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Criminal Justice

The Public Trial Right and COVID


In State v. Brimmer, decided today by the Iowa Supreme Court, the majority (Justices Dana Oxley, joined by Justices Christopher McDonald, Matthew McDermott, and David May) concluded that defendant's public trial rights were violated by the complete closure of his trial, including the exclusion of his family (here, just his mother):

[T]he pandemic is an overriding interest that supports the court's decision to limit the public's access to Brimmer's trial [in April 2021]. But identifying an overriding interest is only the first step to closing a trial to the public. The district court was also required to tailor any closure so that it was "no broader than necessary to protect" the identified interest and to consider—and adopt—any reasonable alternatives to a complete closure….

As trials resumed, courts around the country adopted measures to balance COVID precautions with defendants' rights, and many subsequently faced constitutional challenges to their modified trial proceedings. Some courts reconfigured their courtrooms to make space for at least a limited number of people to attend while maintaining physical distancing requirements, as Brimmer requested here. Others provided alternative means for the public to observe proceedings, such as livestreaming a video or audio feed to another location within the courthouse or over the internet, so that members of the public could view, or in some instances at least listen, to the trial as it was happening. Courts utilized YouTube, local television broadcasts, and Zoom teleconferencing platforms to provide virtual access to the public in real time.

While most courts have upheld these various modifications to a public trial challenge when scrutinized under the Waller v. Georgia (1984) test, virtually all of those cases involved only a partial closure. But here, all members of the public were excluded from in-person participation, and no live video, or even audio, feed of the trial was made available….

Brimmer's trial commenced on April 6, 2021, two months after jury trials in Iowa resumed the second time. By then, jury trials had been conducted across the state under our July 9 Supervisory Order for a total of four months—two months in 2020 and another two months starting in February 2021. That order gave clear direction for courts to permit public attendance as space allowed and to livestream trials when it did not. July 9 Supervisory Order 4. The district court judge considered Brimmer's objection to excluding his family and friends, walking around the courtroom to study whether space could be made available for the public, and ultimately concluded that limited space was available. Clearly, then, there were more options than just full closure or nothing. Nevertheless, the district court in Dubuque County "simply closed the trial to the public." This complete "closure was far more extensive than necessary." …

When considering the necessary extent of a closure, "the balance of interests must be struck with special care." Waller's narrow tailoring requirement means the district court must "show that reasonable alternative measures 'would fail to achieve the [overriding] interest[ ], not simply that the chosen route is easier.'" Thus, courts must fashion closures to the least-restrictive alternative possible to serve the asserted overriding interest.

Striking a proper balance means allowing at least the defendant's family to attend if possible within the parameters of the overriding interest, see In re Oliver (1948) ("[A]n accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged."), as was done by other courts during COVID. That's because "[o]f all members of the public, a criminal defendant's family and friends are the people most likely to be interested in, and concerned about, the defendant's treatment and fate, so it is precisely their attendance at trial that may best serve the purposes of the Sixth Amendment public trial guarantee." Tinsley v. United States (D.C. Cir. 2005).

Here, the court's overriding interest (maintaining COVID safety protocols) was narrowly served by limiting public attendance only to the extent necessary to comply with physical-distancing requirements. But as the jury-selection process reveals, and as the district court itself recognized, additional people could fit inside the courtroom while still maintaining our COVID-19 protocols. {In all, there appear to be ten seats in the courtroom that had been used for prospective jurors that were empty during trial. The district court could have allowed three or four people in addition to Brimmer's mother and still have left over half of those seats empty.}

The district court's more direct concern with seating Brimmer's mother, it seems, was its discomfort at having spectators sit near jurors in the gallery or sit closer to the witness stand than it would normally allow. As it explained:

I don't want people from the public seated really close to the witness stand up in front where the jury box is. I don't want people from the public on either side sitting right next to or right behind the jurors because I want the jurors to feel like it's safe and that I don't want them to overhear anything. I don't want them to feel intimidated in any way….

[E]ven [if the public sat in the available space in the back of the courtroom], they're going to be seated about six feet behind the second row of jurors, and I'm not—I'm just not comfortable with that. I don't want—even if somebody says something unintentionally by reaction without any intention to cause any influence, I don't want the jurors seated that close to the public where they can overhear something that they shouldn't hear.

In other words, the district court was worried her presence would compromise "[t]he generic risk of jurors overhearing prejudicial remarks," a concern the Supreme Court has explicitly held cannot override a defendant's constitutional right to a public trial absent more specific findings. Neither the district court nor the State cited any concrete, specific facts that would warrant concerns over "improper communications with jurors" if Brimmer's mother sat in the jury box or along the back windows, and we find none in the record.

Thus, by simply closing the courtroom to all spectators, "the closure was far more extensive than necessary." We recognize that the pandemic created havoc for everyone, including trial courts. We also recognize that the district court here made a sincere effort to physically reconfigure the courtroom to meet Brimmer's request to allow at least a few members of the public into the courtroom. The seating options were not ideal and ordinarily would likely not have been allowed. But when the court conceded it could do so and still comply with our physical distancing directives, it had an obligation to do more than slam shut the courtroom door. Precluding Brimmer's mother from attending in person violated his public-trial rights….

