*3 GLICKMAN, Before SCHWELB STEADMAN,* Judges, Associate Judge. Senior PER **: CURIAM Ron- appeal whether The issue in to a ald Sixth Amendment ** * principal Judge Judge GLICKMANis the Judge Steadman Associate Associate was an except argument. His status opinion court at the time of for the court author of the Judge changed III.B.(2). on October Senior Judge STEADMAN to Part Senior infringed upon happened forget when the had to cause her to what spectators ordered certain out jury. grand Repeated- she had said of the courtroom.1 The excluded the ly, “didn’t Sadler stated she want to protect prose- intimidated testify,” come in here and want to “[didn’t] testify cution witness and enable her to involved,” want to be here “[didn’t] truthfully. affirm'. We period.” prosecutor asked Sadler “anything whether in this courtroom” was I. making “Everything her “nervous.” charged Ronald with the nervous,” making this courtroom is me stabbing pf fatal Carlis Walker on a added, replied, talking “I don’t feel like but yvit- presence sidewalk of several *4 unresponsive about it.” Sadler remained witnesses, nesses. One of those Renee though even she would be she believed (“Sadler”), Sadler-Wilson identified Tins- up” failing “locked for to answer.2 ley police to both the and the grand jury the person punch whom she saw short, Walker succinctly put as the trial plunge and then a knife into his after chest conference, it during a bench Sadler buy Walker refused to heroin from him. Eventually up.” “clammed recess, observing called a ten-minute after witness, proved Sadler to be á reluctant however, her head down sitting Sadler was with government sought when the ' inculpating testimony During elicit her Tinsley’s covering part at and of her face. trial. Although preliminary she answered break, in the courtroom. Sadler remained questions acknowledged being present resumed, not- proceedings When when had “some with words” crying. was ed on the record that Sadler Walker, Sadler became evasive and non- juncture, asked prosecutor At this responsive when she was asked to state for a so that he conference at the bench hap- what she heard and to describe what exchange could with Sadler report on his pened “I you’re next. don’t know what had during prosecutor the break. The to,” referring point; Sadler claimed one okay, everything asked if Sadler saying. “I’m not I’m not obligated say “just in her head and response she shook anything,” she insisted at another. Con- said, in people she ‘The the back. That’s grand jury, testimony, fronted with her in back.’”3 problem, people professed Sadler not to remember it. She people “the flatly prosecutor then The identified refused answer when prosecutor anything Tinsley’s asked her and his whether the back” as brother III.B.(2), principal motion, is the author of with electing Part instead to "submit on Judge SCHWÉLB Associate concurs. record,” we consider him to aban- appeal. doned his collateral See Bardoff 1.This Sixth Amendment issue is raised in (D.C.1993). United 90 n. 8 appeal direct from his convictions jury degree trial of second murder already up” twice Sadler had been "locked carrying dangerous weap while armed and voluntarily response appearing not (a knife). (No. appeal That direct 00-CF grand jury's subpoenas. -790) Tinsley's has been sub consolidated (No. 02-CO-80) sequent appeal from the trial explain that he pro post-conviction prosecutor 3. The went on to court’s denial his se pursuant a new to D.C.Code motion for had no with Sadler dur- further conversation (2001). § 23-110 As has not briefed counsel confirmed the break. Defense any argument support of his contention that fact. denying § that the trial court erred in his 23- request a voir dire he did not pros- According friends.4 brother’s really ecutor, completely- to determine whether “demeanor witness rather, brother changed argued, when the Defendant’s intimidated. Counsel courtroom,” and she was in the appropri- walked had behaved by the more concerned” “probably even (a fact not dis- ately in the courtroom thinks of his friends. “She appearance af- not been that Sadler had pute) and puts his ... the Defendant’s brother continuing by their entrance fected things.... certain up Mends to do on the witness Her demeanor presence. courtroom, her they walked in the moment contended, had stand, counsel defense and she closed down eyes became wide throughout.” On [the same] “remained fearful, the that moment....” Sadler was judge disa- point, this latter prior to trial explained, because prosecutor say could greed. While had 'broken into persons unknown several change ... of de- that Sadler’s “clear her, her attacked stabbed apartment, the entrance of meanor” was related to arm, testify not to in the and told her courtroom, into the specific people Tinsley. Although perpetra- against the witness judge found obvious identi- of the break-in had not been tors and reluc- increasingly “hesitant became fied, it was the “said she believed *5 pro- testify as her examination tant” to boys.” Noting Defendant’s brother or his gressed. attending Tinsley’s mother also was that trial, added that she too prosecutor the the of “had no intention Stating that she threatened one reportedly had Sadler “at courtroom un- excluding anyone from the no details. point,” although he furnished circumstances,”5 extreme less there were satisfied judge pronounced the herself foregoing proffer, Based on the “the Defen- to “exclude prosecutor requested proffer [Tins- that and decided barred dant’s brother and his Mends be who have ley’s] brother and his associates Tinsley’s mother from the courtroom.” proffer,” a threat.” “Based on posed said, de- stay, prosecutor could since decided, again over defense also threat, spite alleged going “she’s not Tinsley’s mother. objection, to exclude Sadler], I physical danger don’t [to or explicit temporal no judge placed The think.” exclusion of these other limitations on her individuals; not state she did specifically,
