UNITED STATES of America, Appellee, v. Raghubir K. GUPTA, Defendant-Appellant.
Docket No. 09-4738-cr.
United States Court of Appeals, Second Circuit.
Argued: March 7, 2011. Decided: June 17, 2011.
650 F.3d 863
Plainly, defendants contended that S.O.‘s trial testimony about O‘Connor represented fabrications originating in late 2007, and they argued that her statements to social workers and/or Detective Blenis from October 2006 to late October 2007, which omitted any charge of incest or sex trafficking by O‘Connor, were the more accurate and truthful. Equally plainly, a statement made by S.O. not later than mid-October 2006 that O‘Connor had “used’ ” her was consistent with S.O.‘s trial testimony that George Lang had helped O‘Connor to pay the rent and that O‘Connor had required S.O. to engage in sexual activities with Lang in 2004. Although Renee‘s testimony about the note was admitted before S.O. was called to testify, it was clear that S.O. was to be—and was—the principal witness at trial and could be cross-examined by the defense about the statement in her note. Accordingly, in light of Rule 801(d)(1)(B), we see no error in the trial court‘s admission of Renee‘s testimony that S.O., in a note written in 2006, stated that O‘Connor ” ‘used’ ” her.
CONCLUSION
We have considered all of defendants’ contentions on these appeals and have found them to be without merit. The judgments of conviction are affirmed.
Jeffrey Hoffman (Susan C. Wolfe, on the
Lee Renzin, Assistant United States Attorney (Jesse M. Furman, Assistant Unit-
Before: JOHN M. WALKER, JR., B.D. PARKER, and HALL, Circuit Judges.
Judge B.D. PARKER, dissents in a separate opinion.
HALL, Circuit Judge:
This appeal requires us to revisit an issue last considered in Gibbons v. Savage, 555 F.3d 112 (2d Cir. 2009)—under what circumstances does the exclusion of the public from a courtroom during voir dire violate a defendant‘s Sixth Amendment right to a public trial. In Gibbons and earlier cases, we identified an exception to this right applicable to situations where the exclusion of the public, though improper, was too trivial to implicate the Sixth Amendment‘s public trial guarantee, making vacatur of the defendant‘s conviction unnecessary. We conclude that this exception applies here. We further conclude that this exception is consistent with the Supreme Court‘s recent decision in Presley v. Georgia, 558 U.S. 209, 130 S. Ct. 721, 175 L. Ed. 2d 675 (2010).
Accordingly, we reject Gupta‘s Sixth Amendment challenge and AFFIRM his conviction and sentence. We dispose of Gupta‘s other arguments on appeal in a separate summary order filed today.
BACKGROUND
Defendant Raghubir K. Gupta was charged with one count of immigration fraud under
In April 2010, we granted Gupta‘s motion for remand for additional fact-finding based on his allegation that a friend and a member of his family had been excluded from the courtroom during voir dire. On remand, Gupta submitted affidavits from his brother and girlfriend, Sudhir Gupta and Maria Young, who affirmed that on the morning of the first day of trial a court officer had asked them to leave the courtroom during voir dire; both stated that when they reentered the room later in the day, the jury had already been empaneled. Gupta‘s counsel affirmed that he was unaware at the time of trial that Gupta‘s brother and girlfriend had been excluded from the courtroom. In lieu of an evidentiary hearing, the district court directed William Delaney, the courtroom deputy on duty on the first day of Gupta‘s trial, to submit an affidavit describing what had
At the Court‘s direction, in order to accommodate the large number of jurors in the venire panel, and to protect the panel from hearing anything about the case from any member of the public present, I requested that individuals who were not venire panel members leave the courtroom during the jury selection. I conveyed to those individuals that once the jury selection was complete, and there was again space in the public area of the courtroom, they were more than welcome to attend the proceedings.
The district court adopted Delaney‘s affidavit as its factual findings, after which jurisdiction was restored to us pursuant to the procedures set forth in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994).
DISCUSSION
A defendant‘s right to a public trial is guaranteed by the Sixth Amendment, see Waller v. Georgia, 467 U.S. 39, 45-47, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984), and this right extends to voir dire, Presley, 130 S. Ct. at 724 (“[T]he Sixth Amendment right to a public trial extends to the voir dire of prospective jurors.“) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509-10, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) (the press and public have a First Amendment right to attend voir dire), and Waller, 467 U.S. at 46 (the Sixth Amendment right to a public trial is at least as broad as the First Amendment right to a public trial recognized in Press-Enterprise)); accord Gibbons, 555 F.3d at 115. Although the public trial guarantee creates a “presumption of openness,” Press-Enterprise, 464 U.S. at 510, this is not absolute. Four criteria must be satisfied to overcome this presumption and justify closure of a courtroom during a criminal proceeding: (1) “the party seeking to close the [proceeding] 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.” Waller, 467 U.S. at 48 (quoted in Presley, 130 S. Ct. at 724; Gibbons, 555 F.3d at 116; Ayala v. Speckard, 131 F.3d 62, 69 (2d Cir. 1997) (en banc)).
Based on Delaney‘s affidavit, Gupta‘s brother and girlfriend were excluded from voir dire because of “the large number of jurors in the venire panel” and the need “to protect the panel from hearing anything about the case from any member of the public present.” Under Waller, these reasons are insufficient to justify a courtroom closure—a point the Government concedes. See Brief of Appellee at 25 (“[T]he District Court‘s exclusion of members of the public from the courtroom during voir dire violated the four-factor Waller test.“); see also Gibbons, 555 F.3d at 117 (holding that under Waller, insufficient space because of the size of the venire and the risk of tainting the jury pool are not “compelling reasons” for closure). Notwithstanding this fact, the Government argues that under our “triviality exception,” identified in Gibbons and earlier cases, the closure of the courtroom did not violate Gupta‘s Sixth Amendment public trial right. Gupta counters that Gibbons is distinguishable because there, the exclusion of the public was partial and temporary, and that our “triviality exception” is no longer valid post-Presley. We address each of these arguments in turn.
Because the parties agree that under Waller the district court‘s exclusion of Gupta‘s brother and girlfriend during voir dire was unjustified, we must determine whether that error violated Gupta‘s Sixth Amendment rights; under these circumstances, our starting point is the triviality exception.1 See Smith v. Hollins, 448 F.3d 533, 540 (2d Cir. 2006) (“[W]hen addressing whether an unjustified closure is a Sixth Amendment violation, a ‘triviality standard’ is the proper benchmark.“). We first identified a triviality exception to the public trial guarantee in Peterson:
A triviality standard, properly understood, does not dismiss a defendant‘s claim on the grounds that the defendant was guilty anyway or that he did not suffer “prejudice” or “specific injury.” It is, in other words, very different from a harmless error inquiry. It looks, rather, to whether the actions of the court and the effect that they had on the conduct of the trial deprived the defendant—whether otherwise innocent or guilty—of the protections conferred by the Sixth Amendment.
85 F.3d at 42; see Carson v. Fischer, 421 F.3d 83, 94 (2d Cir. 2005) (under a triviality analysis, the determination that the exclusion was trivial is tantamount to “conclud[ing] that the error was not significant enough to rise to the level of a constitutional violation“). We observed that the core values protected by the Sixth Amendment were: “1) to ensure a fair trial; 2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions; 3) to encourage witnesses to come forward; and 4) to discourage perjury.” Peterson, 85 F.3d at 43 (citing Waller, 467 U.S. at 46-47). Since Peterson, we have used these values to determine whether an unjustified closure of a courtroom violates the public trial guarantee. See Carson, 421 F.3d at 92-93 (“[T]he question of whether a particular closure implicates the Sixth Amendment turns on whether it undermines the values the Amendment is aimed to protect.“). If a courtroom closure subverts these values, it violates the Sixth Amendment, but if the closure is consistent with these values, it is trivial and does not implicate a defendant‘s right to a public trial. See Morales v. United States, 635 F.3d 39, 43 n. 7 (2d Cir. 2011) (“Triviality is . . . gauged by the degree to which a particular closure undermines the values the Sixth Amendment was designed to protect.” (citing Gibbons, 555 F.3d at 120-21)).
