Pushing back on court closure

From the Winter 2010 issue of The News Media & The Law, page 11.

The U.S. Supreme Court in January reaffirmed the public’s right to access courtrooms by deciding that the right of criminal defendants to insist on public jury selections is well settled, even if the defendants do not offer any alternatives to closing the courtroom.

The 7-2 majority opinion in Presley v. Georgia said that Georgia’s high court incorrectly upheld a trial judge’s decision to bar courtroom observers from viewing jury selection in a criminal trial because both the First and Sixth Amendments guarantee defendants and the public the right to juries selected before the public.

“Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials” read the opinion, which was not signed by any one justice, but “[n]othing in the record shows that the trial court could not have accommodated the public at Presley’s trial.”

The court decided the case by summary disposition, which grants the motion for review and decides the issue without further briefing or argument. Such action is only taken when the underlying law is clearly established and well settled.

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief that urged the court to consider the First Amendment issues at stake in the matter.

The case began when a Georgia state trial court judge ordered defendant Eric Presley’s uncle to leave the courtroom while a jury was selected for Presley’s cocaine trafficking trial. Presley’s lawyer requested accommodation for the public, but DeKalb County Superior Court Judge Linda W. Hunter said “[t]here just isn’t space for them to sit in the audience” and there was “really no need for [the public] to be present during jury selection.”

When Presley appealed the decision, the Georgia Supreme Court sided with the trial court and said that Presley needed to have suggested alternatives to closing the courtroom if he wanted the public to observe the jury selection process, an argument with which the U.S. Supreme Court disagreed.

“[T]he Supreme Court of Georgia concluded, despite our explicit statements to the contrary, that trial courts need not consider alternatives to closure absent an opposing party’s proffer of some alternatives,” the opinion read.

The court’s decision is rooted in the First and Sixth Amendments. The Supreme Court first described a public right to access jury selection under the First Amendment when it was petitioned by the news media in Press Enterprise v. Superior Court in 1984. Later in the same term, the court found a right of public access to pretrial proceedings under the Sixth Amendment’s guarantee of a public trial when a criminal defendant challenged his conviction in Waller v. Georgia. That decision relied heavily on the Press Enterprise case.

In Presley, the court found that a criminal defendant’s Sixth Amendment right to an open jury selection process must surely be as extensive as the public’s right under the First Amendment, noting that such logic was supported by Waller.

Justice Clarence Thomas disagreed with that rationale in a dissent, which was joined by Antonin Scalia, asserting that there was no clear precedent for extending Sixth Amendment rights and that such a question should not have been decided without full briefing and oral argument.

Attorneys are still determining what practical effect the ruling will have on the lower courts. Presley’s attorney Gerard Kleinrock said the ruling could mean “the law drastically changed throughout the country” if the end result is to shift the burden of coming up with alternatives to courtroom closure from parties to judges, which may discourage judges from even trying to deny public access. “You have to have some guts to close a courtroom now,” he added.

Other attorneys interpret the court’s actions as reinforcement, not extension, of existing law. “This shows the court’s commitment to continue to enforce in a meaningful way the public’s right to access,” said David Schulz, a partner in the New York office of Levine Sullivan Koch & Schulz. “It’s encouraging that seven justices were willing to dispose of that argument in a summary fashion.”

Though it is too early to tell what effect Presley will have in lower courts, it has already affected at least one case. One day after the ruling, The Dallas Morning News reported that a Texas judge, for the first time after a decade on the bench, declared a mistrial in an extortion trial because the jury was selected behind closed doors. U.S. District Court Judge Barbara Lynn said that “[t]he court does not believe it is required to grant the motion for mistrial, but out of an abundance of caution, I do.”