Please ensure Javascript is enabled for purposes of website accessibility

More Harmless Than Harmless? The Mother Who Was Locked Out Of Voir Dire

By: ANNE REED//February 9, 2009//

More Harmless Than Harmless? The Mother Who Was Locked Out Of Voir Dire

By: ANNE REED//February 9, 2009//

Listen to this article

Robert Gibbons was tried in what apparently was a very small courtroom in Goshen, New York, for the rape of his 15-year-old daughter. He had told the police, “it was mutual, I didn’t rape her.” That’s a conviction that many people – including, it seems, a series of appellate and postconviction judges — would naturally want very much to stand.

She only wanted to see her son’s trial

As jury selection was about to begin, only one spectator sat in the courtroom: Mr. Gibbons’s mother, who of course was also the victim's grandmother. The trial judge told her she had to leave. The courtroom was too small, he said, and he was not “going to taint the entire jury pool” by “put[ting] a relative right next to a potential juror.” Defense counsel asked if she could sit in the “well” just behind counsel table. No, said the trial judge, “[n]o one goes in the well unless it’s their attorneys or part of the defense team.” That would “cause more problems,” he said, like security, or the jury wondering who this woman was.

The courtroom was thus closed to the public – that is, to the only member of the public who wanted to be there – for the entire afternoon of the first day of trial. The next morning, enough jurors had been excused to free up some seats, and the defendant’s mother was allowed back in.

“This was not the trial of Osama bin Laden.”

In its opinion last week deciding Gibbons’s habeas petition, the Second Circuit had no trouble with the law. Defendants have a constitutional right to a public trial in both state and federal court; that’s the holding of the Supreme Court’s opinion in Waller v. Georgia, decided in 1984. The denial of a public trial is a “structural error,” meaning it’s one that courts aren’t permitted to ignore even if they find the error was harmless; Waller said that too.

And, the court went on, the closure of Gibbons’s voir dire was not justified under the standards that Waller set out. The trial judge’s security concern was silly (“this was not the trial of Osama bin Laden,” the court said), as was the purported concern that jurors would wonder who the mother was (“we do not understand what difference it would make”). Nor did the trial judge look hard enough for alternatives. In a note to future trial judges with small courtrooms, the court noted, the trial court could have:

  • “Accepted defense counsel’s suggestion to have Gibbons’s mother sit behind counsel, or in some other part of, the 'well;'
  • “Called fewer jurors at the start, leaving some room for spectators;
  • “Required either a member of the venire or Gibbons’s mother to stand until a seat became vacant; or
  • “Moved the proceedings to a larger courtroom — an option the court considered on the second day of voir dire. “

(He could have moved jury selection out of the courthouse, too. I once consulted in a voir dire held in a popular banquet hall across town.)

“voiding a trial . . . seems to us unimaginable.”

Will Gibbons get a new trial, then, since the Second Circuit has found that his first one was tainted by structural error? He will not. The court turned to a “trivial error” theory that has no basis in Supreme Court case law but which the Second Circuit has used once before, in Peterson v. Williams in 1996. In essence, this theory says to the Supreme Court, Surely you don’t mean we have to overturn a conviction when the error was this harmless:

The contention that . . . a brief and trivial mistake could require voiding a criminal trial of many months duration seems to us unimaginable. Whether the explanation would be that so trivial an exclusion did not constitute a violation of the Sixth Amendment, or that there was a violation but too trivial to justify voiding the trial, we do not know. But we believe that, regardless of which explanation would be given, the result would be to allow the conviction to stand. We must speculate because the Supreme Court has never ruled on such a question.

And so Gibbons’s conviction will stand. “Nothing of significance happened” in the courtroom that closed afternoon, the court said. “We need not rule on the metaphysical question whether, in view of the triviality of the incident, it was not a deprivation of a constitutional right, or in contrast, it was a violation of a constitutional right, but, in spite of the inapplicability of the harmless error rule, too trivial to justify vacating the state court’s judgment.”


Metaphysical for some people, I guess. Worrisome for others. Where are we going with this? The other “structural” errors include denial of counsel; can trial courts now hold an afternoon of voir dire without a defense lawyer, as long as “nothing of significance” happens? Will the Supreme Court, fresh from finally carving a good-faith exception to the exclusionary rule, decide that it likes this distinction between harmless and trivial?

Will the answers to these constitutional questions be different because we wanted to protect a young woman from having to testify twice?

I’m troubled too by the image of that courtroom in Goshen, and the mother – the grandmother – who had to wait outside. If she had been a reporter, or if she had been a man, would the trial judge have found a way to let her stay? I wish she’d had a lawyer of her own that day.


  1. The case is Gibbons v. Savage, decided January 28. The opinion itself doesn’t say where the trial took place, but the New York Appellate Division opinion does.
  2. New York lawyer Stephen Bernstein, who wrote about this case last week, practices in Orange County (Goshen is the county seat), remembers that “the old criminal courtrooms were certainly tiny and smaller than most law school moot courtrooms.”


What kind of stories do you want to read more of?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests