Professional Documents
Culture Documents
David M. Gossett
Joseph P. Minta
Brian J. Wong
Mayer Brown LLP
1999 K St. N.W.
Washington, DC 20006
Phone: (202) 263-3000
Fax: (202) 263-3300
Eugene R. Fidell
127 Wall St.
New Haven, CT 06511
CAAF Bar Number 13979
Page
TABLE OF AUTHORITIES.......................................... ii
STATEMENT OF INTEREST.......................................... 1
ISSUE PRESENTED................................................ 2
STATEMENT OF STATUTORY JURISDICTION............................ 2
STATEMENT OF FACTS............................................. 2
INTRODUCTION AND SUMMARY OF ARGUMENT........................... 2
REASONS WHY THE WRIT SHOULD ISSUE.............................. 5
I. ARTICLE 32 PROCEEDINGS MUST BE CONDUCTED IN ACCORDANCE
WITH CIVILIAN CONSTITUTIONAL STANDARDS.................... 5
II. THE LIMITATION ORDER VIOLATES THE FIRST AND SIXTH
AMENDMENTS BECAUSE JUDICIAL PROCEEDINGS AND RECORDS
ARE PRESUMPTIVELY PUBLIC, AND THE GOVERNMENT HAS NOT
SATISFIED ITS BURDEN OF REBUTTING THIS PRESUMPTION........ 9
A. The Limitation Order Violates The Public’s First
Amendment Right Of Access To Judicial Records........ 9
1. The Limitation Order is substantively defec-
tive........................................... 12
2. The Limitation Order is procedurally defec-
tive........................................... 14
B. The Limitation Order Also Infringes On PFC
Holmes’s Sixth Amendment Public Trial Rights........ 16
III. THE LIMITATION ORDER SUBSTANTIALLY IMPAIRED PFC
HOLMES’S RIGHTS TO CROSS-EXAMINATION AND TO PRESENT A
DEFENSE.................................................. 20
CONCLUSION.................................................... 23
i
TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
ii
TABLE OF AUTHORITIES
(continued)
Page(s)
iii
TABLE OF AUTHORITIES
(continued)
Page(s)
FEDERAL STATUTES
10 U.S.C. § 836(a)..............................................6
10 U.S.C. § 867(a)(3)...........................................2
28 U.S.C. § 1651(a).............................................2
CONSTITUTIONAL PROVISIONS
RULES
405(f)(3)..................................................8
405(f)(8)..................................................8
405(f)(9)-(10), (g)........................................8
405(f)(11).................................................8
405(h)(3)..............................................7, 18
405(h)(1)(A)...............................................8
405(h)(1)(C)...............................................8
906(b)(3).................................................16
Rule 38(b)................................................23
iv
TABLE OF AUTHORITIES
(continued)
Page(s)
OTHER AUTHORITIES
v
IN THE UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
in oral argument.
Statement of Interest
tem and to educate the public, press, and Congress about the
1
military justice system. NIMJ takes no position with respect to
this amicus curiae brief, NIMJ explains why the Limitation Order
Issue Presented
the All Writs Act and Article 67(a)(3), U.C.M.J. See 28 U.S.C.
Statement of Facts
appeal.
2
tified departure from the traditional norm of open judicial pro-
to cross-examine the CID agent. Tr. 83. The defense also was
The Limitation Order does not accord with the United States
3
serves many functions: it promotes the legitimacy of the judi-
hurdles.
4
Reasons Why Writ Should Issue
Burns v. Wilson, 346 U.S. 137, 142 (1953). Unless the “military
context,” Weiss v. United States, 510 U.S. 163, 177 (1994), and
5
M.J. 363, 365 (C.A.A.F. 1997) (quoting Press-Enterprise Co. v.
6
model of civilian preliminary hearings, see Press-Enterprise Co.
