The Public Trial Right in Minnesota

The Public Trial Right in Minnesota

At the time of this article, former Minneapolis Police Officer Derek Chauvin is on public trial in Hennepin County, Minnesota, facing charges of second-degree unintentional murder, third-degree murder, and second-degree manslaughter, for the death of George Floyd on May 25, 2020.  The unique combination of circumstances stemming from the COVID-19 pandemic, coupled with the intense national and international interest in the case, led Hennepin County District Court Judge Peter A. Cahill to order the entirety of the jury trial to be televised.

In a pretrial order and memorandum dated November 4, 2020, Judge Cahill granted Mr. Chauvin’s motion for audio and video broadcast of the trial.  In granting the defendant’s motion, Judge Cahill recognized the importance of both the defendant’s constitutional right to a public trial under the Sixth Amendment, as well as the right of the press and the public in access to trials guaranteed by the First Amendment.  In this article, we will provide readers with a historical background of the Sixth Amendment right to public trials enjoyed by criminal defendants, a description of leading Supreme Court cases on the topic, and our analysis of more contemporary trends within Minnesota courts as they wrestle with the contours of the Sixth Amendment in its application.  Finally, we will provide a brief discussion on the propriety of the televised broadcast of Derek Chauvin’s trial.

The Right to a Public Trial – Background

The right to a public trial is guaranteed by the Sixth Amendment to the United States Constitution. All portions of a jury or bench trial are subject to the public trial guarantee, including suppression hearings conducted prior to the presentation of evidence to the jury and juror voir dire (the portion of the trial where jurors are selected).  According to leading cases, giving access to the public ensures that the defendant is “fairly dealt with and not unjustly condemned” and keeps the “triers keenly alive to a sense of their responsibility and to the importance of their functions.”

Like other important rights enjoyed by a criminal defendant, the right to a public trial did not appear out of thin air.  Rather, our nation’s accepted practice of guaranteeing a public trial to an accused has its roots in the English common law heritage.  The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy’s abuse of the lettre de cachet.  According to the Supreme Court, all of those institutions symbolized a menace to liberty because things happened in secret.  As far back as 1827, Jeremy Bentham made the following observation on the importance of public trials:

[S]uppose the proceedings to be completely secret, and the court, on the occasion, to consist of no more than a single judge, – that judge will be at once indolent and arbitrary: how corrupt soever his inclination may be, it will find no check, at any rate no tolerably efficient check, to oppose it. Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance.

But this is not to suggest that the Sixth Amendment right of a criminal defendant to a public trial may not be overcome.  Like other rights, the right to a public trial is not absolute.  However, circumstances justifying a courtroom closure will be rare, and the balance of interests must be struck with special care.  Indeed, the Supreme Court has never upheld the closure of a courtroom during a criminal trial or any part of it, or approved a decision to allow witnesses in such a trial to testify outside the public eye.

Courtroom Closures and the Waller Test

To withstand a defendant’s objection to closing a trial or any part of one, a judge directing closure must adhere to the principles outlined by the Supreme Court, which holds that the presumption of openness may be overcome only by an overriding interest based on findings that a courtroom closure is essential to preserve higher values and is narrowly tailored to serve that interest.  And even if the prosecution makes out an interest that would support closure, 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.

The above requirements stem from a leading Supreme Court case, Waller v. Georgia.  There, the high Court set forth a four-part test that must be met before a courtroom closure may occur.  The four-part “Waller test” states that a courtroom closure may be justified if (1) “[t]he party seeking to close the hearing … advance[s] an overriding interest that is likely to be prejudiced”; (2) the closure is “no broader than necessary to protect that interest”; (3) the district court considers “reasonable alternatives to closing the proceeding”; and (4) the district court makes “findings adequate to support the closure.”  Additionally, the trial court must articulate its findings with specificity and detail supporting the need for closure.

More recently, the Supreme Court decided the case of Presley v. Georgia.  There, the defendant was on trial for a cocaine trafficking offense.  At trial, the judge explained that prospective jurors were about to enter the courtroom, and instructed a man in the courtroom – Presley’s uncle – that he was not allowed in the courtroom.  Specifically, the judge then stated the following:

Well, you still can’t sit out in the audience with the jurors. You know, most of the afternoon actually we’re going to be picking a jury. And we may have a couple of pre-trial matters, so you’re welcome to come in after we … complete selecting the jury this afternoon. But, otherwise, you would have to leave the sixth floor, because jurors will be all out in the hallway in a few moments. That applies to everybody who’s got a case.

When Presley’s lawyer objected to the judge’s ruling, the judge went on to state as follows:

Well, the uncle can certainly come back in once the trial starts. There’s no, really no need for the uncle to be present during jury selection…. [W]e have 42 jurors coming up. Each of those rows will be occupied by jurors. And his uncle cannot sit and intermingle with members of the jury panel. But, when the trial starts, the opening statements and other matters, he can certainly come back into the courtroom.

In reversing the Georgia Supreme Court, the Supreme Court reiterated its precedent from Waller, above, that the right to a public trial extends beyond the actual proof at trial.  Specifically, the Supreme Court wrote the following:

While the accused does have a right to insist that the voir dire of the jurors be public, there are exceptions to this general rule.  The right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information. Such circumstances will be rare, however, and the balance of interests must be struck with special care.

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In upholding exclusion of the public at juror voir dire in the instant case, the Supreme Court of Georgia concluded, despite our explicit statements to the contrary, that trial courts need not consider alternatives to closure absent an opposing party’s proffer of some alternatives. While the Supreme Court of Georgia concluded this was an open question under this Court’s precedents, the statement in Waller that “the trial court must consider reasonable alternatives to closing the proceeding” settles the point.

