Lead Opinion
Appellant, Cecil Robinson, was tried before a jury in the Circuit Court for Caroline County, on charges of attempted robbery and related offenses. At the outset of the trial, the court learned that members of Appellant’s family might have been attempting to intimidate witnesses. After discussing the matter in the presence of counsel and Appellant, the court ordered the members of Appellant’s family and at least two other persons to leave the courtroom. The jury ultimately found Appellant guilty of two counts of attempted robbery and other offenses. Sentencing followed in due course.
Appellant noted a timely appeal to the Court of Special Appeals, asking “[wjhether the trial judge violated the appellant’s constitutional right to a public trial when she ordered members of the appellant’s family and other spectators to leave the courtroom.” In his brief before that court, Appellant contested the court’s decision to order those persons out of the courtroom without first undertaking the analysis required by Waller v. Georgia,
I. The Trial
The events precipitating this appeal arose during voir dire of the prospective jurors. One prospective juror responded to a voir dire question by advising the court that he could not decide the case impartially after overhearing a group of four or five persons discussing the case in the hallway. The prospective juror did not elaborate on what he had heard, but he observed that the persons he overheard discussing the case might have been witnesses at trial. The court dismissed the juror for cause, voir dire continued, and eventually a jury was selected and sworn.
At that time, the court directed the jury to retire to the jury room and ordered the potential witnesses sequestered. The court then addressed the spectators in the courtroom:
Now for those of you who are not potential witnesses, and I’m sort of primarily looking at Mr. Robinson’s family and Mr. Arline’s[1 ] family, you’re not permitted to leave the courtroom and talk to any of these witnesses about what’s going on. And quite frankly in light of what one of the jurors told me that there was a lot of chitchat or chatter out in the lobby about this case, I’m going to ask Deputy North and Mr. Lovelace,[2 ] you need to watch this. I want you all*96 just staying in the courtroom, so then there won’t be any issue about whether you all aré chatting or not chatting in front of other people. So just stay in the courtroom and then I’m not going to have any issue. Okay? No, you’re going to have to not even take a smoke, okay? Now that means at lunchtime and if I take a break, like a 15 minute break, I mean you can leave the courtroom, but you just have to understand you can’t go out in the lobby, you can’t go out in front of the courthouse.
The court then took a short recess.
. When proceedings resumed, the prosecutor told the court about a conversation one of Appellant’s family members had just had with a witness in the prosecutor’s office. It is clear from the record that spectators were in the courtroom as the following events unfolded:
[PROSECUTOR]: Your Honor, before we bring the jury back out, or anyone else in. I have an issue I’d like to raise. When I left the office, I’m sorry when I left the courtroom during the break, went in to my office and was approached by one of our witnesses. The witness said to me that while jury selection was going on, one of Mr. Robinson’s family members had gone into the office and told her to lie. I’ve asked Ms. Shore to be here because she was present during that conversation and so I would, I know it’s highly unusual' and family’s allowed to be here, but my understanding of the conversation is that it’s someone who represented herself as Mr. Robinson’s sister, said her mother said to tell her to lie.
[APPELLANT]: Who?
[PROSECUTOR]: I would really like the family excluded at this point.
THE COURT: Bring them on in. Bring, I, bring the young lady in right now.
*97 [APPELLANT]: Who? Call my sister in here, I don’t know what you’re talking about.
[PROSECUTOR]: She has a pink bag is how she was described to me. I understand it was before the rule on witnesses, but, even so, Your Honor, this is ridiculous.
The court directed the deputy sheriff to locate Appellant’s sister and bring her into the courtroom. As that was happening, the court and prosecutor continued discussing the situation:
[PROSECUTOR]: Your Honor, I’m not making the allegation that it was a threat, but it certainly was improper and trying to incite false testimony.
THE COURT: Well, the problem is there’s a, isn’t there a crime, intimidation of a witness or trying to, what is it, subordinate, subordinate [sic] perjury?
[PROSECUTOR]: Yes, yes.
