Right To Public Trial

The New York Court of Appeals has reversed convictions in two separate matters as a result of the denial of a right to a public trial.

One involved a second degree murder conviction

Defendant was charged with second-degree murder and two counts of second-degree weapon possession, both related to his alleged role in a fatal shooting. In the midst of defendant’s jury trial, the People moved to close the courtroom, citing the fact that photographs had been taken in the courtroom and posted on Instagram with the caption “Free Dick Wolf”—which the prosecutor asserted was a reference to one of defendant’s street names.

The courtroom was then closed

Defense counsel objected to the closure and proposed barring cellphones in the courtroom as an alternative, stating that it would be unfair to exclude all spectators from the trial based on the misconduct of a particular individual or group of individuals. The court rejected counsel’s proposal and, in what it described as an effort to keep the jury from drawing negative inferences from the absence of any particular group of spectators, closed the courtroom entirely, including to the victim’s family. The court explained that its decision was based on the “cumulative” effect of various factors that created an atmosphere of intimidation during the trial.

The court

We emphasize that our decision should not be read as suggesting that a courtroom can never be closed based on the trial court’s observations of intimidation (or other prejudicial behavior) taking place in the courtroom. Trial courts retain “inherent discretionary power . . . to close the courtroom” (Hinton, 31 NY2d at 75). However, that discretion must be “sparingly exercised” and invoked “only when unusual circumstances necessitate it” (id. at 76; see Ming Li, 91 NY2d at 917). When such unusual circumstances occur, it is incumbent on the court to ensure that the record adequately supports excluding members of the public. Here, the court failed to create a sufficient record to justify a complete closure of the courtroom and, as a result, the closure was not narrowly tailored to the interests sought to be protected.

The other case also involved a second-degree murder conviction

On the morning of the third day of trial and second day of testimony, several members of the victim’s family and defendant’s supporters began arriving at the courtroom doors around 8:50 a.m. In accordance with the court’s rule, they turned in their cellular phones to the court officer standing outside the courtroom doors in anticipation of being allowed entry when the court opened. They then waited in the hallway directly across from the officer.

At approximately 9:40 a.m. the prosecution’s witness was escorted by investigators through the doors and into the courtroom. By this time, several individuals had arrived and were standing or sitting across from the courtroom doors. Before the witness entered, individuals from the prosecutor’s office, as well as defense counsel and several court officers, periodically entered and exited the courtroom.

After the prosecution completed the direct examination of the witness, and a few minutes into defense counsel’s cross examination, the prosecutor learned and immediately informed the court that several members of the public were waiting in the hallway. The trial judge interrupted the proceedings and ordered the jury out of the courtroom to allow the public waiting outside to enter. Once the public was seated inside, the trial judge recalled the jury and defense counsel continued with the cross examination.

The court

The record from the hearing below establishes that, due to a miscommunication in the court officers’ enforcement of the court’s policy, officers prevented the public from entering the courtroom during a period that the courtroom should have been open pursuant to the court’s policy. That exclusion was more than an “inadvertent lapse” resulting in a “continuation of a proper courtroom closing” (see People v Peterson, 81 NY2d 824, 825 [1993]). Rather, court personnel affirmatively kept out members of the public before the proceedings began and that closure continued for a significant period. The closure, though mistaken, cannot be deemed inadvertent.

(Mike Frisch)