Presley v. Georgia, the Sixth Amendment, and Courtroom Closures

Presley v. Georgia is a Sixth Amendment decision with First Amendment implications that you may have overlooked in all the brouhaha over Citizens United.  In Presley, the Supreme Court held in a per curiam opinion that a criminal defendant's "Sixth Amendment right to a public trial extends to the voir dire of prospective jurors."  The Court found this result to be clearly dictated by its 25-year-old decisions in Waller v. Georgia, which held that criminal defendants have a Sixth Amendment right to public suppression hearings, and Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty. (Press-Enterprise I), which held that the public has a First Amendment right to attend voir dire examinations in criminal trials.  The Court also took the opportunity to remind the lower courts that the high burden of justifying closure (including the burden of identifying alternatives to closure) lies with the trial court and not with the criminal defendant: "Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials."

Presley's outcome should not be a surprise.  Instead, what should be surprising (but isn't) is that the case had to go all the way to the U.S. Supreme Court for proper resolution.  With the exception of two dissenting Georgia Supreme Court justices, the Georgia courts showed blatant disregard for Supreme Court precedent in excluding the public from the voir dire of prospective jurors in a criminal trial.  The trial court didn't even seem to realize that a constitutional interest was involved in the closure of voir dire, saying "it's up to the individual judge to decide what's comfortable."  The defendant's uncle was the only member of the public who wished to be present during voir dire in the case, and the judge kicked him not only out of the courtroom but out of the whole sixth floor of the courthouse because prospective jurors might be in the hallway.  The judge never articulated any "overriding interest"in closure beyond a generic risk that the uncle might sit near prospective jurors (and presumably mutter remarks).  Nor did the judge make findings on the record that there were no alternatives to closure, as Supreme Court precedent required.

    Nonetheless, the Georgia Court of Appeals found that the trial judge had not abused his discretion and upheld the closure of voir dire.  The Supreme Court of George at least acknowledged that U.S. Supreme Court precedent established a constitutional right to attend voir dire, but applied the standard for closure with no regard for that right.  The Georgia Supreme Court found that "the trial court certainly had an overriding interest in ensuring that potential jurors heard no inherently prejudicial remarks from observers during voir dire," and held that the trial court was not required sua sponte to consider alternatives to closure, such as holding the voir dire in a bigger courtroom so that the public and prospective jurors need not be seated together. 

    Justices Sears and Hunstein, dissenting, faulted the majority for attaching insufficient weight to the defendant's right to a public trial.  They observed, forcefully:  "A room that is so small that it cannot accommodate the public is a room that is too small to accommodate a constitutional criminal trial."  They also pointed out that the space constraints were solely a result of the trial judge's decision to pack 42 prospective jurors into the courtroom.  Moreover, the generic interest invoked in this case--that a prospective juror might hear a remark by a member of the public about the case--could essentially justify closure in every run-of-the-mill criminal case.

    The Presley case is disturbing because of all the state judges involved in the case, only two appear to have appreciated the importance of a constitutional right that has been clearly established for 25 years.  Even the judges who acknowledged the existence of a constitutional right treated it as an obstacle to be overcome with the flimsiest of findings, thereby encouraging closure in a wide range of cases.  Thankfully, the U.S. Supreme Court reaffirmed its prior precedent and rebuked the lower courts, but the case is still alarming. I teach the cases in this area from a First Amendment rather than a Sixth Amendment perspective, but it is certainly my impression that many trial judges see public presence at criminal trials or other proceedings as an inconvenience.  Most of the time, these judges can order closure with impunity, knowing that few litigants will have the persistence or resources of Presley to appeal the closure order to the United States Supreme Court.