2016 (October Term)
United States v. Commisso, 76 M.J. 315 (as a matter of due process, an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel; indeed, impartial court-members are a sine qua non for a fair court-martial).
2011 (September Term)
United States v. Easton, 71 M.J. 168 (in courts-martial, there is no right to indictment by grand jury; in addition, there is no Sixth Amendment right to trial by jury in courts-martial).
United States v. Nash, 71 M.J. 83 (an accused enjoys the right to an impartial and unbiased panel; this right is provided in the military justice system by the Constitution, federal statutes, regulations and directives, and case law).
United States v. Elfayoumi, 66 M.J. 354 (as a matter of due process, an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel).
United States v. Ortiz, 66 M.J. 334 (in all criminal prosecutions, the accused shall enjoy the right to a public trial; a public trial ensures that judge and prosecutor carry out their duties responsibly and discourages perjury).
(the right to a public trial is not absolute; however, there is a strong presumption in favor of a public trial, grounded in the belief that it is critical to affording an accused a fair trial, as judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings; this presumption is overcome only where the balance of interests is struck with special care).
(recognizing the importance of the right to a public trial, not only to an accused, but to the public and the integrity of the criminal process, prior to closing a trial, it is required that: (1) the party seeking closure must advance an overriding interest that is likely to be prejudiced; (2) the closure must be narrowly tailored to protect that interest; (3) the trial court must consider reasonable alternatives to closure; and (4) the trial court must make adequate findings supporting the closure to aid in review).
(in this case, the military judge abused her discretion and denied the accused his right to a public trial by closing the courtroom to spectators during the testimony of a minor victim, where the military judge failed to correctly apply the legal Waller test (Waller v. Georgia, 467 US 39 (1984)) necessary to overcome the presumption in favor of a public trial and did not even identify the relevant Waller factors to consider or articulate the reason for her decision to clear the courtroom, let alone make findings).
(where only some spectators are required to leave the courtroom, and some spectators can or do remain, the Constitution’s public trial guarantee, which ensures that participants perform their duties more responsibly and discourages perjury, is only moderately burdened as certain spectators remain and are able to subject the proceedings to some degree of public scrutiny; consequently, several circuits have found no erroneous deprivation of the right to a public trial despite limited findings by the trial court or the absence of findings in the context of a partial closure).
(while the Sixth Amendment does not dictate a formalistic approach as to the manner in which a judge delivers findings supporting the closing of a trial, a military judge must make some findings from which an appellate court can assess whether the decision to close the courtroom was within the military judge’s discretion).
(trial closure that occurred when the military judge completely closed the courtroom to spectators and locked the door during the substantive testimony of the key government witness, which was essential to, and comprised the bulk of, the government’s case, was a complete closure for purposes of the Sixth Amendment, albeit less than complete in a temporal sense).
(in this case, the record does not support a conclusion that the military judge struck the balance of interests necessary to overcome the presumption in favor of the right to a public trial, and the complete deprivation of the right was erroneous).
(an erroneous deprivation of the right to a public trial is structural error, which requires an appellate court to overturn appellant’s conviction without a harmlessness analysis).
United States v. Bragg, 66 M.J. 325 (an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel).
United States v. Albaaj, 65 M.J. 167 (a touchstone of a fair trial is an impartial trier of fact; where a potential member is not forthcoming, the process may well be burdened intolerably).
United States v. Leonard, 63 M.J. 398 (a servicemember does not have a Sixth Amendment right to trial by jury; however, Congress has established the court-martial as the institution to provide military justice to service members; Congress has also afforded every servicemember the right to have a court-martial of panel members for both a general and a special court-martial).
United States v. Richardson, 61 M.J. 113 (as a matter of due process, an accused has a constitutional right, as well as a regulatory right, to a fair and impartial panel).
United States v. Dowty, 60 MJ 163 (the Sixth Amendment right to trial by jury with accompanying considerations of constitutional means by which juries may be selected has no application to the appointment of members of courts-martial; a servicemember has no right to have a court-martial be a jury of peers, a representative cross-section of the community, or randomly chosen; but, the military defendant does have a right to members who are fair and impartial; this right is the cornerstone of the military justice system).
States v. Wiesen, 57 MJ 48 (Recon.)(Sixth
to trial by jury does not apply to courts-martial; who may serve on a
court-martial is governed instead by Article 25, Uniform Code of
Justice, 10 USC § 825, which permits the convening authority – the
has exercised prosecutorial discretion in the case – personally to
members of the court-martial panel).