider the matter.



                                           4
DUCKSWORTH – ARMY MISC 20150769

                                   II. STANDARD

       To obtain the requested writ of mandamus, petitioner must show that: (1)
there is “no other adequate means to attain relief;” (2) the “right to issuance of the
writ is clear and indisputable;” and (3) the issuance of the writ is “appropriate under
the circumstances.” Cheney v. United States Dist. Court for D.C., 542 U.S. 367,
380–81 (2004) (citations and internal quotation marks omitted).

                                III. CHRONOLOGY

       On 23 June 2015, the government preferred charges against the accused (the
real party interest) for allegedly committing sexual offenses against the petitioner
and one other victim in 2012 and 2013. On 15 September 2015, the military judge
ordered the government to “produce in complete and unredacted form, sealed for in
camera review by a military trial judge, all [of petitioner’s records] currently
maintained by the Alaska Office of Child Services.” The authority cited by the
military judge was Article 46, UCMJ (“Opportunity to obtain witnesses and other
evidence”). 6

       The next day, on 16 September 2015, the trial counsel issued a subpoena for
petitioner’s records from two civilian mental healthcare providers. The subpoena
stated that the production was for the purpose of “judicial in-camera review.” The
subpoena stated that failure to comply could result in apprehension or fines of up to
$500.

      Also on 16 September 2015, the defense counsel filed a motion to compel the
production of those same mental health records under Mil. R. Evid. 513. 7 (That is,
the military judge’s order predated the defense motion, and the defense motion was
contemporaneous with the trial counsel’s subpoenas).




6
 Email traffic between the parties suggests that the military judge’s order was in
response to a request from the trial counsel who was seeking to avoid a continuance.
7
  Unless otherwise noted, references or citations to the Military Rules of Evidence in
this opinion will be to those rules found in the Supplement to the 2012 edition of the
Manual for Courts-Martial (“a complete revision to the Military Rules of Evidence
. . . implementing the 2013 Amendments to the MCM” enacted by Executive Order
13643), as modified by subsequent legislation and executive action (e.g., Exec.
Order 13696). Any exceptions will be annotated. See also “Updated Military Rules
of Evidence” posted by the Joint Service Committee on Military Justice in June
2015. Part III Military Rules of Evidence, http://jsc.defense.gov/Portals/99/
Documents/MREsRemoved412e.pdf (last visited 29 Jan. 2016, 1145).


                                           5
DUCKSWORTH – ARMY MISC 20150769

       On 29 September 2015, the military judge held a closed Article 39(a) session
to address the defense’s motion to compel the production of the mental health
records. The military judge noted his error in prematurely ordering the production
of mental health records before the hearing had ever occurred, and stated that while
the records had been produced, he had not yet reviewed the records.

          At the hearing, neither side presented any evidence nor called any witnesses.

      The military judge issued a verbal ruling on the record granting the defense’s
motion for an in camera review of all the mental health records. The hearing
recessed at 1443 hours.

       That same day, the Special Victim Counsel (SVC) requested that the military
judge delay disclosure of any mental health records pending the filing of this writ
petition. The military judge denied the request.

       Just over ten hours after the hearing ended, at 0101 hours on 30 September
2015, the military judge emailed the parties and informed them that he had
completed the in camera review and that he was ordering “numerous” pages
disclosed. 8 The email included what could be interpreted as a two-sentence
protective order, stating that the disclosed records are “FOUO” and that copies of
the records will be returned to the trial counsel at the conclusion of trial.

          On 27 October 2015, the SVC requested that the military judge reconsider his
ruling.

          On 6 November 2015, the military judge reconsidered but reaffirmed his prior
ruling.

                                    IV. DISCUSSION

          The problems that this case presents are manifold, and we will address each in
turn.

