Tuesday, January 15, 2008

Coast Guard Court to hold partially closed hearing

The Coast Guard Court will hold an oral argument tomorrow, portions of which will be closed to the public.

The court's hearing notice announces:

The U.S. Coast Guard Court of Criminal Appeals will hear oral argument in the case of United States v. Cadet Webster M. Smith on Wednesday, the 16th of January 2008, in the Courtroom at Ballston, VA, on the 7th Floor, 4200 Wilson Blvd. There will be a closed session, as well as a session that is open to the public. The closed session will begin at 0950 and will be followed by the open session at 1030.

Ronald C. Machen, Esquire, will argue on behalf of Cadet Webster M. SMITH, the appellant in this case. LCDR Patrick M. Flynn, USCG, will argue on behalf of the Government.

Issues: At the closed session, the issue to be argued is whether the convictions for extortion, sodomy, and indecent assault must be reversed because the military judge violated Appellant’s constitutional right to confront his accusers by limiting his cross-examination of a witness.

The issues to be argued at the open session are (1) whether the sodomy conviction based on private consensual, non-commercial activity between adults of equal rank is unconstitutional if the extortion and indecent-assault findings are set aside and (2) whether the extortion conviction must be overturned because the Government failed to prove that Appellant threatened another cadet with the intent to obtain sexual favors.

Case Summary: Appellant was tried by General Court-Martial and convicted of unauthorized absence, attempted failure to obey a lawful order, sodomy, extortion, and indecent assault. The approved sentence consists of a dismissal, forfeiture of all pay and allowances, and confinement for six months.

The 1030 session of the hearing is open to the public.


Jason Grover said...

Is it really necessary to close part of the hearing? I understand, just based on the issue, that there might be some desire to protect the witness. But cannot we just refer to the witness as X? Does anybody know whether it was closed by the Court sua sponte, or whether one side or the other made a motion. I wonder how a third-party motion, say from a news organization, to open it might have been received.

Anonymous said...

RCM 806 provides for a public trial by court-martial. Is there any right to public access to oral argument before the CCA or CAAF? The CAAF rules certainly don't mandate a public hearing at oral argument.

Anonymous said...

The only sense I can make of this is the limit on cross examination must touch on classified evidence.

John O'Connor said...

It's an interesting question that Anonymous raises. There's not even a right to a hearing, so part of me thinks that there can't be a right to a public hearing. That said, when there's no hearing, the papers on which the decision is made are theoretically available to the public, and it seems that arguments upon which a decision may be based should generally be open to the public. That right necessarily can't be absolute, though, for the same reason that courts-martial and civilian trials sometimes are closed to the public.

But I think Jason Grover is right, I have a hard time thinking that this argument needs to be closed unless the sodomy occurred on a pile of classified documents. It seems that an order directing counsel not to identify the victim by name would suffice.

Phil Cave said...

It could be a MRE 412 issue? Anyone know? It it is, then they'd be tracking with MRE 412 at trial.