Title: Email from CPT Overgaard to Judge Lind and Enc

Release Date: 2014-03-20

Text: Ford, Arthur Jr CW2 (US)From: Overgaard, Angel CPT USARMY (US)Sent: Sunday, January 06, 2013 10:55 PMTo: Lind, Denise COL USARMY (US) Cc: ?David Coombs'; Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMYMorrow, JoDean (Joe) CPT USARMY USAMDW Whyte, Hunter CPTUSARMY von Elten, Alexander (Alec) CPT USARMY Ford, Arthur Jr CW2USARMY Williams, Patricia Ann (Trisha Williams-Butler) CIV USARMY USAMDW Jefferson, Dashawn MSG USARMY Moore, Katrina MSG USARMY Raffel,Michael SFC USARMY Fein, Ashden MAJ USARMY MDW Chavez, Richard CIV Robertshaw, Dennis CIV (US) -Subject: RE: Expert Witness Issue (UNCLASSIFIED)Attachments: US Toledo.pdf.pdf; US Toledo2.pdf.pdf; US Tharpe.pdf.pdf; JER, para 5-410(2011)pd?pdfClassification: UNCLASSIFIEDCaveats: NONEMa'am:In response to Friday's email from the defense, AR 27-46 does not apply to courts-martialproceedings. It, therefore, makes sense that an individual at the litigation division has notseen such a request. AR 27-46, para. 1-1(b) says, "This regulation does not apply toDepartment of the Army (DA) or DOD proceedings such as courts-marital or administrativeboards." The United States contends that AR 27-46 likely does not apply to courts-martialbecause we have the procedures set forth in the MCM.Furthermore, just because 5 CFR Section 2635.865(a) is incorporated by reference into aregulation that does not apply to courts-martial (AR 27-46), does not mean that 5 CFR Section2635.865(a) does not apply to government employees. .In fact, the Joint Ethic Regulation (DOD 5566.67-R) specifically incorporates 5 CFR Section2635.865 in reference to expert witnesses. See attached 5566.67-R, para. 5~416(d)("There are limitations on certain outside activities such as . . . service as an expertwitness . . . . See 5 C.F.R. 2635.864-868 . . . Furthermore, although the requirements for expert consultants (MRE 562) and expert witnesses(RCM 763(d)) are necessarily separate and distinct, the language in the below expertconsultant cases is instructive: In US Toledo, 25 276 (CMA 1987), the defense went privately to a USAF clinicalto determine whether or not there were any possible problems concerning thesanity of the accused. The Court allowed the government to call the same in itsrebuttal case to discuss the Accused's character for truthfulness. The Court stated that MRE562 could have offered a safe haven but the defense did not request the government provide ita medical officer for assistance in the preparation of the case.The Court goes on to state that had the defense procured medical assistance for thepreparation of its defense at its own expense, the Court would have held that communicationsbetween appellant and the expert were within the attorney-client relationship (at leastunless a mental responsibility defense was presented). However, "the defense tried tocommandeer a government official. . . . [S]ervicemember has no right simply to helphimself to government experts and bring them into the attorney-client relationship, bypassingthe proper appointing authorities." Id. at 276; see also US Toledo II, 26 M3 164, 165 (CMA1988) (If an accused demonstrates a need for a to become a member of thedefense team in order to assist in the preparation of the defense, he must do so formally.1 APPELLATE PAGE REFERENCE D: PAGE OF PAGES Otherwise, an accused could itrarily commandeer a valuable ernment employee withoutappropriate considerations on availability, priority of mission-, or otherwise.")In United States v. Tharpe, 38 MJ 8 (CMA 1993), the Court refers to the Toledo case indiscussing whether a Navy clinical who volunteered to assist the defense shouldbe appointed an expert consultant. The Court noted that the military expert must be madeavailable through the medium of a request via the appropriate military chain~of command sothe accused could not arbitrarily commandeer a valuable government employee withoutappropriate considerations of availability, priority of missions, or otherwise.Thank you.Very Respectfully,ANGEL M. OVERGAARDCPT, JATrial Counsel, From: David Coombs Sent: Friday, January 04, 2013 10:33 AM To: Lind, Denise COL USARMY (US)Cc: Hurley, Thomas MAJ USARMY Tooman, Joshua CPT USARMY Morrow, JoDean (Joe)CPT USARMY USAMDW Overgaard, Angel CPT USARMY whyte, Hunter CPT USARMYvon Elten, Alexander (Alec) CPT USARMY Ford, Arthur Jr USARMY williams, Patricia Ann (Trisha williams-Butler) CIV USARMY USAMDN Jefferson, DashawnMSG USARMY Moore, Katrina MSG USARMY Raffel, Michael SFC USARMY Fein,Ashden MAJ USARMY Mow (us) .Subject: Expert witness IssueMa?am,The Defense wanted to provide the Court and the Government with the benefit of information inadvance of our motions hearing. In the Government?s response motion, it cites 5 CFR Sectionas a basis to prevent COL Larry, Mr. Cindrich, Mr. Hall, Mr. Ganiel and Ms. Smithfrom being able to testify. ._5 CFR Section 2635.805(a) is codified in AR 27-40, Chapter 7-10, page 16. Under AR 27-40,the approval authority for any DA personnel to testify in a proceeding where the UnitedStates has an interest for a party other that the United States is the Litigation Division,OTJAG. However, Chapter 1-1(b) of the regulation does not apply in Department of Army or DODproceedings such as a court-martial or an administrative board.Yesterday, I spoke with -, the Deputy Chief of Litigation Division. Heinformed me that although his office acts upon requests for DA personnel to act as experts instate and federal courts on a frequent basis, he has never seen such a request for a court-martial. informed me that this is the case since AR 27-40 specificallyexcludes application of the provision to courts-martial. The Defense has also conducted awestlaw search for the provision relied upon by the Government and has not found a single -military case that cites the provision.1 have attached the entire AR 27-40 for the Court. I have also attached an excerpt of AR 27-49 which the Defense requests that the Court take judicial notice of for purposes of thismotion.v/rDavidDavid E. Coombs, Esq.Law Office of David E. Coombs11 South Angell Street, #317_Providence, RI 02966Toll Free: 1-866-588-4156Local: (598) 689-4616Fax: (588) 689-9282.Notice: This transmission, including attachments, may contain confidentialattorney-client information and is intended for the person(s) or company named. If you arenot the intended recipient, please notify the sender and delete all copies. Unauthorizeddisclosure, copying or use of this information may be unlawful and is Classification: UNCLASSIFIEDCaveats: NONE'1W?sttaw.25 M.J. 270(Cite as: 25 M.J. 270)U.S. Court of Military Appeals.UNITED STATES, Appellee,v.Hector L. TOLEDO, Seaman Recruit, U.S. Navy,Appellant.No. 54,817.NMCM 85 3868.Dec. 14, 1987.Accused, seaman recruit, United States Navy,was convicted by general court-martial James E.Riley, J., of rape, indecent assault, and committingindecent acts on female under age of 16. TheUnited States Navy-Marine Corps Court of MilitaryReview, reduced rape speci?cation to committingindecedent acts upon child under age 16 and re-duced period of confinement, but otherwise af-firmed. Review was granted. The United StatesCourt of Military Appeals, Cox, J., held that: (1)privilege concerning mental examination of ac-cused did not apply to preclude disclosure of state-ments made by accused during clinical gist's confidential evaluation of accused at behest ofdefense; (2) any error in allowing clinical gist to testify regarding his personal opinion of ac-cused's character for truthfulness was harmless; and(3) any error in allowing expert to testify that al-leged victim's response was quite common in childabuse cases was harmless.Affirmed.Opinion on petition reconsideration, 26 MJ.104.West HeadnotesMilitary Justice 258A 69113325 8A Military Justice25 8AV Evidence and Witnesses258Ak1126 PrivilegesPage 1258Akl133 k. Privilege Concerning Men-tal Examination of an Accused. Most Cited CasesPrivilege concerning mental examination of ac-cused did not apply to preclude disclosure of state-ments made by accused during clinical gist's confidential evaluation of accused; gist had not been ordered to examine accused, butrather, had been requested to do so by defensecounsel. Military Rules ofEvid., Rules 302, 50l(d),706; MCM 1984, App. 22, M.R.E. 501.Military Justice 258A $9113325 8A Military Justice258AV Evidence and Witnesses258Ak1 126 Privileges258Ak1133 k. Privilege Concerning Men-tal Examination of an Accused. Most Cited CasesStatements made by accused during clinicalconfidential evaluation of him werenot protected from disclosure by lawyer-client priv-ilege, even though accused did not raise mental re-sponsibility defense; rather than merely procuringclinical assistance at accused's ownexpense, accused had tried to obtain governmentof?cial's services without going through proper ap-pointing authorities. Military Rules of Evid., Rule502(a), MCM 1984, App. 22, 502(b)(3); UCMJ, Art. 46, 10 U.S.C.A. 846.Military Justice 258A 258A Military Justice258AX Review of Courts?MartialFurther ReviewIn General 258Ak1423 Harmless or PrejudicialError; Test for Reversible Error258Ak1425 k. Evidence and Wit-nesses. Most Cited CasesAny error in allowing clinical totestify regarding accused's credibility was harmless,considering slight probative force of such testimonyin comparison with other evidence in general court-2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 25 M.J. 270(Cite as: 25 M.J. 270)martial proceeding. Military Rules" of Evid., Rules608(a), 702, 705; UCMJ, Art. 59(a), 10 U.S.C.A. 859(a).Military Justice 258A 258A Military Justice25 Review of Courts?Martial25 Further ReviewIn General258Al<1423 Harmless or PrejudicialError; Test for Reversible Error258Ak1425 k. Evidence and Wit-nesses. Most Cited Cases .Any error_in allowing expert testimony that al-leged victim's response was quite common in childabuse cases was harmless in general court-martialproceeding on charges of rape, indecent assault andcommitting indecent acts on child-under age of 16;victim's testimony was thoroughly corroborated by 7other witnesses. UCMJ, Arts. 59(a), 120, 134, 10U.S.C.A. 859(a), 920, 934; Military Rules ofEvid., Rule 702.Military Justice 258A ?%1415 258A Military Justice258AX Review of Courts?MartialFurther ReviewIn General258Al<1414 Preservation of Groundsof Review; Waiver; Plain Error.258Ak1415 k. Admission or Exclu-sion of Evidence. Most Cited Cases .Accused's failure to challenge foundation forexpert testimony that victim's response was quitecommon in child abuse cases waived such objectionon appeal in general court-martial proceeding. Mil-itary Rules of Evid., Rules l03(a)(l), 702.Military Justice 258A Q-331109258A Military Justice25 8AV Evidence and Witnesses258Ak1106 Confessions and Admissions258Al-(1109 k. Warnings About Rights.Page 2 .Most Cited CasesClinical was not required to readaccused his rights prior to evaluating accused at be-hest of defense. UCMJ, Art. 31(b), 10 U.S.C.A. .83 1 *271 For Appellant: Lieutenant Colonel Richard E.Ouellette, USMC (argued). IFor Appellee: Major F.F. Krider, USMC (argued);Commander Michael P. Green, JAGC, USN (onbrief); Captain Carl H. Horst, JAGC, USN andCaptain Wendell A. Kjos, JAGC, USN.Opinion oftlze CourtCOX, Judge:A general court-martial composed of officerand enlisted members convicted appellant, contraryto-his pleas, of one speci?cation of rape, ?ve spe-ci?cations of indecent assault, and one speci?ca-tion of committing indecent acts on a female underthe age of I6, in violation of Articles 120 and 134,Uniform Code of Military Justice, 10 U.S.C. 920and 934, respectively. He was sentenced to a dis-honorable discharge, con?nement for 30 years, andtotal forfeitures. The convening authority suspen-ded con?nement in excess of 20 years and other-wise approved the sentence. The Court of MilitaryReview was unpersuaded beyond a reasonabledoubt that penetration had occurred and reduced therape speci?cation to committing indecent acts upona child under the age of I6, a violation of Article134. Upon reassessment of the sentence, the courtreduced the period of con?nement to 15 years butotherwise af?rmed the sentence as adjudged.We granted review of the following issues:IWHETHER THE MILITARY JUDGE ERREDBY AUTHORIZING THE PROSECUTION TOPRESENT AN EXPERT WITNESS TO OFFERHIS OPINION ON TRUTHAND VERACITY.?2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 25 M.J. 270(Cite as: 25 M.J. 270)WHETHER THE MILITARY JUDGE ERREDBY AUTHORIZING THE TESTIMONY OF ANEXPERT WITNESS . CONCERNING ACREDIBILITY.WHETHER THE MILITARY JUDGE ERREDBY ADMITTING TESTIMONY OF A CLINIC-AL IN VIOLATION OFARTICLE UCMJ, 10 U.S.C. 831(b) Finding no error to the substantial prejudice ofappellant, we affirm. Art. 59(a), UCMJ, 10U.S.C. 859(a).Of the granted issues, only a portion of the firstissue requires substantial discussion. In order to re-solve it and the other issues, however, a detaileddescription of the evidence is necessary.