Based on these facts, we first held that the reasons articulated by the trial court to justify the exclusion of the defendant‘s mother “failed to satisfy the requirements of Waller.” Id. at 119. Applying the triviality exception, however, we concluded that although the exclusion was unjustified, it did not subvert the values underlying the Sixth Amendment‘s public trial guarantee. See id. at 121. With regard to the third and fourth values—encouraging witnesses to come forward and discouraging perjury—we held that these values were “not implicated by voir dire because no witnesses testified.” Id. And as to the first and second values—ensuring a fair trial and reminding the prosecutor and judge of their responsibility to the accused and the importance of their functions—we held that “limiting the presence at the voir dire proceedings to only the attorneys, judge, defendant, and prospective jurors for one afternoon did not subvert these values.” Id. We emphasized:
Even if the trial judge had not excluded Gibbons‘s mother from the courtroom, she would not have been able to watch a significant portion of what occurred during that afternoon session because the private interviews of the individual jurors as to their reasons for inability to serve were justifiably conducted in an adjacent room out of the hearing and sight of the other jurors. Further, nothing of significance happened during the part of the session that took place in the courtroom. The judge read the indictment, asked questions of a few jurors, and provided administrative details on what the jurors should expect if chosen. No prospective jurors were excused except with the consent of both parties. No peremptory challenges were made, and no obligations were asserted by either party to anything that occurred. The next morning, when voir dire resumed, Gibbons‘s mother was allowed to watch the proceedings.
We reach the same conclusion here. Because the closed proceedings in the instant case were limited to voir dire, the third and fourth values were not implicated. And as to the first and second values, these too were not implicated because “nothing of significance happened.” Id. The district court gave prospective jurors general information about Gupta‘s case, described the charging indictment, and presented jurors with a written questionnaire listing possible grounds for ineligibility. The court also conducted a short sidebar discussion with each prospective juror concerning their responses to the written questionnaire (a process that would not
We find no material difference between these facts and those in Gibbons. Indeed, the only actual difference is that in the instant case, the parties exercised their peremptory challenges while the proceedings were closed. But because this was done outside the presence of the venire, even if Gupta‘s brother and sister had been in the courtroom, they would not have been able to observe these challenges.2 Additionally, we reject Gupta‘s attempt to distinguish Gibbons by characterizing the exclusion in that case as “partial and temporary.” Although the exclusion in Gibbons was limited to the first afternoon of voir dire, and not, as in the instant case, to all of the voir dire proceedings, we are not persuaded that this distinction warrants a different outcome. That the public was not excluded for all of voir dire in Gibbons was because the jury selection began in the afternoon, leaving insufficient time to complete voir dire before the end of the day. In Gupta‘s case, jury selection began in the morning, which allowed the court to complete voir dire that same day. Regardless, nowhere in Gibbons did we intimate that our holding was limited to situations involving a partial, as opposed to a complete closure, of the voir dire proceedings. The focus of our analysis was what transpired during the closed proceedings. And because what transpired during voir dire in Gibbons did not implicate the values underlying the public trial guarantee, and because voir dire in Gibbons and the instant case are substantially identical, we see no reason to reach a different conclusion.3
Finally, we identify a broader, institutional reason that the exclusion here was trivial. Historically, public trials emerged in England in response to the excesses and abuses of secret tribunals. See In re Oliver, 333 U.S. 257, 266-70, 68 S. Ct. 499, 92 L. Ed. 682 (1948) (discussing the evolution of the public trial guarantee); see generally Akhil Reed Amar, Sixth Amendment First Principles, 84 GEO. L.J. 641, 677-81
There is no question that a secret trial, insulated from the tempering effect of public witnesses, subverts the core values of the public trial guarantee. But if a public presence best ensures a fair criminal proceeding, then voir dire, by its very nature, is always “subject to contemporaneous review in the forum of public opinion,” In re Oliver, 333 U.S. at 270, because the venire is drawn from the public itself. Indeed, from their inception, jury trials guaranteed public scrutiny of the criminal process because “the presence of a jury . . . insured the presence of a large part of the public.” Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 505 (1984) (quoting Radin at 388); see Radin at 388 (“We need scarcely be reminded that the jury was the patria, the ‘country’ and that it was in that capacity and not as judges, that it was summoned.“). And unlike the jury, which loses its status as mere spectator and becomes an impartial trier of fact once empaneled, members of the venire remain public witnesses during much of the voir dire proceedings, listening to the court‘s questions and observing the conduct of counsel, until such time as they are chosen for the jury, disqualified, or excused.4 For this reason, even where a trial court unjustifiably excludes spectators from the courtroom during voir dire, the presence of the venire lessens the extent to which that closure implicates the defendant‘s public trial right because the venire, derived from and representative of the pub-
We do not mean to say, however, that voir dire is not subject to the same Sixth Amendment guarantees as other parts of a criminal trial; Waller, Presley, and our own precedent make clear that a defendant‘s right to a public trial unquestionably extends to voir dire. We emphasize only that in many cases the presence of the venire as a public witness safeguards the two relevant values of the public trial guarantee—ensuring a fair trial and reminding the prosecutor and judge of their responsibility to the accused and the importance of their functions. See Gibbons, 555 F.3d at 121. Indeed, there is little basis to presume that the impartial, public citizens comprising a venire would be any less vigilant in ensuring that the voir dire was fair and that the judge and the prosecutor remained cognizant of their responsibilities as would ordinary spectators observing the voir dire from the back of the courtroom.