                  A. Ordering the Production of Mental Health Records.

       As noted above, the military judge and trial counsel ordered the production of
petitioner’s mental health records for the purpose of conducting an in camera review
prior to having a hearing under Mil. R. Evid. 513, and (at least in the case of the
military judge) prior to the defense filing a motion for the production of the records.
This act was in clear violation of the rules. Mil. R. Evid. 501(b)(3) (“A claim of
privilege includes . . . refus[al] to produce any object or writing”); Mil. R. Evid.


8
    Petitioner avers that the disclosed records numbered over 1400 pages.


                                             6
DUCKSWORTH – ARMY MISC 20150769

513(a) (“A patient has a privilege to refuse to disclose and prevent any other person
from disclosing . . . .”); Mil. R. Evid. 513(e)(1)(A) (in order to obtain a ruling by the
military judge, a party “must” file a written motion); Mil. R. Evid. 513(e)(2)
(“Before ordering the production . . . the military judge must conduct a hearing.”).

      The military judge admitted this error during the subsequent motion hearing
and explained that the production of the records had been at the request of the trial
counsel. He further explained that he thought the SVC was included on the email
and that the SVC had not objected. This explanation falls short in several respects.

       First, the failure to object cannot be construed as either an affirmative waiver
of a privilege or waiver of the procedural requirements under Mil. R. Evid. 513.
See, e.g., Mil. R. Evid. 510 (Waiver of privilege by voluntary disclosure). Even if
the SVC had been included in the email chain, which he apparently was not, his
silence cannot be deemed a waiver of procedural requirements.

       Second, in CC v. Lippert, ARMY MISC 20140779 (Army Ct. Crim. App. 16
Oct. 2014) (order), this court, in response to a similar petition for a writ of
mandamus, instructed this military judge that he “will comply with Military Rule of
Evidence 513(e)(2) prior to deciding whether to order production of Petitioner’s
mental health records for in camera review.” That is, less than a year prior to the
military judge’s actions in this case, we were required to direct that this same judge
follow this same rule.

      Finally, ordering the production of privileged mental health records “for the
purpose of an in camera review” prior to receiving any motion or conducting a
hearing may undermine public confidence in the fairness of the court-martial
proceedings.

                      B. Prerequisites to an In Camera Review.

On 17 June 2015, the President signed Executive Order 13696 (“2015 Amendments
to the Manual for Courts-Martial, United States”). Exec. Order No. 13696, 80 Fed.
Reg. 119, 35,781 (22 Jun. 2015). Included in the executive order, which was
effective immediately for any case which had not been arraigned, were substantial
changes to Mil. R. Evid. 513. Military Rule of Evidence 513(e)(3) was amended to
read as follows:

                 (3) The military judge may examine the evidence or a
             proffer thereof in camera, if such examination is necessary
             to rule on the production or admissibility of protected
             records or communications. Prior to conducting an in
             camera review, the military judge must find by a




                                            7
DUCKSWORTH – ARMY MISC 20150769

             preponderance of the evidence that the moving party
             showed:

                    (A) a specific factual basis demonstrating a
             reasonable likelihood that the records or communications
             would yield evidence admissible under an exception to the
             privilege;

                  (B) that the requested information meets one of the
             enumerated exceptions under subsection (d) of this rule;

                  (C) that the information sought is not merely
             cumulative of other information available; and

                    (D) that the party made reasonable efforts to obtain
             the same or substantially similar information through non-
             privileged sources.”

Exec. Order No. 13696, 80 Fed. Reg. 119, 35,819-20.

       In short, the amendments substituted a requirement for specific findings in
place of what had been a somewhat nebulous rule. Prior to the June 2015
amendment, Mil. R. Evid. 513(e)(3) stated, without explanation, that a military
judge could conduct an in camera review “if such an examination is necessary to
rule on the motion.” See Mil. R. Evid. 513 (Manual for Courts-Martial, United
States (2012 ed.)). Commentators have speculated that the amendments were needed
because in camera review, which is itself a limited piercing of the privilege, had
become “almost certain” upon a party’s request. Major Cormac M. Smith, Applying
the New Military Rule of Evidence 513: How Adopting Wisconsin’s Interpretation of
the Psychotherapist Privilege Protects Victims and Improves Military Justice, Army
Lawyer, Nov. 2015, at 10 (prior to its amendment, Mil. R. Evid. 513 “essentially
compelled a prudent military judge wishing to protect the record to at least review
the privileged communication in camera once a party requested production.”). The
fact that the trial counsel in this case requested that the military judge order the
production of petitioner’s mental health records (again, prior to receiving the
defense motion) gives credence to concerns that in camera review had become a
matter of routine. If such commentary is correct—and our own routine review of
court-martial records does not lead us to believe otherwise—the purpose of Mil. R.
Evid. 513 is clearly frustrated by such routine reviews. See Jaffee v. Redmond, 518
U.S. 1, 11-12 (1996) (without a psychotherapist privilege “confidential
conversations between psychotherapists and their patients would surely be chilled,
particularly when it is obvious that the circumstances that give rise to the need for
treatment will probably result in litigation”).




                                          8
DUCKSWORTH – ARMY MISC 20150769

                                C. The Defense Motion

       The Mil. R. Evid. 513 motion 9 filed by the defense counsel did not attempt to
meet the procedural requirements set forth in the amended rule and, in fact,
explicitly disavowed them as being applicable.

       The defense motion first argued that the recent amendment to Mil. R. Evid.
513(d)(8) (removing the “constitutionally required” exception to the privilege) was
without effect. See 2015 NDAA, Pub. L. No. 113-291, § 535, 128 Stat. 3292, 3369.
Second, the defense argued that the records contained constitutionally required
material because: A) “[t]he defense’s theory of the case is that [petitioner] did not
like the Accused being her stepdad” and therefore fabricated the allegation against
him; and B) that the “defense needs access to the alleged victim’s mental health
records to corroborate their theory that this allegation is false. . . . [and that]
[w]ithout this material the defense will not be able to impeach and discredit the
victim in this case.” The motion did not identify, other than broad generalizations
of possible impeachment evidence, what information they believed the records
contained, stating only that the records “may contain constitutionally required
material needed to impeach [petitioner].” (emphasis added). Nor did the motion
identify with any specificity what constitutional issues were at play. The omission
of any claim as to the contents of the petitioner’s mental health records appears to be
intentional, as the motion also argued that the procedural requirements under Mil. R.
Evid. 513 are invalid when the defense is seeking constitutionally required
material. 10 Instead, the defense, in its 16 September 2015 “Motion to Compel
Production of Mental Health . . . Records,” cited case law (predating the
establishment of the privilege) that their only obligation was “showing . . . [that] the
credibility of the victims was paramount to the defense and that the records might
contain evidence of [the victim’s] ability to perceive events, or evidence of their
credibility in general.” (citing United States v. Reece, 25 M.J. 93 (C.M.A. 1987)
(emphasis added).



9
 The defense’s motion was styled as a motion to compel. In addition to requesting
mental health records under Mil. R. Evid. 513, the motion included requests for non-
mental health records such as “academic and disciplinary records.” There is a vast
difference, both in substance and procedural requirements, between a motion to
compel discovery filed under Rule for Courts-Martial [hereinafter R.C.M.] 905(b)(4)
and a motion seeking access to privileged communications filed under Mil. R. Evid.
513. It is unwise to conflate the two.
10
  The defense motion also included an argument that the mental health records met
the child abuse exception under Mil. R. Evid. 513(d)(2). The military judge rejected
that argument, and review of that decision is not before us.



