## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before HAIGHT, PENLAND, and WOLFE Appellate Military Judges

DB, by and through Capt ain RANDY L. JOHNSON, Special Victim Counsel

v. Colonel JEFFERY D. LIPPERT, Mi litary Judge, Respondent

Sergeant OTIS R. DUCKSWOR TH, Real Party in Interest

ARMY MISC 20150769

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

For Petitioner: Captain Ra ndy 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 Defender s: Peter Coote, Esq.

1 February 2016

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

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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 [h ereinafter Mil. R. Evid.] 513 and that we declar e the mental health records th at were the subject of that ruling to be inadmissible at trial. Additionally, petitioner asked this court to stay the court-martial proceedings pend ing such a decision. We granted petition er’s requestDUCKSWORTH – ARMY MISC 20150769

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

Petitioner assign s four errors. 2 As we agree with the first, second, and fourth assignments of error, we do not reach the third. The pet ition 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, assu ming a properly con ducted hearing under Mil. R. Evid. 513. 3

1 In granting the stay we also specific ally provided for the opportunity for the Government and Defense Appell ate Divisions to file responsive briefs and to “attach any matters they believe are ne cessary to the resolu tion of this pet ition” in order to provide an opportunity to su pplement the record. The acc used, as the real party in interest submitted a respon sive brief but did not at tach new matt ers. The government submitted neither a brief nor additional matters . Accordingly, we will resolve the petit ion based on the limited record before us.

2 The assignments of er ror are as follows:

I. Whether the military judg e erred as a matter of la w when he ruled that the disclosure of [petit ioner’s] mental health reco rds 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 milita ry judge erred as a matter oflaw in determining that a mandatory disclosure under Mil. R. Evid. 513(d)(2) was sufficient to trigger an in camera review of [petitio ner’s] mental health records.

III. Whether the mi litary judge erre d as a matter of law by ruling that the constitutional exception applie s under Mil. R. Evid. 513.

IV. Whether the milita ry judge abused his discreti on when he ru led that the defense met its bu rden under Mil. R. Evid. 513 and United States v. Klemick [56 M.J. 576 (C.A.A.F. 20 06)] where the defense of fered no evidence or witnesses in support of th eir motion to compel pr oduction of [p etitioner’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.DUCKSWORTH – ARMY MISC 20150769

3 I. JURISDICTION

Before we can address petitioner’s ques tions, we must first determine whether we have jurisdiction to issue the writ requested . Steel Co. v. Citi zens for a Better Env’t , 523 U.S. 83, 94-9 5 (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 limit ed jurisdiction, established by The Judge Advocate General. UCMJ art. 66(a). (“Each Judge Advocate General shall establis h a Court of Criminal Appeal s . . . .”). The mandate to establish this court was ma de pursuant to the authorit y 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 Stat es under Article 62, UCMJ, and reviewing the findings and sentences of cer tain 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 “subj ect matter jurisdiction over the case or controversy.” United States v. Denedo , 556 U.S. 904, 911 (2009); see also UCMJ art. 66.

Accordingly, writ jurisdicti on under the All Writs Act is li mited to those matters that are “in aid of [our] respective ju risdiction[]” 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 direc tly affect the findi ngs 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 particip ate in the solemn rite of a trial si gnals to the speaker that what she has to say is valued. She has been called to participate in on e of the weightiest of our community rituals because her presence and observations ar e deemed an important part of the legal process. The speaker’s views may not prevai l, but her insights , experiences, and contributions are nonetheless acknowledged and validated by th e mere fact that she was heard in an official forum.”).DUCKSWORTH – ARMY MISC 20150769

