Amicus Curiae Brief — Rodriguez v. United States

S

No. 00-1038

IN THE |

Supreme Court of the United States

SPECIALIST HECTOR RODRIGUEZ, Petitioner

v.

UNITED STATES OF AMERICA, Respondent :

On Petition for a Writ of Certiorari to the

United States Court of Appeal for the Armed Forces

BRIEF OF AMICUS CURIAE IN SUPPORT OF THE

PETITIONER

JEFFREY A. VIRES

Major, U. S. Air Force

Air Force Legal Services Agency

Counsel of Record

JAMES R. WISE TIMOTHY W. MURPHY

Counsel for Amicus Curiae Counsel for Amicus Curiae

Colonel, U.S. Air Force Lt Colonel, U.S. Air Force

Air Force Legal Services Agency Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB D.C. 20332-8000

January 2001 (202) 767-1563

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES iii

STATEMENT OF THE CASE 1

REASON FOR GRANTING THE WRIT 4

Background on military mental health care... 5

The “practicability” of recognizing a

psychotherapist-patient privilege following Jaffee.7

A. Policy considerations supporting the

Recognition of a psychotherapist-patient

Privilege 8

B. Confidentiality and the Military’s “Need

to Know” 10

C. An Examination of the Operation of Other

Privileges Available to Service Members. 12

1, Military Rule of Evidence 503 meme

2. Limited use regulations omen ld

a. Alcohol and Drug Abuse Programs — 13

b. HIV Programs. 14

c. Mental Health Programs . 16

CONCLUSION 18

APPENDIX |

Consent of the Petitioner la

Consent of the Respondent n 1b

iii

TABLE OF AUTHORITIES

United States Constitution

Art. I, sec. 8, cl. 14 8

Art. II, sec. 2, cl. 1 8

Supreme Court Cases:

Jaffee v. Redmond, 518 U.S. 1 (1996) passim

Federal Statutes

10 U.S.C. § 836 [Article 36, U.C.M.]J.] 2,8

10 U.S.C. § 924 9

18 U.S.C. § 1512-1514 10

42 U.S.C. § 10601 10

42 U.S.C. § 10681 10

Pub. L. No. 99-661 14

Pub. L. No. 101-50 10

Pub. L. No. 101-484 10

Pub. L. No. 101-510 16

Pub. L. No. 102-484 16

Executive Orders 5

Executive Order No. 13140, 64 Fed. Reg. 55,115

(1999) 7

Rules of Evidence

FRE 501 4

Mil. R. Evid. 501 1, 2, 4

Mil. R. Evid. 503 12, 13

Mil. R. Evid. 513 8

Rules for Courts- Martial

R. C. M. 701 9

iv

Military Directives/Regulations

AFI 36-2701...... 1

AFI 51-201 13

AFI 44-109 16

AFI 48-135 14-15

AR 600-85 14

DoDD 1030.2 10

DoDD 1031.1 10

DoDD 6490.1 = 10, 16

Other Materials

GERALD N. GROB, FROM ASYLUM TO

COMMUNITY: MENTAL HEALTH POLICY IN

MODERN AMERICA (1991) 6

Nick Adde, Court Ruling Prompts New Look at

Confidentiality, AIR FORCE TIMES, Aug. 8, 1996......7

S. Rep. 98-197, 96% Cong., 1%* Sess. 1979 8

The Honorable Sam Nunn, The Fundamental

Principles of the Supreme Court’s Jurisprudence in

Military Cases, 29 WAKE FOREST L. REV. 557 (1994)9

LCDR Porter & LT Johnson, Psychiatric Stigma in

the Military, 159 MIL. MED. 602 (1994) 11

CPT Rowan, Demographic, Clinical, and Military

Factors Related to Military Mental Health Referral

Patterns, 161 MIL. MED. 324 (1996) 11

Regina Pedigo Galvin, Even Soldiers Get the Blues,

But Issues of Stigma, Confidentiality Keep Those in

Need from Getting Help, ARMY TIMES, July 29, 1996.11

Sue Goetinch & Tom Siegfried, Mentally Ill Fight

Disease and Stereotypes, THE DALLAS MORNING

NEWS, Apr. 28, 1996. 11

Neal A. Lewis, Military Conducting Anti-Suicide

Campaign, THE SEATTLE TIMES, May 19, 1996 11

STEPHEN A. SALTZBURG ET AL., FEDERAL

RULES OF EVIDENCE MANUAL 13

—

Vv

Action Memorandum from Ass’t. Sec. Of Def. 15

BRIEF OF AFLSA/JAJA IN SUPPORT OF

AFLSA/JAJA respectfully submits this brief amicus

curiae is assist this Honorable Court by presenting

information on mental health treatment in the |

military, as well as the operation of certain privileges

and “limited use” regulations to show that a

psychotherapist-patient privilege existed in the

military following this Honorable Court's decision in

Jaffee v. Redmond! that was both practicable and not

inconsistent with the Uniform Code of

Justice (CMY, the Military Rules of Evidence

(Mil.R.Evid.) or the Manual for Courts-Martial

(MCM), as set forth in Mil. K Evid. 501(a). Counsel

for both the petitioner and che respondent have

consented to the filing of this amicus curiae.”

STATEMENT OF THE CASE

Specialist Hector Rodriguez deployed with his

unit to Bosnia in support of Operation Joint

Endeavor. On May 2, 1996, upon being told by his

wife that she wanted a divorce, Specialist Rodriguez

went to an empty bunker, loaded one round into his

M249 squad automatic weapon, tied a cord to the

trigger, and propped the weapon up facing him,

preparing to shoot himself. The weapon

subsequently discharged, shooting Specialist

Rodriguez in the abdomen.

18168 U.S. 1 (1996).

? Appendix.

2

Specialist Rodriguez was evacuated to

Landstuhl Regional Medical Center in Germany for

medical treatment. During this medical treatment, he

received psychiatric evaluation and counseling from

Dr. Alfano, a licensed psychiatrist and GS-13 federal

civilian physician.

A military commander charged Specialist

Rodriguez with malingering by intentional infliction

of self-injury for the purpose of avoiding work, duty

or service. A military judge sitting as a general court-

martial tried Specialist Rodriguez at a contested trial

in January 1997. At trial, Specialist Rodriguez’

defense was that, at the last minute, he abandoned

his attempt to shoot himself, but the weapon

accidentally fired while he was retrieving it.

The Army called Dr. Alfano as a witness to

testify against Specialist Rodriguez regarding

statements Specialist Rodriguez made to him while

undergoing psychiatric treatment. Defense counsel |

challenged the admissibility of Specialist Rodriguez’

statements to Dr. Alfano, asserting that they were

protected by the federal common law

psychotherapist-patient privilege recognized by the

Supreme Court in Jaffee. The military judge denied

the motion to suppress Dr. Alfano’s testimony, ruling

that under Mil. R. Evid. 501 and Article 36 of the

DCM, 10 U.S.C. § 836, the common law

psychotherapist-patient privilege is not applicable in

the military, at least for a military psychiatrist.

Thereafter, Dr. Alfano testified about Specialist

Rodriguez’ admissions of intentional self-injury. Dr.

Alfano’s testimony was the only testimony directly

not guilty of malingering - which requires the intent

to avoid work, duty or service · but guilty

injury without intent to avoid service, a violation of

10 U.S.C. § 934. The military judge sentenced

Specialist Rodriguez to a dishonorable discharge,

confinement for 354 days, forfeiture of all pay and

allowances, and reduction to the grade of Private E-1.

The court-martial convening authority approved the

sentence.

Specialist Rodriguez appealed his conviction,

asserting that the military judge erred when he ruled

that the common law psychotherapist-patient

privilege could not be claimed in courts-martial. On

October 30, 1998, the Army Court of Criminal

Appeals affirmed the findings of guilty and the

sentence. On September 25, 2000, a divided court of

appeals affirmed the findings and the sentence,

holding that the military judge did not err in

admitting Dr. Alfano’s testimony. The stated basis

for the court of appeals’ ruling is, inter alia, that

recognizing the common law psychotherapist-patient

privilege would conflict with a military evidentiary

rule that rejects a general physician-patient privilege.

Only two of the five judges on the court of appeals

rendered the opinion of the court, with a third judge

concurring in part and in the result. ;

REASON FOR GRANTING THE WRIT

Mil.R.Evid. 501(a) limits a claim of privilege to

those privileges required or provided for in the

United States Constitution, an Act of Congress

applicable to trial by courts-martial, the Military

Rules of Evidence or the Manual for Courts-Martial,

or the principles of common law generally recognized

in the trial of criminal cases in the United States

district courts pursuant to Rule 501 of the Federal

Rules of Evidence insofar as the application of such

principles in trials by courts-martial is practicable

and not contrary to or inconsistent with the UCMJ,

the Military Rules of Evidence, or the MCM.“

Mil.R.Evid. 501(a)(4) directly incorporates the

term “principles of common law” as it exists in FRE

501, subject to two limitations:

1. The “principle of common law” must be

generally recognized in criminal cases in the United

States district courts; and

2. The application of these principles must be

“practicable”, and “not contrary to or inconsistent

with the code, these rules, or this Manual.”

The psychotherapist-patient privilege became

applicable to trials by courts-martial as a result of this

Honorable Court’s decision in Jaffee. The President

determined that the federal common law provisions,

with certain inapplicable exceptions, may be claimed

by an accused in a court-martial. Despite the fact that

Cx. United States, Mil.R.Evid. 501(a) (1995 ed.).

5

the decision to recognize a privilege rests with the

President, the United States Court of Appeals for the

Armed Forces has created its own rules for courts-

martial that are directly contrary to the rules properly

promulgated by the President. This Honorable Court

should exercise its supervisory power to ensure that

the Court of Appeals for the Armed Services does not

preempt and frustrate the constitutional and statutory

scheme that empowers the President to determine the

evidentiary rules for courts-martial.

The purpose of this brief of amicus curiae is to

discuss the policy favoring recognition of the

privilege, as well as the existence and operation of

various privileges available to military personnel at

the time of the petitioner’s court-martial to show that

the recognition of psychotherapist-patient privilege

was both practicable and not contrary to or

inconsistent with the Uniform Code of Military

Justice, the Rules for Courts-Martial, or the Manual

for Courts-Martial.

Background on military mental health care

In general, military mental health care is

similar to that provided in the civilian sector. All of

the same issues seen in small practices to large

medical centers have their counterpart in the military.

Where military practice differs from its civilian

counterpart is in relation to administrative military

duties and the special challenges combat and combat-

related pressures can create.

However, the military population shares with

the civilian counterpart population the stigma

associated with getting psychological care. Such

6

stigma has a long history in American society. Prior

to the early 19% century, Americans hid their mentally

ill family members at home and provided whatever

care they could. Later, private asylums became

popular places to hide those with mental problems.

From the 1850s to early in the 20% century the mental

health profession grew, but the stigma of being

“crazy” continued. During the 20 century, mental

health institutions and the profession of psychiatry

rapidly expanded, especially after World War I.

Unfortunately, the stigma still hung on, driven now

by the belief that “weak character” led to mental

disease.“

In the 1950s there was a movement toward

more scientific approaches to mental illness,

especially in the area of alcohol and drug treatment.

From then until the end of the 1970s, there was a

major shift from criminalization of alcohol and drug

problems to public health measures, and some in-

road was made in educating the general public about

-the emotional and behavioral underpinnings of

mental health problems. Despite the new emphasis

on psychiatry as a science and a concerted effort to

educate the public about mental health, the stigma

remains and still interferes with people getting the

care they need. The sensitive nature of emotional

problems, and potential stigmatization of persons

seeking psychiatric care were noted by this

Honorable Court in Jaffee.

But the stigma associated with seeking mental

health help is not the only stigma. The fear that

hss 9

* GERALD N. GROB, FROM ASYLUM TO COMMUNITY:

MENTAL HEALTH POLICY IN MODERN AMERICA (1991).

7

others will learn of the root problem probably keeps

military personnel away from mental health clinics.

Soon after this Honorable Court released

Jaffee, Air Force Times reported that “service

members may now be able to confide their darker

secrets to military mental-health professionals

without fear their commanders will find out.“ Just

two weeks after the publication of that article, a ease

at Elmendorf Air Force Base, Alaska, thrust the

absence of patient confidentiality into the national

spotlight. There, a 21 year old daughter of a service

member, the alleged victim in a rape case, had her

mental health records confiscated by military

investigators. The girl’s mother tore up the records in

an effort to conceal her daughter’s confidences, but

they were pieced back together. Both Jaffee and the

Elmondorf case prompted a fair amount of activity at.

the highest levels of the Air Force concerning the

issue of confidentiality in Air Force mental health

care.

The “practicability” of recognizing a psychotherapist-

patient privilege following Jaffee

There is no official military guidance on what

is considered “practicable” within the confines of

military service. Neither is there any existing

evidence that the military mental health or legal

system was not capable of applying a |

psychotherapist-patient privilege. Indeed, with the

President's issuance of an Executive Order®

Nick Adde, — tempiotion Look at Confidentiality

AIR FORCE TIMES, Aug 8, 1996, at p. 14.

s Executive Order No. 13140, 64 Fed. Reg. 55,115 (1999).

establishing an enumerated psychotherapist-patient

in Mil.R.Evid.513, it is apparent that such a privilege

is extremely practicable.

A. Poli iderati

a Psychot ist-

The Constitution entrusts the power to raise

and support armies, provide and maintain a Navy,

and make rules for the government and regulation of

the land and naval forces to Congress’ and names the

President as the Commander in Chiefs. As part of

this authority, Congress has authorized the President

to promulgate rules for courts-martial, to specifically

include the Manual for Courts-Martial.?

However, Congress did not give this rule-

making power without guidance. Article 36, UCMJ,

directs the President to, “so far as he considers

practicable, apply the principles of law and the rules

of evidence generally recognized in the trial of

criminal cases in the United States district courts, but

which may not be contrary to or inconsistent with

this chapter.“ 10 Congress, thus wanted to keep the

military system closely tied to the federal system,

separated only when required by the unique

U.S. CONST. art. I, sec. 8, el. 14.

* U.S. CONST. art II, sec. 2, el. 1.

Art. 36, UC M], 10 U.S.C. § 836 (1983). See S. Rep. 98-197, 96%

Cong., 1“ Sess. 1979, reprinted in 1979 U.S. C. C. A. N. 1818 (Article

36 intended to authorize the President to promulgate the

Manual for Courts- Martial.) :

1 Art. 36, UC NI, 10 U.S.C. § 836 (1983).

.

9

circumstances of the military. Senator Sam Nunn

characterized Congress’ intent, when exercising its

Constitutional mandate, as a careful balancing of the

rights of individual service members and the needs

of the armed forces." For him, Congress has played a

leading role in enhancing the rights of service

members.

One way a military members rights are

protected is through limitations on the use of mental

health information. Access to a military member's

mental health records is limited by the Privacy Act,

allowing access by agency officials with an official

need to know. Those agency officials include

commander, law enforcement agents conducting

investigations, and defense counsel under

appropriate discovery procedures under the MCM.

In certain cases, Congress has taken specific steps to

protect misuse of the military mental health system

by commanders for improper purposes. This

legislation, as applied by the Department of Defense,

has imposed significant procedural safeguards for

The Honorable Sam Nunn, The Fundamental Principles of the

Supreme Court’s Jurisprudence in Military Cases, 29 WAKE

FOREST L. REV. 557, 566 (1994).

'? Id. at 565 (Senator Nunn lists as examples: enacting the UCMJ,

establishing a civilian tribunal-the U.S. Court of Military

Appeals-to review courts-martial, authorizing the appeal of

specified military justice cases directly to the Supreme Court,

enhanced procedural rights in the promotion process, expanded

opportunity for wearing religious apparel while in uniform, and

providing protection for military whistleblowers). The U.S.

Court of Military Appeals was later renamed the United States

Court of Appeals for the Armed Forces. 10 U.S.C. § 924 as

amended by Act of Oct. 5, 1994, Pub.L. 103-337, 108 Stat. 2831,

2832 (1994).

in See R. C. M. 701.

ete oR

10

military members ordered to undergo command-

directed mental health evaluations.“ 8

In addition to enhancing protections for

military members against misuse of mental health

information, Congress has acted to protect crime

victims’ rights. In recent years, Congress has taken

significant legislative steps to ensure that crime

victims are treated with fairness and respect for the

victim’s dignity and privacy.5 The Department of

Defense has implemented victims’ rights programs in

accordance with this Congressional policy and

direction.®

Confidentiality and the Military’s “Need to Know”

The importance of confidentiality to successful

mental health care treatment, recognized by this

Honorable Court in Jaffee, also exists within the

military community. However, the countervailing

need for the military to know the mental status of its

personnel is likewise important. The mission of the

military necessarily involves the use of dangerous

equipment, access to weapons and classified

information, control of nuclear weapons, and life-

and-death reliance of the stability of other service

members.

'* See Pub. L. 101-50, “National Defense Authorization Act for

Fiscal Year 1991” (NDAA FY 91, Pub. L. 101-484, NDAA FY 93

(Oct. 23, 1992); DoDD 6490.1, MENTAL HEALTH

EVALUATIONS OF MEMBERS OF THE ARMED FORCES

(Sept. 14, 1993).

See 42 U.S.C. §10601, 10681 (1995); 18 U.S.C. 5 1512-1514 (1984),

'© See DoDD 1031.1, VICTIM AND WITNESS ASSISTANCE

(Nov. 23, 1994); DoDI 1030.2, VICTIM AND WITNESS

ASSISTANCE PROCEDURES (Dec. 23, 1994).

——

11

The lack of confidentiality of mental health

care treatment has resulted in military members

delaying or avoiding treatment and in the

underdiagnosis of mental illness.” Military

members feel that seeking help will adversely affect

their careers, particularly if the member is on flight

status or has a sensitive security clearance. A leader

may avoid seeking help for mental illness for fear

that his subordinates will lose confidence in his

leadership. Ninety-five percent of suicides are tied to

mental illness. is Although the military suicide rates

are roughly commensurate with rates in the civilian

sector, the military must proactively encourage

members to seek mental health care to combat the

“centuries old military culture in which strength is

prized and anything that could be perceived as

weakness is concealed.“ 1“ This cost of service

members delaying or avoiding treatment must be

weighed against the need of the military to know the

mental status of its members and be able to

accomplish its mission of defending our nation.

'7 LCDR Taylor L. Porter & LT W. Brad Johnson, Psychiatric

Stigma in the Military, 159 MIL. MED. 602 (1994). See CPT

Anderson B. Rowan, Demographic, Clinical, and Military Factors

Related to Military Mental Health Referral Patterns, 161 MIL.

MED. 324 (1996); Regina Pedigo Galvin, Even Soldiers Get the

Blues, But Issues of Stigma, Confidentiality Keep Those in Need

from Getting Help, ARMY TIMES, July, 29, 1996.

n Sue Goetinch & Tom Siegfried, Mentally Ill Fight Disease and

Stereotypes, THE DALLAS MORNING NEWS, Apr. 28, 1996, at

1A.

Neal A. Lewis, Military Conducting Anti- Suicide Campaign,

THE SEATTLE TIMES, May 19, 1996, at A1.

12

C. An Examination of the Operation of Other

Privi Available to Servi

The support given other privileges in both the

Military Rules of Evidence and other “quasi-

privileges” found in various military regulations

support the argument that a psychotherapist-patient

privilege following this Honorable Court's decision

in Jaffee was “practicable.” That Congress and the

military departments have seen fit to carve out

exceptions concerning the information commanders

may access in matters involving religion, alcohol and

drug abuse, AIDS, and various other mental health

issues, show that concerns such as privacy and

encouragement of health can be more important than

obtaining evidence in a criminal case. The fact that

these “exceptions” exist without an impairment of

military readiness demonstrates that there was room

for an accommodation of both the military's

legitimate “need to know” and the service member's

need for confidentiality in psychotherapy. Several

important concepts highlighted by this Honorable

Court in Jaffee are evident in the privileges and

quasi-privileges discussed below—the recognition

that certain goals are more important than obtaining

evidence, that confidentiality is essential to achieving

these goals and that in each, the privilege has been

fashioned to encourage the attainment of the desired

goal, and no more.

1. Military Rule of Evidence 503. Mil.R.Evid.

503 provides that confidential communications made

as either a formal act of religion or as a matter of

conscience to clergymen or their assistants is

privileged. Mil.R.Evid. 503 was taken from proposed

13

FRE 506” but was first recognized in military practice

in 1951. Encouraging individuals to communicate

with their clergy has long been recognized as a

publicly desirable goal, though it was not recognized

under common law. The religious privilege provided

by Mil.R.Evid. 503 most closely resembies the

intimate and personal relationship present in the

psychotherapeutic relationship. Indeed, many clergy

and their assistants act as secular quasi-

psychotherapists part of the time in counseling

soldiers.

