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A CW's rights

10/22/2021

 
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 As originally enacted, that article defined eight substantive rights for victims of crimes under the UCMJ, including the right to be reasonably protected from an accused, the right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?
Tami a/k/a Princess Leia
10/22/2021 09:16:47 pm

If the MJ had denied the continuance, either the Government proceeds without the 2000+ pages of text messages as a penalty for discovery violation, or the Government proceeds with the messages and the MJ gets reversed on appeal.

Philip D. Cave link
10/23/2021 06:23:52 am

1. Proceed w/o is an option. I don't read the opinion as that having come up--perhaps it was considered but rejected. But yes, if this happens that's an option.

2. On appeal, do you not also have to deal with prejudice if the issue is treated as a discovery failure? Or what if it comes up as a Sixth issue?

Tami a/k/a Princess Leia
10/23/2021 10:54:12 am

Phil, absolutely! I think it would be MJ abuses discretion in denying a continuance, discovery failure by Government, then IAC would probably be moot.

Lone Bear
10/23/2021 09:40:12 am

Generally VLC provide inputs on scheduling matters like this one, I’d never thought about the standing issue though. It’s pretty unreasonable to oppose a continuance though, Defense has a right to review the text messages and incorporate them into their case. Al

CTC
10/23/2021 11:43:19 am

Right--you would think the SVC cadre would await a "closer call" continuance to pursue rather than one as clear cut as 2,000 pages of new discovery provided on the day *of* trial. But I suppose the merits don't affect the issue of standing, which is what it appears they were trying to accomplish here.

Philip D. Cave link
10/23/2021 12:29:03 pm

How about this tweak.

MJ denies the continuance but precludes the gubmint from using the texts or anything derived from them.

Accused gets convicted.

After trial the defense has a chance to closely review the texts and there's a potential smoking gun in the nature of Brady-plus information.

Now what? Beyond the general discovery failure and the added Brady issue. Certainly a better appellate case.

Tami a/k/a Princess Leia
10/23/2021 07:52:26 pm

This would depend on whether there's a post-trial Art. 39(a) session to address this. If no post-trial session was held, then I think this would also be a good appellate issue, provided appellate defense counsel catches it.

Philip D. Cave link
10/23/2021 12:38:07 pm

Another tweak.

MJ: SVC I do not believe you have standing to participate on this issue.

MJ: Counsel, the court will be in recess while I consider the motion.

MJ: Counsel, including SVC, let's have an 802.

MJ: Prior to returning we had an R.C.M. 802 meeting to discuss the motion and the way forward depending on what I decide. I did receive input from the SVC on her clients concerns for scheduling as we discussed a potential new schedule if I grant the motion. I did NOT rule on the motion in that hearing.

MJ: Counsel, I have decided to, very reluctantly, grant the continuance. In doing so I have taken into consideration the effects of a delay on the parties and all of the witnesses.

Does that moot HK's complaint?

Lone Bear
10/27/2021 02:10:26 pm

Seems to satisfy 6b, not sure what issue remains.


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