                      UNITED STATES, Appellee

                                    v.

               Daniel ORTIZ, Private First Class
                      U.S. Army, Appellant

                              No. 07-0555

                      Crim. App. No. 20040672

    United States Court of Appeals for the Armed Forces

                      Argued February 6, 2008

                        Decided May 30, 2008

RYAN, J., delivered the opinion of the Court, in which
EFFRON, C.J., and BAKER and ERDMANN, JJ., joined. STUCKY,
J., filed a separate dissenting opinion.


                                Counsel

For Appellant: William E. Cassara Esq. (argued); Captain
Alison L. Gregoire (on brief); Major Tyesha E. Lowery.

For Appellee: Captain Trevor A. Nelson (argued); Colonel
John W. Miller II, Major Elizabeth G. Marotta, and Captain
Larry W. Downend (on brief).

Military Judge:     Lauren B. Leeker




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Ortiz, No. 07-0555/AR




       Judge RYAN delivered the opinion of the Court.

       A general court-martial, composed of military judge

alone, convicted Appellant, contrary to his pleas, of rape

of a child under sixteen, sodomy of a child under sixteen,

two specifications of indecent liberties, indecent acts,

and wrongful communication of a threat, in violation of

Articles 120, 125, and 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 920, 925, 934 (2000).      The

sentence adjudged by the court-martial and approved by the

convening authority included a dishonorable discharge,

reduction to the lowest enlisted grade, forfeiture of all

pay and allowances, and confinement for twenty-five years.

The United States Army Court of Criminal Appeals summarily

affirmed the findings and sentence.     United States v.

Ortiz, No. ARMY 20040672 (A. Ct. Crim. App. Mar. 23, 2007)

(unpublished).    On Appellant’s petition, we granted review.1




1
    We granted review of:

       WHETHER APPELLANT WAS DENIED   HIS CONSTITUTIONAL
       RIGHT TO A PUBLIC TRIAL WHEN   THE MILITARY JUDGE
       EXCLUDED THE PUBLIC FROM THE   COURTROOM WHEN THE
       VICTIM, BP, TESTIFIED ON THE   MERITS.

65 M.J. 335 (C.A.A.F. 2007).

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United States v. Ortiz, No. 07-0555/AR


                           I.   Facts

     Appellant was accused of raping, sodomizing, and

subsequently threatening the daughter of a family friend

and neighbor.    The victim, BP, was nine years old when the

crimes were committed.    At the time of trial she was

eleven.

     BP was the first witness called by the Government at

trial.    It is apparent from the record that she had

considerable difficulty testifying.      Despite efforts by the

trial counsel, whom the military judge gave leave to ask

leading questions, BP’s answers were largely unresponsive

and inaudible.

     The military judge allowed BP to take a break in order

to “get her composure.”   During the break, the military

judge conducted a brief Rule for Courts-Martial (R.C.M.)

802 session.    The parties agreed that BP’s Victim Witness

Advocate would move from the gallery, where she had been

sitting at the outset of BP’s testimony, to the panel box,

so that BP could see her more easily and answer questions

more directly.   BP continued to be unresponsive.

     Trial counsel then moved to admit as exhibits two

anatomically correct dolls to assist in BP’s testimony.

Defense counsel lodged an objection, at which time BP told

defense counsel to “shut up.”       The military judge


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United States v. Ortiz, No. 07-0555/AR


instructed her to treat everyone in the courtroom with

respect.

     At this point, trial counsel moved to clear the

gallery:

     TC:   Your honor, at this time the government
           would move the court to clear the gallery of
           spectators. The reason for that is that
           it’s apparent from [BP’s] testimony that
           she’s having difficulty testifying. I
           believe that’s resulting from some
           embarrassment. And we would ask that the
           court exclude the members of the gallery
           from the gallery of the courtroom.

     MJ:   What’s your authority?

     TC:   In the Manual for Courts-Martial 2002
           Edition, in the discussion section under
           Rule 806 where it discusses the Rule for 806
           about a public trial, it says that
           “occasionally defense and prosecution may
           agree and request a closed session to enable
           a witness to testify without fear of
           intimidation or acute embarrassment or will
           testify about a matter, which while not
           classified as of a sensitive or private
           nature and that closure may be appropriate
           in such cases.”

           . . . .

     MJ:   Does defense have an objection to clearing
           the gallery for [BP’s] testimony?

           . . . .

