Military appellate court rules misconduct hearing must be open

WASHINGTON, D.C.–In late June, the U.S. Court of Appeals for the Armed Forces in Washington D.C. held that a preliminary hearing in the sexual misconduct case against Sgt. Maj. Gene McKinney must be open to the public, unless the Army could show a specific and substantial need for secrecy.

The brief opinion by the appellate court did not discuss its reasoning for mandating openness.

Army officials at Ft. Myer in Arlington, Va., ordered the preliminary hearing closed. The closure order was challenged by five television networks and The Washington Post. McKinney, his main accuser Brenda Hoster, and two military justice groups also argued for open proceedings.

According to Army regulations, a preliminary hearing, known as an Article 32, is presumptively open, but may be closed at the local commander’s discretion. According to The Washington Post, however, Article 32 hearings are routinely closed, especially in cases that provoke media interest. The Post quoted Army Chief of Staff Dennis Reimer as saying that Article 32 hearings “are never open.”

The Army said that the hearing should be closed to minimize “distraction” from the issues, to ensure McKinney’s fair trial rights and to protect the privacy of the alleged victims.

McKinney faces charges of adultery and indecent assault in connection with complaints filed by four women service members. The purpose of the hearing is to determine whether there is sufficient evidence to court-martial McKinney.

The appeals court is composed of five civilian judges appointed by the president for 15-year terms, and has jurisdiction over questions of law arising from military trials by court-martial. (ABC v. Jarvis; Media Counsel: Stuart Pierson, Washington, D.C.)