Tinsley’s opposed prosecu- counsel they return to watch that could unjustified. Defense coun- request tor’s testimony or at her finished been Sadler dispute sel did not that Sadler had hand, time, nor, did trial, on the other any other prior attacked and threatened with, case and connection recognized Tinsley’s brother stabbed in 4. The trial large wearing the reddish with this I as "the man ... in connection threats made previous trial had jacket.” A witness in the are the circumstances believe those they Tinsley’s first of, brothers when identified quote, un- the exclusion- would warrant ’ entered the courtroom. people. quote, brother’s the Defendant’s her judge expressed on record 5. The trial ruling, phrased way 6.Despite she keeping recognition importance of undoubtedly that neither understood open public: to the courtroom associates Tinsley's nor his brother’s brother kept open, Ordinarily, courtrooms are assail- actually as Sadler’s had been identified keep important I believe it’s per- proffer made this prosecutor’s ants. The only open be done and it should courtroom fectly clear. Here, light of circumstances. extreme this witness has been proffer courtroom,” contrary, she state the i.e. the exclu- looked around the he asked her, you “since started testifying?” sion was the duration of trial. She confirmed that she had not: The record is less than clear as to how If I look around courtroom to see implemented. the order of exclusion was here, help who’s it my testimony? would appears It that an courtroom unidentified No, help it won’t at all. It would make delegated marshal the task commu- worse, if anything. nicating the order some suggestion: “Why made a don’t subjects.7 all of its intended record No you what you tell the witness it is wish to persons was made of the identities of the her, tell Mr. There are two [Prosecutor]? Tinsley’s associated with brother ofor employees court seated the courtroom.” gave specta- directions the marshal to the “And those two court employees, Ms. telling particu- In depart. tors them Sadler,” prosecutor added. lar, the record does reveal whether the marshal told the could After she realized the courtroom return left after Sadler the witness stand. cleared, had been Sadler became more There also is no indication in the record testify.8 and able to willing due course persons the excluded ever did she affirmed stab saw return. Walker and that she had identified police. as Walker’s assailant to the effectively
The bar order cleared the of all spectators except courtroom for two also described how she herself employees. court Asked whether she was had been in a recent stabbed break-in at A prepared apartment. to continue with her direct exam- her woman whom Sadler ination, voice, “Tina,” in a faint “I girlfriend Sadler said knew as' *6 No, brother, open don’t want to be here. I don’t want forced front door and questions.” answer no more apartment For few entered Sadler’s with three un- proceeded Wielding more minutes the examination known men. a knife and declar- “you’re haltingly, reiterating ing going with Sadler her wish to make toit court,” “get prose- out of this courtroom.” The Tina attacked Sadler. Sadler re- cutor then had a cut observed she ceived on her face as she fended off down; keeping you been her head “have the attack. The intruders then fled.9 employees 7. The trial so informed counsel: to her that two court attention begins are in the courtroom. She going say I’ve told the marshal —I begins breathe easier and she to be able to just who was excluded and the marshal testify. begins perceive She to be able to said, "Oh, you mean his brothers.” So the submit, you, credibly and she I as tells as people are marshal has in his mind who be, you, I [Tins- can submit to that Ronnie coming together.... who have been ley] stabbed that man and that what gentlemen were earlier other than who here grand jury said in the true. is investigator. Perhaps ... [defense] prosecutors] [one of the can tell him.... professed 9.Sadler to believe that him- uncertain, however, us record leaves nothing self had to do with the break-in. implemented marshal whether was the who view, "just type per- Tina Sadler's ejection Tinsley’s mother. go just son that tries to hard and tries to take prosecutor 8. The described transfor- Sadler's own, things you in her know.” The closing argument mation in his as follows: jury instructed the that there was no evidence any pause, was a there had "made threats or taken Renee Sadler—there resumes, against any was a recess. When Renee Sadler action this witness or other witness, people, anyone to [had] there are two two court em- or that he directed courtroom, brought ployees and it's do so on his behalf.” locked or refuse to be to the courtroom
II.
