Opposition Brief — Nidal M. Hasan, Petitioner v. United States
Supreme Court briefFeb 21, 2025
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No. 24-5225
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
NIDAL M. HASAN, PETITIONER
v.
UNITED STATES OF AMERICA
(CAPITAL CASE)
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
SARAH M. HARRIS
Acting Solicitor General
Counsel of Record
ANTOINETTE T. BACON
ANN O’CONNELL ADAMS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
CAPITAL CASE
QUESTION PRESENTED
Whether the Court of Appeals for the Armed Forces permissibly
declined to order a new trial on petitioner’s claim that his Sixth
Amendment right to a public trial had been violated, where a military judge conducted a 34-minute ex parte hearing with petitioner
and his standby defense counsel to discuss standby counsel’s motion
to withdraw, which implicated petitioner’s privileged information
and in which the judge agreed with petitioner’s position opposing
withdrawal.
(I)
ADDITIONAL RELATED PROCEEDINGS
General Court-Martial (Fort Hood, Tex.):
United States v. Hasan (Aug. 28, 2013, approved, Mar. 27, 2017)
(no docket number assigned)
United States Army Court of Criminal Appeals:
United States v. Hasan, No. 20130781 (Dec. 11, 2020)
United States Court of Appeals for the Armed Forces:
United States v. Hasan, No. 21-0193 (Mar. 4, 2024)
(II)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 24-5225
NIDAL M. HASAN, PETITIONER
v.
UNITED STATES OF AMERICA
(CAPITAL CASE)
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINIONS BELOW
The opinion of the United States Court of Appeals for the
Armed Forces (Pet. App. 3a-121a) is reported at 84 M.J. 181.
The
opinion of the United States Army Court of Criminal Appeals (Pet.
App. 122a-169a) is reported at 80 M.J. 682.
JURISDICTION
The judgment of the court of appeals (Pet. App. 2a) was
entered on March 4, 2024.
On May 23, 2024, the Chief Justice
extended the time within which to file a petition for a writ of
certiorari to and including August 1, 2024, and the petition was
2
filed on that date.
The jurisdiction of this Court is invoked
under 28 U.S.C. 1259(1).
STATEMENT
Following a trial before a general court-martial, petitioner
was convicted on 13 specifications of premeditated murder, in violation of Article 118 of the Uniform Code of Military Justice
(UCMJ), 10 U.S.C. 918(1); and 32 specifications of attempted premeditated murder, in violation of Article 80 of the UCMJ, 10 U.S.C.
880.
CAAF App. 59-71.
death.
The court-martial sentenced petitioner to
Id. at 63, 798.
adjudged sentence.
The convening authority approved the
Id. at 64.
(Army CCA) affirmed.
The Army Court of Criminal Appeals
Pet. App. 122a-169a.
for the Armed Forces (CAAF) affirmed.
1.
The Court of Appeals
Id. at 2a-121a.
On November 5, 2009, petitioner, an Army major, murdered
13 people and wounded 31 others at a crowded Soldier Readiness
Processing (SRP) center at Fort Hood, Texas.
Pet. App. 4a & n.2.
Petitioner “carefully planned and prepared for his attack.”
Pet. App. 4a.
In July 2009, he purchased an advanced FN Five-
seven semiautomatic handgun, laser sights, and magazine-extension
kits that increased the firing capacity to 30 rounds per magazine.
Ibid.
In October 2009, petitioner began target practice at a
firing range, where he obtained instruction on “speed loading” the
weapon and became proficient at kill shots at 100 yards.
5a.
Id. at
After being informed that he would be deployed to Afghanistan
3
and would need to process through the SRP center, petitioner told
a coworker:
“They’ve got another thing coming if they think they
are going to deploy me.”
Ibid. (citation omitted).
Petitioner
then made seven to nine unscheduled visits to the SRP center for
no (legitimate) purpose in the two weeks before his attack.
Ibid.
On the day of the attack, petitioner entered the SRP center
with his weapon and nearly 400 rounds of ammunition.
5a.
Pet. App.
He pulled out his weapon, yelled “Allahu Akbar!”, and began
shooting at his fellow soldiers using speed-reloading techniques.
Ibid. Petitioner fired at soldiers as they ran toward the center’s
front and back doors; walked across the facility and shot several
soldiers in the back; and then exited the SRP center to pursue
other fleeing soldiers.
Id. at 5a-6a.
Once outside, petitioner
engaged law-enforcement officers in a firefight, was shot in the
chest, and was apprehended.
2.
Id. at 6a.
Petitioner was charged with 13 specifications of pre-
meditated murder and 32 specifications of attempted premeditated
murder.
CAAF App. 51-58.
The convening authority referred the
case to a general court-martial as a capital case.
Pet. App. 6a.
As trial approached, petitioner and his three military defense
attorneys disagreed about trial strategy.
Id. at
8a-9a.
Defense
counsel wanted to argue that the murders were not premeditated
because petitioner had been overwhelmed by “religious passion,”
4
but petitioner wanted to argue that his attack was justified to
protect Taliban members from imminent harm.
Id. at 9a.
After counsel advised petitioner that his “theory did not
constitute a legally viable defense under the facts of the case,”
petitioner requested to represent himself.
Pet. App. 9a.
The
military judge granted his request after ensuring that petitioner’s waiver of his right to counsel was knowing, intelligent, and
voluntary.
Id. at 10a-11a.
The judge, however, appointed peti-
tioner’s three original attorneys to serve as standby counsel.
Id. at 11a-12a.
3.
