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Rape conviction overturned due to secret testimony

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NEWS MEDIA UPDATE   ·   EIGHTH CIRCUIT   ·   Secret Courts   ·   Feb.

NEWS MEDIA UPDATE   ·   EIGHTH CIRCUIT   ·   Secret Courts   ·   Feb. 24, 2006

Rape conviction overturned due to secret testimony

  • Closing the courtroom during the alleged victims’ testimony because they were children unconstitutionally infringed on the defendant’s right to a public trial, a federal appeals court ruled Wednesday.

Feb. 24, 2006  ·   A Minnesota federal judge’s order barring the public from hearing victim testimony during a 2003 rape trial violated the defendant’s right to a public trial, warranting reversal of his conviction, the U.S. Court of Appeals in St. Louis (8th Cir.) ruled Wednesday.

Prosecutors failed to prove that closing the courtroom did not violate Ralph Thunder’s Sixth Amendment right to a fair trial or that the trial judge’s error in excluding the public was harmless, a three-judge appellate panel unanimously ruled.

“We have an open government, and secret trials are inimical to the spirit of a republic, especially when a citizen’s liberty is at stake, ” Judge Morris A. Arnold wrote for the court. “The public, in a way, is necessarily a party to every criminal case.”

The decision releases Thunder from more than a year of confinement in the federal penitentiary in Leavenworth, Kan.

“The closure of the courtroom was entirely arbitrary,” said Thunder’s attorney, Paul Engh. “When it happened at trial I was taken aback because I’d never seen anything like that. The court excluded members of Thunder’s family who wanted to see that he was fairly treated. When they were sent out of court, they wanted to know why they were excluded and I said, ‘I have no idea — they shouldn’t have done that.'”

Thunder was accused of raping his daughter and her half sister, and attempting to rape his daughter’s aunt. Before the alleged victims’ testimony, the government asked to close the court, citing a law that permits courts to eject anyone lacking a direct interest in a case when a child is testifying; the girls were 11 or 12 at the time of trial. Over Engh’s objections, U.S. District Judge James Rosenbaum granted the prosecutors’ request without a hearing and without making written findings supporting his ruling. Consequently, Thunder’s family was removed from the courtroom. No media or other members of the public were present.

The appeals court panel rejected the government’s argument that closure was needed to protect the children from prurient or voyeuristic interests, saying that while the U.S. Supreme Court has said the right to a public criminal trial is not absolute, it has never upheld closing a courtroom during any part of a criminal trial.

The panel also criticized the lower court’s failure to hold a hearing on whether to close the courtroom, to make particular findings explaining why the government had an overriding interest in closure, and to narrowly tailor the closure to meet the government’s interests.

By simply stating that he “certainly [had] no problem with closing the courtroom,” the trial judge “failed to give effect to the stringent requirements that the Supreme Court’s public trial cases have imposed,” Arnold wrote for the court. Moreover, the government failed to offer any evidence that would permit the court “to conclude that there was even a substantial reason to close the courtroom in this case.”

The panel declined to review the constitutionality of the law that permits closing courtrooms when children testify where it “would cause substantial psychological harm to the child” or impair the child’s ability “to effectively communicate,” saying that the parties did not argue that issue in their briefs.

Thunder’s attorney, however, believes the child testimony law causes more harm than good in cases like Thunder’s. Open trials are “essential with allegations of sexual abuse cases because of the importance of public scrutiny,” said Engh. “It’s easy for children to bring these accusations if they’re egged on by a manipulative adult, and public scrutiny is important for curbing that.”

Moreover, “the rights of the defendant and right to a public trial matter more than the feelings of a victim — that’s what victims must weigh when they decide to bring these cases,” Engh said. “You risk traumatizing the victim, but to exclude someone because of an unsubstantiated fear that victims would be traumatized — that’s ridiculous,” he said. “The only people excluded in Thunder’s case were the defendants’ family — no members of the press or public were around.”

Christian Wilton, one of the prosecutors, declined to comment on the case, but said that the government is weighing whether to ask the entire appeals court to rehear the case, appeal to the U.S. Supreme Court, or let the judgment stand.

(United States v. Thunder; Defense counsel: Paul C. Engh, Minneapolis, Minn.)SB

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