Justice May, joined by Justice McDermott, added a separate concurrence putting the matter this way:

In this case, COVID safety and overall trial fairness were certainly "overriding interest[s]" that the district court had to address. But the extent of the district court's closure—the exclusion of even the defendant's mother—was "broader than necessary to" address those concerns. Again, the court acknowledged there was room for extra people. The court was prepared to allow extra people—an extra attorney, an assistant, an interpreter, a victim advocate—whom the court considered to have a purpose in the trial. If there was room for them, couldn't there have been room for Brimmer's mother?

Justices Oxley and McDonald also took the view that the closure was unconstitutional because the court could have provided a livestream for public viewing (Justices McDermott and May, who otherwise joined the majority, would have concluded that the objection had been waived because the defendant hadn't sufficiently raised it below):

Even if spacing limitations due to COVID did require excluding all members of the public from attending a trial in person under the second Waller prong, the third prong requires district courts to then consider any reasonable alternatives that would better protect defendants' rights than prohibiting all public access. Thus, when the district court here decided that COVID required it to close the trial to all in-person spectators, it was still required to consider whether reasonable alternatives would allow at least some access for the public to view the trial to protect Brimmer's rights as much as possible. We conclude the district court also failed to satisfy this factor because it unreasonably rejected the alternative of livestreaming Brimmer's trial….

Here, if the district court believed it was truly necessary to exclude all spectators from attending in person to protect against COVID, it would have been reasonable for the district court to livestream the trial as an alternative to completely closing the courtroom, and it was therefore unreasonable not to do so. In considering livestreaming, the court stated it did not have the capabilities to stream the trial to "another courtroom or publicly somehow," otherwise it "would do that." It concluded that unless the State provided "somebody to do that," the court "can't run that" itself. While livestreaming would have posed additional work on the court, it was work that—under the circumstances—was required to ensure constitutional compliance.

First, other than two cases involving trials held in April 2020, before livestreaming was as readily available, courts around the country consistently provided a live video or audio feed, streamed to another location within the courthouse or over the internet, as an alternative means for the public to observe the trial as it was happening.

Second, our July 9 Supervisory Order directed the district court to make arrangements for livestreaming nine months prior to Brimmer's trial. His was not the first trial to be held in Dubuque County during the pandemic, and the district court admitted it had "simply closed the trial to the public" in the few trials conducted to that point, despite our directive. …

And finally, the record reveals the district court had the capability to livestream the trial through a videoconferencing system that could have been made available to the public. It had conducted three hearings in Brimmer's case using the GoToMeeting videoconferencing platform: a bond review hearing held on November 23, 2020; a hearing on Bon-Orduno's motion to sever held on March 1, 2021; and a hearing on the State's motion in limine held on April 5, 2021. Using the same technology the court had already used throughout Brimmer's case would have provided a reasonable alternative to excluding the public from the trial altogether….

The court therefore remanded for a new trial. Justice Edward Mansfield, joined by Chief Justice Susan Christensen and Justice Thomas Waterman, dissented:

The lead opinion concedes that livestreaming the proceedings would have been a "reasonable alternative" to allowing spectators in the courtroom…. But Brimmer wasn't interested in this alternative at the time of trial and isn't interested in it now on appeal. I would hold both that he failed to preserve error and that he waived any claim relating to failure to provide livestream access. And since this was the only potential constitutional error under the circumstances, I would affirm.

Much of the discussion of public trial rights in the majority opinion is well-stated, and I agree with it. However, in this case, it is essentially academic. I see no reason to put someone who was serially raped by two men as a sixteen-year-old through another trial simply to make an academic point about the importance of the public trial right. The victim's impact statement is gut-wrenching and describes a suicide attempt, the loss of a job, and having "[m]y adolescence … ripped away from me against my will by these two men." …

Brimmer argues that his request to have his mother alone attend the trial could have been granted. But the right is to a public trial, not a trial attended only by a relative of the defendant. The district court could not have accommodated Brimmer's mother while refusing, for example, to accommodate the mother of the victim if she wanted to attend. And, the district court explained that the problem was not simply the number of people in the courtroom but also having a mix of spectators and jurors seated in the same area.

It is noteworthy that at the time of Brimmer's trial, some states were still not allowing jury trials at all. For example, Connecticut and Arkansas did not resume jury trials until June and May 2021, respectively. Alaska did not resume misdemeanor jury trials until April 19, and it did not resume felony trials until June. Louisiana and Tennessee had only resumed jury trials as of April 1, 2021….

To be clear, I accept that "trial courts are required to consider alternatives to closure even when they are not offered by the parties." The district court considered livestreaming, talked about it, and Brimmer failed to pursue it. Even now he fails to pursue it.

More important than any work we are unnecessarily creating for the judicial branch is the interest of the victim. At sentencing, after describing her painful experiences since being raped by Brimmer and Augustin Ben-Orduno, the victim said, "I am relieved that after all of the money and time that I spent to get through this, that it's finally over." Unfortunately, it isn't.

For these reasons, I would affirm Brimmer's conviction and sentence.

Congratulations to Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy, Assistant Appellate Defender, who represented the defendant.