The transcript reflects that the prosecutor and defense counsel then had a discussion off the record. Proceedings resumed on the record, with the following:
[APPELLANT]: You can’t find her? She didn’t come in.
THE COURT: One problem is that excluding his family from the courtroom then puts them out with the public and I’ve got concerns about whether they can keep their mouths shut while sitting outside the Courthouse and not somehow
[PROSECUTOR]: Your Honor, my issue was that testifying is difficult and uncomfortable enough when confronting someone, but to then have that ...
THE COURT: Oh, okay, all right, okay. I see what you’re saying.
[APPELLANT]: Your Honor, that’s not true. They can question my sister about this when she come in.
THE COURT: I am.
MR. LOVELACE: Would you like to put her on the witness stand?
*98 THE COURT: Well, first of all, I’m just going to have them bring her inside then while, I’m going to tell her what has been ...
MR. LOVELACE: Okay.
THE COURT: Well, because if I put her on the witness stand, I mean there’s a potential for her to be criminally charged as a result of what she is alleged to have done.
Appellant’s sister was then brought into the courtroom and the judge questioned her about the conversation:
THE COURT: Okay, the young lady with the pink purse, I need you to come on up here please. Okay you can just stand, you can just stand right, right there. What’s your name?
Appellant’s sister identified herself as Susan Price and gave her age as seventeen years old. The exchange continued:
THE COURT: Seventeen. Susan, it’s been brought to my attention by members of the State’s Attorney’s Office that you went into the State’s Attorney’s Office and attempted to talk to one of the State’s -witnesses.
MS. PRICE: I said hi to my friend.
THE COURT: Excuse me, ma'am. And encouraged them not to tell the truth. Now if this [is] in fact true ...
MS. PRICE: I said hi to my friend.
THE COURT: Excuse me. If that is, in fact, true, that is a crime, but additionally you were instructed that you were not to have any contact with any of the witnesses. So what business you had going into the State’s Attorney’s Office, I don’t know. I am just bringing this to your attention as a result of what has been reported to me.
[APPELLANT]: What’d you say, Susan?
THE COURT: Mr. Robinson.
MS. PRICE: I just wanted to say hi to her.
THE COURT: Mr. Robinson, excuse me, Mr. Robinson.
MS. PRICE: Cause that’s my friend from school.
*99 THE COURT: As I said, excuse me, excuse me. Did you not under, what part of you [sic] cannot have contact with any of the witnesses did you not understand?
MS. PRICE: I didn’t know that, you didn’t say that before I left.
THE COURT: Excuse me, Ms. Robinson, Ms. Price. All right, what I’m going to end up doing is I’m excluding the entire family from the courtroom. Now 1 don’t know where they’re going to go that they don’t have contact with anybody else in this case.
The court discussed with courtroom personnel the possibility of placing the family spectators in a separate courtroom by themselves, away from the public. The court then advised Ms. Price that she could “go back and sit with your mom.”
At that point, Appellant’s mother, Ms. Thomas, addressed the court about being forced to leave the courtroom:
MS. THOMAS: Your Honor?
THE COURT: I don’t want to hear from anybody. Everyone’s going to be, you’re going to leave the courtroom. I have to find some place to put you all.
MS. THOMAS: Right.
THE COURT: Where you will not interfere with this case today ...
MS. THOMAS: I understand, Your Honor, I was just saying she had said that before.
THE COURT: Okay, I don’t want to hear, maybe what you’re doing is not malicious, Ms. Thomas, but I just don’t think you all understand ...
MS. THOMAS: No, I understand, I do.
THE COURT: Nor respect the decorum that is needed in this particular proceeding. So it’s better to just put you all out of the courtroom. So with that said, I’m just going to get you all to leave the courtroom, I just need one of the deputies to maybe sit out there with them, to make sure, I don’t know, just to make sure they’re not talking to anybody inappropriately---- So why don’t you all have a seat out*100 there. Just going to have a deputy sit out there with you so if you end up wandering into some conversation that you shouldn’t be having.
MS. THOMAS: Can they sit out there and I’ll sit in, I won’t say anything. I just ...