Shortly after trial proceedings began, standby counsel
moved to withdraw because they determined that they could not,
consistent with their professional obligations, provide petitioner
even procedural assistance in light of their view that petitioner’s
conduct indicated that he was trying to obtain a death sentence.
Pet. App. 24a.
Their motion -- which included “an enclosure con-
taining counsel’s entire mitigation case” -- was served on government counsel.
Id. at 24a, 170a.
The judge promptly held a hearing
on the motion with both sides in open court, id. at 170a-183a
(transcript), before closing the courtroom and continuing ex parte
with petitioner and his standby counsel, id. at 184a-197a (ex parte
hearing transcript).
a.
At the outset of the open hearing, petitioner requested
“an in camera hearing” on standby counsel’s motion.
Pet. App.
5
170a.
The military judge responded that she “underst[ood] the
sensitivities here”; thought she “m[ight] be able to address [his]
concerns”; and would “revisit [his] request in just a moment.”
Ibid.
The judge then questioned government counsel, determining
that two of the motion’s exhibits contained only publicly available
materials and that the government had not examined the other two
privileged exhibits (Exhibits 1 and 3).
Id. at 170a-172a.
The
judge stated that, “in an abundance of caution,” she was “order[ing]
the entire motion, and all of its attachments, sealed”; noted that
the “body of the motion itself” “appears to contain privileged
work product”; and directed the government to return all the
materials.
Id. at 172a-173a.
The military judge then questioned petitioner about what he
knew in advance about the motion. Pet. App. 173a-175a. Petitioner
stated that he had known generally about the motion and had given
counsel permission to file it, but that he did not understand that
the motion would contain “privileged material” between him and his
jury consultant.
Id. at 173a-174a.
The judge informed petitioner
that “any privilege belongs to [him]” and asked petitioner whether
he had “waive[d] or agree[d] to release the information.”
175a.
Petitioner responded, “No, ma’am.”
Id. at
Ibid.
The military judge turned to standby counsel to discuss their
motion generally but warned counsel not to “get into the specifics
in this forum.” Pet. App. 175a-181a. Counsel stated that, in their
6
view, petitioner’s trial conduct showed that “his goal [wa]s to
remove impediments or obstacles to the death penalty” and was “encouraging or working towards a death penalty.”
Id. at 176a.
itioner objected, stating “[t]hat’s a twist of the facts.”
PetIbid.
After discussing the motion generally with standby counsel,
the military judge offered petitioner the opportunity to respond
to her, ex parte, “in writing,” noting that petitioner had “said
that [he]’d like to present something ex parte.”
Pet. App. 181a.
Petitioner stated that he’d “like to do that right now”; the judge
observed that “we’re not in an ex parte setting”; and petitioner
stated that he had “wanted to start ex parte” but that he wanted
to respond now.
Id. at 181a-182a.
The judge observed that she had
been “very careful here not to go into any type of specifics” and
“d[id not] know what you’re planning on going into,” reiterating
that she was allowing petitioner to “present matters to me [the
judge] ex parte” “in writing.”
Id. at 182a.
Petitioner “object-
[ed]” and stated he would “like to do that briefly,” prompting the
judge to ask him whether he was “waiving any privileges” and
“want[ed] to discuss this matter in a non-ex parte setting.” Ibid.
Petitioner
responded
affirmatively,
contradicting
statement that he did not waive any privileges.
175a.
his
earlier
Ibid.; see id. at
When the judge again reiterated that she would give peti-
tioner the opportunity to respond to her in writing “in an ex parte
forum,” petitioner stated that he “just want[ed] to clarify [stand-
7
by counsel’s] assertion of [petitioner] seeking the death penalty.”
Id. at 182a.
The judge emphasized that she “prefer[red]” that
petitioner submit his views “in writing,” but petitioner again
“object[ed]” and stated that he would not submit “anything in
writing.”
Ibid.
Petitioner then proceeded to tell the judge why
standby counsel’s statements had been “[in]accurate,” but the
judge cut him off, stating:
“Hold on.
I’m going to conduct the
rest of this hearing as an ex parte hearing” (without government
counsel) and that she was “clear[ing] the courtroom.” Id. at 183a.
b.
Neither petitioner nor his standby counsel objected to
that plan, and the hearing proceeded ex parte with only the military judge, petitioner, his three standby counsel, and a court
reporter present.
Pet. App. 184a.
The judge ordered that the ex
parte hearing transcript be sealed and asked petitioner, “what
would you like to tell me?”
Ibid.
Petitioner responded that “I
am a Mujahid –- I’m proud of that” -- and it is a “fact” that “the
Mujahideen love death more than they love life.” Ibid. Petitioner
then stated that “[his] actions on November 5th [we]re centered
squarely” on his view that, as a Mujahid, he is “trying to establish
the perfect religion of Almighty Allah as supreme” and “[t]hat’s
why [he] fe[lt] obligated to protect * * * the Taliban in Afghanistan,
Al-Qaeda,
the
Mujahideen
in
Iraq
post-Saddam
Hussein,
Hamas, Hezbollah, the Ayatollah in Iran.” Ibid. Petitioner added,
“I'm one of them.”
Ibid.
8
Petitioner explained that his disagreement with his standby
counsel was “a matter of principle,” namely, that he did not “need
to hide that [he is] a Mujahid” and felt like he was being required
to “compromise [his] principles.”
Pet. App. 185a.
Petitioner
stated that “[his] goal” was “to have a fair, accurate representation of who [he is],” “not who the defense wants [him] to be.”
Ibid.
The military judge noted that she had granted petitioner’s
request proceed pro se and asked whether he was “presenting the
case as [he] s[aw] fit, without interference from standby counsel.”
Ibid.
Petitioner responded, “Yes, ma’am.”
Ibid.
The military judge then explored what privileged information
might have been disclosed, noting that the government had not
reviewed either Exhibit 1, which contained documents prepared for
voir dire, or Exhibit 3, which had been marked as sealed “work
product,” Pet. App. 187a-188a, and which, petitioner later stated,
“contained essentially [the] defense’s entire mitigation case,”
Pet. CAAF Br. 28.
And the judge did not “see how any disclosure”
of Exhibit 1 “would [have] be[en] prejudicial” because voir dire
was finished.
Pet. App. 188a; cf. id. at 174a.
Petitioner inter-
rupted, stating: “I’m asking right now if you’d unseal it.”
at 188a.
Id.
But when the judge asked petitioner if he “believe[d]
that there’s any remedial action that’s warranted, based on standby
counsel’s disclosure of that information,” petitioner responded,
“No, ma’am.”
Ibid.
9
Petitioner stated that “part of the unsealing” issue was that
he had preferred to “do[] this in camera,” but that “[his] reputation, [his] principles [were] at stake” “now that the whole idea
that [he was] seeking the death penalty is out” and he “fe[lt]
compelled to clarify” that he is “not crazy” and that “this is
just a matter of principle.”
Pet. App. 188a-189a.
Petitioner
requested that standby counsel explain his views, and counsel agreed
that petitioner “is not crazy.”
Id. at 189a-190a.
But counsel
added that petitioner “ha[d] made it clear that he is seeking what
a death penalty brings,” such as feeling “better and safer on the
death[-]sentence tier” at Fort Leavenworth compared to “the threat”
he could face in the “general [prison] population.”
Id. at 190a.
Petitioner interrupted, stating “That’s enough,” noted that was
not “exactly what [he] had in mind,” and objected to “any further”
discussion from counsel on the matter.
Ibid.
Petitioner then explained that he had been “vacillating back
and forth” between two views on “seeking the death penalty.”
App. 193a-194a.
Pet.
Pointing one way, petitioner explained, “we” --
“the Mujahideen” -- “believe in being martyred” and his “thought
was that of a martyr” “when [he] initially committed the act on
November 5th,” except that “[he] didn’t die.”
Id. at 193a.
Peti-
tioner added that he had “underst[ood]” that “[he] would still be
considered a martyr” if the court-martial “gave [him] the death
penalty.” Ibid. But pointing the other way, petitioner continued,
10
“the Muslim community ha[d] criticized [him]” by stating that he
“did it wrong” by “br[eaking] [his] oath of office” because “the
Qu’ran clearly states that you have to keep your oaths.”
193a-194a.
Id. at
Petitioner observed that the “Muslim community” had
indicated that “what [he] should’ve done [wa]s resign[]” from the
military first, then “le[ave] the country and * * * f[i]ght.”
at 194a.
Id.
And petitioner stated that if he “didn’t do it Islamical-
ly,” then “being executed” would “not [be] considered martyrdom”
and would “just [be] dying because [he had] done a criminal act.”
Id. at 193a-194a.
Petitioner stated that his “dilemma” was that
he did not “know if [he] would be a martyr if [he were] executed.”
Id. at 194a.
In response to questions from the military judge, petitioner
expressed his opposition to counsel’s motion to withdraw by stating
that he “still want[ed]” ongoing assistance from “[his three]
standby counsel.”
Pet. App. 194a-195a.
Petitioner then asked the
judge if he could “make a statement that the public would hear”
about “seeking the death penalty,” adding that it would be “[j]ust
like what I read to you.”
Id. at 195a.
The judge did not prohibit
petitioner from making such a public statement, responding instead
that she would “take some time to consider all this” and “figure
out how” to proceed.
Ibid.
The judge confirmed that petitioner
had nothing further and concluded the hearing.
Id. at 196a-197a.
11
4.
The next morning, in open court, the military judge
stated that she had held “an ex parte [Article] 39(a) session”
“pursuant to Rule for Court[s]-Martial 806.”
id. at 27a; cf. 10 U.S.C. 839(a).
Pet. App. 198a; see
Rule 806 “general[ly]” provides
that “courts-martial shall be open to the public,” R.C.M. 806(a)
(emphasis omitted), but authorizes closed proceedings where (A) “a
substantial probability [exists] that an overriding interest will
be prejudiced” by open proceedings; (B) “closure is no broader
than necessary to protect [that] interest”; (C) “reasonable alternatives to closure were considered and found inadequate”; and
(D) “the military judge makes case-specific findings on the record
justifying closure,” R.C.M. 806(b)(2) (2012) (now R.C.M. 806(b)(4)).
The military judge explained that she had determined that
closure had been necessary “to address” both “issues that arose
between standby counsel and [petitioner]” and “issues relating to
the release of privileged attorney work product, attorney/client,
and other privileged communications.” Pet. App. 198a. She observed
that “[t]here was substantial probability that an overriding interest [in] retaining the confidentiality of those communications
would [have] be[en] prejudiced if the proceedings remained open”
and that “other means to address the issue were inadequate.” Ibid.
The military judge then denied standby counsel’s motion to
withdraw or modify their roles, vindicating petitioner’s position
on that motion.
Pet. App. 198a-199a.
After the government pre-
12
sented its case-in-chief, petitioner declined to present either a
defense case or any closing argument.
Id. at 7a.
The court-
martial convicted petitioner on all specifications and, after a
capital-sentencing hearing, sentenced petitioner to death.
