"THE FEDERAL CORNER"
Throw Open the Courtroom Doors to the Public
F. R. (Buck) Files, Jr.
Waldo Snerd wanted a trial. In fact, he wanted a trial so badly that he had instructed his lawyers to quit negotiating on his behalf and to announce "ready for trial" every time that his case was called. When the court set his case for jury selection, Waldo was eager. His family and his witnesses were equally enthusiastic. It was time for a resolution of Waldo's case.
Because Waldo was charged with the offense of indecency with a child and was probation eligible, the district judge ordered that 60 venire persons be summoned for the jury selection process. When Waldo, his wife and his lawyers entered the courtroom, they found that the jurors' numbered cards had been placed on all of the benches and all but one of the chairs in the courtroom except for those of the court staff and at counsel's tables. Sitting in the bailiff's chair was a law student who was just beginning his duties as an intern for the local bar association. When the court coordinator came into the courtroom and saw him, she asked him to leave because there wasn't room for him.
Does this fact situation sound familiar? It should because it is similar to that in Presley v. Georgia, 130 S.Ct. 721 (2010) [per curiam opinion]. In Presley, the Supreme Court held that the defendant's Sixth Amendment right to a public trial was violated when the trial court excluded the public from the voir dire of prospective jurors.
[THE FACTS IN PRESLEY]
Before selecting a jury in Presley's trial, the trial court noticed a lone courtroom observer. Id., at 270-271, 674 S.E.2d, at 910. The court explained that prospective jurors were about to enter and instructed the man that he was not allowed in the courtroom and had to leave that floor of the courthouse entirely. Id., at 271, 674 S.E.2d, at 910. The court then questioned the man and learned he was Presley's uncle. Ibid. The court reiterated its instruction:
' "Well, you still can't sit out in the audience with the jurors. You know, most of the afternoon actually we're going to be picking a jury. And we may have a couple of pre-trial matters, so you're welcome to come in after we ... complete selecting the jury this afternoon. But, otherwise, you would have to leave the sixth floor, because jurors will be all out in the hallway in a few moments. That applies to everybody who's got a case." ' Ibid.
Presley's counsel objected to ' "the exclusion of the public from the courtroom," ' but the court explained, ' "[t]here just isn't space for them to sit in the audience." ' Ibid. When Presley's counsel requested ' "some accommodation," ' the court explained its ruling further:
' "Well, the uncle can certainly come back in once the trial starts. There's no, really no need for the uncle to be present during jury selection.... [W]e have 42 jurors coming up. Each of those rows will be occupied by jurors. And his uncle cannot sit and intermingle with members of the jury panel. But, when the trial starts, the opening statements and other matters, he can certainly come back into the courtroom." ' Ibid.
After Presley was convicted, he moved for a new trial based on the exclusion of the public from the juror voir dire. At a hearing on the motion, Presley presented evidence showing that 14 prospective jurors could have fit in the jury box and the remaining 28 could have fit entirely on one side of the courtroom, leaving adequate room for the public. App. To Pet. For Cert. E-37, E-41. The trial court denied the motion, commenting that it preferred to seat jurors throughout the entirety of the courtroom, and 'it's up to the individual judge to decide ... what's comfortable.' Id., E-38. The court continued: 'It's totally up to my discretion whether or not I want family members in the courtroom to intermingle with the jurors and sit directly behind the jurors where they might overhear some inadvertent comment or conversation.' Id., at E-42 to E-43.
[IN THE GEORGIA COURTS AND AT THE SUPREME COURT]
The Court of Appeals of Georgia and the Supreme Court of Georgia affirmed Presley's conviction. The Supreme Court granted certiorari and reversed the judgment. The Supreme Court's per curiam opinion contains, in part, the following:
The case now before the Court is brought under the Sixth Amendment, for it is the accused who invoked his right to a public trial. An initial question is whether the right to a public trial in criminal cases extends to the jury selection phase of trial, and in particular the voir dire of prospective jurors. In the First Amendment context that question was answered in Press-Enterprise I. Id., at 510, 104 S.Ct. 819. The Court there held that the voir dire of prospective jurors must be open to the public under the First Amendment. Later in the same Term as Press-Enterprise I, the Court considered a Sixth Amendment case concerning whether the public trial right extends to a pretrial hearing on a motion to suppress certain evidence. Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). The Waller Court relied heavily upon Press-Enterprise I in finding that the Sixth Amendment right to a public trial extends beyond the actual proof at trial. It ruled that the pretrial suppression hearing must be open to the public because 'there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public.' 467 U.S., at 46, 104 S.Ct. 2210.
While Press-Enterprise I was heavily relied upon in Waller, the jury selection issue in the former case was resolved under the First, not the Sixth, Amendment. Press-Enterprise I, supra, at 516, 104 S.Ct. 819 (STEVENS, J., concurring) ('The constitutional protection for the right of access that the Court upholds today is found in the First Amendment, rather than the public trial provision of the Sixth' (footnote omitted)). In the instant case, the question then arises whether it is so well settled that the Sixth Amendment right extends to jury voir dire that this Court may proceed by summary disposition.
The point is well settled under Press-Enterprise I and Waller. 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. Still, there is no legitimate reason, at least in the context of juror selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has. 'Our cases have uniformly recognized the public-trial guarantee as one created for the benefit of the defendant.' Gannett Co. v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). There could be no explanation for barring the accused from raising a constitutional right that is unmistakably for his or her benefit. That rationale suffices to resolve the instant matter. The Supreme Court of Georgia was correct in assuming that the Sixth Amendment right to a public trial extends to the voir dire of prospective jurors.
While the accused does have a right to insist that the voir dire of the jurors be public, there are exceptions to this general rule. '[T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information.' Waller, 467 U.S., at 45, 104 S.Ct. 2210. 'Such circumstances will be rare, however, and the balance of interests must be struck with special care.' Ibid.Waller provided standards for courts to apply before excluding the public from any stage of a criminal trial:
"[T]he 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." Id., at 48, 104 S.Ct. 2210.
In upholding exclusion of the public at juror voir dire in the instant case, the Supreme Court of Georgia concluded, despite our explicit statements to the contrary, that trial courts need not consider alternatives to closure absent an opposing party's proffer of some alternatives. While the Supreme Court of Georgia concluded this was an open question under this Court's precedents, the statement in Waller that 'the trial court must consider reasonable alternatives to closing the proceeding' settles the point. Ibid. If that statement leaves any room for doubt, the Court was more explicit in Press-Enterprise I:
"Even with findings adequate to support closure, the trial court's orders denying access to voir dire testimony failed to consider whether alternatives were available to protect the interests of the prospective jurors that the trial court's orders sought to guard. Absent consideration of alternatives to closure, the trial court could not constitutionally close the voir dire." 464 U.S., at 511, 104 S.Ct. 819.
The conclusion that trial courts are required to consider alternatives to closure even when they are not offered by the parties is clear not only from this Court's precedents but also from the premise that '[t]he process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system.' Id., at 505, 104 S.Ct. 819. The public has a right to be present whether or not any party has asserted the right. In Press-Enterprise I, for instance, neither the defendant nor the prosecution requested an open courtroom during juror voir dire proceedings; in fact, both specifically argued in favor of keeping the transcript of the proceedings confidential. Id., at 503-504, 104 S.Ct. 819. The Court, nonetheless, found it was error to close the courtroom. Id., at 513, 104 S.Ct. 819.
Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials. Nothing in the record shows that the trial court could not have accommodated the public at Presley's trial. Without knowing the precise circumstances, some possibilities include reserving one or more rows for the public; dividing the jury venire panel to reduce courtroom congestion; or instructing prospective jurors not to engage or interact with audience members. [Emphasis added]
THE REST OF THE STORY - AND MY THOUGHTS
Brett Harrison and I were the lawyers for Waldo. For a number of reasons, we did not want to postpone the jury selection or trial of his case. When the judge took the bench, we advised him that we were aware of the Supreme Court's opinion in Presley, but that we did not have any objection to proceeding with the jury selection in his courtroom - even though there were no seats for the public.
The cautious judge made it very clear that he would do whatever was necessary to accommodate the public; however, realistically, that would have been difficult for him - if not impossible. He did, however, direct his court coordinator to find a chair for our summer intern and to bring him back into the courtroom where he sat for most of the voir dire.
As was anticipated, we could not seat a jury and the judge ordered that a panel of 90 venire persons be available for the following day and scheduled the trial to be held in the courtroom of a judge who was on vacation. Before jury selection, though, we settled the case for a lesser offense, avoided sex offender registration and went away.
For those judges who have small courtrooms and who seem to be unaware of the existence of the Supreme Court, Presley could be a land mine. And for the practitioner, it will be so easy to assist such a judge into committing an error of constitutional dimension.
