April 8, 2009 13:19 Age: 5 yrs

Emory Law Student Publishes Op-Ed on Sixth Amendment and the Georgia Supreme Court

Daniel Levitas 10L

Emory Law student Daniel Levitas 10L published an op-ed examining the Georgia Supreme Court’s ruling in Presley v. State in the April 8 Daily Report. Levitas argues that the decision in Presley violates the Sixth Amendment right to a public trial. The op-ed can be viewed in its entirety below and on the Daily Report website (free online registration is required).
Levitas’ op-ed piece was drafted using research from his student Comment, “Scaling Waller: How Courts Have Eroded the Sixth Amendment Public Trial Right,” which was accepted for publication in Vol. 59 of the Emory Law Journal. Emory Law Professor Kay Levine served as Levitas' Comment adviser.
Levitas serves as an executive managing editor of the Emory Law Journal. His 2002 book, The Terrorist Next Door: The Militia Movement and the Radical Right, was nominated for a Pulitzer Prize and a National Book Award. Levitas held a field placement internship with Georgia Supreme Court Presiding Justice Carol W. Hunstein in 2008, but did no work on Presley v. State.

Wednesday, April 08, 2009
Been there, done that
Georgia Supreme Court errs in upholding courtroom closure that violates the right to public trial
By Daniel Levitas, Special to the Daily Report

American courts and legal scholars have long praised the Sixth Amendment right to a public trial, but the recent decision by the Georgia Supreme Court in Presley v. State, No. S08G1152, 2009 WL 735668 at *1 (March 23) puts into sharp focus how trial judges and appellate courts often lack the willingness to enforce this fundamental right. Ironically, Presley was decided almost exactly 25 years after the U.S. Supreme Court decided Waller v. Georgia, 467 U.S. 39 (1984), a landmark case affirming the public trial right in which the Georgia Supreme Court was squarely overturned. Presley not only presents the U.S. Supreme Court with an important opportunity to again correct the Georgia Supreme Court's misunderstanding of the rules governing courtroom closure; it also gives the high court an avenue to correct appellate and trial courts across the country that have persisted in disregarding Waller since 1984. The rule laid down in Waller is as straightforward as it is simple.

“[(1)] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; [(2)] the closure must be no broader than necessary to protect that interest; [(3)] the trial court must consider reasonable alternatives to closing the hearing; and [(4) the trial court] must make findings adequate to support the closure.” [Footnote 1]

In the years since Waller was decided, the U.S. Supreme Court has never cast doubt on this four-part test, nor has it questioned the clear rule it reaffirmed seven years later in Arizona v. Fulminante, 499 U.S. 279, 309–10 (1991) (Rehnquist, J., concurring), that harmless error cannot be applied to excuse violations of the public trial right. Nevertheless, trial and appellate courts, including those in Georgia, persist in wrongfully sterilizing violations of the public trial clause by holding such errors “harmless,” by manufacturing consent to avoid application of the plain error rule, by permitting post-hoc findings to rationalize improper closures, by asserting that “partial closure” permits only a substantial—not an overriding—interest to justify closure and, as demonstrated with painful clarity in Presley, by simply disregarding the procedural rules of Waller altogether.

In Presley, decided 5-2, with Presiding Justice Carol W. Hunstein and Chief Justice Leah Ward Sears dissenting, the Georgia Supreme Court upheld a decision by DeKalb Superior Court Judge Linda W. Hunter to completely close the courtroom during voir dire in a routine drug trafficking case. Announcing her presumption that the defendant's uncle, as well as unrelated members of the public, might taint the jury pool by sitting in the same courtroom with prospective jurors, Hunter closed the courtroom on her own initiative and over the defendant's objection.

Although Hunter held no hearing and made no findings of fact necessary to establish the overriding interest she sought to protect by closing the courtroom, the Georgia Court of Appeals upheld the closure under an abuse of discretion standard—clearly contrary to Waller and Fulminante. [Footnote 2] Disregarding clear and controlling precedent, the Georgia Supreme Court then affirmed.

In Press–Enterprise Co. v. Superior Court of Calif., No. 464 U.S. 501, 511–12 (1984), the U.S. Supreme Court held that the public right of access to criminal trials extended to voir dire under the First Amendment. In that case, which involved a highly charged rape trial with substantial racial overtones, all nine justices agreed that neither the defendant's right to a fair trial, or the privacy rights of jurors, was sufficient to justify closing the courtroom. If the U.S. Supreme Court could find no overriding interest to justify closure under those circumstances, it is most unlikely that a closure will pass muster when it is based on a judge's very shaky speculation that visitors in the courtroom will whisper their biases to members of the jury pool seated on the next bench in open court.

Setting aside the entirely hypothetical nature of Hunter's concern, ordering a pre-emptive courtroom closure is hardly the least restrictive means for dealing with this problem—as specified by Waller—even if the purpose is to ensure a fair trial. Obviously, the more measured response is, first, to issue a clear admonition about proper conduct during voir dire, and second, to declare a mistrial in the unlikely event contaminating comments really are made. However, closing the courtroom pre-emptively, as occurred in Presley, represents just the kind of generalized and unsupportable judicial conduct that the U.S. Supreme Court has consistently forbidden, beginning with Richmond Newspapers, 448 U.S. 555 (1980)—a media access case involving a high-profile murder trial which held that no courtroom closure was proper without the articulation of an overriding interest in evidentiary findings—and extending through Waller.

Courts are fond of citing ample authority for the proposition that judges have both the right and the obligation to maintain dignity and decorum in the courtroom by managing overflow crowds, excluding rowdy spectators and the like. [Footnote 3] It also is well established that courtrooms may be closed during the testimony of minors in sex crime cases, [Footnote 4] to protect the anonymity of undercover police officers in “buy-and-bust” drug investigations, [Footnote 5] in certain national security proceedings [Footnote 6] or where a witness has a well-founded fear of harm. [Footnote 7] But none of these considerations justify the pre-emptive and presumptive exclusion of the entire public, including family members of the defendant, from even part of the trial; nor do they obviate the requirement that courts comply with Waller. Indeed, in each of these areas the black letter law holds that trial courts still must execute the four-part inquiry of Waller, or any closure that they do order will impugn the fairness and integrity of the entire proceeding and constitute structural error requiring reversal.

Presley is a deeply flawed decision, but perhaps nowhere more so than in its holding that the burden to propose alternatives to closure rested on the defendant, not the court, which acted abruptly and on its own to banish the public from the courtroom. [Footnote 8] One need look no further than the plain language of both Press–Enterprise and Waller for the rule that a trial court must assess the closure under the rubric of strict scrutiny and make its own judgment that the closure is the least restrictive means possible for accommodating the overriding interest at stake. Neither decision suggests that the burden lies with the party opposing the closure. According to Press–Enterprise, there must be findings that the closure “is narrowly tailored to serve that [overriding] interest.” [Footnote 9] Justice Thurgood Marshall's concurrence in that case also states that before issuing a closure order, “a trial court should be obliged to show that the order in question constitutes the least restrictive means available for protecting compelling state interests.” [Footnote 10] Waller restates and reincorporates this rule, announcing that the “trial court must consider reasonable alternatives to closing the proceeding, and that it must make findings adequate to support the closure.” [Footnote 11]

The majority in Presley bases its argument that the burden to propose alternatives falls on the party opposing closure by citing Ayala v. Speckard, [Footnote 12] a 2nd U.S. Circuit Court of Appeals case involving claims of three petitioners for habeas relief where the courtroom was closed during testimony by an undercover police officer. Regardless of what Ayala has to say about where that burden lies, Ayala's overarching view of what is required under Waller does not support upholding the closure ordered by the trial court in Presley:

“We believe the sensible course is for the trial judge to recognize that open trials are strongly favored, to require persuasive evidence of serious risk to an important interest in ordering any closure, and to realize that the more extensive is the closure requested, the greater must be the gravity of the required interest and the likelihood of risk to that interest.” [Footnote 13]

Under this standard, the exclusion ordered in Presley was plainly wrong. There was no “persuasive evidence of serious risk” and the closure was extensive; although limited to voir dire, it was still total. As explained by the 11th U.S. Circuit Court of Appeals in Judd v. Haley, the total closure of a courtroom for even a temporary period can never “be considered a partial closure, and analyzed as such.” [Footnote 14] In addition, the closure impacted the defendant's rights even more significantly because it involved the conscious exclusion of his uncle, and courts—including Ayala—have clearly stated that special care should be taken before excluding relatives of the defendant. [Footnote 15]

Sadly, Georgia courts are not alone in flouting Waller. In Clements v. State, 742 So.2d 338 (Fla. App. 5 Dist. 1999), the Florida Fifth District Court of Appeal ruled that no Waller inquiry was required when a courtroom is closed pursuant to Florida's mandatory trial closure statute. [Footnote 16] In arriving at its decision, the court distinguished between “partial closure” and “total closure” and then explained that the state Legislature, by enacting the statute, had already made the necessary finding of compelling interest and drawn the statute narrowly to protect defendants' rights. [Footnote 17] Thus, no Waller inquiry was required.

In State v. Anderson, a Minnesota trial court ordered the courtroom closed during a hearing in chambers in a criminal sexual misconduct case. [Footnote 18] Counsel was present, but the exchange “was not recorded, and the court ha[d] no clear memory of the discussion.” [Footnote 19] Despite the State Court of Appeals' acknowledgement that a trial court must “articulate its findings with specificity and detail supporting the need for closure,” it found no error because the prosecuting attorney's post hoc recollections included “many but possibly not all of [the] reasons” that had originally been articulated in favor of closure, even though the defendant's lawyer disagreed. [Footnote 20]

In United States v. Farmer, the 8th U.S. Circuit Court of Appeals also justified using reconstructed findings from the trial record to uphold closure after the fact, saying “specific findings by the district court are not necessary if we can glean sufficient support for a partial temporary closure from the record.” [Footnote 21] It is difficult to see how these holdings square with the strong language of Waller, which explicitly rejects post hoc findings, [Footnote 22] and the mandate of Globe Newspapers [Footnote 23] and Richmond Newspapers for individualized determinations, articulated in findings, prior to closure. However, in the absence of corrective guidance by the U.S. Supreme Court, post hoc findings are likely to remain attractive to some appellate courts in some cases.

