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| Luke Cass |
This article will examine the right to a public trial, discuss types of closures, and provide best practices for dealing with this subtle, yet significant, issue.
The Right to a Public Trial
Open courts go back to the Roman Empire[2] and are a Sixth Amendment right,[3] described as the "soul of justice."[4] As of 1948, when the U.S. Supreme Court decided In re Oliver, there was not "a single instance of a criminal trial conducted in camera in any federal, state, or municipal court during the history of this country."[5] Oliver's case abruptly changed from grand jury proceeding to summary trial without an abatement in secrecy, which violated his right to a public trial on due process grounds.[6] "[A]t the very least," the court wrote, "a defendant is entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged."[7]
Public proceedings: (1) provide an appearance of fairness;[8] (2) discourage bias or partiality in judicial rulings or prosecutorial conduct; (3) discourage perjury by requiring witnesses' assertions to be tested in public; (4) encourage witnesses who may not know they have relevant information to testify; (5) allow for rebuttal witnesses to counter false testimony; (6) provide the court, parties and witnesses with scrutiny that fosters a stricter sense of conscientiousness in performing their duties; (7) instill confidence in the justice system; (8) educate the public about the legal system;[9] (9) allow victims of the crime, family members or others affected to observe and speak;[10] and (10) have "significant community therapeutic value."[11]
The Sixth Amendment right to a public trial is not limited to trials; it applies to suppression hearings[12] and voir dire.[13] And, while "personal to the accused,"[14] several justices observed that the public has a separate, societal interest in open proceedings.[15] The First and Sixth Amendments confer constitutional rights to the public and the defendant, respectively.[16] However, whether these rights are mutual or exclusive remains unclear.[17]
Types of Closures
Courtroom closure cases are fact-intensive and may be partial, complete, constructive or trivial.[18] This lends a feeling that the jurisprudence is dramatically unsettled. But, what is clear is that federal prosecutors may not move for, or consent to, the closure of any judicial proceeding without the express prior authorization of the deputy attorney general.[19]
In Waller v. Georgia, the Supreme Court held that "the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.[20] A defendant is not required to prove specific prejudice in order to obtain relief for a public trial right violation.[21] A violation of the right to a public trial is a "structural error, i.e., an error entitling the defendant to automatic reversal without any inquiry into prejudice."[22]
On some occasions only certain individuals are excluded. In Presley v. Georgia, prior to jury selection the court noticed a lone spectator who was the defendant's uncle.[23] The judge told Presley's uncle that he was not allowed in the courtroom and had to leave that floor of the courthouse entirely.[24] Presley was ultimately convicted but moved for a new trial based on the exclusion of the public from voir dire.[25]
In a rare summary disposition,[26] the Supreme Court granted the request and found the issue "well settled under Press-Enterprise I and Waller."[27] The Supreme Court found nothing in the record that showed that "the trial court could not have accommodated the public at Presley's trial."[28] Presley spawned a number of cases in its wake, which presented both unique and familiar public trial right claims.
In U.S. v. Agosto-Vega, family members attempted to enter the courtroom during jury selection when they were stopped by court security officers.[29] When defense counsel raised the issue with the court, the judge replied that "the benches" were "full of jurors."[30] The court expressed concern about "family members touching potential jurors" during selection and indicated that it wanted to keep all of the venire together.[31] The court also stated that there would be no evidence or argument during selection, which indicated the judge's sentiment that "jury empanelment was not part of the process in which it particularly mattered whether Agosto's relatives were present."[32] The courtroom was then closed and no one was permitted entry for jury selection.[33]
The U.S. Court of Appeals for the First Circuit commended the district court for "trying to insulate the jury from improper influences," but noted that "there are higher constitutional values which cannot be overlooked absent exceptional circumstances."[34] The court found that the trial judge could have taken a number of measures to shield the jury while allowing members of the public in court, including allowing spectators in as jurors were excused or admonishing members of the venire about improper contacts.[35] If these remedies remained insufficient, the judge "was required to substantiate its actions by specific findings in support thereof," the court wrote before vacating the defendants' convictions and remanding the case for a new trial.[36]
U.S. v. Negrón-Sostre is an example of how unintentional courtroom closures — those never explicitly ordered by a court — can result in a new trial even without objection.[37] Negrón-Sostre dealt with the trial of five individuals who were part of a 74-person drug trafficking conspiracy.[38] After a three-month trial, which the court described as "doomed before it started," the convictions were vacated and the case was remanded for a new trial because of the exclusion of the public during jury selection, an alleged "long-standing practice" by the district court.[39]
The First Circuit conceded that the case presented a "peculiar posture" since "no party affirmatively sought to close the courtroom," "the district court erroneously found that there was no closure," and "the defense attorneys were partly at fault."[40] However, the circuit court found that the Waller test was "never applied." The court noted that the "ultimate responsibility" for ensuring public access to the courtroom rested with the district court, which failed to "properly police the public's access" and remanded the case for a new trial.[41]
In U.S. v. Candelario-Santana, defendants were members of a violent drug trafficking conspiracy.[42] At trial, a witness expressed safety concerns if he testified against the defendants.[43] The district judge settled on "a plan where the court security officers would announce to the public that the court was adjourning for the day. The court, however, would then resume with the witness' testimony once the courtroom was vacated."[44] The ruse proceeded over the objection of one defense counsel and the agreement of the other.[45] The "remedy" doomed the proceedings before the witness' testimony began and "effected a closure" despite the fact that the courtroom doors remained unlocked and the courthouse itself remained open.[46] The problem identified by the circuit was not necessarily with the stratagem employed by the district judge, but rather the dearth of identifying and making findings under Waller to support the closure.[47]
The courtroom closure cases of Agosto-Vega, Negrón-Sostre and Candelario-Santana demonstrate how Sixth Amendment errors can have serious effects on criminal proceedings. But, not all courtroom closure claims are created equally. Some are of so little moment as to be characterized as "trivial" since "[i]t does not necessarily follow, however, that every deprivation in a category considered to be 'structural' constitutes a violation of the Constitution or requires reversal of the conviction, no matter how brief the deprivation or how trivial the proceedings that occurred during the period of deprivation."[48]
A number of circuits have adopted the triviality doctrine,[49] but while it may seem like a second cousin to harmless error, the two approaches differ in that analysis of the former "turns on whether the conduct at issue 'subverts the values the drafters of the Sixth Amendment sought to protect.'"[50]
Best Practices
A fair process includes a constitutional right to a public trial. Absent deputy attorney general approval, or exempt statutory grounds like the interests of a child,[51] courtroom closures should be opposed by the government.[52] Courts expect government objections for closures, inadvertent or otherwise. Courts will also continue to value family attendance at criminal trials[53] and caution trial judges not to minimize its importance.[54] Special concerns and accommodations should be made to ensure access by a defendant's family and friends.
Before closing the courtroom, judges should evaluate, consider and discuss the Waller factors on the record, including: (1) the overriding interest that is likely to be prejudiced advanced by the party seeking to close a public hearing; (2) the scope of the closure to assure it is no broader than necessary to protect that interest; (3) any reasonable alternatives to closing the proceeding, even if none are suggested by the parties; and (4) specific findings must be made adequate to support the closure.[55] "Waller did not distinguish between complete and partial closures of trials."[56] Generalized concerns about insufficient space, potential taint of a venire or reliance on the judge's unbridled discretion are likely to present issues on appeal.