-When appellant first arrived for duty in Mis-awa, Japan, he was befriended by Petty OfficerArnardo Serrano. As Serrano testified: ?He[appellant] was new in the command. He didn'tknow anybody. And he was??he felt lost, so I wasjust trying to make him feel at home.? Appellantaccepted the invitation and became a frequent visit-or to the Serrano home, where he often played withthe three young Serrano children. One of the reas-ons ?the Serranos let appellant play with their chil-dren so much was that appellant often told themhow much he missed his adopted younger sisterwho was back home.On the evening of November 6, 1984, appellantwas at the Serrano home with Petty Officer Serranoand the children. Mrs. Serrano had gone to .a babyshower. Serrano was involved in connecting somevideo equipment when it was time for the childrento bathe and get ready for bed. Appellant insistedon going with them and, even though Serrano ?wasa little uncomfortable? about it, he let him. Period-ically, Serrano would check in to make sureeverything was all right.After the bath, appellant commenced readingbedtime stories to the children in *272 their rooms.Page 3Following one unusually long period of silence,Serrano again went upstairs to see what was hap-pening. Peering into his 5-year-old daughter'sroom, he discovered a sickening scene. The childwas sitting at the edge of her bed, leaning back-ward, with her panties pulled down. Appellantstood directly in front of her ?with his pants open.?At trial, Serrano testified:Toledo turned away, and walked towards thecomer. He had his hands in front ofhim. I did notsee his penis, but I saw a pubic hair, I saw his pu-bic hair. [Toledo] quickly turned away andstarted to zip his pants. I said, ?What the hell isgoing on here??. I yelled. And my daughteranswered, ?Toledo was only scratching.? Shestood there [with] a terrified look on her face,and she was shaking.Serrano further testified as follows:Will you describe for the members what washe doing in the corner, could you observe himfrom the corner??A. He was ?xing his pants, trying to fix hispants, put on his belt. I-1 stood there after asked what was going on, and my daughter saidhe was only scratching himself, I just stood therefor a few seconds, and I couldn't believe whatwas going on. He was??he just had turned, andhe was over there ?xing his pants, he was justbuckling them up, zipping them up andeverything.In response to Serrano's yell:He [appellant] didn't say anything. He justturned away with his head down, that's when hestarted ?xing his pants. Then I just??I yelled-?Iyelled out again, I said, ?Get the hell out of myhouse. I never want to see you near my kids. Inever want to see your face again.? And Toledowalked out of the door, he was still ?xing hispants.Q. Did he?did he say anything to you??2013 Thomson Reuters. No Claim to Orig. US Gov. Works.25 M.J. 270(Cite as: 25 M.J. 270)A. He never said a word. He never even lookedat me. There was never any contact.Q. Could you describe his appearance at.thetime he left the room?A. He was?he was sweating profusely. Hewas soaked, he was drenched in sweat. And hejust slowly walked out of the?out of the room.Q. To the best of your memory, what?whatwas the temperature, what were the climatic con-ditions?A. Oh, it was cold that night, it was really coldthat night. It was in November. It was pretty cold.As appellant was leaving, Serrano instructedhim to report to his barracks, and he informed himthat he would be calling the Shore Patrol. Ratherthan walking in the direction of the barracks, appel-lant "headed straight for the main gate. Severalhours later, he was apprehended off base. His cloth-ing was seized; laboratory analysis revealed thepresence of a largesemen stain on his underpants.Approximately 3 months later, the victim testi-?ed at an Article 32, UCMJ, 10 U.S.C 832, ses-sion. Her testimony was videotaped, and a verbatimtranscript was prepared. At trial, the defense agreedthat the victim was unavailable to testify and thatthere had been an adequate opportunity to cross-examine her at the Article 32 hearing. Further, thedefense did not wish to have her testify in person-Accordingly, the videotape recording of the vic-tim's prior testimony was played forthe court me1n?bers pursuant to the former?testimony exception tothe hearsay rule, Mil.R.Evid. 804(b)(1), Manual forCpiourts-Martial, United States, 1984.In her testimony, the girl described the eventsof the evening, including her mother's departure forthe baby shower, the bath in which appellant parti-cipated, and the bedtime stories. She also stated thaton two occasions that evening appellant put his?pee pee? [her] pee pee and poo poo.? Oneof these incidents occurred ?[t]he first time he had Page 4came upstairs?; the other occurred when he read thestory.The girl also stated that, onia previous occa-sion, appellant had taken the three children to his?house? (the barracks), and he *273 had done thesame thing to her there in the bathroom with thedoor locked. On that occasion it also hurt when he?[p]ut his pee pee in [her] pee pee.? When shecomplained of the pain to appellant, starteddoing it some more.? According to her testimony,appellant had also touched her ?pee pee? with hishands other times while at her house and hadhurt her.FN1. For sentencing purposes, the militaryjudge treated the speci?cations as onlythree offenses, grouping them around the events alleged to have occurred betweenDecember" 25, 1983, and November 5,1984 (at appellant's barracks); those thatoccurred at about 9:00 November 6,1984 (the first incident at the house); andthose that occurred at about 9:50 p.m. (theincident that Petty Of?cer Serrano walkedin on).The victi_m's brother, Ryan, age 7, testified atthe trial and ?corroborated her account of beingtaken to appellant's barracks. He also confirmed"that he and his younger brother stayed in appellant'sroom watching cartoons on television. His sister,however, had to go to the bathroom. Appellant tookher?aIone?and they stayed for a ?[l]ong time.?Petty Of?cer Serrano testi?ed that he had nevergiven appellant permission to take his childrenaway from their house.Appellant testified in his defense and admittedtaking the children to his barracks without theknowledge or consent of either Petty Of?cer orMrs. Serrano. His explanation was: ?The Mama-sandid say that it was okay by her.? He also acknow-ledged taking the victim to the bathroom on that oc-casion but denied that he had ?ever raped or sodom-ized or in any way sexually assaulted or abused?2013 Thomson Reuters. No Claim to Orig. US Gov. Works.25 M.J. 270(Cite as: 25 M.J. 270)her.Appellant's version, on direct examination, ofthealleged incident at the housewas that he ?hadnoticed that [the child] had been scratching her-self right through the night.? After the bath,she was complaining that her?her sides wereitching. So, I told her, you know, ?let me see be-fore I tell your dad,? which at the time??that'swhen her dad came in the house. He came up-stairs. On cross-examination, appellant agreed that,when Serrano walked in, the girl was sitting on thebed, ?her gown was up to her chest, [a]nd herpants were down around her knees.? He also admit-ted:I touched her in the area where she was com-plaining about, which was her vagina, and thatwas about 2 seconds, just to see if she was reallyhurting. She told me yes. When I turned aroundto get her father, he was already coming in.?He denied ever having his pants down or open,turning away to buckle or fasten his pants, or mas-?turbating. He claimed that it was the victim whostated, at the time her father burst in, that she wasscratching herself. His explanation for the semen inhis underwear was that, after he left the Serranohousehold, he went into town and had sexual inter-course with a woman he knew who worked at aclub. On cross-examination, he ampli?ed his ex-planation thusly:Q. Do you want to explain how your underwearhad a large stain as a result of ejaculation?A. I thought I covered that clearly. I was outwith a couple of girls that night, I did not showerafter we had sex, and that was it.Q. Are you in the habit of ejaculating in yourunderwear when you have intercourse with wo-men?Page 5A. Well, that night, I didn't see any reason, youknow. Just once in a while, we just go and do itthat way.Q. Do you always have intercourse with wo-men with your underwear on?A. Once in a while, yes.Q. Do you want to explain how it's possible toejaculate into your underwear and have sexual in-tercourse at the same time?A. That's very simplehavesex with a girl, pull out whenever you feel like it.In response to a question by the military judgeabout whether appellant had ?ejaculated with? his?undershorts on," appellant replied:*274 No, sir. I did not say that. I simply statedthat you just pull out before you ejaculate. It wasgetting late that night and I just wanted to gohome. I just wanted to go see what was going onon base, turn myself in.Previously, appellant had explained that heknew the Shore Patrol was looking for him becauseSerrano I said he would call them. On recross?examination, he identi?ed his alleged sex partner asa female named ?Hiromi? and stated that he hadknown her since he had been in Misawa. He did notproduce her, otherwise identify her, or request heras a witness at the court-martial.With particular regard to the granted issues,the prosecution, during its case-in-rebuttal, appar-ently stunned the defense by calling as a witnessDr. (Captain) Paul E. Rosete, USAF, a clinical psy-chologist. The defense objected to Dr. Rosete'stestimony on the grounds of privilege. Defensecounsel explained that he previously approachedDr. Rosete in con?dence and requested that thedoctor examine appellant with a view to detennin-ing ?whether or not there were any possible prob-lems concerning sanity.? Counsel never requestedthat Dr. Rosete be appointed to examine appellant2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 25 M.J. 270(Cite as: 25 M.J. 270)or to assist in the defense. Privately, however, heasked of Dr. Rosete ?that the conclusions, reports,notes, and tests be kept in strict con?dence and thatthey be released to none other than myself or theaccused.? Counsel's rationale was that this prelim-inary sort of ?check into the mental competency ofthe accused? was a necessary or desirable predicateto requesting a formal sanity board. On this basis,counsel contended that the Government should beprecluded from doctor as a witness, cit-ing Mil.R.Evid. 706.FFN2. Mil.R.Evid. 706, Court appointed ex-perts, provides:Appointment and compensation. Thetrial counsel, the defense counsel, andthe court?martial have equal opportunityto obtain expert witnesses under Article46 10 U.S.C. 846]. The em-ployment and compensation of expertwitnesses is governed by R.C.M. 703.Disclosure of employment. In the ex-ercise of discretion, the military judgemay authorize disclosure to the membersof the fact that the military judge calledan expert Witness.(0) Accusedk experts of own selection.Nothing in this rule limits the accused incalling expert witnesses of the accused'sown selection and at the accused's ownexpense.Both Article 46 and R.C.M. 703 deal ex-clusively with the production of wit-nesses and evidence at trial; no priv-ileges are supplied by these provisions.In response, trial counsel assured the judge thathe did not intend to elicit from the doctor any opin-ion regarding appellant's sanity or lack thereof; hispurpose in calling the witness was merely topresent his opinion of appellant's ?character fortruth and veracity,? inasmuch as appellant had putPage 6such in issue by testifying, and to provide rebuttalfor certain of the assertions made by appellant inhis testimony. Counsel cited United States v. Park-err, 15 M.J. 146 and United States v.Matthews, 13 M.I. 501 (A.C.M.R.1982), rev?d inpart on other grounds, 16 M.J. 354 as authority, and the military judlgel permitted thetestimony for these purposes only. 3FN3. The military judge's exact ruling was:I will permit the testimony of the witnessonly as to two particular areas. Thatwould have to do with the sexual historyas explained to him by Seaman RecruitToledo and he may also offer his opinionas to the truth or veracity of Seaman Re-cruit Toledo, if in fact a sufficient found-ation can be laid for him to offer such anopinion.Dr. Rosete then con?rmed that defense counselrequested the confidential evaluation and that he in-terviewed appellant for approximately 10?12 hours.In addition to discussing the alleged offenseswith appellant, which appellant steadfastly denied,the doctor probed appellant's sexual history extens-ively. At no time during the course of these conver-sations did appellant ever mention having engagedin sexual intercourse*27S with a woman namedHiromi or anyone else on the evening of'November6, 1984.FN4. In view of the absence of testimonialprivilege, see text infra, Dr. Rosete had nochoice but to appear as a witness as direc-ted and to respond to the questions ofcounsel and the military judge.Literally, it does not seem to matter whetherappellant had sex with Hiromi or how the semenstain came to be on his underpants, considering thecircumstances under which he was discovered, hisadmissions about his conduct with the victim, hisadmission of having previously removed the chil-dren from the home without the parents? knowledge2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 25 M.J. 270(Cite as: 25 M.J. 270)or consent, the testimony of the children, and appel-1ant's version of the events which, as the Court ofMilitary Review aptly put it, ?strained credulity.?Unpub. op. at 3. However, giving appellant themaximum benefit of the doubt, if any shred of reas-onable doubt was left after his testimony, it was ob-literated by Dr. Rosete's devastating rebuttal testi-mony. Therefore, out of an abundance of caution,we consider the propriety of Dr. Rosete's rebuttaltestimony.The Military Rules of Evidence recognize nodoctor-patient privilege per se. Mil.R.Evid. 50l(d)provides: Notwithstanding any other provision of theserules, information not otherwise privileged doesnot become privileged on the basis that it was ac-quired by a medical officer or civilian physician in a professional capacity.See also Analysis of the Military Rules ofEvidence, Manual, supra at 1.Mil.R.Evid. 706, cited by the defense at trial, isnot itself of assistance to appellant. See 11. 2, supra.On the other hand, Mil.R.Evid. 302, ?Privilege con-cerning mental examination of an accused,? doeslimit, with certain exceptions, disclosure of state-ments by an accused during certain mental examin-ations. In pertinent part, the general rule states:The accused has a privilege to prevent anystatement made by the accused at a mental exam-ination ordered under R.C.M. 706 and any deriv-ative evidence obtained through use of such astatement from being received into evidenceagainst the accused on the issue of guilt or inno-cence or during sentencing proceedings.(Emphasis added.) The problem for appellant,of course, is that Dr. Rosete was not ordered to ex-amine him under R.C.M. 706 or any other provi-sion. Quite the contrary, the defense was apparentlyseeking to avoid tipplitijig its hand at this juncture oftrial preparation. Thus, Mil.R.Evid. 302 Page 7provides no haven for appellant.FN5. The Government's theory is that thedefense wanted to avoid a sanity board un-less they could be assured in advance offavorable results. Thus the Governmentwould not have access to expert opinionthat appellant was perfectly sane, therebyundermining the defense's sentencingtheme that appellant was just ?a sick man."Ironically, there is a rule of evidence thatmight have permitted appellant to utilize the ser-vices of Dr. Rosete without risking disclosure of hisstatements?the lawyer-client privilege,Mil.R.Evid. 502(a). That rule provides, inter alia,a privilege to refuse to disclose and to preventany other person from disclosing con?dentialcommunications made for the purpose of facilit-ating the rendition of professional legal servicesto the client, (1) between the client and thelawyer or the lawyer's representative.The ?representative? of a lawyer? is definedas ?a person employed by or assigned to assist alawyer in providing professional legal services.?Mil.R.Evid. 502(b)(3) (emphasis added). Thedrafters of the rule identi?ed, nonexclusively,paraprofessionals and secretaries as possible repres-entatives of lawyers. Analysis, Manual, supra atThere is federal authority, however, that psy-chiatrists?-and arguably in gener-al?-employed by or appointed for the defense to as-sist in the preparation of an insanity defense, fallwithin the attorney-client privilege, at least wheresuch privilege is not waived by tendering an insan-ity defense. United States v. Alvarez, 519 F.2d 1036(3d Cir. 1975); United States ex rel. Edrrey v. Snritlr,425 F.Supp. 1038 556 F. 2d556 (2d - Cir.1977). The *276place on the defense team to?conduct an appropriate examination and assist inevaluation, preparation, and presentation of the de-2013 Thomson Reuters. No Claim to Orig. US Gov. Works.25 M.J. 270(Cite as: 25 M.J. 270)fense? of insanity is now established beyond cavil.Ake v. Oklahoma, 470 U.S. 68, 83, 105 1087,1097, 84 L.Ed.2d 53 (1985)."Had the defense requested that the ?Governmentprovide it a medical officer for assistance in the preparation of its case, and had the Governmentfailed to do so, we would have concluded, underAke, that appellant had been deprived of?[m]eaningful access to justice,? given the circum-stances in which appellant was discovered by PettyOfficer Serrano. ?Id. at 77, 105 at 1094.However, requesting this assistance would haveresulted in that very tipping off of the Governmentthat the defense apparently did not desire.Had the defense procured medical assistancefor the preparation of its defense at its own ex-pense, we would have held that communicationsbetween appellant and that expert were within theattorney-client relationship, at least unless a men-tal-responsibility defense were presented.- United States v. Alvarez, supra. However, here thedefense tried to commandeer a government official. As the Supreme Court observed in Ake:This is not to say, of course, that the indigent de-fendant has a constitutional right to cho_ose a psy-chiatrist of his personal liking or to receive fundsto hire his own. Our concern is that the indigentdefendant have access to a competent for the purpose we have discussed.at 83, 105 at 1097.By the same token, a servicemember has noright simply to help himself to government expertsand bring them into the attorney?client relationship,bypassing the proper appointing authorities. Indi-gency, of course, is not a prerequisite to expert as-sistance in the military. Art. 46, UCMJ, I0 U.S.C. 846. To be sure, appellant has not claimed, either attrial or on appeal, that an attorney?client privilegeexisted with respect to Dr. Rosete, and under the -circumstances we also ?nd none. Cf United Statesv. White, 617 F.2d 1131 (5th Cir.l980). Accord-Page 8ingly, this aspect of the issue is without merit.The remaining issues may be resolved moreFirst, trial counsel elicited from Dr.I Rosete the fact that he had administered a battery oftests to appellant and that he believedhe had ?had sufficient contact with? appellant ?toform a personal opinion regarding his character for?truthfulness?? Asked what that opinion was, thedoctor rep1ied?nonresponsively:I think that given the time that I spent with himand the information that he provided, and the.manner in which it was provided, that he was be-ing less than candid. I (Emphasis added.) Presumably the lack ofcandor related to appellant's denial of improperconduct. The defense did not object at trial to eitherthe question or the answer, but now argues that ap-pellant was prejudiced by the doctor's conclusion.Admittedly, it is not clear whether the questioncalled for Dr_. Rosete?s expert opinion based on thetesting and other professional techniques,Mil.R.Evid. 702-705, or his lay opinion,Mil.R.Evid. 608(a). The Court of Military Reviewconcluded that the testimony was erroneously re-ceived, citing United States v. Cameron, 21 M.J. 59(C.M.A. 1985), but harmless given the state of theevidence. Unpub. op. at 3. See also United States v.Snipes, 18 M.J. 172, 179 (C.M.A. 1984), and 180(Everett, C.J., concurring in the result); and UnitedStates v. Cox, 18 M.J. 72, 73-74 (C.M.A. 1984).Without unravelling the merits of the question, wecertainly agree with the court below that the probat-ive force of this testimony was so slight,- in compar-ison with the other evidence that, under the circum-stances, appellant could not have been prejudiced.Art. 59(a). Accordingly, no further consideration ofthe issue is necessary.The next question involves the testimonyof Captain Willard W. Mollerstrom, USAF, Chiefof Mental Health Services*277 at Misawa Hospital,who testi?ed on behalf of the prosecution. Captain2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 25 M.J. E70(Cite as: 25 M.J. 270)Mollerstrom held a Master's Degree in PublicHealth and a in Social Work, and he had ex-perience ?in the area of child Mollerstromexamined the victim on three different occasions,including the evening of November 6 when she wasbrought to the hospital. Mollerstrom testified that,on that evening, the victim ?was nonverbal? and?very withdrawn, very dependent, very evasive."Appellant objects to Mollerstrom's conclusion thatthis response was ?quite common? in child-abusecases. He also objects to the Captain's opinion that?she [the_victim] is capable of knowing the differ-ence between telling the truth, telling a lie, differ-ence between right and wrong as relating to her-self.? No such objections were voiced at trial.Essentially, appellant's complaint on appeal isthat the record contains an inadequate foundationfor Captain Mollerstrom's conclusions. SeeMil.R.Evid. 702. As a matter of law, we cannot saythat the witness was not competent to draw theseconclusions or that his knowledge could not assistthe triers of fact. In any event, inasmuch as the vic- .tim's testimony was thoroughly corroborated ?byother witnesses, Mollerstrom's testimony could nothave materially prejuldiceld appellant, ?even if it hadbeen erroneously received. Art. 59(a). Further, ap-pellant?s failure to challenge the foundation waivedhis objection on appeal. Mil.R.Evid. l03(a)(1). -The final issue is whether Dr. Roseteshould have read appellant his Article 31(b),7 UCMI, 10 U.S.C. 831(1)), rights before question-ing him. It is apparent from this record that Dr.Rosete, who was evaluating