The
convening
authority,
approved the sentence.
5.
after
considering
clemency
Ibid.
filings,
Ibid.
While petitioner’s appeal to the Army CCA was pending,
his new appellate counsel moved to examine certain sealed materials, including the ex parte hearing transcript.
1600.
CAAF Supp. App.
During oral argument on the motion, the court asked peti-
tioner’s counsel whether “[petitioner] consent[ed] to the disclosure of [the sealed materials],” but “counsel declined to respond”
and did not otherwise indicate that petitioner had “waive[d]” his
“privilege relating to the [materials].”
denied counsel’s motion.
Ibid.
The Army CCA
Id. at 1600-1601 (order); see Pet. App.
167a-168a.
Petitioner did not argue to the Army CCA that closing the
hearing violated his public-trial right.
Pet. CAAF Br. 51 n.14.
The Army CCA affirmed without addressing that issue.
122a-169a.
Pet. App.
Petitioner’s capital sentence then triggered mandatory
CAAF review, 10 U.S.C. 867(a)(1); while that review was pending,
petitioner’s counsel moved to unseal the ex parte hearing transcript, CAAF Supp. App. 1584-1604, with an affidavit representing
that petitioner wanted the materials unsealed, id. at 1603.
The
13
CAAF granted the motion and unsealed the transcript, which is now
public.
6.
Pet. App. 28a n.11, 224a.
The CAAF affirmed.
Pet. App. 2a-121a.
Among other
things, the CAAF rejected petitioner’s argument -- made for “the
first time in [the CAAF],” id. at 28a -- that the military judge
violated his public-trial right by closing the courtroom during
the ex parte hearing.
Id. at 23a-35a.
The CAAF noted that its precedent had extended the Sixth Amendment right to a public trial to courts-martial and that Rule for
Courts-Martial 806 independently supplies “a regulatory right to
open courts-martial.”
Pet. App. 28a.
The CAAF observed, however,
that both the Sixth Amendment and Rule 806 “make exceptions to the
right to have a public trial” and that Rule 806(b)(2) “mirrors”
Waller v. Georgia, 467 U.S. 39 (1984), which explained that proceedings may be closed to “‘advance an overriding interest that is
likely to be prejudiced’” if the closure is “‘no broader than
necessary’” and the trial court “‘consider[s] reasonable alternatives to clos[ure]’” and “‘make[s] findings adequate to support
the closure.’”
Pet. App. 29a-30a (quoting Waller, 467 U.S. at 48).
The CAAF identified several reasons supporting the courtroom
closure during the ex parte hearing here.
Pet. App. 30a-31a.
The
court observed that “the military judge was presented with a
difficult situation” and “was trying to protect [petitioner] from
publicly disclosing information that might be damaging to his own
14
defense.”
Ibid.
The court added that the judge’s “concern was
heightened” because the issues being discussed “involved matters
pertaining to attorney-client privilege”; “standby counsel’s motion
contained privileged information”; and petitioner’s “stance on
whether
he
waived
confusing.”
his
privilege
Id. at 31a.
regarding
such
matters
was
But rather than resolve whether the
proceedings had been permissibly closed, the court “assume[d]
without deciding” that the judge had erred.
The
CAAF
determined,
however,
that
Ibid.
even
if
petitioner’s
public-trial right had been violated, petitioner was “not entitled
to have his findings and sentence set aside” because that remedy
would be an unjustified “‘windfall’” that “would not ‘be appropriate to the [alleged] violation,’” Pet. App. 31a, 35a (quoting
Waller, 467 U.S. at 50).
See id. at 31a-35a.
The court observed
that this Court in Waller had emphasized that a court’s “‘remedy
should be appropriate’” to “‘a violation of the [Sixth Amendment’s]
public-trial guarantee’” and had “warned against imposing a remedy
that ‘would be a windfall for the defendant, and not in the public
interest.’”
Id. at 31a (quoting Waller, 467 U.S. at 49-50).
And
while the court recognized that this Court has described a Sixth
Amendment public-trial violation as a “‘structural error’” and
that structural errors are not subject to a “‘harmlessness analysis,’” the CAAF observed that Waller had “made clear * * * that
not all public trial structural errors lead to automatic reversal”
15
and that this Court has not overruled Waller’s remedial holding.
Id. at 31a-33a & n.16 (citations omitted).
The CAAF rejected petitioner’s argument that “‘the only appropriate result is reversal,’” explaining that “[s]uch a remedy
would be grossly disproportionate” to any public-trial violation
in his case.
Pet. App. 33a (quoting Pet. CAAF Br. 67).
The court
emphasized that (1) the “brief” ex parte hearing involved no “witness testimony,” “admission of evidence,” or “any other matter directly related to the findings or sentence in this case”; (2) the
military judge had “explored reasonable alternatives to clos[ure]”
by attempting to have petitioner submit his views in writing and
closing the hearing only after the judge “grew concerned” that her
attempt to prevent petitioner and standby counsel from “discuss[ing] privileged material” would “not work”; and (3) the judge
provided “on the record” reasons with findings sufficient to
justify the closure, finding it “clear” that the judge had attempted to “protect[] [petitioner’s] rights” in resolving the dispute
between standby counsel and a “pro se” defendant who had “no legal
training that would help him discern whether the disclosure of
potentially privileged material in open court would be harmful to
his defense.”
Id. at 33a-34a.
Finally, the court observed that
“[e]ven [petitioner] acknowledge[d] that the release of the transcript was a reasonable alternative” and that, now that the CAAF
16
had “unsealed the transcript,” the “public can readily see what
happened during that hearing.”
