IN THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS L.C. Midshipman U.S. Navy, ) ) ) Petitioner ) ) ) v. ) ) Daniel J.

Daugherty ) Colonel ) USMC ) (in his official capacity ) as Military Judge), ) Respondent ) ) Joshua L. Tate ) Midshipman ) U.S. Navy, ) Real Party in Interest ) PETITION FOR EXTRAORDINARY RELIEF IN THE NATURE OF A WRIT OF MANDAMUS Case No. ____________

TO THE HONORABLE, THE JUDGES OF THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS COMES NOW Petitioner, Midshipman (MIDN) L.C., pursuant to Rule 20 of the Joint Courts of Criminal Appeals Rules of Practice and Procedure and Rule 20.1 of this Honorable Courts Rules of Practice and Procedure, and respectfully requests the Court to issue an emergency stay of the Military Judges order requiring production in camera of MIDN L.C.s psychotherapy records and further grant this petition for extraordinary relief in the nature of a Writ of Mandamus relating to the Military Judges erroneous order.

Specific Relief Sought MIDN L.C. respectfully requests: (1) An emergency stay of Respondent Military Judges order requiring production of MIDN L.C.s psychotherapy records pending this Courts final ruling; (2) A Writ of Mandamus directing Respondent Military Judge to reverse his order for the production and in camera review of MIDN L.C.s privileged medical counseling records. Issue Presented WHETHER A MILITARY JUDGE CAN ORDER DISCLOSURE OF PRIVILEGED COUNSELING RECORDS FOR AN IN CAMERA REVIEW IF THE ACCUSED HAS MADE NO SHOWING DEMONSTRATING A REASONABLE LIKELIHOOD AN MRE 513 EXCEPTION APPLIES. Jurisdictional Statement As a court established by Congress, this Court has jurisdiction to issue writs under the All Writs Act, 28 U.S.C. Section 1651(a). United States v. Denedo, 556 U.S. 904, 911

(2009) ([M]ilitary courts ... are empowered to issue extraordinary writs under the All Writs Act.); United States v. Booker, 72 M.J. 787, 797 (N-M. Ct. Crim. App. 2013) (concluding the court had jurisdiction to issue writs in aid of [its] jurisdiction). Issuing a writ under the All Writs Act requires

a determination that the writ is in aid of the courts existing jurisdiction, and whether the requested writ is

necessary or appropriate.1 114, 119 (C.A.A.F. 2008).

Denedo v. United States, 66 M.J.

A writ is in aid of a courts jurisdiction where a petitioner seeks to modify an action that was taken within the subject matter jurisdiction of the military justice system. LRM v. Kastenberg, 72 M.J. 364, 368 (C.A.A.F. 2013) (quoting Denedo, 66 M.J. at 120) (concluding a military judges ruling on victims privilege was within the courts subject matter jurisdiction). The harm alleged must have had the potential to Id. (internal

directly affect the findings and sentence. quotations and citation omitted). need not be final.

The findings and sentence

A court has jurisdiction to address an

interlocutory matter before a finding or sentence is entered by the court-martial. See, e.g., Booker, 72 M.J. at 808.

Review of this petition for extraordinary relief is in aid of this Courts subject matter jurisdiction. The Military

Judges order for production of MIDN L.C.s privileged victims counseling records has a direct bearing on the information that will be considered for admissibility as evidence, and thereafter considered by the court-martial in determining the defendants guilt or innocence. Kastenburg, 72 M.J. at 368.

MIDN L.C.s ability to rightfully assert her Rule 513 privilege

1

Whether the requested writ is necessary or appropriate is addressed below in the section Reasons for Granting the Writ. 3

directly affects whether her counseling records become evidence, the very foundation of a finding and sentence. Id.

