A CW's rights

In re HK.

On 13 September 2021, Petitioner requested this court issue a writ of mandamus vacating a trial judge’s decision to grant a defense-requested continuance. Petitioner further asks us to find that she has standing to argue for her rights under Article 6b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 806b, before the trial judge.

 During voir dire of the potential court members on 23 August 2021, the Defense learned the Government intended to rely on evidence which the Defense had not been provided in discovery. The Government then turned over nearly 2,000 pages of text messages to the Defense. The next day, on 24 August 2021, the Defense sought a continuance, via a written motion, to review the evidence. 

HK submitted a written objection to the continuance.

The military judge, ruling on the continuance, said that HK did not have standing before the trial court to object to the continuance. Note, the government objected to a continuance which was, apparently, caused by their discovery failure.

AFCCA accepts that it has jurisdiction to hear the writ.

Congress passed the National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 127 Stat. 672 (26 Dec. 2013) (FY14 NDAA). Section 1701 of that act was titled, “Extension of Crime Victims’ Rights to Victims of Offenses Under the Uniform Code of Military Justice,” and created Article 6b, UCMJ. As originally enacted, that article defined eight substantive rights for victims of crimes under the UCMJ, including the right to be reasonably protected from an accused, the right to notice of certain events, and the right to be treated with fairness and respect for his or her dignity and privacy. Article 6b(a), UCMJ, 10 U.S.C. § 806b. Two of those eight specific rights are relevant here: (1) the right to proceedings free from unreasonably delay, and (2) the right to be reasonably heard at certain proceedings. Id. The latter provision entitles a victim to be reasonably heard at: (1) pretrial confinement hearings; (2) sentencing hearings; and (3) clemency and parole hearings. 

The court acknowledges that Article 6b is based on the CVRA followed in federal courts. The CVRA does provide that trial courts consider an alleged victim's input on continuances. However, the court finds that Congress does not specifically include such in Article. 6b.

Ultimately, the court decides the alleged victim had no standing at the court-martial--writ denied.

​Assume the MJ did take the alleged victim's input and denied the continuance. Now what?