4 to provide that a vic tim of an offense may petition th is 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 fo r Fiscal Year 2015 [herei nafter 2015 NDAA], Pub. L. No. 113-291, § 535, 128 Stat. 3292, 3368 (2014) (Enforce ment of Crime Victims’ Rights Related to Protections Afforded by Certain Military Rule s of Evidence). We understand the mand ate of Article 6b(e )(3), UCMJ (as recent ly amended), for such petitions to be forwarded “direct ly” to this court and “to the extent practicable,” for this court to give su ch petitions “prior ity over all other proceedings” to be a new and separate stat utory authority for th is court to issue writs. National Defense Auth orization Act for Fiscal Year 2016, Pub. L. 114-92, § 531(e)(3) (2015) (Enforcemen t of Certain Crime Victim Rights by the Court of Criminal Appeals). That is , Article 6b, UCMJ, is a dist inct 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 jurisdicti on under Article 66. Or , more precisely, we need not find that the matter(s) raised in the petition has “the po tential to directly affect the findings and sentence.” LRM, 72 M.J. at 368. Instea d, to find jurisdiction to issue a writ under Article 6b we need only determine that the petition addresses the limited circumstances specifical ly enumerated un der Article 6b(e). 5 As this petition alleges that the military judge faile d to follow Mil. R. Evid. 513, a matter specifically enumerated in Arti cle 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 ma tters that had the potential to directly affect the findings an d sentence, we would lack jurisdiction over a writ petition in ca ses where Congress specifically authorized a victim to file a petition. Consider, fo r example, a writ petition that al leges that the victim petitioner was improperly excluded from attending the tria l. Under Article 6b(a)(3), a victim may only be excluded if the military judg e finds by clear and convincing evidence that the victim’s presence would mate rially alter the vi ctim’s testimony. Accordingly, a writ pe tition 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 auth orizes a writ petition only in circumstances where the ex clusion 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 co urt to have jurisdiction to consider the matter.DUCKSWORTH – ARMY MISC 20150769

5 II. STANDARD

To obtain the requested writ of mandamus, petitio ner must show that: (1) there is “no other adequate me ans 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) (citati ons and internal quotati on marks omitted).

III. CHRONOLOGY

On 23 June 2015, the gov ernment preferred charges against the accused (the real party interest) for alle gedly committing sexual offe nses against th e petitioner and one other victim in 201 2 and 2013. On 15 September 2015, the military judge ordered the government to “produce in complete and un redacted form, sealed for in

camera review by a military trial judge, all [of petitioner’s records] currently maintained by the Alaska Offi ce of Child Servic es.” The authority cited by the military judge was Article 46, UCMJ (“Opportunity to ob tain witnesses and other evidence”). 6

The next day, on 16 September 2015, th e trial counsel issu ed a subpoena for petitioner’s records from tw o civilian mental healthcare provider s. The subpoena stated that the production was for the purp ose of “judicial in-camera review.” The subpoena stated that failure to comply could result in ap prehension 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 heal th records under Mi l. R. Evid. 513. 7 (That is, the military judge’s order predated the de fense motion, and the defense motion was contemporaneous with the tria l counsel’s s ubpoenas).

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 note d, references or cita tions to the M ilitary Rules of Evidence in this opinion will be to thos e 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 Ex ecutive Order 13643), as modified by subs equent legislation and ex ecutive action (e.g., Exec. Order 13696). Any exceptio ns 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.defens e.gov/Portals/99/ Documents/MREsRemoved412e.pdf (l ast visited 29 Ja n. 2016, 1145).DUCKSWORTH – ARMY MISC 20150769

6 On 29 September 201 5, the military judge held a cl osed Article 39(a) session to address the defense’s moti on to compel the producti on of the mental health records. The military judge noted his er ror in prematurely ordering the production of mental health records befo re the hearing had ever occu rred, and stated that while the records had been prod uced, he had not yet revi ewed the records.

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

The military judge issued a verbal ruli ng on the record gr anting the defense’s motion for an in camera review of all the mental h ealth records. The hearing recessed at 1443 hours.

That same day, the Specia l Victim Counsel (SVC) requ ested that the military judge delay disclosure of any mental health records pendin g the filing ofthis writ petition. The military ju dge denied the request.

Just over ten hours after the hearin g ended, at 0101 h ours on 30 September 2015, the military ju dge emailed the parties and in formed 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 th at 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 mi litary judge reconsidered but reaffirmed his prior ruling.

