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 

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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 [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 

2 

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. 
DUCKSWORTH – ARMY MISC 20150769 

3 

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.”). 
DUCKSWORTH – ARMY MISC 20150769 

4 

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. 
DUCKSWORTH – ARMY MISC 20150769 

5 

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).
DUCKSWORTH – ARMY MISC 20150769 

6 

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. 
DUCKSWORTH – ARMY MISC 20150769 

7 

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 
DUCKSWORTH – ARMY MISC 20150769 

8 

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 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 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”). 
DUCKSWORTH – ARMY MISC 20150769 

9 

C. The Defense Motion

The Mil. R. Evid. 513 motion9

 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 nonmental 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. 
DUCKSWORTH – ARMY MISC 20150769 

10 

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) 
DUCKSWORTH – ARMY MISC 20150769 

11 

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. 
DUCKSWORTH – ARMY MISC 20150769 

12 

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 nonconfidential 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 

 
DUCKSWORTH – ARMY MISC 20150769 

13 

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 
DUCKSWORTH – ARMY MISC 20150769 

14 

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.”). 
DUCKSWORTH – ARMY MISC 20150769 

15 

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. 
DUCKSWORTH – ARMY MISC 20150769 

16 

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-bypage, 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.” 
DUCKSWORTH – ARMY MISC 20150769 

17 

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. 
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: