Public, media barred from Article 32 hearing in Naples
NAPLES, Italy — Military legal officials barred the public and the media from a pretrial hearing Tuesday without written justification as to why — a maneuver that a military court of appeals has ruled as unlawful.
Even before Tuesday’s proceeding began, Lt. Cmdr. Kathryn McCormick, the investigating officer, decided to close the Article 32 hearing for Chief Petty Officer Felix Correa, “because of the nature of offense against a minor,” said Chief Petty Officer Dawn Scott, a base spokeswoman.
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 a convening authority. The convening authority — in this case, the commander of Naval Computer and Telecommunications Station — then decides if there is enough evidence to proceed to court-martial.
McCormick cited Rule for Courts-Martial 405(h) as her justification for closing the hearing, Scott said. According to the Manual for Courts-Martial, Rule 405(h) states “access by spectators to all or part of the proceeding may be restricted or foreclosed in the discretion of the commander who directed the investigation or the investigating officer.”
“Closure may encourage complete testimony by an embarrassed or timid witness. Ordinarily, the proceedings of a pretrial investigation should be open to spectators,” the rule continues.
Military law establishes that closure of any court proceeding must meet a stringent test, such as testimony regarding secret or classified information, and a “blanket closure” violates both military law and the U.S. Constitution, said Eugene Fidell, president of the National Institute of Military Justice.
“I don’t think you can have a blanket closure like this. The Sixth Amendment guarantees the right to a public trial and that extends to an Article 32 investigation. Any investigating officer who closes hearing room doors does so at his or her own peril, and I believe the Navy-Marine Corps Court of Appeals … would take a dim view of this,” Fidell said. “I would assume the appellate defense division will seek relief from the Navy Court of Appeals or from the U.S. Court of Appeals for the Armed Forces.”
Stars and Stripes was not permitted to attend any portion of Tuesday’s hearing, or to object to the closure on the record. Instead, Lt. Cmdr. Art Blum, a trial attorney with the judge advocate general’s office, said he presented McCormick with Stars and Stripes’ handwritten objection. She upheld her decision to close the proceeding, Blum said.
On Tuesday night — and after a full day of testimony — Stars and Stripes was allowed to object to the closure to the investigating officer. The Navy said that McCormick would take the objection under advisement and make a decision later.
The burden is on the military to show valid grounds for closing any legal proceeding, and to show it has explored all alternatives to closure, said Charles Tobin, a partner in the law firm Holland & Knight LLC in Washington, D.C.
In ordering closure of the proceeding — or any part of the proceeding — a military judge or hearing officer must make his findings public record for future review, said Tobin, legal counsel to the Military Reporters & Editors association.
That applies to rape cases, child molestation and other sensitive issues, and even those where the military asserts national security issues, he said.
“Under the Constitution, there is no such thing as automatic closure, whether it is in the military or civilian setting,” Tobin said. “The military is not exempt from the First Amendment.”
The U.S. Supreme Court has ruled time and again that media has the right to access pretrial proceedings, such as voir dire, which would extend to Article 32s, Tobin said.
Stars and Stripes reporter Terry Boyd contributed to this report.