NMCCA publishes United States v. Mellette

UPDATED 16 May 2021 in light of some comments. (Thanks for commenting!)

In Mellette, the appellant was convicted of child sexual abuse on diverse occasions. The "enlisted" panel sentenced him to five years and a DD.

On appeal he had six assignments of error. Three were determined to be error and one of them got him a confinement reduction from five to three years. (Note, this is a 2019 case so it is likely appellant is close to his MRD, assuming that is, no certification to CAAF  and that court overruling NMCCA.)

• Errors having merit.
  • Abuse of discretion denying Defense motion for in camera review, production of the victim’s mental health diagnoses, treatment; and medications.
  • Abuse of discretion to allow expert profile testimony about the accused.
  • Plain error with the victim making a specific sentence recommendation in unsworn victim impact statement.
• Other errors.
  •  Legal and factual insufficiency.
  • Incomplete record of trial.
  • Cumulative error.

Mental health issue.
​

Here, after openly discussing with family members and NCIS and during her civil deposition her mental health diagnoses and treatment, including her recollection of her prescribed medications, [CW] asserted her psychotherapist-patient privilege to prevent Appellant’s trial defense counsel from accessing this information in her mental health records. The Defense then moved:

(1) the requested information was not privileged because the confidential communication that the psychotherapist-patient privilege protects does not include diagnosis and treatment information;

(2) [CW] waived any privilege by repeatedly discussing her mental health issues with various third parties; and

(3) even if not waived, the privilege should yield to in camera review and production of the requested information as constitutionally required. A Defense expert opined that based on the information and symptoms [CW] had already revealed, [CW] could have Borderline Personality Disorder, which could further manifest in attention-seeking and manipulative behaviors, particularly when associated with fear of abandonment.

​The presence of BPD in alleged sexual assault cases suggests two opposing conclusions for trial practitioners: a CW may be more likely to engage in consensual sexual behavior which they later regret (and coupled with need for a secondary gain, make a false accusation) or, they also may be more likely to become a victim. See R.A. Sansone & L. A. Sansone, Sexual Behavior in Borderline Personality: A Review. Innov. Clin. Neurosci, 14-18, 8 Feb. 2011, Nat’l Center for Biotechnical Information, Nat’l Institute of Health. See also, De Zutter, A.W.E.A., Horselenberg, R. & van Koppen, P.J. Motives for Filing a False Allegation of Rape. 47 Arch. Sex Behav. 457–464 (2018). 

Access to and admission of a history of BPD requires a nuanced balancing act by the military judge, which the court in Mellette takes on to address this judge's failures to do that properly. Here, the military judge erred along the way in,

• “[S]ummarily rejecting” the defense waiver argument.
• Concluding the requested information was not subject to production under R.C.M. 703(f).
• Failing to follow the procedures under Mil. R. Evid. 513(e)(3).

We have previously identified several key areas where courts have overridden privileges in order to protect against the infringement of an accused’s weighty interests of due process and confrontation: “(1) recantation or other contradictory conduct by the alleged victim; (2) evidence of behavioral, mental, or emotional difficulties of the alleged victim; and (3) the alleged victim’s inability to accurately perceive, remember, and relate events.” As we explained, “[t]he second and third areas, in particular, . . . go to the very essence of witness credibility and reliability—potential defects in capacity to understand, interpret, and relate events. Additionally, these areas intersect with the medical community’s ability to interpret that credibility.” 

​​The court is citing ​J.M. v. Payton-O’Brien, 76 M.J. 782, 789 (N-M Ct. Crim. App. 2017).

On the profile testimony.

Here the expert testimony was focused on the accused and what he did, including references to "grooming" conduct . (It is not clear to me if this was grooming or seduction which are two different concepts.) Regardless, there was error.
​

​The Government expert’s testimony was thus elicited and used in precisely the way the rule against profile testimony forbids. This was not an instance where, as in Huberty, expert testimony about grooming was used to explain the victim’s behavior or to rebut issues in this area raised by a Defense expert. Nor was it used as a means of explaining Stacy’s complicity in the secret relationship with Appellant, thus supporting her credibility with respect to her delayed allegations. Rather, the testimony was “admitted for the purpose of showing that Appellant fit the ‘profile’ of a sex abuser.” It was elicited and used to show that Appellant’s actions were consistent with patterns of grooming behavior exhibited by child sex abusers, in order to support the conclusion that he was guilty of the charged offense of child sexual abuse. The admission of this testimony was therefore erroneous.