IV. DISCUSSION

The problems that th is 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 ordere d the production of petitioner’s mental he alth records for the pur pose of conducting an in camera review prior to having a hearing un der Mil. R. Evid. 513, and (at le ast in the case of the military judge) prior to the de fense filing a motion for the production of th e records. This act was in clear violati on of the rules. Mil. R. Evid. 501(b)(3) (“A claim of privilege includes . . . refu s[al] to produce any object or writing”); Mil. R. Evid.

8 Petitioner avers that the disclosed records numb ered over 1400 pages.DUCKSWORTH – ARMY MISC 20150769

7 513(a) (“A patient has a privil ege to refuse to disclose and prevent any other person from disclosing . . . .”); Mil. R. Evid. 513(e)(1)(A) (i n order to obtain a ruling by the military judge, a party “must” file a wr itten motion); Mil. R. Evid. 513(e)(2) (“Before ordering the product ion . . . the milita ry judge must condu ct a hearing.”).

The military judge admitted this erro r during the subseque nt motion hearing and explained that the production of the reco rds had been at the request of the trial counsel. He further explai ned that he thought the SV C was included on the email and that the SVC had not objecte d. This explanation falls sh ort in several respects.

First, the failure to object cannot be constr ued as either an affirmative waiver of a privilege or wa iver of the procedur al requirements under Mil. R. Ev id. 513. See, e.g., Mil. R. Evid. 510 (Waiver of privileg e by voluntary disclo sure). Even if the SVC had been included in the email chain, which he appa rently 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 resp onse to a similar pe tition for a writ of mandamus, instructed this milit ary judge that he “will comp ly with Military Rule of Evidence 513(e)(2) prior to deciding whether to order productio n of Petitioner’s mental health records for in camera review.” That is, le ss than a year prior to the military judge’s actions in this case, we were required to direct that this same judge follow this sa me rule.

Finally, ordering the productio n of privileged mental health records “for the purpose of an in camera review” prior to receiving any moti on or conducting a hearing may undermin e public confidence in the fa irness of the court-martial proceedings.

B. Prerequisites to an In Camera Review.

On 17 June 2015, the Pres ident signed Executive Orde r 13696 (“2015 Amendments to the Manual for Courts-Martial, United States”). Exec. Orde r No. 13696, 80 Fed. Reg. 119, 35,781 (22 Ju n. 2015). Incl uded in the executiv e order, which was effective immediately for a ny case which had not been arraigned, were substantial changes to Mil. R. Evid. 51 3. Military Rule of Eviden ce 513(e)(3) was amended to read as follows:

(3) The military judg e may examine the evidence or a proffer thereof in ca mera, if such examination is necessary to rule on the production or admissibility of protected records or communications. Prior to cond ucting an in camera review, the military judge must find by aDUCKSWORTH – ARMY MISC 20150769

8 preponderance of the eviden ce that the moving party showed:

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

(B) that the requested info rmation meets one of the enumerated exceptions under s ubsection (d) of this rule;

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

(D) that the party made reasonable e fforts to obtain the same or substantially si milar informati on through nonprivileged 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 nebu lous rule. Prior to the June 2015 amendment, Mil. R. Evid. 513(e)(3) stated, without ex planation, 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 specul ated 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 (pri or 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 on ce a party requested production.”). The fact that the trial counsel in this case requested that the military judge order the production of petitione r’s mental health records (again, prio r 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 psyc hotherapist privilege “confidential conversations between psychoth erapists 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”).DUCKSWORTH – ARMY MISC 20150769