     DC:   Judge, we would note our objection to
           excluding the people from the gallery.
           Number one, it’s a public trial. Number
           two, as I read the paragraph that the court
           invited to my attention, it says,
           “occasionally defense and prosecution may
           agree to request a closed session to enable


                              4
United States v. Ortiz, No. 07-0555/AR


           a witness to testify without fear of
           intimidation or acute embarrassment, etc.”
           I don’t know that there’s been any
           intimidation, that’s for sure. Secondly,
           judge, as far as the gallery is concerned,
           the young lady had had her back to the
           gallery because of the positioning of the
           microphone. She’s primarily –-

     MJ:   Well, I agree, but –- but I think when
           they’re –- I think the intent there is if
           they are here and can hear, that it would be
           –- that it is –- (pause) –- that it would be
           difficult.

     TC:   Your honor, the government also wants to ask
           –- it’s not only that intimidation or
           embarrassment. It also goes on to say in
           the discussion “if the matters are of a
           sensitive or a private nature” and the
           government has good faith belief to believe
           that [BP] could testify to matters that are
           of a sensitive and private matter to her.2

2
  This discussion highlights the trial counsel and military
judge’s apparent misunderstanding of the treatment by the
2002 Manual for Courts-Martial, United States (2002 ed.) of
the public trial right in R.C.M. 806, which provided in
pertinent part: “Except as otherwise provided in this
rule, courts-martial shall be open to the public.”
(emphasis added). Further, “a session may be closed over
the objection of the accused only when expressly authorized
by another provision of this Manual.” R.C.M. 806(b)
(emphasis added). The defense did object, and none of the
provisions that expressly authorized closure, Military Rule
of Evidence (M.R.E.) 412(c) (addressing victim’s sexual
predisposition), M.R.E. 505(i) and (j) (addressing
classified information), and M.R.E. 506(i) (addressing non-
classified but sensitive government information),
pertained. R.C.M. 806(b) Discussion. Thus, while the
Discussion does recognize that “the defense and prosecution
may agree to request a closed session to enable a witness
to testify without fear of intimidation or acute
embarrassment, or to testify about a matter which, while
not classified, is of a sensitive or private nature,” id.,
the defense counsel objected to the closure in this case.
Because the construction and application of R.C.M. 806 was

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United States v. Ortiz, No. 07-0555/AR



      In response to the motion and argument, the military

judge stated that “the question seems to be . . . whether

or not she’s going to be capable of doing it –- whether she

would be more capable of doing it or more able to do it if

the gallery were briefly excluded.”    The military judge

then recessed the court for approximately ten minutes in

order to research and consider the motion.

      Upon calling the court to order, the military judge

ordered a chair be placed in the well of the court,

directly in front of her bench, and proceeded to question

BP.

      MJ:    Okay.   Now you’ve said before you’re 11?

      WIT:   Yes.

      MJ:    Okay, good. You’re going to become a
             professional at this before too long.   (Pause.)
             Are you nervous?

      WIT:   Yes.

      MJ:    Why are you nervous?

      WIT:   Because.

      MJ:    Is this hard?

      WIT:   Yes.



not briefed by the parties and is not necessary to the
disposition of the granted issues, we need not and do not
decide whether failure to comply with the 2002 version of
R.C.M. 806 alone would be tested for prejudice, or deemed
structural error.

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United States v. Ortiz, No. 07-0555/AR


     MJ:    Why is it hard?

     WIT:   Because somebody’s in here.

     MJ:    Because people are here?

     WIT:   No, because –- yes, and to somebody.

     MJ:    Because somebody is here.

     WIT:   Yes, and because people are here.

     MJ:    Okay.

            . . . .

     MJ:    Okay, you said it was hard because there are
            people here?

     WIT:   (Affirmative nod.)

     MJ:    When you get nervous, do you tend to talk real
            low like you’re doing now?

     WIT:   I guess.

     MJ:    Well, I’m just thinking that if you’re a
            cheerleader you have to be able to yell and
            scream, right?

     WIT:   Yes.

     MJ:    Okay. So are you talking real low and
            scrunching down in your seat because this is a
            hard thing to talk about?

     WIT:   Yes.

     MJ:    And because there are a lot of adults here and
            you’re the only kid?

     WIT:   No.

     MJ:    No?

     Wit:   No.



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United States v. Ortiz, No. 07-0555/AR


     MJ:    Are you upset to be here today?

     WIT:   No.

     MJ:    You’re not upset to be here?

     WIT:   (Negative head shake.)

     MJ:    Okay. Even though your chair is faced towards
            me, do you know –- are you aware –- is it
            problematic that there are people in the –- back
            in the gallery?

     WIT:   What do you mean?

     MJ:    (Pause.) Is it difficult to come in and talk to
            all of us today?

     WIT:   Yes.

     MJ:    (Pause.) And sometimes it’s kind of hard
            because even though you –- you’re not looking at
            people, you know that they’re there watching
            you.

     WIT:   Yes.

     MJ:    (Pause.) [BP], what’s happening here today is
            real serious. Have they talked to you about
            that?