                                           9
DUCKSWORTH – ARMY MISC 20150769

      The defense introduced no evidence (witness testimony or otherwise) in
support of the motion. 11

        The contents of a motion under Mil. R. Evid. 513 are critical. First, the
military judge must “narrowly tailor” any ruling directing the production or release
of records to the purposes stated in the motion. Mil. R. Evid. 513(e)(4). Second,
Mil. R. Evid. 513 is not merely a rule that describes how certain types of evidence
may be produced; it is also the means by which a patient is provided due process
prior to the production or disclosure of privileged communications. Mil. R. Evid.
513(e)(1). Broadly, the rule provides for notice and an opportunity to be heard (i.e.
due process). More specifically, timely notice is provided by the requirement that
absent good cause, such a motion must be filed prior to the entry of pleas. Mil. R.
Evid. 513(e)(1)(A). Substantive notice is provided by the requirement that the
motion must “specifically describ[e] the evidence and stat[e] the purpose for which
it is sought . . . .” Id. Unless impractical, the patient must be notified of the hearing
and given an opportunity to be heard. Mil. R. Evid. 513(e)(2). As discussed below,
these procedural due process rights can be frustrated when, to the surprise of both
parties and the patient, a completely novel factual and legal theory is introduced at
the hearing in support of breaching the privilege.

                           D. The Mil. R. Evid. 513 Hearing

      After rejecting the defense counsel’s argument that the child abuse exception
under Mil. R. Evid. 513(d)(2) would allow the defense to have access to petitioner’s
mental health records, the military judge confirmed that the defense did not intend to
introduce any evidence.

       The military judge appeared particularly concerned as to whether the
government intended to introduce any evidence of petitioner’s mental health at
sentencing, stating to the trial counsel: “Okay. So [petitioner is] not going to get on
the stand and say this is the worst thing in my life. I’ve had to go to counseling for
the last however many years it’s been, three years, because the accused did what he
did to me?” Presumably, such testimony would be admissible during sentencing as
direct evidence in aggravation under R.C.M. 1001(b)(4) (“Evidence in aggravation
includes . . . psychological, and medical impact on . . . any person or entity who was


11
  “On one point there appears to be a unanimous consensus. In sexual-assault and
child abuse cases, there is general agreement that a defendant must do more than
speculate that, because the complainant has participated in counseling or therapy
after the alleged assault, the records in question might contain statements about the
incident or incidents that are inconsistent with the complainant's testimony at trial.”
Clifford S. Fishman, Defense Access to A Prosecution Witness's Psychotherapy or
Counseling Records, 86 Or. L. Rev. 1, 37 (2007)



                                           10
DUCKSWORTH – ARMY MISC 20150769

the victim of an offense . . . .”). In response to the military judge’s repeated
questions, the trial counsel responded he would not offer any such evidence.

       To the extent that the military judge was envisioning piercing a privileged
communication because of a concern about the accused’s rights to impeach or
confront a witness during sentencing, there is not a constitutional right of
confrontation during sentencing proceedings. United States v. McDonald, 55 M.J.
173, 177 (C.A.A.F. 2001) (“it is only logical to conclude that the Sixth Amendment
right of confrontation does not apply to the presentencing portion of a non-capital
court-martial.”). While the rules of evidence provide for cross-examination of
sentencing witnesses, see Mil. R. Evid. 611(b) and 1101(a), these are regulatory
confrontation rights rather than a constitutional right of confrontation that could
form the basis for piercing a privileged communication.

       The remainder of oral argument did not address the theory of admissibility
identified by the defense in their motion. Rather, the military judge offered a novel
theory of admissibility sua sponte. The military judge noted that in an unrelated
motion, the trial counsel had moved to introduce a journal entry written by
petitioner. The journal entry was apparently disclosed to law enforcement by mental
healthcare providers because it was a required disclosure under Alaskan state law. 12
There is “no privilege” under Mil. R. Evid. 513 when state law requires such a
disclosure. Mil. R. Evid. 513(d)(3). It does not appear that petitioner had any
choice in whether to disclose the journal entry. The journal entry, styled as a letter,
was written as part of therapy and included inculpatory statements adverse to the
accused that the government wanted to admit during the merits portion of trial.

       The military judge advanced a theory that because one document had been
disclosed from petitioner’s mental health records—even one disclosed because of a
state mandatory disclosure requirement—all of petitioner’s mental health records
were subject to review. 13

12
  As the Special Victim’s Counsel had no notice of the military judge’s theory of
admissibility prior to the hearing, it was only in his motion for reconsideration that
he fully informed the military judge that the journal entry had been disclosed
pursuant to Alaska Statute (AS) 47.17.020(a)(1). After considering the SVC’s
motion, the military judge ruled that his prior ruling “will not be disturbed” and that
“the defense must be given the opportunity to review [petitioner’s] other mental
health records.”
13
  We offer no opinion on whether the journal entry would be admissible. We note
the military judge’s concern that use of the Psychotherapist-patient privilege to
selectively use (or cherry-pick) documents or statements may in some cases prohibit
an accused from defending himself against alleged charges. Though not presented in
this writ, we note a military judge is under no obligation to admit such evidence if
doing so would deprive the accused of a fair trial.


                                           11
DUCKSWORTH – ARMY MISC 20150769


      In granting the defense’s motion for production, the military judge made
several conclusions of law and fact – all of which require discussion.

                      1. Military Rule of Evidence 513(e)(3)(A)

       Addressing the requirement under Mil. R. Evid. 513(e)(3)(A) that the moving
party show “a specific factual basis demonstrating a reasonable likelihood that the
records” yield admissible evidence, the military judge found that “the defense” had
satisfied this requirement because the government intended to introduce the journal
entry. The military judge determined the existence of the journal entry, (or as the
judge stated “the fact that the government is attempting to introduce” the journal
entry) made it reasonably likely that the remaining records “would yield some
admissible evidence under an exception to Mil. R. Evid. 513. That exception being
the ‘constitutionally required’ exception.” The military judge’s reasoning was
flawed in several respects.

       First, as there was no evidence before the court of any kind, there was little
basis to determine what the records would contain, let alone conclude they contained
admissible evidence.

        Second, to the extent that the military judge implicitly notified the parties he
was considering the journal entry as part of the motion, the journal entry was by all
accounts inculpatory. This could perhaps lead to an inference that the records
contained other inculpatory evidence. However, we cannot identify any logic to
support the proposition that an inculpatory excerpt in one portion of a record makes
it likely to find admissible defense evidence in another.

       Third, less than four months earlier, we addressed a similar issue in yet
another writ petition arising from this military judge, this time addressing the
application of Mil. R. Evid. 514. AT v. Lippert, ARMY MISC 20150387, 2015 CCA
LEXIS 257 (Army Ct. Crim. App. 11 June 2015 (summ. disp.). In that case, the
victim petitioner complained of the military judge’s ruling that all communications
with a victim advocate were unprivileged once she made an unrestricted report. This
court characterized the military judge’s ruling as seeming “to declare all of the
Sexual Harassment/Assault Response and Prevention (SHARP) records to be non-
confidential and unprotected by Mil. R. Evid. 514.” Id. at n.1. While this court
denied the petition, we stated that “it is the victim who defines the scope of
information to be disclosed to third persons . . . . [A]nything in the judge’s order
that might be interpreted otherwise would be incorrect.” Id. at 2 (emphasis added).

      Fourth, and similar to his ruling in AT v. Lippert declaring all SHARP records
non-confidential because the victim made one unrestricted report, here the military




                                           12
DUCKSWORTH – ARMY MISC 20150769

judge applied his analysis and ruling to all of petitioner’s mental health records.
According to the military judge’s description of the journal entry during oral
argument, the journal entry was derived from page 37 of the “Voices Workbook”
where petitioner was asked to write a letter to her mother. The military judge
applied his analysis not only to page 37 or the surrounding pages and related
records, but to all mental health records, created both before and after the journal
entry, spanning a period of years, and involving unrelated mental healthcare
providers and institutions.