II. The Impact of Presley v. Georgia
Alternatively, Gupta argues that we need not consider whether the “triviality exception” applies to the exclusion in his case because that exception is no longer valid after Presley. We disagree.
Presley presented the narrow question of whether the Supreme Court of Georgia correctly applied Waller in finding that a trial court‘s exclusion of a spectator during voir dire was proper. Presley had argued before the Supreme Court of Georgia that prior to excluding the spectator from the courtroom, the trial court was required to consider alternatives to closure. See 130 S. Ct. at 723. But the Supreme Court of Georgia held that based on its review of Supreme Court precedent, it was not clear “whether a court must, sua sponte, advance its own alternatives to [closure],” and that “Presley was obliged to present the court with any alternatives that he wished the court to consider.” Id. at 723-24 (alteration in original). The Supreme Court reversed in a brief per curiam opinion:
In upholding exclusion of the public at juror voir dire . . . the Supreme Court of Georgia concluded, despite our explicit statements to the contrary, that trial courts need not consider alternatives to closure absent an opposing party‘s proffer of some alternatives. While the Supreme Court of Georgia concluded this was an open question under this Court‘s precedents, the statement in Waller that “the trial court must consider reasonable alternatives to closing the proceeding” settles the point.
Id. at 724 (quoting Waller, 467 U.S. at 48, 104 S. Ct. 2210).
Presley did not expand the Supreme Court‘s precedent with respect to the public trial guarantee. See id. at 723-24 (“The conclusion that trial courts are required to consider alternatives to closure even when they are not offered by the parties is clear . . . from this Court‘s precedents.“). It simply reaffirmed the holding in Waller. And because the Supreme Court held that the Supreme Court of Georgia had misapplied Waller from the onset, it had no occasion to consider a “triviality exception” to the public trial guarantee. Accordingly, because it is undisputed that the district court‘s exclusion of Gupta‘s brother and girlfriend did not meet the four-part Waller test, and because Presley simply reaffirms that test, Presley does not alter the “triviality exception” in Peterson and our other cases, under which, notwithstanding an unjustified closure, vacatur of a defendant‘s conviction is not warranted if the closure did not subvert the values underly-
CONCLUSION
To summarize, we hold: (1) although the district court‘s exclusion of Gupta‘s brother and girlfriend during voir dire failed to meet the four-factor test set forth in Waller (and now Presley), the exclusion was too trivial to implicate Gupta‘s Sixth Amendment right to a public trial; and (2) Presley does not alter our “triviality exception” to the public trial guarantee.6
We affirm the judgment of the district court.
B.D. PARKER, JR., Circuit Judge, dissenting:
This case involves the undisclosed exclusion of the public by the trial judge from the entire voir dire in a criminal trial in a federal court. The closure was not requested by anyone and the government readily concedes that the courtroom should not have been closed. Neither defense counsel nor government counsel was advised that the closure had occurred. The closure did not come to light until nearly two years after the trial, and the circumstances surrounding the closure did not come to light until this Court remanded to the district court for fact finding.
The excuses generated from the district court for the closure—insufficient courtroom capacity and the need to protect veniremen from contact with the public—do not withstand even the most casual scrutiny. Adding insult to serious constitutional injury, the majority air brushes all of this as “trivial,” reasoning that nothing of significance happened during voir dire and that the veniremen were adequate proxies for the excluded public. This reasoning, which is inconsistent with Supreme Court law and which would be difficult to take seriously were not the stakes so large, insults the values inherent in the Sixth Amendment. Although other courts have recognized narrow de minimis exceptions to the Sixth Amendment‘s public trial right, no other court has come close to blessing an undisclosed, complete, unrequested, and intentional closure of an entire voir dire. Because the majority‘s approach is misguided and dangerous, I respectfully dissent.
