Closing the courtroom
It ain't easy being a judge. Say you've got a high-profile murder case involving a shooting between rival gangs. The police have finally located a key witness, but he's scared to death to come in and testify, especially in a courtroom containing the defendant's gang members. There've already been altercations in the lobby between the families of the victim and the defendant, and there've been some interruptions inside the courtroom, too. Do you close the courtroom to spectators during the witness' testimony?
That's the issue addressed by the 8th District's decision last week in State v. Woods. And the case carries an especially cautionary note: if the judge gets it wrong, "notwithstanding the overwhelming evidence of [defendant's] guilt," the case is going back for retrial.
Oddly enough, most cases on this subject don't deal with the 6th Amendment right to public trial, but with the First Amendment right of the press and public; indeed, there are cases where it was the defendant who was seeking to close certain proceedings -- a preliminary hearing, a juvenile bindover proceeding -- to protect his right to fair trial. Woods didn't present that situation: it was the prosecution calling for closure, over the defendant's objection.
The lead case on this subject is Waller v. Georgia, where the trial judge had excluded everyone from a suppression hearing except the witnesses, the parties and their attorneys, and court personnel. The Supreme Court reversed, and laid down the following test to determine whether closure is permitted:
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.
The Woods court notes that the test was modified by the Ohio Supreme Court in State v. Drummond, which held that where there was only a partial closure -- in that case, only spectators were excluded, while the media was permitted to remain -- the State need only show a "substantial reason," rather than an "overriding interest," in closing the courtroom. Drummond had upheld the closure because there'd been a physical altercation between a spectator and courtroom deputies, and that other witnesses had expressed a "fear of retaliation."
There was nothing of the sort in Woods case -- if there was, the opinion doesn't mention it -- so the issue turned on protection of the witness, in this case, one of Woods' co-defendants, Jenkins, who'd agreed to testify against him. The prosecutor and Jenkins' attorney argued for closure out of concern for his safety, while Woods' lawyer noted that the jury was likely to make some negative inferences toward Woods if it came back in and the courtroom had been cleared. Jenkins' testified that he'd been in the holding cell with Woods just prior to his testimony -- good planning, that -- and Woods told him he didn't have to testify. Jenkins' lawyer alleged that "there's an indicia here that there could be repercussions" if Jenkins testified, but, as the court noted, "an indicia is a far stretch from a claim that a witness was intimidated or threatened."
The major problem here was that Jenkins himself testified that he didn't take Woods' statement as a threat. That, and the lack of the type of incidents which had factored into Drummond, led the court to conclude that "the record does not reflect a substantial reason for the closure." The court also found that none of the other three Waller criteria were satisfied: the closure was broader than necessary, since "it appears that the trial court excluded all spectators, including the media," it didn't "appear as though the trial court considered alternatives to the closing of the courtroom," and the trial court didn't make sufficient findings to support closure. Thus, despite the "overwhelming evidence of Woods' guilt," the court was "constrained to reverse this case" -- an error in closing a trial is structural, and mandates reversal, without consideration of whether the error is harmless.
Woods is helpful, but its instructive value is somewhat eroded by its reliance on Drummond. As noted, the issue in Waller was total closure for the entire hearing, while in Drummond the trial judge had excluded spectators for only a few witnesses, and had allowed the media to remain. After surveying the Federal cases, the Drummond court modified the first part of the Waller test to allow for a "substantial reason" rather than an "overriding interest" to justify closure. But just last year, in Presley v. Georgia, the US Supreme Court reiterated the "overriding interest" test in a case in which the court had excluded the defendant's uncle, the sole courtroom observer, during voir dire because of space concerns. In fact, that was one of the reasons that a Federal District Judge granted habeas relief to Drummond just five weeks ago.
Presley is probably of better use, and some of its points bear stressing. One of the key points goes to the issue of finding alternatives to closure. The Georgia Supreme Court had concluded that a trial court need not consider alternatives if the opposing party doesn't proffer some, but Presley rejected that, and makes clear that the burden is on the trial court, not the party opposing closure, to come up with alternatives.
That's not to say that a trial court is powerless to prevent her courtroom from devolving into open warfare. In State v. Sowell, the judge had expelled a member of defendant's family from the courtroom and barred him from returning because the member had made a threatening gesture to a witness; the 10th District surveyed the law and concluded that barring a particular spectator didn't implicate 6th Amendment concerns, and should be analyzed under an abuse of discretion standard. The DC circuit came to a similar result last year in a case in which the defendant had complained that his eight-year-old son had wrongly been excluded from the courtroom because the judge believed the son's presence was intended solely to stir the jury to sympathy. (Ya think?)
The bottom line, though, is that in the absence of strong evidence of intimidation, closing the courtroom to all members of the public should be a last resort.