9 C. The Defense Motion

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

The defense motion first ar gued that the recent amendment to Mil. R. Evid. 513(d)(8) (removing th e “constitutionally re quired” 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 reco rds contained constitutionally required material because: A) “[t]he defense’s theory of the case is that [petitioner ] did not like the Accused being her st epdad” and therefore fabricat ed the allegation against him; and B) that the “defen se needs access to the allege d victim’s mental health records to corroborate their theory that th is allegation is fals e. . . . [and that] [w]ithout this material the defense will not be able to impeach and discredit the victim in this case.” The motion did no t identify, other than broad generalizations of possible impeac hment evidence, what informat ion they believe d 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 constitut ional issues were at play. The omission of any claim as to the contents of the peti tioner’s mental health records appears to be intentional, as the motion al so 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 . . . Reco rds,” cited case la w (predating the establishment of the privilege) that their only obligation was “showing . . . [that] the credibility of the victims was paramount to the defe nse and that the records might contain evidence of [the vic tim’s] ability to perceive ev ents, or eviden ce of their credibility in ge neral.” (citing United States v. Reece , 25 M.J. 93 (C.M.A. 1987) (emphasis added).

9 The defense’s motion was styl ed as a motion to compel. In addition to requesting mental health records under Mil. R. Evid. 513, the motion included requests for nonmental health records such as “academic an d disciplinary records.” There is a vast difference, both in substance and procedural requirements, between a motion to compel discovery filed under Rule for Cour ts-Martial [hereinaft er 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 in cluded 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 revi ew of that decision is not before us.DUCKSWORTH – ARMY MISC 20150769

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

The contents of a motion under Mil. R. Evid. 513 are cr itical. First, the military judge must “narrowly tailor” any ru ling directing the pr oduction or release of records to the purposes st ated in the motion. Mil. R. Evid. 513(e)(4 ). Second, Mil. R. Evid. 513 is not merely a rule that describes how certa in types of evidence may be produced; it is also the means by which a pa tient is provided due process prior to the production or disclosure of privileged communicati ons. Mil. R. Evid. 513(e)(1). Broadly, the rule provides for no tice and an opportunit y to be heard (i.e. due process). More sp ecifically, timely notice is provided by the requirement that absent good cause, such a motion must be filed prior to the entry of pl eas. Mil. R. Evid. 513(e)(1)(A). Substa ntive notice is provided by the requirement that the motion must “specifically desc rib[e] the evidence and stat[e] the purpose for which it is sought . . . .” Id. Unless impractica l, 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 th e surprise of both parties and the patient, a completely novel factual and lega l theory is introduced at the hearing in support of breaching the privilege.

D

. The Mil. R. Ev id. 513 Hearing

After rejecting the defense counsel’s argument that the child abuse exception under Mil. R. Evid. 5 13(d)(2) would allow the defense to have access to petitioner’s mental health records, the military judge c onfirmed that the defens e did not intend to introduce a ny evidence.

The military judge appeared particularly conc erned as to whether the government intended to intr oduce any evidence of petit ioner’s mental health at sentencing, stating to the trial c ounsel: “Okay. So [petition er is] not going to get on the stand and say this is the worst thing in my lif e. I’ve had to go to counseling for the last however many years it’s been, thre e years, because the accused did what he did to me?” Presumably, such testimony w ould be admissible during sentencing as direct evidence in aggravat ion under R.C.M. 100 1(b)(4) (“Evidence in aggravation includes . . . psycholo gical, and medical impa ct on . . . a ny person or entity who was

11 “On one point there appears to be a unan imous consensus. In sexual-assault and child abuse cases, there is ge neral agreement that a defendant must do more than speculate that, because the co mplainant has participated in counseling or therapy after the alleged assault, the records in qu estion 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 Prosecuti on Witness's Psychotherapy or Counseling Records , 86 Or. L. Rev. 1, 37 (2007)DUCKSWORTH – ARMY MISC 20150769

11 the victim of an offense . . . .”). In response to th e military judg e’s repeated questions, the trial counsel responded he would not offer an y such evidence.

To the extent that the military judge was envisioning pier cing 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 sent encing proceedings. United States v. McDonald , 55 M.J. 173, 177 (C.A.A.F. 2001 ) (“it is only logi cal to conclude that the Sixth Amendment right of confrontation does not apply to the pr esentencing portio n of a non-capital court-martial.”). While the rules of evid ence provide for cr oss-examination of sentencing witnesses, see Mil. R. Evid. 611(b) and 11 01(a), these are regulatory confrontation rights rather than a constitutional right of confront ation that could form the basis for piercing a privileged communication.

The remainder of oral ar gument did not addr ess the theory ofadmissibility identified by the defense in their motion. Rath er, the milita ry judge offered a novel theory of admissibility sua sponte. The military judge note d 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 requ ired disclosure unde r Alaskan state law. 12 There is “no privilege” u nder Mil. R. Evid. 513 when state law requ ires such a disclosure. Mil. R. Evid. 513(d)(3). It does not a ppear that petiti oner had any choice in whether to di sclose the journal entr y. The journal entry, styled as a letter, was written as part of ther apy and included inculpatory statements adverse to the accused that the government wa nted to admit during the me rits portion of trial.

The military judge advanced a theory that because one document had been disclosed from petitio ner’s mental health records—ev en one disclose d 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 C ounsel had no notice of the military judge’s theory of admissibility prior to th e hearing, it was only in his mo tion for reconsideration that he fully informed th e 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 prio r 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 whet her the journal entry would be admissible. We note the military judge’s concern that use of the Psychother apist-patient privilege to selectively use (or cherry-pic k) documents or statements may in some cases prohibit an accused from defending hims elf 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 accu sed of a fair trial.DUCKSWORTH – ARMY MISC 20150769

12 In granting the defense’s motion for production, th e military judge made several conclusions of law and fact – all of wh ich 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 factua l basis demonstrating a reas onable likelihood that the records” yield admiss ible evidence, the military judge found that “the defense” had satisfied this requirement because the gove rnment intended to introduce th e journal entry. The military judge determined the ex istence 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’ excepti on.” The military j udge’s reasoning was flawed in severa l respects.

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

Second, to the extent that the military judge implicitly noti fied the parties he was considering the j ournal entry as part of the motion, the jo urnal entry was by all

accounts inculpatory. This could perhap s lead to an inference that the records contained other inculpatory evidence. Ho wever, we can not 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 m onths earlier, we addressed a simi lar 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. Ap p. 11 June 2015 (summ. di sp.). In th at case, the victim petitioner complained of the military judge’s ruli ng that all communications with a victim advocate were unprivileged on ce she made an unrest ricted report. This court characterized the military judge’s ru ling as seeming “to declare all of the Sexual Harassment/Assault Response and Prevention (S HARP) records to be nonconfidential and unp rotected by Mil. R. Evid. 514.” Id. at n.1. While this court denied the petition, we stat ed that “it is the victim who defines the scope of information to be disclose d 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 be cause the victim made one unrestricted report, here the militaryDUCKSWORTH – ARMY MISC 20150769

13 judge applied his anal ysis and ruling to all of petitioner’s ment al health records. According to the military judge’s description of the journal entry during oral argument, the journal entr y was derived from page 37 of the “Voices Workbook” where petitioner was as ked to write a letter to her mother. The m ilitary judge applied his analysis not on ly to page 37 or the su rrounding pages and related records, but to all mental health records, created both before and after the journal entry, spanning a pe riod of years, and involving unrelated mental healthcare providers and institutions.

Accordingly, the military ju dge’s finding that becaus e petitioner’s mental health records yielded on e (unprivileged) inculpatory documen t, there was a reasonable likelihood that the remaini ng records would yield admissible defense information was clea rly erroneous.

