United States Court of Appeals
for the Armed Forces
450 E Street, Northwest Washington D.C. 20442-0001
Tuesday, June 11, 2013
Lieutenant Colonel, Joshua E. Kastenberg, USAF, Military Judge, Appellee and
Airman First Class Nicholas E. Daniels,
USAF, Real Party In Interest
Counsel for Appellant: Col Kenneth M. Theurer, USAF (brief)
----------------------------- (reply brief)
Counsel for Appellee: Maj Ryan N. Hoback, USAF (brief)
Counsel for Real Party In Interest: Dwight H. Sullivan, Esq.
-------------------- (Real Party in Interest brief)
Brief of Amicus Curiae -- Air Force Appellate Government Division
Brief of Amicus Curiae -- Army Defense Appellate Division
Brief of Amicus Curiae -- Navy-Marine Corps Appellate Defense Division
Summary: In an ongoing court-martial for the alleged rape and sexual assault of A1C LRM, the military judge held that the special victim's counsel appointed to represent A1C LRM would not be permitted to make any arguments before the court-martial nor would he be permitted to speak on behalf of A1C LRM in hearings held pursuant to Military Rules of Evidence 412 and 503. A1C LRM then filed a petition for mandamus before the US Air Force Court of Criminal Appeals (CCA), seeking relief from the military judge's ruling. The CCA denied the petition, holding that it lacked jurisdiction regarding this "collateral, civil/administrative issue involving a non-party to the court-martial." The Judge Advocate General of the Air Force certified three issues questioning: (1) whether the CCA erred by holding that it lacked jurisdiction to hear A1C LRM's petition for a writ; (2) whether the military judge erred by denying A1C LRM the opportunity to be heard through counsel, thereby denying her due process under the Military Rules of Evidence, the Crime Victims' Rights Act, and the United States Constitution; and ( 3) whether a writ should be issued.
NOTE: Counsel for the Appellant, Appellee, Real Party in Interest and the Air Force Appellate Government Division on behalf of the United States will be allotted 15 minutes each to present oral argument.