Gauntlet Thrown – New SVC / VLC Writ Likely in Military Justice

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In pretrial motions of a general court-martial that is being litigated at Joint Base Lewis-McChord, Washington, the complainant’s special victim counsel just threw her second notice that she is throwing an issue of first-impression down the gauntlet.  Several months ago, the special victim counsel filed a motion seeking a protective order under R.C.M. 701(g) to restrict my client’s access to the photographs taken during the complainant’s sexual assault forensic examination.  Please note that the sexual assault nurse examiner (SANE) did not take any photographs of the complainant’s external or internal genitalia.  There are some photographs of the sides of her breasts and one of the side of her buttocks, which purport to depict fresh injury.  All other photographs are of the complainant’s neck and face.

In our reply brief opposing the R.C.M. 701(g) protective order, we first challenge the special victim counsel’s legal standing.  Standing means the person’s authority to ask for relief from the court at all.  I am including the language used in our brief in italics so that any counsel in the field who receive similar requests for relief can present a united front:

Although LRM v. Kastenberg, 72 M.J. 364, 372 (C.A.A.F. 2013) provided some authority for the idea that complainants have some standing and a right to be heard, but that standing is limited. At issue in LRM was the right to be heard on a motion pursuant to M.R.E. 412 evidence. Id at 367. In a recent opinion by the Court of Appeals for the Armed Forces, Randolph v. HM, 76 M.J. 27 (2017), the Court focused on the express language outlined in Article 6b to understand the limitations of its own jurisdiction in review and in the avenues available for “victims.” 76 M.J. at 30. Defense believes this framework is the correct one when assessing whether or not a “victim” has a right to be heard on any given matter. Article 6b does not provide standing for a complainant with regard to R.C.M. 701(g) matters. Instead, the language for rights of a “victim”, which is not illustrative, includes the following:

(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of any of the following:
(A) A public hearing concerning the continuation of confinement prior to trial of the accused.
(B) A preliminary hearing under section 832 of this title (article 32) relating to the offense.
(C) A court-martial relating to the offense.
(D) A public proceeding of the service clemency and parole board relating to the offense.
(E) The release or escape of the accused, unless such notice may endanger the safety of any person.
(3) The right not to be excluded from any public hearing or proceeding described in paragraph (2) unless the military judge or investigating officer, as applicable, after receiving clear and convincing evidence, determines that testimony by the victim of an offense under this chapter would be materially altered if the victim heard other testimony at that hearing or proceeding.
(4) The right to be reasonably heard at any of the following:
(A) A public hearing concerning the continuation of confinement prior to trial of the accused.
(B) A sentencing hearing relating to the offense.
(C) A public proceeding of the service clemency and parole board relating to the offense.
(5) The reasonable right to confer with the counsel representing the Government at any proceeding described in paragraph (2).
(6) The right to receive restitution as provided in law.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be treated with fairness and with respect for the dignity and privacy of the victim of an offense under this chapter .

The only “right” listed above that could in any way seem to be triggered by the SVC’s motion is the right to be “reasonably protected.” SVC cites to the “right to be treated with fairness and with respect for the dignity and privacy of the victim of an offense under this chapter.” Without citation, SVC avers that a “victim” can apply for judicial enforcement of an R.C.M. 701(g) protective order.

However, Article 6b provides an exhaustive list for which the protections apply:

(4) Paragraph (1) applies with respect to the protections afforded by the following:
(A) This section (article).
(B) Section 832 (article 32) of this title .
(C) Military Rule of Evidence 412, relating to the admission of evidence regarding a victim’s sexual background.
(D) Military Rule of Evidence 513, relating to the psychotherapist-patient privilege.
(E) Military Rule of Evidence 514, relating to the victim advocate-victim privilege.
(F) Military Rule of Evidence 615, relating to the exclusion of witnesses.

In this exhaustive list, there is no provision that the complainant has standing with regard to R.C.M. 701(g), and accordingly this Court should not find one.