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

When addressing the second requirem ent, that under Mil. R. Evid. 513(e)(3)(B) the mental health record must meet one “of the enumerated exceptions,” the military judge stated th at the mental health records met “the constitutionally required ex ception.” While we do not resolve this is sue today, the military judge’s ruling was problematic in that there is no lo nger an “enumerated” constitutional exception to Mil. R. Evid. 513. See 2015 NDAA, Pub. L. No. 113- 291, § 537, 128 Stat . 3292, 3369 (“No t 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. Re g. at 35,819 (“Mil R. Evid. 513(d)(8) is de leted.”). It is cl ear from the record that the military judge was well aware of this amendment at the time of his ru ling. It therefore appears that the milita ry judge must have determined that Mil. R. Evid. 513 is facially unconstitutional. Ifso, he did not make this de termination clear, cite any authority, or explain his reas oning (either when he ruled on the re cord or when he reconsidered his ruling by em ail). Prudence suggests that a detailed anal ysis should accompany such a si gnificant decision. 14

14 The significance of the deletion of Mil. R. Evid. 513(d)(8) is certainly subject to reasonable deba te, likely focused on wh ether 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 ther e is a constitutional right to discover impeachment evidence that is not in the po ssession of th e government. See Commonwealth v. Barroso , 122 S.W.3d. 554, 561 (Ky. 2003) (sum marizing relevant Supreme Court case law). While military defendants enjoy broader statutory discovery rights than their federal court peers, the discovery pr ovisions of Article 46, UCMJ, are not a basis for determining that discovery is constitutionally required. The constitutionalDUCKSWORTH – ARMY MISC 20150769

14 The presumption is that a rule of evidence is constitutional unless lack of constitu tionality is clearl y and unmistakably shown. National Endowment for the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2 d 500 (1998) (“Facial invalidation ‘is, mani festly, strong medicine’ that ‘has been employed by the C ourt sparingly and only as a last resort.’”); United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2 d 697 (1987) (“A facial challenge to a legislative ac t is, of cour se, the most difficult challenge to mount successfully, since the challenger must establish th at no set of circumstances exists under which the Act wo uld be valid.”). Appellant must show that [the chal lenged rule] “offends some principle of justice so r ooted in the traditions and conscience of our people as to be ranked as fundamental.” Montana v. Egelhoff, 518 U.S. 37, 4 3–45, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (examini ng historical practices on due process challenges).

United States v. Wright , 53 M.J. 476, 481 (C.A.A.F. 2 000). While we would review de novo a determination that a rule is unconstitutional, the lack of accompanying analysis makes this im possible, and we leave resolution of this issue for a nother day when the issue is mo re fully developed.

3. Cumulative Natu re of Records

Turning to the third requ irement under Mil. R. Ev id. 513(e)(3)(C ) that the information in the mental health records mu st not be cumulative, we are again at a loss to understand the military judge’s reas oning. Given that th ere was no evidence (or even a proffer) to the contents of peti tioner’s mental health records, or of the other evidence the defense intended to in troduce, 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; Ex ec. Order No. 13696. Accordingl y, the President was li kely at the apex of his aut hority 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 (1 952) (Jackson, J., concurring) (“When the President acts pursuant to an express or implie d authorization of Congre ss, his authority is at its maximum, for it includes all that he posse sses in his own right plus all that Congress can delega te. In these circumstances, and in these only, may he be said (for what it may be worth), to personify the fe deral sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivid ed whole lacks power.”).DUCKSWORTH – ARMY MISC 20150769

15 military judge to determine whether the r ecords were cumulative with other defense evidence. 15 Rather, the milita ry judge stated th at he found that all the mental health records were not cumulative because the tr ial counsel was seekin g to introduce the journal entry. That is, as the military judge found the government had a single (unprivileged) document that was ar guably not cumula tive with other prosecution evidence, he determined that all of the mental health records were no t cumulative with whatever evidence the defense may have sought to introduce. This simply does not follow and was a clea r abuse of discretion.

4. Non-privileged Sour ces of Information

The fourth requirement und er Mil. R. Evid. 513(e)( 3), that the moving party make reasonable e fforts to obtain the informa tion by other non-privileged sources, is again problematic in this case. Here, the military judge found the defense had made reasonable effort s to obtain the informat ion by asking petitioner ’s mental healthcare providers about petiti oner’s treatment and behavior wh ile in their care. He noted that “quite naturally” they di d not respond favorably to thos e 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 heal th records—after all the defense was not seeking me ntal health records for the sake of them being mental health records—the purpose is to see if the underlying informat ion (e.g., evidence regarding credibility) purpor tedly contained in the records can be adequately obtained from non-privileged sources. For example, in their motion, the defense sought the mental health records becaus e they hoped the mental health records contained information undermining petiti oner’s credibility a nd 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 te stimony of family members, friends, associates, etc.) could establish this same information without resorting to piercing a privilege.

