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National Crime Victim Law Institute

New and Noteworthy

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  • EV v. United States, — M.J. —, No. 16-0398, 2016 WL 3511973 (C.A.A.F. June 21, 2016)

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    Charges were brought against defendant relating to a sexual interaction with the victim.  The victim sought mental health treatment as a result, and defendant filed a motion to compel discovery of the victim’s mental health records.  The military judge denied defendant’s motion, but all parties conceded that the victim had waived privilege with respect to two pages of mental health records that her husband had previously submitted to Air Force officials in support of a humanitarian transfer request.  These records were turned over to the military judge for in camera review and were then disclosed to defendant.  In light of the information learned from those two pages, defendant filed a motion for reconsideration regarding the discovery request.  A hearing was held, and the military judge issued an order the same day directing the government to turn over all of the victim’s mental health records for in camera review.  After this review, select portions of the records were disclosed to defendant under a protective order.  The victim petitioned the United States Navy-Marine Corps Court of Criminal Appeals for a writ of mandamus, which was denied, as the court found that the victim’s right to the writ was not “clear and indisputable.”  The victim sought identical relief from the U.S. Court of Appeals for the Armed Forces (CAAF).  Because the statute setting out the mandamus procedure mentioned only the Court of Criminal Appeals and not the CAAF, the CAAF found that it did not have jurisdiction to consider the petition for a writ of mandamus.  As the CAAF observed, “Congress certainly could have provided for further judicial review in this novel situation. It did not.”  The petition was dismissed for lack of jurisdiction and the stay dissolved. 

  • State v. Boyston, No. CR2004-007442-001 DT (Ariz. Super. Ct. June 20, 2016).

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    Defendant was found guilty of three first degree murders and one count each of attempted first and second degree murder, and was sentenced to death for the murders and to prison terms on the attempt convictions.  As part of post-conviction proceedings, defendant filed a motion seeking a court order permitting his post-conviction intellectual disability expert to interview the victims’ family members to “gather adaptive behavior evidence.”  In the underlying criminal matter, defendant had previously raised claims relating to intellectual disability, which were rejected by the trial court after a two-day hearing; the trial court’s decision was later affirmed by the state supreme court.  The state objected to defendant’s post-conviction request, citing victims’ rights.  The court found that Arizona’s constitutional, statutory, and rule-based rights prohibit defendant, his defense team, and its agents or others acting on behalf of defendant from directly contacting the victims.  The court also held that defendant had no “superior constitutional right” capable of overcoming the victims’ constitutional rights, observing that if it found otherwise, “the Court would effectively nullify a protection afforded crime victims.”  The Office of the Attorney General “implied its willingness to ask whether any victim identified by the defendant would be willing to be interviewed by [defendant’s expert,]” and the court emphasized that “[w]hether to comply with the interview request, or invoke their victims’ rights protections, is a decision that belongs to each victim.”  Consequently, the court declined to “interfere with the victim’s right to decide” and denied defendant’s request to interview the victims.