Army Loses Bid to Close Sex-Case Hearing

WASHINGTON — In a surprise ruling, a federal court on Monday ordered the Army to open a pretrial hearing into sexual-harassment charges against its top enlisted man, finding the military had offered insufficient reason to examine the politically charged case behind closed doors.

Setting new rules for access to such hearings for the first time since the military-justice code was adopted 46 years ago, the U.S. Court of Appeals for the Armed Forces said the services need to offer a specific rationale before they can bar the public.

The ruling, in the case of Sgt. Major of the Army Gene C. McKinney, is an unexpected rebuke for the Army, which has been accused by critics of trying to exclude the public simply to avoid bad publicity.

McKinney, 47, has been accused of sexual harassment by four military women. He has denied all charges. The decision means the Army is likely to proceed within the next few days with the “Article 32” proceeding, which will determine whether there is sufficient evidence to bind McKinney over for court-martial.

The case came to the court on motions from McKinney, his chief accuser, five television networks, the Washington Post and two organizations of military-justice lawyers.

Army attorneys contended that opening the trial could threaten the “integrity and dignity” of the proceeding, make it tough to find impartial military jurors and even threaten the safety of witnesses. Military commanders have had wide authority to make such decisions since the Uniformed Code of Military Justice was adopted in 1951, said Maj. Fred Taylor, an Army attorney.

But the four civilian appellate judges were unconvinced that these reasons were sufficient to justify closing the hearing.

The arguments seemed to amount to: “You don’t want them to know what’s going on,” Chief Judge Walter Cox III said.

Lawyers said the ruling signals a sharp change in direction for military commanders, who have generally had wide latitude in conducting criminal cases.

While closed hearings are rare, some have involved highly publicized cases, such as that of Air Force 1st Lt. Kelly Flinn, the former B-52 pilot accused of adultery, lying and other charges.

The ruling “has created a new environment,” said one senior military lawyer. Now, “they want you to justify [closing a hearing] in each specific instance.”

“The days when any service could have a pattern and practice of presumptively closing an Article 32 investigation ended this afternoon,” said Eugene R. Fidell, who argued for opening the hearing on behalf of the National Institute of Military Justice.

The judges could have sent the case for a hearing before a mid-level Army court. But they saw that as a “waste of time” given the strong reasons for opening the proceeding to public view, Fidell said.

“This is quite unusual: This is a conservative court that doesn’t go out of its way to address an issue until it needs to,” he said.

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Army officials had contended the proceeding should be closed because it was akin to grand jury proceedings, which in the civilian world are closed to the public. But attorneys for McKinney and for the media organizations argued that the Article 32 is not like a grand jury proceeding because the defendant can be present to represent himself and there are already preliminary charges.

In arguing the Army’s case, Taylor said he had specific evidence that opening the trial could endanger the safety of some of the witnesses. He was not specific about who might harm the witnesses, and the court declined his offer to show the evidence behind closed doors.

“There’s no evidence that any witnesses are in danger,” said Charles W. Gittins, an attorney for McKinney. Attorneys for the Army declined comment.