United States v. Ortiz , 66 M.J. 334 ( 2008 )

UNITED STATES, Appellee
v.
Daniel ORTIZ, Private First Class
U.S. Army, Appellant
No. 07-0555
Crim. App. No. 20040672
United States Court of Appeals for the Armed Forces
Argued February 6, 2008
Decided May 30, 2008
RYAN, J., delivered the opinion of the Court, in which
EFFRON, C.J., and BAKER and ERDMANN, JJ., joined. STUCKY,
J., filed a separate dissenting opinion.
Counsel
For Appellant: William E. Cassara Esq. (argued); Captain
Alison L. Gregoire (on brief); Major Tyesha E. Lowery.
For Appellee: Captain Trevor A. Nelson (argued); Colonel
John W. Miller II, Major Elizabeth G. Marotta, and Captain
Larry W. Downend (on brief).
Military Judge: Lauren B. Leeker
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Ortiz, No. 07-0555/AR
Judge RYAN delivered the opinion of the Court.
A general court-martial, composed of military judge
alone, convicted Appellant, contrary to his pleas, of rape
of a child under sixteen, sodomy of a child under sixteen,
two specifications of indecent liberties, indecent acts,
and wrongful communication of a threat, in violation of
Articles 120, 125, and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 920, 925, 934 (2000). The
sentence adjudged by the court-martial and approved by the
convening authority included a dishonorable discharge,
reduction to the lowest enlisted grade, forfeiture of all
pay and allowances, and confinement for twenty-five years.
The United States Army Court of Criminal Appeals summarily
affirmed the findings and sentence. United States v.
Ortiz, No. ARMY 20040672 (A. Ct. Crim. App. Mar. 23, 2007)
(unpublished). On Appellant’s petition, we granted review.1
1
We granted review of:
WHETHER APPELLANT WAS DENIED HIS CONSTITUTIONAL
RIGHT TO A PUBLIC TRIAL WHEN THE MILITARY JUDGE
EXCLUDED THE PUBLIC FROM THE COURTROOM WHEN THE
VICTIM, BP, TESTIFIED ON THE MERITS.
65 M.J. 335 (C.A.A.F. 2007).
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I. Facts
Appellant was accused of raping, sodomizing, and
subsequently threatening the daughter of a family friend
and neighbor. The victim, BP, was nine years old when the
crimes were committed. At the time of trial she was
eleven.
BP was the first witness called by the Government at
trial. It is apparent from the record that she had
considerable difficulty testifying. Despite efforts by the
trial counsel, whom the military judge gave leave to ask
leading questions, BP’s answers were largely unresponsive
and inaudible.
The military judge allowed BP to take a break in order
to “get her composure.” During the break, the military
judge conducted a brief Rule for Courts-Martial (R.C.M.)
802 session. The parties agreed that BP’s Victim Witness
Advocate would move from the gallery, where she had been
sitting at the outset of BP’s testimony, to the panel box,
so that BP could see her more easily and answer questions
more directly. BP continued to be unresponsive.
Trial counsel then moved to admit as exhibits two
anatomically correct dolls to assist in BP’s testimony.
Defense counsel lodged an objection, at which time BP told
defense counsel to “shut up.” The military judge
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instructed her to treat everyone in the courtroom with
respect.
At this point, trial counsel moved to clear the
gallery:
TC: Your honor, at this time the government
would move the court to clear the gallery of
spectators. The reason for that is that
it’s apparent from [BP’s] testimony that
she’s having difficulty testifying. I
believe that’s resulting from some
embarrassment. And we would ask that the
court exclude the members of the gallery
from the gallery of the courtroom.
MJ: What’s your authority?
TC: In the Manual for Courts-Martial 2002
Edition, in the discussion section under
Rule 806 where it discusses the Rule for 806
about a public trial, it says that
“occasionally defense and prosecution may
agree and request a closed session to enable
a witness to testify without fear of
intimidation or acute embarrassment or will
testify about a matter, which while not
classified as of a sensitive or private
nature and that closure may be appropriate
in such cases.”
. . . .
MJ: Does defense have an objection to clearing
the gallery for [BP’s] testimony?
. . . .
DC: Judge, we would note our objection to
excluding the people from the gallery.
Number one, it’s a public trial. Number
two, as I read the paragraph that the court
invited to my attention, it says,
“occasionally defense and prosecution may
agree to request a closed session to enable
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a witness to testify without fear of
intimidation or acute embarrassment, etc.”
