Is a criminal trial “public” (as the Sixth Amendment to the Constitution requires) if the judge questions prospective jurors out of audience earshot?
Jonathan Blades was headed for trial in D.C. Superior Court in January 2015 on multiple felony charges stemming from a late-night fight and shooting in February 2014 at 20th and L Streets, N.W., His fate would be in the hands of a jury of D.C. residents, summoned at random and seated after individuals talked at the bench with Associate Judge Michael Ryan about their answers to his questions about disqualifying factors.
Judge Ryan masked these exchanges using a “husher” (or white noise device) so only he, Blades, the attorneys and the court reporter could understand. Those in the courtroom audience could see but not hear the proceedings.
Attorneys for Blades objected at the time, but Judge Ryan went ahead. He made no specific findings of special facts requiring confidentiality (as some earlier cases said were required), only a general justification, citing his concern about “the candor of prospective jurors,” which he said was “[b]ased on 20 years of being a trial lawyer and more than 10 years of being a [j]udge.” The judge explained that it was his “experience and belief that [potential jurors] are less forthcoming in response especially to sensitive questions when they don’t have, at least, the cover of the husher and being up at the bench.”
Blades appealed his conviction at the end of a four-day trial arguing it had been unlawfully closed for the jury questioning —pointing out that the D.C. Court of Appeals said 40 years ago that “it is only under the most exceptional circumstances that limited portions of a criminal trial may be closed even partially to the public.”
But just as the word “public” in the Constitution is not perfectly clear, the same could be said for the word “closed.”
Blades lost the first round. In a 2-1 opinion in January, a panel of the D.C. Court of Appeals saw no fault. At least the courtroom had not been so closed as to make the trial unconstitutional—especially as the judge’s questions to the full group were open and a transcript of the bench exchanges was available within a reasonable time.
But Blades may get a second look. Now a friend-of-the-court brief, filed April 8 by the Reporters Committee for Freedom of the Press and joined by the D.C. Open Government Coalition, ACLU of DC, The Washington Post and more than a dozen other media groups, argues in support of Blades’s attorneys from the D.C. Public Defender Service in asking for rehearing by the panel, or the full D.C. Court of Appeals,.
The brief supports Blades’s argument that the panel was wrong (and the dissenter, former public defender, Associate Judge Corinne Beckwith, was right)--and that use of the husher did effectively close the courtroom.
The amici stress the public interest in full access to court proceedings and the frequent situations where observation of jurors’ tone of voice, demeanor, etc., under questioning can be useful in understanding events that follow—with examples drawn from jury selection in the trials of Bill Cosby, Jason Van Dyke (Chicago officer charged in the shooting death of teenager Laquan McDonald) and Ingmar Guandique (charged in the D.C. murder of Sandra Levy).
- a transcript is inherently limited,
- generalizations about confidentiality are unhelpful to overcome public right of access
- any extraordinary closures needed could be limited to truly sensitive matters (of which none appear in the actual transcript in this case) and
- the Court of Appeals should re-hear the appeal in order to reverse the incorrect panel opinion and set a more detailed standard to meet before any hushing in future.
Bottom line, say the amici: “the right to observe a judicial proceeding necessarily includes the right to listen to what is being said. The public’s right of access to judicial proceedings would be hollow if all it guaranteed was a right to be physically present in the courtroom.”
The D.C. Court of Appeals panel opinion is available on the court's website here. The Coalition’s amicus brief in support of Blades’s petition for rehearing or rehearing en banc is available on the Reporter's Committee website here. The case is Blades v. United States, D.C. Court of Appeals Case No. 15-CF-663.