       Accordingly, the military judge’s finding that because petitioner’s mental
health records yielded one (unprivileged) inculpatory document, there was a
reasonable likelihood that the remaining records would yield admissible defense
information was clearly erroneous.

         2. Military Rule of Evidence 513(e)(3)(B) Enumerated Exceptions

       When addressing the second requirement, that under Mil. R. Evid.
513(e)(3)(B) the mental health record must meet one “of the enumerated
exceptions,” the military judge stated that the mental health records met “the
constitutionally required exception.” While we do not resolve this issue today, the
military judge’s ruling was problematic in that there is no longer an “enumerated”
constitutional exception to Mil. R. Evid. 513. See 2015 NDAA, Pub. L. No. 113-
291, § 537, 128 Stat. 3292, 3369 (“Not later than 180 days after the date of the
enactment of this Act, Rule 513 of the Military Rules of Evidence shall be modified
as follows . . . To strike the current exception to the privilege contained in
subparagraph (d)(8) of Rule 513.”); Exec. Order No. 13696, 80 Fed. Reg. at 35,819
(“Mil R. Evid. 513(d)(8) is deleted.”). It is clear from the record that the military
judge was well aware of this amendment at the time of his ruling. It therefore
appears that the military judge must have determined that Mil. R. Evid. 513 is
facially unconstitutional. If so, he did not make this determination clear, cite any
authority, or explain his reasoning (either when he ruled on the record or when he
reconsidered his ruling by email). Prudence suggests that a detailed analysis should
accompany such a significant decision. 14


14
  The significance of the deletion of Mil. R. Evid. 513(d)(8) is certainly subject to
reasonable debate, likely focused on whether the resulting rule creates a “qualified”
or “unqualified” privilege. Compare Jaffee, 518 U.S. 1 with Pennsylvania v.
Ritchie, 480 U.S. 39 (1987) and Davis v. Alaska, 415 U.S. 308 (1974). The Supreme
Court has not yet held that there is a constitutional right to discover impeachment
evidence that is not in the possession of the government. See Commonwealth v.
Barroso, 122 S.W.3d. 554, 561 (Ky. 2003) (summarizing relevant Supreme Court
case law). While military defendants enjoy broader statutory discovery rights than
their federal court peers, the discovery provisions of Article 46, UCMJ, are not a
basis for determining that discovery is constitutionally required. The constitutional


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             The presumption is that a rule of evidence is constitutional
             unless lack of constitutionality is clearly and unmistakably
             shown. National Endowment for the Arts v. Finley, 524
             U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998)
             (“Facial invalidation ‘is, manifestly, strong medicine’ that
             ‘has been employed by the Court sparingly and only as a
             last resort.’”); United States v. Salerno, 481 U.S. 739,
             745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (“A facial
             challenge to a legislative act is, of course, the most
             difficult challenge to mount successfully, since the
             challenger must establish that no set of circumstances
             exists under which the Act would be valid.”). Appellant
             must show that [the challenged rule] “offends some
             principle of justice so rooted in the traditions and
             conscience of our people as to be ranked as fundamental.”
             Montana v. Egelhoff, 518 U.S. 37, 43–45, 116 S.Ct. 2013,
             135 L.Ed.2d 361 (1996) (examining historical practices on
             due process challenges).

United States v. Wright, 53 M.J. 476, 481 (C.A.A.F. 2000). While we would review
de novo a determination that a rule is unconstitutional, the lack of accompanying
analysis makes this impossible, and we leave resolution of this issue for another day
when the issue is more fully developed.

