United States v. Story

35 M.J. 677 | U.S. Army Court of Military Review | 1992

OPINION OF THE COURT

PER CURIAM:

Consistent with his pleas, the appellant was convicted by a military judge sitting as a general court-martial of attempted forcible sodomy and forcible sodomy, in violation of Articles 80 and 125, Uniform Code of Military Justice, 10 U.S.C. §§ 880 and 925 (1982). He was sentenced to a bad-conduct discharge, confinement for five years, forfeiture of all pay and allowances, and reduction to Private El. Pursuant to the terms of a pretrial agreement, the convening authority reduced the period of confinement to twelve months and otherwise approved the adjudged sentence.

Although this case was submitted on its merits, there is one matter that deserves discussion. Following arraignment, the trial defense counsel made the following request to the military judge: “Due to the sensitive nature of the charges, we would request that the court be closed for spectators and others in the courtroom dur.ing providency.” Without articulating his reasons, the military judge instructed all spectators to withdraw from the courtroom, with the exception of the company commander and the escorts. In so doing, the military judge abused his discretion.

The right of the public and the press to attend criminal trials, including courts-martial, is guaranteed under the first and fourteenth amendments. United States v. Fiske, 28 M.J. 1013 (A.F.C.M.R. 1989) , review denied, 30 M.J. 212 (C.M.A. 1990) . As Judge Cox has noted, “... public confidence in matters of military justice would quickly erode if courts-martial were arbitrarily closed to the public.” United States v. Travers, 25 M.J. 61 (C.M.A.1987). The Manual for Courts-Martial generally provides that “courts-martial shall be open to the public.” Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 806(a) [hereinafter R.C.M. 806(a) ]. Although a military judge has discretion to close a session, absent an overriding interest articulated in findings, a court-martial must be open to the public. See R.C.M. 806(b), discussion. We conclude that prior to excluding all or portions of the public from viewing a court-martial, the military judge must articulate findings warranting, and limiting as narrowly as possible, the infringement upon the constitutional right of the public to attend courts-martial of the United States. United, States v. Czarnecki, 10 M.J. 570 at 572 (A.P.C.M.R.1980).

In this case, the anticipated sexually explicit nature of the providence hearing involving charges of forcible sodomy should not have prevailed over the right of the public to attend a court-martial. Thus, we hold that the military judge abused his discretion in closing the court-martial to the public under the circumstances of this case. No relief is warranted, however, as that error did not affect a substantial right of the appellant.

We have also considered the matter personally asserted by the appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982) and find it to be without merit.

The findings of guilty and the sentence are affirmed.