Our constitutional rights are easily and routinely manipulated both in and out of the courtroom. But among the few fundamental rights that seemed unassailable, I thought that the right to an open and public trial was high on the list. As a practical matter, attempts to close the courtroom during a trial are rare; in fact, I’ve only argued this issue in one trial, and the judge agreed with me and kept the courtroom open to all comers. And the published decisions that I’ve read on this issue, at least to my memory, have been equally protective of this incredibly basic and important right. But the recent case of State v. Carpenter demonstrates just how wrong I was.
In Carpenter, the defendant was charged with several sex-related crimes, and the judge decided to close the courtroom in the middle of trial without notifying the defendant. Then, when the defendant learned of the closure, the judge continued to limit access to the courtroom, over his objection. The defendant was then convicted, and appealed. The appellate court offered the following points in denying his request for a new trial—a trial that would be open to the public, as the Sixth Amendment guarantees.
• Point: The trial judge only closed the courtroom to individuals under eighteen years old because of the overriding public interest in “protecting children (including seventeen-year-olds) from exposure to sexually explicit narratives from the trial testimony.”
ü Counterpoint: Protecting the children? This is the same state—
—that defines “adult,” for criminal law purposes only, to include seventeen-year-old children. This permits the state to make criminals of the very same children it is allegedly trying to protect. And further, the state regularly incarcerates these same children with hardened adult criminals in jail and prison. So the court's claimed concern for "the children" rings insincere. And in which universe do these appellate judges live, anyway? If they’re not aware, our precious children already have unrestricted access to sexually explicit material via the internet, R-rated movies, and even the Discovery Channel. Wisconsin
• Point: The trial judge said that it would be against the law, in fact a crime, to expose children to sexually explicit material, which includes the testimony at trial.
ü Counterpoint: The trial judge isn't the only person in our criminal justice system to think this way. For example, a
Wisconsin prosecutor recently threatened to criminally charge public school teachers for teaching a state-approved sex education program. (There must be something in our Wisconsin water.) But who would be prosecuted if a seventeen-year-old viewed the defendant’s trial? The witness who was subpoenaed and compelled to answer questions about the alleged crime? The prosecutor for asking her the questions? Charging someone with a crime in this instance is no more likely than charging a police officer for “possessing” the marijuana recovered in a drug bust, or charging a prosecutor for “possessing” the child pornography used as evidence in a criminal trial. In fact, the trial judge's speculation on this point should have set off alarm bells for the appellate court.
• Point: The trial judge only excluded individuals under eighteen years old.
ü Counterpoint: Actually, that’s probably false. The sign on the door that kept individuals out of the courtroom was never read into the record, so we don’t know exactly who was prohibited (or scared off) from entering the courtroom. This is a huge point, but one the appellate court decided to bury in footnote four of its opinion. And, the appellate court admitted (also in footnote four) that if the sign had read “Do Not Enter,” it could have been “intimidating to others to whom the prohibition [did] not apply.” Nonetheless, the appellate court was willing to speculate that only children, and not, for example, the adults that accompanied them, were prevented from entering the courtroom.
• Point: The trial judge’s prohibition was narrowly tailored, and no broader than necessary.
ü Counterpoint: The appellate court admitted that the trial judge failed to explicitly consider, or even ask the parties for, reasonable or more narrowly tailored alternatives to closing the courtroom to minors. And, the appellate court even offered one of its own reasonable, more narrowly tailored alternatives: again buried in footnote four, it conceded that the trial judge could have directed “youths or their responsible adults to check with the bailiff or use discretion” in entering the courtroom. (Despite its own solution, however, the appellate court amazingly concluded that “there were no reasonable alternatives.”) And in addition to the appellate court’s solution, the trial judge could also have reopened the courtroom after the alleged victim’s testimony, instead of keeping it closed for the entire trial. Or the trial judge could have done what theatres do for R-rated movies: allow minors to enter if they are accompanied by a parent or guardian. Reasonable and more narrowly tailored alternatives? There were plenty.
This is just another example of how appellate courts are too willing to brush aside trial court errors with the goal of avoiding a retrial. The result, of course, is that they are sending the message that errors will be tolerated or labeled as “harmless” in the future. This not only invites more errors and more appeals, but also turns what was intended to be a firm, constitutional guarantee into a string of empty words. So instead, here’s what the appellate court should have ordered:
You made a mistake. Children hear and see sexually explicit conduct every day. But even if they didn’t, shielding them from it doesn’t trump our citizens’ fundamental, constitutional guarantee to an open and public trial. We don’t have time to explain the importance of this right, so dust off your Constitutional Law book from law school and read up.
Please conduct the trial again, and let the children (or their parents) use their own discretion about what they (or their children) should see and hear. Or, you can take your chances with a more narrowly tailored alternative, if you think it’s really necessary and worth the risk of yet another appeal and yet another reversal.
The Appellate Court