In United States v. Morton, 65 M.J. 91 (C.A.A.F. 2007) (mem.), the defense counsel wanted to overcome this unwise prohibition by retaining a civilian court reporter to attend the Article 32 and transcribe witness testimony. The CA apparently refused to allow it unless the defense made its transcript (which the defense would have been paying for) available to the trial counsel.
The defense challenged these restrictions in a petition for extraordinary relief that the Coast Guard Court denied. CAAF then denied a writ appeal without prejudice to raising the issue "in the course of future proceedings." Judge Erdmann dissented in part, observing:
I would grant partial relief by ordering that Appellee take no steps to preclude an employee of the defense from attending the Article 32, Uniform Code of Military Justice, 10 U.S.C. § 832 (2000), hearing, as a member of the public and from transcribing the proceedings, subject to the investigating officer's power to exercise reasonable control over members of the public attending the proceedings. I would not address the issue of attorney work-product privilege at this time as that is a matter appropriately left to a military judge in the event of a trial by court-martial.
Id. at 92 (Erdmann, J., concurring in part/dissenting in part).
We previously looked at Morton here, here, here, and here.
Now the issue is once again before the appellate courts. Today the Coast Guard Court dismissed a petition for extraordinary relief challenging similar restrictions "without prejudice to Petitioner's right to raise the issues therein in the course of normal review under the UCMJ." Garcia v. Crowley, Misc. Docket No. 004-08 (C.G. Ct. Crim. App. Apr. 16, 2008).
I hope that Fireman Garcia's counsel file a writ appeal and I hope that CAAF -- seeing that this wasn't an issue isolated to the Morton case and seeing that the Coast Guard has failed to apply common sense to the situation -- grants plenary consideration of the issue.