Can an alleged victim sue to stop discovery in a court-martial

Probably not successfully based on AV2 v. McDonough, No. 22-369, 2022 U.S. Dist. LEXIS 72609 (D.D.C. April 20, 2022) and E.V. v. Robinson, 906 F.3d 1082, 1086 (9th Cir. 2018) certiorari den. 140 S.Ct. 501, 205 L. Ed. 2d 316 (2019).

In each of these cases, a military judge had granted discovery of mental health information that the alleged victims claimed was protected by Mil. R. Evid. 513, in other words, the military judge was wrong. They had sought relief from the Court of Criminal Appeals and from the Court of Appeals for the Armed Forces without success.

The basis for seeking a writ was essentially that

  • The military judge violated her Fourth Amendment rights by violating Mil. R. Evid. 513.
  • The military judge failed to provide her due process in violation of the Fifth Amendment.
  • ACCA violated the Fifth Amendment due process clause when the ACCA did not properly analyze AV2’s privilege claim under MRE 513.
  • A Fifth Amendment due process violation—against the CAAF for failure to follow its procedural rules.

As part of the claims, the government defended on sovereign immunity grounds as well as a lack of jurisdiction for a federal court to impose their will on a military judge during an ongoing court-martial.

In denying the writs the courts have essentially concluded that,

  • A military judge has absolute immunity for decisions made in the course of trial.
  • There is no waiver of sovereign immunity in UCMJ art. 6b.
  • The First Amendment does not grant jurisdiction.
  • The Administrative Procedures Act does not apply.

In the most recent case, the court said,

Congress has not given Article III courts subject matter jurisdiction “directly to review court-martial determinations.” Councilman, 420 U.S. at 746. As a “general rule,” a court-martial’s acts, “within the scope of its jurisdiction and duty, cannot be controlled or reviewed in the civil courts, by writ of prohibition or otherwise.” Id. (quoting Smith v. Whitney, 116 U.S. 167, 177 (1886)). There is no exception for a “pre-judgment direct attack” on a court-martial decision that goes “beyond recognized grounds” for collaterally attacking a judgment. See id. at 746-49, 749 n.19, 752-53 (explaining those grounds are the absence of jurisdiction or “some other equally fundamental defect” and “mere[]” error” is insufficient). Even if a federal court has subject matter jurisdiction, it normally lacks “equitable jurisdiction” to intervene, “by injunction or otherwise,” in ongoing court-martial proceedings. Id. at 740, 754, 758. Councilman abstention is improper, however, when there are “extraordinary circumstances.” See In re Al-Nashiri, 835 F.3d 110, 128-30 (D.C. Cir. 2016). None are present here.

So far, the U.S. Supreme Court has rejected appeals of the writ denials.

Question for military defense counsel. When a delay in trial is caused by these civilian litigations can that lead to a speedy trial problem?

Military defense lawyers should be prepared to argue strongly that any trial not be delayed so that an alleged victim can pursue and civilian writ against the military judge’s ruling in your favor. These two cases should be cited for the principle that the CCA, CAAF, and federal courts are unlikely to grant a writ; and that the alleged victim is only seeking to delay the trial. I think the MJ would be on firm ground denying a delay in trial while writ litigation is ongoing in the CCA or CAAF, etc.

I think there’s a reasonable chance that the Court of Appeals for the District of Columbia will deny a writ appeal in AV2, and will cite to the 9th’s handling of a similar issue.

Interestingly, if alleged victims succeed in getting federal courts to intervene in ongoing courts-martial, would that open the door to an accused doing the same–filing a writ and when the CCA and CAAF deny the writ, go to the Feds. True, the CCA and CAAF will say you should take it up in the course of normal review, but by then it’s probably too late.


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