The triviality doctrine's "narrow application"[57] should be used sparingly for truly minor incidents. It is unlikely courts will find public exclusions for significant portions of the trial to be trivial, particularly on direct review.[58] Trial judges seeking to continue criminal proceedings beyond courthouse closing hours "should ensure that members of the public have a means of access to that courthouse."[59]
The prosecutors in the Craig trial wisely flagged the closure issue for the court and likely averted a potential structure error in the event of a conviction. As one court has noted, "[f]ailure to comply" with the procedure outlined in Waller "will, in nearly all cases, invite reversal."[60]
Luke Cass is a partner at Quarles & Brady LLP and former federal prosecutor.
Disclosure: The author previously served in the same office as one of the assistant U.S. attorneys in United States v. Craig.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.law360.com/articles/1188107/ex-skadden-atty-s-trial-delayed-by-jury-selection-restart [law360.com]
[2] Harold Shapiro, Right to a Public Trial, 41 J. Crim. L. & Criminology 782 (1950-1951).
[3] U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial …"); Levine v. United States
, 362 U.S. 610, 616 (1960) (holding that "due process demands appropriate regard for the requirements of a public proceeding"). The right to a public trial is made applicable to the States by the Fourteenth Amendment. See Waller v. Georgia, 467 U.S. 39 (1984).[4] See Gannett Co., Inc. v. DePasquale
, 443 U.S. 368, 422 (1979) (Blackmun, J., dissenting) ("Bentham stressed that publicity was 'the most effectual safeguard of testimony and of the decisions depending on it; it is the soul justice; it ought to be extended to every part of the procedure, and to all causes.'") (quoting Jeremy Bentham, A Treatise on Judicial Evidence, 67 (1825)).[5] In re Oliver
, 333 U.S. 257, 266 (1948).[6] Id. at 272-73.
[7] Id. at 271-72.
[8] Offutt v. United States
, 348 U.S. 11, 14 (1954) ("[J]ustice must satisfy the appearance of justice.").[9] See Gannett Co., Inc., 443 U.S. at 383; United States v. Cianfrani
, 573 F.2d 835, 847, 852-53 (3d Cir. 1978) (citing legal commentators Blackstone and Wigmore).[10] Gannett Co., Inc., 443 U.S. at 428 (Blackmun, J., dissenting); see also 18 U.S.C. § 3771(a)(2)-(4) (affording crime victims the rights, inter alia, to timely notice of any public court proceeding, to not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding, and to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.).
[11] Richmond Newspapers, Inc. v. Virginia
, 448 U.S. 555, 570 (1980).[12] Waller, 467 U.S. at 42.
[13] Presley v. Georgia
, 558 U.S. 209 (2010); Press-Enterprise Co. v. Superior Court of California , 464 U.S. 501 (1984); United States v. Gupta , 699 F.3d 682, 685 (2d Cir. 2012).[14] Gannett Co., Inc., 443 U.S. at 380; see also Faretta v. California
, 422 U.S. 806, 848 (1975) (Blackmun, J., dissenting); Estes v. Texas, 381 U.S. 532, 583 (1965) (Warren, C.J., concurring).[15] Gannett Co., Inc., 443 U.S. at 380 (Blackmun, J., dissenting); Craig v. Harney
, 331 U.S. 367, 374 (1947) ("A trial is a public event. What transpires in the court room is public property.").[16] Richmond Newspapers, Inc., 448 U.S. at 580 (quoting Branzburg v. Hayes, 408 U.S. 665, 680 (1972)).
[17] Presley, 558 U.S. at 213 ("The extent to which the First and Sixth Amendment public trial rights are coextensive is an open question, and it is not necessary here to speculate whether or in what circumstances the reach or protections of one might be greater than the other.").
[18] "Whether a closure is total or partial ... depends not on how long a trial is closed, but rather who is excluded during the period of time in question." United States v. Thompson
, 713 F.3d 388, 395 (8th Cir. 2013). A complete closure involves excluding all persons from the courtroom for some period while a partial closure involves excluding one or more, but not all, individuals for some period. Judd v. Haley , 250 F.3d 1308, 1316 (11th Cir. 2001).[19] Department of Justice Manual, § 9-5.150; see also 28 C.F.R. § 50.9.
[20] Waller v. Georgia, 467 U.S. 39, 48 104 S. Ct. 2210 (1984).
[21] Id. at 49.
[22] Weaver v. Massachusetts
, 137 S.Ct. 1899, 1905 (2017).[23] Presley, 558 U.S. at 210.
[24] Id.
[25] Id.
[26] Wyrick v. Fields
, 459 U.S. 42, 50 (1982) (Marshall, J., dissenting) ("[S]ummary reversal is an exceptional disposition" and "should be reserved for situations in which the applicable law is settled and stable, the facts are not disputed, and the decision below is clearly in error.").[27] Presley, 558 U.S. at 213.
[28] Id.
[29] United States v. Agosto-Vega
, 617 F.3d 541, 544 (1st Cir. 2010).[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Id. at 547.
[35] Id.
[36] Id. at 547-48.
[37] See, e.g., Owens v. United States
, 483 F.3d 48, 63 (1st Cir. 2007).[38] United States v. Negrón-Sostre
, 790 F.3d 295, 299 (1st Cir. 2015).[39] Id.
[40] Id. at 304.
[41] Id. at 306; cf. United States v. Al-Smadi
, 15 F.3d 153, 154 (10th Cir. 1994) ("The denial of a defendant's Sixth Amendment right to a public trial requires some affirmative act by the trial court meant to exclude persons from the courtroom.").[42] United States v. Candelario-Santana
, 834 F.3d 8, 15 (1st Cir. 2016).[43] Id.
[44] Id. at 21 (The court's procedure also allowed the witness "to face away from the defendant and to identify him using a photograph.").
[45] Id. at 21, n.3 (finding waiver of Sixth Amendment right to public trial claim where defense counsel stated, "I don't mind.").
[46] Id. at 23.
[47] Id. (citing Waller, 467 U.S. at 48).
[48] Id. at 120.
[49] See, e.g., United States v. Anderson
, 881 F.3d 568, 576 (7th Cir. 2018); United States v. Greene , 431 F. App'x 191, 195 (3d Cir. 2011) (unpublished); United States v. Perry , 479 F.3d 885, 890 (D.C. Cir. 2007); United States v. Ivester , 316 F.3d 955, 959–60 (9th Cir. 2003); Braun v. Powell , 227 F.3d 908, 918–19 (7th Cir. 2000).[50] Gibbons v. Savage
, 555 F.3d 112, 121 (2d Cir. 2009) (quoting Smith v. Hollins , 448 F.3d 533, 540 (2d Cir. 2006)).[51] 18 U.S.C. § 3509(e).
[52] Department of Justice Manual, § 9-5.150; see also 28 C.F.R. § 50.9(e)(5) (stating that the guidelines do not apply to child victims or witnesses).
[53] In re Oliver, 333 U.S. at 271-72 (observing that the "accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense may be charged."); see also Vidal v. Williams
, 31 F.3d 67, 69 (2d Cir. 1994) (observing the Supreme Court's "special concern" for ensuring family attendance at criminal trials).[54] Agosto-Vega, 617 F.3d at 548.
[55] Waller, 467 U.S. at 48; Presley, 558 U.S. at 214.
[56] United States v. Simmons
, 797 F.3d 409, 413-14 (6th Cir. 2015) ("All federal courts of appeals that have distinguished between partial closures and total closures modify the Waller test so that the "overriding interest" requirement is replaced by requiring a showing of a 'substantial reason' for a partial closure, but the other three factors remain the same.").[57] Gupta, 699 F.3d at 688.
[58] Id. at 689-90 ("Whatever the outer boundaries of our 'triviality standard' may be [and we see no reason to define these boundaries in the present context], a trial court's intentional, unjustified closure of a courtroom during the entirety of voir dire cannot be deemed 'trivial.'").
[59] Anderson, 881 F.3d at 576.
[60] Gupta, 699 F.3d at 690.