I don’t know that there’s been any
intimidation, that’s for sure. Secondly,
judge, as far as the gallery is concerned,
the young lady had had her back to the
gallery because of the positioning of the
microphone. She’s primarily –-
MJ: Well, I agree, but –- but I think when
they’re –- I think the intent there is if
they are here and can hear, that it would be
–- that it is –- (pause) –- that it would be
difficult.
TC: Your honor, the government also wants to ask
–- it’s not only that intimidation or
embarrassment. It also goes on to say in
the discussion “if the matters are of a
sensitive or a private nature” and the
government has good faith belief to believe
that [BP] could testify to matters that are
of a sensitive and private matter to her.2
2
This discussion highlights the trial counsel and military
judge’s apparent misunderstanding of the treatment by the
2002 Manual for Courts-Martial, United States (2002 ed.) of
the public trial right in R.C.M. 806, which provided in
pertinent part: “Except as otherwise provided in this
rule, courts-martial shall be open to the public.”
(emphasis added). Further, “a session may be closed over
the objection of the accused only when expressly authorized
by another provision of this Manual.” R.C.M. 806(b)
(emphasis added). The defense did object, and none of the
provisions that expressly authorized closure, Military Rule
of Evidence (M.R.E.) 412(c) (addressing victim’s sexual
predisposition), M.R.E. 505(i) and (j) (addressing
classified information), and M.R.E. 506(i) (addressing non-
classified but sensitive government information),
pertained. R.C.M. 806(b) Discussion. Thus, while the
Discussion does recognize that “the defense and prosecution
may agree to request a closed session to enable a witness
to testify without fear of intimidation or acute
embarrassment, or to testify about a matter which, while
not classified, is of a sensitive or private nature,” id.,the defense counsel objected to the closure in this case.
Because the construction and application of R.C.M. 806 was
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In response to the motion and argument, the military
judge stated that “the question seems to be . . . whether
or not she’s going to be capable of doing it –- whether she
would be more capable of doing it or more able to do it if
the gallery were briefly excluded.” The military judge
then recessed the court for approximately ten minutes in
order to research and consider the motion.
Upon calling the court to order, the military judge
ordered a chair be placed in the well of the court,
directly in front of her bench, and proceeded to question
BP.
MJ: Okay. Now you’ve said before you’re 11?
WIT: Yes.
MJ: Okay, good. You’re going to become a
professional at this before too long. (Pause.)
Are you nervous?
WIT: Yes.
MJ: Why are you nervous?
WIT: Because.
MJ: Is this hard?
WIT: Yes.
not briefed by the parties and is not necessary to the
disposition of the granted issues, we need not and do not
decide whether failure to comply with the 2002 version of
R.C.M. 806 alone would be tested for prejudice, or deemed
structural error.
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MJ: Why is it hard?
WIT: Because somebody’s in here.
MJ: Because people are here?
WIT: No, because –- yes, and to somebody.
MJ: Because somebody is here.
WIT: Yes, and because people are here.
MJ: Okay.
. . . .
MJ: Okay, you said it was hard because there are
people here?
WIT: (Affirmative nod.)
MJ: When you get nervous, do you tend to talk real
low like you’re doing now?
WIT: I guess.
MJ: Well, I’m just thinking that if you’re a
cheerleader you have to be able to yell and
scream, right?
WIT: Yes.
MJ: Okay. So are you talking real low and
scrunching down in your seat because this is a
hard thing to talk about?
WIT: Yes.
MJ: And because there are a lot of adults here and
you’re the only kid?
WIT: No.
MJ: No?
Wit: No.
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MJ: Are you upset to be here today?
WIT: No.
MJ: You’re not upset to be here?
WIT: (Negative head shake.)
MJ: Okay. Even though your chair is faced towards
me, do you know –- are you aware –- is it
problematic that there are people in the –- back
in the gallery?
WIT: What do you mean?
MJ: (Pause.) Is it difficult to come in and talk to
all of us today?
WIT: Yes.
MJ: (Pause.) And sometimes it’s kind of hard
because even though you –- you’re not looking at
people, you know that they’re there watching
you.
WIT: Yes.
MJ: (Pause.) [BP], what’s happening here today is
real serious. Have they talked to you about
that?
WIT: Uh-huh. What people talked?
MJ: Well, have –- when you were interviewed by the
counselors in this case, did they talk to you
about the fact this is important?
WIT: Yes.
MJ: Okay. And I know it’s hard. It’s particularly
hard when you’re only 11 years old. Would it be
a little easier if there weren’t quite so many
people here?
WIT: Kind of.
MJ: Do you think that you would be able to answer
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the questions if there weren’t quite so many
people here?
WIT: Yes.
MJ: You think you could?
WIT: (Affirmative nod.)
MJ: You’re nodding your head. Is that a yes?
WIT: Yes.
Following this colloquy, and without further
discussion or explanation, the military judge ordered the
courtroom cleared of spectators and the doors locked. The
record does not reflect how many spectators were in
attendance, or whether any of them were or were not friends
or family of Appellant.
After the courtroom was cleared trial counsel
recommenced direct examination of BP and elicited testimony
that Appellant raped, sodomized, and threatened her. BP’s
testimony, and the court closure, lasted the majority of
the first day of a two-day trial. The remaining Government
witnesses, excluding one witness whose testimony was
ultimately disallowed by the military judge, testified for
a total period of approximately two hours, during which
time the courtroom was open to the public.
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II. Analysis
“In all criminal prosecutions, the accused shall enjoy
the right to . . . a public trial.” U.S. Const. amend. VI.
A public trial “ensur[es] that judge and prosecutor carry
out their duties responsibly . . . and discourages
perjury.” Waller v. Georgia, 467 U.S. 39, 46 (1984).
Yet, as interpreted by the Supreme Court, the right
to a public trial is not absolute. Id. at 45 (stating that
the “Court has made clear that the right to an open trial
may give way in certain cases to other rights or
interests”); see also United States v. Hershey, 20 M.J.
433, 436 (C.M.A. 1985) (stating the same). 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.’”
Waller, 467 U.S. at 46 n.4 (quoting Estes v. Texas, 381
U.S. 532, 588 (1965) (Harlan, J., concurring)). This
presumption is overcome only where “the balance of
interests . . . [is] struck with special care.” Id. at 45.
In striking this balance, the Supreme Court has looked to
its First Amendment jurisprudence regarding the press and
public’s right to attend criminal trials and incorporated
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the test used there in the Sixth Amendment context. Id. at
45-46.
Recognizing the importance of the right, not only to
an accused, but to the public and the integrity of the
criminal process, prior to closing a trial we require 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.
Hershey, 20 M.J. at 436 (citing Press-Enterprise Co. v.
Superior Court (Press-Enterprise I), 464 U.S. 501 (1984);
and Waller, 467 U.S. at 46).
The question before us is whether the military judge
abused her discretion in closing the courtroom during BP’s
testimony. See United States v. Short, 41 M.J. 42, 44
(C.M.A. 1994) (reviewing a ruling under R.C.M. 806(b) for
an abuse of discretion); United States v. Travers, 25 M.J.
61, 62 (C.M.A. 1987) (applying an abuse of discretion
standard and stating that “[t]he question of whether ‘an
overriding interest’ [necessitating closure] exists lies in
the sound discretion of the military judge”); United States
v. Farmer, 32 F.3d 369, 371-72 (8th Cir. 1994) (reviewing a
decision to temporarily close a trial for an abuse of
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United States v. Ortiz, No. 07-0555/AR
discretion). “A military judge abuses his discretion when
. . . [she] improperly applies the law.” United States v.
Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004). Here, the only
question is whether the military judge correctly applied
the law. The military judge in this case failed to
correctly apply the legal test necessary to overcome the
presumption in favor of a public trial. Consequently, the
denial of the right to a public trial was an abuse of
discretion.
The military judge did not even identify the relevant
factors to consider or articulate the reason for her
decision to clear the courtroom, let alone make findings.
For that reason alone her decision was not in conformity
with the law. See Waller, 467 U.S. at 45 (stating that a
trial judge must make “‘findings specific enough that a
reviewing court can determine whether the closure order was
properly entered’” (quoting Press-Enterprise I, 464 U.S. at
510)). On the other hand, the record illustrates both a
practical reason for closure –- the child witness could not
or would not testify before the courtroom was closed –- and
that at least some alternatives less restrictive than
closure were attempted.
The real question, therefore, is whether failure to
meet the test articulated by the Supreme Court in Waller
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makes the deprivation of the Sixth Amendment right to a
public trial erroneous. On the bare record before us, we
hold that it does.
This is an unfortunate case. The articulated interest
proposed by the Government counsel was ambiguous, at best.
And the military judge failed to make any findings, let
alone adequate findings, supporting closure to aid in
review. It is unfortunate because, based on the record
before us, the military judge could well have made findings
supporting her decision, and in the process perhaps better
articulated the Government’s interest in the closure. With
this lacuna, we need not address the question whether the
closure was narrowly tailored to protect the overriding
interest or whether reasonable alternatives to closure were
considered, since the military judge did not inform us of
the basis for her decision.