                          3. Cumulative Nature of Records

       Turning to the third requirement under Mil. R. Evid. 513(e)(3)(C) that the
information in the mental health records must not be cumulative, we are again at a
loss to understand the military judge’s reasoning. Given that there was no evidence
(or even a proffer) to the contents of petitioner’s mental health records, or of the
other evidence the defense intended to introduce, it was likely impossible for the

issues are unusual with regards to Mil. R. Evid. 513 in that the rule is the result of
both a legislative and executive act. See 2015 NDAA, § 537; Exec. Order No.
13696. Accordingly, the President was likely at the apex of his authority in
implementing Mil. R. Evid. 513 as he acted in his constitutional role as Commander
in Chief and under a specific legislative direction. Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 635-37 (1952) (Jackson, J., concurring) (“When the President
acts pursuant to an express or implied authorization of Congress, his authority is at
its maximum, for it includes all that he possesses in his own right plus all that
Congress can delegate. In these circumstances, and in these only, may he be said (for
what it may be worth), to personify the federal sovereignty. If his act is held
unconstitutional under these circumstances, it usually means that the Federal
Government as an undivided whole lacks power.”).



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DUCKSWORTH – ARMY MISC 20150769

military judge to determine whether the records were cumulative with other defense
evidence. 15 Rather, the military judge stated that he found that all the mental health
records were not cumulative because the trial counsel was seeking to introduce the
journal entry. That is, as the military judge found the government had a single
(unprivileged) document that was arguably not cumulative with other prosecution
evidence, he determined that all of the mental health records were not cumulative
with whatever evidence the defense may have sought to introduce. This simply does
not follow and was a clear abuse of discretion.

                      4. Non-privileged Sources of Information

       The fourth requirement under Mil. R. Evid. 513(e)(3), that the moving party
make reasonable efforts to obtain the information by other non-privileged sources, is
again problematic in this case. Here, the military judge found the defense had made
reasonable efforts to obtain the information by asking petitioner’s mental healthcare
providers about petitioner’s treatment and behavior while in their care. He noted
that “quite naturally” they did not respond favorably to those requests. This analysis
missed the point of the fourth requirement. The purpose of this requirement is not to
find other means of determining the contents of the mental health records—after all
the defense was not seeking mental health records for the sake of them being mental
health records—the purpose is to see if the underlying information (e.g., evidence
regarding credibility) purportedly contained in the records can be adequately
obtained from non-privileged sources. For example, in their motion, the defense
sought the mental health records because they hoped the mental health records
contained information undermining petitioner’s credibility and highlighting her
dislike of the accused. As to this “information,” the relevant inquiry was whether
other non-privileged sources (e.g., emails, texts, and the testimony of family
members, friends, associates, etc.) could establish this same information without
resorting to piercing a privilege.

                  5. Narrowly Tailored Production and Disclosure

       Even were we to assume the defense had met the threshold for an in camera
review of some portion of petitioner’s mental health records, the decision of the
military judge was overbroad. Military Rule of Evidence 513(e)(4) reads as follows:

               (4) Any production or disclosure permitted by the
             military judge under this rule must be narrowly tailored to
             only the specific records or communications, or portions

15
  We note that the rule presumes that before addressing whether the records are
cumulative the moving party has already filed a motion “specifically describing the
evidence . . . .” Mil. R. Evid. 513(e)(1)(A); see also Mil. R. Evid. 513(e)(3)(1)(A).
By holding the moving party to this standard, the military judge is better positioned
to apply the rule to the facts of the case.


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DUCKSWORTH – ARMY MISC 20150769

             of such records or communications, that meet the
             requirements for one of the enumerated exceptions to the
             privilege under subsection (d) of this Rule and are
             included in the stated purpose for which the records or
             communications are sought under subsection (e)(1)(A)
             [requiring a specific description of the evidence sought in
             the moving party’s motion] of this Rule.

       As previously discussed, the military judge conducted an in camera review of
all of petitioner’s mental health records. Nowhere in his ruling did the military
judge tailor his decision to release a specific type of record or communication or
explain his reasoning as to how he determined a document was releasable.