appellant at the behestof the defense, was not interrogating appellant orrequesting a statement from him within the mean-ing of Article 31(b). United States v. Jones, 24 M.J.367 Accordingly,? no Article 31warnings were required, and the issue is withoutmerit.The decision of the United States Navy~MarineCorps Court of Military Review is af?rmed.Chief Judge EVERETT and Judge SULLIVANPage 9U.S. v. Toledo25 MJ. 270END OF DOCUMENT2013 Thomson Reuters. No Claim to Orig. US Gov. Works.W?stlaw.26 MJ. 104(Cite as: 26 M.J. 10(4)U.S. Court of Military Appeals.UNITED STATES, Appellee,v.Hector L. TOLEDO, Seaman Recruit, U.S. Navy,Appellant.No. 54,817.NMCM 85 3868.May 9, 1988.Accused, seaman recruit, United States Navy,was convicted by general court-martial, James E.Riley, J., of rape, indecent assault, and committingindecent acts on female under -age of 16. TheUnited States Navy-Marine Corps Court of MilitaryReview reduced rape speci?cations to committingindecent acts upon child under age of 16 and re-duced period of con?nement, but otherwise af-?rmed, and review was granted. After convictionswere af?rmed, 25 M.J. 270, accused petitioned forreconsideration. The United States Court of Milit? ary Appeals, Cox, I. held that erroneous statementin prior decision that issue of whether fell within "attorney-client relationship had not beenraised and statement that defense was apparentlyseeking to avoid tipping of hands during trial pre-paration did not provide basis for altering earlierdecision.Affirmed.West HeadnotesMilitary Justice 258A 258A Military Justice I25 8AX Review of Co_urts?Martial25 Further ReviewIn General258Akl435 Matters Peculiar to Re-view by the Court of Appeals for the Armed Forces(Formerly, the Court of Military Appeals)258Akl435.l k. In General. MostPage 1Cited Cases -(Formerly 25 8Ak 1.43 5)Court of Military Appeals? error in stating thatdefense counsel had not argued that fell within attorney-client relationship did notprovide basis for altering af?rmance of accused'sconvictions for indecent assault and committing in- decent acts on female under age of 16, in that earli-er decision was not based on failure to raise issue;point in earlier decision was that accused or counselcould not simply annex government of?cials ?intoattorney-client relationship, but had to obtain themthrough proper channels. Military Rules of Evid.,Rule 502(a). - I -.Military Justice 258A ?m1435.1258A Military Justice258AX Review of Courts?Martial25 Further ReviewIn General -258Akl'435 Matters Peculiar to Re-view by the Court of Appeals for the Armed Forces(Formerly, the Court of Military Appeals)258Ak1435.1 k. In General. MostCited Cases(Formerly 258Ak1435)Court of Military Appeals? comment that de-fense was apparently seeking to avoid tipping ofhand at particular juncture of trial preparationamounted to passing speculation on possible de-fense motive, not definitive adjudication of defensecounsel's state of mind, and did not provide basisfor altering prior af?rmance of accused's convictionfor the assault and committing indecent acts on fe-male underage of 16; statement was made in con-text of rejecting accused's primary contention onappeal, that examinations by wereeither in fact or functional equivalent to govern-ment?ordered mental examinations and, hence, sub-ject_ to limited privilege. Military Rules of Evid.,Rule 502(a); R.C.M. 706.Military Justice 258A M1129?2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 26 M.J. 104(Cite as: 26 M.J. 104)258A Military Justice258AV Evidence and Witnesses258Akl126 Privileges258Ak1129 k. Physician?Patient. MostCited CasesMilitary Justice 258A 258A Military JusticeTrial258Ak1210 Trial258Akl210.1 k. In General. Most CitedCases(Formerly 25 8Ak1210)Statements made to government are not privileged per se; if accused demonstratesneed for to become member of defenseteam in order to assist in preparation of his defense,he must obtain one formally. R.C.M. 302, 706;UCMJ, Art. 46, 10 U.S.C.A. 846.*104 For Appellant: Lieutenant Colonel Richard E.Ouellette, USMC.For Appelleez No Appearance Filed.Opinion ofthe CourtOn Petition for ReconsiderationCOX, Judge:On December '14, 1987, we affirmed appel-lant's convictions for indecent assault and commit-ting indecent acts on a female under the age of 16years. United States v. Toledo, 25 M.J. 270(C.M.A.1987). Appellant now petitions for recon-sideration of that-decision. We grant the petition,but adhere to our earlier decision.*105 The petition is predicated on two par-ticulars. First, appellant points out that we were inerror in stating that appellate defense counsel hadnot argued that Dr. Rosete, the fellwithin theattorney-client relationship. See 25 M.J.at 276. In that regard, appellant is technically cor-rect. A review of both appellant's ?nal brief (page15, paragraph 2) and the audio recording of the ap-pellate arguments in this case con?rms our mistake,Page 2and we stand corrected.However, our decision was not based on a fail-ure to raise the issue. Thus, the fact that it was ad-dressed does not alter the result. Had the issue beenviable but not raised, we would have raised itourselves. Indeed the tenor of our opinion was thatthe attorney-client relationship, Mil.R.Evid. 502(a),Manual for Courts-Martial, United States, 1984,can be broad enough to encompass the assistance ofexperts such as 25 M.J. at 276. Ourpoint was that an accused or counsel may .notsimply annex government officials into the attor-ney-client relationship, but must obtain themthrough proper channels.We ventured so far as to assert:Had the defense requested that the Governmentprovide it a medical officer for assistance in thepreparation of its case, and had the Governmentfailed to do so, we would have concluded, underAke Oklahoma, 470 U.S. 68, 105 1087,84 L.Ed.2d 53 (1985) that appellant had beendeprived of ?[m]eaningful access to justice,? giv-en the circumstances in which appellant was dis-covered Id. at 77, 105 at 1094.25 M.J. at 276. In appellant's case, however,we deemed the tactics employed to be insufficientto achieve attorney-client status. Id.In the same vein, appellant takes issue withour comment that ?the defense was apparentlyseeking to avoid tipping its hand at this juncture oftrial preparation.? 25 M.J. at 275. As support, hecites the fact that trial defense counsel scheduledappellant's visits with Dr. Rosete through the StaffJudge Advocate l\il?aval Security Group Activity,Misawa, Japan. Again, this was not of de-cisional importance. Our statement was made in thecontext of rejecting appellant's primary contentionon appeal, which was that the Rosete examinationswere either in fact or functionally equivalent togovernment-ordered mental examinations underR.C.M. 302 and 706, Manual, supra; hence, appel-2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 26 M.J. 104 .(Cite as: 26 M.J. 104)lant's communications enjoyed a limited privilegeunder the rules. Our remark amounted to passingspeculation as to possible defense motive, not ade?nitive adjudication of counsel's state of mind.The offenses occurred at Misawa. TheArticle 32, Uniform Code of MilitaryJustice, 10 U.S.C. 832, investigation wasconducted there, and appellant was in pre-trial con?nement there. Therefore, defensecounsel's enlistment of assistance from thestaff judge advocate?s of?ce in obtainingtransportation was a matter of necessity.-The court-martial, however, was conductedsome 424 miles to the south, at Yokosuka,Japan, situs of the general court-martialconvening authority. See Official Tables ofDistance, Foreign Travel, Army Regula-tion 55?61/Navy Supply Office P-2472 Air Force Manual 177-136 at 385(September 1, 1985). Trial and defensecounsel were stationed at Yokosuka.In summary, our decision is founded uponthe fact that statements made to a government psy-chiatrist are not privileged per se. 25 M.J. at 275. Ifan accused demonstrates a need for a tobecome a member of the defense team in order_toassist in the preparation of his defense, he must doso formally. Otherwise, an accused could arbitrarilycommandeer a valuable government employeewithout appropriate considerations of availability,priority of missions, or otherwise. There is suf?-cient legal authority in Article 46, Uniform Code ofMilitary Justice, 10 U.S.C. 846, and Ake to insure_that an accused who needs help in preparing a psy-chiatric defense will get such help.We adhere to our decision of December 14,1987.Chief Judge EVERETT and Judge SULLIVANconcur.U.S. V. Toledo2013 Thomson Reuters. No Claim to Orig. US Gov. Works.26 M.J. 104END or DOCUMENTPage 3We?tl?w,.38 M.J. 8(Cite as: 38 M.J. 8)U.S. Court of Military Appeals. UNITED STATES, Appellee,v.Carl W. THARPE, Corporal Marine Corps,Appellant.No. 67,861.CMR No. 90 1082.Argued Jan. 6, 1993.Decided Sept. 27, 1993.Accused was convicted by general court-mar-tial, R.C. Stuart, J., of multiple speci?cations ofrape, sodomy, and committing indecent acts in-volving accused's minor stepdaughter. The UnitedStates Navy?Marine Corps Court of Military Re-view af?rmed. Review was granted. The.UnitedStates Court of Military Appeals, Cox, ., held that:(1) accused received effective assistance of trial de-fense counsel under all circumstances of case, des-pite counsel's failure to exploit accused's claim ofextensive abuse as child, and (2) accused failed toestablish sufficient need for appointment of con?d-ential expert to assist formulation of appeal to as-sert claim of ineffective assistance of trial defensecounsel. Affirmed.Wiss, J., filed dissenting opinion.West HeadnotesMilitary Justice 258A $31242258A Military Justice25 SAVII Trial258Ak1238 Defense Counsel258Ak1242 k. Effective Assistance of.Counsel; Multiple Representation. Most CitedCasesTrial defense counsel's failure to exploit ac-cused's claim of extensive abuse as child to obtainPage 1reduced sentence for accused's sexual abuse ofstepdaughter did not establish ineffective assistanceof counsel, in light of trial defense counsel's lack ofknowledge of claim; previous and psy-chological evaluations indicated normal childhoodand accused did not inform his counsel of makingany abusive childhood claims, although accused's?le contained three speculative items suggestingprior claims of abusive childhood. U.S.C.A.Const.Amend. 6.Military Justice 258A 258A Military Justice258AVII Trial258Ak1238 Defense Counsel258Ak1242 kl. Effective Assistance ofCounsel; Multiple Representation. Most CitedCasesAccused received effective assistance of trialdefense counsel under all circumstances, despitecounsel's failure to exploit accused's claim of ex-tensive abuse as child, even if counsel had knownof claimed abusive childhood at time of trial; ac-cused received favorable pretrial agreement skill-fully negotiated by counsel, trial strategy reason-ably focused away from accused's prior miscon-duct, and use of recent claim of abusive childhoodcould have destroyed any credibility of accused by- contradicting everything accused previously hadtold experts. U.S.C.A. Const.Amend. 6.Military Justice 258A ?13D12l0.125 8A Military Justice25 SAVII Trial25 8Ak1210 Trial258Akl2lO.l k. In General. Most CitedCasesAcquisition of expert to assist accused or de-fense counsel must be made by request through ap-propriate military chain of command; accused ordefense counsel cannot simply commandeer milit-ary employee to be private expert. R.C.M. 703(d).2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 38 M.J. 8(Cite as: 38 M.J. 8)Military Justice 258A l242258A Military Justice25 SAVII Trial258Ak1238 Defense Counsel258Akl242 k. Effective Assistance ofCounsel; Multiple Representation. Most CitedCases Fact that appellate defense counsel conceiveddifferent trial tactic from that used at trial does notmean that lawyer at trial was ineffective. U.S.C.A.Const.Amend. 6.