UNITED STATES, Appellee 

v. 

Daniel ORTIZ, Private First Class 

U.S. Army, Appellant 

No. 07-0555 

Crim. App. No. 20040672 

United States Court of Appeals for the Armed Forces 

Argued February 6, 2008 

Decided May 30, 2008 

RYAN, J., delivered the opinion of the Court, in which 

EFFRON, C.J., and BAKER and ERDMANN, JJ., joined. STUCKY, 

J., filed a separate dissenting opinion. 

Counsel

For Appellant: William E. Cassara Esq. (argued); Captain 

Alison L. Gregoire (on brief); Major Tyesha E. Lowery. 

For Appellee: Captain Trevor A. Nelson (argued); Colonel 

John W. Miller II, Major Elizabeth G. Marotta, and Captain 

Larry W. Downend (on brief). 

Military Judge: Lauren B. Leeker 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Ortiz, No. 07-0555/AR 

2

Judge RYAN delivered the opinion of the Court. 

A general court-martial, composed of military judge 

alone, convicted Appellant, contrary to his pleas, of rape 

of a child under sixteen, sodomy of a child under sixteen, 

two specifications of indecent liberties, indecent acts, 

and wrongful communication of a threat, in violation of 

Articles 120, 125, and 134, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. §§ 920, 925, 934 (2000). The 

sentence adjudged by the court-martial and approved by the 

convening authority included a dishonorable discharge, 

reduction to the lowest enlisted grade, forfeiture of all 

pay and allowances, and confinement for twenty-five years. 

The United States Army Court of Criminal Appeals summarily 

affirmed the findings and sentence. United States v. 

Ortiz, No. ARMY 20040672 (A. Ct. Crim. App. Mar. 23, 2007) 

(unpublished). On Appellant’s petition, we granted review.1

 

1

 We granted review of: 

WHETHER APPELLANT WAS DENIED HIS CONSTITUTIONAL 

RIGHT TO A PUBLIC TRIAL WHEN THE MILITARY JUDGE 

EXCLUDED THE PUBLIC FROM THE COURTROOM WHEN THE 

VICTIM, BP, TESTIFIED ON THE MERITS. 

65 M.J. 335 (C.A.A.F. 2007). 
United States v. Ortiz, No. 07-0555/AR 

3

I. Facts

 Appellant was accused of raping, sodomizing, and 

subsequently threatening the daughter of a family friend 

and neighbor. The victim, BP, was nine years old when the 

crimes were committed. At the time of trial she was 

eleven. 

 BP was the first witness called by the Government at 

trial. It is apparent from the record that she had 

considerable difficulty testifying. Despite efforts by the 

trial counsel, whom the military judge gave leave to ask 

leading questions, BP’s answers were largely unresponsive 

and inaudible. 

The military judge allowed BP to take a break in order 

to “get her composure.” During the break, the military 

judge conducted a brief Rule for Courts-Martial (R.C.M.) 

802 session. The parties agreed that BP’s Victim Witness 

Advocate would move from the gallery, where she had been 

sitting at the outset of BP’s testimony, to the panel box, 

so that BP could see her more easily and answer questions 

more directly. BP continued to be unresponsive. 

Trial counsel then moved to admit as exhibits two 

anatomically correct dolls to assist in BP’s testimony. 

Defense counsel lodged an objection, at which time BP told 

defense counsel to “shut up.” The military judge 
United States v. Ortiz, No. 07-0555/AR 

4

instructed her to treat everyone in the courtroom with 

respect. 

At this point, trial counsel moved to clear the 

gallery: 

TC: Your honor, at this time the government 

would move the court to clear the gallery of 

spectators. The reason for that is that 

it’s apparent from [BP’s] testimony that 

she’s having difficulty testifying. I 

believe that’s resulting from some 

embarrassment. And we would ask that the 

court exclude the members of the gallery 

from the gallery of the courtroom. 

MJ: What’s your authority? 

TC: In the Manual for Courts-Martial 2002 

Edition, in the discussion section under 

Rule 806 where it discusses the Rule for 806 

about a public trial, it says that 

“occasionally defense and prosecution may 

agree and request a closed session to enable 

a witness to testify without fear of 

intimidation or acute embarrassment or will 

testify about a matter, which while not 

classified as of a sensitive or private 

nature and that closure may be appropriate 

in such cases.” 

 . . . . 

MJ: Does defense have an objection to clearing 

the gallery for [BP’s] testimony? 

 . . . . 

DC: Judge, we would note our objection to 

excluding the people from the gallery. 

Number one, it’s a public trial. Number 

two, as I read the paragraph that the court 

invited to my attention, it says, 

“occasionally defense and prosecution may 

agree to request a closed session to enable 
United States v. Ortiz, No. 07-0555/AR 

5

a witness to testify without fear of 

intimidation or acute embarrassment, etc.” 

I don’t know that there’s been any 

intimidation, that’s for sure. Secondly, 

judge, as far as the gallery is concerned, 

the young lady had had her back to the 

gallery because of the positioning of the 

microphone. She’s primarily –- 

 

MJ: Well, I agree, but –- but I think when 

they’re –- I think the intent there is if 

they are here and can hear, that it would be 

–- that it is –- (pause) –- that it would be 

difficult. 

TC: Your honor, the government also wants to ask 

–- it’s not only that intimidation or 

embarrassment. It also goes on to say in 

the discussion “if the matters are of a 

sensitive or a private nature” and the 

government has good faith belief to believe 

that [BP] could testify to matters that are 

of a sensitive and private matter to her.2 

 

2

 This discussion highlights the trial counsel and military 

judge’s apparent misunderstanding of the treatment by the 

2002 Manual for Courts-Martial, United States (2002 ed.) of 

the public trial right in R.C.M. 806, which provided in 

pertinent part: “Except as otherwise provided in this 

rule, courts-martial shall be open to the public.” 

(emphasis added). Further, “a session may be closed over 

the objection of the accused only when expressly authorized 

by another provision of this Manual.” R.C.M. 806(b) 

(emphasis added). The defense did object, and none of the 

provisions that expressly authorized closure, Military Rule 

of Evidence (M.R.E.) 412(c) (addressing victim’s sexual 

predisposition), M.R.E. 505(i) and (j) (addressing 

classified information), and M.R.E. 506(i) (addressing nonclassified but sensitive government information), 

pertained. R.C.M. 806(b) Discussion. Thus, while the 

Discussion does recognize that “the defense and prosecution 

may agree to request a closed session to enable a witness 

to testify without fear of intimidation or acute 

embarrassment, or to testify about a matter which, while 

not classified, is of a sensitive or private nature,” id., 

the defense counsel objected to the closure in this case. 

Because the construction and application of R.C.M. 806 was 
United States v. Ortiz, No. 07-0555/AR 

6

In response to the motion and argument, the military 

judge stated that “the question seems to be . . . whether 

or not she’s going to be capable of doing it –- whether she 

would be more capable of doing it or more able to do it if 

the gallery were briefly excluded.” The military judge 

then recessed the court for approximately ten minutes in 

order to research and consider the motion. 

Upon calling the court to order, the military judge 

ordered a chair be placed in the well of the court, 

directly in front of her bench, and proceeded to question 

BP. 

MJ: Okay. Now you’ve said before you’re 11? 

WIT: Yes. 

MJ: Okay, good. You’re going to become a 

 professional at this before too long. (Pause.) 

 Are you nervous? 

WIT: Yes. 

MJ: Why are you nervous? 

WIT: Because. 

MJ: Is this hard? 

WIT: Yes. 

 

not briefed by the parties and is not necessary to the 

disposition of the granted issues, we need not and do not 

decide whether failure to comply with the 2002 version of 

R.C.M. 806 alone would be tested for prejudice, or deemed 

structural error. 
United States v. Ortiz, No. 07-0555/AR 

7

MJ: Why is it hard? 

WIT: Because somebody’s in here. 

MJ: Because people are here? 

WIT: No, because –- yes, and to somebody. 

MJ: Because somebody is here. 

WIT: Yes, and because people are here. 

MJ: Okay. 

. . . . 

MJ: Okay, you said it was hard because there are 

 people here? 

WIT: (Affirmative nod.) 

MJ: When you get nervous, do you tend to talk real 

 low like you’re doing now? 

WIT: I guess. 

MJ: Well, I’m just thinking that if you’re a 

 cheerleader you have to be able to yell and 

 scream, right? 

WIT: Yes. 

MJ: Okay. So are you talking real low and 

 scrunching down in your seat because this is a 

 hard thing to talk about? 

WIT: Yes. 

MJ: And because there are a lot of adults here and 

 you’re the only kid? 

WIT: No. 

MJ: No? 

Wit: No. 
United States v. Ortiz, No. 07-0555/AR 

8

MJ: Are you upset to be here today? 

WIT: No. 

MJ: You’re not upset to be here? 

WIT: (Negative head shake.) 

MJ: Okay. Even though your chair is faced towards 

 me, do you know –- are you aware –- is it 

 problematic that there are people in the –- back 

 in the gallery? 

WIT: What do you mean? 

MJ: (Pause.) Is it difficult to come in and talk to 

 all of us today? 

WIT: Yes. 

MJ: (Pause.) And sometimes it’s kind of hard 

 because even though you –- you’re not looking at 

 people, you know that they’re there watching 

 you. 

WIT: Yes. 

MJ: (Pause.) [BP], what’s happening here today is 

 real serious. Have they talked to you about 

 that? 

WIT: Uh-huh. What people talked? 

MJ: Well, have –- when you were interviewed by the 

 counselors in this case, did they talk to you 

 about the fact this is important? 

WIT: Yes. 

 

MJ: Okay. And I know it’s hard. It’s particularly 

 hard when you’re only 11 years old. Would it be 

 a little easier if there weren’t quite so many 

 people here? 

