Thursday, July 7, 2011

Some constitutional violations are too trivial to matter

The Sixth Amendment ensures the right to a public trial. We don't think about the Sixth Amendment much; it gets overshadowed by free speech, search and seizure and cruel and inhuman punishment. But did you know that a judge who excludes people from the trial without sufficient justification is handing the criminal defendant a great issue on appeal?

The case is U.S. v. Gupta, decided on June 17. During jury selection, Gupta's brother and girlfriend were excluded from the courtroom. In explaining what happened, the courtroom deputy testified:

At the Court’s direction, in order to accommodate the large number of jurors in the venire panel, and to protect the panel from hearing anything about the case from any member of the public present, I requested that individuals who were not venire panel members leave the courtroom during the jury selection. I conveyed to those individuals that once the jury selection was complete, and there was again space in the public area of the courtroom, they were more than welcome to attend the

This was wrong. But is it a Sixth Amendment violation? The Second Circuit majority (Hall and Walker) says No. In dissent, Judge Parker says this was an easy case for reversal and he wants the Supreme Court to take a look, as the majority "insults the values inherent in the Sixth Amendment." What makes this case unusual is that the government in this case says that the justification offered by the courtroom deputy is not good enough. (Even more unusual is the fact that no one was aware of the closure at the time and it came to light two years later). But the Second Circuit finds that this was a trivial Sixth Amendment violation. Yes, there is such a thing under the case law. This was only voir dire, and nothing of significance happened, the majority says:

The district court gave prospective jurors general information about Gupta’s case, described the charging indictment, and presented jurors with a written questionnaire listing possible grounds for ineligibility. The court also conducted a short sidebar discussion with each prospective juror concerning their responses to the written questionnaire (a process that would not have been audible to members of the public), and then posed general questions to the jurors in open court about their background and interests. Finally, the court and counsel for both parties adjourned to the jury room to exercise peremptory challenges; no objections were made to any of the challenges, and no jurors were dismissed without the consent of both parties.

Then the Court expands on its analysis in explaining why it reaches the right decision. It notes that nonpublic trials are bad because the public cannot exercise any oversight over this most important government function. But, in this case, voir dire was inherently public because John Q. Public was sitting in the courtroom waiting for his name to be called and otherwise watching the judge question potential jurors. Judge Hall writes, "even where a trial court unjustifiably excludes spectators from the courtroom during voir dire, the presence of the venire lessens the extent to which that closure implicates the defendant’s public trial right because the venire, derived from and representative of the public, guarantees that the voir dire proceedings will be subject to a substantial degree of continued public review."

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