5. Narrowly Tailored Prod uction and Disclosure

Even were we to assume the defe nse had met the th reshold for an in camera review of some portion of pe titioner’s mental health r ecords, the decision of the military judge was overbroad. Milit ary 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 re cords or communicati ons, or portions

15 We note that the ru le presumes that before addr essing whether the records are cumulative the moving party has already f iled 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 bett er positioned to apply the rule to th e facts of the case.DUCKSWORTH – ARMY MISC 20150769

16 of such records or comm unications, 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 purpo se for which the records or communications are sought under subsection (e)(1)(A) [requiring a specific descriptio n of the evidence sought in the moving party’s mo tion] of this Rule.

As previously discussed, th e 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 specif ic type of record or communication or explain his reasoning as to how he determined a docu ment was releasable.

Rather, in ruling on the motion for reconsideratio n, the military judge stated that under the constitutional principles of “fundamental fa irness and due process, the defense must be given the op portunity to review [petitioner’s] othe r mental health records for other pote ntially admissible evid ence.” That is, in stead of the page-bypage, communication-by-communi cation analysis as to whether an exception to a privilege under Mil. R. Evid. 513 applie s, the military judge appears to have made a blanket determination that all of pet itioner’s mental he alth records were unprivileged and subject to disclosu re and review by the defense.

6. Privilege versus Discovery

Finally, and more broadly, we are concer ned that the milita ry judge confused an accused’s right to discovery under Ru le for Courts-Martial 701 and Article 46, UCMJ, with the prerequisites for disclosing a privileged communi cation under Mil. R. Evid. 513. For example, du ring his discussion s with the trial co unsel during oral argument, the military judge appeared to an alogize 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 ev idence 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 initia l ruling releasing the mental health reco rds, the military judge ruled that “[t]here are numerous pages of discoverable material” and that the “Court will deliver the discoverable material . . . for disc losure to defense.”DUCKSWORTH – ARMY MISC 20150769

17 In reconsidering his ruling, the milita ry judge again appears to confuse the standard stating that “the defense must be gi ven the opportunity to review [petitioner’s] other ment al health records for potentially admissible evidence.”

It is axiomatic that if a privileged communication is disc losed 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 ru le 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 firm ly convinced that petitioner has demonstrated she has no other m eans to obtain relief, that th e right to relief is clear and indisputable, and that relief is appropri ate. As the militar y judge’s ruling under Mil. R. Evid. 513 was a clear abuse of discreti on, it is set aside. The effect of this ruling is to restore the disclosed record s to their privileged status. That is, petitioner may “prevent another from bein g a witness or disclo sing any matter or producing any object or writing.” Mil. R. Evid. 501(b)(4); see also Mil. R. Evid. 511(a) (disclosur e of privileged matter not admissible against the privilege holder if disclosure was erroneous or compelled); 513(a). Howeve r, 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 requ irements of Mil. R. Ev id. 513 to the facts ofthis case. During the closed hearing he ld pursuant to Mil. R. Evi d. 513, the defens e never had a chance to discuss their theory of admissib ility. Accordin gly, 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 pr oper hearing under Mil. R. Ev id. 513. To en sure that the accused has the benefit of such a determ ination, we do not preclude him from addressing the issue anew.

Petitioner’s writ petiti on is GRANTED in part and the military ju dge’s ruling under Mil. R. Evid. 5 13 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.DUCKSWORTH – ARMY MISC 20150769

18 Senior Judge HAIGHT and Judge PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court MALCOLM H. SQUIRES, JR. Clerk of Court FOR THE COURT: