San Antonio Express-News v. Morrow

44 M.J. 706, 1996 CCA LEXIS 255, 1996 WL 492648
CourtUnited States Air Force Court of Criminal Appeals
DecidedAugust 9, 1996
DocketMisc. Dkt. No. 96-09
StatusPublished
Cited by5 cases

This text of 44 M.J. 706 (San Antonio Express-News v. Morrow) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
San Antonio Express-News v. Morrow, 44 M.J. 706, 1996 CCA LEXIS 255, 1996 WL 492648 (afcca 1996).

Opinion

OPINION OF THE COURT

HEIMBURG, Senior Judge:

On July 11, 1996, The San Antonio Express-News and James A. Hutton filed this petition for extraordinary relief in the nature of a writ of mandamus. Petitioner invokes the authority of the Court pursuant to the All-Writs Act, 28 U.S.C. § 1651 (1994).

I — Proceedings to Date

Petitioner requests that the Court issue an order permitting public access to a pretrial investigation of charges at Brooks Air Force Base, Texas. In support of its request, Petitioner avers that, in May 1996, Major Eric Duncan, an Air Force officer, was charged with the August 1990 murder of an 11-year-old girl. Petitioner states that Major Dixie Morrow was appointed to conduct the pretrial investigation of charges pursuant to Article 32, UCMJ, 10 U.S.C. § 832 (1994). Petitioner alleges that Major Morrow began hearings concerning the charges at Brooks Air Force Base, Texas, on July 8, 1996. Petitioner asserts that Major Morrow closed the investigation to the public upon request of the government representative, over the objection of the accused.

Petitioner avers that the charges against Major Duncan concern a highly publicized disappearance and murder, which has aroused a great deal of public interest over the past six years. Citing “a First Amendment right of access to criminal proceedings,” Petitioner argues that no compelling interest outweighs the First Amendment rights of public and press access to this Article 32, UCMJ, hearing.

Petitioner seeks relief in an order giving immediate access to the pretrial investigation of charges in the case of the United States v. Major Eric Duncan, access to a transcript of the testimony already taken, and copies of the exhibits already received. In the alternative, if the writ were issued after completion of the investigation, Petitioner requests a copy of the transcript of all testimony and a copy of “all exhibits offered and/or received into evidence” by the investigating officer.

On July 11, 1996, the Court issued an order staying the Article 32 investigation and requesting the investigating officer to inform the Court of the facts, her ruling, and its basis. On July 12, 1996, the Court received two affidavits, one sealed, from the investigating officer. The sealed affidavit revealed witnesses and documents which, the investigating officer determined, required protection from disclosure in a public filing with the Court.

In her unsealed affidavit, the investigating officer said that the government representative requested her to close the hearing, pursuant to her authority in R.C.M. 405(h)(3). She said the defense opposed closure, so she heard arguments from both sides, reviewed the law, and deliberated for two hours before ruling. The investigating officer stated she ruled that the hearing would be closed to spectators on the following basis: “a need to protect against the dissemination of information that might not be admissible in court; to prevent against contamination of a potential [708]*708jury pool; to maintain a dignified, orderly, and thorough hearing; and to encourage the complete candor of witnesses called to testify at the hearing.” Despite the extensive publicity about the case for six years, the investigating officer concluded that fact did not require her to allow spectators. She said she emphasized to counsel for the government and the defense that her ruling closing the proceedings to spectators did not restrict them from disclosing what occurred during the hearing, abrogate the accused’s right to verbatim transcripts of the testimony of witnesses, or affect the accused’s right to a copy of the detailed report of her investigation. See Article 32(b), UCMJ; R.C.M. 405(j)(3).

After reviewing the affidavits of the investigating officer, the Court, on July 12, 1996, dissolved the stay and permitted the Article 32, UCMJ, investigation to proceed. We have not issued a show cause order to the government.

II — Jurisdiction of the Court

The first question we must address is our jurisdiction to entertain this petition. Counsel for the government, in an unsolicited motion filed with the Court, suggest that the Court lacks jurisdiction over Article 32, UCMJ, investigations. Our jurisdiction, counsel assert, properly should be limited to those cases described in our statutory charter. See Articles 66(b), 69(d), UCMJ, 10 U.S.C. §§ 866(b), 869(d) (1994). Even if the Court follows the “liberal” view of McPhail v. United States, 1 M.J. 457 (C.M.A.1976), government counsel reason, a pretrial investigation under Article 32, UCMJ, is not a court-martial. No court exists over which this Court may exercise its supervisory authority, the government argues, and there is no authority under the All-Writs Act, because entertaining this petition is not “in aid of’ our jurisdiction.

A. Our Supervisory Jurisdiction

Counsel for the government misunderstand the jurisdiction of this Court in the area of extraordinary relief. For many years, our jurisdiction under the All-Writs Act was an open question, but it is now fairly well settled. In 1978, our Court (then called the Air Force Court of Military Review) said:

We believe that Congress intended the Uniform Code of Military Justice to be unitary and self-contained; that is, it was meant to include all the checks and balances necessary to function as a separate legal system. See Article 76, 10 U.S.C. § 876. Thus, we believe that the Code envisioned supervisory control over each tier of the military justice process.
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As the highest Air Force Court, through our reviews we exercise supervisory authority over the actions of Air Force trial judges, and where ... an injustice has been done, we have the inherent power to correct it.

United States v. Dettinger, 6 M.J. 505, 511 (A.F.C.M.R.1978). Although the Court of Military Appeals (now the Court of Appeals for the Armed Forces) reversed our grant of extraordinary relief in that case, they did not disagree with our view of our jurisdiction:

The court below remarked that the Court of Military Review of each service is the “highest” tribunal in that service’s courts-martial system. An appellate tribunal of that sort, said the court, has judicial authority over the actions of trial judges in cases that may potentially reach the appellate court. We agree. Without stopping to define the limits of such independent proceedings, we have no doubt that, as the highest tribunal in each service, a Court of Military Review can “confine an inferior court [within its system] to a lawful exercise of its prescribed jurisdiction.” Roche v. Evaporated Milk Ass’n, [319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943).] See also McPhail v. United States, [1 M.J. 457, 461 (C.M.A.1976) ].

Dettinger v. United States, 7 M.J. 216, 220 (C.M.A.1979) (emphasis added).

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Bluebook (online)
44 M.J. 706, 1996 CCA LEXIS 255, 1996 WL 492648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/san-antonio-express-news-v-morrow-afcca-1996.