Public Trial Case Analysis

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The court’s reliance on Walton v. Briley, 361 F.3d 431 (7th Cir. 2004), and Peterson v. Williams, 85 F.3d 39 (2nd Cir. 1996), to conclude that it is “irrelevant” whether closure was inadvertent or intentional, is not necessarily misplaced, but the reliance is clearly overextended.

The Seventh Circuit did declare in Walton, “Whether the closure was intentional or inadvertent is constitutionally irrelevant.” Walton, 361 F.3d at 433.

However, this statement was footnoted, and the footnote states as follows: “This court is aware of a case from the Tenth Circuit which ‘requires some affirmative act by the trial court meant to exclude persons from the courtroom’ before a defendant can claim a violation of his Sixth Amendment right to a public trial. United States v. Al-Smadi, 15 F.3d 153, 154 (10th Cir.1994). That case is distinguishable in that the court was closed to the public simply because the trial, which started when the courthouse was still open, ran late. We make no finding as to whether or not the facts in Al-Smadi would constitute a Sixth Amendment violation in this Circuit.” Id., at 433, fn.1.

In the case at bar, the facts in Al-Smadi are directly on point — the trial began during the day and continued after regular business hours. In Walton, in contrast, the trial did not begin until after the courthouse doors were locked, and it did not resume the next day until after the doors were locked again.

The Seventh Circuit explicitly disavowed expressing any opinion on whether an inadvertent closure involving facts such as those in Al-Smadi, and in the case at bar, would violate the Constitution.

Another fact that distinguishes Walton from the case at bar is that, in that case, Walton’s fiancee and a confidential witness were unable to gain entry to trial, where in this case, the only known person who sought entry was able to witness the trial. Id., at 432.

Furthermore, the Seventh Circuit’s statement that it is constitutionally “irrelevant” whether the closure is intentional or inadvertent has been undermined by language in a later decision, while discussing prejudice, Braun v. Powell, 227 F.3d 908 (7th Cir. 2000).

The court in Braun, citing Peterson, wrote, “Judge Calabresi, writing for the Second Circuit, has explained succinctly how identifying those cases in which the circumstances do not implicate the constitutional guarantee differs from a harmless error analysis: ‘A triviality standard, properly understood, does not dismiss a defendant’s claim on the grounds that the defendant was guilty anyway or that he did not suffer “prejudice” or “specific injury.” It is, in other words, very different from a harmless error inquiry. It looks, rather, to whether the actions of the court and the effect that they had on the conduct of the trial deprived the defendant — whether otherwise innocent or guilty — of the protections conferred by the Sixth Amendment (citing Peterson v. Williams, 85 F.3d 39, 42 (2d Cir.1996).’”

The passage’s specific reference to “the actions of the court and the effect that they had on the conduct of the trial,” indicates that whether the closure was inadvertent or intentional must be relevant, even if it is not dispositive.

In addition, the court of appeals opinion misstates the holding in Peterson v. Williams, 85 F.3d 39 (2nd Cir. 1996), quoted above.

The court wrote, “Likewise, the Peterson decision, which has been relied upon by several circuits and is cited by the State, also indicates the court’s intent is irrelevant. Peterson, 85 F.3d at 44, n.8.”

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However, what the court in Peterson actually says in footnote 8 is as follows: “For example, it might be that an intentional (not inadvertent) improper closure could threaten a defendant’s right to a fair trial, even when the closure is for a brief time and the public hears a recap of the testimony during summation. Similarly, a long closure might perhaps prevent witnesses from coming forward and so might implicate other Sixth Amendment interests, even when it is inadvertent and where a summation (made in open court) recaps the closed testimony. Conversely, it is also possible that when a closure is entirely accidental, the Sixth Amendment would only be deemed violated when prejudice is shown. Since none of these cases are before us, however, we express no opinion on any of them.”

The penultimate sentence in the footnote explicitly allows that it may be relevant whether the closure was intentional or inadvertent, just as the opinion in Walton does.

Thus, the court was correct to reject the State’s argument that the inadvertence of the closure is dispositive; however, it goes too far when it declares the inadvertence to be “irrelevant.”

Regardless of the overstatement, it will be binding precedent if the opinion is published as recommended, and circuit courts had best ensure that, if they are going to continue to conduct court business after regular business hours, there had better be public access; the costs of retrying defendants will surely exceed the cost of maintaining access.

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David Ziemer can be reached by email.