WIT: Kind of. 

MJ: Do you think that you would be able to answer 
United States v. Ortiz, No. 07-0555/AR 

9

 the questions if there weren’t quite so many 

 people here? 

WIT: Yes. 

MJ: You think you could? 

WIT: (Affirmative nod.) 

MJ: You’re nodding your head. Is that a yes? 

WIT: Yes. 

Following this colloquy, and without further 

discussion or explanation, the military judge ordered the 

courtroom cleared of spectators and the doors locked. The 

record does not reflect how many spectators were in 

attendance, or whether any of them were or were not friends 

or family of Appellant. 

After the courtroom was cleared trial counsel 

recommenced direct examination of BP and elicited testimony 

that Appellant raped, sodomized, and threatened her. BP’s 

testimony, and the court closure, lasted the majority of 

the first day of a two-day trial. The remaining Government 

witnesses, excluding one witness whose testimony was 

ultimately disallowed by the military judge, testified for 

a total period of approximately two hours, during which 

time the courtroom was open to the public. 
United States v. Ortiz, No. 07-0555/AR 

10

II. Analysis

“In all criminal prosecutions, the accused shall enjoy 

the right to . . . a public trial.” U.S. Const. amend. VI. 

A public trial “ensur[es] that judge and prosecutor carry 

out their duties responsibly . . . and discourages 

perjury.” Waller v. Georgia, 467 U.S. 39, 46 (1984). 

 Yet, as interpreted by the Supreme Court, the right 

to a public trial is not absolute. Id. at 45 (stating that 

the “Court has made clear that the right to an open trial 

may give way in certain cases to other rights or 

interests”); see also United States v. Hershey, 20 M.J. 

433, 436 (C.M.A. 1985) (stating the same). However, there 

is a strong presumption in favor of a public trial, 

grounded in the belief that it is critical to affording an 

accused a fair trial, as “‘judges, lawyers, witnesses, and 

jurors will perform their respective functions more 

responsibly in an open court than in secret proceedings.’” 

Waller, 467 U.S. at 46 n.4 (quoting Estes v. Texas, 381 

U.S. 532, 588 (1965) (Harlan, J., concurring)). This 

presumption is overcome only where “the balance of 

interests . . . [is] struck with special care.” Id. at 45. 

In striking this balance, the Supreme Court has looked to 

its First Amendment jurisprudence regarding the press and 

public’s right to attend criminal trials and incorporated 
United States v. Ortiz, No. 07-0555/AR 

11

the test used there in the Sixth Amendment context. Id. at 

45-46. 

Recognizing the importance of the right, not only to 

an accused, but to the public and the integrity of the 

criminal process, prior to closing a trial we require that: 

[(1)] the party seeking closure must advance an 

overriding interest that is likely to be 

prejudiced; [(2)] the closure must be narrowly 

tailored to protect that interest; [(3)] the 

trial court must consider reasonable alternatives 

to closure; and [(4) the trial court] must make 

adequate findings supporting the closure to aid 

in review. 

Hershey, 20 M.J. at 436 (citing Press-Enterprise Co. v. 

Superior Court (Press-Enterprise I), 464 U.S. 501 (1984); 

and Waller, 467 U.S. at 46). 

The question before us is whether the military judge 

abused her discretion in closing the courtroom during BP’s 

testimony. See United States v. Short, 41 M.J. 42, 44 

(C.M.A. 1994) (reviewing a ruling under R.C.M. 806(b) for 

an abuse of discretion); United States v. Travers, 25 M.J. 

61, 62 (C.M.A. 1987) (applying an abuse of discretion 

standard and stating that “[t]he question of whether ‘an 

overriding interest’ [necessitating closure] exists lies in 

the sound discretion of the military judge”); United States 

v. Farmer, 32 F.3d 369, 371-72 (8th Cir. 1994) (reviewing a 

decision to temporarily close a trial for an abuse of 
United States v. Ortiz, No. 07-0555/AR 

12

discretion). “A military judge abuses his discretion when 

. . . [she] improperly applies the law.” United States v. 

Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004). Here, the only 

question is whether the military judge correctly applied 

the law. The military judge in this case failed to 

correctly apply the legal test necessary to overcome the 

presumption in favor of a public trial. Consequently, the 

denial of the right to a public trial was an abuse of 

discretion. 

The military judge did not even identify the relevant 

factors to consider or articulate the reason for her 

decision to clear the courtroom, let alone make findings. 

For that reason alone her decision was not in conformity 

with the law. See Waller, 467 U.S. at 45 (stating that a 

trial judge must make “‘findings specific enough that a 

reviewing court can determine whether the closure order was 

properly entered’” (quoting Press-Enterprise I, 464 U.S. at 

510)). On the other hand, the record illustrates both a 

practical reason for closure –- the child witness could not 

or would not testify before the courtroom was closed –- and 

that at least some alternatives less restrictive than 

closure were attempted. 

The real question, therefore, is whether failure to 

meet the test articulated by the Supreme Court in Waller
United States v. Ortiz, No. 07-0555/AR 

13

makes the deprivation of the Sixth Amendment right to a 

public trial erroneous. On the bare record before us, we 

hold that it does. 

This is an unfortunate case. The articulated interest 

proposed by the Government counsel was ambiguous, at best. 

And the military judge failed to make any findings, let 

alone adequate findings, supporting closure to aid in 

review. It is unfortunate because, based on the record 

before us, the military judge could well have made findings 

supporting her decision, and in the process perhaps better 

articulated the Government’s interest in the closure. With 

this lacuna, we need not address the question whether the 

closure was narrowly tailored to protect the overriding 

interest or whether reasonable alternatives to closure were 

considered, since the military judge did not inform us of 

the basis for her decision. 

 A. The Articulation of an Overriding Interest 

In order to overcome the strong presumption in favor 

of the public trial right, the party seeking closure must 

articulate and advance an overriding interest that is 

likely to be prejudiced. No one questions that if trial 

counsel had articulated that closure was necessary to 

protect the physical and psychological welfare of BP, the 

minor victim, an overriding interest would have been 
United States v. Ortiz, No. 07-0555/AR 

14

advanced. See Globe Newspaper Co. v. Superior Court, 457 

U.S. 596, 607 (1982) (stating that “safeguarding the 

physical and psychological well-being of a minor -- is a 

compelling” interest) (footnote omitted); United States v. 

Galloway, 937 F.2d 542, 546 (10th Cir. 1991) (finding a 

“substantial or compelling interest in protecting young 

witnesses who are called to testify in cases involving 

allegations of sexual abuse”). But that was not the 

interest advanced in this case. 

Rather, the trial counsel specifically requested 

closure on the grounds that BP was having trouble 

testifying, possibly because she was embarrassed, and a 

general observation that the testimony was of “a sensitive 

or private nature.” Suggesting that a witness’s difficulty 

testifying based on possible embarrassment, or the private 

or sensitive nature of the testimony alone is sufficient to 

constitute the “compelling interest” that is “likely to be 

prejudiced” necessary to override an accused’s right to a 

public trial is inarticulate at best.3

 See Hershey, 20 M.J. 

at 436 (stating that “[w]hile it may be permissible under 

certain circumstances to exclude spectators during the 

 

3

 We save for another day the question whether the 

Government’s anemic articulation of an overriding interest 

could have been resurrected by more specific findings on 

the part of the military judge.
United States v. Ortiz, No. 07-0555/AR 

15

testimony of a victim of tender years, that must be decided 

on a case-by-case basis and not based on the mere utterance 

of the word ‘embarrassment’”). 

 Not only are we aware of no case where such a proffer 

was deemed sufficient, it seems contrary to the Supreme 

Court’s analysis in Globe Newspaper, which appeared to 

reject generalized assertions of closure based on the 

possibility of embarrassment or the sensitive nature of the 

testimony. See 457 U.S. at 606-09. 

B. Adequate Findings on the Record 

Even assuming the trial counsel’s asserted interest 

was sufficient as articulated, Hershey requires the 

military judge to consider the interest, make a 

determination on a case-by-case basis, and make adequate 

findings to support appellate review. 20 M.J. at 436. 

In making that determination, a military judge’s 

findings should show that she considered factors such as 

“the minor victim’s age, psychological maturity and 

understanding, the nature of the crime, the desires of the 

victim, and the interests of parents and relatives.” Globe 

Newspaper, 457 U.S. at 608 (footnote omitted). In this 

case, the military judge asked BP several leading questions 

regarding her age, whether she had discussed the necessity 

of her testimony with counselors, the reasons for her 
United States v. Ortiz, No. 07-0555/AR 

16

difficulties testifying, and finally asked her if closing 

the courtroom would mitigate those difficulties. 

The answers elicited in response to these questions 

may have formed the basis for a determination that closure 

was necessitated in this case to protect the well-being of 

a minor victim, and adequate findings for appellate review. 

But the military judge never affirmatively, either orally 

or in a written addendum to the record, articulated 

findings as to why she deemed closure to be necessary; she 

simply ordered the courtroom closed. While we do not 

believe the Sixth Amendment dictates a formalistic approach 

as to the manner in which a military judge delivers her 

findings, this Court, following the lead of the United 

States Supreme Court, requires that a military judge make 

some findings from which an appellate court can assess 

whether the decision to close the courtroom was within the 

military judge’s discretion. Press-Enterprise Co. v. 

Superior Court (Press-Enterprise II), 478 U.S. 1, 13-14 

(1986); Waller, 467 U.S. at 47; Press-Enterprise I, 464 

U.S. at 510; Hershey, 20 M.J. at 436. 

