U.S. v. Ortiz, 66 M.J. 334

First Principles: Constitutional Matters: Right to a Jury Trial

1. in all criminal prosecutions, the accused shall enjoy the right to a public trial; a public trial ensures that judge and prosecutor carry out their duties responsibly and discourages perjury
2. the right to a public trial is not absolute; however, there is a strong presumption in favor of a public trial, grounded in the belief that it is critical to affording an accused a fair trial, as judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings; this presumption is overcome only where the balance of interests is struck with special care
3. recognizing the importance of the right to a public trial, not only to an accused, but to the public and the integrity of the criminal process, prior to closing a trial, it is required that: (1) the party seeking closure must advance an overriding interest that is likely to be prejudiced; (2) the closure must be narrowly tailored to protect that interest; (3) the trial court must consider reasonable alternatives to closure; and (4) the trial court must make adequate findings supporting the closure to aid in review
4. in this case, the military judge abused her discretion and denied the accused his right to a public trial by closing the courtroom to spectators during the testimony of a minor victim, where the military judge failed to correctly apply the legal Waller test (Waller v. Georgia, 467 US 39 (1984)) necessary to overcome the presumption in favor of a public trial and did not even identify the relevant Waller factors to consider or articulate the reason for her decision to clear the courtroom, let alone make findings
5. where only some spectators are required to leave the courtroom, and some spectators can or do remain, the Constitution’s public trial guarantee, which ensures that participants perform their duties more responsibly and discourages perjury, is only moderately burdened as certain spectators remain and are able to subject the proceedings to some degree of public scrutiny; consequently, several circuits have found no erroneous deprivation of the right to a public trial despite limited findings by the trial court or the absence of findings in the context of a partial closure
6. while the Sixth Amendment does not dictate a formalistic approach as to the manner in which a judge delivers findings supporting the closing of a trial, a military judge must make some findings from which an appellate court can assess whether the decision to close the courtroom was within the military judge’s discretion
7. trial closure that occurred when the military judge completely closed the courtroom to spectators and locked the door during the substantive testimony of the key government witness, which was essential to, and comprised the bulk of, the government’s case, was a complete closure for purposes of the Sixth Amendment, albeit less than complete in a temporal sense
8. in this case, the record does not support a conclusion that the military judge struck the balance of interests necessary to overcome the presumption in favor of the right to a public trial, and the complete deprivation of the right was erroneous
9. an erroneous deprivation of the right to a public trial is structural error, which requires an appellate court to overturn appellant’s conviction without a harmlessness analysis

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. while the Sixth Amendment does not dictate a formalistic approach as to the manner in which a judge delivers findings supporting the closing of a trial, a military judge must make some findings from which an appellate court can assess whether the decision to close the courtroom was within the military judge’s discretion
2. in this case, the military judge abused her discretion and denied the accused his right to a public trial by closing the courtroom to spectators during the testimony of a minor victim, where the military judge failed to correctly apply the legal Waller test (Waller v. Georgia, 467 US 39 (1984)) necessary to overcome the presumption in favor of a public trial and did not even identify the relevant Waller factors to consider or articulate the reason for her decision to clear the courtroom, let alone make findings
3. in this case, the record does not support a conclusion that the military judge struck the balance of interests necessary to overcome the presumption in favor of the right to a public trial, and the complete deprivation of the right was erroneous

Military Justice Personnel: Military Judge: Discretion

1. a military judge abuses her discretion when she improperly applies the law
2. in this case, the military judge abused her discretion and denied the accused his right to a public trial by closing the courtroom to spectators during the testimony of a minor victim, where the military judge failed to correctly apply the legal Waller test (Waller v. Georgia, 467 US 39 (1984)) necessary to overcome the presumption in favor of a public trial and did not even identify the relevant Waller factors to consider or articulate the reason for her decision to clear the courtroom, let alone make findings

Trial Stages: Merits: Trial Procedures › Generally

1. in all criminal prosecutions, the accused shall enjoy the right to a public trial; a public trial ensures that judge and prosecutor carry out their duties responsibly and discourages perjury
2. the right to a public trial is not absolute; however, there is a strong presumption in favor of a public trial, grounded in the belief that it is critical to affording an accused a fair trial, as judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings; this presumption is overcome only where the balance of interests is struck with special care
3. recognizing the importance of the right to a public trial, not only to an accused, but to the public and the integrity of the criminal process, prior to closing a trial, it is required that: (1) the party seeking closure must advance an overriding interest that is likely to be prejudiced; (2) the closure must be narrowly tailored to protect that interest; (3) the trial court must consider reasonable alternatives to closure; and (4) the trial court must make adequate findings supporting the closure to aid in review
4. in this case, the military judge abused her discretion and denied the accused his right to a public trial by closing the courtroom to spectators during the testimony of a minor victim, where the military judge failed to correctly apply the legal Waller test (Waller v. Georgia, 467 US 39 (1984)) necessary to overcome the presumption in favor of a public trial and did not even identify the relevant Waller factors to consider or articulate the reason for her decision to clear the courtroom, let alone make findings
5. where only some spectators are required to leave the courtroom, and some spectators can or do remain, the Constitution’s public trial guarantee, which ensures that participants perform their duties more responsibly and discourages perjury, is only moderately burdened as certain spectators remain and are able to subject the proceedings to some degree of public scrutiny; consequently, several circuits have found no erroneous deprivation of the right to a public trial despite limited findings by the trial court or the absence of findings in the context of a partial closure
6. while the Sixth Amendment does not dictate a formalistic approach as to the manner in which a judge delivers findings supporting the closing of a trial, a military judge must make some findings from which an appellate court can assess whether the decision to close the courtroom was within the military judge’s discretion
7. trial closure that occurred when the military judge completely closed the courtroom to spectators and locked the door during the substantive testimony of the key government witness, which was essential to, and comprised the bulk of, the government’s case, was a complete closure for purposes of the Sixth Amendment, albeit less than complete in a temporal sense
8. in this case, the record does not support a conclusion that the military judge struck the balance of interests necessary to overcome the presumption in favor of the right to a public trial, and the complete deprivation of the right was erroneous

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. the CAAF will not selectively search the record and make post hac factual findings supporting the military judge’s decision to close the courtroom, because it may only take action with respect to matters of law

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a military judge abuses her discretion when she improperly applies the law
2. an erroneous deprivation of the right to a public trial is structural error, which requires an appellate court to overturn appellant’s conviction without a harmlessness analysis