Excluding A “Particular Member Of the Public” During Trial Under The Sixth Amendment

In prosecution for embezzling funds, the exclusion of a severed defendant during the trial did not violate the remaining defendant’s Sixth Amendment right to a public trial based on witness intimidation concerns; the partial closure satisfied the constitutional requirements, in United States v. Addison, 708 F.3d 1181 (10th Cir. Feb. 26, 2013) (No. 11-8105)

The Sixth Amendment provides the defendant with a right to a public trial. As the Supreme Court has explained, “The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.” Waller v. Georgia, 467 U.S. 39, 46 (1984) (quotation marks omitted); see also Gannett Co. v. DePasquale, 443 U.S. 368, 383 (1979) (“Openness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial system.”).

Structural Error

Significantly, where the constitutional right to a public trial is infringed, structural (not harmless) error occurs, resulting in automatic reversal. See Neder v. United States, 527 U.S. 1, 8 (1999) (listing the right to a public trial among a “very limited class of cases” in which structural error results) (citation omitted). The Tenth Circuit recently noted and considered the issue: “Does the Sixth Amendment right to a public trial prohibit the exclusion of a particular member of the public?”

Trial Court Proceedings

In the case, defendants Addison and St. Clair proceeded to trial after being charged with embezzling or converting funds from a social services agency of an Indian tribe. During the trial, a conflict arose with St. Clair’s counsel and the trial judge declared a mistrial for defendant St. Clair solely. The trial against defendant Addison proceeded. Based on concerns that had arisen, the trial judge admonished St. Clair the he would not tolerate any witness intimidation. She was excluded from further trial proceedings. Defendant Addison then objected to the exclusion based her Sixth Amendment right to a public trial. The court overruled the objection, concluding “St. Clair was ‘an indictable co-defendant’ and allowing her to sit as a member of the audience in a trial where she was once a defendant, could distract the jury and be seen as a comment on her guilt or innocence.” Addison, 708 F.3d at 1186. When one witness indicated fear of “losing her job with the Tribe because she worked with some of Addison’s relatives, who were in the courtroom” and the trial court learned that the witness was concerned that “the wife of one of the tribal business councilmen [wa]s related to St. Clair,” the judge further explained the basis for excluding St. Clair from the courtroom:

And that’s another reason why it would be intolerable to have Ms. St. [Clair] here. . . . [F]or the Court to—especially in light of what this witness just said—and it’s obvious that she’s very tremulous about this.

For me to allow a co-defendant to sit in this courtroom with family members and go out in the hallway and glare at people coming in and out of this courtroom—I wasn’t born yesterday. [Addison] has a right to a fair trial, but . . . no one has a right to obstruct justice, and it’s clear that this witness is intimidated, and I’m not putting up with it. And that further buttresses the Court’s earlier ruling regarding the exclusion of [St. Clair] from the remainder of this proceeding.

. . . .

[W]hen I exclude a person who may engage in acts of witness intimidation, . . . that is not affecting [Addison’s] right to a fair trial. To the contrary, . . . it’s probably guaranteeing that she gets it.

. . . .

I have an obligation to make sure that people get due process in this courtroom; that they get a fair trial; that there is no obstruction of justice, and my antennae are up. The government has made representations as officers of the Court, and this witness clearly heightened this Court’s concerns. So that’s the reason for the Court’s ruling. No one else is excluded. The whole world is invited.

Addison, 708 F.3d at 1186.

The jury convicted defendant Addison on the embezzlement or conversion count yet acquitted her on the conspiracy count. On appeal, the defendant contended that her Sixth Amendment right to a public trial was violated by the exclusion of St. Clair over her objection, resulting in structural (not harmless) error.

Distinguishing Total and Partial Closure

While underscoring the importance of the constitutional right to a public trial, the Tenth Circuit noted that it was a qualified right. The case presented an issue concerning a partial, not total, closure. Consequently, the closure would be considered under a less-stringent “substantial” reason standard, instead of an overriding interest standard (used when total closure is considered). Addison, 708 F.3d at 1187 (citing Nieto v. Sullivan, 879 F.2d 743, 753 (10th Cir. 1989) (in distinguishing total and partial closure, noting that “a total closure of the courtroom” results when “only the defendant, the jury and, of course, the judge and court staff” are present). Four requirements must be satisfied under the Constitution to justify a closure:

“the party seeking to close the hearing must [1] advance an overriding interest [for total closure or "substantial interest" where a partial closure is considered] 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 proceeding, and [4] it must make findings adequate to support the closure.”

Addison, 708 F.3d at 1188 n.6 (citing Waller, 467 U.S. at 48.

Notwithstanding several bases noted by the trial court for the exclusion, the Tenth Circuit concluded the partial closure was justified on witness intimidation grounds. As clarified in the record:

The government’s attorney, an officer of the court, made a proffer saying Quiver—a government witness—had alleged St. Clair had intimidated her. The judge also heard directly from another witness, Morin, who testified to fear of losing her job in part because the wife of one of the Tribe’s business councilmen is related to St. Clair. In the court’s own words, Moran appeared “very tremulous” about testifying and was “clear[ly] . . . intimidated.”

Addison, 708 F.3d at 1186.

Other Witness Intimidation and Safety Cases

The Tenth Circuit noted a line of cases which supported partial closure under the Sixth Amendment based on witness intimidation:

  • Nieto v. Sullivan, 879 F.2d 743, 752-54 (10th Cir. 1989) (excluding defendant’s relatives during victim’s testimony based on victim safety concerns)
  • United States v. Galloway (Galloway II) , 963 F.2d 1388, 1390 (10th Cir. 1992) (partial closure during victim’s testimony based on the victim’s age and sexual nature of the offense)
  • Martin v. Bissonette, 118 F.3d 871, 875 (1st Cir. 1997) (closure of courtroom to all spectators, including defendant’s mother, based on witness intimidation by the defendant, his girlfriend and his brothers)
  • Woods v. Kuhlmann, 977 F.2d 74, 76-77 (2d Cir. 1992) (excluding the defendant’s family during eyewitness’s testimony based on witness safety concerns following threats made by the defendant’s family)
  • United States v. Hernandez, 608 F.2d 741, 747-48 (9th Cir. 1979) (excluding public during witness testimony based on safety concerns following threats)

Alternative Total Closure Standard Also Satisfied

The Tenth Circuit considered the exclusion under the stricter total closure "overriding interest" standard and concluded that the four-part test also was satisfied:

(1) preventing witness intimidation, thereby preserving the integrity of the trial, is an overriding interest which would be prejudiced if St. Clair were not excluded; (2) the closure was no broader than necessary to protect that interest as the court only closed the trial to the individual alleged to have engaged in witness intimidation and her exclusion from the entire trial was proper because there was evidence she intimidated more than
one witness; (3) the court implicitly determined there were no reasonable alternatives to exclusion as St. Clair’s presence would likely intimidate witnesses; and (4) its findings adequately supported her exclusion.

Addison, 708 F.3d at 1188 n.6.

Finally, the circuit noted that "protecting the participants in a trial is an integral part of protecting the integrity of the trial itself." Addison, 708 F.3d at 1188.

The Addison case demonstrates the importance of the qualified constitutional right to a public trial and the type of record that must be made to justify a partial closure subject to appellate review. The risk in failing to do so may be structural error. For another case considering the First Amendment right to attend public proceedings, see Error In Closing Sentencing Proceeding Without Prior Notice And The Opportunity To Be Heard.

Photo Description: Tenth Circuit Court of Appeals Courthouse in Denver, CO.

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