Ninth Circuit Overturns Trial Conviction Because of Courtroom Closure: Allen, No. 21-10060

FACTS:  Courtroom closed, Audio Stream Only

Allen was found sitting in what appeared to be a stolen vehicle.  A loaded rifle was also found in the vehicle.  He was eventually charged with one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. 922(g).

In September of 2020, when the district court was getting ready for trial, the general order indicated that trials “may proceed in accordance with the logistical considerations necessitated by the Court’s safety protocols.”

The judge adopted additional COVID restrictions. They included precluding members of the public from entering the courtroom and giving access to the proceedings only by streaming AUDIO over the internet. Allen objected to this as a Sixth Amendment violation as Allen had the right to a public trial. Allen’s counsel argued that while audio nor video streaming of the trial was equivalent to an in-person trial, Allen would accept video as an adequate substitute.

Allen argued that “‘the ability to have the courtroom open is not simply to hear the witnesses but to see the witnesses, to see the jury, to see the defendant, to see the attorneys, see the court,’ as well as ‘to see the exhibits . . . and have as close to a re-creation of that ability to walk into the courthouse.’”  Counsel argued that telephone access was a constitutional legal difference from that. The court denied the objection indicating that the audio access constituted a PARTIAL closure of the court and that there was a compelling objective of keeping people safe and limiting the spread of the virus.

The court also stated that its protocols were narrowly tailored to the interest of stemming COVID and said that there was no basis “for concluding that there’s a constitutional difference between audio and video” and stated that live-streaming the proceedings would mean that viewers could record the trial.  Further, livestreaming in a different room would not meet the objectives of closing the courthouse and curbing the spread of COVID because it would not limit the number of persons in the courthouse. Finally, not everyone had the means to view a streamed video, but telephone access was more available. The court proceeded with a suppression hearing and trial via audio access only. The jury returned a guilty verdict and sentenced Allen to six years in federal prison.

The Public Trial Guarantee

The Ninth Circuit noted there is a public guarantee of a trial so that an accused person can see that the person is being fairly dealt with and that they are not unjustly condemned.  There is also a societal interest in public trials because there is an ability to have an enhanced public confidence. Further, those who administer justice should always act under the sense of public responsibility.

Transcripts are not an adequate substitute for access to the courtroom. “[T]ranscripts of testimonial evidence which cannot capture the sweaty brow, the shifty eye, the quavering voice never fully reflect what was communicated by the testifying witness.”  Further, an audio stream is not substantially different than a public transcript because it does not give information about the trial participant’s demeanor and body language. It also deprives the listener of the judge’s attitude or the reactions of the jury to a witness’s testimony.

As a result of the right to a public trial the parties understood that the district court’s decision to preclude the public from attending the trial burdened Allen’s rights.

Total or Partial Closure

The proper test here depends on whether there was a total closure or a partial closure of the courtroom.

In order to engage in a total closure, the court must determine that there is an “overriding interest based on findings that closure is essential to preserve higher values.” In order to engage in a partial closure, the court must show that there is a substantial interest for the closure.

Courts must consider alternatives even when the parties do not.

The Ninth Circuit stated that this was a total closure because “all persons other than witnesses, court personnel the parties and their lawyers [were] excluded” from attending the suppression hearing or trial. This meant that there had to be an overriding interest that made the closure essential and whether the court considered reasonable alternatives to ensure that the closure order was narrowly tailored.

Overriding Interest that is Narrowly Tailored

The parties agreed that the goal of limiting the transmission of COVID while holding a trial was an overriding interest. They focused their argument on whether the court’s COVID protocols were narrowly tailored.

The Ninth Circuit stated that the existence of reasonable alternatives shed light on whether closure restrictions were narrowly tailored.

The court noted that other federal trial courts allowed visual access, either by allowing the public to view a live video feed or by allowing a limited number of spectators.  Some places asked for a list of attendees that wanted to observe the trial or asked for a small number of public attendees to observe the proceedings. Other courts required members of the public to pass temperature checks, wear a mask and answer a health questionnaire.

The district court here did not do any of this and did not articulate unique reasons for not doing so. The court had to strike a balance between protecting a defendant’s public trial right and the goal of stemming the spread of COVID. As a result of all of this, Allen’s rights were violated.

The court determined that the public could not observe or attend the suppression hearing or the trial. The only remedy is a new suppression hearing and a new trial.  The Ninth Circuit vacated the conviction and the denial of the motion to suppress and remanded for further proceedings.  No. 21-10060