Scaling Waller: How Courts Have Eroded the Sixth Amendment Public Trial Right

• Jurisdiction: United States,Federal
• Publication year: 2009
• Citation: Vol. 59 No. 2

Scaling Waller: How Courts Have Eroded the Sixth Amendment Public Trial Right

Daniel Levitas

COMMENTS

SCALING WALLER: HOW COURTS HAVE ERODED THE SIXTH AMENDMENT PUBLIC TRIAL RIGHT

ABSTRACT

American courts and legal commentators have long praised the Sixth Amendment public trial right, but courts often lack the willingness to enforce it. Although the Supreme Court has consistently held that violations of the public trial right belong to an exceedingly small class of constitutional errors requiring reversal, appellate courts persist in upholding improper courtroom closures even when the record shows that courts below have violated the applicable constitutional standard. When criminal trials are fatally fouled by structural, constitutional error of this kind, the reluctance of appellate courts to reverse is damaging in two ways—it encourages repetition of the same mistake, and it denigrates core values of individual rights that underlie our system of justice. This Comment argues for corrective action by explaining the rules governing courtroom closure, highlighting the errors often made by trial and appellate courts, and detailing the legal basis for more rigorous enforcement of the public trial right.

Waller v. Georgia, decided in 1984, is perhaps the Supreme Court's most definitive pronouncement on the scope of the Sixth Amendment public trial guarantee. This Comment explains the background and significance of Waller, details the test it requires before a courtroom can be closed, and identifies specific shortcomings in appellate review that undermine the public trial right. In light of this assessment, appellate courts should: (1) refrain from applying harmless error analysis to violations of the public trial right; (2) regularly review alleged violations of Waller for plain error; (3) require application of the Waller test in all cases of courtroom closure—even if pursuant to state law; (4) refrain from using post hoc findings to justify closure; (5) reject the argument that "partial" closure of the courtroom absolves courts of the obligation to fully comply with Waller; and (6) recognize that even when courtrooms are closed to protect child victims of sexual abuse, the procedural rules of Waller still apply. Courts may not look past constitutional errors

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simply because state laws authorizing closure were drafted to protect victims, not defendants; such errors still require reversal, even in the absence of a well-preserved objection. Although the Court recently turned its attention to the public trial right in Presley v. Georgia, the above issues remain unaddressed.

INTRODUCTION

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .

—United States Constitution, Sixth Amendment¹

"The harmless error rule is no way to gauge the great, though intangible, societal loss that flows" from closing courthouse doors.

— Waller v. Georgia²

American courts and legal commentators have long praised the Sixth Amendment public trial guarantee,³ but trial judges and appellate courts are often unwilling to enforce this fundamental right. Although the Supreme Court has consistently held that violation of the public trial right belongs to an exceedingly small class of constitutional errors requiring reversal,⁴ state and federal appellate courts persist in upholding improper courtroom closures. When a criminal trial is fatally fouled by a courtroom closure that amounts to structural, constitutional error of this kind, an appellate court's refusal to reverse fails to deter trial courts from repeating the same mistake and undermines the core values of individual rights central to our system of justice.⁵ This Comment argues for corrective action by explaining the rules governing courtroom closure, highlighting the errors made by trial and appellate courts, and detailing the legal basis for more rigorous enforcement of the public trial right. The following anecdote illustrates the range of issues involved.

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After six years of unrelenting sexual abuse by her stepfather, David Wayne Craven's eleven-year-old stepdaughter confided in family members, who contacted the police.⁶ Prosecutors charged Craven with aggravated sodomy and child molestation; he pleaded not guilty and insisted on a trial.⁷ Immediately before the young victim testified, the trial judge cleared the courtroom of all but the parties, the lawyers, and courtroom personnel.⁸ Citing Georgia law, which requires courtroom closure during the testimony of any person under the age of sixteen regarding a criminal sex offense,⁹ the judge also removed the defendant's family, even though the statute required that they be allowed to remain.¹⁰ After recognizing his error, the judge offered to have the victim repeat her testimony the next day with Craven's family present.¹¹ Craven's attorney declined, noting that "having the child testify twice would unduly emphasize [her] testimony."¹² Craven was convicted of aggravated sodomy and aggravated child molestation and sentenced to twenty-five years in prison.¹³

