Court-Martial Trial Practice Blog
I posted that Mr. Galligan had sought to have the Hasan Article 32, UCMJ, hearing closed to avoid media attention.
Dallas news reports.
A hearing outlining evidence against U.S. Army Maj. Nidal Malik Hasan in last year’s massacre at a soldier readiness center should be public, a military official ruled Thursday.
Defense lawyer John Galligan said he may appeal that ruling because he believes that closing the military’s equivalent to a grand jury proceeding against Hasan next month is necessary for a fair trial.
If there is to be an “appeal” that would likely be to the Army Court of Criminal Appeals. There has been litigation in past high visibility military cases about closure of the Article 32, UCMJ, hearing. See ABC, Inc. v. Powell, 47 M.J. 363 (C.A.A.F. 1997). In ABC (McKinney) CAAF ruled:
Petitioners sought a Writ of Mandamus requesting that this Court order that the investigation under Article 32, Uniform Code of Military Justice, 10 USC § 832, into the allegations of misconduct made against the Sergeant Major of the Army (SMA), Gene C. McKinney, be opened to the press and public. See 28 USC § 1651(a). On June 23, 1997, following oral argument, we granted the Petition for Extraordinary Relief and issued a Writ of Mandamus opening the Article 32 proceedings to the press and public, as requested by Petitioners, with an opinion to follow. 47 MJ 80 (1997).
In United States v. Davis, 62 M.J. 645 (A. F. Ct. Crim. App. 2007), the court stated that:
The appellant moved to dismiss the charges at trial, contending the Article 32, UCMJ, 10 U.S.C. § 832, pretrial hearing was defective because the investigating officer (IO) improperly closed a portion of the proceeding to the public. The military judge found that the IO violated the appellant’s right to an open Article 32, UCMJ, hearing, but he denied the motion to dismiss because the improper closure resulted in no "articulable harm" to the appellant. On appeal, the appellant asserts the military judge erred and asks that we direct a newArticle 32, UCMJ, hearing with respect to two of the assault specifications. We find the military judge did err, but conclude the error did not materially prejudice the substantial rights of the appellant. Article 59(a), UCMJ, 10 U.S.C. § 859(a).
It is settled that Article 32 investigations are presumptively public hearings, San Antonio Express-News v. Morrow, 44 M.J. 706, 709-710 (A.F. Ct. Crim. App. 1996), and that, "absent ’cause shown that outweighs the value of openness,’ the military accused is likewise entitled to a public Article 32 investigative hearing." ABC, Inc. v. Powell, 47 M.J. 363, 365 (C.A.A.F. 1997) (quoting Press-Enterprise Co. v. Superior Court of California, Riverside County, 464 U.S. 501, 509, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984)). Our superior court has also noted that the right to a public hearing is not absolute, and the decision whether closure of a hearing is necessary is made on a "case-by-case, witness-by-witness, and circumstance-by-circumstance basis." Id.
In Doe v. Commander, Naval Special Warfare Command San Diego, NMCCA 200401530, (N-M. C. Ct. Crim. App. December 15, 2004), the issue was closure of parts of an Article 32, UCMJ, hearing because of classified information issues.
Petition for Extraordinary Relief of 12 Nov 2004 at 15. Specifically, the petitioner seeks "a writ of mandamus ordering the convening authority to rescind his special instructions to the investigating officer, modify his protective order and comply with Grunden [n.1]. . . andPowell, . . . and a writ of prohibition preventing the convening authority from excluding all classified materials from the pretrial investigation hearing and from arbitrarily and unilaterally closing that hearing to the public." Id
n.1., This case relates to handling of classified materials and so-called “national security cases;” do I hear Wikileaks.
The San Antonio Express-News is an active participant in the court-martial process. By that I mean they will file a writ if they are denied access to a military proceeding such as Hasan’s Article 32, UCMJ, hearing.
United States v. Morrow, 44 M.J. 706 (A. F. Ct. Crim. App. 1996), rev. denied 48 M.J. 325 (C.A.A.F. 1997).
Petitioner requests that the Court issue an order permitting public access to a pretrial investigation of charges at Brooks Air Force Base, Texas. In support of its request, Petitioner avers that, in May 1996, Major Eric Duncan, an Air Force officer, was charged with the August 1990 murder of an 11-year-old girl. Petitioner states that Major Dixie Morrow was appointed to conduct the pretrial investigation of charges pursuant to Article 32, UCMJ, 10 U.S.C. § 832 (1994). Petitioner alleges that Major Morrow began hearings concerning the charges at Brooks Air Force Base, Texas, on July 8, 1996. Petitioner asserts that Major Morrow closed the investigation to the public upon request of the government representative, over the objection of the accused. Petitioner avers that the charges against Major Duncan concern a highly publicized disappearance and murder, which has aroused a great deal of public interest over the past six years. Citing "a First Amendment right of access to criminal proceedings," Petitioner argues that no compelling interest outweighs the First Amendment rights of public and press access to this Article 32, UCMJ, hearing.
Col. Michael Mulligan, the Army’s lead prosecutor, belittled the request during a two-hour hearing Thursday at the post court building.
In his argument to close the Article 32 hearing, Galligan cited the relentless media coverage of the case. Mulligan noted that Galligan has been quoted in much of that coverage. Taking the case "behind closed doors" might fan public concerns, the prosecutor added. "The defendant can’t shield himself from his activities."
COL Mulligan has a point here. Mr. Galligan has been active in the media on this case, including establishing a website focused on the case. But so does Mr. Galligan. Perhaps he can get a mulligan based on the relentless publicity the military has been giving the case as well as publicity from DOD and the Congress in regard to the various investigations about the tragic events at Fort Hood and about the military mental health teaching program.
Temple Daily Telegram reports:
In other developments, Pohl denied a defense request for the government to pay an independent pathologist to inspect autopsy findings, and he put off ruling on a defense request to delay the Article 32.
Note to public. An Article 32, UCMJ, hearing officer has no authority to order expert assistance. A request for expert assistance is made to the convening authority (CA) in accordance with R.C.M. 703(d). A petition for a writ of mandamus (included with an Article 32, UCMJ, closure writ, would be unlikely to succeed). If the CA denied the request then the normal practice would be to ask the military judge to order the expert assistance and seek to reopen the Article 32, UCMJ, hearing based on the results of any expert assistance.