U.S. Court of Appeals for the Armed Forces | Decided February 2, 2026

What Happened

The Navy court-martialed Aviation Structural Mechanic First Class Salvador Jacinto for sexually abusing his minor stepdaughter, E.B. A panel convicted him of rape of a child and three specifications of sexual abuse of a child, sentencing him to a bad-conduct discharge and eight years of confinement.

The case turned on a dramatic pre-trial discovery failure: the prosecution disclosed E.B.’s mental health records to the defense only on the eve of trial — records that defense counsel immediately called a “bombshell.” Those records showed that after E.B. accused Jacinto of abuse, a hospital admitted her for in-patient psychiatric treatment and a physician prescribed Thorazine, an antipsychotic medication. The defense argued this information directly attacked E.B.’s credibility, her memory, and her ability to accurately perceive events.

Despite that late disclosure, the military judge denied a continuance and the case proceeded to trial.

The Prolonged Appellate Fight (2018–2026)

This case traveled through courts for nearly eight years across six separate appellate decisions:

• Jacinto I & II (2020–2021): CAAF found the record incomplete and remanded for factfinding on whether E.B.’s physician actually diagnosed her with psychotic agitation.
• Jacinto III (2024): The lower court found the military judge abused his discretion in denying the continuance — but then held the error caused no prejudice.
• Jacinto IV–VI (2024–2025): CAAF ordered an affidavit from E.B.’s treating psychiatrist, Dr. Harwant Gill. When his affidavit proved “unresponsive,” CAAF remanded yet again.
• Final DuBay Hearing (2025): Dr. Gill testified that E.B. never exhibited psychotic agitation, never received Thorazine (the prescription was standard admissions protocol for all patients her age), and denied experiencing hallucinations or delusions.
• Final Decision (Feb. 2, 2026): CAAF affirmed the conviction.

The Core Legal Issues

1. Did the Military Judge Abuse His Discretion by Denying the Continuance?

Yes — all parties agreed the denial was error. The prosecution disclosed critical mental health records on the eve of trial, and the defense never had adequate time to investigate them. Every court that examined this question found the denial constituted an abuse of discretion.

2. Did That Error Prejudice Jacinto?

No — CAAF held the error harmless. Because Dr. Gill ultimately established that E.B. never suffered psychotic agitation and never received Thorazine, the records did not contain the exculpatory evidence the defense hoped to use. A continuance would not have given the defense any materially different ammunition. Under Article 59(a), UCMJ, courts grant relief only when an error “materially prejudices the substantial rights of the accused” — and CAAF found that bar unmet.

3. Did the DuBay Judge Violate Jacinto’s Right to Confront Dr. Gill?

The DuBay judge allowed only the judge himself to question Dr. Gill and shut the defense out entirely. CAAF acknowledged its own precedent requires cross-examination at DuBay hearings as a matter of due process (citing United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997) and United States v. Levite, 25 M.J. 334). Nevertheless, CAAF held any Confrontation Clause violation was harmless beyond a reasonable doubt for three reasons:

• The defense’s proposed questions would not have produced evidence about E.B.’s mental state before her hospitalization.
• Dr. Gill already acknowledged his testimony rested on medical records, not personal memory — making cross-examination on memory limits redundant.
• The DuBay judge already knew about an ex parte communication because Dr. Gill had emailed him directly about E.B.’s counsel attempting to dissuade him from testifying.

4. Did the Lower Court Comply with CAAF’s Remand Orders?

Yes. CAAF held the CCA and DuBay judge answered both remanded questions — why Thorazine was prescribed and whether E.B. exhibited psychotic agitation — and declared the compliance issue moot once the factual record closed.

Key Takeaways for Military Accused

This case raises several critical issues that defense counsel must understand:

Late Discovery Is Reversible Error — But You Must Prove Harm. The prosecution’s late disclosure of mental health records was wrong, and courts said so. But Jacinto could not win relief because the underlying records ultimately failed to support his theory. Counsel must aggressively pursue the substance of late-disclosed evidence, not just the procedural violation.

Mental Health Records of Accusers Can Devastate Credibility. Evidence of psychotic agitation, hallucinations, or antipsychotic medication directly attacks a witness’s ability to accurately perceive and recall events. Courts take these records seriously enough to order multiple DuBay hearings here. Defense counsel must file for in camera review under Military Rule of Evidence 513 early and persistently.

DuBay Hearings Require Full Due Process. CAAF explicitly reaffirmed that DuBay hearings must afford accused servicemembers notice, the right to be heard, and the right to cross-examine witnesses. Defense counsel must object loudly and preserve the record when DuBay judges restrict cross-examination.

The Confrontation Clause Applies Even Post-Trial. Jacinto raised a real Confrontation Clause violation. CAAF found it harmless — but the same fact pattern with a different underlying record could change the outcome entirely.

How Phil Cave and Nathan Freeburg Can Help

Cases like Jacinto demand experienced military defense counsel who understand the intersection of discovery law, psychiatric evidence, and appellate procedure. Phil Cave and Nathan Freeburg at CAAFlog / Cave & Freeburg represent servicemembers at exactly these pressure points.

Late Discovery and Brady/Giglio Violations

When the prosecution discloses critical evidence late — or not at all — Cave and Freeburg know how to immediately move for a continuance, preserve the error for appeal, and build a record that demonstrates actual prejudice. Jacinto shows that losing the motion is not the end: the appellate record matters enormously.

Victim Mental Health Records (MRE 513 Motions)

Accessing a victim’s mental health records requires navigating Military Rule of Evidence 513 — a complex, in camera review process. Cave and Freeburg regularly litigate these motions, understanding exactly what evidence of psychotic disorders, hallucinations, or antipsychotic treatment can do to a government witness’s credibility at trial.

DuBay Hearings and Post-Trial Litigation

Jacinto spent years in post-trial proceedings. Most defense counsel never litigate a DuBay hearing. Cave and Freeburg have the appellate experience to navigate these specialized proceedings, protect the client’s due process rights, and challenge improper restrictions on cross-examination.

Confrontation Clause and Constitutional Challenges

When a military judge restricts cross-examination of any witness — including expert witnesses at post-trial hearings — Cave and Freeburg recognize the Confrontation Clause issue, object on the record, and preserve it for appeal at every level through the CCA and CAAF.

Sexual Assault Defense

Jacinto’s conviction rested entirely on E.B.’s credibility. Cave and Freeburg understand that in Article 120b cases, attacking that credibility through lawful means — motive to fabricate, mental health history, prior inconsistent statements — forms the heart of the defense. They build that strategy from day one, not on the eve of trial.

Bottom Line

United States v. Jacinto stands as a cautionary tale about the limits of appellate relief. The prosecution made a serious discovery error. The military judge compounded it by denying a continuance. Courts condemned both decisions — and still affirmed the conviction. The lesson: experienced defense counsel must fight these battles at trial, before the evidence record closes. Phil Cave and Nathan Freeburg bring exactly that experience to servicemembers facing court-martial, DuBay proceedings, or appeals at any stage.

This analysis is for informational purposes. It does not constitute legal advice. Servicemembers facing military justice proceedings should consult a qualified military defense attorney. You can reach us through our main website at court-martial.com.

In 2013, Warren Wells was a Lieutenant Colonel and a Regional Defense Counsel supervising the Senior Defender Counsel at several Army bases and their subordinate military defense counsel. He sent an email to his Senior Defense Counsel on various defense matters that included a paragraph commenting on the pressure put on the Army by Congress and the media to send sexual assault cases to trial and then stated that they, as defense counsel were the last line of defense for the innocent. Ten years later, when Ms. Wormuth read the email, she found this sentiment so outrageous that she fired BG Wells within hours!

Today, every military defense counsel knows (especially in the Army) that something they do or say in your defense can be held against them in the years to come when they are up for promotion or in a different position as a JAG. The military branches try to have independent defense counsel while they are in defense counsel positions, but as the BG Wells story illustrates: nothing protects them when they are no longer in a defense counsel position. Your military defense counsel will hopefully do their best to represent you anyway, but he or she is not conflict-free, no matter how hard they try.