But,
large.
public at
to the
admittance
prosecutions,”
“In all criminal
proceed
a criminal
closure of
partial
even
that “the
guarantees
Amendment
the Sixth
Amendment
may
Sixth
violate
- a ...
enjoy
right
accused shall
while the
trial. And
public
guarantee
Const,
VI. The
trial.”
amend.
public
U.S.
certainly “is
court
open
tried in
right to be
open
trials
requirement that criminal
be
trivial,
by a
inadvertent
...
not trammeled
in the
is enshrined
Sixth
public
Keane,
closure,”
Bowden v.
courtroom
of the ac
“for the benefit
Amendment
(2d Cir.2001),
125,
presump
F.3d
fairly
cused;
may see he is
public
that the
is at the
accused
strong
that “an
tion
condemned,
unjustly
dealt with and not
friends, rela
to have his
very least entitled
specta
interested
presence
and
no matter with
present,
counsel
tives and
to a
keenly
triers
alive
may keep
tors
his
In re
may
charged.”
be
offense he
what
and to the
responsibility
sense of their
”
272,
499,
Oliver,
68 S.Ct.
Waller
333 U.S.
importance of their functions....
39, 46,
accord,
(1948);
Georgia,
104 S.Ct.
Sobin v. United
467 U.S.
L.Ed. 682
(internal
(1984)
(D.C.1992).
quotation States,
1029, 1033
875 tri- require overriding supported interests The Waller criteria two (1) instance, -judge, safety first judge’s protecting al action: (2) contextual, witness, Sadler, fact-specific enabling make a number of her of its and judgments. judgments Inasmuch as testify truthfully these at trial. There is no involve the and mid-trial assessment were the interests doubt these interests, of weighing competing risks exclude motivated the benefits, remedies, and alternative The family members and their associates. judge’s are committed dis informed explicitly government’s on the judge relied Foretich, v. A.2d Morgan cretion. See 528 unchallenged proffer that Sadler had been (D.C.1987) 425, 427 n. 3 (addressing due threatened, and on her own assaulted right open hearing, as to process an direct observation that Sadler was virtual- apply compa which Waller factors ly petrified on the witness stand. made).. judgment rable must be Accord recog- Past decisions of this court have ingly, present our review in the case is for protection avoid- nized of witnesses and See, Sobin, e.g., abuse of that discretion. inter- overriding ance of intimidation to be 1033; 606 A.2d v. United States Farm may justify ests closure (8th Cir.1994). er, 369, 32 F.3d 371-72 Kleinbart, in- criminal for proceeding. “However, in light of the constitutional stance, specifically identified “protect- we stake, ... the trial court’s exer inter- security of a witness” as an carefully cise of discretion must be re “justifying or all of exclusion some est by specific findings
viewed and supported portions from limited Morgan, articulated interests.” 528 proceedings.” at 882. re- 388 A.2d More 427 n. A.2d at 3. must We focus our scruti States, cently, in we McClinton v. United ny discretionary on whether permissible held it persons decision to bar Tins certain from temporarily “to avoid clear the courtroom foundation,” ley’s trial had firm factual “a witness” intimidation of who [the] [a] States, 354, v. Johnson United A.2d 398 demonstrably by specta- frightened (D.C.1979), upon 364 and was “founded (D.C.2003).13 844, tors. 860 standards,” legal correct Benn v. United courts reached similar conclu- Other (D.C.2002), i.e., A.2d respect to intimidated wit- sions the Waller criteria. See, Woods, e.g., at 77 nesses. F.2d (“[Protection of who claims to a witness III. frightened perceived as a result A. ‘substantial reason’ threats meets both the then, Turning, to the criteria standards.”); ‘overriding and the interest’ or must evaluate Sherlock, 962 F.2d States United in this der we consider first cases). (9th Cir.1989) (citing requirement party threshold “the Furthermore, in this
seeking hearing advance close must overriding likely that is to be case had sufficient basis observa interest Waller, prosecutor’s proffer 104 tions of Sadler and the prejudiced.” U.S. at conclude, least, at the contends S.Ct. *9 Upon questioning people in the courtroom.’ judge “The trial cleared the courtroom
13. by judge, witness during testimony government witness the trial the asserted advised concluding 'scared' and that others had observing she was her behavior and ” Id. ‘obviously by [Amendment].' 'take the Fifth that she was intimidated her to 876 in testify truthfully request, judge
afraid to front of Tins- a voir dire had discre- ley’s family give members and their associates. to a plausible tion to credence Tinsley argues that would have undisputed proffer by an officer of the had a firmer factual foundation for her say. court as to what the witness would ruling hearing had she first conducted a 1176, Mercer v. United 724 A.2d questioned directly (D.C.1999) (“[A]n instead of attorney’s 1185 n. 5 offer (rather bare-bones) relying on a proffer. proof may adequate serve as an founda- that, agree many in We would circum discretionary tion” for a trial court’s deci- perhaps ordinarily, stances and even circumstances.).14 sion, depending on the hearing adequate must be held to establish Third, key portion Sadler substantiated a justification for barring public from a prosecutor’s proffer of the in her subse- objec criminal trial over the defendant’s quent testimony. Although Sadler was not 772, Scully, tion. See Guzman v. 80 F.3d asked and did not state whether Tinsley’s (2d Cir.1996) (holding that her, mother had threatened and she varied court’s partial closure of the courtroom in proffer from the immaterial details violated the defendant’s to a (such wound), as the location of her knife where “the court relied on the Sadler nonetheless confirmed that a friend unsubstantiated statements of prosecu Tinsley’s brother had stabbed her and tor, conducting inquiry rather than told her she would not “make it to court.” prosecution witness on whose behalf testimony, This which the defense did not made”); request the closure was Unit discredit, enough explain why cf. Sad- Hernandez, ed States v. 608 F.2d presence ler was intimidated at trial (9th Cir.1979) (upholding closure based on relatives and their friends. affidavit, “mak[ing] but it ab particular The fact that none of those per- solutely clear that the better course would may participated sons have in attack been for the trial to conduct an on Sadler did not make her fear and reluc- matter”). evidentiary hearing into In testify tance to front of them less case, however, present three consider genuine. reasonable or together persuade ations taken us Thus, we are satisfied that first Wal- hearing failure to hold a did not invalidate ler criterion was met here. partial closure order issue. First, testify Sadler’s reluctance to B. palpable unmistakable. ob- criterion, directly finding served it and her on that We move on to the second amply supported by transcript. barring score is an order of the members Second, Tinsley did not contest the from the courtroom “must be no prose- broader proffer. Tinsley sought necessary” legitimate cutor’s Had than to fulfill its ob- jectives. inquire veracity of Sadler as to the 2210. U.S. S.Ct. proffer, argues he would have been entitled to the order this case (1) overly respects: a voir dire of out conduct the witness of was broad two (2) presence many people, long before the excluded too for too granted properly argument could have time. We address each prosecutor’s But in turn. motion. the absence of Serv., stake, important espe- Pub. are at re when interests Cf. Defender (D.C.2003) (expressing preference, "as a cially parte). proffer when the exis rule,” proffer for more than an unsworn *10 (2)
(1) specta- Tinsley complains also Initially, Tinsley complains longer for than neces- tors were barred judge spectators excluded indiscrimi that, face, trial It true on its sary. Although it at nately. request he did not order silent as the duration was time, Tinsley argues Tinsley’s ordered of the exclusion. She questioned the spectators should have out of the courtroom family and friends (if actually any) which of them determine if— stating when—or explicitly without threatening had role in Sadler. played But to this could return. read ever It disagree. is unrealistic to think that We decreeing ambiguous order as exclusion judicial inquisition such mid-trial would ignore duration the trial would for the haye informative, which order practical, or suffi the circumstances under been exclusion, given. granting was allay anxiety. cient to Sadler’s In similar only trial was clear that reason circumstances, the First Circuit has ob closing protect was to for courtroom any in in “[n]othing served that Waller or As she testify. Sadler and enable her judge, ... that a suggests other case trial parties, articulated to the presented repeated with evidence of at light proffer this witness intimidation a live tempts witness in connection this has been stabbed plausible who witness harbors fear connection with threatened] testifying spectators before and un known case, I are the believe those her, known to must undertake an assess that would circumstances warrant affrightmént ment of the exact level of of “the Defendant’s brother’s by spectator, by each specific created one people.” one,” ordering spectators before Thus, granted, at the time the order was leave the courtroom. v. Bisso Martin was clear—to secure purpose its (1st nette, Cir.1997). 118 F.3d We testimony free from the intimidation with that agree statement. We think persons in the courtroom. This certain by confining Tinsley’s order her bar involved; to all plainly known associates, family and his brother’s parties, and counsel for both judge, our case did all that was point judge, At nor no did sides. id., “reasonably necessary,” to target parties, give either .indication presence those whose continued to last the exclusion was intended am- truly problematic.15 beyond purpose.16 its evident While stands, (same). special But record we think exception 15. also takes to the as the mother, ejection he of his characterizes not abuse her discretion did insensitivity.” "By as "an act of substantial unchallenged proffer, even relying on accounts,” states, merely all "she was Tinsley’s specifics, though it to make lacked lady sitting watching an old in the courtroom subject order. to the bar mother being But that her son tried murder.” accurate, entirely pros- assertion is not for the by only possible suggested extension proffer Tinsley’s even moth- ecutor’s was that prosecu- from the discourse would flow had communicated a threat to Sadler. er expression concern intim- tion’s brief about discredited, proffer doubt- Had the been it is Smalls, previous- who had idation of Sammie would ful that exclusion of mother briefly ly was recalled and testified. Smalls Martin, justified. F.3d at have been Cf. the same afternoon after Sadler testified (upholding exclusion of defendant’s pro government witnesses two other forma light mother in of harassment of witness had testified. Woods, members); family 977 F.2d other *11 878 face,
biguous on in acquiescence its viewed the context of the trial judge over in which it it is given, apparent was appellant’s objection,17 accept we can not the order to last only was intended for the Tinsley’s of the construction order. Cobb testimony. Co., duration of Sadler’s Drug Standard 453 A.2d 111 (D.C.1982) (“[I]t appellant’s is duty to Despite in the context which it was present with a this court record sufficient given, suggests Tinsley the order affirmatively to show error oc “appears in to have been effect for the curred.”). Accordingly, viewing the order remainder of the trial.” There is no evi- in light of the in it circumstances case, dence that this was however. imposed, was conclude that we the exclu any person has not identified who Tinsely’s family during sion of members was denied readmission after Sadler’s Sadler’s was “no testimony broader than testimony object Nor did concluded. he necessary” its legitimate pur to achieve alleged to the overbreadth the exclu- See, McClinton, pose. e.g., sion at trial. This is not surprising; occurred, light (finding no Sixth Amendment violation which it context during where the was courtroom closed logical silence is reflective of a witness); order, testimony the intimidated construction of the to was (“Because Bell, endure for at 168 the duration Sadler’s testi- F.3d the com mony. Tinsely closing pelling Had understood the interest for ex- courtroom broader, clusion mean something protection during order to of [a witness] contrary limiting to his Sixth Amendment inter- testimony, closure to her ests, the natural course would have been testimony was ... tailored to serve that object, Woods, interest.”); (“[T]he to trial judge ask the for clari- at 77 F.2d fication. This he did not do. Given the closure order was no broader than was background of order and necessary testify, [the witness] enable recognition of explicit the sensi- allowing while at otherwise to. tivity issue, we have no so.”). doubt that tend the trial if it chose to do expressly she would have limited the du- C.
