Appeals court reverses sex abuse case for court closure

Oct. 9, 2007  ·   A District of Columbia appeals court found Oct. 4 that a decision to close access to a courtroom while a 12-year-old sexual assault victim testified was insufficiently supported and reversed the lower court’s conviction of the appellant.

Reviewing the record from the court below, the D.C. Court of Appeals determined that trial Judge Evelyn C. Queen improperly closed her courtroom to the public without first making the appropriate findings that closure was required under the 1984 U.S. Supreme Court case Waller v. Georgia.

The non-jury trial had resulted in a conviction of misdemeanor sexual abuse of a child for defendant John L. McIntosh, which carried a sentence of three years’ probation.

Queen had granted the prosecutor’s request to close her courtroom to all persons “not related to the case or necessary to the testimony,” because of the child’s discomfort and distress, despite defense counsel’s objections.

Noting the importance of keeping criminal trials open to the public, Judge John A. Terry wrote for the unanimous three-judge panel: “[G]iven the importance of the public’s interest in public trials and open courtrooms, the trial court’s stated basis for closing the courtroom, i.e., that it was ‘not an intrusion’ on the public, strengthens our conclusion that the trial court failed to give proper consideration to reasonable alternatives.”

“By closing off the courtroom to the public, the court violated the defendant’s Sixth Amendment right to a public trial,” said attorney Billy L. Ponds, who represented McIntosh in his appeal. “It goes to the issue of fairness – if it’s done in public, the conduct of those involved, including the judge, the prosecutor and the defense counsel, shows they are being held accountable to the public.”

The appeals court also held that the lower court’s finding about the child’s vulnerable state was not enough to justify closure without showing more. The opinion quoted a 1992 D.C. case and stated that the burden was on the trial court to explain its ruling. Terry wrote that in this case, the lower court’s explanation was not sufficient enough to warrant closure and the result was a violation of the appellant’s Sixth Amendment right to a public trial.

The defense counsel objected to the prosecutor’s request for closure, noting that the only people in the courtroom were other defense lawyers and people supporting the defendant. According to the trial transcript, Queen quickly agreed to close the courtroom stating: “In balancing the matter relative to support for Mr. McIntosh and support for a 12-year-old child on the witness stand. I’ll opt to support the 12-year-old child…. Clear it.”

Defense counsel renewed its objections on the subsequent days in which the prosecutor requested closure. Each objection was rejected, but noted by the court.

“It is quite unusual for a court to close proceedings because of the conflict with the right to a fair trial,” Ponds said. “It was obvious, in this situation, that the court did not apply the correct standards and the balancing test that was required.”

(McIntosh v. U.S.) — Corinna Zarek

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