05/29/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES CB, ) ) WRIT-APPEAL PETITION FOR Petitioner ) REVIEW OF NAVY-MARINE CORPS ) COURT OF CRIMINAL APPEALS ) DECISION TO DENY PETITION FOR ) EXTRAORDINARY RELIEF ) IN THE FORM OF A WRIT OF ) MANDAMUS ) v. ) Crim.App.Misc.Dkt.No.201500058 ) USCA Misc. Dkt. No. Moira MODZELEWSKI, ) Captain (O-6) ) U.S. Navy, ) In her official capacity as ) Military Judge ) Respondent ) ) and ) ) Donald FOSTER, ) Lance Corporal (E-3) ) U.S. Marine Corps, ) Real Party in Interest ) Subject Index Page Table of Authorities...2 Preamble...4 History of the Case...5 Relief Sought...6 Issue Presented...7 Statement of the Facts...7 Reasons Why the Writ Should Issue...16 A. Issuance of a writ is necessary to protect the victim s rights in this case...16
Respondents Addresses, Telephone, And Facsimile Numbers...23 Certificate of Filing and Service...24 TABLE OF AUTHORITIES Page UNITED STATES SUPREME COURT Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383 (1953)...20 Cheney v. United States Dist. Court, 543 U.S. 367 (2004)...20-21 Doe v U.S., 666 F.2d 43 (1981)...19 Kerr v. United States Dist. Court for Northern Dist. Of Cal., 426 U.S. 394 (1976)...19-20, 22 Will v. United States, 389 U.S. 90, 95 (1967)...20 UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES AND COURT OF MILITARY APPEALS CASES Hasan v. Gross, 71 M.J. 416 (C.A.A.F. 2012)...6,16, 19-20 STATUTES AND RULES Article 6(b)...18,21 18 U.S.C. 3771...18 Article 39(a)...passim Article 107...5, 9 Article 120...5, 9-10 M.R.E. 303...4 M.R.E. 412...passim National Defense Authorization Act 2015 535...17-19 2
APPENDIX THE APPENDIX IS NOT INCLUDED WITH THIS FILING BUT A SEALED APPENDIX HAS BEEN SENT BY SEPARATE CORRESPONDENCE BY MAIL TO THIS COURT A. Record of Trial-level Proceedings. B. Military Judge s MRE 412 Ruling of 18 February 2015. C. Military Judge s final ruling regarding MRE 412 Of 20 February 2015. D. Petition for Extraordinary Relief in the Form of a Writ of Mandamus filed 26 February 2015. E. NMCCA Order dtd 3 March 2015. F. NMCCA Order dtd 7 May 2015. 3
Preamble Petitioner hereby prays for an order which: (1) reverses the decision of the Navy-Marine Corps Court of Criminal Appeals(NMCCA), which denied Petitioner s request for extraordinary relief in the form of a writ of mandamus, and (2) grants Petitioner s request for extraordinary relief in the form of a writ of mandamus. 1 Specifically, Ms. CB respectfully requests that this Court set aside the Trial Court s rulings made under M.R.E. 412 2 and M.R.E. 608(c), and direct the Trial Court to exclude any evidence of previous or subsequent sexual assault incidents unrelated to the present case from being introduced at trial. When the Military Judge ordered Ms. CB to reveal her private Restricted Reports and other reports of sexual assault and allowed these to be utilized as extrinsic impeachment evidence at trial, this violated the M.R.E., constitutional due process, and the right to be treated with fairness and respect for the dignity and privacy of the victim, thus requiring the Trial Court s ruling be overruled. I 1 The undersigned Victims Legal Counsel is submitting appellate matters due to the fact that the Marine Corps Victims Legal Counsel Organization does not currently have appellate counsel assigned. 2 The Military Judge issued two M.R.E. 412 rulings. On 18 February 2015, the Military Judge released an electronic copy of her M.R.E. 412 ruling to the parties, noting in her email Counsel: I ve attached the 412 ruling. I need to clean up two cites by looking at AEs themselves, rather than my log, so it s not in PDF yet. On 20 February 2015, at an Article 39(a) session, VLC informed the Military Judge that he would be filing a writ of Mandamus. Shortly thereafter, the Military Judge released a revised electronic copy of her M.R.E. 412 ruling, stating in her e-mail to the parties Counsel: I m attaching the final M.R.E. 412 ruling. In light of VLC s decision to take a writ, I wanted to add a few paragraphs about restricted reports, as that issue has been a thread in the litigation. Also I cleaned up 2-3 cites after we all looked at the record. No other changes. 4
History of the Case The Government preferred charges against Lance Corporal Donald Foster on 7 November 2013 alleging violations of Articles 107 and 120, Uniform Code of Military Justice (UCMJ). The charges name Ms. CB as the victim. An Article 32, UCMJ, investigation was held on 25 February 2014, and Ms. CB testified as a witness. All of the Charges and Specifications thereunder were referred for trial by General Court-Martial, except for Specification 5 of Charge II. Furthermore, Specifications 1, 3, 6, and 7 of Charge II were modified. The Charges and Specifications thereunder were referred to General Court-Martial on 21 March 2014. Arraignment in this case was held on 31 March 2014. Article 39(a) sessions were held on 20 June 2014, 1 August 2014, and 29 August 2014, and 12 February 2015 to address pretrial motions. The Military Judge provided a ruling on a M.R.E. 412 Motion to the parties on 18 February 2015. In light of the Military Judge s ruling, the VLC notified the Military Judge at an Article 39(a) Motions Session held on 20 February 2015 of the intent to file a writ of mandamus with NMCCA. Shortly thereafter, on the same day, the Military Judge released another ruling on the M.R.E. 412 Motion. The Military Judge s second written ruling, which was published on 20 February 2014, contained additional language because the 18 February 2014 5
ruling did not address the Restricted Reporting issue. Counsel for Petitioner filed a Petition for Extraordinary Relief for a writ of mandamus with the NMCCA on 26 February 2015. On 3 March 2015, NMCCA ordered a stay in the proceedings of US v. Foster and ordered the Court to show cause why NMCCA should not grant Petitioner s requested extraordinary relief. On 24 March 2015, copies of the Record of Trial of US v. Foster were distributed to all parties. On 6 April 2015, Counsel for the Real Party in Interest filed his opposition brief to the writ of mandamus. On 20 April 2015, Counsel for Petitioner filed a responsive brief to the opposition brief. On 7 May 2015, NMCCA denied the Petition for Extraordinary Relief in the Nature of a writ of mandamus, ruling that [t]he Petitioner has failed to demonstrate a clear and indisputable right to the issuance of a writ of mandamus, citing Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012). Pursuant to Rule 27(b) of the Court s rules, Petitioner files a writ-appeal petition with this Court. II Relief Sought Petitioner seeks this Court set aside the Trial Court s ruling of 20 February 2015, under M.R.E. 412, and direct the Military Judge to exclude any evidence from trial regarding previous instances of sexual assault of Ms. CB. Petitioner seeks 6
this Court reverse NMCCA s denial of Petitioner s petition for extraordinary relief in the form a writ of mandamus. III Issue Presented WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED WHEN IT RULED THAT PETITIONER FAILED TO DEMONSTRATE A CLEAR AND INDISPUTABLE RIGHT TO THE ISSUANCE OF A WRIT OF MANDAMUS. IV Statement of Facts a. Ms. CB filed an Unrestricted Report of sexual assault to authorities on or about 8 May 2013. b. Ms. CB reported that the Accused, Lance Corporal Donald J. Foster, United States Marine Corps, sexually assaulted her in his barracks room aboard Marine Corps Air Station, New River, North Carolina, in the late evening hours of 3 May 2013. Ms. CB reported to NCIS investigators that she went to the Accused s barracks room on the evening of 3 May 2013. She stated that she fell asleep on his bed and later awoke without any clothes on. She asked the Accused if any sexual intercourse had occurred, to which the Accused replied that no sexual intercourse occurred. In 7
subsequent text messages between Ms. CB and the Accused, the Accused further denied any sexual intercourse between him and Ms. CB on the night of 3 May 2013. Doubting the truthfulness of the Accused, Ms. CB had a Sexual Assault Nurse Examination (SANE) kit conducted, which confirmed the presence of semen on Ms. CB s underwear, as well as trauma consistent with sexual intercourse. On or about 6 May 2013, Ms. CB filed a Restricted Report of sexual assault. On or about 8 May 2013, Ms. CB changed her Restricted Report of sexual assault to an Unrestricted Report of sexual assault. c. The Naval Criminal Investigative Service (NCIS) assumed investigative jurisdiction of the case and conducted an extensive investigation into the allegations made by Ms. CB. d. In an NCIS-monitored pretext phone call between Ms. CB and the Accused, the Accused denied any sexual contact between himself and Ms. CB on the night of 3 May 2013. e. The Accused was interviewed by NCIS twice. During the first interview, the Accused stated that he only digitally penetrated Ms. CB. In a subsequent interview, the Accused admitted to penetrating Ms. CB s vulva with his penis on 3 May 2013. 5 5 VLC has never received a copy of any statements made by the Accused to law enforcement. VLC has simply gathered this information from the Charge Sheet, as well as discussions with Counsel. To this date, Counsel refuse to provide VLC with any statements made by the Accused. 8
