For those who have tried cases in the Middleeast or Asia, for example with local witnesses, here's something may interest you. Note, the same can happen in court or with counsel's interviews of witnesses. Picture this. You are in a foreign country. The police arrest you and realise that you don’t speak the language. So, they organise someone to translate. If you’re lucky, the person they contact is a professional interpreter. If you’re unlucky, the person is a multilingual police officer who happens to speak your language just well enough to scrape through an interview. Either way, you are now having to talk through someone else. Dr. Julia Shaw, Translation errors in police interviews could send innocent people to jail. Science Focus, August 14, 2022.
The Court of Appeals for the Ninth Circuit has affirmed a lower court’s finding that a claim under the FTCA is not Feres barred when the claim relates to a sexual assault committed by a servicemember against a servicemember. See Spletsoser v. Hyten. The issue arose when the Government argued that Feres barred the claim. The 9th rehearses Feres and its progeny in a helpful manner. Essentially, the court concludes that a sexual assault is not incident to service, an “alleged sexual assault [could] not conceivably serve any military purpose.”
It’s not clear exactly how long a man who called himself Barry O’Beirne lived a quiet life in Daly City, the sleepy suburb a few miles south of San Francisco. It’s also not clear what he was doing on the morning of Wednesday, June 6, 2018, when, after 35 years, Air Force special agents knocked on his door and arrested him for desertion. When arrested he denied being a spy, explained he'd changed his name and had simply left because of depression with his life. He stayed in California under his assumed name. The jigsaw puzzle of William Howard Hughes Jr.'s life has many missing pieces. After disappearing into thin air in 1983 he was wanted across the globe by numerous agencies, from the Air Force to the FBI to Interpol. At one point it was thought that he defected to the Russians. Some suggested he sabotaged the disastrous Challenger space shuttle launch. Even after his recent capture, much of this unlikely story remains a mystery for the ages. Here’s what we found out. Update: Defense News reports that the Senate has gone on vacation for a month, with Tia Johnson and others confirmation being held. Update: Page S3731 of the July 28, Congressional Record, shows Senator Reed asking for unanimous consent to confirm Tia Johnson's nomination to CAAF. On page S3732, after Senator Reed discussed the importance of confirming the nomination, Senator Hawley objected. Senator Reed then moved for unanimous consent for an executive session to debate the nomination. Senator Hawley objected. https://www.congress.gov/117/crec/2022/07/27/168/125/CREC-2022-07-27.pdf The CAAF has operated with only four active judges since C.J. Stuckey retired. The court has been asking senior judges to sit in for granted cases.
Gene Fidell has been monitoring and commenting on the affect of four v. five because petitioners, he argues, have a significantly lower chance of getting a grant with four vice five judges. See, e.g., here and here To date, 257 petitioners been affected. President Biden has nominated Tia Johnson as the fifth CAAF judge. But her nomination has been held up. One potential explanation can be found in Raju and Cole, Hawley says he'll hold up State and Defense Department nominess unless Blinken and Austin resign. CNN, September 14, 2021; see also, here (hawley.senat.gov); Jack Suntrap, White House criticizes Missouri Sen. Hawley for delaying Defense confirmations. Union-Bulletin, July 20, 2022 (noting Tia Johnson had cleared the Senate committee in March/April). Sometimes it's good to keep things in perspective. A major survey of the American law professoriate just dropped its results. One question asks for the respondent's opinion of the "centrality" of a given subject, and whether it should be more central. Over 100 areas of law were included. Military law ranked 6th from the bottom--below both animal law and ocean law. However, the professoriate considers military law to be more "central" than admiralty law. Brenner FissellIn Bench, (the 21st published opinion this term) the issue was [W]hether Appellant’s right to be confronted by a complaining witness was violated when trial counsel misled Appellant’s son by telling him that Appellant was not watching his son’s remote live testimony. Because Appellant failed to preserve this issue at trial, the Court must decide whether any error was plain or obvious. We hold that it was not. [corrected] The court first discussed but did not find waiver of the issue. The court proceeded to a plain error analysis. The Government more reasonably argues that Appellant waived this issue by operation of law under the plain language of Rule for Courts-Martial (R.C.M.) 905(e) (2016 ed.). That rule provides that such claims “must be raised before the court-martial adjourned for that case and, unless otherwise provided in [the Manual for Courts-Martial, United States], failure to do so shall constitute waiver.” R.C.M. 905(e). We acknowledge that the language of the rule would appear to be dispositive on this point in the Government’s favor, but as this Court has recognized in the past, there has long been disagreement in our own precedent about whether the word “waive[d]” in R.C.M. 905(e) actually means “waived” (as defined by the Supreme Court in Olano, 507 U.S. at 733), or instead means “forfeited” (the failure to preserve an issue by timely objection). See Hardy, 77 M.J. at 441–42 (noting the disagreement in this Court’s precedents); id. at 445 (Ohlson, J., dissenting) (same). Two of our more recent precedents lead us to conclude that regardless how one interprets the word “waive[d]” in R.C.M. 905(e), that rule does not extinguish a claim when there has been plain error. Half a Precedent Is No Precedent At AllWhy the application of military law to half-pay officers in Britain from 1749 to 1751 does not support the perpetual application of military law to retirees of the Armed Forces of the United States In Larrabee, the D.C. Circuit supported its holding that military retirees are subject to status-based military law jurisdiction with references to eighteenth-century historical practice. The majority’s primary historical example is that of half-pay officers. According to the majority, the subjugation of half-pay officers to military law in Britain from 1749 to 1751 demonstrates the Framers’ acceptance that military justice may be applied to members of the land and naval forces who are not in active service. In this post, I will make two critiques of the court’s analysis. First, the majority improperly discounts the vigorous debates over whether to subject half-pay officers to military justice. The majority treats these debates as policy questions. But these debates were, in fact, constitutional debates about the legitimacy of applying military law to those not in active service. Second, although Parliament briefly subjected half-pay officers to military justice, the majority fails to establish that this brief action settled the legitimacy of applying military law to retired officers in Britain. If anything, the debates surrounding half-pay officers show the opposite: that after a period of vigorous debate, the British rejected applying military law to retired officers. A fortiori, the majority fails to show that our Framers accepted the constitutional legitimacy of applying military law to those not in active service. Unlike in Britain, neither Congress nor state/colonial legislatures subjected military personnel to military law when they were not in active service. I am not aware of any evidence (and the majority provides none) suggesting that the Framers accepted the legitimacy of such a practice.
Update Monday, August 8, 2022 Appeal - Summary Disposition No. 22-0023/AR. U.S. v. Michael L. McClure. CCA 20190623. On further consideration of the granted issue, 82 M.J. 194 (C.A.A.F. 2022), and in light of United States v. Mellette, __ M.J. __ (C.A.A.F. July 27, 2022), we conclude that even assuming some error by the military judge, Appellant was not prejudiced. Accordingly, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed. Following the Supreme Court’s proviso in Trammel v. United States Trammel, 445 U.S. 40, 50 (1980) that evidentiary privileges are to be strictly construed, the CAAF holds in a 3-2 opinion in Mellette that the M.R.E. 513(a) psychotherapist-patient privilege does not extend to behavioral health diagnoses and treatments contained within medical records or some other form not consisting of communication between a patient and a psychotherapist or psychotherapist’s assistant. CAAF’s ruling resolves a circuit split between the land and sea forces in favor of the Army appellate court’s minimalist approach. In 2006 the Coast Guard Court of Criminal Appeals took an expansive view of the M.R.E. 513 privilege. See H.V. v. Kitchen, 75 M.J. 717 (CGCCA 2016). In 2019, in an unpublished opinion the Army Court of Criminal Appeals followed the dissent in Kitchen by finding that mental health diagnoses and treatments are independent of confidential communications and significantly are often meant to be disclosed to a third party, such as a pharmacist or a physician prescribing a medication for a physical ailment (United States v. Rodriguez, 2019 CCA LEXIS 387). (Disclosure: this writer was Rodriguez’s appellate counsel.) In 2021 the Navy Court of Criminal Appeals followed the Coast Guard’s more expansive view of the M.R.E. 513 privilege in in its ruling in United States v. Mellette (81 M.J. 681). The CAAF granted certoriari, specifying three issues relating to the M.R.E. 513 privilege and here we are. (Notably, the Air Force Court of Criminal Appeals had not weighed in on the issue but anecdotally, Air Force counsel and trial judges have followed the expansive interpretation of the privilege until now.) In Mellette, the CAAF granted review of three issues: a. Are diagnoses and treatment records subject to the M.R.E. 513 privilege? b. Should the NMCCA have reviewed the mental health records before ruling? c. Was there a waiver of the M.R.E. 513 privilege in the case? Deciding the first issue in favor of the petitioner, the second and third issues are not reached. CAAF’s holding centers on both Trammel’s prescription that evidentiary privileges “must be strictly construed.” Examining the specific language of M.R.E. 513(a), the court finds that the limiting language of “communication” and “between the patient and a psychotherapist” are meaningful choices. The court notes that in contrast the analogous Florida state statute explicitly protects both communications and records, unlike M.R.E. 513. Turning to a government argument that the M.R.E. 513 privilege is akin to the attorney/client privilege in M.R.E. 502, the court dismisses this argument by noting that first, the protection for attorney work product is a separate rule (R.C.M. 701(f)) without an equivalent rule for psychotherapist work product; and second, that the attorney-client privilege is in fact narrow and does not include the underlying facts that may be communicated with an attorney (citing to Upjohn Co, 449 U.S. 383, 395 (1981) and In re Six Grand Jury Witnesses, 979 F.2d 939, 945 (2d Cir. 1992)). In the dissent, Judge Maggs (joined by Judge Sparks) argues that diagnoses and treatment are privileged under M.R.E. 513(a) “only to the extent that they reveal confidential communications between the patient and psychotherapist that were made for the purpose of diagnosing or treating the patient’s mental condition.” Had this been the majority opinion, the practical effect may well have been to force in camera review of medical records, deny the disclosure of specific diagnoses and allow the production of medication records (as few medications are prescribed for one and only one behavioral health condition). Of note to trial practitioners, the CAAF finds with respect to the specific mental health records at issue in Mellette that the sought records “to include the dates visited said mental health provider, the treatment provided and recommended, and her diagnosis….were not protected from disclosure by M.R.E. 513(a)” and that these records should have been produced and potentially admitted. As well, the court also reiterates that diagnoses and evidence that relate to a witness’ credibility and reliability are material to the defense. One would expect that going forward defense discovery requests for AHLTA and similar records will request the same specific three categories requested in Mellette. Although on its face CAAF’s decision in Mellette may appear to buck against the trend of expanding victims’ rights, it actually follows the contemporary judicial path of construing privileges narrowly in order to preserve the truth-seeking purview of the tribunal. The decision falls in line with Harpole (77 M.J. 231)(narrowing the victim-advocate privilege), Jasper (72 M.J. 276)(narrowing the clergy-parishioner privilege), and Durbin (68 M.J. 271)(narrowing the spousal privilege). Nathan Freeburg, a guest post.Readers are invited to offer guest posts by emailing us at admin@nimj. org. |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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