*9 For Appellant: Lieutenant Michael C. Pallesen,JAGC, USNR (argued); Lieutenant Mary L. Living-ston, JAGC, USNR.For Appellee: Lieutenant .I.C. Foster, JAGC, US-NR (argued); Colonel T.G. Hess. USMC and Com-mander W.F. Shields, JAGC, USN (on brief); Lieu-tenant K.S. Anclerson, JAGC, USNR. Opinion ofihe CourtCOX, Judge:Appellant pleaded guilty to a list ofsordid specifications of rape sodomy, and indecentassault of his stepdaughter. His sexual attacksbegan upon her when she was 6 years old and con-tinued until she was 10. They did not cease untilappellant was assigned an overseas tour in Ok-inawa. The scope, frequency, and intensity of thisconduct is detailed in appellant's guilty plea? admis-sions and in a stipulation of fact agreed upon by ap-pellant and the Government as part of a detailedpretrial agreement. It is also pertinent to note that,during the time appellant was privately committingthese acts upon his stepdaughter, he was in the pro-cess of being charged, tried, convicted by a generalcourt?1nartial-??and treated?for indecently expos-ing himself on a number of occasions to the wivesof fellow Marines. The bad-conduct dischargeawarded as punishment in that case was suspended2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 38 MJ. 8(Cite as: 38 M.J. 8)by the convening authority as a result of a'n elabor-ate pretrial agreement.FNI. In all, appellant pleaded guilty to 11speci?cations of rape, 8 of which were al-leged as time intervals involving?numerous occasions?; 9 speci?cations ofsodomy, 6 of which alleged ?numerous oc-casions?; and 3 speci?cations of commit-ting indecent acts upon the victim, each in-volving ?numerous occasions,? in violationof Articles 120, 125, and 134, UniformCode of Military Justice, 10 USC 920,925, and 934, respectively. Tried at CampPendleton, California, appellant was foundguilty by a militaryjudge sitting alone as ageneral court-martial. He was sentenced toa dishonorable discharge, con?nement for75 years, total forfeitures, and reduction toE-1. Pursuant to a pretrial agreement, theconvening authority approved the sentenceas adjudged but suspended con?nement inexcess of 12 1/2 years and forfeitures inexcess of $1050.00 pay per month for 3years or until execution of the discharge.Because of the instant charges, appellant faceda sentence which included con?nement for life, adishonorable discharge, total forfeitures, and reduc-tion to the lowest enlisted grade. In spite of theseserious charges (each of the 11 rape speci?cationsalone carried the potential for a life sentence) andappellant's prior sex-related conviction, counsel forappellant was able to negotiate a plea bargain thatlimited any con?nement included in appellant'ssentence to 12 1/2 years.Appellant now complains that his lawyer wasineffective in that he ?failed to investigate andpresent evidence of appellant's childhood sexual ab-use and expert testimony concerning the effect thatabuse rrI}2I13{2have had on his sexual behavior as anadult.? Furthermore, he complains that *10 theCourt of Military Review erred by failing to orderthe Navy to provide a con?dential expert to assisthis appellate counsel in preparing his appeal fromPage 3this negotiated guilty plea.FN3 For the reasons setforth below, we hold that no error prejudicial to the- substantial rights of appellant was committed. Art.59(a), Uniform Code of Military Justice, 10 USC 859(a).FN2. We granted review of the followingissues:IWHETHER THE CORPS COURT OF MILITARY RE-VIEW ERRED BY FAILING TO FINDINEFFECTIVE ASSISTANCE OFCOUNSEL WHERE THE TRIAL DE-FENSE COUNSEL FAILED TO IN-AND PRESENT EVID-ENCE OF CHILD-HOOD SEXUAL ABUSE AND EX-PERT TESTIMONY CONCERNINGTHE EFFECT THAT ABUSE MAYHAVE HAD ON HIS SEXUAL BEHA-VIOR AS AN ADULT. WHETHER THE CORPS OF MILITARY RE-VIEW ERRED BY REFUSING TO IS-SUE AN ORDER OF CONFIDENTIAL- IITY TO ALLOW APPELLATE DE-FENSE COUNSEL TO FULLY IN-VESTIGATE AND PRESENT ISSUESRAISED BY THE CONFIDENTIALREPORTS OB-TAINED BY COUNSEL.FN3. Appellant on-October 10, 1990, ?leda motion before the Court of Military Re-view seeking appointment of an expert andan order of con?dentiality. The requestwas denied by order on February 22, 1991.Appellant then sought on March 14, 1991,reconsideration of the issue by the en bancCourt of Military Review. His request wasdenied on April 9, 1991. Appellant then2013 Thomson Reuters. No Claim to Orig. US Gov. Works.38 MJ. 8(_Cite as: 33 M.J. 3)sought a Writ of Mandamus from thisCourt directing the -?Court of Military Re-9view to issue an Order of Con?dentialityto Lieutenant Commander Vladimir Nacev,Medical Service Corps, U.S. Navy,to protect from discovery by the Govern-ment his appellate defense counsel's dis-closure of privileged information to thisexpert consultant.? We denied the petitionfor extraordinary relief on May 16, 1991,without prejudice to raise the issue on ap-peal. 33 MI 166.The issues on appeal are somewhat complex.To understand them, it is necessary to digress to theunderlying theory of appellant's petition to thisCourt. First of all, appellant_ claims that his trial de-fense "lawyer was ineffective in the sentencingphase of the trial because he did not investigate andexploit the theory that appellant himself may havebeen abused as a child. Appellant argues that, hadhis defense counsel done so, some such evidencewould have been available to present to the militaryjudge and would have persuaded the "judge to giveappellant a sentence to con?nement less than the 121/2 years he ultimately received.Secondly, appellant advances_the novel argu-ment that, in order for his appellate defense counsel to prepare his appeal, counsel should have availablea confidential expert, specifically Lieutenant Com-mander Nacev, a clinical who isagreeable to, provide this service, to peruse the nu- merous reports of and ex-aminations performed on appellant as a result of thepending charges in this case and arising out of thecounseling appellant received as a result of his firstgeneral court-martial. The expert would also, "ap-parently, be given some? ?privileged information"not available in the record of trial or the allied pa-pers. This con?dential expert could then advise ap- pellate defense counsel concerning the evidence,her client, and the conduct of the case. Appellatedefense counsel, in turn, would be better able to de-cipher and argue the evidence?and omissions?ofPage 4record to the Court of Military Review, and so aidits judges in reviewing the case as required by Art-icle 66, UCMJ, 10 USC 866.Adequacy of RepresentationIn United States v. Scott, 24 MI 186 (CMA1987), we applied the rules announced by theUnited States Supreme Court for testing whether anaccused received the effective assistance of coun-sel. Strickland v. Washington, 466 U.S. 668, 1042052, 80 L.Ed.2d 674 (1984). We have con-sistently applied these rules and have not hesitatedto grant an accused a rehearing under circumstancesdemonstrating a lack of effective performance bycounsel. United States v. Scott, supra,? United Statesv. Lonetree, 35 MI 396 (1992), cert. denied, 507U.S. 1017, 113 1813, 123 L.Ed.2d 444 (1993)United States v. Polk, 32 MI 150 (1991). In Pol/c,construing Strickland v. Washington, supra, we ar-ticulated a three-part analysis to resolve claims ofineffective assistance of counsel: 1. Are the allegations made by appellant true;and, if they are, is there ?a reasonable explanationfor counsel's actions in the defense of the case?2. If they are true, did the level of advocacy ?fall[measurably below the performance[ordinarily expected] of fallible lawyers??*11 3. If ineffective assistance of counsel isfound to exist, ?is there a reasonable prob-ability that, absent the errors, the factfinderwould have had" a reasonable doubt respectingguilt??Id. at 153 (citations omitted).Likewise, we have applied this test to the ques-tion whether an accused should be afforded a newsentencing hearing where counsel's lack of effectiveassistance may have resulted in a harsher sentence.United States v. Lonetree, supra.Applying this analysis to the facts presentedhere, we conclude appellant does not get beyondthe first test. It is true that trial defense counsel did2013 Thomson Reuters. No Claim to Orig. US Gov. Works.. 38 MJ. 8 (Cite as: 38 MJ. 8)not pursue appellant's claim of having been abusedextensively as a child?but then trial defense coun-sel was not even aware of this dubious claim, madeby appellant primarily to a brig counselor in Ok-inawa. Not being aware of this ?information? andgiven appellant's established pattern of misconduct,counsel's tactic ?was to focus away from all his pastattempts at therapy and to stress his few good milit-ary traits, his remorse, and his willingness to seekhelp." From our review of the record, this was anappropriate tactic under the circumstances, one thata reasonable, competent, and effective lawyerwould employ in the defense of a client. Thus, thefirst prong of the analysis is not met.In any event, failure to pursue this line of po-tential mitigation is inconsequential under the cir-cumstances. According to trial defense counsel'suncontroverted post-trial affidavit, ?CorporalTharpe was evaluated by and logists on six (6) different occasions betweenSeptember, 1986 and September, 1989, [and] neverin any of those sessions did he make any of thesame drastic claims that he made? later in Okinawa.The six reports relied upon by the defense counselindicate a normal childhood and an initial ?sexualexperience at the age? of 17. The reports containabsolutely no assertion by appellant that he hadbeen abused as a child, and in some cases _the re-ports indicate appellant's speci?c denial of havingbeen abused as a child.Further, as trial defense counsel persuasivelyargues in his affidavit, even if he had known of thecounseling statement from Okinawa, he would nothave dared used it. It so contradicted everythingelse that appellant had told the experts that the pro-secution rebuttal would have easily shattered anypossible remnant of appellant's good faith and cred-ibility.The dissenting opinion charges (38 at 27)that trial defense counsel was not aware of the ab-use ?evidence? in his own case file. It n1ust beclearly noted, however, that there is not a scrap ofsupport for this astonishing, unilateral contention. Page 5Appellate. defense counsel clearly states, on brief,that she found only three items in trial defensecounsel's case file, items which supposedly shouldhave impelled trial defense counsel to further in-vestigate the possible sexual abuse of appellant as achild. Final Brief at 8.These items include a one?sentence excerptfrom the report by Dr. Stubbs, a defense gist, which states:While [appellant] denied conscious knowledgeof any molest of his own there is strong supportboth in the interview and the testing data to for-ward the hypothesis that he was the victim ofsome significant physical, emotional, and sexualabuse.(Emphasis added.) This ?hypothesis? can onlybe characterized as speculative.The dissenting opinion, however, transformsthis ?hypothesis? fragment into a:glaring report from Dr. Stubbs that containedsuggestions that appellant had been the victim ofchild sexual 38 MJ at 27 (emphasis added).Another one-sentence excerpt from the casefile relied on by the dissent was the followinghearsay statement of appellant's wife, contained in aSan Diego social worker's report:*l2 Mrs. Th[a]rpe states that to her knowledgeMr. Th[a]rpe has a family history of sexual ab-use.The basis of this claimed knowledge is, of_course, not mentioned. The unlikelihood that Mrs.Tharpe was around to have personal knowledge ofsuch conduct is self?evident. This hearsay sentenceis best characterized as dubious.The final item appellate defense counsel re-ports having found in the case file was a2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 33 M.J. 3(Cite as: 33 M.J. 8)?Self?Description Checklist? See Appendix A. Ac-cording to appellate defense counsel, this was partof appellant's Aug. 5, 1988, evaluation for depres-sion at Naval Hospital Camp Pendleton, which wasthe fourth of seven evalu-ations recited by trial defense counsel in his af?-davit. See Appendix B. Though multiple past dis-turbances and misbehaviors have been checked offon this unsigned list sexually abused, crueltyto animals, suicidal thoughts, physically abused,depression, sexually very active, sexual problems,raped someone), trial defense counsel notes that theevaluation report itself recites that appellantstated that he was raised primarily by his grand-mother, but reported good relations with bothparents. Tharpe reported an essentially nor-mal childhood.According to trial defense counsel, this reportwas contained in appellant's medical records; andthe accuracy of trial defense counsel's descriptionof it is unchallenged by appellant.This checklist also can only be described as du-bious. First, it apparently conflicts with appellant'sstatements during that very evaluation. Second, itappears appellant had been caught fudging in simil-ar circumstances in the past. Trial defense counselnotes in his affidavit that the sanity board conduc-ted in conjunction with appellant's prior court-martial found that appellantin ?lling out all the test documents had attemptedto ?fake bad? in a conscious effortvto be seen ascrazy and so mitigate his culpability.The existence of this sanity board ?nding, asreported by trial defense counsel, also stands unre-butted here.Most obviously, as trial defense counsel wouldhave been painfully aware, appellant's credibilityand integrity were negligible, due to the fact that hehad conned the therapists into pronouncing him re-habilitated, after their extensive counseling andPage 6therapy efforts following his prior general court-martial for indecent exposure. Unbeknownst to thewell-meaning therapists, however, appellant's sexu-al exploitation of his stepdaughter escalatedthroughout the entire period of his ,?successful?therapy.The three foregoing bits?the single sentencesfrom the Stubbs' report and Mrs. Tharpe?s hearsaystatement, as well as the check1ist?were the onlyarguable indicia of abuse appellate defense counselreports ?nding in trial defense counsel's ?le. FinalBrief at 8. Also contrary to the assertion of the dis-sent, there is absolutely no suggestion that trial de-fense counsel was not ?aware? of what was in hiscase ?le or that he had not read it. Obviously theforegoing pitiful fragments amounted to nothing ascompared to the vast quantum of refutatory am-munition readily available to the Government.The ?Okinawa report? (See Appendix C), onthe other hand, was prepared June 15, 1989, in Ok-inawa, upon appellant's apprehension for sexuallyabusing his stepdaughter in California. The report isaddressed to ?Secretary of the Naval ClemencyBoard, Washington, D.C., Via: Commandant of theMarine Corps.?As implicitly acknowledged by appellate de-fense counsel, Final Brief at 2-3, this report con-tains by far the most extensive assertions of abusemade by appellant. In part, the report relates:Tharpe describes his childhood as, can tell youthings you wouldn't believe. I could write abook.? Tharpe stated he observed numerous actsof incest and sexual relationships between hu-mans and horses. He stated everybody in his-?community? were all related, describing mem-bers of his family as being interbred.*13 Tharpestated his father molested and had an ongoingsexual relationship with his sister. Tharpe did notsay he actually saw any sexual contact betweenhis father and his sister, but that his sister hadcon?ned [sic] in him, that his father had ?insertedhimself? into her. When asked if he had been2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 38 M.J. 8(Cite as: 38 M.J. 8)sexually molested, Tharpe stated, don't thinkso, I don't remember.? When asked if any sexualmisconduct had been reported, Tharpe stated,?where I come from, you don't report thesethings, it's just a way of life.? The only timeTharpe described any type of abuse involvinghimself, was when a school teacher had placedher hand down his pants to see if he had wet hispants. Tharpe indicated he was old enough to be?affected.? Tharpe also indicated he had a historyof bed wetting. Tharpe stated he had witnessedsexual contact between horses and horses and hu-mans. Tharpe stated the ?older? children forcedthe younger children to watch and also performsex. Tharpe stated he felt he was physically ab-used by the older children, as he was forced to?ght other children, made to hide behind a treewhile being shot at with a BB gun, forced to havesex with other children his own age.Particularly with respect to appellant's ownsexual activity and his relationship with his parents,these assertions stand in stark contrast with appel-lant?s statements to the This ?Okinawa? report is also what the Califor-nia-based trial defense counsel clearly deniedknowing about:At that time [6 July 1989], I speci?cally askedhim to tell me about everyone he had spoken toon "Okinawa because I was aware that he hadmade admissions to both agents of the Naval In-vestigative Service on 14 June 1989 and his wifein letters and telephonically. At no time did Cor-poral harpe ever advise me that he had spokento a counselor at the brig in Okinawa. The firsttime I was made aware of the Prisoner's Sum-mary Continuation Sheet was on 23 July 19911when Government Appellate Counsel advised meof its existence.(Emphasis added.) Trial defense counsel's posi-tion in his af?davit was that, even if he knew aboutthe Okinawa report, he would not have used it dueto appellant's credibility problem and the mass ofPage 7contradictory evidence having issued from his ownmouth. Appellant's trial was conducted on September21, 1989, at Camp Pendleton. The allied paperscontain a document entitled, ?Prisoner Assignmentand Clemency Board Action,? dated Jan. 16, 1990.Immediately following this document is a handwrit-ten ?Request for Restoration/Clemency,? also datedJan. 16, 1990, submitted by appellant. Followingthese are three ?Prisoner's Progress Summary Data?documents, the oldest of which is the ?Okinawa?report. All of the progress summaries are ad-dressed: ?Secretary of the Naval Clemency Board,Washington, D.C., Via: Commandant of the MarineCorps.? The appearance of these document in theallied papers does not indicate that trial defensecounsel, 4 months earlier at the court-martial, wasaware of the Okinawa report at the time of trial orthat it was then in his case ?le. Appellate defensecounsel do not claim to have found this documentin trial defense counsel's case ?le. Trial defensecounsel denies knowledge of the document untillong after trial, when his competence was first be-ing attacked.Under all these circumstances, includingthe favorable pretrial agreement skillfully negoti-ated by counsel, we cannot imagine a reasonableprobability that appellant would have bene?tedfrom an attempt to exploit this belated and suspectclaim of appellant. Thus, even if we were to rejectcounsel's explanation for failing to investigate thistheme, we are confident that appellant was not pre-judiced.Appellate Expert AssistanceAs previously noted, appellant seeksto bootstrap his claim of ineffective assistance oftrial defense counsel with a request that the Courtof Military Review *14 order appointment of a con-?dential expert to his appellate team to assist appel-late defense counsel in the preparation of the ap-peal. See Mil.R.Evid. 502, Manual forCourts?Martial, United States, 1984; cf UnitedStates v. Toledo, 25 MJ 270 CMA 1987), origin-2013 Thomson Reuters. No Claim to Orig. US Gov. Works.Pages38 M.J. 8(Cite as: 38 M.J. 8)al opinion adhered to on recon., 26 MJ 104 (CMA),eery, denied, 488 U.S. 889, 109 S.Ct 220, 102L.Ed.2d 211 (1988). The Court of Military Reviewdeclined.FN4. Certainly it appears from paragraph 6of the affidavit of Lieutenant CommanderNacev, which was attached to the motionfor appointment of an expert, that he was"ready, willing and able to provide the required assistance." Furthermore, his"present duties do not preclude my participation on behalf of Corporal Tharpe." Hewas "available to assist in his appellatecase." We have made it clear, however,that neither an accused nor his or her counsel may simply "commandeer" a militaryperson to be his private expert. The expertmust be made available through the medium of a request via the appropriate militarychain of command. United States v.Toledo. 25 M J 270, 276 ( CMA 1987),opinion adhered to on recon., 26 MJ 104(CMA), cert, denied, 488 U.S. 889, 109S.Ct 220, 102 L.Ed.2d 211 (1988)."Otherwise, an accused could arbitrarilycommandeer a valuable government employee without appropriate considerationsof availability, priority of missions, or otherwise." 26 MJ at 105. ^ee RCM 703(d),Manual for Couits-Marfial, United States,1984.For the very same reasons that a militaryaccused or defense counsel cannot commandeera governmentemployeewithout an appropriate decision beingmade through the appropriate chains ofcommand, a military judge or an appellate court ordinarily should not reach outand designate a particular person as anexpert witness in a case. But cf. UnitedStates V. True, 28 MJ 1 (CMA 1989). Itis clear, however, that military judgeshave the power to ensure that expertswill, in appropriate cases, be provided.But only in an extraordinary case wouldthe military judge (or appellate court) order that a particular expert be appointed.United States v. Carries, 22 MJ288(CMA), cert denied. 479 U.S. 985,107 S.Ct 575, 93 L.Ed.2d 578 (1986);United States v. True. 28 MJ 1057(NMCMR 1989). Judicial abatement ofthe proceedings until command authorities make an adequate expert available isusually an equally effective remedy.UnitedStates v. True, 28 MJ at 4.As we have acknowledged, "It is well established that, upon a proper showing of necessity, anaccused is entitled to the assistance of an expert toaid in the preparation of his defense." United StatesV. Burnette, 29 MJ 473, 475(CMA), cert denied,498 U.S. 821, 111 S.Ct 70, 112 L.Ed.2d 43 (1990);see Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087,84 L.Ed.2d 53 (1985); United States v. Van Horn,26 MJ 434 (CMA 1988). We have not limited expert assistance to the trial of a case. Experts have'also been made available to assist counsel in preparing an appropriate appeal. United States v,Curtis. 31 MJ 395 (Daily Journal CMA 1990).Regarding appellant's showing of necessity, hecites three areas in which he hopes the expert wouldbe of assistance in establishing the inadequacy ofhis trial representation. First, appellant hopes tobolster his contention that trial defense counsel'srepresentation was inadequate in failing to presentevidence, in mitigation of sentence, which suggested that appellant was a victim of child sexual abuse. In that regard, appellant asserts, the expertcould review in confidence the as-yet-privilegedportions of the psychiatric and psychological testsand reports currently in defense hands. Thus armed,the expert could suggestwhat evidence of appellant's history of abusewhich was available to trial defense counselshould have been presented, what impact appellant's own abuse played on the offenses for which12013 Thomson Reuters. No Claim to Orig. US Gov. Works.Page938MJ8(Citeas:38M.J.8)appellant was charged and convicted,what questions should have been asked of thegovernmentexpert, and what possible impact this evidencemight have had on the trier of facLFinal Brief at 12.Inaddition,appellantwantstheexpert to be able to interview him in confidence.Second, appellant asserts that trial defensecounsel may have been inadequate in failing toinvestigate and present an issue regarding appellant'smental responsibility.Appellant argues thataquestion of mental responsibility,hence presumably trialdefense counsel'sinadequacyinfailingtopresssame, arose from the testimony of a ^"15 govemment expert on sentencing that child sexual abusers'behavior is "something they don't have controlover."The expert described it as an "addiction."Final Brief at 12. [Thoughwe disagree that this particular testimony implicatedthedefenseof mentalresponsibility,.:^eeRCM916(k)(l), Manual,,^^^r^,wewillconstmethegistof appellant'scontentiontobethattrialdefensecounsel'sperformance wassuhpar in failing generally to investigate or raisemental responsibility asadefense.][6] Appellate counsel's third contention turnsout to he a mere reassertion of the first contention—that trial defense counsel's failure "to fullydevelop the issue of theimpact of appellant's ownvictimization on the present offense" had an adverse impact on"scntcnce appropriateness." FinalBriefat 13. Based on these attempted justifications,wemustagree with theCourtofMilitaryReviewthat the need foraconfidential expert is not established.The issue before usis not whether theieis,ormay he developed, some new opinion evidence thatappellant wasactually abused asachild orlackedmental responsibility. The question is whether trialdefense counsel madeavalid tactical decision, giventheinformationandoptionsavailahle.Trialdefense counsel's decision is not rebutted hy dredgingup some new evidence supporting appellant's he-lated contention.This is notanew trial on the merits smuggled intothe appellate process.New trialsare governedby RCM 1210. ,^ee y7i7^7e^^y^ye.^^ v.7^^r^er,36MJ 269 (CMA 1993).Inquiries into appellant's mental condition are governed hy RCM706The circumstances of this case are very different from those in T'^ye^^, where defenseoounsel,prior to trial,gotamilitary psychologist to agree tomake a confidential assessment of the accused'smental status before the defense decided whether torequestaformalinquiry into the accused'smentalstatus.^eeRCM 706. Basedontheresultsofthatspot check, thedefenseelectedto forgo theRCM706inquiry,and they did not presentamental responsibility defense.Later, at trial,Toledo propoundedarather elaborate testimonial explanationof the events ontheevening in question, testimony which he hopedwould persuade the factfinder to acquit him. In rebuttal,the Govemment called tothe stand the psychologist who had previously examined the accused.Uponcourtorder,the witness related,y^yer^y^i^, certain statei^ents made by appellant to thepsychologist that seemed to contradict appellant'strial account of the events onthe evening inquestion. Toledo did not, at trial, argue that the psycholegist's services fell within the attomey client privilege, and we did not deem them such under the circumstances.25 M J a t 276.Had the accused assertcdaneedforexpertassistancetopreparefortheeourt-martia^^owever, we indicated we wouldhave agreed.FN5. Asinfederallaw, thereisnophysicianpatient or psychotherapistpatientprivilege in the military. However,Mil.R.Evid. 502 Manual, .^^^r^, provides:Aclienthasaprivilege to refuse to disclose and to prevent any other personfrom disclosing confidential communications ^^^e^ryy^e^^^t^,^ei^^e^7^7^y^7^^yy^e re^^yyyt^^ t:^^r^,^,^^7^^^y ye^^y .^er-12013 Thomson Reuters. No Claim to Orig. us Gov. Works.Page 1038M.J.8(Citeas:38M.J.8)vyee.^y^yy^eey^e^y,(l)between the clientor the ey^e^y^.^ re^re.^e^y^y^'ve and thelawyerorthey^w)^er^,^re^re,^e^y^yive,(2)between the lawyer and the y^iiB)Ber^,^re^re.^e^y^y^ve, (3)by the client or the client's lawyer toalawyer representing another inatnatter of common interest, (4)between re^re.^e^y^^^ve.^ ^yy^e e^^e^y orbetweenthe client andare^re,^e^y^y^ve^yy^eeyye^y,or(5) between lawyers representing the clienL(Emphasis added.)"A ^representative' of a lawyer is[defined asjaperson employed by or assigned to assist a lawyer in providingprofessional legal serviccs."Mil,R.Evid.502(b)(3)Nodefinitionof"representative of the client" isprovided. However, given an adequateshowing of need,we have indicated thata psychotherapist would seem to fitwithin this rule.^ntyye^.^y^ye.^v.T'^ye^^,25MJat 276 and26MJat105Here, incontrast, the formal evidentiary phaseofthe court martial has passed. Appellate defensecounsels'mission is to show that trial defense counsel's election of strategy was deficientYet trial defense '"16 counsel's assertionthatappellant'sownstatements precluded this belated mitigation theorystands unrehutted.The professionalopinions of anexpert directly(or,indirectly,through the argumentof counsel) on the quality of trial representation oron other approaches that might have been taken arenot presently germane. Thus, the Court of MilitaryRevicwcanhardlyhave erred in failing to appointDr. Nacev asaconfidential advisor to pursue thosematters. Moreover, it is clear what trial defensecounsel did or did not do.The Court ofMilitary Re-view did not need expert opinion to tell them that[7] Notwithstanding the Court ofMilitary Review'srefusaltoappointaconfidentialadvisor, appellatedefense counsel haslaunched an impressive attackon trial defense counseLIt is unclear whether appellate counsel availed themselves of the nonconfidential advice of Lieutenant CommanderNacev in formulating their appellate argumenL It isclear, however, as noted earlier, that the tactics employcdby thetrial lawyer werewellwithinthoserecognizedas acceptable inthe legalcommunity.The factthat appellate defense counselhavenowconceivedadifferent trial tactic from the one usedat trial does not mean that the lawyer at trial was ineffective ^^^ye^^y^ye.^ IB TO^C^^e, 21 MJ 440(CMA),e^ry^e^^e^,479 US 826,107 SCt101,93LEd2d 52 (1986)We are satisfied that theCourtofMilitaryReviewhad ample information to decide whether the findings and sentence in this case were correct in factandlaw. Art 66. Wehave carefully reviewedtheentire record of trial and the allied papers, includingthe affidavit of appellant's trial defense counsel,andwc conclude that appellantwas not denied effective assistance of counsel at triaL In addition,even though the appropriateness of an order of"confidentiality" has not heen shown,we are satisfied that the lack of such protection did not hinderthe legitimate preparation ofthis appeaLThe decision of the United States Navy-MarineCorps Court ofMilitary Review is affirmed.Chief Judge SULEIVAN and Judges CRAWFORDand GIERI^E concur.'"17APPENDIXA12013 ThomsonReuters. No Claim to Orig. us Gov. Works.Page 1138 M.J. 8(Cite as: 38 M.J. 8)IX SELF-DFSCRIPTIOM CHFCKLIST: CHECK ALL ITEMS THAT DESCRIBE YOUIn the PAST (ijiildhood and adolescence) and PRESENT (adulthood & recently):PAST PRF5FNTL d f TBFpWFTTINRPAST PRESENTL J I lWFir?HTPR0f?[Fn5 igss? oain?ICRUFITYTOANIMAISl ^ l 151 FFP WAI KINr,L n f TNA1I miTINRfISTFAJ THINr,SII 15UICIUA1. TH.-)Ur,HT!>[ P f I iPHYSirAHYfrpufyPpL J r AfANt;RYOin-RIIR'=iTSL J I ^IhLlURFD 50MF0NFi df l5FXUAI.tYABLI5rDL J f 15UICIDF AnmPTL L i f l i f INANCIAI PROBLEMSI l - f I MIWORK TOO HARPL k T (Kft 055 OF INTFRF'^TL J t KONFRL J f iGmBirpL J J Moon !=;v/iNn5L J WFIGHTINGL J r lC0ttFrTV,TAP0N5L J I IVANDAI I7F PROPFRTYL J I TAi rOHOI PRORIFMSL J f TvFHiri F ArnnFfjTsLJ/LJmiLLaI'^SlFFPDlFFiruiTIFSfkiPEPRFSSIONL J {•TANXIFTY WORRYf IPUT THINGS OFFf 1TAKFRI5K5[' lAFRAin OF PFOPI FI llESSSFXIJAI INTFRF5Tf MhFATHINTHF FAMIIYI I6EENRAPFPf IDFATHOF AFRIFNPL lI iBIfffFEiMINS1PURGING bv vnmltlnip ar laxativesfi4C^TRUST PEOPLEUl^-T^ONFLICT WITH AUTHORITYLlf'TOTH^RSCAUSFMF PROBLEMSUf'.^IFFICULTY MAKING DECISIONSUMlpRITABI F: EASILY ANGEREDLAf ^IFFICIJl TY FXPRF55ING FEELINGSUf IDIFFICUI TY FOI tOWING ORDERSLlI )5[N5ITIYEMLMmII ^ R Y FREQUENTLYL J J kJHERS DON'T TRUST MF\ i r fu^XFRAIDOFlOSlNG CONTROl!l4^;4gAYDREAM FREQUENTLYL l ^ l ^ m f t V i VERY ACTIVEL T f i^S'MUAL PROBLEMSL J f MYDRFAM5 COMETRUFL J .1 1DRU5U5EL f f^EADACHESL_ ^ IBACKPA'NSL J f INERVOUS STOMACHL J f IFATIGUE or CONSTANT TIRFDNF55L J V ICHEST PAINSL J r INFCKPAINL J r ISHORTNFSS of BRFATH or ASTHMAL J f lNAi)5EA ana/or vpniTiNSLJLJLJLJLkfLJLJLJ1 iMISrARRIAGFJ_J mumJ_J f 1ABORT IONLJLJLJLJLJLJL LLJThe B r a i n T r u s t . L t d . 'Mark. 1/Mod. 4/Aug. 87L J ^ l llPSSPF APPETITF\ t ^ l F F i r u i TY rONCFNTRATINGI IHOMOSEXUAL ACTSf TTHOUGHTS NOT YOUR OWNf 15FF THINGS OTHERS DONTI IHEAR VOICES OTHERS PQNT1 IFFFL PICKED ON nrPFRSFgjTEDr 1PREMFN5TRUAI SYNDROMEMRAPED SOnEPNEPage *6*18 APPENDIX B12013 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 1238 M.J. 8(Cite as: 38 M.J. 8)I N THE U N I T E D STATESV A V T - H A B I N E CORPS COURT OF M I L I T A R YU N I T E D 'C a r l W.S T A T E S .AppeileeTHARPE(bCorporal(E-4))U. 5. M a r i n e Corps,Appe11 an t(6)REVIEWAFFADAVITOFMICHAEL J . KEEGANCAPTAIN. U. S. MARINE CORPS3, C a p t a i n M j c h a e l J. Xeegan. U. S. M a r i n e Corps, s t a t e t h a t thef o l 1 o w i n g f a c t s a r e t r u e t o t h e b e s t o f my knowledge and b e l i e f :I f i r s t met C o r p o r a l Tharpe on 6 J u l y 1989, when I i n t e r v i e w e d h i ma t t h e b r i g aboard Camp P e n d l e t o n , C a l i f o r n i a .At t h a t t i m e , Is p e c i f i c a l l y asked h i m t o t e l l me a b o u t e v e r y o n e he had spoken t o onOkinawa because I was aware t h a t he had made a d m i s s i o n s t o b o t h a g e n t sof t h e Naval I n v e s t i g a t i v e S e r v i c e on 14 June 1989 and h i s w i f e i nl e t t e r s and t e l e p h o n i c a l l y . At no t i m e d i d C o r p o r a l Tharpe ever a d v i s eme t h a t he had spoken t o a c o u n s e l o r a t t h e b r i g i n Okinawa. The f i r s tt i m e I was made aware of the P r i s o n e r ' s Summary C o n t i n u a t i o n Sheetc o n t a i n e d i n A p p e l l a n t ' s A s s i g n m e n t of E r r o r was on 23 J u l y 1991 whenGovernment A p p e l l a t e Counsel a d v i s e d me of i t s e x i s t e n c e .Even i f I had known of t h i s i n f o r m a t i o n . I would n o t have used i ta t t r i a l because i t w o u l d have been q u i c k l y. easily discreditedby t h e government and used as a g g r a v a t i o n a^s i C o r p o r a 1 Tharpe.C o r p o r a l t h a r p e was e v a l u a t e d by p s y c h i a t r i s t s and p s y c h o l o g i s t s onsix(6) d i f f e r e n t o c c a s i o n s between September, 19BG and September,1989, n e v e r i n any o f t h o s e s e s s i o n s d i d he make any of the samed r a s t i c c l a i m s t h a t he made i n t h e P r i s o n e r ' s Summary C o n t i n u a t i o nS h e e t . To b r i e f l y summarize h i s s t a t e m e n t s r e g a r d i n g h i s y o u t h andsexual experience i n those sessions:1) 6 September 1986, c o u n s e l e d by Dr. Faye G i r s c h ,c l i n i c a l and f o r e n s i c p s y c h o l o g i s t , c i v i l i a n , a t t h e b e h e s tof t h e d e f e n s e p r i o r t o C p l . Tharpe'K f i r s t c o u r t - m a r t i a l .D u r i n g t h i s s e s s i o n , Cpl Tharpe s t a t e d t h a t he was e s s e n t i a l l yr a i s e d by h i s g r a n d m o t h e r and was ' s p o i l e d ' as « c h i l d . Hef u r t h e r s t a t e d t h a t h i s f i r s t s e x u a l e x p e r i e n c e was a t age 17,with a g i r l f r i e n d .These documents were used by t h e defense t oo b t a i n clemency and so were a v a i l a b l e t o the government.2) B September 1986, s e l f - r e f e r r a l t o USNH CampP e n d l e t o n f o r d e p r e s s i o n o v e r p e n d i n g c o u r t - m a r t i a l . Cpl Tharpes t a t e d t h a t h i s . p a r e n t s had been d i v o r c e d s i n c e h i s b i r t h . CplTharpe a l s o s t a t e d he was u p s e t because someone bad 'accusedh i m of mo1es t i ng h i s d a u g h t e r 2 months ago b u t t h a t an examfailed to substantiate that allegation.