A. The Articulation of an Overriding Interest
In order to overcome the strong presumption in favor
of the public trial right, the party seeking closure must
articulate and advance an overriding interest that is
likely to be prejudiced. No one questions that if trial
counsel had articulated that closure was necessary to
protect the physical and psychological welfare of BP, the
minor victim, an overriding interest would have been
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advanced. See Globe Newspaper Co. v. Superior Court, 457
U.S. 596, 607 (1982) (stating that “safeguarding the
physical and psychological well-being of a minor -- is a
compelling” interest) (footnote omitted); United States v.
Galloway, 937 F.2d 542, 546 (10th Cir. 1991) (finding a
“substantial or compelling interest in protecting young
witnesses who are called to testify in cases involving
allegations of sexual abuse”). But that was not the
interest advanced in this case.
Rather, the trial counsel specifically requested
closure on the grounds that BP was having trouble
testifying, possibly because she was embarrassed, and a
general observation that the testimony was of “a sensitive
or private nature.” Suggesting that a witness’s difficulty
testifying based on possible embarrassment, or the private
or sensitive nature of the testimony alone is sufficient to
constitute the “compelling interest” that is “likely to be
prejudiced” necessary to override an accused’s right to a
public trial is inarticulate at best.3 See Hershey, 20 M.J.
at 436 (stating that “[w]hile it may be permissible under
certain circumstances to exclude spectators during the
3
We save for another day the question whether the
Government’s anemic articulation of an overriding interest
could have been resurrected by more specific findings on
the part of the military judge.
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testimony of a victim of tender years, that must be decided
on a case-by-case basis and not based on the mere utterance
of the word ‘embarrassment’”).
Not only are we aware of no case where such a proffer
was deemed sufficient, it seems contrary to the Supreme
Court’s analysis in Globe Newspaper, which appeared to
reject generalized assertions of closure based on the
possibility of embarrassment or the sensitive nature of the
testimony. See 457 U.S. at 606-09.
B. Adequate Findings on the Record
Even assuming the trial counsel’s asserted interest
was sufficient as articulated, Hershey requires the
military judge to consider the interest, make a
determination on a case-by-case basis, and make adequate
findings to support appellate review. 20 M.J. at 436.
In making that determination, a military judge’s
findings should show that she considered factors such as
“the minor victim’s age, psychological maturity and
understanding, the nature of the crime, the desires of the
victim, and the interests of parents and relatives.” Globe
Newspaper, 457 U.S. at 608 (footnote omitted). In this
case, the military judge asked BP several leading questions
regarding her age, whether she had discussed the necessity
of her testimony with counselors, the reasons for her
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United States v. Ortiz, No. 07-0555/AR
difficulties testifying, and finally asked her if closing
the courtroom would mitigate those difficulties.
The answers elicited in response to these questions
may have formed the basis for a determination that closure
was necessitated in this case to protect the well-being of
a minor victim, and adequate findings for appellate review.
But the military judge never affirmatively, either orally
or in a written addendum to the record, articulated
findings as to why she deemed closure to be necessary; she
simply ordered the courtroom closed. While we do not
believe the Sixth Amendment dictates a formalistic approach
as to the manner in which a military judge delivers her
findings, this Court, following the lead of the United
States Supreme Court, requires that a military judge make
some findings from which an appellate court can assess
whether the decision to close the courtroom was within the
military judge’s discretion. Press-Enterprise Co. v.
Superior Court (Press-Enterprise II), 478 U.S. 1, 13-14
(1986); Waller, 467 U.S. at 47; Press-Enterprise I, 464
U.S. at 510; Hershey, 20 M.J. at 436.
On the current state of the record we have no way of
knowing the military judge’s reasons or reasoning for
closing the courtroom. This makes it impossible to
determine whether the military judge properly balanced the
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inadequate interest asserted by the Government -- possible
embarrassment to BP -- against the accused’s right to
public trial, or substituted another interest such as the
psychological well-being of the child in place of the one
inartfully asserted by the Government. See Press-
Enterprise II, 478 U.S. at 13-14 (“[P]roceedings cannot be
closed unless specific, on the record findings are made
demonstrating that closure is essential to preserve higher
values and is narrowly tailored to serve that interest.”)
(citations and quotation marks omitted); Waller, 467 U.S.
at 49 n.8 (rejecting appellate court’s post hoc assertion
that the trial court properly balanced the interests where
findings were inadequate); English v. Artuz, 164 F.3d 105,
109-10 (2d Cir. 1998) (holding that the absence of
“meaningful findings” violated the appellant’s right to a
public trial); Guzman v. Scully, 80 F.3d 772, 776 (2d Cir.
1996) (stating the same).
C. Erroneous Deprivation of the Right to Public Trial
The Government argues that none of the above
constitutes an erroneous deprivation of Appellant’s Sixth
Amendment right to a public trial either because it was not
a true closure or because this Court can, post hoc, discern
sufficient information from the record to perform the test
laid out in Waller and Hershey on our own. We disagree.
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1. Appellant’s Trial Was Completely Closed
Where some spectators are required to leave, 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,
see Waller, 467 U.S. at 46 & n.4 (citation and quotation
marks omitted), is “only moderately burdened . . . as
certain spectators remain and are able to subject the
proceedings to some degree of public scrutiny.” Judd v.
Haley, 250 F.3d 1308, 1315 (11th Cir. 2001). A partial
closure that allows some, but not all, spectators to remain
thus may not raise precisely the same concerns articulated
in Waller and Press-Enterprise I. See, e.g., Garcia v.
Bertsch, 470 F.3d 748, 753 (8th Cir. 2006) (allowing a
laxer standard “because a partial closure does not
‘implicate the same secrecy and fairness concerns that a
total closure does’” (quoting Farmer, 32 F.3d at 371));
Nieto v. Sullivan, 879 F.2d 743, 753 (10th Cir. 1989)
(using “a less stringent test of a ‘substantial reason’
where partial closures are held necessary”); Douglas v.
Wainwright, 714 F.2d 1532, 1540 (11th Cir. 1983) (holding
that “where neither all members of the public nor the press
are excluded, the ‘public’ nature of the proceedings may be
retained sufficiently so that a lesser justification for
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United States v. Ortiz, No. 07-0555/AR
the partial closure will suffice to avoid constitutional
deprivation”).
Consequently, several circuits have found no erroneous
deprivation of the right to a public trial despite limited
findings or the absence of findings in the context of a
“partial closure.” See, e.g., United States v. Sherlock,
962 F.2d 1349, 1356-57 (9th Cir. 1992) (holding that
limited findings were acceptable in a partial closure
case). The parties have cited no case where a more lax
approach to the absence of findings was adopted after the
court found a complete, albeit temporary, closure of the
courtroom.4
Labeling a closure as “complete” or “partial” is a
qualitative, not temporal, question. While the Government
4
We note that one circuit has, in the course of considering
a habeas corpus petition based on an allegation of
ineffective assistance of counsel in a state trial,
determined that it was not an unreasonable application of
federal law to find no ineffective assistance of counsel
for failing to raise a erroneous deprivation of the right
to a public trial on direct review where specific findings
were not made by the judge, but the record did not show
that the judge had not made a considered determination to
close the court. Bell v. Jarvis, 236 F.3d 149, 171-72 (4th
Cir. 2000) (stating “[w]e find no basis upon which to
conclude that the trial judge failed to carefully consider
the individual facts of this case before making his
decision, or that he otherwise shirked his duty in this
regard”). Given the standard of review applied in
collateral challenges to state court decisions, we think it
is not persuasive authority for a case on direct review.
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argues that the closure in this case was partial because it
did not encompass the entirety of the proceedings, we think
the appropriate analysis begins by asking exactly who was
barred from the court. Closures have typically been
described as “partial” when select spectators or members of
the press were barred from the courtroom, but others were
allowed to remain. See, e.g., United States v. Osborne, 68
F.3d 94, 99 (5th Cir. 1995) (exclusion of codefendant’s
sister and “new spectators” during testimony of one witness
upheld); Farmer, 32 F.3d at 371-72 (exclusion of all
spectators except victim’s family while victim testified
upheld); Kuhlmann, 977 F.2d at 76-78 (exclusion of
defendant’s common law wife, his common law wife’s sister
and his cousin during one witness’s testimony upheld);
Nieto, 879 F.2d at 753-74 (exclusion of defendant’s sisters
and other unspecified relatives during one witness’s
testimony upheld); Sherlock, 962 F.2d at 1356-59 (exclusion
of defendants’ unspecified family members during victim’s
testimony upheld). Conversely, the temporary nature of a
closure has not prevented courts from describing it as
“complete.” English, 164 F.3d at 110 (complete closure to
seal the court during one witness’s testimony). In this
case, the courtroom was cleared of all spectators during
the vast majority of BP’s testimony.
