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SPECIAL VICTIMS’ COUNSEL (SVC) / VICTIMS’ LEGAL COUNSEL (VLC)

PROGRAM MANAGERS’ PROPOSED AMENDMENTS TO ARTICLES 6b AND 70 OF

THE UCMJ

SUGGESTED CHANGES TO THE U.C.M.J. REGARDING VICTIM APPELLATE

RIGHTS

§Article 6b. RIGHTS OF THE VICTIM OF AN OFFENSE UNDER THIS CHAPTER

(a) Rights of a Victim of an Offense Under This Chapter.-A victim of an offense under

this chapter has the following rights:

(1) The right to be reasonably protected from the accused.

(2) The right to reasonable, accurate, and timely notice and all pleadings filed by

all parties in 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 and any appellate matters, to include post trial review,

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, to include sentence reassessment in accordance

with review under Article 66, UCMJ, relating to the offense.

(C) A public proceeding of the service clemency and parole board relating

to the offense.

(D) Any and all appellate matters and hearings arising out of the offense.

(E) Any and all administrative boards and other adverse administrative

proceedings, arising out of 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.

…..

(e) Enforcement by Court of Criminal Appeals.-(1) If the victim of an offense under this chapter

believes that a preliminary hearing ruling under section 832 of this title (article 32), or a court-martial

ruling violates the rights of the victim afforded by a section (article) or rule specified in paragraph (54),

the victim may petition the Court of Criminal Appeals for a writ of mandamus to require the preliminary

hearing officer or the court-martial to comply with the section (article) or rule.

(2) If the victim of an offense under this chapter is subject to an order to submit to a deposition,

notwithstanding the availability of the victim to testify at the court-martial trying the accused for the

offense, the victim may petition the Court of Criminal Appeals for a writ of mandamus to quash such

order.

(3) A petition for a writ of mandamus described in this subsection shall be forwarded directly to the

Court of Criminal Appeals, by such means as may be prescribed by the President, and, to the extent

practicable, shall have priority over all other proceedings before the court.

(4) If counsel for the accused or the Government file appellate pleadings in a matter arising out of the

offense, the victim shall be served notice of the pleadings in accordance with paragraph (a)(2) and may

file pleadings as a real party in interest when a victim’s statutory, regulatory or Constitutional right is

implicated.

(45) Paragraph (1) and (4) appliesy 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.

§ Article 870, UCMJ Appellate Counsel

(a) The Judge Advocate General shall detail in his office one or more commissioned officers as

appellate Government counsel, and one or more commissioned officers as appellate defense

counsel, and one or more commissioned officers as appellate victims’ counsel, who are qualified

under section 827(b)(1) of this title (article 27(b)(1)).

(b) Appellate Government counsel shall represent the United States before the Court of Military

Review or the Court of Military Appeals when directed to do so by the judge Advocate General.

Appellate Government counsel may represent the United States before the Supreme Court in

cases arising under this chapter when requested to do so by the Attorney General.

(c) Appellate defense counsel shall represent the accused before the Court of Military Review,

the Court of Military Appeals, or the Supreme Court–

(1) when requested by the accused;

(2) when the United States is represented by counsel; or

(3) when the Judge Advocate General has sent the case to the Court of Military Appeals.

(d) The accused has the right to be represented before the Court of Military Review, the Court of

Military Appeals, or the Supreme court by civilian counsel if provided by him.

(e) Appellate victims’ counsel shall represent the victim before the Court of Military Review, the

Court of Military Appeals, or the Supreme Court –

(1) when requested by the victim;

(2) when the Judge Advocate General has sent the case to the Court of Military Appeals; or

(3) when any Article 6b right is implicated during trial or in any appellate pleading or matter.

(ef) Military appellate counsel shall also perform such other functions in connection with the

review of court-martial cases as the Judge Advocate General directs.

Comment in Support of Proposed Changes to the UCMJ

Regarding Victim Appellate Rights

Protect Our Defenders (POD) strongly supports the proposed amendments to Articles 6b and 70

of the Uniform Code of Military Justice (UCMJ), which expand victims’ access to information

and their rights to participate in proceedings against their assailant, particularly at the appellate

level. For many victims of sexual assault and other crimes, one of the hardest parts of the

military justice process is being shut out of the proceedings – victims and their Special Victims’

Counsel (SVCs) struggle to access critical documents, make their voice heard in the appellate

process, or even enforce their own rights and privileges.

Once a conviction is appealed, victims in the military are all but left in the dark, face new

invasions of their privacy with fewer protections, and have even less opportunity to be heard at

proceedings that may overturn a conviction. Further, despite claims that SVCs at the appellate

level would be a drain on resources, similar arguments were made about the founding of the

SVC program, and it is our understanding that at least one service branch (the Air Force) already

has SVCs operating at the appellate level. Ensuring that victims are able to be both heard and

represented at appellate proceedings is key to victim participation and well-being throughout the

military justice process.

In addition to the proposed language, POD has the following suggested edits based on our work

with victims of sexual assault in the military – including service members, veterans, military

dependents, Department of Defense employees, and other civilians – as well as with both

military and civilian SVCs:

Access to Records for Victims and Special Victims’ Counsel

Among SVCs that contact POD, the most common issue we hear about is limited, inconsistent,

and arbitrary access to records. In some cases, SVCs are able to obtain most of the records they

need to properly represent their clients—typically when they have a preexisting relationship with

trial counsel. More often, SVCs receive some or none of the relevant pleadings and filings in a

case, including basic information such as the victim’s own statement to law enforcement or a

copy of the charges. This lack of information makes it impossible for SVCs to raise issues

related to victims’ rights, advise their clients, or even explain basic facts to victims of sexual

assault and other crimes.

POD strongly supports the proposed right to all pleadings filed by all parties, and we encourage

the Panel to take a strong position in favor of victims’ discovery rights. We also encourage the

Panel to consider that a case may involve multiple victims, and it would be inappropriate for

certain documents to be available to all parties—such as, for example, information related to

another victim’s sexual history or mental health treatment. Discovery rights for victims should

ensure that the privacy rights of each victim are protected.

2

Victims’ Right to Be Heard at Administrative and Non-Judicial Proceedings

As POD has previously written to the Panel, victims are not entitled to information concerning

the nature or outcome of administrative or non-judicial action taken against their assailant, and

such proceedings often occurs in lieu of criminal prosecution. Victims are also often unable to

share their experiences or any evidence during these proceedings, leaving commanders with an

incomplete picture of the case. Finally, without knowing the outcome of such proceedings, many

victims struggle to receive closure and have to live without knowing whether justice was done.

In addition to the proposed expansion of victims’ right to be heard at administrative boards and

other adverse administrative proceedings arising out of the offense, POD suggests specifying that

victims have a right to be reasonably heard at non-judicial punishment proceedings.

Appellate Rights

In theory, victims in the military have certain rights, privileges, and protections during the

military justice process. In practice, however, these rights are unenforceable because of the lack

of a key mechanism – full interlocutory appeal rights. Currently, if a victim or their SVC feels

that a victim’s right has been violated, she can file a writ of mandamus with the Court of

Criminal Appeals (CCA). However, the writ of mandamus is for extraordinary relief and it has

proved ineffective. Subsection (e) of Article 6b must be amended to provide full interlocutory

appeal rights for military victims in line with the rights of civilian victims under the Crime

Victims’ Rights Act.18 USC 3771(d)(3), so that victims have these rights both in theory and in

practice.

In addition, because the current language only specifically authorizes victims to file a writ of

mandamus to the CCA, questions over the jurisdiction of higher courts over such writs have been

raised in at least one case before the Court of Appeals for the Armed Forces (CAAF) (EV v LTC

Robinson, Real Party in Interest SGT Martinez, DKT No 16-0398/MC). Subsection (e) of Article

6b should be amended to explicitly allow victims to petition the CAAF, the Supreme Court, and

federal district courts, and section 1044e of the U.S. Code should be amended to explicitly allow

military Special Victims’ Counsel to represent victims within federal district courts.

The suggested edits to Article 70 should also ensure that appellate victims’ counsel are able to

participate in proceedings before the CAAF, the Supreme Court, and federal district courts, and

this language should also ensure that appellate victims’ counsel are able to represent victims

when any right or privilege contained in a Military Rule of Evidence (MRE), the Rules for

Court-Marital, or the UCMJ are at issue – including rights under Article 6b or privileges and

protections under Article 32 or MREs 412, 513, 514, and/or 615.

SVC-Specific

Although victims of sexual assault in the military must generally be informed of the availability

of SVCs before being interviewed by criminal investigators or trial counsel, the Secretary of

Defense may exempt certain circumstances from this requirement. Either Article 6b or section

3

1044e of the U.S. Code should be further amended to create an affirmative obligation to inform

victims of their right to counsel, including both military or civilian SVCs.

I would like to thank the Panel for your continued time and attention to these crucial issues.

Respectfully,

Col. Don Christensen (Ret.)

Former Chief Prosecutor of the United States Air Force

President, Protect Our Defenders

Article 6b, UCMJ With Proposed Language From Section 547 of the

Senate Version of the FY 2017 NDAA (S.2943)

Art. 6b. Rights of the victim of an offense under this chapter

(a) Rights of a Victim of an Offense Under This Chapter.-A victim of an offense under this chapter has

the following rights:

(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. (C) A court-martial and any appellate

matters, including post-trial review, 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.

(b) Victim of an Offense Under This Chapter Defined.-In this section, the term "victim of an offense

under this chapter" means an individual who has suffered direct physical, emotional, or pecuniary harm as

a result of the commission of an offense under this chapter (the Uniform Code of Military Justice).

(c) Appointment of Individuals to Assume Rights for Certain Victims.-In the case of a victim of an

offense under this chapter who is under 18 years of age (but who is not a member of the armed forces),

incompetent, incapacitated, or deceased, the military judge shall designate a representative of the estate of

the victim, a family member, or another suitable individual to assume the victim's rights under this

section. However, in no event may the individual so designated be the accused.

(d) Rule of Construction.-Nothing in this section (article) shall be construed-

(1) to authorize a cause of action for damages; or

(2) to create, to enlarge, or to imply any duty or obligation to any victim of an offense

under this chapter or other person for the breach of which the United States or any of its

officers or employees could be held liable in damages.

(e) Enforcement by Court of Criminal Appeals.-

(1) If the victim of an offense under this chapter believes that a preliminary hearing ruling

under section 832 of this title (article 32) or a court-martial ruling violates the rights of the

victim afforded by a section (article) or rule specified in paragraph (4), the victim may

petition the Court of Criminal Appeals for a writ of mandamus to require the preliminary

hearing officer or the court-martial to comply with the section (article) or rule.

(2) If the victim of an offense under this chapter is subject to an order to submit to a

deposition, notwithstanding the availability of the victim to testify at the court-martial trying

the accused for the offense, the victim may petition the Court of Criminal Appeals for a writ

of mandamus to quash such order.

(3) A petition for a writ of mandamus described in this subsection shall be forwarded

directly to the Court of Criminal Appeals, by such means as may be prescribed by the

President, and, to the extent practicable, shall have priority over all other proceedings before

the court.

(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.

(f) VICTIM AS REAL PARTY IN INTEREST DURING APPELLATE REVIEW.—

(1) If counsel for the accused or the Government files appellate pleadings under section

866 or 867 of this title (article 66 or 67), the victim of an offense under this chapter may file

pleadings as a real party in interest when the victim’s rights under the rules specified in

paragraph (2) are implicated. The victim’s right to file pleadings as a real party in interest

includes the right to do so through counsel, including through a Special Victims’ Counsel

under section 1044e of this title.

(2) Paragraph (1) applies with respect to the protections afforded by the following:

(A) Military Rule of Evidence 412, relating to the admission of evidence regarding

a victim’s sexual background.

(B) Military Rule of Evidence 513, relating to the psychotherapist-patient privilege.

(C) Military Rule of Evidence 514, relating to the victim advocate-victim privilege.

(3) In this subsection, the term ‘victim of an offense under this chapter’ means an

individual who has suffered direct physical, emotional, or pecuniary harm as a result of the

commission of an offense under this chapter (the Uniform Code of Military Justice) and for

which there was a guilty finding that is the subject of appeal under section 866 or 867 of this

title (article 66 or 67).

(Added Pub. L. 113–66, div. A, title XVII, §1701(a)(1), Dec. 26, 2013, 127 Stat. 952 ; amended Pub. L.

113–291, div. A, title V, §§531(f), 535, Dec. 19, 2014, 128 Stat. 3364 , 3368; Pub. L. 114–92, div. A, title

V, §531, Nov. 25, 2015, 129 Stat. 814 .)

From: Mitchell, Tami L MAJ USARMY MP SCHL (US)To: WHS Pentagon EM Mailbox Judicial PanelSubject: Written comments for proposed amendments to Article 6b and Article 70, UCMJDate: Friday, April 29, 2016 1:20:13 PM

I propose the following amendments to provide additional rights in Article6b, UCMJ.

1. The right to be informed of his/her constitutional rights, including theFourth Amendment right to be free of unreasonable searches and seizures ofpersonal property.

2. The right to have the Military Rules of Evidence regarding privileges,as applicable in all stages of criminal and/or administrative proceedings(including the investigative stages of criminal and/or administrativeproceedings), interpreted so as to protect the victim's right to keepprivileged communications privileged, subject to waiver or writtenexceptions applicable to the claimed privilege.

3. Regarding the right to enforcement by a Court of Criminal Appeals, Ipropose adding the following as a basis for petitioning for a writ ofmandamus to require the preliminary hearing officer or the court-martial tocomply with:

(G) Military Rule of Evidence 502, relating to the lawyer-client privilege.(H) Military Rule of Evidence 503, relating to communications to clergy.(I) Military Rule of Evidence 504, relating to spousal privileges.

My proposals are based on my previous experiences as a Special VictimsCounsel.

1. Several of my clients surrendered their personal phones for dataextraction as part of CID's investigations into their cases. However, thedata extraction was of the entire phone, as opposed to data extractionlimited to obtaining data to confirm or refute the allegation beinginvestigated. The contents of the entire phone revealed much personal,private, and potentially embarrassing data that the defense was able to useto discredit my clients. Informing victims of their constitutional rights,including to be free from unreasonable search and seizure of privateproperty, will empower them to make informed decisions about consenting toGovernment searches of their phones, potentially encouraging cooperation byproviding data relevant to the allegation while at the same time maintainingprivacy and keeping irrelevant data out of the Government's possession.Investigating agents can still pursue a search and seizure authorization forthe victim's cell phone.

2. I litigated attorney-client privilege and spousal privileges at trial.One military judge gave a very thoughtful analysis, however, the othermilitary judge, after considering written submissions and oral argument,summarily denied my motion in limine and insisted that the trial driveforward that day. Both military judges allowed these privileges to bepierced. My clients had no mechanism to appeal these decisions adverse totheir interests. Ultimately, in the first case, the outcome was favorableto my first client, while the impact of piercing the privilege hadnegligible effect on my second client. Still, I believe victims deserve to

have the ability to appeal adverse rulings on ALL privileges, which wouldalso encourage military judges to provide thoughtful analysis in theirrulings. We also have some people in the military justice system whobelieve the rules on privileges do not apply during the investigatory phaseof a case, so I believe it is necessary to establish that the rules onprivileges do in fact apply during investigations.

TAMI L. MITCHELLMAJ, JALaw Instructor/WriterU.S. Army Military Police School

Fort Leonard Wood, MO 65473(

I don't want a lawyer to tell me what I can't do. I hire him to tell me howto do what I want to do.J.P. Morgan

The good lawyer is not the man who has an eye to every side and angle ofcontingency, and qualifies all his qualifications, but who throws himself onyour part so heartily, that he can get you out of a scrape.Ralph Waldo Emerson

VIA ELECTRONIC MAIL May 12, 2016

The Honorable Elizabeth Holtzman Chair Judicial Proceedings Panel One Liberty Center Suite 150 875 North Randolph Street Arlington, VA 22203 Dear Representative Hotlzman: I write in response to the Panel’s public notice of April 13, 2016, inviting comments on the proposed revisions to Articles 6b and 70 of the Uniform Code of Military Justice submitted by the Special Victim Counsel program managers. Recognizing that these comments are being submitted significantly later than the requested April 29th date they are brief, and at their core they simply ask the Panel to continue the conversation on these critical proposals. By way of background, I am the Executive Director of the National Crime Victim Law Institute (NCVLI) and a Clinical Professor of Law at Lewis & Clark Law School in Portland, Oregon. NCVLI is a nonprofit educational and advocacy organization with the mission to actively promote balance and fairness in the justice system through crime victim-centered legal advocacy, education and resource sharing. Our work touches victims’ rights in state, federal, and military systems. I have testified before numerous state legislatures and the United States Congress, and have consulted on drafting numerous victims’ rights provisions including the 2004 Federal Crime Victims’ Rights Act. In 2014, I was appointed to the Victims Advisory Group of the United States Sentencing Commission and during 2013-2014 served on the Victim Services Subcommittee, of the Response Systems to Adult Sexual Assault Crime Panel of the United States Department of Defense. In reviewing the proposed changes it clear that they aim to fill practical gaps that victims (both civilian and military) experience when their case proceeds beyond the initial trial or court martial phase. Among the significant gaps are timely notice of proceedings or actions that may impact a victim’s rights (e.g., existence of appellate, other review, or collateral actions; pleadings or the equivalent materials in these actions) and a meaningful opportunity to be heard before a right is diminished or lost by operation of these proceedings or actions.

Representative Holtzman May 12, 2016

Page 2 of 2

These gaps are predictable because victims’ rights, including the federal Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, were written to most clearly apply to pretrial and trial-level proceedings. See United States v. Laraneta, 700 F.3d 983 (7th Cir. 2012) (recognizing the CVRA’s failure to make provision for appellate participation by a victim who has been successful in the trial court and allowing victim intervention in defendant’s appeal when the victim’s right was at issue). Certainly legal arguments exist that when a victim’s right, whether it be privacy, protection, fairness, restitution or any other, is at stake fundamental principles of due process and standing require notice and opportunity to be heard regardless of procedural posture. Certainly, however, the practice of law operates best when processes are clear rather than having to be argued for. C.f. Kenna v. United States Dist. Court, 435 F.3d 1011, 1018 (9th Cir. 2006) (encouraging district courts to modify procedures so as to give full effect to the CVRA after noting hurdles caused by less than clear procedures in victims’ rights context). I applaud the SVC program managers for continuing to identify the significant, practical gaps that victims are experiencing. Their diligence will ensure better outcomes. Based upon the identified concerns I would ask the Panel to undertake a rigorous two-step process: (1) a detailed analysis of relevant law, policies and rules to determine what hurdles continue impede victims’ full participation when their rights are at stake; and (2) identification and careful drafting of the most effective tool(s) for removing these hurdles. Only if we continue to evolve this practice will the system improve and victims be afforded genuine participatory status as is intended by victims’ rights. See Kenna, 435 F.3d at 1016 (recognizing the purpose of the CVRA is to make victims full participants). NCVLI would be happy to submit a detailed comparison of military and civilian law on these issues if that would benefit the Panel as it continues this conversation. Thank you for your continued work to improve the military justice system for all of those impacted. If I can be of any assistance or provide additional information please contact me at 503-768-6953 or garvin@lclark.edu.

Sincerely,

Meg Garvin, MA, JD

Outline of Victims’ Appellate Rights Issues Section 547 of FY17 NDAA (Senate Version) [hereinafter Section 547] proposes amendments to Article 6b, UCMJ, that would: (1) allow victims to file appellate pleadings as a “real party in interest” when the government or defense files appellate pleadings and when the victim’s rights under Mil. R. Evid. 412, 513, or 514 are implicated; and (2) require notice to victims of “any appellate matters, including post-trial review.” I. Victim Privacy Interests During Appellate Counsel Review of Record of Trial

A. Victims’ Concerns Under R.C.M. 1103A, appellate government and defense counsel are authorized to review the entire record of trial, including sealed materials. Special Victims’ Counsel and Victims’ Legal Counsel [collectively SVCs] expressed concern to the JPP that sealed materials, such as mental health records reviewed in camera by the judge and sealed under Mil. R. Evid. 513, are regularly being reviewed on appeal.

B. Relevant Provisions from Section 547 Section 547 states that “[i]f counsel for the accused or the Government files appellate pleadings under [Articles 66 or 67, UCMJ], the victim of an offense . . . may file pleadings as a real party in interest when the victim’s rights under [Mil. R. Evid. 412, 513, and 514] are implicated.”

C. Discussion Questions 1) Are current rules, practices, and procedures regarding appellate counsel access to sealed materials

sufficient to protect a victim’s privacy interests? 2) What would be the ideal mechanism to address victim privacy concerns with respect to appellate

counsel review of the record of trial without impeding on due process rights of the accused? II. Victim Participation at the Appellate Stage (Direct Appeal)

A. Victims’ Concerns SVCs expressed concern that they have no standing to file pleadings on direct appeal. If a victim prevails at trial and his/her mental health records are not disclosed to counsel, appellate defense counsel may argue that the military judge erred by not admitting the mental health records at trial. The victim, however, would not have any standing to file pleadings in response to the appellate defense counsel.

B. Relevant Provisions from Section 547 Section 547 states that “[i]f counsel for the accused or the Government files appellate pleadings under [Articles 66 or 67, UCMJ], the victim of an offense . . . may file pleadings as a real party in interest when the victim’s rights under [Mil. R. Evid. 412, 513, and 514] are implicated.”

C. Discussion Questions

1) Should a victim be granted standing to file appellate pleadings as a “real party in interest”? What does this term mean and what would this entail?

2) Would granting victims standing to file appellate pleadings as a real party in interest implicate any due process considerations for the accused?

3) Should victims be allowed to file pleadings at the appellate stage in other forms (for example, amicus briefs or motions to intervene)?

4) The proposed amendments appear to treat the privacy interests underlying Mil. R. Evid. 412, 513, and 514 equally with respect to the need for victim standing to file appellate pleadings in response to government and defense appellate pleadings. Is this the correct approach?

5) Should victims be treated differently from other witnesses seeking to protect privacy interests under Mil. R. Evid. 412, 513, and 514?

III. Victims’ Right to Appeal Interlocutory Rulings to the Court of Appeals for the Armed Forces

A. Victims’ Concerns SVCs expressed concern that victims do not have the ability to appeal to the Court of Appeals for the Armed Forces (CAAF) if the CCA denies their petition for a writ of mandamus. See EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F 2016).

B. Relevant Provisions from Section 547 Section 547 states that “[i]f counsel for the accused or the Government files appellate pleadings under [Articles 66 or 67, UCMJ], the victim of an offense . . . may file pleadings as a real party in interest when the victim’s rights under [Mil. R. Evid. 412, 513, and 514] are implicated.”

C. Discussion Questions

1) Should victims be permitted to appeal adverse interlocutory rulings by the CCA to CAAF? If so, does

Section 547 provide for this right? IV. Victim Notice at Appellate Stage

A. Victims’ Concerns

SVCs expressed concerns that victims are often not aware when their cases are reviewed at the appellate level and/or when major events occur at the appellate stage.

B. Relevant Provisions from Section 547 Section 547 would amend Article 6b, UCMJ, to entitle victims to notice of “any appellate matters, including post-trial review, relating to the offense.”