     WIT:   Uh-huh.    What people talked?

     MJ:    Well, have –- when you were interviewed by the
            counselors in this case, did they talk to you
            about the fact this is important?

     WIT:   Yes.

     MJ:    Okay. And I know it’s hard. It’s particularly
            hard when you’re only 11 years old. Would it be
            a little easier if there weren’t quite so many
            people here?

     WIT:   Kind of.

     MJ:    Do you think that you would be able to answer


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United States v. Ortiz, No. 07-0555/AR


            the questions if there weren’t quite so many
            people here?

     WIT:   Yes.

     MJ:    You think you could?

     WIT:   (Affirmative nod.)

     MJ:    You’re nodding your head.   Is that a yes?

     WIT:   Yes.

     Following this colloquy, and without further

discussion or explanation, the military judge ordered the

courtroom cleared of spectators and the doors locked.    The

record does not reflect how many spectators were in

attendance, or whether any of them were or were not friends

or family of Appellant.

     After the courtroom was cleared trial counsel

recommenced direct examination of BP and elicited testimony

that Appellant raped, sodomized, and threatened her.     BP’s

testimony, and the court closure, lasted the majority of

the first day of a two-day trial.    The remaining Government

witnesses, excluding one witness whose testimony was

ultimately disallowed by the military judge, testified for

a total period of approximately two hours, during which

time the courtroom was open to the public.




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United States v. Ortiz, No. 07-0555/AR


                        II.   Analysis

     “In all criminal prosecutions, the accused shall enjoy

the right to . . . a public trial.”      U.S. Const. amend. VI.

A public trial “ensur[es] that judge and prosecutor carry

out their duties responsibly . . . and discourages

perjury.”   Waller v. Georgia, 467 U.S. 39, 46 (1984).

      Yet, as interpreted by the Supreme Court, the right

to a public trial is not absolute.    Id. at 45 (stating that

the “Court has made clear that the right to an open trial

may give way in certain cases to other rights or

interests”); see also United States v. Hershey, 20 M.J.

433, 436 (C.M.A. 1985) (stating the same).     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.’”

Waller, 467 U.S. at 46 n.4 (quoting Estes v. Texas, 381

U.S. 532, 588 (1965) (Harlan, J., concurring)).     This

presumption is overcome only where “the balance of

interests . . . [is] struck with special care.”     Id. at 45.

In striking this balance, the Supreme Court has looked to

its First Amendment jurisprudence regarding the press and

public’s right to attend criminal trials and incorporated


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United States v. Ortiz, No. 07-0555/AR


the test used there in the Sixth Amendment context.   Id. at

45-46.

     Recognizing the importance of the right, not only to

an accused, but to the public and the integrity of the

criminal process, prior to closing a trial we require 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.

Hershey, 20 M.J. at 436 (citing Press-Enterprise Co. v.

Superior Court (Press-Enterprise I), 464 U.S. 501 (1984);

and Waller, 467 U.S. at 46).

     The question before us is whether the military judge

abused her discretion in closing the courtroom during BP’s

testimony.   See United States v. Short, 41 M.J. 42, 44

(C.M.A. 1994) (reviewing a ruling under R.C.M. 806(b) for

an abuse of discretion); United States v. Travers, 25 M.J.

61, 62 (C.M.A. 1987) (applying an abuse of discretion

standard and stating that “[t]he question of whether ‘an

overriding interest’ [necessitating closure] exists lies in

the sound discretion of the military judge”); United States

v. Farmer, 32 F.3d 369, 371-72 (8th Cir. 1994) (reviewing a

decision to temporarily close a trial for an abuse of



                               11
United States v. Ortiz, No. 07-0555/AR


discretion).    “A military judge abuses his discretion when

. . . [she] improperly applies the law.”   United States v.

Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004).    Here, the only

question is whether the military judge correctly applied

the law.   The military judge in this case failed to

correctly apply the legal test necessary to overcome the

presumption in favor of a public trial.    Consequently, the

denial of the right to a public trial was an abuse of

discretion.

     The military judge did not even identify the relevant

factors to consider or articulate the reason for her

decision to clear the courtroom, let alone make findings.

For that reason alone her decision was not in conformity

with the law.   See Waller, 467 U.S. at 45 (stating that a

trial judge must make “‘findings specific enough that a

reviewing court can determine whether the closure order was

properly entered’” (quoting Press-Enterprise I, 464 U.S. at

510)).   On the other hand, the record illustrates both a

practical reason for closure –- the child witness could not

or would not testify before the courtroom was closed –- and

that at least some alternatives less restrictive than

closure were attempted.

     The real question, therefore, is whether failure to

meet the test articulated by the Supreme Court in Waller


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United States v. Ortiz, No. 07-0555/AR


makes the deprivation of the Sixth Amendment right to a

public trial erroneous.     On the bare record before us, we

hold that it does.