ration of had the order such a clarifica- tion been requested. the absence of requirement third is that “the Waller’s any counsel, action partic- are trial court must consider reasonable alter- ularly not to find constrained reversible closing proceeding.” 467 natives here, error where the Sixth Amendment U.S. at 2210. In present S.Ct. not gener- interest at stake that of the judge expressly case the trial viewed even public, personal al but ap- rather partial closure of courtroom as a last pellant. days The trial continued for two resort, employed be extreme testimony, including the en- Although circumstances. did tire defense and there was thus am- give explicit consideration to alterna- ple object any opportunity to undue tives, party neither identified or asked the length of the order. exclusion Now, options. to weigh other how- ever, appeal, argues
Absent evidence options applied broadly fact more than the number of reasonable did exist. one, For suggest, knowledge suggests prosecution circumstances he executing fairly expected If the marshal in the order over- could monitor and learn speaking stated its to the affected duration in of the marshal's overstatement. associates, family appellant members and nominally clo- forego long “only” partial Sad- so required could have been *12 See, e.g., the is in issue. rely sure of courtroom testimony altogether ler’s live and (“At (some point, it jury testimony Ayala, 131 F.3d 71-72 solely grand her object- was, party the fact, during obligation the of in becomes of which introduced urge examination). to Or, proposal to the trial court’s now Sadler’s any further alternatives intern of proposes, the trial could have been consideration a limit- might the need for even of Sadler’s rupted permit to the remainder avoid closure.”).18 allocation of re- Given the testimony to outside the ed videotaped be during a videotape in courtroom jury. sponsibilities then presence The trial, of duties that the jury to in lieu and the multitude played could have been shoulder, there is much force testimony, allowing judge of live Tins- must obliged argument. judge is not present. this The ley’s and friends to be to relatives air, out thin alternatives of A offers is that the to invent novel possibility third options that the bring up nor to dubious judge explained Sadler’s con- could have not ventured to “offending” parties in the themselves have spectators cerns to the subsequently reject them. hope propose, only all of have that “some or them would Nonetheless, not so sure that a agreed to outside” for the we are remain remain- not,” judge be from consid- testimony. der of the “If trial should absolved witness’s obvious reasonable explain, ering on to “the trial court even the most Tinsley goes allowing one two to exclusion could have considered alternatives par- remain, merely because the being may with the rest be available them excluded, them. To take parties propose with the de- have affected ties failed slight the inde- ciding Lastly, position who would wait outside.” would open in an might pendent public have court- Tinsley suggests judge interest importance room. discussed with Sadler a defendant’s Sixth Amendment duty further the ponder need not We “put trial her to persuaded rea- judge sponte sua consider respect aside” her out of for that concerns far closure. sonable alternatives to So right. tell, in such alternatives existed we can no Although Tinsley suggests a case. government argues that we “cannot us as none of them strikes
presume
options,
that the trial
failed to con-
few
making
any
proposed
Excusing
sider
alternatives to
one
reasonable.
testimony before
by
do with her transcribed
[government] simply
[she]
because
both
have hobbled
open
grand jury
in
would
did not discuss others
court.”
Bell,
not;
defense and would
prosecution
Perhaps
D.
reasons,
foregoing
judgment
For
requirement
Waller’s final
of conviction is Affirmed.
judge
that the trial
findings
“must make
adequate
support
467
the closure.”
GLICKMAN,
Judge,
Associate
48,
light
U.S. at
104 S.Ct.
“In
2210.
concurring in part
dissenting
part.
stake,
important
interests
the trial
III.B.(2)
disagree
I
with Part
always provide
should
a statement of
and,
opinion
consequently,
my
court’s
excluding
persons
reasons for
particular
courtroom,
appeal.
especially
colleagues’
from
resolution of
The
the face
objection.
done,
requires
Amendment
exclu-
defense
When that is
Sixth
crim-
parties
will better understand the
sion of members
from a
decision,
court’s
and a
be made
inal trial “must
than
record will
be no broader
neces-
and,
prescribed
particu-
findings
thereby, ignore
"[T]he
Court
Waller
no
factual
facts of
lar
adhere
format to which trial
must
fully support
record
decision and
satisfy
findings requirement,
and we
belie
claim that [the defendant's]
to a
require
nothing
read
in Waller that
would
actually
public trial was
violated
the clo-
reviewing
court to evaluate the trial
Bell, 236
sure."
F.3d at 172.
solely
explic-
closure
on the
order
basis of
ruling,
formal
she did
sary”
objectives.
support
legitimate
to fulfill its
did
48,
Notably,
39,
mean to rule as
did.
Georgia,
v.
467 U.S.
104 not
Waller
(1984).
2210,
makes no such
The government’s only effort to carry ror rule or claim evaluate accord- strictures, however; is argument burden its that since nor “de- its does the Among things, government 52(b), 2. Superior other both Under Court Rule Criminal my colleagues ignore counterpart, fact that when as under its federal "before an appellate expelled being were an without court can correct error not return, trial, (1) error, (2) they they informed that could had no raised at there must be (3) indefinitely vicinity plain, reason to remain in the is that affects substantial Instead, met, "entirely possi- rights.... all courtroom. it is three conditions are If (to quote government; say appellate may ble” I would then its court exercise discre- error, (4) probable) they simply is left the tion to but court- notice forfeited if fairness, seriously happened, integri- house. this is If indeed what de- error affects the posi- ty, public reputation judicial proceed- fense would counsel not have been in a Johnson, 466-67, request they ings.” tion at be readmitted to 520 U.S. observe balance of the trial. S.Ct. 1544. my colleagues and the As Tinsley forfeited government contend that concede, pre principles these implicitly objection must show his “overbreadth” review plain error application clude it.4 prevail on plain error concerning the Issues standard here. good reason not to invoke There is trial to a Sixth Amendment in this case. standard of review plain error all, and issues at here those seldom arise not “apply plain This court error does warning. no in the midst of trial with arose in a which elevates rigid review fashion expect de be unreasonable It would dynamics of trial a situation to have practical form over the counsel such fense States, criteria fingertips particular his litigation.” Brown v. United Supreme enunciated in Waller. Court (D.C.1999). appreciate A.2d We Tinsley objected put enough It is may ... arise questions that “difficult (and prosecutor) judge ... warning, and coun trial with little claim that the order of of his basic notice (and indeed, may be ‘under judge) sel justified. The record was not standably guard completely off taken ” well aware of confirms that the Salmon v. unexpected denouement.’ her, legal because issue before (D.C. States, 719 A.2d United circum acknowledged that “extreme 1997) omitted). (citations hap When any exclu justify stances” had exist do not hold counsel to pens, our cases acknowledgment, express sion. Given Rather, precision. unrealistic standards of perfectly to view as it is fair preserved appeal so we treat claim of exclusion being on notice that order long “fairly is as to apprised as the circum no broader than the must be being question on which asked [she] justified. My colleagues admit as stances (internal quotation marks to rule.” Id. confidently (though, in much when omitted); and citations see also Hunter v. opine my view, mistakenly) (D.C. 139, 144 United *16 to limited her order be of dura intended 1992). Moreover, a ... claim is “once (“In Stancil, at 804-05. tion. Cf. court], presented a properly [to trial States, case, v. 801 as in Chatmon United party