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Going beyond the question of who was barred, the
United States Court of Appeals for the Second Circuit
succinctly articulated other substantive factors to be
considered in determining whether a closure is “broad or
narrow,” “complete or partial”:
[It] depends on a number of factors, including
its duration, whether the public can learn
(through transcripts, for example) what
transpired while the trial was closed, whether
the evidence presented during the courtroom
closure was essential, or whether it was merely
cumulative or ancillary, and whether selected
members of the public were barred from the
courtroom, or whether all spectators were
precluded from observing the proceedings.
Bowden v. Keane, 237 F.3d 125, 129-30 (2d Cir. 2001)
(citations omitted).
In this case the court was closed to the public during
the substantive testimony of the key Government witness,
which was essential to, and comprised the bulk of, the
Government’s case. All spectators were barred from
observing the crux of the proceedings against Appellant.
It is true that this Court described a closure during
the testimony of the key government witness as partial
after considering the short duration of the closure, but
notable to the decision in that case was that, “[m]ore
importantly, it appears that the only person present in the
courtroom other than the accused and court personnel when
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trial counsel made his exclusionary motion was appellant’s
escort. The two people asked to leave the courtroom, then,
were not there as spectators, but to perform a governmental
function.” Hershey, 20 M.J. at 437.
In this case, the record indicates that the courtroom
was completely closed to spectators. The military judge
“cleared the gallery,” creating a strong inference there
were spectators to clear, and locked the doors during the
entirety of the substantive testimony of the Government’s
critical witness -– the victim. Nothing in the record
indicates whether the friends or family of the accused or
the witness were present. See In re Oliver, 333 U.S. 257,
272 (1948) (noting that “an accused is at the very least
entitled to have his friends, relatives and counsel
present”). And while the military judge did suggest she
might reopen the courtroom during BP’s testimony, United
States v. Ortiz, __ M.J. __ (6) (C.A.A.F. 2008) (Stucky,
J., dissenting), that never occurred. The closure in this
case was a complete closure for purposes of the Sixth
Amendment, albeit less than complete in a temporal sense.
2. This Court May Not Make Post Hoc Findings
The Government asks us to infer and glean from the
record findings that were not placed there by the military
judge. We decline to engage in post hoc reconstruction of
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facts and findings that could have been made at trial, but
were not. The trial procedure to address this Sixth
Amendment right requires, inter alia, trial counsel to
advance a compelling interest and the military judge to
carefully balance, on the record, that interest against the
accused’s Sixth Amendment right. The military judge was
required to place her analysis on the record sufficient to
demonstrate that this balancing occurred. That did not
happen.
Moreover, the Government’s assertion misapprehends the
test articulated by the Supreme Court. Waller, 467 U.S. at49 n.8 (rejecting the Georgia Supreme Court’s post hoc
balancing analysis as unable to satisfy the Press-
Enterprise I standard).5 The question is not whether an
appellate court can supply a cogent reason why it was
acceptable to deprive an accused of the constitutional
right to a public trial. Rather, the question is whether
the military judge identified the competing interests and
balanced them in a given case. The mind of the military
5
The dissent appears to embrace the Government’s suggestion
that this Court can fill the void in the record via post
hoc rationalization that the military judge did engage in
the required balancing test. However, there is simply no
statement by the military judge identifying or suggesting
she balanced the factors outlined in Waller and Hershey,
and that “assertion finds little or no support in the
record.” Waller, 467 U.S. at 49 n.8.
23
United States v. Ortiz, No. 07-0555/AR
judge cannot be inferred from the record, absent something
in the record reflecting the military judge’s analysis.
Finally, under the circumstances of this case,
Appellee’s argument ignores that this Court may only take
action with respect to matters of law. Article 67(c),
UCMJ, 10 U.S.C. § 867(c) (2000). Therefore, we reject the
Government’s request that we selectively search the record
and make factual findings supporting the military judge’s
decision to close the courtroom.
D. Remedy
In this case, the record does not support a conclusion
that the Waller/Hershey balance was considered or struck by
the military judge. Consequently, the presumption in favor
of the right to a public trial was not overcome at trial,
and the complete deprivation of the right was erroneous.