     This is an unfortunate case.     The articulated interest

proposed by the Government counsel was ambiguous, at best.

And the military judge failed to make any findings, let

alone adequate findings, supporting closure to aid in

review.    It is unfortunate because, based on the record

before us, the military judge could well have made findings

supporting her decision, and in the process perhaps better

articulated the Government’s interest in the closure.       With

this lacuna, we need not address the question whether the

closure was narrowly tailored to protect the overriding

interest or whether reasonable alternatives to closure were

considered, since the military judge did not inform us of

the basis for her decision.

          A.   The Articulation of an Overriding Interest

     In order to overcome the strong presumption in favor

of the public trial right, the party seeking closure must

articulate and advance an overriding interest that is

likely to be prejudiced.     No one questions that if trial

counsel had articulated that closure was necessary to

protect the physical and psychological welfare of BP, the

minor victim, an overriding interest would have been


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United States v. Ortiz, No. 07-0555/AR


advanced.   See Globe Newspaper Co. v. Superior Court, 457

U.S. 596, 607 (1982) (stating that “safeguarding the

physical and psychological well-being of a minor -- is a

compelling” interest) (footnote omitted); United States v.

Galloway, 937 F.2d 542, 546 (10th Cir. 1991) (finding a

“substantial or compelling interest in protecting young

witnesses who are called to testify in cases involving

allegations of sexual abuse”).     But that was not the

interest advanced in this case.

     Rather, the trial counsel specifically requested

closure on the grounds that BP was having trouble

testifying, possibly because she was embarrassed, and a

general observation that the testimony was of “a sensitive

or private nature.”   Suggesting that a witness’s difficulty

testifying based on possible embarrassment, or the private

or sensitive nature of the testimony alone is sufficient to

constitute the “compelling interest” that is “likely to be

prejudiced” necessary to override an accused’s right to a

public trial is inarticulate at best.3    See Hershey, 20 M.J.

at 436 (stating that “[w]hile it may be permissible under

certain circumstances to exclude spectators during the


3
  We save for another day the question whether the
Government’s anemic articulation of an overriding interest
could have been resurrected by more specific findings on
the part of the military judge.

                              14
United States v. Ortiz, No. 07-0555/AR


testimony of a victim of tender years, that must be decided

on a case-by-case basis and not based on the mere utterance

of the word ‘embarrassment’”).

     Not only are we aware of no case where such a proffer

was deemed sufficient, it seems contrary to the Supreme

Court’s analysis in Globe Newspaper, which appeared to

reject generalized assertions of closure based on the

possibility of embarrassment or the sensitive nature of the

testimony.   See 457 U.S. at 606-09.

             B.   Adequate Findings on the Record

     Even assuming the trial counsel’s asserted interest

was sufficient as articulated, Hershey requires the

military judge to consider the interest, make a

determination on a case-by-case basis, and make adequate

findings to support appellate review.    20 M.J. at 436.

     In making that determination, a military judge’s

findings should show that she considered factors such as

“the minor victim’s age, psychological maturity and

understanding, the nature of the crime, the desires of the

victim, and the interests of parents and relatives.”     Globe

Newspaper, 457 U.S. at 608 (footnote omitted).      In this

case, the military judge asked BP several leading questions

regarding her age, whether she had discussed the necessity

of her testimony with counselors, the reasons for her


                              15
United States v. Ortiz, No. 07-0555/AR


difficulties testifying, and finally asked her if closing

the courtroom would mitigate those difficulties.

     The answers elicited in response to these questions

may have formed the basis for a determination that closure

was necessitated in this case to protect the well-being of

a minor victim, and adequate findings for appellate review.

But the military judge never affirmatively, either orally

or in a written addendum to the record, articulated

findings as to why she deemed closure to be necessary; she

simply ordered the courtroom closed.    While we do not

believe the Sixth Amendment dictates a formalistic approach

as to the manner in which a military judge delivers her

findings, this Court, following the lead of the United

States Supreme Court, requires that a military judge make

some findings from which an appellate court can assess

whether the decision to close the courtroom was within the

military judge’s discretion.   Press-Enterprise Co. v.

Superior Court (Press-Enterprise II), 478 U.S. 1, 13-14

(1986); Waller, 467 U.S. at 47; Press-Enterprise I, 464

U.S. at 510; Hershey, 20 M.J. at 436.

     On the current state of the record we have no way of

knowing the military judge’s reasons or reasoning for

closing the courtroom.   This makes it impossible to

determine whether the military judge properly balanced the


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United States v. Ortiz, No. 07-0555/AR


inadequate interest asserted by the Government -- possible

embarrassment to BP -- against the accused’s right to

public trial, or substituted another interest such as the

psychological well-being of the child in place of the one

inartfully asserted by the Government.   See Press-

Enterprise II, 478 U.S. at 13-14 (“[P]roceedings cannot be

closed unless specific, on the record findings are made

demonstrating that closure is essential to preserve higher

values and is narrowly tailored to serve that interest.”)

(citations and quotation marks omitted); Waller, 467 U.S.

at 49 n.8 (rejecting appellate court’s post hoc assertion

that the trial court properly balanced the interests where

findings were inadequate); English v. Artuz, 164 F.3d 105,

109-10 (2d Cir. 1998) (holding that the absence of

“meaningful findings” violated the appellant’s right to a

public trial); Guzman v. Scully, 80 F.3d 772, 776 (2d Cir.

1996) (stating the same).

   C.   Erroneous Deprivation of the Right to Public Trial

     The Government argues that none of the above

constitutes an erroneous deprivation of Appellant’s Sixth

Amendment right to a public trial either because it was not

a true closure or because this Court can, post hoc, discern

sufficient information from the record to perform the test

laid out in Waller and Hershey on our own.   We disagree.


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United States v. Ortiz, No. 07-0555/AR


        1.   Appellant’s Trial Was Completely Closed

     Where some spectators are required to leave, 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,

see Waller, 467 U.S. at 46 & n.4 (citation and quotation

marks omitted), is “only moderately burdened . . . as

certain spectators remain and are able to subject the

proceedings to some degree of public scrutiny.”   Judd v.

Haley, 250 F.3d 1308, 1315 (11th Cir. 2001).   A partial

closure that allows some, but not all, spectators to remain

thus may not raise precisely the same concerns articulated

in Waller and Press-Enterprise I.   See, e.g., Garcia v.

Bertsch, 470 F.3d 748, 753 (8th Cir. 2006) (allowing a

laxer standard “because a partial closure does not

‘implicate the same secrecy and fairness concerns that a

total closure does’” (quoting Farmer, 32 F.3d at 371));

Nieto v. Sullivan, 879 F.2d 743, 753 (10th Cir. 1989)

(using “a less stringent test of a ‘substantial reason’

where partial closures are held necessary”); Douglas v.

Wainwright, 714 F.2d 1532, 1540 (11th Cir. 1983) (holding

that “where neither all members of the public nor the press

are excluded, the ‘public’ nature of the proceedings may be

retained sufficiently so that a lesser justification for


                             18
United States v. Ortiz, No. 07-0555/AR


the partial closure will suffice to avoid constitutional

deprivation”).

     Consequently, several circuits have found no erroneous

deprivation of the right to a public trial despite limited

findings or the absence of findings in the context of a

“partial closure.”   See, e.g., United States v. Sherlock,

962 F.2d 1349, 1356-57 (9th Cir. 1992) (holding that

limited findings were acceptable in a partial closure

case).   The parties have cited no case where a more lax

approach to the absence of findings was adopted after the

court found a complete, albeit temporary, closure of the

courtroom.4

     Labeling a closure as “complete” or “partial” is a

qualitative, not temporal, question.   While the Government


4
  We note that one circuit has, in the course of considering
a habeas corpus petition based on an allegation of
ineffective assistance of counsel in a state trial,
determined that it was not an unreasonable application of
federal law to find no ineffective assistance of counsel
for failing to raise a erroneous deprivation of the right
to a public trial on direct review where specific findings
were not made by the judge, but the record did not show
that the judge had not made a considered determination to
close the court. Bell v. Jarvis, 236 F.3d 149, 171-72 (4th
Cir. 2000) (stating “[w]e find no basis upon which to
conclude that the trial judge failed to carefully consider
the individual facts of this case before making his
decision, or that he otherwise shirked his duty in this
regard”). Given the standard of review applied in
collateral challenges to state court decisions, we think it
is not persuasive authority for a case on direct review.



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United States v. Ortiz, No. 07-0555/AR


argues that the closure in this case was partial because it

did not encompass the entirety of the proceedings, we think

the appropriate analysis begins by asking exactly who was

barred from the court.   Closures have typically been

described as “partial” when select spectators or members of

the press were barred from the courtroom, but others were

allowed to remain.   See, e.g., United States v. Osborne, 68

F.3d 94, 99 (5th Cir. 1995) (exclusion of codefendant’s

sister and “new spectators” during testimony of one witness

upheld); Farmer, 32 F.3d at 371-72 (exclusion of all

spectators except victim’s family while victim testified

upheld); Kuhlmann, 977 F.2d at 76-78 (exclusion of

defendant’s common law wife, his common law wife’s sister

and his cousin during one witness’s testimony upheld);

Nieto, 879 F.2d at 753-74 (exclusion of defendant’s sisters

and other unspecified relatives during one witness’s

testimony upheld); Sherlock, 962 F.2d at 1356-59 (exclusion

of defendants’ unspecified family members during victim’s

testimony upheld).   Conversely, the temporary nature of a

closure has not prevented courts from describing it as

“complete.”   English, 164 F.3d at 110 (complete closure to

seal the court during one witness’s testimony).   In this

case, the courtroom was cleared of all spectators during

the vast majority of BP’s testimony.