​See generally, United States v. Huberty, 53 M.J. 369 (C.A.A.F. 2000) on this topic.

The CW sentence recommendation.

The defense failed to object to a sentence recommendation in the victim’s unsworn statement. Adopting the plain error test the court found error but no  prejudice.  ​​Interestingly, trial counsel argued for five years confinement. But the court determines this argument, serendipitously adopting the victim’s number, removes the prejudice not enhances it with a prosecution imprimatur on the CW's recommendation.

Note to file. Object when the victim says,

“I suffered in silence for five years before circumstances made me tell the truth of what he had done to me. I think that he needs a significant amount of jail time to think about the pain he has put me through.”  (Emphasis added and in the original.)

​Note to the fleet.
​

• Reread United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989). The AFCMR decision is here.
• Some common nuanced, or not so nuanced objectionable sentence recommendations include, that the accused has “[n]o potential for continued service[.]” Or, stated, otherwise give him a Big Chicken Dinner.

​Note to DC. You are the gatekeeper here. What you do in sentencing might allow the prosecution to rebut what you put forward in sentencing that is directly or indirectly a sentence recommendation from your own witnesses (oral or written).

• “I believe he should be retained” may open the door.
• “I would go to war with him,” said alone is not currently rebuttable, unless the prosecution witness were to say only that “I wouldn’t go to war with him.”

See United States v. Hallum, 31 M.J. 254 (C.M.A. 1990) on how recommendations and opinions can lead to a sticky place.

​Cheers, P.C.

UPDATE

​In a comment, “Attorney” suggests a reason why this Mellette may be “cert-worthy” to CAAF because of a circuit split--actually a three circuit split. Essentially what is protected according to the plain language of Mil. R. Evid. 513—is it broad and inclusive or is it more restrictive. The comment refers to United States v. Rodriguez, No. 20180138, 2019 CCA LEXIS 387 (A. Ct. Crim. App. Oct. 1, 2019). Another comment refers to Browning v. Trammel, 717 F. 3d 1092 (10th Cir. 2013).

In Rodriguez, ACCA said,

Mil. R. Evid. 513(a) provides:

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to a psychotherapist, in a case arising under the UCMJ, if such communication [*7]  was made for the purpose of facilitating diagnosis or treatment of the patient's mental or emotional condition.
Whether a diagnosis or prescribed medication is privileged under Mil. R. Evid. 513 is a question that has not yet been directly addressed by our superior court. However, the Coast Guard addressed this question in H. V. v. Kitchen. 75 M.J. 717, 2016 CCA LEXIS 395 (C.G. Ct. Crim App. 2016) (2-1 decision) (Bruce, R., dissenting).

​We find Judge Bruce's dissenting opinion in Kitchen most illustrative:
​
A diagnosis, prescribed medications, and other treatments are matters of fact that exist independent of any communications between the patient and the psychotherapist. . . . The facts that there was a diagnosis, that medications were prescribed, or that other treatments were given, exist regardless of whether or to what extent they were discussed with the patient." See H. V. v. Kitchen, 75 M.J. 717, 721, 2016 CCA LEXIS 395 (C.G. Ct. Crim App. 2016) (2-1 decision) (Bruce, R., dissenting). A prescription, by its very nature, is intended to be disclosed to a third party (i.e., the pharmacist who fills the prescription). Kitchen, 75 M.J. at 721. Adopting a plain language approach to the Mil. R. Evid. 513 privilege, Judge Bruce deftly highlighted "the rule protects 'communication' 'made for the purpose of facilitating diagnosis or treatment,' not including diagnosis and treatment.'"

2019 CCA LEXIS 387, at *6-7. 

The defense in Rodriguez failed in their request because of an insufficient basis beyond a “fishing expedition.” Is that the same for Mellette? Is Rodriguez really that clear?
 
The Army court also explains that,  "Neither Brady nor the Confrontation Clause Entitles [*12]  Appellant to an In-Camera Review of [CW]'s Mental Health Records. Id. at 2019 CCA LEXIS 387, at *11-12 (A. Ct. Crim. App. Oct. 1, 2019)."

ACCA cites to H.V. v. Kitchen,  75 M.J.  717 (C.G. Ct. Crim. App. 2006). (Randolph v. H.V., 76 M.J. 27 (C.A.A.F.  2017), dismissed for lack of  jurisdiction.) The issue was "whether the privilege is limited to the patient's communications themselves or extends to the psychotherapist's conclusions (diagnoses) and resulting treatments."​

After a hearing, the military judge ruled that M.R.E. 513 did "not prevent the disclosure of dates on which a patient was treated, the identity of the provider, the diagnostic code, or the therapies used." Accordingly, she ordered the Government to produce for the defense the mental health records of Petitioner for a stated period of time,
limited to ONLY those portions indicating a psychiatric diagnosis (as this phrase is used in the DSM-5), the date of such diagnosis, any medications prescribed, the duration prescribed medications were to be taken, type of therapies used, and the resolution of the diagnosed psychiatric condition, if applicable. . . 

75 M.J. 717. Adopting the analysis and decision in In Stark v. Hartt Transportation Systems, Inc., 937 F.Supp.2d 88, 92 (D. Me. 2013),  the CGCCA granted the petition in favor of the petitioner and protecting the mental health records from disclosure.

And now to Browning.

​What the jury did not know—and the defense attorneys also did not know—was that [CW], who became the most important witness at trial, had been diagnosed with a severe mental disorder. According to records from her psychiatrist that were in the State's possession, [CW] blurred reality and fantasy, suffered from memory deficits, tended to project blame onto others, and had an assaultive, combative, and even potentially homicidal disposition.

In subsequent federal proceedings, the contents of [the] mental health records came to light, prompting the federal district court to grant a conditional writ of habeas corpus. The district court reasoned that the mental health records were favorable to Browning and material to his defense, especially considering Browning's trial strategy to paint [CW] herself as complicit in the murders. The district court therefore ruled that the Constitution obligated the State to disclose those records to Browning before trial pursuant to Brady v. Maryland.
​
Given the central role [CW] played at trial and the severity of her mental health diagnosis, we agree with the district court that the psychiatric information was favorable to Browning and material to his defense, and that the Oklahoma courts could not have reasonably concluded otherwise. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

It is not clear in Mellette if the government had itself the information sought which might affect the Brady analysis. As a final conclusion related to Mellette and the Brady issue,

Brady evidence need not prove a defendant's innocence. Rather, the evidence need only “put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435. That circumstance exists here, and the Oklahoma courts could not have reasonably concluded otherwise. Browning's only chance was to impeach [CW]'s credibility and portray her as a participant in the crime. As the trial actually played out, there was little reason for the jury to give Browning's theory any credence. Indeed, the prosecution encouraged the jury to take offense that Browning would propose such an idea. But that dynamic would have been significantly curtailed had Browning been able to inform the jury that [CW] blurs reality and fantasy, projects blame onto others, and is perhaps even homicidal. A theory that might otherwise be offensive suddenly must be taken seriously. That, if anything, is “such a different light as to undermine confidence in the verdict.”

I think it is reasonably common knowledge that a person with BPD has some of the same "characteristics" as CW in Browning. Couple that with alcohol, which research indicates tends to lead to risky sexual behavior and with a motive to lie (psychologists will refer to this as secondary gain)--is there something on which to base a credibility challenge on cross-examination? As a final side point.

The Government argues that Browning v. Trammell, 717 F.3d 1092, 1104 (10th Cir. 2013), limits its production responsibilities to documents in its possession prior to the verdict. But, at most, Browning suggests that the Government's discovery obligations do not extend to "evidence developed post-verdict." Id. It is not when the evidence came into the Government's possession that is determinative; it is when the evidence came into existence. Because all of Defendant's discovery requests relate to evidence that existed when the jury rendered its verdict, the court need not decide whether Browning limits the Government's Brady obligations.

United States v. Dermen, No. 2:18-cr-00365-JNP-BCW, 2021 U.S. Dist. LEXIS 27430, at *83 n.39 (D. Utah Feb. 10, 2021).

Once presented to CAAF the Court will have thorny constitutional issues to resolve under the Sixth Amendment and the constitutional right to discovery in Brady-plus, in addition to  interpreting  Mil. R. Evid. 513?