An erroneous deprivation of the right to a public
trial is structural error, which requires this Court to
overturn Appellant’s conviction without a harmlessness
analysis. Arizona v. Fulminante, 499 U.S. 279, 310 (1991)
(noting that denial of the right to public trial is a
structural error because it is a “constitutional
deprivation[] . . . affecting the framework within which
the trial proceeds, rather than simply an error in the
trial process itself” (citing Waller, 467 U.S. at 49 n.9)).
24
United States v. Ortiz, No. 07-0555/AR
III. Decision
The decision of the United States Army Court of
Criminal Appeals is reversed. The findings and sentence
are set aside, and the record of trial is returned to the
Judge Advocate General of the Army. A rehearing is
authorized.
25
United States v. Ortiz, No. 07-0555/AR
STUCKY, Judge (dissenting):
The majority is correct; this is an unfortunate case. But
while the military judge may not have followed best practice by
failing to articulate specific findings of fact, I cannot find
that she misapplied the Supreme Court’s test in Press-Enterprise
Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501 (1984).
Because a proper foundation for closing the courtroom during
part of BP’s testimony is evident from the record, I would find
no abuse of discretion and, therefore, no deprivation of the
Sixth Amendment right to a public trial. As such, I dissent.
I find the majority’s analysis unpersuasive for two related
reasons. First, I do not understand the plain language of
either Press-Enterprise I, or United States v. Hershey, 20 M.J.
433 (C.M.A. 1985), to require the military judge to
“affirmatively . . . articulate[] findings” on the record.
United States v. Ortiz, __ M.J. __ (16) (C.A.A.F. 2008). In
Press-Enterprise I, the Supreme Court simply required “findings
specific enough that a reviewing court can determine whether the
closure order was properly entered,” 464 U.S. at 510, much like
any reviewing court requires a record adequate for review. See,
e.g., Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (citing
Boykin v. Alabama, 395 U.S. 238, 244 (1969)). To demand
anything more transforms what was intended as a flexible
United States v. Ortiz, No. 07-0555/AR
approach into a formalistic one, regardless of the majority’s
suggestion to the contrary.
Second, though I remain doubtful that this was a complete
closure, even the assumption that it was does not support the
majority’s view that making explicit findings on the record is a
prerequisite to upholding the closure in this case. While the
majority might not have found any complete closure case in which
a federal court adopted a nonformulaic approach to findings,
that is so because the adequacy of findings was not at issue in
most cases. After all, most judges simply make explicit
findings. The majority cites no case that actually holds that
completeness of the closure is the fulcrum upon which the
findings prong sits.
Instead, it cites cases concerning the relaxation of the
first prong of the Press-Enterprise I test in partial closure
cases. In Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000), the
United States Court of Appeals for the Fourth Circuit made clear
that
while the Supreme Court has never set forth a less
rigorous standard for partial closures, some circuits
have relaxed the first Waller requirement where a
temporary or partial closure of a proceeding is at
issue. Specifically, these circuits have required
only that the state advance a “substantial reason” for
closing the proceeding because, unlike those
situations involving a complete closure, a partial
closure does not threaten as acutely the historical
concerns sought to be addressed by the Sixth
Amendment.
2
United States v. Ortiz, No. 07-0555/AR
Id. at 168 n.11; see also United States v. Osborne, 68 F.3d 94,
98-99 (5th Cir. 1995); United States v. Farmer, 32 F.3d 369, 371
(8th Cir. 1994); United States v. Sherlock, 962 F.2d 1349, 1356-
57 (9th Cir. 1992); Nieto v. Sullivan, 879 F.2d 743, 753 (10th
Cir. 1989); Douglas v. Wainwright, 739 F.2d 531, 532-33 (11th
Cir. 1984) (per curiam).
The rationale for maintaining a heightened burden on the
government with regard to the first prong is, thus, that
complete closures implicate Sixth Amendment concerns more
seriously than partial closures. It makes intuitive sense,
then, to raise the hurdle the government must jump over to show
a need to bar, say, the press, the public, and the defendant’s
family, rather then just the press. However, it is neither
equally as intuitive nor required by the test’s plain language
to heighten the requirements of the fourth prong for the same
reason. After all, the first prong of the Press-Enterprise I
test is qualitatively different from the final three. The
former places a burden on the party seeking closure; the latter
three assign responsibilities to the court.
Alternatively, the Supreme Court constructed the first
three prongs out of respect for the right of access to criminal
trials. Globe Newspaper Co. v. Superior Court, 457 U.S. 596,
606 (1982) (referring to the “particularly significant role”
3
United States v. Ortiz, No. 07-0555/AR
public access plays in the proper functioning of the judiciary
because “[p]ublic scrutiny of a criminal trial enhances the
quality and safeguards the integrity of the factfinding process,
with benefits to both the defendant and to society as a whole
. . . [and] fosters an appearance of fairness, thereby
heightening public respect for the judicial process. . . . [I]n
the broadest terms, public access to criminal trials permits the
public to participate in and serve as a check upon the judicial
process -- an essential component in our structure of self-
government”). The intention behind the fourth prong, however,
was to ensure that “a reviewing court can determine whether the
closure order was properly entered.” Press-Enterprise I, 464
U.S. at 510.
Through either lens, the first and fourth prongs of the
Press-Enterprise I test are analytically distinct. An
admittedly logical rationale for heightening a party’s burden
under the former cannot automatically translate into an
appropriate reason to heighten a different party’s
responsibility under the latter. This is likely the reason why
courts, when presented with less than complete findings on the
record in partial closure cases, do not base their acceptance of
such findings vis-à-vis the fourth prong on the grounds that
partial closures do less harm to the right of access at the core
of the Sixth Amendment. See, e.g., Bell, 236 F.3d at 170-71
4
United States v. Ortiz, No. 07-0555/AR
(upholding a partial closure even without explicit findings
because the record revealed the judge knew the witness’s
particular characteristics, the facts of the case, and the
nature of the testimony); United States v. Bow, 1997 U.S. App.
LEXIS 5326, at *8, 1997 WL 124345, at *3 (9th Cir. 1997) (same).
In Bell and Bow, then, what merited acceptance of nonexplicit
findings was not that partial closures caused less harm to Sixth
Amendment rights, but because the records of trial, upon the
appellate courts’ own review, described facts necessary to meet
each prong and adequately evidenced the judge’s rationale in
deciding to close the courtroom.
The record in Appellant’s case is equally sufficient.
First, it is replete with evidence of the need to close the
courtroom. Trial counsel moved for courtroom closure after a
lengthy attempt to extract audible testimony from BP and after
her body language and rude behavior suggested her level of
discomfort. BP had “difficulty testifying. . . . resulting from
some embarrassment,” according to trial counsel, and clearing
the gallery of spectators would alleviate that embarrassment.
Given that the Discussion to Rule for Courts-Martial (R.C.M.)
806(b) requires an overriding interest and lists avoiding
embarrassment as one such interest, the record reasonably
describes the military judge’s understanding that trial counsel
5
United States v. Ortiz, No. 07-0555/AR
advanced a recognized overriding interest to close the
courtroom, thus satisfying the test’s first prong.
The record also makes clear that the military judge
narrowly tailored the closure to suit the needs of the witness
and the overriding interest offered by the Government. Before
granting the motion, the military judge questioned the witness
extensively. BP admitted that she was speaking in a low,
mumbled tone because she was nervous. After some additional
questioning, the witness also admitted that her nerves made it
difficult to testify and that she was nervous because there were
so many people in the gallery. The military judge asked if the
witness would be more at ease if she faced away from the
spectators and spoke directly to the military judge. The
witness still maintained that she was nervous. Given BP’s age,
Post-Traumatic Stress Disorder diagnosis, and the private nature
of the allegations against Appellant, her nervousness is
understandable. Moreover, upon deciding to close the courtroom,
the military judge advised counsel that she wanted to “minimize
the time that the courtroom is going to be closed,” even stating
that as soon as the witness appeared more comfortable
testifying, the courtroom would be reopened. In addition, BP
actually testified in public for nearly one-third of her
testimony. She started her testimony shortly after 9:30 a.m.
and continued to shortly after 10:54 a.m., representing fifty-
6
United States v. Ortiz, No. 07-0555/AR
three pages in the record. She testified in closed court until
page 210 of the record and was later recalled for another ten
pages.
Finally, the record indicates that the military judge
considered a number of alternatives before closing the
courtroom. She used a comfort break, admonished the witness to
behave in a courteous manner, asked if turning away from the
spectators would relieve the witness’s nervousness, and directed
trial counsel to move to another area of the courtroom to
facilitate the witness in projecting her voice. All these
failed. The witness continued to slouch, mumble under her
breath, make rude comments, and manifest her discomfort as a
witness in open court. The military judge’s only remaining
recourse was to close the courtroom.
Since the record in this case is adequate to support this
Court’s review and because the record evidences a narrowly
tailored closure used as a last resort and based on a recognized
overriding interest, I would uphold the military judge’s
decision to close the courtroom during part of BP’s testimony.
I therefore dissent.
7