Denial of Right to Public Trial or De Minimis Violation?

By Isabelle Raquin

In March 2024, the Supreme Court of Maryland (SCM) granted the State’s petition for certiorari in State v. Scarboro, ACM No. 1646 (Sept. Term 2022), SCM No. 4 (Sept. Term 2024), an unreported decision by Chief Judge Wells. The State’s petition presented the following question: when an appellant claims a Sixth Amendment violation of the right to a public trial based on the trial court’s ostensible denial of courtroom access, does the burden lie with appellant to establish preliminarily that the courtroom closure is significant enough (i.e. not “de minimis”) that it implicates the constitutional right and requires analysis under the four-part test articulated in Waller v. Georgia, 467 U.S. 39, 48 (1984)?

It is the first time in over 30 years that the Supreme Court will hear a case involving the right to a public trial, since its 1992 decision in Watters v. State, 328 Md. 38 (1992). In Watters, the SCM found a violation of the right to a public trial after a deputy sheriff, citing an overcrowded courtroom, prevented the public, the press, and members of the defendant’s family, from entering the courtroom for an entire morning during which voir dire and jury selection occurred. The SCM held that this was not a de minimis violation.

The ACM published two reported decisions about the right to a public trial during jury selection in the last 15 years. In 2010, in Kelly v. State, 195 Md. App. 403 (2010), the ACM held that a partial closure during individual answers to voir dire at the bench (and not during the selection and the swearing of the jurors) was a de minimis violation and did not implicate the defendant’s right to be public trial. However, in Campbell v. State, 204 Md. App. 428 (2019), the ACM held that the exclusion of family members over three hours which covered the entire selection of the jury and the swearing-in of the jurors was not de minimis and violated the defendant’s right to a public trial.

Is Scarboro akin to a Watters/Campbell violation of the right, or to a Kelly de minimis violation? The ACM found in favor of Scarboro. However, to resolve the question in the State’s favor, the question presented in the cert petition seeks to place the burden on the defense to establish that the violation was not “de minimis.” That makes sense for the State because the ACM holding (finding a violation to the right of a public trial) noted that the record did not allow it to weigh the factors in favor of a de minimis violation. Who has the burden may become dispositive of the merits of the question.

The ACM Holding. The ACM held that the trial court violated Scarboro’s right to a public trial by preventing his mother from entering the courtroom during voir dire. It reversed the convictions and remanded for a trial because the error was structural.

The Facts of the Case. During jury selection, and after having asked the jury panel the voir dire questions in the courtroom, the Court called the attorneys to the bench to listen to the individual answers from the jurors. The Defense ounsel stated that the Defendant’s mother was in the hallway and would like to come into the courtroom. The trial judge said, “we can’t do that during jury selection” and added “sorry, sir, that’s just—you see we’ve got a full room and everything, so.”

Parties’ Contentions. On direct appeal, the Defendant argued that the judge committed structural error by refusing to allow his mother to enter the courtroom during jury selection. He maintained that the judge violated his fundamental right to a public trial. The State responded that the closure was “de minimus” and therefore did not trigger the Defendant’s constitutional right to a public trial. The State argued that, even if the court’s actions implicated his right to a public trial, the circumstances of the closure did not demonstrate that his right to a public trial was violated.

The Constitutional Right to a Public Trial. A defendant’s right to a public trial is expressly guaranteed by the Sixth Amendment to the United States Constitution. A public trial provides transparency and accountability by permitting the public to observe the judicial process. It also protects other democratic values, including preserving the rule of law and ensuring that the judge and prosecution act responsibly. Public trials provide an effective restraint on the abuse of power in the judicial system by allowing individuals, including journalists and advocacy groups, to observe proceedings. The right to a public trial extends to the voir dire process.

What is a De Minimus Violation? In determining whether a courtroom closure is de minimus, courts look to various factors, including “the length of the closure, the significance of the proceedings that took place while the courtroom was closed, and the scope of the closure, i.e., whether it was a total or partial closure.” The ACM held that the closure of the courtroom was not de minimis. The record did not allow the Court to conclude how long the courtroom was closed, which portion of the voir dire was impacted by the closure, or the exact scope of the closure. Besides the Defense Attorney’s request for the Defendant’s mother to enter the courtroom, there was no further discussion of the matter on the record, no subsequent requests, and no apparent attempts by any member of the public (other than Scarboro’s mother) to enter the courtroom on the first day of trial. As a result, the ACM could not effectively weigh the three factors: they were neutral.

A Sixth Amendment Violation. In Waller v. Georgia, 467 U.S. 39, 48 (1984), the United States Supreme Court has identified four factors that a court must consider before closing a courtroom to the public: (1) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; (2) the closure must be no broader than necessary to protect that interest; (3) the trial court must consider reasonable alternatives to closing the proceeding; and (4) the trial court must make findings adequate to support the closure. The ACM held that the closure in the instant case did not satisfy the third factor. There was nothing in the record to indicate that the trial court considered any alternatives, reasonable or otherwise, to closing the courtroom. That failure was, by itself, dispositive.

Structural Error. Because a public trial is a constitutional guarantee that is essential to the framework of any criminal trial, the U.S. Supreme Court has deemed a violation of this right to be a structural error that requires “automatic reversal” when properly preserved and raised on direct appeal. 

Scarboro will most likely be heard in the SCM in the fall of 2024. Stay tuned!