July-August 2012

Trial judges must meet “exacting” standard before excluding ­spectators, or retrial is warranted

Emily Johnson-Liu

Assistant Criminal ­District Attorney in Collin County

Secret trials, the Spanish Inquisition, and the “worst excesses of the Star Chamber.” These long-since discarded practices prompted our founders to spell out a right to a public trial in the Sixth Amendment. Through a public trial, citizens may see that the accused is fairly dealt with, interested spectators may keep all of the participants “keenly alive” to their responsibilities, previously unknown witnesses may come forward, perjurers may be less inclined to perjure themselves, and the public may gain confidence in the judicial system.1

    But even when no one is attempting to subvert these goals, a trial judge’s actions may still deny a defendant his right to a public trial. This spring, two new cases from the Court of Criminal Appeals give prosecutors reason to tread carefully when a defendant complains he is being denied a public trial. In both cases, the court held that the record was inadequate to justify the trial judge’s actions, and in both cases, the result was serious: The defendant won a new trial—without having to show any harm.

    The first case was Steadman v. State.2 In Steadman, four of the defendant’s family members came to support him in his trial for multiple sex offenses against a child. As is the case in many courtrooms, the jury panel was expected to take up all the available seats in the gallery. The trial judge told Steadman’s relatives that they would have to wait outside during jury selection but were welcome to return once the jury was seated. Steadman objected and suggested pulling up chairs along the walls or seating the relatives in the jury box. The judge made numerous findings on the record to explain his decision to exclude the family members. He found that seating the family so close to the venire would make panel members “reticent to fully express” any prejudice and that seating them in front of the bench would interfere with court officers’ access to the defendant. The trial judge noted “heightened” security concerns in the case and found that even if the family initially sat in the jury box, once the selected jury was seated, there was nowhere else to seat them. The judge also considered moving court to the central jury room but determined that it was less convenient, would cause delay, and was less secure than the courtroom. The trial judge overruled Steadman’s objection, and Steadman was ultimately convicted.

The public-trial right extends to jury selection

After Steadman’s trial, the Supreme Court of the United States decided Presley v. Georgia.3 In that case, the Supreme Court made it clear that the Sixth Amendment’s requirement that “the accused shall enjoy the right to a … public trial” applies to voir dire.4 The Supreme Court had already held that the right to a public or “open” trial was not absolute but could give way in certain cases to other rights or interests.5 But the court warned that such cases would be rare and that judges had to apply a four-part test before excluding the public from any stage of a criminal trial:

    1) the proponent must articulate an overriding interest that is likely to be prejudiced;
    2) the closure must be narrowly tailored to protect that interest;
    3) the trial court must consider reasonable alternatives to closure; and
    4) the trial court must make findings adequate to support the closure.6 (If this test sounds like First Amendment strict scrutiny, that is because the test originates from the more common public trial cases: those decided under the implied, public trial right in the First Amendment.7)

     In Presley, the trial judge excluded Presley’s uncle from voir dire based on similar space constraints as in Steadman and concerns about family members intermingling with jurors.8 Presley had not suggested any alternatives to the trial judge, but the Supreme Court held this did not matter. The trial court was obligated to consider all the reasonable alternatives on its own.9 The judge’s findings also fell short of what was required to show that the public could not be accommodated. The Supreme Court acknowledged that it did not know the precise circumstances that the trial judge was dealing with—but that was exactly the problem. To justify closing the courtroom, the judge needed to articulate findings specific enough that an appeals court could see for itself whether closure was warranted. The judge’s findings in Presley were too broad and too generic for that. The court wanted to know the circumstances that were particular to Presley’s trial that would not exist for every criminal trial set in that particular courtroom.10

    Armed with the decision in Presley, the Court of Criminal Appeals considered Steadman’s challenge to the exclusion of his four relatives from voir dire. The court reversed Steadman’s conviction and ordered a new trial. The court explained that Presley required an “exacting standard” to be met before a courtroom could be closed to spectators.11 And like Presley, the judge in Steadman both failed to consider all reasonable alternatives and failed to articulate specific reasons to justify making an exception in Steadman’s case. The appellate court could easily imagine several less drastic alternatives:

    1) split the panel in half and separately voir dire each half,
    2) instruct the jurors not to interact with spectators,
    3) move some venire members to the jury box and seat the defendant’s relatives in their vacated seats until it was time to seat the jury, or
    4) seat the family in the jury box and then have them switch seats with the seated jurors.

    It is likely the judges in Steadman and Presley rejected these alternatives out of concern about seating family members so near potential jurors. This is a common concern in the reported cases. Given the high cost of a mistrial arising from an inadvertent or even intentional communication with jurors, it is understandable that trial judges would want to insulate jury panels as much as possible from potential interaction. But after Steadman and Presley, a judge will have to articulate a particular reason that the spectators in the case at hand will be unable to follow instructions not to communicate with the potential jurors. Otherwise, the judge, fearing a remote chance at mistrial, could end up guaranteeing a retrial by excluding spectators over the defendant’s objection.

    Steadman is a clear reminder that trial judges need to articulate the incidents or threats that have occurred in the particular case so that it is apparent to an appellate court why the right to a public trial had to give way. Prosecutors would do well to remind judges of this “exacting standard” and the need to document the uniqueness of the situation, ask jail transport staff and bailiffs about any incidents at prior court appearances, and volunteer alternatives of our own. Our effort at this stage could prevent a retrial. Even without having to show that his family members’ presence would have made any difference at all, Steadman won the remedy of a new trial.12 While there is some Second Circuit precedent that exclusion of the public during voir dire constitutes a “trivial” exclusion that need not require a new trial (because it does not frustrate the purposes of the public trial right), a Texas intermediate appellate court recently rejected that argument, too.13

The court considers another public trial case: Lilly v. State 

Just a few weeks after Steadman, the Court of Criminal Appeals found another violation of the right to a public trial in Lilly v. State, where an inmate’s guilty-plea hearing was conducted in a prison chapel.14 Conrad Lilly was already an inmate in the French Robertson Unit of TDCJ when he assaulted a guard. His prison prosecution took place at the prison based on two statutes: one that allows lesser populated counties, such as the one where the prison is located, to designate a branch courthouse outside the county seat, and another statute that allows judges to hear cases inside a correctional facility if they are nonjury matters involving inmates.15 Lilly argued that having the proceedings at the jail deprived him of his right to a public trial, and he presented testimony about the security measures that a member of the public or press would have to overcome to attend court in the prison chapel. As you might expect, Lilly also challenged having court in a chapel, but that issue was not reached in the case before the Court of Criminal Appeals. The trial judge denied Lilly’s motion to transfer the proceedings to the courthouse, and afterward, Lilly and the State struck a plea-bargain agreement, and Lilly pleaded guilty in the chapel.

    On appeal, the State pointed to part of the boilerplate language in the written plea agreement that declared that the plea was being entered “in open court,” and argued that by entering the plea agreement, Lilly was acknowledging that the proceedings were indeed open.16 But the Court of Criminal Appeals rejected the argument, finding enough other evidence that Lilly wanted to continue litigating his public-trial claim.

Was Lilly’s trial closed?

The trial judge in Lilly made no findings at all that would support closure of the proceedings. There was no mention of an overriding state interest, a narrowly tailored remedy, or consideration of any, much less all, reasonable alternatives. The judge likely did not consider the proceedings to be closed. No one was refused entry, and the warden testified that he was not aware of any member of the public ever wanting to attend court at the prison.17

    But the Court of Criminal Appeals found Lilly had been deprived of his right to a public trial. While the court did not rule that holding court in a prison was always a Sixth Amendment violation, the court held that the “cumulative effect” of the security measures in place in Lilly’s case established that the proceedings were indeed closed to the public. These measures included the fact that a visitor had to be on an inmate’s approved-visitor list, be a state employee, or have the on-duty warden’s approval. In addition to having their identification checked at a highway gate, front gate, and various metal doors, visitors were also subject to a physical pat-down search and metal detectors, and the prison would keep a record of the name and ID number of anyone who visited. The sum of these security precautions, the court concluded, meant that the trial court had not “take[n] every reasonable measure to accommodate public attendance,” which the Supreme Court required in Presley.18 The court suggested that by holding proceedings in the prison, the trial judge had relinquished to prison officials the authority to control the public’s access to the courtroom.

