Locking Courtroom Doors During Jury Instructions is Too “Trivial” to Implicate Defendant’s Right to Public Trial

State v. Brown, Minn.S.Ct., 7/3/12.  A jury convicted Mr. Brown of aiding and abetting the first degree murder for the benefit of a gang of Darius Miller whom the state alleged was a member of a gang that was a rival of the gang to which Mr. Brown belonged.  Justice Page, writing for a five member majority, sanctions locking the courtroom door during jury instructions, and rejects challenges to evidentiary rulings which included the admission of expert gang testimony.  Justices Meyer and Paul H. Anderson dissented.

In part, the state linked Mr. Brown to Miller’s death by testimony that a shell casing found near Miller’s body matched a shell casing recovered from the scene of a firearms offense to which Mr. Brown had pleaded guilty. Mr. Brown served time for that firearms offense in the local jail; twelve hours after Mr. Brown’s release Miller was murdered.  Jail cameras showed Mr. Brown leaving the jail wearing clothes very similar to clothes worn by Miller’s shooting.

After closing arguments but before jury instructions the trial court ordered that the courtroom door be locked for the duration of jury instructions.  In doing so the trial court gave the spectators present the choice to opt in or out:

For the benefit of those in the back. I am about to begin giving jury instructions. While that is going on the courtroom is going to be locked and people are not going to be allowed to go in and out.
So, if anybody has to leave, now would be the time. You are welcome to s[t]ay. But I just want to make sure that everybody knows that the courtroom is going to be locked. We are all good? Deputy?

Now, locking the court room doors is like a civil commitment: it has to be the least restrictive alternative.  The case law has been clear for nearly thirty years.  Waller v. Georgia, 467 U.S. 39 (1984):

the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

One of the recent instances where the trial court closed the courtroom during the testimony of two witnesses was State v. Mahkuk, 736 N.W.2d 675 (Minn. 2007).  The problem there, however, was that the reason asserted for the closure – intimidation of the two witnesses – had no factual support.  But, at least, somebody put up a reason.  Not so here, where the trial court offered up no reason whatsoever.  While the majority dropped in a footnote expressing its “concern” with this absence of a statement of reasons, the concern wasn’t enough to require anything be done about it.

Justice Page sanctions the locking of the court room doors here by characterizing it as “trivial,” borrowing that term from State v. Lindsey, 632 N.W.2d 652 (Minn. 2001).  What was “trivial” there was throwing two kids out of the court room, who were statutorily barred from being in there anyway.  Just how Justice Page equates perhaps the most important function that the trial court performs in a criminal trial– jury instructions – with tossing two kids isn’t readily apparent.  Under the “trivial” analysis the court looks at different factors, which include:

that the courtroom was never “cleared of all spectators”; that the trial remained open to the general public and the press; that there was no period of the trial in which members of the general public were absent during the trial; and that at no time was the defendant, his family, his friends, or any witness improperly excluded.

The court also upheld the admission of evidence of Mr. Brown’s firearms conviction as a prior bad act.  The court also upheld the admission of gang testimony, but under a plain error analysis.  The court found no plain error in the instruction on aiding and abetting murder.

Justice Meyer, joined by Justice Paul Anderson, dissented on the courtroom closure issue.  She points out that Minnesota does not distinguish between a total closure and a partial closure, (although the “trivial” alternative analysis may be that distinction under a different label).  That being so, a full Waller analysis was required, especially consideration of alternatives to even a partial closure.  Justices Meyer and Anderson also rejected resort to the “trivial” analysis under Lindsey.