Total COVID-Related Closure of Trial and Suppression Hearing (With Public Audio But Not Video) Was Unconstitutional

From today's opinion in U.S. v. Allen, written by Judge Sandra Ikuta and joined by Judge Lawrence VanDyke and Tenth Circuit Judge Carlos Lucero; seems generally right to me:

At the height of the coronavirus pandemic in 2020, the district court here prohibited members of the public from attending the defendant's suppression hearing and trial and rejected the defendant's request for video-streaming of the proceedings. This appeal raises the question whether the court's order violated the defendant's Sixth Amendment right to a public trial.

We conclude that the district court's order was not narrowly tailored, in part because courts throughout the country, facing the same need to balance public health issues against a defendant's public trial right, consistently developed COVID protocols that allowed some sort of visual access to trial proceedings. Accordingly, we conclude that the court's COVID protocols in this case violated the defendant's public trial right, and he is entitled to a new suppression hearing and trial….

The court's protocol for Allen's pretrial hearings and trial precluded members of the public from entering the courtroom, and gave them access to the proceedings only by streaming audio over the internet.

Allen objected to this protocol as violating his Sixth Amendment right to a public trial. At a hearing to consider this and other pretrial issues, Allen's counsel argued that while neither audio nor video streaming of the trial was equivalent to an in-person trial, Allen would accept video as "an adequate substitute" for public access because it "comes closer to recapturing that in-person experience more so than telephone."

According to counsel, "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." By contrast, counsel asserted, telephone access was not an adequate substitute because "you miss all of that flavor." Counsel argued that this factual difference adds up to "a constitutional legal difference." …

The [district] court ruled that there was no basis "for concluding that there's a constitutional difference between audio and video." It then rejected the counsel's proposed alternative of video-streaming the trial. According to the court, it would be improper to live-stream the proceedings over the internet because the court would be unable to prevent viewers from recording the trial. And the court concluded that live-streaming the video to a different room in the courthouse 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, the court stated that not everyone in the public had the means to view a streamed video, whereas telephone access was more widely accessible. Because there was a substantial reason for limiting access to the courthouse, and the audio access option was narrowly tailored, the court concluded that its protocol was constitutionally adequate "for Sixth Amendment purposes." …

Because the public's ability to observe the trial lies at the core of the public trial right, the district court's decision to preclude the public from attending the trial and to allow only audio access burdened Allen's public trial right. The parties do not dispute this….

But like other constitutional rights, a defendant's right to a public trial is not absolute…. Before ordering a total closure, the court must determine that there is "an overriding interest based on findings that closure is essential to preserve higher values." If there was only a partial closure, there must be a substantial interest, rather than an overriding interest, for the closure. In addition, any closure must be "narrowly tailored to serve" the overriding or substantial interest at issue, and the court must consider reasonable alternatives to closing the courtroom….

Although the district court here treated its decision to allow only audio access to the trial as a partial closure, we conclude that the court's order effected 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…. "[S]temming the spread of COVID-19 is unquestionably a compelling interest." … [But a] courtroom closure is narrowly tailored to a substantial or overriding interest [only] if it is "no broader than necessary to protect that interest." … The existence of reasonable alternatives also sheds light on whether closure restrictions are narrowly tailored….

In determining whether the district court erred in not adopting less restrictive alternatives here, we begin by considering the policies adopted by other jurisdictions to address COVID issuesIn this context, we consider video streaming to be a less restrictive alternative to audio streaming, because the core of the defendant's Sixth Amendment right is to have his trial open for public attendance and observation.

Our review of other jurisdictions reveals that the district court's order was "truly exceptional." During the pandemic, federal trial courts throughout the country addressed the same issue as the district court here. These courts (including courts that held trials in late 2020, when the district court held Allen's trial) consistently allowed some form of visual access to the trial, either by allowing the public to view a live video feed of the trial in a separate room in the courthouse, or by allowing a limited number of spectators to be present in the courtroom. Many state courts adopted similar measures…. That other jurisdictions could address the pandemic using more targeted means suggests that the district court here had "too readily forgone options that could serve its interests just as well, without substantially burdening" Allen's public trial right.

In light of the availability of these alternatives, the district court could justify its more restrictive order only if it had some unique reason it could not use video-streaming or other alternatives, despite other courts being able to do so. But the court here did not articulate such unique reasons. The district court stated only that live-streaming the video to a different room in the courthouse would not meet the objectives of curbing the spread of COVID, because it would not limit the number of persons in the courthouse. This reasoning fails because the court had to strike a balance between protecting a defendant's public trial right and the goal of stemming the spread of COVID; "to meet the requirement of narrow tailoring," the court must show that reasonable alternative measures "would fail to achieve the government's interests, not simply that the chosen route is easier." Here the district court cannot show that allowing a limited number of members of the public to view the trial in the courtroom, or via a live-streamed video in a different room, would imperil public health. Rather, the Supreme Court has indicated that limiting maximum attendance is a reasonable means of minimizing health risks from COVID.

When courts order a total closure of the courtroom, "the balance of interests must be struck with special care." Because the district court could have "address[ed] its legitimate concerns with rules short of a total ban" on the public's access to the suppression hearing and trial, the district court here failed to strike the appropriate balance. Therefore, we conclude that in the circumstances presented here, the district court's complete prohibition on the public's visual access to the trial and suppression hearing was not narrowly tailored and, accordingly, violated Allen's Sixth Amendment right to a public trial….

Congratulations to Assistant Federal Public Defender Lisa Ma, who represented the defendant.