THE COURT: Everybody’s sitting out there. He’s not a juvenile any more. Everybody sit on out there. Maybe if you behave well, in the next hour or two, Ms. Thomas, I’ll reconsider, but right now. Everybody in the back, I want everybody out.
UNIDENTIFIED: We not his family.
THE COURT: I don’t care. You’re out.
The record does not reflect precisely who left the courtroom as the result of the court’s order, but we shall assume for present purposes that Appellant’s family members and at least two other spectators left. The court then asked both attorneys if they were ready to proceed with the trial, and both acknowledged being ready. As trial proceeded, nothing more was said or done on the record concerning the exclusion of the spectators.
The jury found Appellant guilty of two counts of attempted robbery, two counts of assault in the second degree, two counts of attempted theft of less than $500, disorderly conduct, and disturbance of the public peace by hindering free passage. The court sentenced Appellant to concurrent terms of five years’ imprisonment for each count of attempted robbery, with all but one year and three months of those sentences suspended, and to a concurrent term of 80 days’ incarceration for disorderly conduct.
II. The Parties’ Contentions
Appellant claims that the court violated his constitutional right to a public trial by excluding his family and other spectators from the courtroom during the trial. Appellant relies on Waller v. Georgia, supra, and its Maryland progeny, Watters v. State,
Appellant, citing the Waller factors, asserts that “there is nothing on the record to indicate that a total closure order was necessary!,]” given the prosecutor’s allegation that Appellant’s sister, and not others, had spoken with a witness during jury selection. Appellant argues: “[T]here is nothing to illustrate that a total closure was narrowly tailored to fulfill the court’s concerns. Conversely, the court imposed the most restrictive order possible.” (Emphasis in original.) Appellant evidently does not quarrel with the prosecutor’s stated interest that the witnesses might be intimidated by the presence of his family and other certain persons in the courtroom. Nor does he argue that the court failed to make the requisite factual findings in support of closure.
The State’s primary rejoinder to Appellant’s claim of error is that he did not preserve the claim for appellate review because he did not object to the court’s ordering the family and other spectators out of the courtroom. On the merits of the claim, the State acknowledges the demands of Waller but argues that what occurred in the present case was a mere “partial closure” of the courtroom. The State maintains that in such instances “a ‘less stringent standard [for exclusion of persons from trial] is justified because a partial closure does not implicate the same secrecy and fairness concerns that a total closure does.’ ” See Walker,
Appellant opted not to file a reply brief. At oral argument, however, Appellant responded to the State’s argument that his appellate claim is not properly preserved for review. Appellant did not deny the lack of defense objection to the court’s order. He suggested that the trial court has the obligation, even in the absence of objection, to adhere to the Waller analysis, and the failure to do so is a “structural error” that cannot be waived by a failure to object. He also asked, in the alternative, that we exercise our discretion to take cognizance of “plain error” which, he argues, was material to his right to a fair trial.
III. Discussion
The question Appellant presents, and which we granted certiorari to review, implicates the constitutional right to a public trial. See U.S. Const. Amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ... ”). See also Tharp v. State,
That said, a criminal defendant’s right to a public trial is not absolute. We agree with the Court of Special Appeals’ observation in Walker, supra, that
[t]he Sixth Amendment does not require a court to forfeit its legitimate and substantial interest in maintaining securi*103 ty and order in the courtroom. To the contrary, prophylactic measures, including closure, may be warranted under some circumstances, in order to maintain order, to preserve the dignity of the court, and to meet the State’s interests in safeguarding witnesses and protecting confidentiality.
Notwithstanding the importance of the question presented, we find that, for a number of reasons, we cannot reach the parties’ arguments for and against the merits of the court’s order. First and foremost, Appellant has not preserved his complaint for appellate review.
