State v. Decker, 907 N.W.2d 378

Background

Kevin Decker was arrested during an August 11, 2016 Dakota Access Pipeline protest after officers say he lifted police tape and pushed against an officer; Decker claimed the crowd pushed him into the officer.
Decker was charged with disorderly conduct and tried before a jury; the jury convicted him and the court sentenced him to one year unsupervised probation with fines.
During voir dire, court deputies prevented at least one member of the public (an attorney not connected to the case) and reportedly others in the hallway from entering the courtroom so potential jurors would not be co-mingled with members of the public.
Defense objected and moved for a mistrial, arguing the exclusion violated the Sixth Amendment right to a public trial; the district court denied the motion, noting press and some public were present and that deputies were directed to prevent juror contact with the public.
On appeal, Decker argued (1) the exclusion amounted to a structural Sixth Amendment violation requiring automatic reversal, and (2) the evidence was insufficient to support the disorderly conduct conviction.
The North Dakota Supreme Court affirmed: it held the exclusion was too trivial to constitute structural error and that the evidence was sufficient to sustain the conviction.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Decker)	Held
Whether exclusion of one or more public members from voir dire violated Sixth Amendment right to public trial	Exclusion was a limited, security-driven measure to prevent juror tainting; press and some public were present, so right was not meaningfully impaired	Exclusion (closure) of public during jury selection violated Decker’s Sixth Amendment right and is structural error requiring new trial	Exclusion raised Sixth Amendment concerns but was "trivial" (de minimis) and did not amount to structural error; no reversal required
Whether the district court needed to make Waller findings before excluding public	Court did not formally close courtroom; deputies acted to separate jurors and public for legitimate anti-tainting reasons	Failure to make Waller findings before closure violated Presley/Waller and requires reversal	Court acknowledged lack of Waller findings but concluded the limited exclusion did not materially implicate the public-trial values and was trivial
Whether the triviality standard applies to inadvertent or limited closures	Closure was narrow and objectively minor; triviality appropriate given presence of press and some public	Any closure of voir dire without Waller findings is structural and generally requires automatic reversal	Applied a triviality/de minimis analysis and found the error too minor to require reversal
Sufficiency of the evidence for disorderly conduct conviction	Officer testimony and conduct (lifting tape, pushing officer, ignoring warnings) provided sufficient evidence of intent/recklessness and disorderly conduct under N.D.C.C. § 12.1-31-01	Decker lacked requisite intent and was legitimately protesting; crowd, not Decker, forced contact with officer	Evidence was sufficient when viewed in light most favorable to the verdict; conviction affirmed

Key Cases Cited

Presley v. Georgia, 558 U.S. 209 (2010) (voir dire falls within Sixth Amendment public-trial right; courts must take reasonable measures to accommodate public attendance)
Waller v. Georgia, 467 U.S. 39 (1984) (four-factor test for when closure of proceedings is permissible)
Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (presumption of openness; closure allowed only for overriding interest with narrow tailoring and findings)
Weaver v. Massachusetts, 137 S. Ct. 1899 (2017) (discusses structural-error rule and distinguishes direct-appeal automatic reversal from postconviction ineffective-assistance prejudice inquiry)
Gupta v. United States, 699 F.3d 682 (2d Cir. 2012) (holding that intentional, unjustified closure of the entire voir dire cannot be deemed trivial)
Peterson v. Williams, 85 F.3d 39 (2d Cir. 1996) (articulating a "triviality" standard for limited public-trial intrusions)