*(Cpl Tharpe pleaded 'g u i l t y t o m o l e s t i n g Honeye W a l c o t t b e g i n n i n g i n June 1985)T h i s r e p o r t was i n Cpl T h a r p e ' s m e d i c a l r e c o r d ."19© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 1338 M.J. 8(Cite as: 38 M.J. 8)3) 24 Seplember 1986, R.C.M. TOG e x a m i n a t i o n c o n d u c t e din c o n j u n c t i o n w i t h the c o u r t - m a r t i a l .C p l Tharpe s t a t e d t h a th i s ' p a r e n t s were n e v e r m a r r i e d and t h a t he was r a i s e d by h i sgrandmother. Although n o t i n t h e r e p o r t , i n the d o c t o r ' s notesi t says C p l Tharpe s t a t e d t h a t when he was t e n he knew o f o rsaw an i n c i d e n t i n w h i c h some c o u s i n s r a p e d an a u n t and h e rd a u g h t e r s . C p l Tharpe w e n t on t o s t a t e t h a t h i s f i r s t e x p e r i e n c ew i t h sex was when he was between t h e ages o f I T and 18, w i t ha girlfriend.The d o c t o r ' s n o t e s a l s o i n d i c a t e t h a t C p l T h a r p ei n f i l l i n g o u t a l l t h e t e s t documents h a d a t t e m p t e d t o ' f a k ebad' i n a cone i ous e f f o r t t o be seen as c r a z y and so m i t i g a t eh i s c u l p a b i l i t y . T h i s r e p o r t was used i n C p l Tharpe's f i r s ttrial.4) 5 August 1988. s e l f - r e f e r r a l t o USNH Camp P e n d l e t o nfor depression.Cpl T h a r p e s t a t e d t h a t he was r a i s e dp r i m a r i l y by h i s g r a n d m o t h e r , b u t r e p o r t e d good r e l a t i o n s w i t hb o t h p a r e n t s . Cpl T h a r p e r e p o r t e d an e s s e n t i a l l y normalchildhood.T h i s r e p o r t was i n Cpl T h a r p e ' s m e d i c a l r e c o r d .5) D u r i n g a l l o f 1987 and p a r t o f 1989, Cpl Tharpe wasa t t e n d i n g c o u n s e l i n g s e s s i o n s w i t h t h e F a m i l y Advocacy p r o g r a ma t Camp P e n d l e t o n , i n c o m p l i a n c e w i t h h i s agreement f r o m h i sf i r s t c o u r t - m a r t i a l . D u r i n g t h i s t i m e , he was c o n t i n u i n g t om o l e s t h i s s t e p - d a u g h t e r and never a c k n o w l e d g e d i t o r s o u g h th e l p f r o m h i s c o u n s e l o r s . The c o u n s e l o r s were a v a i l a b l e t ot e s t i f y . C p l Tharpe a l s o never r e l a t e d t o them a n y t h i n gremarkable about h i s p a s t .6)18 and 20 J u l y 1989. R.C.M. TOS e x a m i n a t i o n . C p lTharpe s t a t e d he was r a i s e d by h i s g r a n d m o t h e r , was a goods t u d e n t i n s c h o o l , a f r a i d o f h i s f a t h e r , had m i n i m a l c o n t a c t sw i t h h i s m o t h e r , d e n i e d any s e x u a l r e l a t i o n s h i p s d u r i n g h i sdevelopmental years, s t a t e d that h i s f i r s t s e x i i ! r j l a t i o n s h i pwas w i t h a g i r l f r i e n d a t age I T . T h i s r e p o r t woulu have beena v a i l a b l e f o r use by t h e government p u r s u a n t t o MRE 302 h a d Ia t t e m p t e d t o use t h e r e p o r t f r o m Okinawa.Tl18 September 1989. C p l Tharpe i s examined by Dr.B r u c e S t u b b s . Cpl T h a r p e d e n i e d he had e v e r been abused as ac h i l d , s t a t e d t h a t he h a d engaged i n m u t u a l f o n d l i n g w i t h g i r l sh i s own age d u r i n g h i s y o u t h , and t h a t h i s f i r s t r e a l s e x u a le x p e r i e n c e was w i t h a g i r l f r i e n d a t age I T . I f Dr. S t u b b s hadbeen c a l l e d t o t e s t i f y , he would have s t a t e d under c r o s s e x a m i n a t i o n t h a t C p l T h a r p e was n o t amenable t o t h e r a p y a n dt h a t c o n f i n e m e n t was n e c e s s a r y t o p r e v e n t h i m f r o m c o n t i n u i n gto molest c h i l d r e n .The r e c o r d s o f a l l t h e s e c o u n s e l l i n g s e s s i o n s , c o p i e s o f w h i c h werep r o v i d e d t o A p p e l l a t e D e f e n s e Counsel i n September 1990. c l e a r l yi n d i c a t e t h a t C p l T h a r p e ' s c r e d i b i l i t y and v e r a c i t y i s s u s p e c t .Morei m p o r t a n t l y , a s s u m i n g , a r g u e n d o t h a t I had known about t h e s t a t e m e n t st o t h e c o u n s e l o r on Okinawa, I would n o t have used them as some t y p e o fm i t i g a t i o n . T h a t would have opened t h e door f o r t h e p r o s e c u t i o n t ouse a l l o f h i s o t h e r s t a t e m e n t s w h i c h , t a k e n a l l t o g e t h e r , w o u l d haven e g a t e d any r e h a b i l i t a t i o n p o t e n t i a l we m i g h t have o t h e r w i s e been a b l et o show. I n my j u d g e m e n t , t h e b e s t course o f a c t i o n a t t h a t t i m e was*20© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 1438M.J.8(Citeas:38M.J.8)t o f o c u s away f r o m a l l h i s p a s t a t t e m p t s a t t h e r a p y and t o s t r e s s h i sf e w good m i l i t a r y t r a i t s ^ h i s remorse a n d . ^ i s . w i l l i n g n e s s t o s^ek h e l p .t^ITHESS t h e f o l l o w i n g s i g n a t u r e t h i s 3 1 s t day o f J u l y , 1991,I ^ i t h t h e U n i t e d S t a t e s ArmedAt q u a n t i c o , V i r g i n i aForcesI , M a j o r Ronald t . R o d g e r s , t h e u n d e r s i g n e d o f f i c e r , do h e r e b yc e r t i f y t h a t on t h i s 3 1 s t day o f J u l y , 1991, b e f o r e me, p e r s o n a l l ya p p e a r e d C a p t a i n M i c h a e l J . l^eegan, USMC, 016508^2^, whose homea d d r e s s i s q u a r t e r s e44258, MCCDC, q u a n t i c o , V i r g i n i a 22134, and whoi s known t o me t o be a C a p t a i n i n t h e U. S. Marine C o r p s , and t o bet h e i d e n t i c a l p e r s o n who i s d e s c r i b e d i n . whose name i s s u s c r i b e d t o ,and who s i g n e d and e x e c u t e d t h e f o r e g o i n g a f f a d a v i t .1 do f u r t h e rc e r t i f y t h a t I am a t t h e d a t e o f t h i s c e r t i f i c a t e a c o m m i s s i o n e do f f i c e r o f t h e g r a d e , b r a n c h o f s e r v i c e , and o r g a n i z a t i o n s t a t e d b e l o wi n t h e a c t i v e s e r v i c e o f t h e U n i t e d S t a t e s Armed F o r c e s , t h a t bys t a t u t e no s e a l i s r e q u i r e d on t h i s c e r t i f i c a t e , and t h a t t h e same i se x e c u t e d i n my c a p a c i t y as a judge a d v o c a t e under a u t h o r i t y g r a n t e d t ome by A r t i c l e 13G, UCMJ,B^^^^^'^^^^^^Ronald t . Rodgers1T4 48 2198, M a j o r . USMCOSJA, MCCDC, q u a n t i c o , VA,'^21APPENDIXC©2013 ThdmsonReuters. No Claim to Orig. US Gov. Works.Page 1538 M.J. 8(Cite as: 38 M.J. 8)0111PRISONER'S SUMMARY CONTINUATION SHEETI B AOHISSIOM SUHHtBT•r . l . t . t o569061)PII06RCSS SUWOBYDlPklTwINTJFB,Camp Hansen,1*51MOMI-rtRSIMAMCFPO S c a t c l e ,MIOOIIWashingtono rM I L 1 ' * * TSCavlCCUSMC93773-50)3tlllllAl(b)(6)T h a r p e , C a r i W.b.P r i s o n e r ' s V e r s i o n ( c o n ' t ) : s t a t e d he was f u l l y aware o f h i s r i g h t s , c i t i n g hrneeded t o t a I k , b u t d i d n o t v a n t t o t a l k about a n y t h i n g t h a t w o u l d compound h i s c u r r e n tcharges.Tharpe a d m i t t e d t o h a v i n g * 3 y e a r , o n g o i n g , sexual r e l a t i o n s h i p w i t h h i sstepdaughter.T h a r p e i n d i c a t e d she knew him b e t t e r t h a n h i s w i f e .or anyone e l s e .TharpeTharpe s t a t e d hes t a t e d she i s a " f o x " and more ma t u r e , i n many ways, t h a n her a g e .pcuor n h y < . i r » i l y h u T t h i s s I e p d a j g h t e r .He denied h a v i n g any s e x u a l r e l a t i o n s h i p w i t hhisstepson.2.PRIOR OFFENSEa.Civil:None s t a t e d .(SV)b.Hi 1 i t a r y :I n November 1979, Tharpe r e c e i v e d h i s I s t A r t i c l e 15 f o r v i o l a t i o n ofA r t i c l e 1 1 3 , s l e e p i n g on p o s t .He was awarded f o r f l e t u r e o f $ 7 5 . 0 0 f o r 2 months.InO c t o b e r 1960, he r e c e i v e d h i s 2nd A r t i c l e 15 f o r v i o l a t i o n o f A r t i c l e 8 6 , u n a u t h o r i z e da b s e n c e , i n w h i c h he vas l a t e f c r d u t y . He was awarded a f o r f e i t u r e o f $150.00 f o r 1mon'th.I n N c v c r b c r 1986, T h a r p e r e c e i v e d a General C o u r t - M a r t i a l c o n v i c t i o n f o r v i o l a i i oc f A r t i c l e ] 3 6 (5 s p e c i f i c a t i o n s ) , indecent exposure.he was sentenced t o c o n f i n e m e n t ah a r d l a b o r f o r 6 m o n t h s , re-luced t o E - l , f o r f e i t u r e o f $600.00 x 5 months, and a BCD.Convening. A u t h o r i t y ' s A c t i o , , d a t e d 870220, the sentence i s approved a n d , except f o r thep a r t o f the s e n t e n c e ex t enc i ng i j a bad-conduct d i s c h a r g e , w i l l be e x e c u t e d , but thee x e c u t i o n of t h a t p a r t o f t nt sencence e x t e n d i n g t o a bad-conduct d i s c h a r g e and c o n f i n e ment i n e x c e s s o f 120 days i s suspended f o r a p e r i o d o f 16 months;f o r f e i t u r e s i n excessof $100 per month f c r 6 moths and r e d u c t i o n i n grade below E-3 and a u t o m a t i c r e d u c c i o nto E - l . JS suspended f o r 12 rr.onth. problems, f e e l i n g t h a t he c o u l d n o t do t h e Corps anye.F r t s c n i S i t u a t i o n and A d j u s t m e n t :Tharpe i s c u r r e n t l y b i l l e t e d w i t h i n s e g r e g a t i oon rraxjrr.urr. C u s t o d y , due t c t h e s e r i o u s n e s s o f t h e o f f e n s e and b e i n g s u i c i d a l .Tharpea d m i t s t o h i s a I I edged c or, f i n i ng o f f e n s e , c i t i n g he i s g l a d he has been caught and i tIS a l l over.He does n o t h e l d any resentment toward h i s command o r t h e m i l i t a r y f o rhis present c i r c u m s t a n c e s .He open I y s t a t e s he i s unsure o f h i s own s t a b i l i t y and t h a ts u i c i d e i s a de I i n i t e p o s s i b i l i t y at t h i s p o i n t .He s t a t e s i f he has h u r t h i s daughterand cannot be o f any f i n a n c i a l h e l p t o h i s f a m i l y , he would end h i s p a i n . Tharpe d i d noti n d i c a t e he had any immediate problems t o be t a k e n care o f , a l t h o u g h he was v e r y concerneabout how h i s s t e p d a u g h t e r was g o i n g t o h a n d l e h i s i n c a r c e r a t i o n .EVALUATION AND PLANS'INCaI m p r e s s i o n Based on P e r s o n a l H i s t o r y :Tharpe appears t o be a v e r y u n s t a b l e ,immature, and i r r e s p o n s i b l e i n d i v i d u a l o f below average I n t e l l i g e n c e .His past h i s t o r ydoes n o t r e v e a l t h a t he I s v i o l e n t or criminal ly d e v i e n t , but he was c o n s t a n t l y s u b j e c tto i n c est and s e x u a l misconduct t h r o u g h o u t h i s c h i l d h o o d , t h a t i s n o t normal o r acceptedin todays s o c i e t y .Tharpe f e e l s t h^t he i s " j u s t l i k e my f a t h e r . " He a d m i t s t o b e i n ga srick i n d i v i d u a l who needs h e l p .I t appears t h a t Tharpe i s v e r y much I n l o v e w i t h h i sSI e p d a u g h t c r , w h i c h i s e v i d e n t by the «. ay he t a l k s about h e r and c o n s t a n t l y r e l a t e s backtc- her when hc t a l k s .That pt- vas p o M i e , c o o p e r a t i v e , and r e s p e c t f u l d u r i n g t h i s i n t e r view.Content w o u l d u s u a ) I v g e t back t o h i s s t e p d a u g h t e r or h i s f a m i l y d u r i n g c h i l d h o o d ,f f e c i ranged f r o m i n d i f f e r r n c t t o r a g e . T h a r p e , a t t i m e s , would c r y and shake, whena l k i n g about h i s c h i l d h o c - d ant] h i s d a u g h t e r .Tharpe appears t o be v e r y c o n c e r n e d , i f:.'t j e a l o u s , when t a l k i n g about h i s s t e p d a u g h t e r .Tharpe appeared t o be i n an i n d i f f e r e nTi-.od, which he does not c a r e about what w i l l happen t o him.He would be t a l k i n g aboutDD, :r.,1478S / K oio?-i.f-f»i-<7ei:*24© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 1838 M.J. 8(Cite as: 38 M.J. 8)0«T[PRISONER'S SUMMARY CONTINUATION SHEET[BtWISSIOR SUMMARYfOt..MTw[N1 o r W I L I I . I Vt m i l k&MC'Ml 0 0 1 [or wACii690615Camp Hansen. FPO Seattle. Washington 98773M

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