Id. at 34a-35a & n.17.
ARGUMENT
Petitioner contends (Pet. 18-21) that the CAAF should have
granted him relief, asserting that closing the courtroom for a
brief ex parte hearing on standby counsel’s motion to withdraw was
a structural constitutional error violating his Sixth Amendment
right to a public trial.
The CAAF correctly declined to grant
petitioner’s requested relief of a new trial, and its decision
does not conflict with any decision of this Court or another court
of appeals.
Moreover, this court-martial case would be a poor
vehicle to address the proper remedy for a Sixth Amendment publictrial violation because that Sixth Amendment right does not extend
to courts-martial; even if it did, the military judge permissibly
closed the courtroom for the ex parte hearing here; and, in any
event, petitioner did not properly preserve an objection to that
closure.
1.
Further review is unwarranted.
The Sixth Amendment provides that, “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein
the crime shall have been committed.”
U.S. Const. Amend. VI.
That
provision, which expressly applies to “all criminal prosecutions”
(ibid.), grants a defendant the right to a trial with five characteristics:
It must be (1) speedy, (2) public, and (3) by a jury
17
that is both (4) impartial and (5) from the State and district in
which the crime was committed.
It is well settled that the Sixth Amendment’s “right to trial
by jury” does not apply to “trials by courts-marital.”
Whelchel
v. McDonald, 340 U.S. 122, 127 (1950) (citing Ex parte Quirin, 317
U.S. 1, 40-41 (1942), and Kahn v. Anderson, 255 U.S. 1, 8 (1921));
see Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123 (1866); id. at
137-138 (Chase, C.J., concurring in the judgment).
Moreover, the
Court has observed that “‘cases arising in the land or naval
forces’ * * * are expressly excepted from the Fifth Amendment, and
are deemed excepted by implication from the Sixth.”
Quirin, 317
U.S. at 40 (citing Milligan, 71 U.S. (4 Wall.) at 123, 138-139).
“[T]he historical evidence” also “strongly suggests that the provisions of the Bill of Rights were not originally understood to apply
to courts-martial.”
Ortiz v. United States, 585 U.S. 427, 482 &
n.4 (2018) (Alito, J., dissenting, joined by Gorsuch, J.).
Courts-
martial are special Executive Branch tribunals that enforce “military discipline” in the context of a unique legal tradition for
military personnel and, as such, their proceedings “are not criminal prosecutions within the meaning of the Constitution.”
Id. at
482; cf. Davis v. United States, 512 U.S. 452, 463 n.* (1994)
(Scalia, J., concurring) (noting the government’s position that
“court-martial cases are not ‘criminal prosecutions’ within the
meaning of the Sixth Amendment”).
18
The question whether the Sixth Amendment’s public-trial right
for “criminal prosecutions,” U.S. Const. Amend. VI, applies in
court-martial
cases
is
not
typically
dispositive
because
the
President as Commander-in-Chief has independently ordered that, in
general, “courts-martial shall be open to the public.”
806(a).
R.C.M.
That regulatory provision, tailored to the military con-
text, includes exceptions that parallel those embodied in the Sixth
Amendment.
See pp. 11, 13, supra (discussing R.C.M. 806(b)(2)
(2012), which is now R.C.M. 806(b)(4)); cf. R.C.M. 806(a) discussion (noting that courts-martial may be “conducted on a ship at
sea or in a unit in a combat zone” without public attendance).
In
this particular case, however, petitioner’s position that the 34minute courtroom closure during his court-martial proceedings was
a “structural” constitutional error requiring a new trial is
premised on the contested view that the Sixth Amendment’s publictrial right applies to courts-martial.
2.
Pet. 7, 18-20.
Even assuming the Sixth Amendment does apply to courts-
martial, petitioner now appears to acknowledge (Pet. 18-19) that a
violation of the Sixth Amendment’s public-trial guarantee does not
require a new trial in every context.
And the CAAF correctly found
that it did not require one in the specific context of his case.
a.
As the Court made clear in Weaver v. Massachusetts, 582
U.S. 286 (2017), “the term ‘structural error’ carries with it no
talismanic significance as a doctrinal matter.
It means only that
19
the government is not entitled to deprive the defendant of a new
trial by showing that the error was ‘harmless beyond a reasonable
doubt.’”
Id. at 299 (citation omitted).
If he both “object[ed]
at trial” and “raised [the issue] on direct appeal,” a “defendant
generally is entitled to ‘automatic reversal’ regardless of the
[structural] error’s actual ‘effect on the outcome.’” Ibid. (citation omitted). But as Weaver observed, in the context of a “publictrial violation” -- and “despite the structural aspect of the
violation” -- the Court has not always “order[ed] a new trial.”
Id. at 296-297.
Specifically, the Court did not do so in Waller v. Georgia,
467 U.S. 39 (1984).
See Weaver, 582 U.S. at 296-297.
In Waller,
the Court for the first time addressed “the extent to which [the
Sixth Amendment’s public-trial] right extends beyond the actual
proof at trial” by considering whether it applied to a suppression
hearing.
Waller, 467 U.S. at 44.
The Court held that it did, and
also determined that the closed suppression hearing in that case,
which lasted seven days and resulted in the denial of the defendant’s motion to suppress key evidence, had violated the Sixth
Amendment.
Id. at 42-43, 48-49.
The Court further determined
that the public-trial violation was a structural error, explaining
that “the defendant should not be required to prove specific prejudice in order to obtain relief” and observing that it would be
“difficult to prove” such harm.
Id. at 49 & n.9.
But Waller
20
specifically rejected the defendant’s argument that “a new trial
on the merits should be ordered” to “remedy th[e] constitutional
violation.”
Id. at 49; see Weaver, 582 U.S. at 297 (recognizing
that Waller “held” that “no new trial” was necessary “despite the
structural aspect of the violation”).
The Court instead explained that “the remedy should be appropriate to the violation,” reflect “the public interest,” and should
not result in “a windfall for the defendant.”
50.
Waller, 467 U.S. at
Accordingly, the Court ordered “a new suppression hearing”
that would be “open to the public” to the extent warranted and
emphasized that “[a] new trial need be held only if [the] new,
public suppression hearing results in the suppression of material
evidence not suppressed at the first trial, or in some other
material change in the positions of the parties.”
b.
Ibid.
In light of those principles, the CAAF correctly reject-
ed petitioner’s argument based on Weaver that “the only appropriate
[remedy] is reversal,” Pet. App. 33a (quoting Pet. CAAF Br. 67),
which the CAAF appeared to interpret as a demand for a new trial,
see, e.g., id. at 35a; see also Pet. CAAF Reply Br. 26 (arguing
that the CAAF “should set aside the conviction”).
But as in
Waller, this case involves a hearing ancillary to “the actual proof
at trial” in which a “new trial” would not be warranted unless a
new hearing open to the public resulted in some “material change
in the positions of the parties,”
Waller, 467 U.S. at 44, 50.
21
And here, holding a new hearing on standby counsel’s motion to
withdraw could not materially change anything in petitioner’s
favor, because the military judge already denied counsel’s motion,
fully vindicating petitioner’s position on it.
As petitioner now appears to recognize, “[i]f the outcome of
the
new
(and
open)
proceeding
remain[s]
unchanged,
then
the
[public-trial] violation presumably had no effect” and “a new trial
[would be] a windfall.”
(Pet.
19)
that
the
Pet. 18.
CAAF’s
Petitioner incorrectly suggests
decision
reflects
“an
anomaly”
by
recognizing “a preserved structural error without any remedy.”
Even if petitioner had properly preserved the asserted error by
“object[ing] at trial” and then raising it “on direct appeal”
before the Army CCA, Weaver, 582 U.S. at 299 -- which he did not
-- the CAAF simply rejected petitioner’s contention that “‘the
only appropriate result is reversal.’”
added; citation omitted).
Pet. App. 33a (emphasis
To whatever extent the more limited
remedy of a new hearing on standby counsel’s motion to withdraw
might be characterized as a “reversal,” cf. Waller, 467 U.S. at 50
(ordering that the “judgments below are reversed, and the cases
are remanded for further proceedings not inconsistent with this
opinion”),
petitioner did not identify that limited remedy in his
briefs, and the CAAF did not understand him to be requesting it.
See Pet. CAAF Br. 61; Pet. CAAF Reply Br. 26; Pet. App. 30a-35a.
22
The CAAF therefore “decline[d] to impose the [only] remedy
sought by [petitioner].”
Pet. App. 35a.
Furthermore, as the CAAF
observed, “[e]ven [petitioner] acknowledge[d] that the release of
the [ex parte hearing] transcript” would have been “a reasonable
alternative, at least at the trial level.”
Id. at 34a n.17; see
Pet. CAAF Br. 66 (arguing that the military judge “could have
published the transcript” as a “reasonable alternative[]”).
The
CAAF granted petitioner that exact relief by unsealing the ex parte
hearing transcript.
Pet. App. 27a & n.11.
And because petitioner
never sought other relief, the CAAF had no occasion to consider
“whether [ordering] a new proceeding” on standby counsel’s motion
“like in Waller [would have been] appropriate,” Pet. 5-6.
3.
Petitioner asserts (Pet. 14-16) that the CAAF’s decision
conflicts with the decisions of other courts of appeals and state
supreme courts, which he describes (Pet. 15) as recognizing that
a Sixth Amendment public-trial violation entitles a defendant to
“a new trial unless the erroneously closed proceeding is severable
from the trial and can be ‘redone’ independently.”
decisions involved courts-martial.
None of those
And none conflicts with the
CAAF’s resolution of the sole remedial issue it considered -- i.e.,
whether “the only appropriate result [wa]s reversal” in the form
of a new trial.
Pet. App. 33a (emphasis added; citation omitted).
Three of the decisions that petitioner cites (Pet. 15) grant
a “redo” remedy for discrete proceedings within a trial without
23
directing a new trial. 1
Those decisions do not conflict with the
decision below because petitioner appeared to the CAAF to be
asserting that nothing short of a new trial would be an appropriate
remedy, and the CAAF had no occasion to resolve whether a more
limited remedy was warranted.
Moreover, none of the three deci-
sions addressed a closed hearing on a discrete matter in which the
trial judge ruled fully in the defendant’s favor, such that (as
here) a “redo” remedy could not result in any “material change in
the positions of the parties” that could benefit the defendant,
Waller, 467 U.S. at 50.
Petitioner’s remaining citations (Pet. 14-15) are even further afield.
One decision rejected a public-trial challenge be-
cause “the trial court did not close [the] proceedings.”
State v.
Njonge, 334 P.3d 1068, 1071, 1074-1075 (Wash.), cert. denied, 574
U.S. 1065 (2014).
Several others determined that a new trial was
warranted to remedy courtroom closures during the trial testimony
See United States v. Rivera, 682 F.3d 1223, 1237 (9th Cir.