Therefore, this Court has jurisdiction to review MIDN L.C.s petition for a Writ of Mandamus.2 History of the Case On June 18, 2013, the Convening Authority preferred charges against MIDN Eric Graham, MIDN Joshua Tate, and MIDN Travis Bush. An Article 32 hearing was held on August 17 - September On October 10, 2013, the Convening Authority referred

3, 2013.

charges against both MIDN Graham and MIDN Tate. MIDN Tate is charged with violating one specification of Article 120. Specifically, he is charged with unlawful sexual

contact, to wit: on or about April 14, 2012, intentionally causing MIDN L.C. to touch his penis while she was substantially incapacitated. On December 27, 2013, MIDN Tate filed a motion to compel discovery, or in the alternative in camera review, of MIDN L.C.s counseling records pursuant to M.R.E. 513 (Defs Motion Exhibit A). MIDN Tate supplemented his motion on January 3, On January 10, 2014,

2014 (Defs Supp. Motion Exhibit B).

both Independent Counsel for MIDN L.C. and the Government filed
2

MIDN L.C. also has standing to bring this petition as a holder of a privilege. See Kastenberg, 72 M.J. at 368 (There is longstanding precedent that a holder of a privilege has a right to contest and protect the privilege.). 4

responses in opposition (Exhibits C and D).

On January 21,

2014, the Military Judge granted MIDN Tates motion for an in camera review of MIDN L.C.s counseling records. See Court

Order for in Camera Review of Counseling Records (Order), (January 21, 2014) (Exhibit E). Statement of Facts The Naval Academy football team previously maintained a football house at 1843 Witmer Court, Annapolis, MD, which was used for the purposes of entertaining outside the confines of Naval Academy grounds. On or about April 14, 2012, MIDN L.C. MIDN

attended a party at the house along with some friends.

L.C. has only very limited recall of being sexually assaulted, but on or about April 15, 2012 learned that she may have been as a result of certain comments on social media. On or immediately after April 15, 2012, NCIS was informed of the crimes by another Midshipman, and began a criminal investigation. Initially, MIDN L.C. did not want to learn about

the extent of what had been done to her body, or by whom, but ultimately agreed to cooperate with NCIS investigators, including assisting NCIS in conducting successful wiretaps on various suspects. At various times following her sexual assault, MIDN L.C. sought professional mental health services. On December 13,

2013, the Military Judge ordered an in camera review of MIDN 5

L.Cs counseling records in connection with United States v. Graham. A portion of MIDN L.C.s counseling records were The remainder of

subsequently produced and reviewed in camera.3

MIDN L.C.s records were not produced, however, prior to the convening authority dropping the charges against MIDN Graham. These records, as well as any additional records created if MIDN L.C. returns to counseling, are subject to the Military Judges order, which is indefinite as to its time and scope. Moreover,

as a direct result of the Military Judges piercing of the counseling privilege, MIDN L.C. has stopped getting the mental health services she needs. (Affidavit) (Exhibit F). Reasons for Granting the Writ AN EXTRAORDINARY WRIT IS NECESSARY AND APPROPRIATE BECAUSE THE RESPONDENTS ORDER IS ARBITRARY, UNREASONABLE, AND CLEARLY ERRONEOUS. I. Standard of Review for Extraordinary Writs A petitioner bears the burden of showing a clear and indisputable right to extraordinary relief. M.J. 613, 616 (N-M. Ct. Crim. App. 2000). Ponder v. Stone, 54 See Affidavit of MIDN L.C.

In order to prevail

on a Writ of Mandamus, a petition must satisfy three conditions: (1) there is no other adequate means to attain relief; (2) the

The reviewed records did not form the basis for justifying the Military Judges subsequent order at issue here. 6

right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances. Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F.

