An alter reader sent us this link to a North County Times article about Martin v. NCIS.  The article reports on this intriguing exchange between Judge Hayes and DOJ’s counsel, who said the public has no right to attend court-martial proceedings:  

Hayes asked Clukey, who represents the government, what constitutional rights, if any, the public has to attend military court hearings. Hayes said he wanted to know whether Martin was treated differently than the public in being denied access to the military court system.

“It is certainly a significant issue,” Hayes told Clukey.

Clukey replied that the military has “complete discretion” over how it runs its courts and that the public has no right whatsoever to attend. She said the public is granted entry by “invitation only.”

That position, of course, conflicts with R.C.M. 806 and decades of military appellate case law.

The article continues:

Rule 15.2 under the Sierra Judicial Circuit states that spectators are encouraged to attend any sessions of the court-martial unless otherwise determined by the military judge.

RCM 806 says: “In general, except as otherwise provided in this rule, courts-martial shall be open to the public. For purposes of this rule, ‘public’ includes members of both the military and civilian communities.”

Upon further questioning by Hayes, Clukey admitted she didn’t know what the military’s policy is toward public access to its courts. Hayes set a Tuesday hearing date to give her time to find out.

Of course, that issue was mooted, at least for now, when the United States informed Ms. Martin’s counsel that it would allow her to attend court-martial proceedings to the same extent that other members of the general public were allowed to attend, as we discussed here.

9 Responses to “Fascinating article on Martin v. NCIS”

  1. Paul says:

    It appears to be another instance where DoJ has no clue what military justice is or how it is practiced.

  2. Anonymous says:

    Well, can they be blamed too much, our Chief Justice of the Supremes thinks we practice “rough justice.”

  3. Anonymous says:

    Agreed, although with her experience in defending the Department of the Navy against various actions in this district, I would have thought Ms. Clukey had learned to subject agency claims to greater scrutiny, whether they relate to military justice or not.

    Still, I would place most of the fault on the Navy/Marine counsel providing her litigation support.

    How could the question not have been addressed in preparation for the hearing?

    Or, was it, and did Ms. Clukey’s response simply reflect the views of agency counsel supporting her?

    Given the fact that such an order was ever issued in the first place, I could see either possibility as a plausible explanation.

  4. Anonymous says:

    It’s true the CJ said that, but the “rough justice” part is a matter of opinion, whereas the existence of RCM 806 is not.

    My original post on the Martin case was a prediction that, if there were a shred of truth to the allegations in the complaint, it would wind up a net loss to the government because it would damage the public’s regard for MJ. As it turns out, DoJ wasn’t concerned with the public opinion because it thought the public wasn’t entitled to one (or at least not entitled to form one through attendance).

    This case needs new counsel for the defendant, before it gets *really* bad. My alter ego says they should roll with what they’ve got, because it’s fun to watch.

    At this point, I’m scoring the following points:

    1) Plaintiff + 1 on the part of its complaint alleging harassment by NCIS through “serving” what purported to be a charg sheet on her at home;

    2) Plaintiff + 1 when government reverses its “debarment” order;

    3) Plaintiff + 1 when many allegations made by government regarding witness Williams are apparently unsupported;

    4) Plaintiff + 1 when Judge Hayes provides DoJ counsel with an opportunity to go read a Rule for Court Martial which, given its central importance to the issues involved here, should have been burned into counsel’s mind some time ago.

    FWIW, I’m typically a government hack, and so I wish them the best of luck here. However, I don’t see good results for any of us from the pattern of this litigation.

  5. Christopher Mathews says:

    It would probably be too snarky to remind counsel, however gently, that ignorance of the law is no excuse.

  6. Paul says:

    Agreed. But to make the point, SCOTUS, DoJ and Mr. Kennedy’s counsel were all ignorant of the law concerning military death penalty law. I use this as further evidence of DoJ and others dismissing military justice as something “lesser than” and not worthy of review or comment.

  7. Christopher Mathews says:

    Hence my observation years ago that attorneys and judges in the federal system think we’re Canadians — you know, sort of like Americans, but not really.

  8. Paul says:

    Well, we are very polite.

  9. KaBar says:

    Much of Ms. Martin’s troubles began as she worked for multiple defendants wrt a security breach at CPEN. It is highly likely that direction to restrict Ms. Martin is coming from Gens Conway and/or Mattis who were to be called as witnesses in US v. Richards. Supposedly, those 2 GOs knew/authorized using mil-intel to assist local LE wrt muslims in S.Ca.