Here’s an interesting ruling from AFCCA on an Article 62 appeal. United States v. Evenson, Misc. Dkt. No. 2012-12 (A.F. Ct. Crim. App. Feb. 27, 2013). The case arises from the court-martial of an Air Force Academy cadet on charges including Article 120. The military judge found at trial that restrictions had been imposed on cadets’ attendance during the portion of the Article 32 at which an alleged victim testified. He found that this constituted an improper partial closure of the Article 32 hearing. As a remedy, he dismissed the charges for a new Article 32. The government filed an Article 62 appeal.
AFCCA today affirmed. The court agreed with the military judge that restricting access by cadets resulted in a partial closure of the Article 32 hearing. AFCCA ruled:
We find that the commander who ordered the investigation, by and through his SJA as executing agent, restricted access to the hearing, in violation of the requirements of R.C.M. 405(h)(3). Indeed, the SJA testified that no legal basis existed to do so, but he nevertheless executed the orders of his commander. We could “infer and glean from the record [of] findings” why there was restricted access by specific spectators at the hearing; however, “[w]e decline to engage in post hoc reconstruction of facts and findings,” when the IO or commander who directed the investigation is required to do such analysis and the IO is “required to place [the] analysis [in the IO’s report] to demonstrate that this balancing occurred.” See Ortiz, 66 M.J. at 342. Under the circumstances, the appellee’s right to a public Article 32, UCMJ, hearing was violated.