On the current state of the record we have no way of 

knowing the military judge’s reasons or reasoning for 

closing the courtroom. This makes it impossible to 

determine whether the military judge properly balanced the 
United States v. Ortiz, No. 07-0555/AR 

17

inadequate interest asserted by the Government -- possible 

embarrassment to BP -- against the accused’s right to 

public trial, or substituted another interest such as the 

psychological well-being of the child in place of the one 

inartfully asserted by the Government. See PressEnterprise II, 478 U.S. at 13-14 (“[P]roceedings cannot be 

closed unless specific, on the record findings are made 

demonstrating that closure is essential to preserve higher 

values and is narrowly tailored to serve that interest.”) 

(citations and quotation marks omitted); Waller, 467 U.S. 

at 49 n.8 (rejecting appellate court’s post hoc assertion 

that the trial court properly balanced the interests where 

findings were inadequate); English v. Artuz, 164 F.3d 105, 

109-10 (2d Cir. 1998) (holding that the absence of 

“meaningful findings” violated the appellant’s right to a 

public trial); Guzman v. Scully, 80 F.3d 772, 776 (2d Cir. 

1996) (stating the same). 

C. Erroneous Deprivation of the Right to Public Trial 

 The Government argues that none of the above 

constitutes an erroneous deprivation of Appellant’s Sixth 

Amendment right to a public trial either because it was not 

a true closure or because this Court can, post hoc, discern 

sufficient information from the record to perform the test 

laid out in Waller and Hershey on our own. We disagree. 
United States v. Ortiz, No. 07-0555/AR 

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1. Appellant’s Trial Was Completely Closed 

 Where some spectators are required to leave, and some 

spectators can or do remain, the Constitution’s public 

trial guarantee, which ensures that participants perform 

their duties “more responsibly” and discourages perjury, 

see Waller, 467 U.S. at 46 & n.4 (citation and quotation 

marks omitted), is “only moderately burdened . . . as 

certain spectators remain and are able to subject the 

proceedings to some degree of public scrutiny.” Judd v. 

Haley, 250 F.3d 1308, 1315 (11th Cir. 2001). A partial 

closure that allows some, but not all, spectators to remain 

thus may not raise precisely the same concerns articulated 

in Waller and Press-Enterprise I. See, e.g., Garcia v. 

Bertsch, 470 F.3d 748, 753 (8th Cir. 2006) (allowing a 

laxer standard “because a partial closure does not 

‘implicate the same secrecy and fairness concerns that a 

total closure does’” (quoting Farmer, 32 F.3d at 371)); 

Nieto v. Sullivan, 879 F.2d 743, 753 (10th Cir. 1989) 

(using “a less stringent test of a ‘substantial reason’ 

where partial closures are held necessary”); Douglas v. 

Wainwright, 714 F.2d 1532, 1540 (11th Cir. 1983) (holding 

that “where neither all members of the public nor the press 

are excluded, the ‘public’ nature of the proceedings may be 

retained sufficiently so that a lesser justification for 
United States v. Ortiz, No. 07-0555/AR 

19

the partial closure will suffice to avoid constitutional 

deprivation”). 

 Consequently, several circuits have found no erroneous 

deprivation of the right to a public trial despite limited 

findings or the absence of findings in the context of a 

“partial closure.” See, e.g., United States v. Sherlock, 

962 F.2d 1349, 1356-57 (9th Cir. 1992) (holding that 

limited findings were acceptable in a partial closure 

case). The parties have cited no case where a more lax 

approach to the absence of findings was adopted after the 

court found a complete, albeit temporary, closure of the 

courtroom.4 

Labeling a closure as “complete” or “partial” is a 

qualitative, not temporal, question. While the Government 

 

4 We note that one circuit has, in the course of considering 

a habeas corpus petition based on an allegation of 

ineffective assistance of counsel in a state trial, 

determined that it was not an unreasonable application of 

federal law to find no ineffective assistance of counsel 

for failing to raise a erroneous deprivation of the right 

to a public trial on direct review where specific findings 

were not made by the judge, but the record did not show 

that the judge had not made a considered determination to 

close the court. Bell v. Jarvis, 236 F.3d 149, 171-72 (4th 

Cir. 2000) (stating “[w]e find no basis upon which to 

conclude that the trial judge failed to carefully consider 

the individual facts of this case before making his 

decision, or that he otherwise shirked his duty in this 

regard”). Given the standard of review applied in 

collateral challenges to state court decisions, we think it 

is not persuasive authority for a case on direct review. 
United States v. Ortiz, No. 07-0555/AR 

20

argues that the closure in this case was partial because it 

did not encompass the entirety of the proceedings, we think 

the appropriate analysis begins by asking exactly who was 

barred from the court. Closures have typically been 

described as “partial” when select spectators or members of 

the press were barred from the courtroom, but others were 

allowed to remain. See, e.g., United States v. Osborne, 68 

F.3d 94, 99 (5th Cir. 1995) (exclusion of codefendant’s 

sister and “new spectators” during testimony of one witness 

upheld); Farmer, 32 F.3d at 371-72 (exclusion of all 

spectators except victim’s family while victim testified 

upheld); Kuhlmann, 977 F.2d at 76-78 (exclusion of 

defendant’s common law wife, his common law wife’s sister 

and his cousin during one witness’s testimony upheld); 

Nieto, 879 F.2d at 753-74 (exclusion of defendant’s sisters 

and other unspecified relatives during one witness’s 

testimony upheld); Sherlock, 962 F.2d at 1356-59 (exclusion 

of defendants’ unspecified family members during victim’s 

testimony upheld). Conversely, the temporary nature of a 

closure has not prevented courts from describing it as 

“complete.” English, 164 F.3d at 110 (complete closure to 

seal the court during one witness’s testimony). In this 

case, the courtroom was cleared of all spectators during 

the vast majority of BP’s testimony. 
United States v. Ortiz, No. 07-0555/AR 

21

Going beyond the question of who was barred, the 

United States Court of Appeals for the Second Circuit 

succinctly articulated other substantive factors to be 

considered in determining whether a closure is “broad or 

narrow,” “complete or partial”: 

[It] depends on a number of factors, including 

its duration, whether the public can learn 

(through transcripts, for example) what 

transpired while the trial was closed, whether 

the evidence presented during the courtroom 

closure was essential, or whether it was merely 

cumulative or ancillary, and whether selected 

members of the public were barred from the 

courtroom, or whether all spectators were 

precluded from observing the proceedings. 

Bowden v. Keane, 237 F.3d 125, 129-30 (2d Cir. 2001) 

(citations omitted). 

In this case the court was closed to the public during 

the substantive testimony of the key Government witness, 

which was essential to, and comprised the bulk of, the 

Government’s case. All spectators were barred from 

observing the crux of the proceedings against Appellant. 

It is true that this Court described a closure during 

the testimony of the key government witness as partial 

after considering the short duration of the closure, but 

notable to the decision in that case was that, “[m]ore 

importantly, it appears that the only person present in the 

courtroom other than the accused and court personnel when 
United States v. Ortiz, No. 07-0555/AR 

22

trial counsel made his exclusionary motion was appellant’s 

escort. The two people asked to leave the courtroom, then, 

were not there as spectators, but to perform a governmental 

function.” Hershey, 20 M.J. at 437. 

In this case, the record indicates that the courtroom 

was completely closed to spectators. The military judge 

“cleared the gallery,” creating a strong inference there 

were spectators to clear, and locked the doors during the 

entirety of the substantive testimony of the Government’s 

critical witness -– the victim. Nothing in the record 

indicates whether the friends or family of the accused or 

the witness were present. See In re Oliver, 333 U.S. 257, 

272 (1948) (noting that “an accused is at the very least 

entitled to have his friends, relatives and counsel 

present”). And while the military judge did suggest she 

might reopen the courtroom during BP’s testimony, United 

States v. Ortiz, __ M.J. __ (6) (C.A.A.F. 2008) (Stucky, 

J., dissenting), that never occurred. The closure in this 

case was a complete closure for purposes of the Sixth 

Amendment, albeit less than complete in a temporal sense. 

2. This Court May Not Make Post Hoc Findings 

The Government asks us to infer and glean from the 

record findings that were not placed there by the military 

judge. We decline to engage in post hoc reconstruction of 
United States v. Ortiz, No. 07-0555/AR 

23

facts and findings that could have been made at trial, but 

were not. The trial procedure to address this Sixth 

Amendment right requires, inter alia, trial counsel to 

advance a compelling interest and the military judge to 

carefully balance, on the record, that interest against the 

accused’s Sixth Amendment right. The military judge was 

required to place her analysis on the record sufficient to 

demonstrate that this balancing occurred. That did not 

happen. 

 Moreover, the Government’s assertion misapprehends the 

test articulated by the Supreme Court. Waller, 467 U.S. at 

49 n.8 (rejecting the Georgia Supreme Court’s post hoc

balancing analysis as unable to satisfy the PressEnterprise I standard).5

 The question is not whether an 

appellate court can supply a cogent reason why it was 

acceptable to deprive an accused of the constitutional 

right to a public trial. Rather, the question is whether 

the military judge identified the competing interests and 

balanced them in a given case. The mind of the military 

 

5

 The dissent appears to embrace the Government’s suggestion 

that this Court can fill the void in the record via post 

hoc rationalization that the military judge did engage in 

the required balancing test. However, there is simply no 

statement by the military judge identifying or suggesting 

she balanced the factors outlined in Waller and Hershey, 

and that “assertion finds little or no support in the 

record.” Waller, 467 U.S. at 49 n.8. 
United States v. Ortiz, No. 07-0555/AR 

24

judge cannot be inferred from the record, absent something 

in the record reflecting the military judge’s analysis. 

 Finally, under the circumstances of this case, 

Appellee’s argument ignores that this Court may only take 

action with respect to matters of law. Article 67(c), 

UCMJ, 10 U.S.C. § 867(c) (2000). Therefore, we reject the 

Government’s request that we selectively search the record 

and make factual findings supporting the military judge’s 

decision to close the courtroom. 

D. Remedy 

In this case, the record does not support a conclusion 

that the Waller/Hershey balance was considered or struck by 

the military judge. Consequently, the presumption in favor 

of the right to a public trial was not overcome at trial, 

and the complete deprivation of the right was erroneous. 

An erroneous deprivation of the right to a public 

trial is structural error, which requires this Court to 

overturn Appellant’s conviction without a harmlessness 

analysis. Arizona v. Fulminante, 499 U.S. 279, 310 (1991) 

(noting that denial of the right to public trial is a 

structural error because it is a “constitutional 

deprivation[] . . . affecting the framework within which 

the trial proceeds, rather than simply an error in the 

trial process itself” (citing Waller, 467 U.S. at 49 n.9)). 
United States v. Ortiz, No. 07-0555/AR 

25

III. Decision

The decision of the United States Army Court of 

Criminal Appeals is reversed. The findings and sentence 

are set aside, and the record of trial is returned to the 

Judge Advocate General of the Army. A rehearing is 

authorized. 
United States v. Ortiz, No. 07-0555/AR 

 STUCKY, Judge (dissenting): 

 The majority is correct; this is an unfortunate case. But 

while the military judge may not have followed best practice by 

failing to articulate specific findings of fact, I cannot find 

that she misapplied the Supreme Court’s test in Press-Enterprise

Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501 (1984). 

Because a proper foundation for closing the courtroom during 

part of BP’s testimony is evident from the record, I would find 

no abuse of discretion and, therefore, no deprivation of the 

Sixth Amendment right to a public trial. As such, I dissent. 

 I find the majority’s analysis unpersuasive for two related 

reasons. First, I do not understand the plain language of 

either Press-Enterprise I, or United States v. Hershey, 20 M.J. 

433 (C.M.A. 1985), to require the military judge to 

“affirmatively . . . articulate[] findings” on the record. 

United States v. Ortiz, __ M.J. __ (16) (C.A.A.F. 2008). In 

Press-Enterprise I, the Supreme Court simply required “findings 

specific enough that a reviewing court can determine whether the 

closure order was properly entered,” 464 U.S. at 510, much like 

any reviewing court requires a record adequate for review. See,

e.g., Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (citing 

Boykin v. Alabama, 395 U.S. 238, 244 (1969)). To demand 

anything more transforms what was intended as a flexible 
United States v. Ortiz, No. 07-0555/AR 

2

approach into a formalistic one, regardless of the majority’s 

suggestion to the contrary. 

 Second, though I remain doubtful that this was a complete 

closure, even the assumption that it was does not support the 

majority’s view that making explicit findings on the record is a 

prerequisite to upholding the closure in this case. While the 

majority might not have found any complete closure case in which 

a federal court adopted a nonformulaic approach to findings, 

that is so because the adequacy of findings was not at issue in 

most cases. After all, most judges simply make explicit 

findings. The majority cites no case that actually holds that 

completeness of the closure is the fulcrum upon which the 

findings prong sits. 

 Instead, it cites cases concerning the relaxation of the 

first prong of the Press-Enterprise I test in partial closure 

cases. In Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000), the 

United States Court of Appeals for the Fourth Circuit made clear 

that 

while the Supreme Court has never set forth a less 

rigorous standard for partial closures, some circuits 

have relaxed the first Waller requirement where a 

temporary or partial closure of a proceeding is at 

issue. Specifically, these circuits have required 

only that the state advance a “substantial reason” for 

closing the proceeding because, unlike those 

situations involving a complete closure, a partial 

closure does not threaten as acutely the historical 

concerns sought to be addressed by the Sixth 

Amendment. 
United States v. Ortiz, No. 07-0555/AR 

3

Id. at 168 n.11; see also United States v. Osborne, 68 F.3d 94, 

98-99 (5th Cir. 1995); United States v. Farmer, 32 F.3d 369, 371 

(8th Cir. 1994); United States v. Sherlock, 962 F.2d 1349, 1356-

57 (9th Cir. 1992); Nieto v. Sullivan, 879 F.2d 743, 753 (10th 

Cir. 1989); Douglas v. Wainwright, 739 F.2d 531, 532-33 (11th 

Cir. 1984) (per curiam). 

The rationale for maintaining a heightened burden on the 

government with regard to the first prong is, thus, that 

complete closures implicate Sixth Amendment concerns more 

seriously than partial closures. It makes intuitive sense, 

then, to raise the hurdle the government must jump over to show 

a need to bar, say, the press, the public, and the defendant’s 

family, rather then just the press. However, it is neither 

equally as intuitive nor required by the test’s plain language 

to heighten the requirements of the fourth prong for the same 

reason. After all, the first prong of the Press-Enterprise I

test is qualitatively different from the final three. The 

former places a burden on the party seeking closure; the latter 

three assign responsibilities to the court. 