2012) (finding that resentencing was the “appropriate” remedy
where the defendant’s family was excluded from the original sentencing proceedings); State v. Jackson, 977 N.W.2d 169, 170-171,
174-176 (Minn. 2022) (finding that a public “Schwartz hearing” to
determine whether a juror had “introduced extraneous information”
into the deliberations was the proper remedy where the original
posttrial evidentiary hearing was partially closed to the public),
cert. denied, 143 S. Ct. 500 (2022); State v. Rodgers, 919 N.W.2d
193, 203-204 (N.D. 2018) (finding that a new competency hearing
was the proper remedy where the courtroom was not properly closed
during the original competency hearing).
1
24
of one or more witnesses. 2
Those decisions involving properly
preserved challenges to courtroom closures during trial testimony
simply
reflect
that
a
structural
Sixth
Amendment
error
will
presumably require a new trial where it involves witness testimony
that was actually presented to the jury that ultimately found the
defendant guilty.
This case does not involve similar considera-
tions.
Finally, petitioner cites (Pet. 14-15) three decisions involving public-trial violations during voir dire.
Two of the deci-
sions, which took the view that the structural nature of publictrial errors is itself sufficient to establish prejudice and an
entitlement to a new trial in the context of postconviction review,
See United States v. Allen, 34 F.4th 789, 792, 800-801 (9th
Cir. 2022) (ordering new trial based on district court’s COVID
protocols during trial proceedings); United States v. CandelarioSantana, 834 F.3d 8, 23-24 (1st Cir. 2016) (vacating defendant’s
convictions where courtroom was closed for a witness’s trial
testimony), cert. denied, 580 U.S. 1136, and 583 U.S. 831 (2017);
United States v. Simmons, 797 F.3d 409, 413-416 (6th Cir. 2015)
(ordering new trial where court excluded codefendants from the
courtroom during witness’s trial testimony); Judd v. Haley, 250
F.3d 1308, 1311, 1319-1320 (11th Cir. 2001) (directing the grant
of habeas relief where state court closed its courtroom during
victim’s trial testimony); Davis v. Reynolds, 890 F.2d 1105, 11071108, 1112 (10th Cir. 1989) (similar); People v. Jones, 464 P.3d
735, 742, 745 (Colo. 2020) (ordering new trial where trial court
excluded the defendant’s parents from the courtroom during his
children’s trial testimony); People v. Veach, 993 N.W.2d 216, 217219 (Mich. 2023) (ordering new trial where courtroom was closed
during victim’s trial testimony), cert. denied, 144 S. Ct. 1342
(2024).
2
25
have been abrogated by this Court’s contrary decision in Weaver. 3
The final decision concluded that an erroneous closure of voir
dire to the public warranted a new trial because -- unlike an
“easily separable part of a trial” -- a court cannot “reasonably
order a ‘redo’ of voir dire” given that “it is impossible to speculate” about how the “different[] compos[ition]” of the resulting
jury might affect the outcome at trial.
1113, 1122 (Wash. 2012).
State v. Wise, 288 P.3d
That decision by its own terms does not
speak to the proper remedy where, as here, a court closes to the
public an “easily separable part of a trial,” ibid.
4.
In any event, this case would be a particularly poor
vehicle to address the proper remedy for a Sixth Amendment publictrial violation because the ex parte hearing here did not violate
the Sixth Amendment and, in any event, petitioner failed to preserve his public-trial challenge.
a.
First, for petitioner to prevail in this Court on his
remedy-focused claim of structural constitutional error, the Court
would need to determine whether the Sixth Amendment’s pubic-trial
See Weaver, 582 U.S. at 294, 305 (holding that structural
nature of error does not obviate need to show actual prejudice
needed for ineffective-assistance claim and listing Owens v.
United States, 483 F.3d 48, 64-65 (1st Cir. 2007), among decisions
that incorrectly failed to require such a showing); United States
v. Withers, 638 F.3d 1055, 1065-1066 (9th Cir. 2011) (reversing
summary dismissal of procedurally defaulted public-trial claim on
ground that a structural public-trial violation would likely
itself be sufficient to show prejudice).
3
26
right extends to court-martial proceedings and, if it does, whether
it applies in materially the same manner as in civilian prosecutions.
The CAAF’s precedent extending that constitutional right
to courts-martial, Pet. App. 28a, would thus be subject to examination by this Court.
See Bennett v. Spear, 520 U.S. 154, 166
(1997) (“A respondent is entitled * * * to defend the judgment on
any ground supported by the record.”).
And the Court may well
agree with the government, see p. 17, supra, that the Sixth Amendment’s public-trial guarantee does not apply to courts-martial.
b.
Second, even if the Sixth Amendment’s public-trial right
were to apply to courts-martial in the same manner as it applies
in civilian prosecutions, the military judge’s brief courtroom
closure to hold an ex parte hearing on standby counsel’s motion to
withdraw did not violate the Sixth Amendment.
Although the CAAF
rejected petitioner’s request for a new trial without deciding the
constitutionality of the ex parte hearing, see Pet. App. 24a
(“assum[ing] without deciding” that “constitutional” question),
the military judge lawfully closed the courtroom during that ex
parte hearing.
As an initial matter, a defendant’s “right to insist that
[trial proceedings] be public,” is subject to “exceptions” which
recognize that “‘other rights or interests’” may in some circumstances warrant closures, Presley v. Georgia, 558 U.S. 209, 213
(2010) (per curiam) (quoting Waller, 467 U.S. at 45), and this
27
Court has never held -- and should not hold -- that it applies to
a hearing on standby counsel’s request to withdraw that implicates
privileged attorney-client communications.