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United States v. Ortiz, No. 07-0555/AR


     Going beyond the question of who was barred, the

United States Court of Appeals for the Second Circuit

succinctly articulated other substantive factors to be

considered in determining whether a closure is “broad or

narrow,” “complete or partial”:

     [It] depends on a number of factors, including
     its duration, whether the public can learn
     (through transcripts, for example) what
     transpired while the trial was closed, whether
     the evidence presented during the courtroom
     closure was essential, or whether it was merely
     cumulative or ancillary, and whether selected
     members of the public were barred from the
     courtroom, or whether all spectators were
     precluded from observing the proceedings.

Bowden v. Keane, 237 F.3d 125, 129-30 (2d Cir. 2001)

(citations omitted).

     In this case the court was closed to the public during

the substantive testimony of the key Government witness,

which was essential to, and comprised the bulk of, the

Government’s case.   All spectators were barred from

observing the crux of the proceedings against Appellant.

     It is true that this Court described a closure during

the testimony of the key government witness as partial

after considering the short duration of the closure, but

notable to the decision in that case was that, “[m]ore

importantly, it appears that the only person present in the

courtroom other than the accused and court personnel when



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United States v. Ortiz, No. 07-0555/AR


trial counsel made his exclusionary motion was appellant’s

escort.    The two people asked to leave the courtroom, then,

were not there as spectators, but to perform a governmental

function.”     Hershey, 20 M.J. at 437.

     In this case, the record indicates that the courtroom

was completely closed to spectators.      The military judge

“cleared the gallery,” creating a strong inference there

were spectators to clear, and locked the doors during the

entirety of the substantive testimony of the Government’s

critical witness -– the victim.      Nothing in the record

indicates whether the friends or family of the accused or

the witness were present.     See In re Oliver, 333 U.S. 257,

272 (1948) (noting that “an accused is at the very least

entitled to have his friends, relatives and counsel

present”).     And while the military judge did suggest she

might reopen the courtroom during BP’s testimony, United

States v. Ortiz, __ M.J. __ (6) (C.A.A.F. 2008) (Stucky,

J., dissenting), that never occurred.     The closure in this

case was a complete closure for purposes of the Sixth

Amendment, albeit less than complete in a temporal sense.

          2.   This Court May Not Make Post Hoc Findings

     The Government asks us to infer and glean from the

record findings that were not placed there by the military

judge.    We decline to engage in post hoc reconstruction of


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United States v. Ortiz, No. 07-0555/AR


facts and findings that could have been made at trial, but

were not.   The trial procedure to address this Sixth

Amendment right requires, inter alia, trial counsel to

advance a compelling interest and the military judge to

carefully balance, on the record, that interest against the

accused’s Sixth Amendment right.    The military judge was

required to place her analysis on the record sufficient to

demonstrate that this balancing occurred.    That did not

happen.

     Moreover, the Government’s assertion misapprehends the

test articulated by the Supreme Court.    Waller, 467 U.S. at

49 n.8 (rejecting the Georgia Supreme Court’s post hoc

balancing analysis as unable to satisfy the Press-

Enterprise I standard).5   The question is not whether an

appellate court can supply a cogent reason why it was

acceptable to deprive an accused of the constitutional

right to a public trial.   Rather, the question is whether

the military judge identified the competing interests and

balanced them in a given case.     The mind of the military


5
  The dissent appears to embrace the Government’s suggestion
that this Court can fill the void in the record via post
hoc rationalization that the military judge did engage in
the required balancing test. However, there is simply no
statement by the military judge identifying or suggesting
she balanced the factors outlined in Waller and Hershey,
and that “assertion finds little or no support in the
record.” Waller, 467 U.S. at 49 n.8.

                              23
United States v. Ortiz, No. 07-0555/AR


judge cannot be inferred from the record, absent something

in the record reflecting the military judge’s analysis.

     Finally, under the circumstances of this case,

Appellee’s argument ignores that this Court may only take

action with respect to matters of law.   Article 67(c),

UCMJ, 10 U.S.C. § 867(c) (2000).    Therefore, we reject the

Government’s request that we selectively search the record

and make factual findings supporting the military judge’s

decision to close the courtroom.