The right to a public trial extends to a plea hearing

The court in Lilly also held that the Sixth Amendment’s right to a public trial applies in a guilty plea proceeding. There are few, if any, other courts that have extended the right to a public trial to a proceeding where the defendant is waiving a plethora of other rights we ordinarily associate with trials. In fact, even the American Bar Association Standards for Criminal Justice in Guilty Pleas look on the right to a speedy and public trial as one of the core rights that a defendant should be advised that he is giving up by pleading guilty.19 But this is Texas, and the Lilly court looked to one of its own cases, Murray v. State, which had observed that a plea-bargain proceeding is still a trial.20

   Because a plea constituted a trial in that case, the court reasoned that plea proceedings must also constitute trials within the meaning of the Sixth Amendment. The court failed to mention that Murray involved whether a guilty plea was a “trial” for purposes of Code of Criminal Procedure Article 4.06, which gives district courts authority over lesser-included misdemeanors “[u]pon the trial of a felony case.” Whether Lilly had a public-trial right at his plea proceeding, however, may have been beside the point. Lilly asked to transfer proceedings to the courthouse before he entered a plea, so presumably the trial court was also denying Lilly the right to a contested bench trial in the courthouse. And to that kind of trial, the Sixth Amendment must certainly apply.

    Nevertheless, the court still decided that a plea-bargaining defendant initially has the right to a public trial. That said, it is clearly one of the rights that a plea-bargaining defendant can waive. The Supreme Court has held that a defendant can forfeit the right to a public trial by not asserting it at trial,21 so there is no question that a defendant could also knowingly waive such a right. So while Lilly has won for his fellow inmates the right to a bench trial with better access by the public, those inmates who decide to plead guilty will most likely have another condition added to the State’s plea-bargain offer: that they waive their right to a public trial.

    Left for another day is whether an inmate’s public trial right is preserved by transmitting audio and video of the prison court proceedings into a public space in the county courthouse. But such a procedure may be just enough to keep the door to courtroom open for all to s


1 Waller v. Georgia, 467 U.S. 39, 46 (1984); In re Oliver, 333 U.S. 257, 269-70 (1948).
2 Steadman v. State, 360 S.W.3d 499 (Tex. Crim. App. 2012).
3 Presley v. Georgia, 130 S. Ct. 721 (2010).
4 Id. at 724.
5 Waller, 467 U.S. at 45.
6 Presley, 130 S. Ct. at 724 (citing Waller, 467 U.S. at 48).
7 See, e.g., Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510 (1984).
8 130 S. Ct. at 722.
9 Id. at 724-25.
10 130 S. Ct. at 725.
11 Steadman, 360 S.W.3d at 505.
12 Steadman, 360 S.W.3d at 510.
13 See Gibbons v. Savage, 555 F.3d 112, 120 (2d Cir. 2009); United States v. Gupta, 650 F.3d 863 (2d Cir. 2011); Harrison v. State, No. 02-10-00432-CR, 2012 WL 1034918 (Tex. App.—Fort Worth Mar. 29, 2012).
14 Lilly v. State, No. PD-0658-11, 2012 WL 1314088 (Tex. Crim. App. Apr. 18, 2012).
15 Tex. Local Gov’t Code §292.0231 & Tex. Gov’t Code §24.012(e).
16 See State’s Brief on the Merits, No. PD-0658-11, 2011 WL 5295121 (Tex. Crim. App. Sept. 2, 2011).
17 See State’s Brief on the Merits, No. PD-0658-11, 2011 WL 5295121, at *5 (Tex. Crim. App. Sept. 2, 2011).
18 130 S. Ct. at 725.
19 Standards for Criminal Justice 14-1.4, American Bar Association, available at www.americanbar.org/ publications/criminal_justice_section_archive/crimjust_standards_guiltypleas_blk.html#1.4.
20 See Murray v. State, 302 S.W.3d 874, 880 (Tex. Crim. App. 2009).
21 See, e.g, Freytag v. C.I.R., 501 U.S. 868, 896 (1991); Levine v. United States, 362 U.S. 610, 619 (1960).