Since the public firing, the Secretary of Army has not issued a statement, directed toward defense counsel, that she respects their role in the military justice process and that they should uphold the professional oaths to zealously represent the client within the bounds of the law, the rules of ethics, and reason. Some of us remember when then-President Obama publicly suggested anyone accused of a sex offense should be discharged. This was erroneous. However, in that case, the Secretary of Defense quickly published a “cleansing” statement explaining the correct legal obligations.

Politico reported that

Obama said at a press conference in early May that came just as the Pentagon released a report detailing rising incidences of sexual assaults in 2012. “So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable — prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.”

This statement led to two accused’s having a military judge in their case hold that, if found guilty, the jury could not adjudge a punitive discharge.

Earlier this year, Marine Corps defense counsel were placed in an ethical quandary because of statements made to a defense counsel then representing a client in a difficult case. Those statements became a matter of significant litigation. United States v. Gilmet will tell you all you need to know about how the statements may have put Marine Corps defense counsel in a compromised position and having a potential conflict of interest between their own career and the interests of their client. Incidentally, the case against Gilmet was dismissed because of the statements made by the senior Marine judge advocate to defense counsel.

As civilian defense counsel, we at Cave & Freeburg, LLP, are not concerned about our zealous, aggressive defense of you coming back to hurt our careers. We report to no one other than the law.

A military judge has a sua sponte duty to instruct the members on an affirmative defense if it is reasonably raised by the evidence. United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002). Failure by the defense counsel to request the instruction does not waive the error. United States v. Brown, 43 M.J. 187, 189 (C.A.A.F. 1995)(citing United States v. Taylor, 26 M.J. 127, 129 (C.M.A. 1988). Failure by the military judge to instruct on an affirmative defense presents a constitutional error which must be tested for prejudice. For such an error to be deemed harmless beyond a reasonable doubt, the Government must prove that the members would have reached the same verdict absent the error. Neder v. United States, 527 U.S. 1, 19 (1999). We agree with the appellant that the affirmative defense of consent was reasonably raised by the appellant’s sworn testimony. As noted above, the appellant posited a scenario in which the purported victim, Cpl B, was an unambiguously willing participant in the sexual contact alleged, ostensibly even the instigator and aggressor. While trial defense counsel failed to request, remind or insist upon an instruction relative to the affirmative defense of consent, it was not his burden to do so. Rather, it was the sua sponte duty of the military judge. United States v. Guitierrez, 64 M.J. 374, 376 (C.A.A.F. 2007)[.]

What should a trial counsel do if the military judge doesn’t say she will instruct on an affirmative defense and the defense counsel doesn’t ask for it, but the trial counsel believes the evidence raises the affirmative defense? Does the trial counsel have an obligation to raise the question at least?

Whether assault consummated by a battery in violation of Article 128, UCMJ, 10 U.S.C. § 928, of which the appellant was convicted, is a lesser included offense of the charged Rape by Use of Physical Violence in violation of Article 120, UCMJ, 10 U.S.C. § 920, if the proof does not show the assault is the alleged act of physical violence that compelled sexual intercourse.1

The footnote is:

Although specification 2 of the Charge alleges rape by physical violence such that the victim could not escape, the government theory appears to be aggravated sexual assault based on victim incapacitation. (Record 51, 453) This view of the proof is consistent with both the recommendations of the investigating officer and the trial testimony of the victim that the assault (a slap) was simply an act that awoke an unconscious victim rather than an act of force which compelled sexual intercourse. (Record 64-65, 72; Investigating Officer’s Report, Item 21, paragraph c(2)(b)) Although neither side in this judge alone trial requested consideration of any lesser included offenses on this specification of the charge, the military judge sua sponte found the appellant guilty of simple assault consummated by a battery under Article 128. (Record 448, 477-78) We particularly invite the parties’ views on the constitutional due process notice requirements necessary for conviction of a lesser included offense. See United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010).