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U.S. v. Ortiz, 66 M.J. 334 (2008)

U.S. v. Ortiz, 66 M.J. 334 (2008)

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Published by Terry Francke

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Published by: Terry Francke on Jan 17, 2012
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08/25/2013

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 UNITED STATES,
 
Appelleev.Daniel ORTIZ, Private First ClassU.S. Army, AppellantNo. 07-0555Crim. App. No. 20040672United States Court of Appeals for the Armed ForcesArgued February 6, 2008Decided May 30, 2008RYAN, J., delivered the opinion of the Court, in whichEFFRON, C.J., and BAKER and ERDMANN, JJ., joined. STUCKY,J., filed a separate dissenting opinion.CounselFor Appellant: William E. Cassara Esq. (argued); CaptainAlison L. Gregoire (on brief); Major Tyesha E. Lowery.For Appellee: Captain Trevor A. Nelson (argued); ColonelJohn W. Miller II, Major Elizabeth G. Marotta, and CaptainLarry 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/AR2 Judge RYAN delivered the opinion of the Court.A general court-martial, composed of military judgealone, convicted Appellant, contrary to his pleas, of rapeof 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 ofArticles 120, 125, and 134, Uniform Code of MilitaryJustice (UCMJ), 10 U.S.C. §§ 920, 925, 934 (2000). Thesentence adjudged by the court-martial and approved by theconvening authority included a dishonorable discharge,reduction to the lowest enlisted grade, forfeiture of allpay and allowances, and confinement for twenty-five years.The United States Army Court of Criminal Appeals summarilyaffirmed 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 Mar. 23, 2007)(unpublished).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.
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We granted review of:WHETHER APPELLANT WAS DENIED HIS CONSTITUTIONALRIGHT TO A PUBLIC TRIAL WHEN THE MILITARY JUDGEEXCLUDED THE PUBLIC FROM THE COURTROOM WHEN THEVICTIM, BP, TESTIFIED ON THE MERITS.65 M.J. 335 (C.A.A.F. 2007).
 
United States v. Ortiz, No. 07-0555/AR3I. FactsAppellant was accused of raping, sodomizing, andsubsequently threatening the daughter of a family friendand neighbor. The victim, BP, was nine years old when thecrimes were committed. At the time of trial she waseleven.BP was the first witness called by the Government attrial. It is apparent from the record that she hadconsiderable difficulty testifying. Despite efforts by thetrial counsel, whom the military judge gave leave to askleading questions, BP’s answers were largely unresponsiveand inaudible.The military judge allowed BP to take a break in orderto “get her composure.” During the break, the militaryjudge conducted a brief Rule for Courts-Martial (R.C.M.)802 session. The parties agreed that BP’s Victim WitnessAdvocate would move from the gallery, where she had beensitting at the outset of BP’s testimony, to the panel box,so that BP could see her more easily and answer questionsmore directly. BP continued to be unresponsive.Trial counsel then moved to admit as exhibits twoanatomically correct dolls to assist in BP’s testimony.Defense counsel lodged an objection, at which time BP tolddefense counsel to “shut up.” The military judge

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