f. On 1 November 2013, the United States Marine Corps, at the direction of the Secretary of Defense, created the Victims Legal Counsel Organization (VLCO) to provide legal advice, counseling, and representation to eligible victims of sexual assault. Further, the National Defense Authorization Acts of Fiscal Years 2014 and 2015 (NDAA FY14 and NDAA FY15) established Victims Legal Counsel as having an attorneyclient relationship with the victims, and are authorized to represent victims at any proceedings in connection with the reporting, military investigation, and military prosecution of an alleged sexual assault. See 534 of NDAA FY15. g. The Government preferred charges against the Accused on 7 November 2013 alleging violations of Articles 107 and 120, Uniform Code of Military Justice (UCMJ). The seven charged specifications alleging a violation of Article 120 named Ms. CB as the victim. h. Captain Shalin R. Sood, USMC, was detailed as Victims Legal Counsel (hereinafter VLC ) for Ms. CB on 25 February 2014. i. VLC provided notice of representation to the United States and Defense Counsel that same day. j. An Article 32 Investigation was held on 25 February 2014. k. Ms. CB testified at the investigation, but she was not present for the testimony of any other witnesses. 9
l. On 21 March 2014, all of the Charges and Specifications were referred for trial by General Court-Martial, except for Specification 5 of Charge II (Article 120). Furthermore, Specifications 1, 3, 6, and 7 of Charge II were modified. m. The Accused was arraigned on 31 March 2014. n. On 30 May 2014, VLC entered a notice of appearance in the case of United States v. Foster. o. Prior to the first scheduled Article 39(a) Motions date, Defense Counsel filed a Motion to Compel Discovery, requesting the Judge order an in camera review of any restricted reports of sexual assault filed by Ms. CB, Ms. CB s mental health records, and any communications Ms. CB had with any victim advocate provided to her under the Sexual Assault Prevention Response (SAPR) program. 6 p. At the first Article 39(a) Motion Session held on 20 June 2014, the Military Judge granted the Defense s motions and ordered the production of Ms. CB s Restricted Reports of sexual assault, mental health records, and any evidence pertaining to communications between Ms. CB and her victim advocate. q. On unknown dates, the Military Judge received a copy of all DD2910, titled Victim Reporting Preference Statement, forms that Ms. CB had ever filed and Ms. CB s medical records. 6 VLC has continually requested documentation pertaining to the investigations in which his client is a subject victim; however, such request has been continually denied to date. It is only through piecing together exhibits attached on pleadings by the parties, as well as gathering material through his own investigation, that VLC has been able to keep himself informed of the relevant facts in the case. 10
r. No records were ever found regarding Ms. CB s communications with her victim advocate. s. On or about 24 July 2014, VLC filed a Motion for Reconsideration with the Court requesting the Military Judge reconsider her ruling to review Ms. CB s restricted sexual assault reporting forms. t. On 25 July 2014, the Military Judge released Ms. CB s Restricted Reports that are each filed in a DD2910 Form titled Victim Reporting Preference Statement, to both the Trial Counsel and Defense Counsel. u. At an RCM 802 conference on 28 July 2014, the Military Judge opined that the information she received regarding Ms. CB s Restricted Reports were not what she had envisioned she would receive. 7 v. The Military Judge further stated that she expected Ms. CB to testify at a future Article 39(a) session and give the names of all individuals by whom Ms. CB had been sexually assaulted. w. At the 1 August 2014 Article 39(a) Motions date, Ms. CB, through advice of her VLC, refused to answer the Military Judge s questions regarding the various times Ms. CB had been 7 In the same RCM 802 Conference, the Military Judge asked Defense Counsel if the Restricted Report forms were what the Defense Counsel had envisioned they would be. Defense Counsel responded in the negative. 11