7
at 8. Under this framework, courts have found that a public-
that the open trial principles that civilian courts employ apply
ABC, Inc.1
1
In the Army Court of Criminal Appeals, the government cited
Judge Ryan’s concurring opinion in United States v. Davis, 64
M.J. 445, 450 (C.A.A.F. 2007), for the proposition that the
Sixth Amendment public trial right does not apply to an Article
32 proceeding (Govt’s A.C.C.A. Answer [hereinafter Answer] at
6), but failed to mention that the majority in Davis did not de-
cide the issue because, as Judge Ryan noted, it “was neither
raised by the Government nor briefed by the parties.” 64 M.J. at
450 (Ryan, J., concurring).
8
II. The Limitation Order Violates The First And Sixth Amend-
ments Because Judicial Proceedings And Records Are Presump-
tively Public, And The Government Has Not Satisfied Its
Burden Of Rebutting This Presumption.
both the basic fairness of the criminal trial and the appearance
countervailing interests.
common law. Nixon v. Warner Commc’ns, 435 U.S. 589, 597, 599
(1978); see also Globe Newspaper Co. v. Super. Ct., 457 U.S.
In re Oliver, 333 U.S. 257, 270 n.24 (1948), and “respect for
9
ly, the community’s interest in accurate fact-finding is bols-
ler, 467 U.S. at 46; see also In re Oliver, 333 U.S. at 270
Crim. App. 1997) (per curiam) (“[A]n open trial forum ... en-
lent.”).
“[t]he roots of open trials reach back to the days before the
2
See United States v. Lnu, 575 F.3d 298 (3d Cir. 2009) (audi-
otape recordings); United States v. Criden, 681 F.2d 919 (3d
Cir. 1982) (videotape exhibits); see also United States v. Kac-
zynski, 154 F.3d 930 (9th Cir. 1998) (competency evaluation);
Wash. Post v. Robinson, 935 F.2d 282, 287 (D.C. Cir. 1991) (plea
agreement); In re Search Warrant, 855 F.2d 569, 573 (8th Cir.
1988) (affidavits accompanying search warrants); United States
v. Haller, 837 F.2d 84, 87 (2d Cir. 1988) (plea agreement); In
10
Because the “institutional value of the open criminal trial
tions among the terms,” the burden facing the party who seeks to
United States v. Doe, 63 F.3d 121, 128 n.3 (2d Cir. 1995).
re NBC, Inc., 828 F.2d 340, 343-44 (6th Cir. 1987) (recusal mo-
tions); In re N.Y. Times Co., 828 F.2d 110, 114 (2d Cir. 1987)
(suppression motions and accompanying exhibits); United States
v. Smith, 776 F.2d 1104 (3d Cir. 1985) (bill of particulars).
11
(internal quotation marks omitted). The Limitation Order was de-
fective both because its substance did not satisfy the Globe
Newspaper standard and because the public was not given notice
against PFC Holmes and which the CID agent described at the Ar-
“The presumption that the public has a right to see and copy
3
Put another way, any members of the public who were present at
PFC Holmes’s Article 32 proceeding suffered a “contextual depri-
vation.” Lnu, 575 F.3d at 307. Although the government and the
defense have seen the photographs, the public’s ability to fol-
low the CID agent’s testimony was practically nonexistent. They,
unlike the hearing participants, had no access to the photo-
graphs. Under these circumstances, “the public’s capacity to un-
derstand its court-room observations is necessarily limited,
thus affecting its ability to report what it has observed.” Id.
Although no constitutional violation was found in Lnu on the
12
Yet the Order makes no mention of the public’s interest in
U.S. at 607.