Maryland Rule 8-131 (a) provides, in pertinent part: “Ordinarily, the appellate court will not decide any [ ] issue unless it plainly appears by the record to have been raised in or decided by the trial court[.]” The purpose of Md. Rule 8-131(a) is “ ‘to ensure fairness for all parties in a case and to promote the orderly administration of law.’ ” State v. Bell,
From time to time, however, an appellant will ask the appellate court to excuse the failure of a timely objection by resorting to the language of Md. Rule 8-131 (a) that the appellate court “ordinarily” will not decide an issue “unless it plainly appears on the record to have been raised in or decided by the trial courtf.J” We have made clear that the word “ordinarily” has the limited purpose of granting to the
We have said that the appellate court should exercise the discretion to review an unpreserved claim of error “only when it is clear that it will not work an unfair prejudice to the parties or to the court.” Jones,
In addition, the appellate court should evaluate whether the exercise of the discretion provided by Md. Rule 8-131(a) to address an unpreserved claim “will promote the
None of these policy reasons warrants our reviewing the trial court’s order notwithstanding Appellant’s failure to object to it. Appellant cannot deny that his silence resulted in the court’s “not passing upon and correct[ing] any errors in its own proceedings.” Indeed, we are confident that, had defense counsel brought to the attention of the court the lack of a full Waller v. Georgia analysis before exclusion of persons from the courtroom, the court would have undertaken the on-the-record fact-finding and analysis required by that decision.
Furthermore, Appellant makes no attempt to argue that the lack of defense objection was mere oversight, rather than the deliberate decision of defense counsel not to object. To be sure, no one can know from this record why defense counsel stood silent as the events unfolded. We can be virtually certain, however, given the lengthy discussion that preceded the court’s issuance of its order, that defense counsel had ample opportunity to object. And, though we may not at this juncture attempt to assign a reason for the lack of defense objection, we cannot ignore the possibility that defense counsel did not object because he believed it better for his client to have his family members and others out of the courtroom during trial.
That Appellant’s claim of error implicates a constitutional protection, moreover, does not excuse his failure to make a contemporaneous objection to the court’s order. We have made it abundantly clear that “ ‘[e]ven errors of Constitutional dimension may be waived by failure to interpose a timely objection at trial.’ ” Taylor v. State,
Further, the fact that the Sixth Amendment right to a public trial can be characterized as “fundamental” does not change the requirement that any claimed violation of that right be preserved by contemporaneous objection.
Our cases make it clear that, simply because an asserted right is derived from the Constitution of the United States or the Constitution of Maryland, or is regarded as a “fundamental” right, does not necessarily make the “intelligent and knowing” standard of waiver applicable. Rather, most rights, whether constitutional, statutory or common-law, may be waived by inaction or failure to adhere to legitimate procedural requirements.
Id.,
The right to a public trial, though “fundamental,” is not within the “narrow band of rights that courts have traditionally required an individual knowingly and intelligently [to] relinquish or abandon in order to waive the right or claim.” Hunt v. State,
For the same reasons, we reject the proposition that Appellant is entitled to review of the court’s order simply because the deprivation of the right to a public trial is a “structural error,” not subject to review for harmless error. See Neder v. United States,
The Supreme Court, for example, has held that defense counsel’s failure to request that a courtroom previously closed for grand jury proceedings be re-opened for the defendant’s criminal contempt proceeding waived the defendant’s due process right to a public proceeding, which the Court stated is akin to the Sixth Amendment right to a public trial. See Levine v. United States,
Cases from federal courts of appeal are to like effect. See United States ex rel. Bruno v. Herold,
State courts similarly hold. See, e.g., Wright v. State,
Consistent with the vast majority of the courts that have spoken on the subject, we hold that a claimed violation of the right to a public trial must be preserved for appellate review by a timely objection at trial, notwithstanding that the allegation implicates structural error. Therefore, Appellant is not excused from his failure to object to the court’s order excluding his family and certain other persons from trial simply because the claimed error is “structural.”