Alternatively, the Supreme Court constructed the first 

three prongs out of respect for the right of access to criminal 

trials. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 

606 (1982) (referring to the “particularly significant role” 
United States v. Ortiz, No. 07-0555/AR 

4

public access plays in the proper functioning of the judiciary 

because “[p]ublic scrutiny of a criminal trial enhances the 

quality and safeguards the integrity of the factfinding process, 

with benefits to both the defendant and to society as a whole 

. . . [and] fosters an appearance of fairness, thereby 

heightening public respect for the judicial process. . . . [I]n 

the broadest terms, public access to criminal trials permits the 

public to participate in and serve as a check upon the judicial 

process -- an essential component in our structure of selfgovernment”). The intention behind the fourth prong, however, 

was to ensure that “a reviewing court can determine whether the 

closure order was properly entered.” Press-Enterprise I, 464 

U.S. at 510. 

Through either lens, the first and fourth prongs of the 

Press-Enterprise I test are analytically distinct. An 

admittedly logical rationale for heightening a party’s burden 

under the former cannot automatically translate into an 

appropriate reason to heighten a different party’s 

responsibility under the latter. This is likely the reason why 

courts, when presented with less than complete findings on the 

record in partial closure cases, do not base their acceptance of 

such findings vis-à-vis the fourth prong on the grounds that 

partial closures do less harm to the right of access at the core 

of the Sixth Amendment. See, e.g., Bell, 236 F.3d at 170-71 
United States v. Ortiz, No. 07-0555/AR 

5

(upholding a partial closure even without explicit findings 

because the record revealed the judge knew the witness’s 

particular characteristics, the facts of the case, and the 

nature of the testimony); United States v. Bow, 1997 U.S. App. 

LEXIS 5326, at *8, 1997 WL 124345, at *3 (9th Cir. 1997) (same). 

In Bell and Bow, then, what merited acceptance of nonexplicit 

findings was not that partial closures caused less harm to Sixth 

Amendment rights, but because the records of trial, upon the 

appellate courts’ own review, described facts necessary to meet 

each prong and adequately evidenced the judge’s rationale in 

deciding to close the courtroom. 

The record in Appellant’s case is equally sufficient. 

First, it is replete with evidence of the need to close the 

courtroom. Trial counsel moved for courtroom closure after a 

lengthy attempt to extract audible testimony from BP and after 

her body language and rude behavior suggested her level of 

discomfort. BP had “difficulty testifying. . . . resulting from 

some embarrassment,” according to trial counsel, and clearing 

the gallery of spectators would alleviate that embarrassment. 

Given that the Discussion to Rule for Courts-Martial (R.C.M.) 

806(b) requires an overriding interest and lists avoiding 

embarrassment as one such interest, the record reasonably 

describes the military judge’s understanding that trial counsel 
United States v. Ortiz, No. 07-0555/AR 

6

advanced a recognized overriding interest to close the 

courtroom, thus satisfying the test’s first prong. 

The record also makes clear that the military judge 

narrowly tailored the closure to suit the needs of the witness 

and the overriding interest offered by the Government. Before 

granting the motion, the military judge questioned the witness 

extensively. BP admitted that she was speaking in a low, 

mumbled tone because she was nervous. After some additional 

questioning, the witness also admitted that her nerves made it 

difficult to testify and that she was nervous because there were 

so many people in the gallery. The military judge asked if the 

witness would be more at ease if she faced away from the 

spectators and spoke directly to the military judge. The 

witness still maintained that she was nervous. Given BP’s age, 

Post-Traumatic Stress Disorder diagnosis, and the private nature 

of the allegations against Appellant, her nervousness is 

understandable. Moreover, upon deciding to close the courtroom, 

the military judge advised counsel that she wanted to “minimize 

the time that the courtroom is going to be closed,” even stating 

that as soon as the witness appeared more comfortable 

testifying, the courtroom would be reopened. In addition, BP 

actually testified in public for nearly one-third of her 

testimony. She started her testimony shortly after 9:30 a.m. 

and continued to shortly after 10:54 a.m., representing fifty-
United States v. Ortiz, No. 07-0555/AR 

7

three pages in the record. She testified in closed court until 

page 210 of the record and was later recalled for another ten 

pages. 

Finally, the record indicates that the military judge 

considered a number of alternatives before closing the 

courtroom. She used a comfort break, admonished the witness to 

behave in a courteous manner, asked if turning away from the 

spectators would relieve the witness’s nervousness, and directed 

trial counsel to move to another area of the courtroom to 

facilitate the witness in projecting her voice. All these 

failed. The witness continued to slouch, mumble under her 

breath, make rude comments, and manifest her discomfort as a 

witness in open court. The military judge’s only remaining 

recourse was to close the courtroom. 

Since the record in this case is adequate to support this 

Court’s review and because the record evidences a narrowly 

tailored closure used as a last resort and based on a recognized 

overriding interest, I would uphold the military judge’s 

decision to close the courtroom during part of BP’s testimony. 

I therefore dissent.