The public must “be given ... notice that closure may be
F.2d 231, 234 (4th Cir. 1984). Thus, “closure motions [must] be
United States v. Criden, 675 F.2d 550, 559 (3d Cir. 1982). This
Valenti, 987 F.2d 708, 715 (11th Cir. 1993). In addition to giv-
14
ing the public notice of its intent to restrict access to judi-
cial proceedings and records, the court also “must allow the ob-
(8th Cir. 1983); see also In re Knight Publ’g, 743 F.2d at 234
thority ever informed the parties, much less the public, that
distinguish ABC, Inc. on the ground that the petition for ex-
4
Of course, these procedural protections do not shift the burden
of justifying closure away from the party requesting that the
public be denied access to judicial proceedings or records. “The
burden to overcome a First Amendment right of access rests on”--
and always remains with--“the party seeking to restrict access,
and that party must present specific reasons in support of its
position.” Va. Dep't of State Police v. Wash. Post, 386 F.3d
567, 575 (4th Cir. 2004). A compelling interest still must be
asserted and established; the public’s opportunity to object
simply assures that the countervailing First Amendment interests
are fully developed as well.
15
extraordinary relief.
deficiency was reflected in the fact that the order does not
even mention the public’s First Amendment interests and the im-
time that it argued that the PFC Holmes must exhaust his reme-
16
Sixth Amendment, which explicitly guarantees defendants the
443 U.S. 368, 380 (1979). Open judicial proceedings act as a po-
ensure that the accused “is fairly dealt with and not unjustly
I, 464 U.S. at 510. Such situations “will be rare ... and the
v. Georgia, 130 S. Ct. 721, 724 (2010) (per curiam). Courts em-
17
ploy a rigorous four-part test in deciding when a defendant’s
18
(7th Cir. 2009) (Easterbrook, J., in chambers); see also In re
Neal, 461 F.3d 1048, 1053-54 (8th Cir. 2006). The argument
proves too much: if the risk of harm to the armed forces’ repu-
closed.
be, since the purpose of the adequate and “articulated ... find-
serted as the basis for restricting the public trial right, “the
dence from the record that would enable the government to meet
19
In sum, the Limitation Order is not justified by any arti-
(1986), and is the “greatest legal engine ever invented for the
Hurn, 368 F.3d 1359, 1363 (11th Cir. 2004) (internal quotation
20
criminal trial process” exist can courts constitutionally re-
The Limitation Order made it all but impossible for the de-
graphs in hand, the defense would have been limited to a dry se-
the legitimate moral force of his evidence,’ ... and can never
v. Swiatek, 819 F.2d 721, 731 n.4 (7th Cir. 1987) (quoting 9
trary.” Cf. Scheffer, 523 U.S. at 308. Not even the government
Holmes, 547 U.S. at 326. To the contrary, PFC Holmes has consis-
21
“are also exculpatory to the charge of premeditated murder” be-
trial. The Limitation Order put PFC Holmes to a choice that the
Verner, 374 U.S. 398, 406 (1963). In any event, even if he could
present whether or not any party has asserted the right.” Pres-
Enterprise I). The public’s open trial right was coin that PFC
22
CONCLUSION
If the Court does not act now to correct the error below,
should be granted.
Respectfully submitted.
Eugene R. Fidell
127 Wall St.
New Haven, CT 06511
CAAF Bar Number 13979
5
Pursuant to Rule 38(b) of the Rules of Practice and Procedure
of the United States Court of Appeals for the Armed Forces,
Messrs. Gossett and Wong have applied for admission to the bar
of this Court.
6
Not admitted in the District of Columbia. Practicing under the
supervision of firm principals.
23
CERTIFICATE OF COMPLIANCE WITH RULE 24(d)
2. This brief complies with the typeface and type style require-
7
Pursuant to Rule 38(b) of the Rules of Practice and Procedure
of the United States Court of Appeals for the Armed Forces,
counsel has applied for admission to the bar of this Court.
24
CERTIFICATE OF FILING AND SERVICE
January 20, 2011, and that a copy of the foregoing was transmit-
and Mr. Daniel Conway, Esq., Civilian Defense Counsel, and Da-
8
Pursuant to Rule 38(b) of the Rules of Practice and Procedure
of the United States Court of Appeals for the Armed Forces,
counsel has applied for admission to the bar of this Court.
25