Our fallback position is that even if the Court finds standing, the R.C.M. 701(g) protective order should be denied because it jeopardizes our client’s right to participate in his own defense.

We provide the relevant portion of our response pleading to assist those in the field:

Even if the Court Entertains Standing, the Court Should Deny THE COMPLAINANT’S Motion Because it Jeopardizes CLIENT’s Right to Participate in his Defense.

As a matter of Equal Protection and Due Process of law, the Constitution guarantees criminal defendants’ ‘a meaningful opportunity to present a complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690 (1986) quoting Trombetta, 467 U.S. at 485; see also United States v. Bess, 75 M.J. 70, 74-75 (C.A.A.F. 2016). Inherent in a right to present a complete defense is access to the evidence on which the government is relying to attempt to convict CIENT. COMPLAINANT alleges that CLIENT caused the injuries depicted in the photographs so CLIENT’S ability to engage with his defense attorneys regarding the photographs is crucial to his defense. The undersigned is required pursuant to the ATTORNEY’S STATE Rules of Professional Conduct to “give the client sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued.”

Finally, our last position is that even if the Court finds standing and even if the Court determines that a protective order can safely balance our client’s right to participate in his own defense, the SVC and complainant have not made a showing that any protective order is needed. We provided the photographs to the client immediately upon receiving them and there is no indication he has acted in any manner that might reasonably threaten the interests of the complainant. We provide the last portion of our response brief to assist those in the field:

Even if the Court Entertains Standing, the Court Should Deny COMPLAINANT’S Motion Because SVC has made No Showing for Need.

“Although the military justice system prides itself on its very open discovery, the Rules for Courts-Martial provide for the regulation of discovery by the military judge. RCM 701(g). The ‘military judge may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate.’ RCM 701(g)(2). To ensure a good balance between an accused’s right to a fair trial, judicial efficiency, and confidentiality considerations, the military judge has such tools as in camera reviews, and protective or modifying orders at his disposal. Id.” United States v. Abrams, 50 M.J. 361 (C.A.A.F. 1999).

There has been absolutely no indication and no showing of any need for an R.C.M. 701(g) protective order. The photographs at issue are no more graphic than any others taken as part of sexual assault forensic exams, and in large part, are less invasive because there are none of the genitalia. There is no behavior on the part of CLIENT, which would indicate any need whatsoever to foreclose on CLIENT’S right to assist in his defense.


For the above referenced reasons, the defense moves this Honorable Court to not recognize standing for SPECIAL VICTIM COUNSEL and COMPLAINANT on the issue of their request for R.C.M. 701(g) protective order. Even if the Court entertains their motion, defense moves this Court to deny their motion as an inappropriate infringement on CLIENT’S assistance in his own defense; further such protective order is unnecessary in light of the SVC’s failure to make any showing that CLIENT requires a protective order to not engage in harassing or degrading behavior.

During oral argument on Friday, 7 September 2018, the special victim counsel alluded to taking a writ. The military judge did not flinch. In denying the counsel’s motion, the military judge ruled in accordance with our motion response. First, the judge ruled that the special victim counsel lacks standing, and that even if she had standing, the special victim counsel failed make a showing that a protective order pursuant to R.C.M. 701(g) is needed.

Moments ago, the special victim counsel sent an email to the judge and to the parties “to request a written ruling including matters of law on my motion for a R.C.M. 701 protective order…” Gauntlet thrown.

I imagine what follows next is a request for reconsideration. Once denied, I expect there to be notice of intent to file a writ. By writ I mean an appeal to the intermediate criminal court of appeals to attempt to overturn the trial judge’s ruling that denied the protective order.

Based on the government’s failure to contract with a defense expert, the case has already been continued once.  I imagine this issue will spark need for additional continuances. Meanwhile, my client is being forced to endurethe process of “military injustice.”  

P.S. I know I owe several blog posts about my recent victory from Thursday, last week.  And I am working on them. But this issue is fresh and I want to make sure those in the field are aware of it in case of other similar litigation.

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