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Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials. Nothing in the record shows that the trial court could not have accommodated the public at Presley’s trial. Without knowing the precise circumstances, some possibilities include reserving one or more rows for the public; dividing the jury venire panel to reduce courtroom congestion; or instructing prospective jurors not to engage or interact with audience members.

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There are no doubt circumstances where a judge could conclude that threats of improper communications with jurors or safety concerns are concrete enough to warrant closing voir dire. But in those cases, the particular interest, and threat to that interest, must be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

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We need not rule on this second claim of error, because even assuming, arguendo, that the trial court had an overriding interest in closing voir dire, it was still incumbent upon it to consider all reasonable alternatives to closure. It did not, and that is all this Court needs to decide.

As can be seen, the Supreme Court is very interested in keeping public trials just that: public.  The Supreme Court precedent on the Sixth Amendment right to a public trial is clear: all portions of a defendant’s trial are subject to the Sixth Amendment public trial guarantee.  However, in Minnesota, the right to a public trial is not as clear as one may expect.

Public Trials in Minnesota – Exceptions to the Rule

Unlike the Supreme Court, the courts in Minnesota have carved out an exception to the public trial guarantee.  This exception is known as the “triviality” exception to the public trial right.  In State v. Brown, the Minnesota Supreme Court held that the closure of the trial was deemed too “trivial” to constitute a Sixth Amendment violation where the trial judge locked courtroom door during closing argument, but no persons already present were required to leave courtroom.  In State v. Lindsey, the closure was deemed too “trivial” to constitute a Sixth Amendment violation where two children were excluded from the courtroom, but the courtroom was never cleared of all spectators and the trial remained open to the public and press at all times.  Lastly, in State v. Silvernail, the closure was deemed too trivial to constitute a Sixth Amendment violation where the trial judge locked the courtroom during the state’s closing argument, but where the spectators already present were allowed to remain.

In our estimation, Minnesota’s “triviality” doctrine is troubling both in its premise and in its growth in recent years.  And our attorneys are not alone.  Justices of the Minnesota Supreme Court, as well as academics, have expressed their concern over Minnesota’s “triviality” exception to the public trial guarantee.

Dissenting in the Brown case, Justice Meyer of the Minnesota Supreme Court wrote as follows:

In recent years, the Supreme Court has reaffirmed its strong protection of the public trial right, despite increasing encroachments by trial and appellate courts around the country.

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The public trial guarantee is an obligation of the trial court, and any party seeking to close the courtroom has the burden to advance an overriding interest in closure….

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Despite this protection, our court has held that a trial court may avoid a Waller analysis when the unjustified closure … was too trivial to amount to a violation of the [Sixth] Amendment.

Dissenting in the Silvernail case, Justice Paul Anderson of the Minnesota Supreme Court stated:

Over the course of the past 2 years, I have become concerned about the increasing number of petitions for review that our court has received from defendants who claim that district courts across our State have closed courtrooms in violation of the defendants’ constitutional rights. We have denied review in the vast majority of those cases. For lack of a better term, I have come to refer to this recent phenomenon as ‘creeping courtroom closure.’ The closure of courtrooms during trial is a practice that has unquestionably begun to creep its way into the routine of many of Minnesota’s criminal courts. My concern that our decision in Brown would result in such unwarranted closures appears to have been justified. That is why I believe we should reconsider and overrule Brown. It is not enough to admonish courts, as the majority does, to only lock the courtroom doors ‘carefully and sparingly’ and to ‘expressly state why the court is locking the courtroom doors.’ The United States and Minnesota Constitutions demand more and we should meet that demand.

Public Trial – State v. Derek Chauvin

As mentioned in the beginning of this article, the circumstances created by the COVID-19 pandemic, in conjunction with the intense public and media interest in the trial of Derek Chauvin, led Judge Cahill to order the entirety of the jury trial broadcast by video and audio.  Cameras in the courtroom are capturing every word and person, with the exception that prospective jurors are only heard, not seen.  In establishing his order, Judge Cahill had a particular concern that in the absence of a public broadcast of the proceedings, Mr. Chauvin’s right to a public trial would be at risk of being violated.  According to Judge Cahill:

This Court concludes that the only way to vindicate the Defendants’ constitutional right to a public trial and the media’s and public’s constitutional right of access to criminal trials is to allow audio and video coverage of the trial[.]

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The Court’s attached order seeks to accommodate the interests served by the current rule by expanding audio and video coverage only as necessary to vindicate the Defendants’ right to a public trial and the public’s and press rights of access to criminal trials in the unique circumstances currently prevailing in the COVID-19 pandemic and the intense public and media interest in [this] case[].  By doing so, the Court is confident that ‘the public may see [that Defendant is] fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep [their] triers keenly alive to a sense of their responsibility and the importance of their functions.’

It remains to be seen whether the public broadcasting of criminal trials in Minnesota is here to stay.  The existing rules of practice applicable to the trial courts do not permit the type of broadcast that is occurring in the trial of Derek Chauvin.  However, the exigencies brought on by the COVID-19 pandemic required the trial court to act in such a manner so as to safeguard Mr. Chauvin’s right to a public trial, while ensuring access to the public and the press.  With the uncertainties of the future, there may very well be a shift toward more and more televised proceedings in Minnesota.  There may simply be no alternative available in order to achieve the publicity that is required by the First and Sixth Amendments.