Public Trial Clause Not Violated by Having Spectators Observe Via Live Video and Audio

This departure from the norm of in-person observation is justified by the pandemic, a federal judge concludes.

|The Volokh Conspiracy |

From yesterday's decision by Judge W. Keith Watkins in U.S. v. Fortson (M.D. Ala.):

The necessary trial participants are gathered to try this case at this time due to Mr. Kemond Fortson's right to a speedy trial. This trial has been continued seven times, twice upon the court's own motion. Mr. Fortson has waited patiently for his day in court, and that day has arrived.

Unfortunately, the circumstances over the past several months—the ongoing Coronavirus Disease of 2019 (COVID-19) pandemic—now require the court to address Mr. Fortson's right to a public trial. The Supreme Court of the United States has interpreted the Sixth Amendment and the First Amendment as imposing a presumption that criminal trials, including voir dire, will be open to the public. Public trial serves the interests of both the defendant and the public by "ensuring that judge and prosecutor carry out their duties responsibly, … encourag[ing] witnesses to come forward[,] and discourag[ing] perjury."

The court does not take the decision to abridge this constitutional right lightly. But the need to protect the trial participants from exposure to additional persons who may be contagious for COVID-19 and the need to limit the possibility of spreading COVID-19 from trial participants to the broader public necessitates a sua sponte order that the jury selection and trial in this case be closed to in-person spectators except for Defendant's family members. Live video and audio of the trial proceedings will be streamed to a viewing room within the courthouse and on the court's website.

Defendant Kemond Jareuz Fortson has been charged with one count of possession of a firearm by a prohibited person …, four counts of violating the Controlled Substances Act …, and one count of possession of a firearm in furtherance of a drug trafficking crime …. The jury selection and trial in his case are set to begin on August 10, 2020…. [EV adds: After this opinion was released, the court dismissed one of the Controlled Substances Act charges on the government's motion, and granted a motion of acquittal as to two of the remaining Controlled Substance Act charges.]

The Eleventh Circuit has "recognized a distinction between total closures of proceedings … and situations where the courtroom is only partially closed to spectators." … "[I]n the event of a partial closure, a court need merely find a 'substantial' reason for the partial closure, and need not satisfy the elements of the more rigorous Waller test."

Because the court will allow Defendant's family members to observe the proceedings in-person and because the court will stream live video and audio of the trial proceedings to a viewing room and on the court's website, it views this closure as a partial, not full, closing of the trial proceedings. Still, if this closure were considered a complete closure, the circumstances must satisfy the test set forth in Waller v. Georgia, 467 U.S. 39 (1984). In order to justify closure "[1] the party seeking to close the [proceeding] 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 proceeding, and [4] it must make findings adequate to support the closure." …

[The COVID-19] emergency continues in Montgomery County, which the Alabama Department of Public Health currently classifies as a "high risk" county due to the extent of the county's COVID-19 problems. Those risks also exist in the twelve counties that make up the Northern Division of this District, from which this jury will be assembled. The Alabama Department of Public Health lists one of the counties of this Division in its very high risk category (Bullock), five in its high risk category (Montgomery, Coosa, Chilton, Lowndes, Crenshaw) and six in its moderate risk category (Autauga, Elmore, Butler, Pike, Barbour, and Covington)…. Statewide, nearly ninety-nine thousand Alabamians have been confirmed positive with the virus, over eleven thousand have been hospitalized, and over seventeen hundred have died. Over nineteen thousand new cases have been confirmed statewide in the past 14 days….

"Protecting the public from unnecessarily spreading a potentially fatal virus is not only a purpose the government may pursue; it is one it has an obligation to." Stephen E. Smith, The Right to a Public Trial in the Time of Covid-19, 77 WASH. & LEE L. REV. ONLINE 1, 6 (2020). In light of the pressing health and safety concerns posed by an open trial, the court finds that it has advanced an overriding interest. This interest is likely to be prejudiced without closure because trial participants may not be able to focus on their important tasks at hand if they are worried about this court's ability and commitment to protecting their safety and the safety of their family members. These measures are also necessary to reduce, as much as reasonably possible, the risk that trial could be interrupted by the illness of a participant.

The court further finds that the plan to close trial proceedings to spectators, except for Defendant's family members, while making the trial available for viewing through a live video stream in another courtroom and on the court's website is not broader than necessary to protect the court's interest….

While this court has considered the alternative of allowing a limited number of other spectators in the courtroom, with household groups spaced out at least six feet apart, the court finds that this alternative is unreasonable at present, given the high number of new COVID cases (1,019) confirmed in Montgomery County over the past two weeks. Given the extensive community spread of this virus and the uncertainty that remains as to how it is transmitted, the court finds that each additional person permitted in the courtroom poses an additional, unjustified safety risk to the trial participants and to the public. This alternative is unreasonable due to the possibility of severe illness from COVID-19 and due to the public's ability to view the proceedings via video broadcast.

The court takes seriously its special responsibility to protect the members of the jury, who have proudly presented themselves during a national crisis to carry on one of the nation's most sacred civic duties. Diligent efforts have been undertaken to prepare the Montgomery court facilities for this trial. These efforts have included questioning prospective jurors in groups that enable six feet of distance between individuals; displaying most evidence electronically; erecting plexiglass shielding in the courtroom to provide barriers in front of the witness stand, courtroom deputy, and jury box; spreading members of the petit jury across the jury box and well; sequestering jurors during each day's proceedings so that they do not disperse into the community and risk infection during daytime meals; and moving juror deliberations from the smaller jury deliberation room to a large courtroom.

The court will not undermine its own precautions. The court's response is narrowly tailored to protect, as much as reasonably possible, the interests that the public and the defendant have in assuring "that established procedures are being followed and that deviations will become known."

In the context of a COVID closure, the final Waller factor, adequate findings to support the closure, is easily satisfied….

Because these findings would support a full closure, the court finds that they necessarily support a partial closure, which requires a substantial reason to justify closure….