Finally, we reject Appellant’s invitation, made for the first time in oral argument before us, to take cognizance of the issue under the guise of “plain error.” Such review is reserved for those errors that are “compelling, extraordinary, exceptional or fundamental to assure the defendant of [a] fair trial.” See Rubin v. State,
Appellant did not file a reply brief arguing why he is entitled to such extraordinary review. Moreover, the reasons why we have declined to overlook Appellant’s failure to preserve the issue by contemporaneous objection, including the lack of a fully developed record on the claim, demonstrate why this is not remotely a case that cries out for review under the guise of “plain error.”
JUDGMENTS AFFIRMED. COSTS TO BE PAID BY APPELLANT.
BELL, C.J., BATTAGLIA and GREENE, JJ., Dissent.
Notes
. It appears from the record that “Mr. Arline” was a potential witness who ultimately was not called to testify. We cannot discern from the record how Mr. Arline was connected to the case.
. Deputy North evidently was assigned to provide security in the courtroom that day. The record does not disclose the precise identity
. It is precisely because we cannot ascertain from the record why defense counsel did not object to the court’s order that the claim is better suited for post conviction review, should Appellant desire to pursue the claim at that juncture. See Stewart v. State,
. Although in Waller the Supreme Court did not describe the right to a public trial as “fundamental,” the Court did so in Herring v. New York,
. See, e.g., Adams v. U.S. ex rel. McCann,
. It is for this reason that we disagree with the view of the dissent that the right to a public trial cannot be waived by the defendant’s '’inaction." See
Dissenting Opinion
dissenting.
Essentially, the trial judge had concerns that members of Cecil Robinson’s (“Robinson”) family were discussing the case in the hallway in the presence of potential jurors and that Robinson’s sister might have tried to intimidate one of the State’s witnesses or suborned perjury. The trial judge questioned Susan Price, Robinson’s seventeen year-old sister about her conversation with one of the State’s witnesses:
THE COURT: Seventeen. Susan, it’s been brought to my attention by members of the State’s Attorney’s Office that you went into the State’s Attorney’s Office and attempted to talk to one of the State’s witnesses.
MS. PRICE: I said hi to my friend.
THE COURT: Excuse me, ma'am. And encouraged them not to tell the truth. Now if this [is] in fact true....
MS. PRICE: I said hi to my friend.
THE COURT: Excuse me. If that is, in fact, true, that is a crime, but additionally you were instructed that you were not to have any contact with any of the witnesses. So what business you had going into the State’s Attorney’s Office, I don’t know. I am just bringing this to your attention as a result of what has been reported to me.
[APPELLANT]: What’d you say, Susan? •
THE COURT: Mr. Robinson
MS. PRICE: I just wanted to say hi to her.
THE COURT: Mr. Robinson, excuse me, Mr. Robinson.
MS. PRICE: Cause that’s my friend from school.
THE COURT: As I said, excuse me, excuse me. Did you not under [stand], what part of you cannot have contact with any of the witnesses did you not understand.
MS. PRICE: I didn’t know that, you didn’t say that before I left.
THE COURT: Excuse me, Ms. Robinson, Ms. Price. All right, what I’m going to end up doing is I’m excluding the entire family from the courtroom! Now I don’t know where*113 they’re going to go that they don’t have contact with anybody else in this case.
As the majority points out, “the court discussed with the courtroom personnel the possibility of placing the family spectators in a separate courtroom by themselves, away from the public.” After directing Susan Price to go and sit with her mother, the mother addressed the trial judge about the order requiring them to leave the courtroom:
MS. THOMAS: Your Honor?
THE COURT: I don’t want to hear from anybody. Everyone’s going to be, you’re going to leave the courtroom. I have to find some place to put you all.
MS. THOMAS: Right.
THE COURT: Where you will not interfere with this case today.
MS. THOMAS: I understand, Your Honor, I was just saying she had said that before.
THE COURT: Okay, I don’t want to hear, maybe what you’re doing is not malicious, Ms. Thomas, but I just don’t think you all understand....
MS. THOMAS: No, I understand, I do.
THE COURT: Nor respect the decorum that is needed in this particular proceeding. So it’s better to just put you all out of the courtroom. So with that said, Pm just going to get you all to leave the courtroom, I just need one of the deputies to maybe sit out there with them, to make sure, I don’t know, just to make sure they’re not talking to anybody inappropriately.... So why don’t you all have a seat out there. Just going to have a deputy sit out there with you so if you end up wandering into some conversation that you shouldn’t be having.