C. Discussion Questions 1) If victims should receive notice of appellate matters, how should this be accomplished?

DEPARTMENT OF THE NA VY NA VY AND MARINE CORPS APPELLATE REVIEW ACTIVITY

APPELLATE GOVERNMENT DIVISION 1254 CHARLES MORRIS STREET SE, BLDG 58 WASHINGTON NA VY YARD, DC 20374-5011

The Honorable Elizabeth Holtzman Chair Judicial Proceedings Panel One Liberty Center, Suite 150 875 North Randolph St. Arlington, VA 22203

Dear Representative Holtzman:

May 4, 2016

This responds to the Judicial Proceedings Panel's (JPP's) public notice of April 13, 2016, requesting comments on the proposed amendments to Articles 6b and 70, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 806b and 870. I understand the JPP has already received comments on these proposals from the Department of Defense, Office of General Counsel (DoD OGC). My purpose is not to repeat those comments, but to supplement them with additional observations regarding the proposal and military appellate practice.

First, as a threshold matter, I believe it is important to recognize that the rights and roles of victims and Special Victims' Counsel-Victims' Legal Counsel (VLCs) in the Navy and Marine Corps-in the military appellate process is an emerging issue, the contours of which have only recently begun to be explored by practitioners and military appellate courts. See, e.g., LRMv. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013); DB v. Lippert, No. 20150769, 2016 CCA LEXIS 63 (A. Ct. Crim. App. Feb. 1, 2016). My office recently hosted a day-long training symposium for Navy and Marine Corps VLCs geared toward training them in the basics of appellate procedure, discussing recent cases, and building effective lines of communication between the appellate counsel in my office and VLCs stationed around the globe. I believe it would be a mistake to impose statutory changes to the appellate process at a time when practitioners themselves are only beginning to understand the nature of the issues at play and the unique roles that VLCs/SVCs might play in the appellate process in appropriate cases. As the relevant legal and practical issues become more well-defined, and as practitioners have the opportunity to communicate, share concerns, and litigate these matters before the Courts of Criminal Appeals (CCAs) and the Court of Appeals for the Armed Forces (CAAF), we will be better positioned to identify areas where regulatory and/or legislative changes may be appropriate. But at this stage, such change-particularly legislative change-is premature.

With respect to the SVC program managers' specific legislative proposal, multiple aspects of the proposal demonstrate a fundamental misunderstanding of the role and scope of authority of the CCAs and CAAF under Articles 66 and 67, UCMJ, and of appellate practice and procedure generally. For example:

• The proposal blurs the distinction between trial and appellate functions, and uses the ambiguous term "appellate matters" (which appears nowhere else in the UCMJ) to refer to, interchangeably: proceedings, hearings, issues, cases, specific pleadings, and

a broad category of appellate review that includes within it "post-trial review." Such statutory imprecision, if enacted into law, would create confusion among practitioners, would be a catalyst for costly and unnecessary appellate litigation, and would create new grounds for public criticism of the military justice system as being "out of sync" with federal civilian practice.

• In connection with the above, the proposed amendments appear to treat appellate proceedings as an extension of trial proceedings, in which in-person hearings are held in every case, parties offer testimony and other evidence, and argue before military judges. But the vast majority of appeals in the military justice system are decided based on the briefs alone, and are generally limited to a review of the transcribed record of trial. See, e.g., United States v. Leak, 61 M.J. 234, 245 (C.A.A.F. 2005). Thus, it is unclear how the proposed victims' "right to be reasonably heard" in "appellate matters" would be implemented in virtually every case.

• The proposal conflates "sentencing hearings"-trial-level proceedings following a conviction that take place prior to appellate review-with "sentence reassessment" under Article 66, UCMJ. Victims already have a "right to be reasonably heard" at the former under Article 6b(a)(4)(B), UCMJ. By contrast, "sentence reassessment" is a function of the CCAs when some, but not all, findings of guilt are set aside for legal error. In such cases, the court must analyze various factors to determine whether it can assess the impact of this set-aside on the overall sentence or whether a trial-level sentence rehearing should be ordered. See United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013). Importantly, because the CCA is required to review the "entire record" in every case it reviews, sentence reassessment necessarily includes CCA review of a victim's trial testimony and any statements he or she may have offered during sentencing. Article 66(c), UCMJ. Thus, the proposed additional "right to be reasonably heard at ... sentence reassessment" would contravene the CCA' s limited scope ofreview under Article 66, UCMJ, and introduce unnecessary redundancy into the appellate decision-making process.

• The proposal would require "appellate victims' counsel" to appear before "the Court of Military Review [sic], the Court of Military Appeals [sic], or the Supreme Court" upon request by the victim, upon Judge Advocate General certification of a case to the CAAF under Article 67(a)(2), UCMJ, or "when any Article 6b right is implicated during trial or in any appellate pleading or matter." This broad requirement would include virtually every case on appeal under Articles 66, 67, and 67a, UCMJ, regardless of the nature of the issues. Moreover, it purports to permit appellate victims' counsel to file appellate pleadings whenever their clients' "statutory, regulatory or Constitutional right[s are] implicated." It is unclear what function such broad requirements are designed to serve given the lack of any parallel provisions under the Crime Victims' Rights Act, 18 U.S.C. § 3771. Nor is it clear what contributions "appellate victims' counsel" would be expected to make in the appellate representation of their clients-particularly in cases in which their clients' rights under Article 6b are either not implicated, or were fully exercised at the trial level.

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As the JPP contemplates recommending potential statutory or regulatory changes in this area, I believe it essential that you receive input from experienced appellate practitioners regarding: (1) how military appellate courts function and the scope of their statutory authority; (2) relevant case law in the areas of sentence appropriateness, sentence reassessment, factual sufficiency, Dubay hearings, extraordinary writ procedure, sealed exhibits and proceedings, and other areas that may implicate the rights and interests of crime victims in specific cases on appeal; and (3) concerns that appellate government and appellate defense counsel may have with respect to the expansion of victims' statutory rights at the appellate stage-including, but not limited to, concerns that such an expansion may undermine due process and the efficient and effective administration of justice.

I would be happy to discuss these issues in more detail with you in person or by telephone at a future JPP meeting.

Very respectfully,

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rps vernment Division

avy

SECTION 547 OF THE SENATE VERSION OF THE FY 2017 NDAA (S.2943) TO

AMEND ARTICLE 6b OF THE UCMJ

SEC. 547. APPELLATE STANDING OF VICTIMS IN ENFORCING RIGHTS OF VICTIMS

UNDER THE UNIFORM CODE OF MILITARY JUSTICE.

(a) VICTIM AS REAL PARTY IN INTEREST DURING APPELLATE REVIEW.—Section 806b

of title 10, United States Code (article 6b of the Uniform Code of Military Justice), is amended

by adding at the end the following new subsection:

“(f) VICTIM AS REAL PARTY IN INTEREST DURING APPELLATE REVIEW.— (1) If

counsel for the accused or the Government files appellate pleadings under section 866 or 867 of

this title (article 66 or 67), the victim of an offense under this chapter may file pleadings as a real

party in interest when the victim’s rights under the rules specified in paragraph (2) are

implicated. The victim’s right to file pleadings as a real party in interest includes the right to do

so through counsel, including through a Special Victims’ Counsel under section 1044e of this

title.

“(2) Paragraph (1) applies with respect to the protections afforded by the following:

“(A) Military Rule of Evidence 412, relating to the admission of evidence regarding a

victim's sexual background.

“(B) Military Rule of Evidence 513, relating to the psychotherapist-patient privilege.

“(C) Military Rule of Evidence 514, relating to the victim advocate-victim privilege.

“(3) In this subsection, the term ‘victim of an offense under this chapter’ means an

individual who has suffered direct physical, emotional, or pecuniary harm as a result of the

commission of an offense under this chapter (the Uniform Code of Military Justice) and for

which there was a guilty finding that is the subject of appeal under section 866 or 867 of this title

(article 66 or 67).”.

(b) NOTICE OF APPELLATE AND POST-TRIAL MATTERS.—Subparagraph (C) of

subsection (a)(2)of such section (article) is amended to read as follows:

“(C) A court-martial and any appellate matters, including post-trial review,

relating to the offense.”.