The decisions in Presley and the other cases cited above send dangerous signals that it is acceptable to engage in improper courtroom closures. Allowing errors of this kind will only encourage repetition of the same mistakes and undermine important values of individual rights that are the foundation for our system of justice. It is time for the U.S. Supreme Court to give clear direction that courts may not apply harmless error analysis to violations of the public trial right and must be vigilant in applying the four-part Waller test in all cases of courtroom closure.


1 Waller, 467 U.S. at 48 (citing Press–Enterprise Co. v. Superior Court of Calif., 464 U.S. 501, 511–12 (1984)).

2 Presley v. State, 658 S.E.2d 773, 775 (Ga. App. 2008).

3 See, e.g., R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 581 (1982).

4 See, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 608 (1982) (holding that when making findings to support in a sex abuse trial, the court should consider, among other things, “the minor victim's age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives.”).

5 See, e.g., Bowden v. Keane, 237 F.3d 125, 131 (2d Cir. 2001) (upholding “narrow closure” of the courtroom where an undercover narcotics officer articulated “even a generalized fear that his safety could be endangered by testifying in open court, and explain[ed] in rough terms the basis of his fear”).

6 See, e.g., United States v. Marzook, 412 F. Supp. 2d 913, 924–28 (2006) (ordering courtroom closure during testimony of Israeli intelligence agents, but holding that a suppression hearing authorized under the Confidential Information Procedures Act (18 U.S.C.A. App. 3 §1 et seq.) also must “square with the Constitution [and] . . . . 'meet the test set out in Press-Enterprise and its predecessors' ”).

7 See, e.g., United States v. Farmer, 32 F.3d 369, 372 (8th Cir. 1994) (upholding closure where the evidence supported “the victim's well-reasoned fear of [the defendant]”)

8 Presley v. State, No. S08G1152, 2009 WL 735668 at *3 (Ga. March 23, 2009) (Sears, J., dissenting).

9 Press–Enterprise Co. v. Superior Court of Calif., 464 U.S. 501, 510 (1984).

10 Id. at 520 (1984) (Marshall, J., special concurrence) (punctuation omitted, emphasis added). Accord Tinsley v. United States, 868 A.2d 867, 879 (D.C. Cir. 2005) (holding that given the requirement that trial courts make findings adequate to support closure “we are not so sure that a trial judge should be absolved from considering even the most obvious reasonable alternatives to exclusion of the public that may be available merely because the parties have failed to propose them. To take that position would be to slight the independent public interest in an open courtroom.”); Ayala v. Speckard, 131 F.3d 62, 75–76 (2d Cir. 1997) (Parker, J., dissenting) (“[Waller] requires a trial judge to consider sua sponte alternatives to courtroom closure in a case where alternatives are not suggested by a party otherwise objecting to closure. This interpretation obeys the mandatory language of the Supreme Court's third Waller factor that 'the trial court must consider reasonable alternatives to closing the proceeding,'. . . and fulfills the requirement of the second Waller factor that 'the closure must be no broader than necessary to protect [the] interest [of the party seeking closure] . . . .”') (citations and punctuation omitted, emphasis added); Guzman v. Scully, 80 F.3d 772, 774, 776 (2d Cir. 1996) (reversing judgment and remanding for habeas corpus, noting the trial court made no findings in support of closure and never “even attempted” to consider alternatives, while also discussing an alternative the district court failed to consider and noting that defense counsel simply opposed closure, without suggesting any alternatives).

11 Waller, 467 U.S. at 48 (emphasis added).

12 131 F.3d 62 (2d Cir. 1997).

13 Ayala, 131 F.3d at 70.

14 Judd v. Haley, 250 F.3d 1308, 1315 (11th Cir. 2001) (citing Douglas v. Wainwright, 739 F.2d 531, 532 (11th Cir. 1984)).

15 In evaluating whether reasonable alternatives had been considered to the closures at issue, Ayala actually highlighted the fact “that none of the defendants requested that family members be permitted to remain in the courtroom, a request that would have required careful consideration by the trial judge. Ayala, 131 F.3d at 72.

16 Clements, 742 So.2d 338.

17 Id. at 341.

18 1996 WL 665902 (Minn. App. 1996).

19 Id. at *2.

20 Id.

21 United States v. Farmer, 32 F.3d 369, 371 (8th Cir. 1994).

22 Carter v. State, 738 A.2d 871 (Md. 1999) (“An appellate court may not provide a post hoc rationale for why the trial judge would have closed the trial had it held a hearing and made findings.”).

23 Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 608 n.20 (1982).457 (citing Richmond Newspapers, 448 U.S. at 581) (“Indeed, the plurality opinion in Richmond Newspapers suggested that individualized determinations are always required before the right of access may be denied: 'Absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.' ”)

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