Media Rights of Access to Proceedings, Information, and Participants in Military Criminal Cases

AuthorLieutenant Colonel Denise R. Lind
Pages01

MILITARY LAW REVIEW

Volume 163 March 2000

MEDIA RIGHTS OF ACCESS TO PROCEEDINGS, INFORMATION, AND PARTICIPANTS IN MILITARY CRIMINAL CASES

LIEUTENANT COLONEL DENISE R. LIND1

  1. Introduction

    In the good old days, a skilled trial advocate could fully and effectively represent the United States in matters of military justice. As the armed services approach criminal trial practice in the twenty-first century, training in legal skills alone will not prepare counsel to deal with media coverage and public inquiries2 that increasingly turn routine criminal trials into high profile3 cases.

    A. Media Interest in Military Criminal Cases

    Recently, there has been an explosion in public access to information of all kinds. The growth of the Internet and other technologies has made it easier to access information and disseminate it to a national audience. This information explosion is coupled with an increased interest by the media in criminal trials.4 Military criminal trials are no exception.

    Military cases are attracting local and national media interest.5 As the armed forces grow smaller, fewer people have experienced military life. Thus, the military justice system is foreign to more and more Americans. People are interested in learning about how military justice works. The media sells its product by generating news that is interesting to the public.6

    Public interest in military justice not only involves individual cases being investigated or prosecuted, but also, the rules and policies unique to military life. For example, there is intense public interest in the armed forces' treatment of sexual-liaison offenses involving homosexuality, fraternization, sexual harassment, and adultery.7 The names of Air Force General Joseph Ralston,8 former First Lieutenant (1LT) Kelly Flinn,9 former

    Sergeant Major of the Army (SMA)(Ret.), Gene McKinney,10 and Major General (MG)(Ret.) David Hale11 are widely known throughout the United States.

    Military cases not involving sexual misconduct are also shining in the spotlight of the national media. Recent examples include: the courts-martial of two Marine aviators, Captain (CPT) Richard Ashby and CPT Joseph Schweitzer;12 the trials of the Army aviation crew, Chief Warrant Officer 2 (CW2) Daniel Riddell, and CW3 David Guido, following a helicopter crash that resulted in the death of Riddell's and Guido's wives;13 and the gang murder and robbery trial of Specialist (SPC) Jacqueline Billings, the alleged "Governor" of the Fort Hood area Gangster Disciples gang.14

    B. Issues Created by Media Presence in Criminal Cases

    Media inquiries in criminal investigations and prosecutions take many forms. The media may request information from criminal investigators, prosecutors, public affairs spokes-people, local service officials, or national representatives of an armed service or the Department of Defense,

    about an investigation or people involved in an investigation.15 The media may petition the court or an Article 32 officer to access, inspect, or copy evidence or judicial records. The media may request to interview military attorneys, public affairs officers, or commanders for information about how the military justice system operates, for opinions about the merits of the government's case, or for the service department or Department of Defense policy position on a volatile issue involved in a case. The media may print inaccurate information about the military criminal justice system causing negative publicity that creates a desire by the military service to reply to the misinformation.

    How does a military lawyer16 answer a request from a newspaper wanting information on how an Article 32 operates? Does the media have a right to a copy of the Article 32 investigation and exhibits before trial? If not, does the government have discretion to release them? May a government official answer whether it is true that an accused senior officer failed a polygraph and confessed? If a newspaper prints misinformation about the military justice process, may the government supply the media with correct information? Should they? Does the answer change if the misinformation involves evidence not yet introduced at trial? May the press print any information it acquires about a criminal case, regardless of how it was acquired? Does the media have an absolute right to attend all pretrial and trial proceedings? If not, what are the limits? Whose interests are balanced? What, if any control does a prosecutor or judge have on the release of information in a criminal case; or on a defense counsel trying his case in the media?17

    These are some of the complex media-relations issues that normally arise in high-profile cases and are increasingly arising in routine cases.

    Among the goals of the government in military criminal cases are to secure justice, protect legitimate safety, personal privacy, national security, and fair trial interests, and to ensure that the public is accurately informed about, and confident in, the fair functioning of the military justice system. To intelligently promote these interests, lawyers representing the military services must understand the scope of the media right to free expression, the scope of the media's constitutional and common law rights of access to information in criminal cases, the ethical rules governing extra-judicial statements in pending criminal cases, the rules governing release of information under the Freedom of Information Act (FOIA)18 and the Privacy Act (PA);19 and the measures available to control publicity when a constitutionally appropriate showing has been made that such measures are necessary.

    C. The Military's Changing Philosophy About Media Relations

    All of the services have recognized that the days of the "no comment" response are gone.20 Defense counsel, witnesses, other case participants, and interest groups actively solicit the media to tell their story-often to the detriment of the military.21 The military services now recognizes that an opportunity to educate the American public about the military justice system arises with each high profile case. The services also realize that the goals of accurately informing the public about the military justice system and inspiring public confidence that the system is fair cannot be accomplished without engaging the media.22 Both the Air Force and the Army have developed manuals to guide lawyers and other military officials in media relations in high profile cases.23 These manuals provide media fact sheets on routine procedures in the military justice system. They also provide guidance on releasing information and how to interact effectively

    with the media. Prior to the publication of these manuals, no service had a singular source to assist attorneys and other military officials involved in criminal trials with media relations issues.24 In addition to the media guides, the services have begun to formally train lawyers in media relations in criminal cases. The First Joint Services High Profile Case Management Course was held from 10-12 May 1999 at the Army Judge Advocate General's School in Charlottesville, Virginia.25 This course, geared to senior military attorneys, focused exclusively on media relations issues in high profile cases.

    D. Purpose

    This article examines the media's rights of free expression and access, and how these rights apply in courts-martial. Free expression is the right of the media under the First Amendment to freely publish information it gathers. Access is the media's right to attend and observe criminal proceedings, to obtain information and evidence in criminal proceedings, and to gather information from trial participants. The scope of the media's

    right of access is governed by the First Amendment and by the common law.

    The purpose of this article is to enable lawyers to understand and apply First Amendment26 analysis when the media's right of access to information conflicts with one or more interests advanced by a "player" in a criminal case. Players are people or entities involved in criminal cases, such as the accused, defense counsel, panel,27 victims, third parties having an interest in the case,28 and the government. Player interests typically cited to preclude media access to information or proceedings in criminal cases include: (1) preventing prejudicial publicity that threatens an accused's Sixth Amendment right to a fair trial by an impartial jury;29 (2)

    protecting testifying witnesses from trauma, embarrassment, or humiliation;30 (3) protecting trial participant privacy;31 (4) protecting trial participant safety;32 (5) preventing disclosure of government information that threatens national security, or is protected by government privilege;33 (6)

    preserving the confidentiality of law enforcement information or the identity of undercover officers or informants;34 (7) protecting trade secrets or other confidential commercial information;35 and (8) concealing the identity of juveniles.36

    Section II explores the media's First Amendment right to freedom of expression. Section III examines the media's First Amendment right of access to criminal proceedings. Section IV discusses the media's First Amendment and common law rights of access to information in criminal cases, particularly to judicial records, evidence, and discovery. This section also examines how the statutory and regulatory rules of FOIA and the PA can satisfy the media's common law right of access to judicial records in military cases but may impinge on the media's First Amendment right of access to the same records. Section V examines media rights of access to information from trial participants. The section looks at ethics rules limiting extra-judicial statements to the media by attorneys involved in pending cases. This section also discusses constitutional problems with the ethics rules currently in force in each of the armed services. Finally, the section explores the power of courts to issue "gag orders"37...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT