Andrea L. Westerfeld
In recent years, both the Court of Criminal Appeals and the Supreme Court of the United States have reminded us that as a rule, courtrooms should remain open to the public. Only a very compelling reason and exploration of all the alternatives will support closing it. But in a recent opinion on rehearing in Cameron v. State,1 the Court of Criminal Appeals has shown a glimmer of hope by clarifying the burden of proof in such cases.
The legal background
In 2010, the Supreme Court reasserted years of caselaw and reminded parties that courtrooms were intended to be open to the public. In Presley v. Georgia,2 the trial court excluded the defendant’s uncle during voir dire, noting that the courtroom did not have space for the public to sit separately during voir dire and the judge did not want the public sitting intermixed with the jury panel. The Supreme Court reaffirmed that the right to an open trial includes voir dire and found that the trial court must show that alternatives were considered so that closing the courtroom was the only option. Trial courts must take “every reasonable alternative” to closing the courtroom.
Then in back-to-back months in 2012, the Court of Criminal Appeals issued two opinions reminding parties that courtrooms must be open to the public unless compelling reasons are presented on the record for the closure. In Steadman v. State,3 the trial court refused to allow four members of the defendant’s family to sit in the jury box during voir dire, citing “security concerns” and saying that it would be an “emotionally charged” trial. It also noted that there was a central jury room available, but it would be inconvenient to use for voir dire and also presented security concerns. The CCA held that the reasons provided were too vague and the trial court did not adequately consider reasonable alternatives.
A month later, in Lilly v. State,4 the defendant was an inmate and was tried on a new charge at a courtroom inside the prison. He complained that restrictive security measures for entering the prison amounted to a de facto closure of the courtroom. Even though Lilly could not show that any member of the public was actually dissuaded from attending, the CCA found that the test is instead whether the judge took every reasonable effort to accommodate public attendance. Because the security measures were so restrictive, it did not meet this burden.
The original Cameron opinion
Vanessa Cameron was on trial for murder. During voir dire, the bailiff ushered out Cameron’s friends and family so the panel could be seated. When Cameron complained, the judge noted that every single seat in the courtroom was full from the jury panel and the lawyers and asked where Cameron suggested they be seated. The judge suggested having the visitors stand in the hallway, but the record did not show whether they actually did so. The judge explained on the record the crowded conditions of the courtroom, noted that it was a murder trial, that there were “security concerns,” and that he did not want family members seated right next to jurors out of concern it would affect their honesty during voir dire.
In October 2014, the Court found that the trial was improperly closed.5 The right to a public trial helps hold judges, prosecutors, and jurors accountable to the public. Violation of this right is structural error and requires reversal even without a showing of harm. Before a judge may exclude the public from a trial, it must make specific findings showing an overriding interest that closure is essential to preserve higher values and the closure is narrowly tailored to protect that value. Mere crowded conditions are not enough—moving to a larger space or splitting the panel should be tried first. Other than crowded conditions, the judge listed only two factors: “security concerns” and worry that the defendant’s relatives might affect the jurors’ truthfulness. But “security concerns” alone is too vague to support closure, and the latter is the very purpose of a public trial. Because the public was excluded without sufficient findings, the case was reversed and remanded.
Opinion on rehearing
In March 2016, the CCA took up the case again and issued a new opinion on rehearing. The Court did not revisit the trial judge’s rationale for closing the courtroom. Instead, it considered the question of whose burden it was to prove the courtroom was improperly closed. The Court found that the burden of showing that the courtroom was actually closed belongs to the defendant. When considering a closed courtroom complaint, therefore, courts must first consider whether the defendant proved that the courtroom was actually closed. Only after that is satisfied does the court consider whether the trial court provided adequate reasons to justify the closure.
The next question the CCA addressed was what level of deference the court should show. Ultimately, it concluded that the question of whether a courtroom was closed is a mixed question of fact and law. It is more than a pure legal question that receives de novo review with no deference at all to the trial court. But it does not involve a question of credibility, which would demand almost total deference. Thus, the appellate court must give deference to the trial court’s fact-findings regarding the closure of the courtroom, unless those findings are unreasonable in light of the record.
What was the resolution? The CCA did not actually determine whether Cameron satisfied her burden in this case. Instead, it remanded the case to the lower court of appeals to consider the issue. In this case, the question of whether the courtroom was actually closed depends on some vague wording in the record. The trial court asked the bailiff to escort Cameron’s family members out while the jury was seated, but as Presiding Judge Keller noted in her dissent on the original opinion, the record does not show that they were not allowed back in after the panel was seated. Also, the trial court repeatedly suggested alternatives, such as allowing family members to stand in the hallway, and asked the defense attorney whether they would be acceptable, but the defense attorney only asked for a ruling instead of responding. The court of appeals may decide that the record implicitly shows the closure of the courtroom, or it may find that the defendant did not provide clear proof that the courtroom was closed. But only after that determination is made does the appellate court go on to consider whether the trial court considered reasonable alternatives.
What does this mean?
Ultimately, courtrooms are meant to be open to the public, and this opinion does not change that. Prosecutors should still take every care not to exclude people from a courtroom and be certain that all alternatives are explored on the record before doing so. But Cameron does give hope to those cases that come up where the issue was not fully explored at trial and the record may not show much at all, including whether the courtroom was even actually closed. By clarifying that the defense still bears the burden of proof, the Court of Criminal Appeals has made it harder for a defendant to slip an undeveloped issue through and claim a victory on appeal.
1 Cameron v. State, No. PD-1427-13, 2016 WL 859173, at *1 (Tex. Crim. App. Mar. 2, 2016) (op. on reh’g).
2 Presley v. Georgia, 588 U.S. 209 (2010).
3 Steadman v. State, 360 S.W.3d 499 (Tex. Crim. App. 2012).
4 Lilly v. State, 365 S.W.3d 321 (Tex. Crim. App. 2012).
5 Cameron v. State, No. PD-1427-13, 2014 WL 4996290, at *1 (Tex. Crim. App. Oct. 8, 2014) (reh’g granted Jan. 28, 2015).