2012) (citing Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004)). II. MIDN L.C. Lacks Any Other Adequate Means to Appeal Rulings Affecting Her Rights as a Victim MIDN L.C. lacks any adequate means to appeal the Military Judges ruling. Although M.R.E. 513 implicitly contains a right

to direct appeal, the Manual for Courts-Martial (M.C.M.) does not yet recognize this right. See Doe v. U.S., 666 F.2d.43, 46

(1981) (Direct appeal is a remedy that is implicit as a necessary corollary of the rules explicit protection of [patient] privacy.). Consequently, to the extent this Court

holds that MIDN L.C. may not directly appeal the Military Judges erroneous M.R.E. 513 determination, MIDN L.C.s sole adequate means to appeal is to petition this Court for extraordinary relief under the All Writs Act.4

A victims ability to appeal M.R.E. 412 and 513 rulings under the All Writs Act is not prohibited by Kastenburg. See 72 M.J. at 371 (M.R.E. 412 and 513 do not create ... any right to appeal an adverse evidentiary ruling.). The Courts statement simply indicates that those rules do not themselves contain an appeal mechanism. But this says nothing about whether an extraordinary writ may issue to afford a victim relief. 7

III. MIDN L.C. has a Clear and Indisputable Right to a Writ of Mandamus Because of the Lower Courts Per Se Unreasonable and Erroneous Ruling and Because Congressional Policy Mandates Confidentiality Military Rule of Evidence (M.R.E.) 513 protects privileged counseling records from unnecessary disclosure. If

deemed necessary, a military judge may review privileged records in camera to determine whether or not the records must be disclosed. M.R.E. 513(e)(3). However, the question of the

propriety of [an in camera] review turns on whether the policies underlying the privilege and its exceptions are better fostered by permitting such review or by prohibiting it. v. Zolin, 491 U.S. 554, 569 (1989). United States

The examination of

information, even by the judge alone, destroys the privilege and force[s] the disclosure of the thing the privilege was meant to protect. Id. at 570 (citing United States v.

Reynolds, 345 U.S. 1, 73 (1953)). A blanket per se rule that always permits or prohibits in camera review is impermissible. Zolin, 491 U.S. at 569-71.

Rather, the moving party must make a threshold showing of a factual basis upon which the judge, considering the importance of the privilege and the facts and circumstances of the particular case, must exercise discretion. Id. at 572.

Specifically, the threshold showing for M.R.E. 513 requires: (1) a specific factual basis demonstrating a

reasonable likelihood that the requested privileged records would yield evidence admissible under an exception to [M.R.E. 513]; (2) that the information sought is not merely cumulative of other information available; and (3) that he or she made reasonable efforts to obtain the same or substantially similar information through non-privileged sources[.] United States v.

Klemick, 65 M.J. 576, 580 (N-M. Ct. Crim. App. 2006). The defense failed to make the requisite threshold showing of a factual basis, and the Military Judge failed to exercise discretion. Instead, the Military Judge ordered production of

MIDN L.C.s records based upon what amounts to a per se rule: when a victims credibility is at issue, a court must review all privileged counseling records because [t]he records may contain exculpatory material. Order at 4, 5. Because credibility of

the victim is an issue in virtually all sexual assaults, this ruling has the practical effect of making meaningless M.R.E.s command that defendant make a specific factual showing before breaching the protections. The Military Judges decision was

therefore void of discretion, and thus unreasonable and erroneous. See Klemick, 65 M.J. at 581 (We will reverse a

disputed evidentiary decision only when it [is] arbitrary, fanciful, clearly unreasonable or clearly erroneous.) (internal quotations and citation omitted).

A.

Specific Factual Basis Supporting In Camera Review

M.R.E. 513 provides strong protection for the privileged relationship between a patient and her therapist. The rule

provides that [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. M.R.E. 513. A limited exception to the M.R.E. 513 privilege permits production of privileged patient-psychotherapist information where constitutionally required. M.R.E. 513(d)(8). Military

case law does not provide guidance on what disclosures are constitutionally required. The defense argues that disclosure

is required under the accuseds Sixth Amendment right to confront the witnesses against him through cross-examination. Defs Supp. Motion at 7; Defs Motion at 5. However, the

accused has no applicable Sixth Amendment rights under these particular circumstances, making the exception inapplicable. Additionally, even if the accuseds Sixth Amendment rights were implicated here, and they are not, the defense did not provide a specific factual basis that would support an in camera review. 1. Sixth Amendment Rights are not Discovery Rights

The Sixth Amendment guarantees the accused in a criminal trial the right to be confronted by the witnesses against him. U.S. Const. Amen. VI. This right, however, is not unlimited. 10

The Supreme Court has made clear that the Confrontation Clause does not require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony and that the accused is not allowed crossexamination that is effective in whatever way, and to whatever extent, the defense might wish. Pennsylvania v. Ritchie, 480

U.S. 39, 53 (1987) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). In Ritchie, the Supreme Court addressed to what extent a state agencys privileged records on child abuse must yield to a defendants Sixth Amendment rights. In a plurality opinion, the

Court held that the right to confrontation is not a constitutionally compelled rule of pretrial discovery. Id. at

52-53; United States v. Wilson, 605 F.3d 985, 1004 (D.C. Cir. 2010) (adopting the plurality's holding); but see United States v. Collins, 551 F.3d 914, 925-26 (9th Cir. 2009) ([I]t is not clear that [Ritchies holding] is the law.). Consequently,

withholding the privileged Child Youth Services records that may have contained unspecified exculpatory evidence did not violate the defendants Sixth Amendment confrontation rights. Ritchie, 480 U.S. at 44, 54. Similarly, the defense here argues that the Sixth Amendment mandates disclosure of MIDN L.C.s counseling records because they may contain additional inconsistent statements. 11 Defs

Motion at 6; Defs Supp. Motion at 8.

According to Ritchie, the

defense has no Sixth Amendment right to compel disclosure of the records, thus making the constitutional exception to the M.R.E. 513 privilege inapplicable. otherwise. The Military Judge erred in holding

See Order at 4 (ordering in camera review because

[t]he records may contain exculpatory material). 2. No Specific Factual Basis Exists for Review

Even if the accuseds Sixth Amendment rights are applicable in this discovery dispute, and they are not, it remains true that the Confrontation Clause is not unlimited and does not require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony. Ritchie, 480 U.S. at 53. As the court in Banker stressed,

where evidence is offered pursuant to [the constitutional] exception, it is important for defense counsel to detail an accuseds theory of relevance and constitutional necessity. Banker at 221. The Supreme Court has echoed similar statements

and emphasized that courts should not allow defendants access to privileged information based on vague theories that the records might contain potentially useful or relevant information. Ritchie, 480 U.S. at 51-53. Specifically, when the defense seeks disclosure of privileged information, the court must determine whether the probative value of the evidence is outweighed by harassment, 12 See

prejudice, confusion of the issues, witness safety, or interrogation that is repetitive or only marginally relevant. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); Gaddis, 70 M.J. at 255 (where the accused seeks to admit privileged information under the constitutionally required exception, the probative value of the evidence must be balanced against and outweigh the ordinary countervailing interests at stake). The defense provides no factual support for its speculative assertion that MIDN L.C.s counseling records will yield admissible evidence. Indeed, the defense based its theory

entirely on the assumption that since counseling occurred after the events at issue, then the records likely contain inconsistent statements.5 Def.s Supp. Motion at 8. This is of But it

course true of all rape counseling records in all cases. is not a meaningful reason to destroy the privilege. otherwise would make MRE 513 irrelevant.

To hold

The defenses inference that MIDN L.C.s counseling records may contain inconsistent statements that bear on her character for truthfulness and credibility simply because she may have made inconsistent statements under other circumstances does not hold water.
5

Given that MIDN L.C. has already testified on the the defenses initial motion contains no theory much less one based in fact, as to why MIDN L.C.s contain admissible evidence. Instead, the defense conclusory statements. See Def. Motion at 5-6. 13

Notably, whatsoever, records may offers only

record at length at the Article 32 hearing, and is available for cross-examination at trial, MIDN L.C.s counseling records are not necessary to preserve defendants right of confrontation. There is absolutely no reason to believe that the records contain additional or other information. Moreover, this

information (even if it exists) will only lead to repetitive or marginally relevant cross-examination at the cost of destroying the victims right to privacy in her dealings with mental health professionals. Here, the defense has ample means to challenge

credibility, and any information contained within the counseling records would be cumulative, amounting to nothing more than a fishing expedition.6 3. Brady v. Maryland Does Not Apply

Although not argued by the defense, the Military Judge held erroneously that MIDN L.C.s counseling records must be disclosed under Brady v. Maryland, 373 U.S. 83 (1963). The

Supreme Court in Brady made clear that due process only requires the government to turn over favorable, material evidence to the defense that is in its possession. Brady, 373 U.S. at 87.

Evidence is material only if there is a reasonable probability

6

In commenting on the exceptions to Rule 514, which are similar to the exceptions found in Rule 513, the M.C.M. states that the constitutional exception is not intended to invite a fishing expedition for possible statements made by the victim, nor is it intended to be an exception that effectively renders the privilege meaningless. Manual for Courts-Martial, A22-46 (2012). 14

that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome. Ritchie at 57 (quoting United States v.

Bagley, 473 U.S. 667, 682 (1985)). As an initial matter, the defense seeks evidence the prosecution simply does not possess, and is therefore not constitutionally required to provide under Brady. See Kyles v.

Whitley, 514 U.S. 419, 437 (1995) (The prosecutors duty to learn of any favorable [Brady] evidence extends only to those acting on the government's behalf in the case, including the police.). Trial Counsel does not have possession of the Even if some of the counseling records held

requested records.

by the government-sponsored facility are deemed to be in the governments possession -- which they are not --, the remainder of MIDN L.C.s counseling records are in the possession of private entities. Regardless of who possesses MIDN L.C.s counseling records, the defense could not, and the Military Judge did not, demonstrate the records are material to MIDN Tates guilt or innocence. Whether or not the defense receives MIDN L.C.s The

counseling records will not change the result of the case. defense already possesses evidence with which to attack MIDN

L.C.s credibility and has failed to demonstrate how anything in 15

the records might affect the outcome. therefore misapplied Brady. B.

The Military Judge

In the Absence of a Factual Basis, the Military Judge Applied a Per Se Rule Instead of Exercising Discretion

Respectfully, the Military Judge did not exercise proper discretion here.7 Indeed, the practical effect of the courts

ruling eliminates all discretion in the M.R.E. 513 determination. By permitting a breach in the patient-therapist

privilege simply because credibility is an issue in the case the Military Judge effectively removed any requirement of a threshold showing of need. The result in virtually every sexual

assault case will be the same -- victims highly personal mental health records will be reviewed by the military judge.8 The Military Judges finding that the records may contain exculpatory information overlooks the fact that the defense must first make a showing of a factual basis as required by Klemick. The Military Judge held that defense has made as

After the defense makes the requisite threshold showing of a factual basis, which it has not, the military judge must exercise discretion in deciding whether to order an in camera review. Zolin, 491 U.S. at 572; Klemick, 65 M.J. at 580-81. 8 As stated in the order, the rule provides that [t]he records are subject to production because it is probable that they are relevant and necessary to the defense.... Any statements that suggest [lack of credibility] ... are therefore constitutionally required to be disclosed under Brady v. Maryland. Order at 4. This per se rule assumes that Brady requires disclosure of all information. As discussed above, this assumption is incorrect - Brady applies only to material information in the prosecutions possession. 16

specific a showing of relevance as possible making an in camera review appropriate. Order at 4. The order attempts to

articulate what showing the defense made, but a review of the defenses briefs reveals that the defense in fact made none. See Defs Motion at 5-6; Defs Supp. Motion at 7-8. A proper

use of discretion would consider the defenses baseless request, the lack of threat to the accuseds constitutional rights, and the victims steadfast privilege, falling in favor of the victim. The Military Judge, however, exercised no discretion,

and instead applied an unreasonable and clearly erroneous per se rule. The Military Judges analysis is also logically incorrect. The Military Judge believes that the victims prior statements call MIDN L.C.s credibility into serious doubt. The court

speculates that MIDN L.C.s changing attitude toward investigators may coincide with media participation, and her counseling records would more realistically document her version of events. Order at 5. Thus, the argument appears to

be, there is reason to believe there might be additional statements bearing on her credibility. But these positions,

even if true, do not go to the fundamental question of a specific factual need. Indeed, the defendant who might truly

need to see therapy records is one where the victim has not been subject to 20-plus hours of cross examination in advance of 17

trial and where no other means to challenge her credibility exist. The need in this latter situation is far greater. But

it is still not a specific factual showing of relevance and is therefore not a permissible basis upon which to justify in camera review or subsequent production to the defense under M.R.E. 513. IV. MIDN L.C. also has a Clear and Indisputable Right to a Writ of Mandamus Because the Military Judges Ruling violates MIDN L.C.s Constitutional and Statutory Rights Victims of sexual assault and similar crimes have a heightened right of privacy. F.3d 1101 (10th Cir. 2006). Aid for Women v. Foulston, 441 Although qualified, it is

nonetheless a constitutionally and statutorily protected right. MIDN L.C.s constitutionally protected right of privacy stems from her right to be free from unreasonable government search and seizure. See Reedy v. Evanson, 615 F.3d 197, 228 (3d She

Cir. 2010) (the Fourth Amendment protects privacy rights). has a legitimate expectation that her private counseling

information will remain confidential, and thus be protected from disclosure. Aid for Women, 441 F.3d at 1116 (quoting Sheets v. The

Salt Lake County, 45 F.3d 1383, 1387 (10th Cir.1995)).

Military Judges order compelling disclosure unreasonably violates this expectation because it is based on an erroneous

18

per se rule that mandates disclosure of all records regardless of their privileged nature. MIDN L.C.s statutory right to privacy is reflected in the National Defense Authorization Act of 2014 (NDAA). H.R. Res.

3304, 1701, 113th Cong. (2013) (enacted) (creating 10 U.S.C. 806b, UCMJ, Article 6b). The NDAA affords MIDN L.C. [t]he

right to be treated with fairness and with respect of the dignity and privacy of the victim of [sexual assault]. Id.

The judicial process is a public and often traumatizing course of events for victims. Victims are subjected to endless

questioning in which they are forced to recount, and thus relive in excruciating detail, the sexual assault they endured. Even

if victims receive some form of justice, closure may elude them as information becomes part of the public record. Furthermore,

despite the possibility to seal records, attorneys, judges, clerks, and assistants still have access to victims private information. vulnerable. Aware of their vulnerability, victims may choose not to seek the counseling they need or participate in the judicial process. Thus, there exists a strong public policy interest in Com. v. Kyle, 533 A.2d 120, The judicial process leaves victims exposed and

protecting victims privacy rights.

128-29 (Pa. Super. Ct. 1987) (quoting People v. Dist. Ct. of Denver, 719 P.2d 722, 727 (Colo. 1986)). 19 The NDAA reflects

Congresss view that such a policy interest applies equally to courts-martial.9 By codifying victims rights to dignity and

privacy, Congress emphasized the importance and magnitude of those rights.10 These important rights are outweighed by a

defendants rights to confrontation and due process only when necessary, and when the probative value outweighs the prejudicial effect. See State v. Garron, 827 A.2d 243, 256-60

(N.J. 2003) (discussing when a victims rights outweigh a defendants rights); Kyle, 533 A.2d at 129 (holding victims right to privacy outweighed defendants right to confrontation) (citing case law with similar holdings). Disclosure of MIDN

L.C.s counseling records without the requisite need or probative value is a violation of MIDN L.C.s constitutional and statutory rights to privacy, dignity, and respect.
9

159 CONG. REC. S3847, 3850 (daily ed. May 23, 2013) (statement of Sen. Blumenthal) (observing that military courts were failing to afford military victims their federal civilian CVRA rights). 10 As stated in the legislative history of the CVRA, upon which the NDAA is based, [t]he broad rights articulated in [the CVRA] are meant to be rights themselves and are not intended to just be aspirational. One of these rights is the right to be treated with fairness. Of course, fairness includes the notion of due process. Too often victims of crime experience a secondary victimization at the hands of the criminal justice system. This provision is intended to direct government agencies and employees, whether they are in executive or judicial branches, to treat victims of crime with the respect they deserve and to afford them due process. It is not the intent of this bill that its significance be whittled down or marginalized by the courts or the executive branch. This legislation is meant to correct, not continue, the legacy of the poor treatment of crime victims in the criminal process. 150 CONG. REC. S10, 911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl). 20

V.

MIDN L.C.s Request is Appropriate Under the Circumstances A writ under these circumstances is appropriate given MIDN

L.C.s lack of means to appeal after trial, the gravity of the erroneous ruling, and the broad social and policy implications if the ruling is allow to stand. The confidential nature of the patient-psychotherapist privilege allows for the open and legitimate disclosure of sensitive material in order to facilitate much needed therapy. Without reliable confidentiality, a psychotherapist could no more treat a patient than an attorney could zealously represent their client. Safeguarding the patient-psychotherapist privilege is of profound importance to both the individual and the public. privilege is critical in facilitating the confidential [patient-therapist] relationship necessary for successful treatment, much as the attorney-client privilege is critical for administering justice. (1996). Jaffee v. Redmond, 518 U.S. 1, 10 The

This relationship in turn serves the public interest

by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. Id. at 11. Failing to recognize and enforce the

importance of the patient-psychotherapist privilege will undermine the policies supporting the privilege, and, more immediately, discourage victims from seeking needed treatment. 21

Indeed, MIDN L.C. has already ceased treatment following the Military Judges ruling for fear of disclosure of her private medical information. seek counseling). See Affidavit (indicating intention not to

The gravity of the precedent set by the

Military Judges ruling mandates the need for this extraordinary writ. VI. MIDN L.C. Will Suffer Irreparable Harm if This Court Does not Grant a Stay of Proceedings MIDN L.C. will suffer immediate and irreparable injury if this Court does not grant a stay of proceedings. Disclosure and

review, even in camera, of MIDN L.C.s privileged counseling records will inflict immediate harm. 570. Conclusion The Military Judges ruling mandating the production and in camera review of MIDN L.C.s counseling records is based on an arbitrary, unreasonable, and clearly erroneous per se rule, and lacks any form of judicial discretion. MIDN L.C. respectfully See Zolin, 491 U.S. at

requests this Court grant her request for an emergency stay of the Military Judges in camera review and petition for a Writ of Mandamus overturning Respondents order for production and in camera review of MIDN L.C.s privileged counseling records.

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/s/Ryan D. Guilds_______ Ryan D. Guilds Arnold & Porter LLP Ryan.Guilds@aporter.com 555 Twelfth Street, N.W. Washington, D.C. 20004 Telephone: (202) 942-6188 Facsimile: (202) 942-5999

_____________________ Kevin B. Hall Arnold & Porter LLP Kevin.Hall@aporter.com 555 Twelfth Street, N.W. Washington, D.C. 20004 Telephone: (202) 942-5616 Facsimile: (202) 942-5999

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CERTIFICATE OF FILING AND SERVICE I certify that a copy of the foregoing was delivered to the Court, and transmitted by electronic means to the trial military judge whose order is the subject of the petition, the counsel of the real party in interest, and the counsel prosecuting this case.

Dated: January 23, 2014 /s/Ryan D. Guilds_______ Ryan D. Guilds Ryan.Guilds@aporter.com Arnold & Porter LLP 555 Twelfth Street, N.W. Washington, D.C. 20004 Telephone: (202) 942-6188 Facsimile: (202) 942-5999

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