Army Issues Restrictive Public Access Policy

3/25/2024

tjag_policy_memorandum_23-01_-_public_access_to_court-martial_dockets.pdf
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Franklin Rosenblatt

3/25/2024 20:18:25

The public's right to know about and attend Article 32s is well-established. This policy says that information is now secret. Who will be the next to sue?

Brenner M. Fissell

3/25/2024 20:46:40

This document answers CAAFlog's million dollar question: it states a purpose or function of the Army OTJAG's Criminal Law Division.

Nathan Freeburg

3/26/2024 10:27:29

Article 32 hearings have never been part of the public docket in any service. In fact, they are more open and public than federal grand juries….which are the closest equivalent.

Nathan Freeburg

3/26/2024 10:44:39

I don’t see a lawsuit happening (against any of the services) because in a case where there is media attention at the 32 stage, PAO will provide the 32 location/charge sheet etc.

Franklin Rosenblatt

3/26/2024 11:08:28

There's already a lawsuit against the Navy, and ProPublica just prevailed on the MTD over access to charging documents and Art 32. If the services keep Article 32 info secret, media might never know that there's a hearing they can attend or documents they can request.

Franklin Rosenblatt

3/26/2024 11:13:13

I would argue that the closest equivalent is the federal preliminary examination. See 18 USC 3060, Fed. R. Crim. P. 5.1. Article 32s are only open if people know about them. If the military keeps them secret then the public is constructively locked out.

Nathan Freeburg

3/26/2024 12:10:56

On a specific case, sure. I have zero clients that want their names published pre-referral. Are you suggesting that all preferrals should be on the docket?

Franklin Rosenblatt

3/26/2024 14:04:35

Article 140a calls for public access. A selectively curated release of charge sheets by PAOs is counter to that, and tends to vest military officials with the discretion to hide embarrassing cases from public view. Just because the gov and defense may both be inclined towards secrecy in a case does not change the public's right.

Nathan Freeburg

3/26/2024 14:55:37

Article 140a calls for public access to dockets and records. An Article 32 is not a court-martial and is not on a docket. It doesn’t involve a judge and only requires that it be presided over by a judge advocate when “practicable.” (In recent history it didn’t even require that.). Small sample sizes of course — but over the last couple years roughly 20% of my Article 32s did not even lead to a court-martial of any kind. I have serious 14th Amendment concerns about the publication of names of people who have never seen a judge and before a probable cause determination of any kind has been made. For every case of some public interest there are 100 E-3 Snuffy’s that don’t deserve to have this on google the rest of their lives.

In contrast, a federal preliminary examination occurs after the entry of pleas in front of a federal judge and is generally held in lieu of a grand jury indictment. It’s not analogous to an Article 32 at all in my view.

Franklin Rosenblatt

3/26/2024 17:32:40

I don't think we're looking at the same Rule 5.1: https://www.law.cornell.edu/rules/frcrmp/rule_5.1

Whether a case is of "public interest" is, in my view, a decision that the public gets to make, not PAOs.

Nathan Freeburg

3/26/2024 18:01:21

A PE under 5.1 occurs 14-21 days after an appearance under Rule 5. A Rule 10 arraignment (including a NG plea) normally takes place at the Rule 5 appearance. Further, the PE is not required if there was a GJ indictment or if the government charged via an information (common in many districts).

With all that said, if you add hundreds of preferrals to the existing dockets (which are inaccurate enough as it is), the public won’t be making any decisions, no one will be reading the dockets.

Nathan Freeburg

3/26/2024 18:08:39

FWIW,

The DOJ website assumes that any preliminary hearing will take place after arraignment.

https://www.justice.gov/usao/justice-101/preliminary-hearing

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Army Issues Restrictive Public Access Policy

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