2. Limited use regulations. There are a number

of military regulations which provide a limited form

of confidentiality to those who would possibly not

otherwise disclose certain information or take

advantage of programs designed to encourage certain

types of behavior. The regulations are in effect to

support military alcohol and drug programs. HIV-

positive and related public heath threat programs,

and certain mental health programs.

a. Alcohol and Drug Abuse Programs.

Air Force Instructions (AFIs) provide that limited use

may be made of a military member's voluntary, self-

disclosure of drug use or possession. 21 Specifically,

AFI 36-3701, para. 5.5.1.1.2, provides that voluntary

disclosure may not be used against a military

2 STEPHEN A. SALTZBURG ET AL., FEDERAL RULES OF

EVIDENCE MANUAL (6 ed. Supp. 1995, 1996), note 53 at 556

(citing to 2S. SALTZBURG & M. MARTIN, FEDERAL RULES

OF EVIDENCE MANUAL 601-02 (8 ed. 1990).

* AFI 36-2701, Social Actions Program, para. 5.5.1.1 (Aug 16,

1996); AFI 51-201, Administration of Military Justice, para. 8.3

(July 28, 1994).

E

member in a Uniform Code of Military Justice action,

or to characterize the service of the member in an

administrative discharge action. Army Regulation

600-85 provides the same protection to its soldiers.

The Air Force requires a voluntary disclosure which

specifically excludes self-referrals after

apprehension, initiation of investigation for drug

abuse, selection for urine testing, notice of

administrative separation for drug abuse, or entry

into a substance abuse rehabilitation program.” The

purpose of such programs has been to facilitate

identification of substance abusers, and treatment

and rehabilitation of those who desire it and

demonstrate the potential for it, while at the same

time prevent a service member from misusing the

program solely to escape responsibility for illegal

acts.

b. HIV Programs. To encourage

individuals who test positive for HIV to obtain

treatment and continue to be contributing members

of the military, the military adopted an aggressive

AIDS program soon after the identification of the

disease. Nonetheless, the program’s mandatory

testing requirements for active duty service members

caused some concern about the concomitant loss of

privacy and autonomy. In response to such concerns,

Congress passed legislation in 1987 establishing a

limited use policy for information concerning HIV-

positive individuals, which specifically included

confidentiality protection, which was implemented

in the Department of Defense. AFI 48-135

2 AFI 37-2701, supra, para. 5.5.1.2.

* Restriction on Use of Information Obtained During Certain

Epidemiologic Assessment Interviews, Pub. L. No. 99-661, Title

15

establishes the Air Force's HIV program and sets

forth its limited use restriction. Specifically, AFI 48-

135, para. A10.2.1, provides that information obtained

during, or as a result of, an epidemiologic assessment

interview may not be used against a member in any

adverse action. The limitations specifically do not

preclude use of the information for rebuttal or

impeachment in actions taken against the member

based on independently derived information, nor do

they bar introduction of evidence for impeachment or

rebuttal purposes in any proceeding in which

evidence about such matters were first introduced by

the member. The instruction does not provide the

identified HIV-positive member with confidentiality.

In fact, the AFI requires that the members

commander be immediately notified of a confirmed

case of infection so that a “safe sex” order can be

issued. However, the AFI requires the order to be

securely stored so as to protect the member’s privacy

and confidentiality. Furthermore, release of the

information outside the Air Force is prohibited

without the member's consent. Finally, the usual

protection of sensitive medical information through

the provisions of the Privacy Act apply. The purpose

of these limitations has been to facilitate

identification and treatment of AIDS. Basically, the

theory underlying the limitations on use of this

information is that the public health goals of the

program outweigh the loss of that information in the

criminal process.

VIL, § 705(c), 100 Stat. 3904 (Nov. 14, 1996); Ass’t Sec. Of Def.

(Readiness Support) Memorandum, Policy of Identification,

Surveillance, and Administration of Personnel Identified with

Human Immunodeficiency Virus (HIV) - Action Memorandum,

P.B.7.d (Nov 23, 1988).

16

c. Mental Health Programs. In response

to Congressional hearings into alleged misuse of the

military mental health system by commanders to

punish “whistle blowers” or those perceived as

“problem” soldiers, Congress passed legislation in

1993 aimed at controlling commanders’ authority to

order involuntary psychiatric evaluations.“ The law

directed the military to provide a specific list of due

process rights to those service members ordered to

undergo psychiatric evaluation by their commanders.

As a result, the Department of Defense issued a

directive to the military departments requiring them

to establish procedures incorporating the

Congressionally mandated controls. One

Congressional goal for these new procedures in the

military mental health evaluation process was to

provide greater protection to the military member.

The legislation demonstrates Congressional

willingness to take action in those areas where it feels

military action is lacking.

In the Air Force, the new procedures required a

two-day waiting period between the order and the

evaluation, except in emergency situations. AFI 44-

109 further provides that member ordered to undergo

evaluation must receive written notice setting forth

the specific reason(s) for the referral; the name of the

mental health provider consulted about the referral;

Mental Health Evaluations of Members of Armed Forces, Pub.

L. No. 101-510, Title V, § 554 (Nov. 5, 1990), as amended Pub. L.

No. 102-484, Title V, § 546 (a)-(h), 106 Stat. 2416 (Oct 23, 1992).

> DoD Directive 6490.1, Mental Health Evaluations of Members

of the Armed Forces (Sept. 14, 1993).

AH 44-109, Mental Health and Military Law (Aug 1, 1996),

para. 1.3.

17

positions and telephone numbers of persons who can

give assistance to the service member (e.g., military

defense counsel, Inspector General); and a list of the

member's rights regarding the referral. The

installation commander is required to provide a

neutral and detached reviewing officer to review any

involuntary admission and direct appropriate

investigation into any indication that the ordered

evaluation was for an improper purpose. Finally,

misuse of the evaluation process as a reprisal is

punishable under the UCMJ.

nt

CONCLUSION

Following this Honorable Court's decision in

Jaffee, a psychotherapist-patient existed in military

courts-martial through the mandate of Mil.R.Evid.

501(a). Such a privilege was both practicable and not

contrary to the UCMJ, the Military Rules of Evidence,

or the MCM. This brief has focused on the issue of

the practicability of the privilege by examining the

policy supporting such a privilege, as well as a

discussion of similar privileges available to service

members to show that the psychotherapist-privilege

was equally practicable. However, the strongest

evidence of the practicability of a psychotherapist

continues to be the promulgation by the President of

Mil. R.Evid. 513 subsequent to the petitioner’s court-

martial.

AFLSA/JAJA respectfully requests this

Honorable Court grant the Petitioner's request for a

writ of certiorari.

Respectfully submitted,

JEFFREY A. VIRES

Major, United States Air Force

Appellate Defense Counsel

Counsel of Record

JAMES R. WISE

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel for Amicus Curiae

19

TIMOTHY R. MURPHY

Lt Colonel, United States Air Force

Chief Appellate Defense Counsel

Counsel for Amicus Curiae

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

la

U.S. Department of Justice

Office of the Solicitor General

Washington, D.C. 20530

January 11, 2001

Major Jeffrey A. Vires

Department of the Air Force

Air Force Legal Services Agency

112 Luke Avenue

Suite 343

Boling AFB, DC 20332-8000

Re: Rodriguez v. United States, No. 00-1038

Dear Major Vires:

As requested in your letter of January 9, 2001, I hereby

consent to the filing of a brief amicus curiae on behalf of the

Appellate Defense Division, Air Force Legal Services

Agency in support of the petitioner in the above-styled case.

Sincerely,

Seth P. Waxman

Solicitor General

ce: William K. Suter, Esquire

Clerk

Supreme Court of the United States

Washington, D.C. 20543

1b

IN THE SUPREME COURT OF THE UNITED STATES

SPECIALIST HECTOR RODRIGUEZ,

U.S. Army, Petitioner,

Zz v.

UNITED STATES, Respondent.

No. 00-1038

PETITIONER’S CONSENT TO SUBMISSION OF

AMICUS CURIAE BRIEFS

Petitioner Specialist Hector Rodriguez, by and through

counsel, hereby consents to the submission of amicus curiae

briefs in the above-captioned matter by the defense appellate

divisions of the U.S. Navy and the U.S. Air Force.

Michael J. Nardotti, Jr.

Major General, U.S. Army, Retired

PATTON BOGGS LLP

2550 M Street, NW

Washington, DC 20037

(202) 457-6000

Counsel for Petitioner Hector Rodriguez