sexually assaulted as they were unrelated to the present case on the grounds that the questions were irrelevant and degrading. x. However, Ms. CB agreed to answer the Court s questions through Interrogatories. y. The Military Judge agreed and proposed the Defense Counsel submit a list of proposed Interrogatories that would be discussed among the parties, to include the VLC. z. On 8 August 2014, VLC received a list of proposed interrogatories from the Defense Counsel. aa. On 13 August 2014, the parties and the Military Judge held a telephonic RCM 802 conference, wherein the Military Judge opined that the only questions appropriate for the Interrogatories were the first five questions of the Interrogatories. bb. On 22 August 2014, Ms. CB, through her VLC, submitted her answers to the Military Judge only in response to the Courtordered Interrogatories. cc. On 25 August 2014, the Military Judge released the Court-ordered Interrogatories, via e-mail, in their totality, to all parties. The VLC was unable to address any objection to the Military Judge s decision in that she did not release these documents in open court. 8 8 The first time VLC became aware of the Military Judge s decision to release the Interrogatories was when the Military Judge released her e-mail. 12
dd. On 29 August 2014, an Article 39(a) Motion Session was held to determine the admissibility of Ms. CB s answers to the Court-ordered Interrogatories at the trial. Therefore, Ms. CB testified at this Article 39(a) session. ee. At this Motion Session, the Military Judge stated that there was significant indicia of falsity regarding Ms. CB s prior sexual assault incidents. While the Military Judge called several individuals to testify at this hearing (see Transcript), she specifically emphasized that the basis for her conclusion of Ms. CB s false reports was based on the testimony of a Staff Sergeant recruiter. The recruiter testified at the Article 39(a) session that he spoke to Ms. CB in February 2013 and she disclosed to him that she had been sexually assaulted by two Marines in December 2012. The recruiter could not testify with specificity regarding Ms. CB s reports to him. As his brief discussion with Ms. CB occurred almost eighteen months prior to his testimony in this case, he could not testify regarding the falsity of Ms. CB s allegations nor give a detailed account of exactly what Ms. CB told him. The Military Judge s conclusion was based on comparing Ms. CB s Interrogatory Responses to the recruiter s testimony. 9 9 In her written ruling, the Military Judge relied on four different sources indicating falsity in Ms. CB s sexual assault reports; at the Article 39(a) session, she stated that she was relying heavily on the recruiter s testimony in formulating her opinion. 13
ff. The Military Judge indicated that she would release a written ruling within a week from the hearing. gg. Almost six months later, on 18 February 2015, the Military Judge released a ruling to the parties regarding the M.R.E. 412 Motion. 10 hh. Notably, in the Military Judge s ruling, she was silent on the issue of compelling Ms. CB s Restricted Reports. ii. At an Article 39(a) Motions session held on 20 February 2015, VLC notified the Military Judge of his intent to file a writ of mandamus with this Court. jj. Shortly thereafter, on that same day, the Military Judge released her completed ruling to the parties. kk. In her final ruling, the Military Judge included a section addressing Ms. CB s Restricted Reports. ll. On 26 February 2015, Petitioner filed a Petition for Extraordinary Relief in the Form of a writ of mandamus with NMCCA. mm. On 3 March 2015, NMCCA granted the Petitioner s Request to Stay Proceedings and ordered the Real Party in Interest to show cause why the Court should not grant the requested extraordinary relief with a response date of 27 March 2015. nn. On 13 March 2015, Counsel for the Real Party in Interest filed a Motion to Attach Documents, Remove Counsel for 10 One reason for this lengthy delay was due to a pending RCM 706 Board. 14
Petitioner, and Motion to Dismiss Petition for Extraordinary Relief in the Form of a writ of mandamus. oo. On 16 March 2015, NMCCA granted the Government s request to extend the deadline for producing the authenticated record until 24 March 2015. pp. On 17 March 2015, Counsel for the Real Party in Interest filed a Motion to Extend Time to Show Cause Why the Court Should Not Grant the Requested Extraordinary Relief until 10 days after production of the authenticated record of trial and NMCCA granted it with a response date of 13 April 2015. qq. On 20 March 2015, Counsel for Petitioner filed a Motion in Opposition to Real Party in Interest s Motion to Attach Documents, Motion to Remove Counsel for Petitioner, and Motion to Dismiss Petition. Counsel for Petitioner respectfully requested NMCCA deny the Real Party in Interest s Motion. rr. On 25 March 2015, Counsel, on behalf of Petitioner, received an authenticated copy of the record of trial. ss. On 25 March 2015, Counsel for the Real Party in Interest filed a Motion for Leave to File Motion To Order Production of the Entire Record and Motion to Order Production of the Entire Record with NMCCA. tt. On 31 March 2015, Counsel for the Real Party in Interest filed a Motion for Leave to File Motion to Disclose Sealed Matters and Motion to Disclose Sealed Matters with NMCCA. 15
uu. On 8 April 2015, Counsel for the Real Party in Interest filed a Motion for Oral Argument with NMCCA. vv. On 9 April 2015, Counsel for Petitioner filed a Motion to Extend Time to File Responsive Brief to Real Party in Interest s Opposition to the Petition for Extraordinary Relief in the Nature of a writ of mandamus, and NMCCA granted the motion with a response date of 20 April 2015. ww. On 15 April 2015, Counsel for Petitioner filed a Response to Real Party in Interest s Motion for Oral Argument. xx. On 20 April 2015, Counsel for Petitioner filed a responsive brief to Real Party in Interest s Opposition Brief. yy. On 7 May 2015, NMCCA denied the Petitioner s writ of mandamus, stating that Petitioner had failed to demonstrate a clear and indisputable right to the issuance of relief in the form of a writ of mandamus. V Reasons Why the Writ Should Issue A. Issuance of a writ is necessary to protect the victim s rights in this case. On 7 May 2015, NMCCA released an order, denying Petitioner s extraordinary relief in the form of a writ of mandamus on the grounds that Petitioner had failed to demonstrate a clear and indisputable right, citing Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012). The lower appellate court neither included 16
further justification in its order nor did it include an accompanying brief to provide insight into its reasons for denying Petitioner s writ of mandamus. As a result, Petitioner is left without clarity and explanation as to why she failed to demonstrate the clear and indisputable right for the issuance of extraordinary relief in the form of a writ of mandamus. Petitioner disagrees with the lower appellate court s conclusion and asserts that there is a clear and indisputable right to issuance of a writ in this case. The Petitioner relied on Section 535 of the National Defense Authorization Act for Fiscal Year 2015 (NDAA FY15). Section 535 is unambiguous, stating that, [i]f the victim of an offense under this chapter believes that a court-martial ruling violates the victim s rights afforded by a Military Rule of Evidence specified in paragraph (2), the victim may petition the Court of Criminal Appeals for a writ of mandamus to require the courtmartial to comply with the Military Rule of Evidence. (Emphasis added.) Paragraph (2) specifically includes M.R.E. 412. Thus, the improper admission of M.R.E. 412 evidence regarding a victim s sexual background by a Military Judge is precisely what this statute considers. Nothing in the legislative history of Section 535 of NDAA FY15 indicates any intent by Congress for this statute to mean anything other than what it plainly states. 17
Jurisdiction of this Court to hear the Petition and issue a writ of mandamus is entirely appropriate and necessary in this case. Section 535 of NDAA FY15 is not the first time Congress has enacted legislation to ensure victims have the right to appellate review of trial court rulings. In October 2004, Congress passed and the President signed into law the Crime Victims Rights Act (CVRA), Pub. L. No. 108-405, 118 Stat. 2251 (codified at 18 U.S.C. 3771). Congress intended for this law to be the most sweeping federal victims rights law in the history of the nation. Hon. Jon Kyl et al., On the Wings of Their Angels: The Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims Rights Act, 9 Lewis & Clark L. Rev. 581, 582 (2005). Under 18 U.S.C. 3771(d)(3) of the Crime Victims Rights Act (CVRA), a victim of crime may petition the court of appeals for a writ of mandamus Through the CVRA, Congress intended to protect rights of victims since [w]ithout the right to seek appellate review and a guarantee that the appellate court will hear the appeal and order relief, a victim is left to the mercy of the very trial court that may have erred. 150 CONG. REC. 7294, 7304 (Apr. 22, 2004)(statement of Sen. Kyl). Article 6(b) of the UCMJ codifies the Crime Victims Rights Act, and its Congressional intentions, into the military justice system. 18
Before the enactment of the CVRA and Section 535 of NDAA FY15, courts have long been concerned that the intent of M.R.E. 412 would be frustrated if rape victims [were] not allowed to appeal an erroneous evidentiary ruling even during pre-trial hearings. Doe v U.S., 666 F.2d 43 (1981). The Court in Doe explained that [w]ithout the right to immediate appeal, victims aggrieved by the court s order will have no opportunity to protect their privacy from invasions forbidden by the rule. Appeal following the defendant s acquittal or conviction is no remedy, for the harm that the rule seeks to prevent already will have occurred. Id. at 46. However, NMCCA does not address the NDAA FY15 provision nor the CVRA. Based on NMCCA s limited response and citing of Hasan, Petitioner assumes that in order to prevail on the issuance of a writ of mandamus, a petitioner must satisfy three conditions outlined in Kerr v. United States Dist. Court for Northern Dist. Of Cal., 426 U.S. 394 (1976). First, a petitioner must demonstrate that the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires. Id. at 403. Second, the petitioner must demonstrate that he has a clear and indisputable right to the issuance of the writ. 19
Id. Finally, the issuing court must be satisfied that writ is appropriate. Id. 11 Petitioner understands that the mandamus remedy is a drastic remedy and it will only be granted under extreme circumstances. Will v. United States, 389 U.S. 90, 95 (1967). Only extreme circumstances, amounting to judicial usurpation of power will justify the Court s jurisdiction to issue a mandamus remedy. Id. Furthermore, a clear abuse of discretion may justify a Court s issuance of this remedy as well. Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383 (1953). In its 7 May 2015 ruling, NMCCA stated that Petitioner had failed to demonstrate the clear and indisputable right to the issuance of the writ. Based on NMCCA s silence with regards to the first and third prongs, Petitioner assumes that the lower appellate court believes that the first and third prongs of the Kerr factors are satisfied. Without any analysis or explanation by the NMCCA, it is unclear why the lower appellate court opines that Petitioner failed to demonstrate the clear and indisputable right. Even though NMCCA cites Hasan, supra, which refers to this second prong of a clear and indisputable right, this Court s ruling 11 While Hasan and Cheney cite Kerr for the proposition that there are three conditions to be met in order to be issued a writ of mandamus, the U.S. Supreme Court in Kerr also fails to articulate the criteria for a "clear and indisputable right." In fact, the Court in Kerr focused mainly on the first prong, in that the party seeking issuance of the writ had other adequate means to attain the relief he desired based on the fact that the court of appeals directed that the petitioners would be able to apply for and receive in-camera inspections of the documents. Kerr at 404. 20
does not provide an analysis or definition as to what satisfies such right. In Hasan, this Court states that the appellant satisfied this prong, but does not provide any further guidance. Additionally, this Court had access to an opinion by the Army Court of Criminal Appeals (albeit a divided opinion ) in order to determine what the lower appellate court s reasoning was for denying the writ. Such is not the case here. Hasan cites Cheney v. United States Dist. Court for D.C., 543 U.S. 367 (2004), which also refers to the three conditions required when requesting a writ of mandamus. Again, however, even in Cheney, the U.S. Supreme Court fails to articulate what criteria satisfy the second prong of clear and indisputable. However, the Court in Cheney does address, more importantly, that lower courts are authorized to balance the need for information with the protections of certain rights, such as, the President s right to confidentiality of its communications. As in Cheney, Petitioner in this case believes that the right to privacy and the prohibition of prior sexual acts per M.R.E. 412 are on point with the Court s analysis in Cheney. The need for information here is outweighed by Petitioner s constitutional rights to due process and equal protection under the law as well as statutory rights under Art 6(b), UMCJ, and M.R.E. 412 in that the requested information is not relevant and not linked to the Foster case in anyway. Like the Court ruled in Cheney, the Military Judge in 21
Foster should be safeguarding the privacy rights of victims per the constitutional and statutory provisions. The view that a victim cannot petition for a writ of mandamus to enforce substantive rights provided under M.R.E. 412 is counter intuitive and not supported by the language of the statute or case law. Simply put, 535 of NDAA FY15 means nothing if a victim has no right to petition a court for a writ of mandamus. Pursuant to the procedural facts set forth above, as well as the applicable statutory rights, Petitioner has demonstrated that she has the clear and indisputable right to the issuance of a writ of mandamus. In conclusion, NMCCA s one-line explanation as to why it will not grant Petitioner relief provides no clarity or analysis. In contrast, Petitioner has demonstrated that her request satisfies all three Kerr factors. Notably, there is no other remedy for Petitioner to pursue at this stage of litigation: if Petitioner s privacy with respect to her sexual history is pierced and revealed to the public, there will be no way to remedy the situation. In this case, extraordinary relief in the form of a writ of mandamus will protect Petitioner from the release of unnecessary and degrading information. 22
VI RESPONDENTS ADDRESSES, TELEPHONE, AND FACSIMILE NUMBERS Moira D. Modzelewski, CAPTAIN, JAGC, USN Military Judge BLDG 200 1250 10 th St SE, Suite 1300 Washington Navy Yard Washington, DC 20374 Telephone: 202-685-5896 Fax Number: 202-685-5895 Matthew M. Powers, Major, USMC Counsel for Accused 3250T Catlin Avenue Quantico, VA 22134 Telephone: 703-784-4615 Fax Number: 703-784-3683 David W. Warning, LIEUTENANT, JAGC, USN Counsel for Real Party In Interest 1254 Charles Morris St SE, Suite 100 Washington Navy Yard Washington, DC 20374-5124 Telephone: 202-685-7389 Fax Number: 202-685-7426 Mr. Robert Troidl Clerk of Court, NMCCA 1254 Charles Morris St., SE, Suite 320 Washington Navy Yard Washington, DC 20374-5124 Telephone: 202-685-7700 Fax Number: 202-685-7690 23 SHALIN R. SOOD Captain, U.S. Marine Corps Victims Legal Counsel Building 715A, Marine Corps Base Quantico
Quantico, Virginia 22134 Phone (703) 784-3877 Shalin.Sood@USMC.mil Certificate of Filing and Service Pursuant to the Appendix of this Court s rules regarding Electronic Filing, I certify that a copy of the foregoing was electronically mailed to the Court at the address efiling@armfor.uscourts.gov, electronically mailed to the trial military judge whose decision is the subject of the petition at the address Moira.Modzelewski@navy.mil, electronically mailed to the Clerk of Court, NMCCA at Robert.Troidl@navy.mil, electronically mailed to Counsel for the Real Party In Interest at David.W.Warning@navy.mil, and electronically mailed to Counsel for the Accused at Matthew.M.Powers@usmc.mil on 29 May 2015. Pursuant to Rule 3(g) of this Court s Electronic Filing guidelines, a sealed version of the Appendix has been submitted to this Court by Mail on 29 May 2015. SHALIN R. SOOD Captain, U.S. Marine Corps Victims Legal Counsel Building 715A, Marine Corps Base Quantico Quantico, Virginia 22134 Phone: (703) 784-3877 Shalin.Sood@USMC.mil 24