MS. THOMAS: Can they sit out there and I’ll sit in, I won’t say anything. I just....
THE COURT: Everybody’s sitting out there. He’s not a juvenile any more. Everybody sit on out there. Maybe if you behave well, in the next hour or two, Ms. Thomas, I’ll*114 reconsider, but right now. Everybody in the back, I want everybody out.
UNIDENTIFIED: We not his family.
THE COURT: I don’t care, you’re out.
The above excerpts from the record reveal that the trial judge excluded Robinson’s entire family from the courtroom, as well as at least two other spectators. According to the trial judge, the exclusion was necessary to prevent those persons excluded from interfering with the proceedings. Nothing happened, however, in the presence of the trial judge to support the trial judge’s restriction on access to the trial, and the judge made no factual findings, as to matters that occurred outside her presence, that would have supported such an overly broad restriction on access to the trial. Thus, in my opinion, the trial court’s overly broad order of exclusion constituted a violation of Robinson’s right to a public trial under the Sixth Amendment.
A. The Right to a Public Trial is Fundamental and cannot be Waived by Inaction
The majority holds that because Robinson failed to object to the removal of his family members and other spectators from the courtroom, at the time of the trial, the issue as to denial of his right to a public trial is not preserved for appellate review.
The United States Supreme Court and this Court, however, have both held that, in the case of certain fundamental rights, mere inaction is not enough to constitute waiver-some affirmative, knowing and intelligent action is required. See Johnson v. Zerbst,
The right to a public trial is guaranteed by the Sixth Amendment to the United States Constitution.
[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, 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.
Waller v. Georgia,
Given the importance and historical significance of the right to a public trial, and the specific process required for overriding that right, more than mere inaction should be required for the waiver of this fundamental right. Maryland courts have not affirmatively ruled on this issue, but the reasoning of other jurisdictions is persuasive:
It is, however, insisted by counsel for the state that because no objection or exception was entered or taken by the appellant at the time of the trial the error, if any, cannot now be taken advantage of. With this we do not agree. In the case of State v. Crotts,22 Wash. 245 ,60 P. 403 (1900), which decided that the action of the trial court in commenting on the facts in a criminal case being an invasion of the constitutional rights of the accused, such action may be reviewed on appeal, although no exception or objection was*117 interposed at the time, it was said: “Where the constitutional right has been invaded, it has been held by this court that no failure of objection or exception should stand in the way of considering errors based on the violation of such provisions.”
State v. Marsh,
The right to a public trial is guaranteed by the Sixth Amendment to the United States Constitution and by Section 10, Article I of the Ohio Constitution. Although Bethel did not object to the closing of the hearing, the right to a public trial under Section 10, Article I of the Ohio Constitution cannot be waived by the defendant’s silence.
State v. Bethel,
There is no evidence in the record that Robinson affirmatively waived his right to a public trial. Nothing less than a knowing and intelligent waiver of the right to a public trial should exempt the trial court from engaging in the required analysis. Therefore, Robinson did not waive the right to challenge the trial court’s action by failing to object at the time of the order. The question of whether Robinson’s rights were violated is properly before this Court.
B. This Court May Exercise Discretion Under Rule 8-131(a) and Decide Unpreserved Issues
Alternatively, even if the issue was not properly preserved, this Court can exercise discretion under Rule 8-131 (a) and choose to rule on the merits of Robinson’s case. As cited above, Rule 8-131 (a) states:
[ojrdinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the*118 trial court or to avoid the expense and delay of another appeal.
Thus, pursuant to Rule 8-131 (a), we have discretion to decide an issue that may not have been preserved below. See State v. Bell,
As the plain language of the rule allows for exceptions, the question becomes whether this is a scenario where the Court should exercise discretion. In deciding this question in the past, this Court has stated that:
[t]here is no fixed formula for the determination of when discretion should be exercised.... We have, however, laid out in prior cases, by explanation and example, principles to guide the courts when consideration of unpreserved issues might be proper....
