In United States v. Allen, No. 21-10060 (9th Cir. May 16, 2022), the Ninth Circuit holds that a district court’s COVID-19 precautions that denied the public streamed hearings of a criminal defendant’s case violated his Sixth Amendment rights and required a new suppression hearing and trial.
“At the height of the coronavirus pandemic in 2020, the district court here [San Francisco] 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.”
The defendant, charged with a gun felony, 18 U.S.C. § 922(g)(1), was prosecuted in 2020 during the height of the pandemic. The federal courthouse adopted safety protocols in a series of general orders yet did not completely foreclose criminal cases from proceeding. “Notwithstanding these general orders, the judge presiding over Allen’s proceedings adopted additional COVID restrictions. 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.”
Defense counsel argued that audio access alone deprived the public of “the ability . . . 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.” But the district court held that there was no basis “for concluding that there’s a constitutional difference between audio and video” and rejected the defense counsel’s proposed alternative of video-streaming the trial “because the court would be unable to prevent viewers from recording the trial” in violation of Fed. R. Crim. P. 53.
The defendant appealed his conviction and the Ninth Circuit reverses. “The principle that trials should be open to the public was eventually incorporated into the Sixth Amendment, which provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .’ U.S. Const. amend. VI . . . . The purposes of the public trial right are advanced most by the public’s ability to observe the trial.”
Courts had previously ruled that making a transcript of the trial publicly available was not an alternative to watching the trial. “For purposes of the public trial right, an audio stream is not substantially different than a public transcript. Although a listener may be able to detect vocal inflections or emphases that could not be discerned from a cold transcript, an audio stream deprives the listener of information regarding the trial participant’s demeanor and body language. Nor can a listener observe the judge’s attitude or the reactions of the jury to a witness’s testimony, or scan any visual exhibits . . . . Further, any failure to make the judge, counsel, defendant and jury subject to the public’s eye (as well as its ear) undermines confidence in the proceedings.”
Because the district court’s closure order barred all members of the public from the courtroom, i.e., a total (and not partial) closure, “in order to determine whether the court’s order violated Allen’s public trial right, we must determine whether there was an overriding interest that made the closure essential, and whether the court considered reasonable alternatives to ensure that the closure order was narrowly tailored.” The Ninth Circuit holds that it was not narrowly tailored. “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.” These examples demonstrated that total closure was not necessary.
The district court also failed to establish unique circumstances that warranted these extra precautions. “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.”
Finally, the panel holds that vacating the judgment was appropriate relief. “[A] defendant whose right to a public trial was violated is entitled to a new, public proceeding in place of the one that was erroneously closed.”