       Rather, in ruling on the motion for reconsideration, the military judge stated
that under the constitutional principles of “fundamental fairness and due process, the
defense must be given the opportunity to review [petitioner’s] other mental health
records for other potentially admissible evidence.” That is, instead of the page-by-
page, communication-by-communication analysis as to whether an exception to a
privilege under Mil. R. Evid. 513 applies, the military judge appears to have made a
blanket determination that all of petitioner’s mental health records were
unprivileged and subject to disclosure and review by the defense.

                             6. Privilege versus Discovery

       Finally, and more broadly, we are concerned that the military judge confused
an accused’s right to discovery under Rule for Courts-Martial 701 and Article 46,
UCMJ, with the prerequisites for disclosing a privileged communication under Mil.
R. Evid. 513. For example, during his discussions with the trial counsel during oral
argument, the military judge appeared to analogize the issue in front of him as one
of discovery:

             MJ: Okay. Absent - - all things being equal, you go into a
             file, pull out [a] piece of evidence you want to introduce
             into court, right? Wouldn’t the defense be entitled to the
             opportunity to review the rest of the file to see what was
             there?

             TC: But----

             MJ: Isn’t that true?

      Similarly, in his initial ruling releasing the mental health records, the military
judge ruled that “[t]here are numerous pages of discoverable material” and that the
“Court will deliver the discoverable material . . . for disclosure to defense.”




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DUCKSWORTH – ARMY MISC 20150769

       In reconsidering his ruling, the military judge again appears to confuse the
standard stating that “the defense must be given the opportunity to review
[petitioner’s] other mental health records for potentially admissible evidence.”

       It is axiomatic that if a privileged communication is disclosed whenever it
would be subject to the rules governing discovery then there is no privilege at all.
As the Supreme Court said in Ritchie, “[i]f we were to accept this broad
interpretation . . . the effect would be to transform the Confrontation Clause into a
constitutionally compelled rule of pretrial discovery. Nothing in the case law
supports such a view.” 480 U.S. at 52 (plurality opinion).

                                  V. CONCLUSION

       In light of the above, we are firmly convinced that petitioner has
demonstrated she has no other means to obtain relief, that the right to relief is clear
and indisputable, and that relief is appropriate. As the military judge’s ruling under
Mil. R. Evid. 513 was a clear abuse of discretion, it is set aside. The effect of this
ruling is to restore the disclosed records to their privileged status. That is,
petitioner may “prevent another from being a witness or disclosing any matter or
producing any object or writing.” Mil. R. Evid. 501(b)(4); see also Mil. R. Evid.
511(a) (disclosure of privileged matter not admissible against the privilege holder if
disclosure was erroneous or compelled); 513(a). However, we decline to determine,
as petitioner asks, that the disclosed records be deemed inadmissible at trial. There
has not yet been a proceeding or determination that correctly applies the procedural
and substantive requirements of Mil. R. Evid. 513 to the facts of this case. During
the closed hearing held pursuant to Mil. R. Evid. 513, the defense never had a
chance to discuss their theory of admissibility. Accordingly, we offer no opinion as
to whether any of petitioner’s mental health records may be subject to disclosure and
admissible at trial after a proper hearing under Mil. R. Evid. 513. To ensure that the
accused has the benefit of such a determination, we do not preclude him from
addressing the issue anew.

       Petitioner’s writ petition is GRANTED in part and the military judge’s ruling
under Mil. R. Evid. 513 is set aside. The stay ordered by this court on 30 November
2015 is hereby lifted. The petition is DENIED in that the admissibility of
petitioner’s mental health records may be determined after a properly conducted
hearing under Mil. R. Evid. 513 and other applicable rules of evidence.




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DUCKSWORTH – ARMY MISC 20150769

    Senior Judge HAIGHT and Judge PENLAND concur.


                               FOR THE
                                   THECOURT:
                                       COURT:




                               MALCOLM H.
                               MALCOLM       H.SQUIRES,
                                                SQUIRES,JR.JR.
                               Clerk of Court
                               Clerk of Court




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