Sixth Amendment violation too "trivial" for a new trial

You can't have closed trials under the Constitution. Closed criminal trials mean the guilty defendant gets a new trial and the conviction is vacated. The Sixth Amendment guarantees this. But life is full of gray areas, and that's what the Court of Appeals is for.

The case is Gibbons v. Savage, decided on January 28. The defendant was charged with rape, incest and endangering the welfare of a child. The victim was his 15 year-old daughter, and her mother attended jury selection. What happened next was strange. The judge decided that the courtroom was too small and that it was not a good idea to have potential jurors sitting next to the only spectator, the victim's mother. The judge said, "[A]lthough this is an open courtroom, I cannot have spectators during jury selection" and that it would "taint the entire jury pool” if he “put a relative right next to a potential juror.” The next day, with more seats available, the mother was allowed in the courtroom to observe the rest of jury selection.

Normally, closing the courtroom to the public violates the Constitution. The Court of Appeals (McLaughlin, Leval and Pooler) noted there are ways to deal with a crowded courtroom and to prevent spectators from slipping the defendant any contraband. But here's the gray area. During the closed proceedings, only two jurors were excused because they were unable to serve. The judge did speak to the potential jurors, but he said nothing controversial and lawyers for both sides were OK with his comments.


Although the Supreme Court has held that "the proceedings for the selection of the jury are an important part of the trial process," the constitutional violation here was "trivial" because the courtroom was closed for a brief period. While there is no "harmless error" analysis in resolving closed courtroom cases (insofar as the exclusion of spectators will not affect the outcome of the trial), trivial errors may not require overturning the guilty verdict if "the conduct at issue subverts the values the drafters of the Sixth Amendment sought to protect.” The mother's exclusion does not subvert those values because she would not have been able to witness the private interviews of potential jurors who were unable to serve. Those interviews would have been private even if the judge had an open courtroom since some potential jurors can speak to the judge and attorneys privately if they do not want to share certain information with the rest of the jury pool. And, the Court finds, nothing of significance happened when the mother was not in the courtroom.


This decision probably serves notice on state trial judges that's bad practice to exclude anyone from jury selection unless there is an excellent reason to do so. No judge wants a criminal conviction threatened because of a prima facie Sixth Amendment violation. Of course, reading this opinion, I am wondering who was the criminal court judge who decided to exclude the public from jury selection in a relatively routine criminal case. It happened in Orange County (where I practice law), because the Orange District Attorney's Office defended the appeal, and the old criminal courtrooms were certainly tiny and smaller than most law school moot courtrooms. As courts sometimes omit the name of the offending judge or lawyer in granting habeas petitions, the mystery judge is omitted from the opinion.