argument ap can make [in (D.C.2002), 92, 100 ‘ben appellant A.2d claim; pellate of that support court] the trial an supervision from the of efits argu to the parties precise are not limited judge,’ recognized who attentive trial Escondido, made Yee v. ments below.” ”). significant issue.... of existence 534, 1522, 519, 118 503 112 S.Ct. U.S. Thus, argue not to although did (1992); see, e.g., 153 Stancil v. L.Ed.2d unlimit that the judge specifically States, 799, (D.C.App. 866 A.2d 805 United order of exclusion duration of the ed States, un 2005); necessary, 710 A.2d is entitled v. United he West broader than Yee, present that 866, (D.C.1998). and West to n. 3 der Stancil 868 Rather, neglected to government] ar agrees "when has government [the that our re has failed to gue appeal on that a defendant is discretion. view in this case for abuse of it, given argument in the court argued preserve [trial] government has not When ” 'waived waiver.’ government has apply plain ... we error have declined 489, (2d Quiroz, T.L., 22 F.3d 491 v. In re United States sponte. of sua See standard review see, cases); Cir.1994) 1087, (D.C.2004); (citing e.g., States United n. 6 Me 859 A.2d 1090-91 910, (7th 642, Fields, States, drano-Quiroz n. Cir. 916 3 371 F.3d 705 A.2d v. v. United Beckham, 2004); 296 (D.C.1997); v. United States also v. United see Rose 648-49 47, 311, 5, 526, (D.C.1993). 968 F.2d 54 States, U.S.App. 318 n. D.C. Courts 629 A.2d 537 (1992). 5 "consistently” held that n. appeals of 884
argument on appeal support of his basic could return after claim, unquestionably preserved. which is testifying. I regard Sadler finished do not wholly implausible it as that the marshal objection Tinsley’s As to the duration of might Moreover, have done so. as the preserved, the courtroom closure is we government argues, the record does not must determine the he relief is conclusively possibility exclude all that the entitled on account of the unconstitutional ejected spectators eventually did return to exclusion order. can argu There be no (or understood, somehow, the courtroom unjustified ment that courtroom clo return) they could fin sure in this case was de minimis trivial. testifying. ished consequence, This is a So far as appears, encompassed it part of perhaps, of the fact that no one on focused prosecution the entire defense question during light the trial. case, jury instructions, closing argu uncertainties, the residual I think that im A ments. portion Tinsley’s substantial Tinsley’s mediate reversal of convictions public. trial was not open to the That is Instead, would be premature. it would be technicality; unintentional, not a even if it appropriate give op grievous departure is a from a fundamen can, portunity prove, if spec tal principle jus of the administration of ejected tators from actually It tice. is something dis should were following allowed return as unimportant miss or harmless. “The Doe, examination. United States v. 63 violation the constitutional Cf. (2d Cir.1995) 121, F.3d 131 error, (remanding trial is a structural not sub ject Bell, light sparseness of analysis.” error “the the record” for harmless 165; Fulminante, court to make findings F.3d see factual Arizona 310, order); Stancil, its respecting 499 U.S. closure su S.Ct. (1991). Therefore, pra (remanding L.Ed.2d 302 record for trial court is required nbt prejudice findings to show to make order to whether out-of-court against entitled to a new trial. statements Kleinbart v. admitted defendant (D.C. “testimonial”). United were 1978); Waller, 49-50, U.S. 104 S.Ct. Accordingly, I would remand the record 2210. The deprivation constitutional for the hearing hold a to deter- Kleinbart, “per se reversible.” supra. actually mine what the spectators were said, That I note poten- that there is a regarding told the duration of exclu- their *17 tially significant gap regard- in the record sion. 'Unless the were excluded implementation order only while the intimidated witness still ejection. evidently The order was commu- stand, should receive new nicated at least some of the spectators trial. by the courtroom marshal rather than herself. This communication accomplished off the Although record.
may presumed faith- the marshal
fully order, transmitted the
fact remains transcript does
not disclose marshal whether the informed