                          D.   Remedy

     In this case, the record does not support a conclusion

that the Waller/Hershey balance was considered or struck by

the military judge.   Consequently, the presumption in favor

of the right to a public trial was not overcome at 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 this Court to

overturn Appellant’s conviction without a harmlessness

analysis.   Arizona v. Fulminante, 499 U.S. 279, 310 (1991)

(noting that denial of the right to public trial is a

structural error because it is a “constitutional

deprivation[] . . . affecting the framework within which

the trial proceeds, rather than simply an error in the

trial process itself” (citing Waller, 467 U.S. at 49 n.9)).


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United States v. Ortiz, No. 07-0555/AR


                       III.     Decision

     The decision of the United States Army Court of

Criminal Appeals is reversed.    The findings and sentence

are set aside, and the record of trial is returned to the

Judge Advocate General of the Army.    A rehearing is

authorized.




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United States v. Ortiz, No. 07-0555/AR


     STUCKY, Judge (dissenting):

     The majority is correct; this is an unfortunate case.     But

while the military judge may not have followed best practice by

failing to articulate specific findings of fact, I cannot find

that she misapplied the Supreme Court’s test in Press-Enterprise

Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501 (1984).

Because a proper foundation for closing the courtroom during

part of BP’s testimony is evident from the record, I would find

no abuse of discretion and, therefore, no deprivation of the

Sixth Amendment right to a public trial.   As such, I dissent.

     I find the majority’s analysis unpersuasive for two related

reasons.   First, I do not understand the plain language of

either Press-Enterprise I, or United States v. Hershey, 20 M.J.

433 (C.M.A. 1985), to require the military judge to

“affirmatively . . . articulate[] findings” on the record.

United States v. Ortiz, __ M.J. __ (16) (C.A.A.F. 2008).      In

Press-Enterprise I, the Supreme Court simply required “findings

specific enough that a reviewing court can determine whether the

closure order was properly entered,” 464 U.S. at 510, much like

any reviewing court requires a record adequate for review.     See,

e.g., Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (citing

Boykin v. Alabama, 395 U.S. 238, 244 (1969)).   To demand

anything more transforms what was intended as a flexible
United States v. Ortiz, No. 07-0555/AR


approach into a formalistic one, regardless of the majority’s

suggestion to the contrary.

       Second, though I remain doubtful that this was a complete

closure, even the assumption that it was does not support the

majority’s view that making explicit findings on the record is a

prerequisite to upholding the closure in this case.   While the

majority might not have found any complete closure case in which

a federal court adopted a nonformulaic approach to findings,

that is so because the adequacy of findings was not at issue in

most cases.   After all, most judges simply make explicit

findings.   The majority cites no case that actually holds that

completeness of the closure is the fulcrum upon which the

findings prong sits.

       Instead, it cites cases concerning the relaxation of the

first prong of the Press-Enterprise I test in partial closure

cases.   In Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000), the

United States Court of Appeals for the Fourth Circuit made clear

that

       while the Supreme Court has never set forth a less
       rigorous standard for partial closures, some circuits
       have relaxed the first Waller requirement where a
       temporary or partial closure of a proceeding is at
       issue. Specifically, these circuits have required
       only that the state advance a “substantial reason” for
       closing the proceeding because, unlike those
       situations involving a complete closure, a partial
       closure does not threaten as acutely the historical
       concerns sought to be addressed by the Sixth
       Amendment.


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United States v. Ortiz, No. 07-0555/AR



Id. at 168 n.11; see also United States v. Osborne, 68 F.3d 94,

98-99 (5th Cir. 1995); United States v. Farmer, 32 F.3d 369, 371

(8th Cir. 1994); United States v. Sherlock, 962 F.2d 1349, 1356-

57 (9th Cir. 1992); Nieto v. Sullivan, 879 F.2d 743, 753 (10th

Cir. 1989); Douglas v. Wainwright, 739 F.2d 531, 532-33 (11th

Cir. 1984) (per curiam).

     The rationale for maintaining a heightened burden on the

government with regard to the first prong is, thus, that

complete closures implicate Sixth Amendment concerns more

seriously than partial closures.       It makes intuitive sense,

then, to raise the hurdle the government must jump over to show

a need to bar, say, the press, the public, and the defendant’s

family, rather then just the press.      However, it is neither

equally as intuitive nor required by the test’s plain language

to heighten the requirements of the fourth prong for the same

reason.   After all, the first prong of the Press-Enterprise I

test is qualitatively different from the final three.      The

former places a burden on the party seeking closure; the latter

three assign responsibilities to the court.

