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Air Force Court Finds that Crime Victims Do Not Have the Right to be Heard by Military Trial Judges on Matters of Trial Delay

The Air Force Court of Criminal Appeals (AFCCA) this week issued an order denying a writ of mandamus filed by an alleged crime victim who argued that she had a right to be heard by the military trial judge concerning a defense requested trial continuance. A TSgt is currently facing trial on four charges, one of which alleges that he sexually assaulted HK. The case was ready for trial and on August 23, 2021, the counsel began to voir dire potential members. During the course of voir dire, it became apparent that the Government was in possession of evidence that had not been turned over to the defense. The Government then provided nearly 2,000 pages of text messages to the defense.

As a result, the defense asked for the trial to be delayed while they reviewed the evidence. HK, through her victim counsel, filed a response to the defense request opposing the delay. The military judge determined that HK did not have standing to be heard on the issue under the rules. Based upon the availability of defense counsel and various Government witnesses, the military judge continued the trial until April 2022.

HK then filed a writ of mandamus to the AFCCA asking that the Court void the continuance and determine that she did have standing to be heard by the military trial judge on this matter. AFCCA looked at Article 6b, the provision added to the Uniform Code of Military Justice as a result of the 2014 NDAA. This Article provides eight rights for crime victims, including the right to be reasonably protected from an accused, the right to notice of certain events, and the right to be treated with fairness and respect for his or her dignity and privacy. Specifically, Article 6b allows crime victims the right to proceedings free from unreasonable delay and the right to be heard at certain proceedings. The victim has the right to be heard at pretrial confinement hearings, sentencing proceedings, and post-trial clemency and parole hearings. Beyond these specific proceedings, Article 6b states that a crime victim must address violations of any of the eight rights through a writ of mandamus to a service court of appeals.

HK argued that the language of Article 6b is very similar to the language of the Crime Victims’ Rights Act, a law passed in 2004 that addressed the rights of victims in federal court proceedings and should be interpreted the same way. Under that law, a victim can raise violations of his or her rights under the law at the trial level. The AFCCA noted the similarities between Article 6b and the Crime Victims’ Rights Act but ultimately found that Congress intentionally did not include the same ability to be heard at the trial level in Article 6b. Therefore, the Court found, the trial judge was correct in determining that HK did not have standing to challenge the continuance request at trial and her only recourse was to petition the AFCCA. The AFCCA denied HK’s writ and the continuance stands as ordered by the military trial judge.

If you or your loved one was convicted of an offense at court-martial, you need someone with experience who knows the law. I have argued numerous issues in front of appellate courts and CAAF. I have the experience you need. Please contact Bill Cassara at (706) 445-2943 for a free consultation.

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