Indeed, traditional
court practices such as “conferences [conducted] in chambers” or
nonpublic discussions with counsel “at the bench” have long existed
and no judge is “required to allow public or press intrusion upon
the huddle.”
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,
598 n.23 (1980) (Brennan, J., concurring in the judgment).
The
same holds true for the brief ex parte hearing in this case, in
which the military judge wisely explored disagreements between
petitioner (who was then proceeding pro se) and his standby defense
counsel in a private forum without government counsel or public
spectators.
Furthermore, even assuming arguendo that a public-trial right
might presumptively extend to such ancillary ex parte hearings,
this Court has explained that “any stage of a criminal trial” may
be closed where “‘[1] an overriding interest [exists] that is
likely to be prejudiced, [2] the closure [is] no broader than
necessary to protect that interest,” and the trial court both
“[3] consider[s] reasonable alternatives to closing the proceeding”
and “[4] make[s] findings adequate to support
the closure.’”
Presley, 558 U.S. at 213-214 (quoting Waller, 467 U.S. at 48).
The brief ex parte hearing in this case satisfies those criteria.
28
First, the military judge clearly recognized the sensitivity
of standby counsel’s motion, the exhibits to which contained privileged defense materials, including essentially the entire defense
mitigation case.
See pp. 5, 7-8, supra.
The judge thus concluded
that closure was necessary to address “issues that arose between
standby counsel and [petitioner]” and “issues relating to the
release of * * * [petitioner’s] privileged communications,” Pet.
App. 198a, which, if released, would have lost their privileged
status and could have jeopardized petitioner’s defense. The record
confirms the wisdom of that decision.
Petitioner’s “stance on
whether he waived his privilege” over the information “was confusing.”
Id. at 31a.
And in discussing his disagreements with his
own standby counsel, petitioner repeatedly incriminated himself
and supplied provocative statements that, if made public during
trial, could have undermined his defense.
See pp. 7, 9-10, supra.
Even petitioner himself objected to standby counsel’s explanation
of their views, notwithstanding that the hearing before the judge
was ex parte and closed.
See p. 9, supra.
Second, the closure was appropriately limited to a 34-minute
discussion that allowed petitioner to inform the judge of basis
for his disagreement with his standby counsel.
Given that peti-
tioner refused to supply his views in writing, see p. 7, supra,
the closure was no broader than necessary to protect petitioner as
a pro se capital defendant.
29
Third, the military judge “explored reasonable alternatives
to clos[ure]” by attempting unsuccessfully to have petitioner submit his views in writing and closing the hearing only after she
“grew concerned” that her attempt to prevent petitioner and standby
counsel from “discuss[ing] privileged material” would “not work.”
Pet. App. 33a.
The judge thus permissibly concluded that “other
means to address the issue were inadequate.”
Id. at 198a.
Fourth, the military judge made findings in open court that
explained her closure decision.
See p. 11, supra.
As the CAAF
noted, those findings were adequate, demonstrating that the judge
closed the hearing to protect petitioner’s rights and prevent
public disclosures that “might [have] be[en] damaging to his own
defense” in the context of a “difficult situation” involving “an
apparent rift between [petitioner] and his standby counsel.”
App. 30a-31a, 34a.
Pet.
The fact that the judge’s findings were made
shortly after she concluded the ex parte hearing does not undermine
their adequacy.
Such findings must simply be specific enough in
the context of the case to enable “a reviewing court [to] determine
whether the closure order was properly entered.”
Pressly, 558
U.S. at 215 (citation omitted); cf. Weaver, 582 U.S. at 298
(observing based on Pressly that a public-trial violation “can
occur” if “the trial court omits to make the proper findings before
closing the courtroom” without addressing if findings made shortly
30
thereafter could be sufficient to serve the function of allowing
appellate review).
c.
Finally, this Court’s review is not warranted for the
further independent reason that petitioner failed to preserve his
public-trial challenge.
Petitioner himself initially requested that the Court conduct
an “in camera hearing” on standby counsel’s motion to withdraw,
Pet. App. 170a, and stated that he did not waive his privileges
over information in that motion and its attachments, id. at 175a.
See pp. 4-5, supra.
Before the military judge closed the hearing,
petitioner objected to having to respond to the judge “in writing”
in an ex parte submission and instead expressed his intent to
respond to the judge immediately in person.
See pp. 6-7, supra.
When the judge closed the courtroom to allow petitioner to do
exactly that, neither petitioner nor his standby counsel objected.
See p. 7, supra.
During the ex parte hearing, petitioner asked
the judge to unseal exhibits to standby counsel’s motion, but he
then appears to have promptly withdrawn that request.
supra.
See p. 8,
And when the ex parte hearing was nearly complete, peti-
tioner asked the judge if he could make a “statement that the
public would hear,” but petitioner did not indicate that he wanted
to do so in the same hearing, nor did the judge preclude him from
making a public statement.
See p. 10, supra.
31
In sum, petitioner never specifically objected to the closed
hearing that facilitated his discussion with the judge and his
standby counsel; he could have, for instance, publicly presented
his views in closing argument or in some other manner.
Nor did he
preserve the issue before the Army CCA, instead raising the matter
“for the first time” in the CAAF.
Pet. App. 28a; see p. 12, supra.
As such, this case is a particularly unsuitable vehicle for the
Court to consider the question presented.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SARAH M. HARRIS
Acting Solicitor General
ANTOINETTE T. BACON
ANN O’CONNELL ADAMS
Attorneys
FEBRUARY 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.