On appeal, Craven claimed that the closure violated both state law and his federal constitutional right to a public trial.¹⁴ Citing Wallerv. Georgia,¹⁵ perhaps the U.S. Supreme Court's most definitive pronouncement on the scope of the Sixth Amendment public trial guarantee,¹⁶ Craven argued that because violation of the public trial right constitutes "structural error," he was not required to show how the mistake affected the outcome of the trial to overturn the verdict.¹⁷ Waller establishes clear guidelines for courtroom closure:

[(1)] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [(2)] the closure must be no broader than necessary to protect that interest, [(3)] the trial court must consider reasonable alternatives to closing the

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hearing, and [(4) the trial court] must make findings adequate to support the closure.¹⁸

Despite these rules, the trial court in Craven's case held no hearing prior to closing the courtroom, made no findings of fact related to the closure, and did not explore less restrictive alternatives to closing the courtroom.¹⁹ The prosecution also neglected to advance an overriding interest likely to be harmed absent closure. However, none of this troubled the Georgia Court of Appeals, which accepted the trial court's observation that the state mandatory trial closure statute was "based upon a legislative determination that there is a compelling state interest in protecting children when they are testifying concerning a sex offense."²⁰ For the court of appeals, then, this presumably functioned as a proxy for Waller's requirement that the trial court find an "overriding interest" justifying the closure. Moreover, although appellate courts are forbidden from applying harmless error analysis to violations of the public trial right,²¹ the court of appeals maintained that excluding Craven's family members was "harmless error" given all the evidence against him, which was indeed substantial.²² To bolster its argument, the court of appeals noted that because the purpose of the Georgia trial closure statute was to protect the child witness,²³ any error by the trial court in excluding Craven's family was of no account because the statute did "not necessarily confer[] a right upon the defendant."²⁴ Of course, the Constitution confers such a right, but the court of appeals concluded that Craven waived any constitutional claim because he failed to raise a constitutional objection until after the victim had testified.²⁵ Classifying this sequence of events as a waiver was a mistake,

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however, as Craven did not intentionally relinquish his right to object.²⁶ Even if Craven did in fact fail to make a timely objection, these events still should have been subject to plain error review, under which appellate courts will consider any error that affects "substantial rights," including even those errors not brought to the court's attention.²⁷ In this case, application of the plain error rule should have triggered an order for a new trial.²⁸

The Craven decision exemplifies two trends: (1) the tendency of trial courts to look past the straightforward, explicit requirements of Waller; and (2) the understandable reluctance of some appellate courts to reverse convictions of appellants who appear obviously guilty, in spite of the U.S. Supreme Court's pronouncement that violation of the public trial right always constitutes structural error.²⁹ That reluctance is often, though certainly not always,³⁰ reinforced by the nature of the crime and the substantial evidence of guilt in these cases. Because courtroom closure is frequently employed in child sex abuse cases—where the crimes are exceptionally deplorable, the testimony is disturbing and graphic, and the victims are especially vulnerable—it takes a strong-willed jurist to reverse such a conviction, even when the Constitution clearly requires it. And when a defendant fails to properly object, the temptation to uphold the trial court's closure order may be irresistible, regardless of the fact that the plain error rule should still require reversal.³¹

But does upholding courtroom closure in the face of constitutional error really raise novel issues? After all, the question of when legal error should be tolerated is not new,³² and while a criminal defendant has a constitutional right

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to a fair trial, the proceeding need not be entirely free from error.³³ Because the central purpose of a criminal trial is to decide the defendant's guilt or innocence, and because public respect for the criminal process is enhanced by arriving at a just result, it is important that appellate courts tolerate the inevitable presence of immaterial error.³⁴ However, over the past forty years the tendency of courts to tolerate immaterial error has expanded to include even grave constitutional errors...