     Alternatively, the Supreme Court constructed the first

three prongs out of respect for the right of access to criminal

trials.   Globe Newspaper Co. v. Superior Court, 457 U.S. 596,

606 (1982) (referring to the “particularly significant role”



                                   3
United States v. Ortiz, No. 07-0555/AR


public access plays in the proper functioning of the judiciary

because “[p]ublic scrutiny of a criminal trial enhances the

quality and safeguards the integrity of the factfinding process,

with benefits to both the defendant and to society as a whole

. . . [and] fosters an appearance of fairness, thereby

heightening public respect for the judicial process. . . .      [I]n

the broadest terms, public access to criminal trials permits the

public to participate in and serve as a check upon the judicial

process -- an essential component in our structure of self-

government”).   The intention behind the fourth prong, however,

was to ensure that “a reviewing court can determine whether the

closure order was properly entered.”      Press-Enterprise I, 464

U.S. at 510.

     Through either lens, the first and fourth prongs of the

Press-Enterprise I test are analytically distinct.       An

admittedly logical rationale for heightening a party’s burden

under the former cannot automatically translate into an

appropriate reason to heighten a different party’s

responsibility under the latter.       This is likely the reason why

courts, when presented with less than complete findings on the

record in partial closure cases, do not base their acceptance of

such findings vis-à-vis the fourth prong on the grounds that

partial closures do less harm to the right of access at the core

of the Sixth Amendment.   See, e.g., Bell, 236 F.3d at 170-71


                                   4
United States v. Ortiz, No. 07-0555/AR


(upholding a partial closure even without explicit findings

because the record revealed the judge knew the witness’s

particular characteristics, the facts of the case, and the

nature of the testimony); United States v. Bow, 1997 U.S. App.

LEXIS 5326, at *8, 1997 WL 124345, at *3 (9th Cir. 1997) (same).

In Bell and Bow, then, what merited acceptance of nonexplicit

findings was not that partial closures caused less harm to Sixth

Amendment rights, but because the records of trial, upon the

appellate courts’ own review, described facts necessary to meet

each prong and adequately evidenced the judge’s rationale in

deciding to close the courtroom.

     The record in Appellant’s case is equally sufficient.

First, it is replete with evidence of the need to close the

courtroom.    Trial counsel moved for courtroom closure after a

lengthy attempt to extract audible testimony from BP and after

her body language and rude behavior suggested her level of

discomfort.   BP had “difficulty testifying. . . . resulting from

some embarrassment,” according to trial counsel, and clearing

the gallery of spectators would alleviate that embarrassment.

Given that the Discussion to Rule for Courts-Martial (R.C.M.)

806(b) requires an overriding interest and lists avoiding

embarrassment as one such interest, the record reasonably

describes the military judge’s understanding that trial counsel




                                   5
United States v. Ortiz, No. 07-0555/AR


advanced a recognized overriding interest to close the

courtroom, thus satisfying the test’s first prong.

     The record also makes clear that the military judge

narrowly tailored the closure to suit the needs of the witness

and the overriding interest offered by the Government.   Before

granting the motion, the military judge questioned the witness

extensively.   BP admitted that she was speaking in a low,

mumbled tone because she was nervous.    After some additional

questioning, the witness also admitted that her nerves made it

difficult to testify and that she was nervous because there were

so many people in the gallery.   The military judge asked if the

witness would be more at ease if she faced away from the

spectators and spoke directly to the military judge.    The

witness still maintained that she was nervous.   Given BP’s age,

Post-Traumatic Stress Disorder diagnosis, and the private nature

of the allegations against Appellant, her nervousness is

understandable.   Moreover, upon deciding to close the courtroom,

the military judge advised counsel that she wanted to “minimize

the time that the courtroom is going to be closed,” even stating

that as soon as the witness appeared more comfortable

testifying, the courtroom would be reopened.   In addition, BP

actually testified in public for nearly one-third of her

testimony.   She started her testimony shortly after 9:30 a.m.

and continued to shortly after 10:54 a.m., representing fifty-


                                 6
United States v. Ortiz, No. 07-0555/AR


three pages in the record.   She testified in closed court until

page 210 of the record and was later recalled for another ten

pages.

     Finally, the record indicates that the military judge

considered a number of alternatives before closing the

courtroom.   She used a comfort break, admonished the witness to

behave in a courteous manner, asked if turning away from the

spectators would relieve the witness’s nervousness, and directed

trial counsel to move to another area of the courtroom to

facilitate the witness in projecting her voice.   All these

failed.   The witness continued to slouch, mumble under her

breath, make rude comments, and manifest her discomfort as a

witness in open court.   The military judge’s only remaining

recourse was to close the courtroom.

     Since the record in this case is adequate to support this

Court’s review and because the record evidences a narrowly

tailored closure used as a last resort and based on a recognized

overriding interest, I would uphold the military judge’s

decision to close the courtroom during part of BP’s testimony.

I therefore dissent.




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