Pretrial hearing at Naples still closed to media, public
NAPLES, Italy — A pretrial criminal hearing Wednesday for a sailor charged with engaging in indecent acts with a minor remained closed to the public and the media for a second straight day.
Stars and Stripes formally protested the closure late Tuesday night, and on Wednesday morning, the investigating officer, Lt. Cmdr. Kathryn McCormick, upheld her decision.
Late Wednesday, Navy officials released a written statement regarding McCormick’s ruling to bar the public from witnessing the Article 32 hearing for Chief Petty Officer Felix Correa.
“After careful analysis of the arguments made by counsel for both the government and defense as to why the hearing should be closed, the governing regulations and case law, and the statements and important interests of Stars & Stripes; the Investigating Officer determined that the hearing should be closed to the public,” the statement reads. “Specifically, it was determined that the expected testimony of each witness and discussion of the evidence in this case, would contain matters which would likely, if released to the public, adversely affect the rights of the accused and/or the alleged victims, one of whom is a minor child; or discourage the complete testimony by embarrassed or timid witnesses.
“This careful analysis was made at the beginning of the hearing, and reviewed on two subsequent occasions in which the hearing was recessed for review of new matters submitted by Stars & Stripes. The convening authority, having received thorough briefings from the Investigating Officer and a Staff Judge Advocate, has denied a request by Stars & Stripes to overturn the Investigating Officer’s decision,” the statement reads.
David Mazzarella, Stars and Stripes editorial director, said of the decision to keep the proceedings closed: “We are disappointed and disturbed that the Navy has chosen in this case to ignore the military’s own mandate for openness in dealing with the public and the press. There are several ways the proceeding could have remained open without harming the defendant, alleged victims or witnesses. Stars and Stripes is exploring its options for correcting this action.”
Correa, 41, is charged with fraternization, sexual harassment and indecent acts with a minor. He is a communications watch floor supervisor with the Naval Computer and Telecommunications Station in Naples. The station is a tenant command of Naval Support Activity Naples.
An Article 32 hearing is similar to a grand jury hearing in civilian courts. At an Article 32, evidence is presented to the investigating officer, who then makes a recommendation to a convening authority as to whether the case should proceed to a court-martial.
On Tuesday evening, after a full day of testimony, McCormick granted Stars and Stripes the opportunity to protest the closed session. Earlier that day, a Stars and Stripes reporter had been barred from making a verbal, on-the-record protest of the total closure.
Regardless of the Navy’s statement on the decision, a blanket closure remains unlawful and unconstitutional, said Charles Tobin, a partner in the law firm Holland & Knight LLC in Washington, D.C.
“The presiding officer has just made the case for completely closing all proceedings, civilian and military, and that’s flat out unconstitutional,” Tobin said in a telephone interview after being read McCormick’s statement.
“With a broad brush, they just painted away all meaningful rights of access. … Civilian court systems deal with cases this sensitive every day, without shutting the public out completely from procedures. The military justice system has a duty to work as hard as civilian judges to find a way to allow meaningful access to proceedings,” said Tobin, legal counsel to the Military Reporters & Editors association and other news media organizations.