Accuser testifies in secret in forcible sodomy case
May 2, 2006
HEIDELBERG, Germany — A hearing Monday into forcible sodomy accusations against an Army sergeant was closed to the public Monday, then partially reopened after a news reporter left.
Capt. Mekeal Rodgers, the investigating officer presiding over the Article 32 hearing of Sgt. William Chamberlain, closed the proceedings and asked all spectators to leave the courtroom after a request by defense lawyer Gary Myers. Military prosecutors agreed to have the proceedings closed.
“Embarrassment could be an issue,” Rodgers told Stars and Stripes in explaining why he’d made the decision after consultation with a legal adviser.
The convening authority for the hearing is Col. Willie Gaddis, commander of U.S. Army Garrison Heidelberg. He assigned Rodgers to the case. Rodgers’ recommendation on whether Chamberlain should be court-martialed is due in a week, Myers said.
In a statement, Lt. Col. Peter Grayson, V Corps administrative law chief, said Rodgers had closed the proceedings pursuant to a rule allowing for that to encourage “complete testimony by an embarrassed or timid witness.”
It’s unclear whether sparing the accuser, a male Army specialist, embarrassment would legally merit the courtroom being closed during his testimony, although two First Amendment lawyers said they thought it would not meet the standard.
If simple embarrassment merited closure, they said, victim testimony in all sex assault cases could be made secret. A more stringent standard applies, such as whether a witness would be seriously intimidated by testifying in public.
“A soldier, trained to carry weapons and kill people, too intimidated to testify? It’s a hard sell,” said Matthew Freedus, a Washington, D.C.-based lawyer who has previously represented The Denver Post and Stars and Stripes in similar cases.
After Stars and Stripes left, Rodgers apparently narrowed or clarified his decision. Rodgers announced that the hearing would be closed only during the testimony of the accuser — and not during the testimony of a law enforcement officer. Stars and Stripes was not informed of the announcement, Myers said.
The accuser testified in secret for about an hour, Myers said. The details of his allegations remain unclear. A charge sheet obtained late Monday states only that Chamberlain was accused of the forcible sodomy of the specialist near Vaihingen, Germany, on Jan. 23. According to military law, force is inherent in any sex assault in which the victim is unable to consent, such as if they are asleep. The maximum penalty is life imprisonment.
The one public witness, a Criminal Investigation Command agent, testified for about 15 minutes, primarily about blood-alcohol levels, Myers said.
Chamberlain, 26, of Headquarters Company, U.S Army Garrison Heidelberg, and the driver for IMA-Europe Command Sgt. Maj. Teresa King, did not testify, Myers said.
An Article 32 hearing is a pretrial hearing in which an investigating officer is supposed to determine whether there’s enough evidence to proceed to a court-martial or the case should be disposed of otherwise. They are generally open to the public, like a court-martial, and just as pretrial hearings and trials are public in civilian life.
“The only time you’d start to consider closure is with the minor child,” Freedus said.
Even then, he said, part of the testimony could likely still be public, and the presiding officer would have to question the child to see whether he or she would be intimidated by testifying publicly.
Charles Tobin, a Washington, D.C.-based media lawyer and general counsel to the organization Military Reporters and Editors, said Rodgers should have recessed proceedings to put the matter to “closer scrutiny.”
Lawyers calling for the hearing to be closed should have been made to put the request into a formal, written motion, Tobin said. Stars and Stripes should have had the opportunity to present legal arguments, and the investigating officer’s decision should also have been put in writing.
“He should have made specific findings on the record to justify the closure. That’s what the Constitution requires,” Tobin said.