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Recent cases address criminal court closures

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Lockouts are in vogue these days. In labor management relations, a “lockout” occurs when management bars employees from working following expiration of a collective bargaining agreement. It usually results in some downtime, followed by negotiation and implementation of a new labor agreement.

The Minnesota Wild and the rest of the National Hockey League currently are in limbo due to a lockout, as are the two professional orchestras in the Twin Cities.

A pair of recent rulings by the Minnesota Court of Appeals involved a different type of lockout: the closure of courtrooms during criminal proceedings. The two cases shared several similarities: closures of the respective courtrooms as the cases drew to a close, convictions of the defendants and affirmances by the appellate court of those verdicts despite challenges to the courtroom closures.

Instruction issues

The closure of the courtroom by a trial judge before reading jury instructions in a second-degree controlled substance possession case did not violate the defendant’s right to a public trial under the parallel provisions of the federal and state constitutions in State v. Pitts. Relying upon State v. Brown, decided earlier this year by the Supreme Court, a Hennepin County District Court judge directed the courtroom to be locked. The closure occurred following closing arguments and before the instructions were read. The appellate court rejected the issue raised by the defendant, holding that the lockout did not constitute a constitutional transgression.

Under the Brown case, there must be an “overriding interest” to close criminal proceedings, supported by “adequate” factual findings. But locking the doors during the charge to the jury is permissible if the courtroom is not cleared of existing spectators, who are told they may remain; if the public, press and defendant’s family members are not removed; and if this segment of the case is not “a proportionately large portion of the trial proceedings.”

The trial judge’s closure here satisfied this standard. Although the judge did not expressly state that spectators were “welcome to stay,” the closure directive was aimed at those who were not “going to be wanting to stay” throughout the instructions. There was no removal of anyone before the instructions, which comprised fewer than 20 pages of the 600-page trial transcript. The “hypothetical” possibility that someone who arrived late was excluded is insufficient to “implicate [the] right to a public trial.”

Child concerns

A partial closure of the courtroom in Itasca County District Court, barring the defendant’s daughter and 4-year-old granddaughter during the state’s closing argument, did not warrant overturning a conviction of a man for assaulting his wife in her home in State v. Infante. The limited lockout was done pursuant to the ruling of the U.S. Supreme Court in Waller v. Georgia, which establishes a four-part test for exclusion of particular individuals from a portion of a criminal trial. The removal occurred after the judge rebuked the daughter for making unfavorable gestures during the wife’s testimony.

The defendant challenged the eviction of his granddaughter under the public trial provisions of the constitutions. But the Court of Appeals, which had previously remanded the case, to conduct an evidentiary hearing, upheld the trial court’s conclusion that there was sufficient basis for the limited lockout.

The right to a public trial, while fundamental, “is not absolute” and may “give way … to other rights or interests.” The trial judge’s action here overcame the “presumption of an open proceeding” because it was only the young child who was “actually removed” by the bailiff; she was then accompanied by her mother, the defendant’s daughter. The exclusion was based on the court’s “policy … excluding all juveniles from all trials,” coupled with the bailiff’s view that the grisly and somewhat salacious subject matter “was too mature” for the child. Barring the child from the courtroom falls within the authority of the trial court “to exclude children when the subject matter is [deemed] … unsuitable for children.” The court’s “overriding” concern to “protect the child” justified the “narrowly tailored” eviction of the child, who was accompanied by her mother.

While barring the young child “raises few, if any, real public-trial concerns,” the resulting exit of the girl’s mother, the daughter of the defendant, was more troublesome. She did not engage in “any other disruptive or distracting conduct” after being warned by the judge, which made the “drastic remedy of removal” unnecessary.

Nevertheless, the conviction was upheld because the daughter was “never removed” from the courtroom but was only told by the bailiff that her child “could not remain or return.” The adult daughter could have returned if someone else would “watch the child outside the courtroom.” Therefore, the “actual, limited removal” of the 4-year-old granddaughter, even though joined by her mother, did not violate the defendant’s right to a public trial.

While public trials are the norm, there are numerous circumstances in which      proceedings may be closed, in whole or in part, particularly in criminal cases. These recent rulings reflect some of the reasons for lockouts in such proceedings.

Originally published in the November 19, 2012 edition of Minnesota Lawyer.