* * * *
First, the appellate court should consider whether the exercise of its discretion will work unfair prejudice to either of the parties.
Second, the appellate court should consider whether the exercise of its discretion will promote the orderly administration of justice.
Jones v. State,
The few cases where we have exercised our discretion to review unpreserved issues are cases where prejudicial error*119 was found and the failure to preserve the issue was not a matter of trial tactics.... We usually elect to review an unpreserved issue only after it has been thoroughly briefed and argued, and where a decision would (1) help correct a recurring error, (2) provide guidance when there is likely to be a new trial, or (3) offer assistance if there is a subsequent collateral attack on the conviction.
In Carter v. State, this Court recognized that the denial of a public trial is “structural error,” meaning it “affect[s] the framework within which the trial proceeds, rather than simply [being] an error in the trial process itself.”
This presumption of prejudice cuts in favor of this Court exercising its discretion to hear unpreserved issues. Normally the “orderly administration of justice” requires that parties make their positions known at trial to avoid prejudice in bringing up new arguments at a later point. Exercising discretion in this case, however, would not prejudice either party. Indeed, failure to decide this question will allow prejudice to Robinson to continue unchecked.
In addition, ruling on the merits of the issue will provide direction to the trial courts, clarifying the requirement that, before an individual’s right to a public trial is limited, the
Therefore, this issue is one that is properly before this Court and should be decided on the merits.
C. Robinson’s Right to a Public Trial was Violated When the Trial Judge Excluded Members of Robinson’s Family and Others from the Trial
The United States Supreme Court and this Court have made clear that the right to an open and public trial is vital to the fair administration of justice. See Waller v. Georgia,
This right, however, is not without its limits. “[T]he Court has made clear that 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.” Waller v. Georgia,
LTjhe party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, 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.
Waller,
The state’s interest in protecting the integrity of legal proceedings is certainly an overriding interest.
The specific allegations of improper contact with witnesses only extended to Robinson’s sister. The trial judge failed to make findings on the record to support the decision to exclude the rest of the family and other unidentified spectators. This indicates that the exclusion order was not narrowly tailored to address the specific problem at hand. There is no evidence that the trial judge considered reasonable alternatives, such as excluding only those individuals who had engaged in inappropriate behavior. Robinson’s mother requested that she be allowed to remain even if the rest of the family was excluded. The trial judge denied the mother’s request without explanation. In Yung v. Walker,
Waller prevents a court from denying a family member’s request to be exempted from a courtroom closure order unless the court is convinced that the exclusion of that particular relative is necessary to protect the overriding interest at stake. Indeed, it would be an unreasonable interpretation of Waller for a court to deny such a request if the exclusion of that particular relative, under the specific*123 circumstances at issue, is not necessary to promote the overriding interest.
Without specific findings on the record, it is impossible to determine whether the exclusion order was narrowly tailored to the identified problem. Therefore, the trial court erred in failing to engage in the Waller analysis required before infringing on Robinson’s right to a public trial.
D. Remedy
As mentioned above, the denial of a public trial is a structural error. Carter v. State,
[tjhose cases ... contain a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Such errors “infect the entire trial process” and “necessarily render a trial fundamentally unfair.” Put another way, these errors deprive defendants of “basic protections” without which “a criminal trial cannot reliably serve its function as a vehicle lor determination of guilt or innocence ... and no criminal punishment may be regarded as fundamentally fair.”
Neder v. United States,
In such a situation, the remedy is to remand for a new trial. “When we have determined that the denial of a public trial has occurred, we have held that a new trial, rather than remand to supplement the record, is the proper remedy.” Carter,
Chief Judge BELL and Judge BATTAGLIA authorize me to state that they join in this dissenting opinion.
. Md. Rule 8-131(a): ‘‘Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.”
. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ...” U.S. Const. Amend. VI.
. The Court of Special Appeals recently held in Longus v. State,