The facts are undisputed. Jury selection took place on March 24, 2008, beginning at 9:45 a.m. Before the proceedings commenced, the district judge, unbeknownst to counsel, directed her deputy to tell anyone who was not a prospective juror to leave the courtroom for the duration of voir dire. Gupta‘s brother and girlfriend and any other spectators present were required to leave. Long after the fact, when the closure came to light, the district court, at our direction, offered two purported justifications for excluding the
With the courtroom closed, the judge, the prosecutors, and defense counsel set about picking a jury. Around midday, the court broke for lunch. Voir dire resumed at 2:15 p.m., and concluded in the late afternoon, when the clerk read the names of the fourteen men and women who had been selected. When Gupta‘s brother and girlfriend were permitted to reenter the courtroom, the jury had already been seated for opening statements. After a trial that lasted about a week, Gupta was convicted of preparing and filing fraudulent immigration documents, and sentenced to fifty-one months in prison.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a . . . public trial.”
It is well established that the violation of the right to a public trial is a “structural” error, Waller v. Georgia, 467 U.S. 39, 50 n. 9, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984), because it “affect[s] the ‘framework within which the trial proceeds,’ ” United States v. Marcus, 560 U.S. 258, 264, 130 S. Ct. 2159, 2164, 176 L. Ed. 2d 1012 (2010) (quoting Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997)). Therefore, a violation of the public trial right is not subject to “harmless error” review. Gibbons, 555 F.3d at 119 (“[T]he violation of a defendant‘s right to a public trial is not justified by a finding that the error was harmless.“). Instead, a structural error renders a criminal trial fundamentally unfair and “requires automatic reversal.” Washington v. Recuenco, 548 U.S. 212, 218-19, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006).
However, this Court recognizes a “triviality” exception to the public trial right, pursuant to which not “every temporary instance of unjustified exclusion of the public—no matter how brief or trivial, and no matter how inconsequential the proceedings that occurred during an unjustified closure—[will] require that a conviction be overturned.” Gibbons, 555 F.3d at 120. Before today, the exception was available only in limited circumstances. See, e.g., id. at 114, 121 (courtroom was closed for the first afternoon of a voir dire that spanned several days); Carson v. Fischer, 421 F.3d 83, 92-93 (2d Cir. 2005)
As these cases make clear, the exception applies only rarely and to truly trivial closures. Gibbons provided several examples of what this narrow exemption was intended to cover: proceedings lasting a few minutes after a lunch recess in the absence of a defense lawyer but where no evidence of consequence to his client was adduced; an ill-advised closure that lasted a couple of minutes during which nothing of consequence occurred and the court, quickly realizing its mistake, lifted the closure; or where the closure occurred during an important part of the proceedings but was inadvertent and the consequence of “an administrative malfunction.” 555 F.3d at 120-21. In Gibbons itself, the case on which the majority relies, the trial judge closed the courtroom, on the record, for only the first afternoon of a jury selection that went on for several days. 555 F.3d at 114-15. Here, by contrast, the closure lasted for the entirety of jury selection, and was undisclosed.
For a number of reasons, the triviality exception simply was never meant to apply, and should not now be applied, to such a closure. A trial judge‘s undisclosed exclusion of the public from jury selection, without the knowledge or assent of the accused or the lawyers, seriously undermines the basic fairness of a criminal trial and the appearance of fairness so essential to public confidence in the system. Sixth Amendment jurisprudence teaches that the selection of jurors has presumptively been open since the birth of the jury trial, giving assurance to those not in attendance that their fellow citizens are able to observe the proceedings and thereby enhancing public confidence in the criminal justice system. Press-Enter., 464 U.S. at 508, 104 S. Ct. 819 (“The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known.“). Transparency and confidence go hand in hand: citizens in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. See Richmond Newspapers v. Virginia, 448 U.S. 555, 572, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980).
It is instructive to consider the circumstances in which courts have, to date, deemed voir dire closures to be merely trivial, or de minimis. I have located eighteen cases in which a federal or state court has found that a closure during voir dire, though improper, was too trivial (or de minimis) to warrant overturning a conviction. As one would expect, in all of those cases, the closure lasted only for part of voir dire and/or was limited to certain spectators, and in many instances the closure was inadvertent.7 Never, until today,
As a purported justification for the closure the majority first asserts that the closure was brief and “nothing of significance happened” during that time. Majority Op. at 868-69. They are correct that the closure lasted for only several hours, but what happened during that time was the entire process of selecting a jury. From the judge‘s introductory remarks through the empaneling of the jurors, the courtroom was closed to Gupta‘s family and to the public. Every day, in courts across this Circuit, juries are chosen in unremarkable proceedings that last but a few hours. The majority‘s holding suggests that all such proceedings are inconsequential and can permissibly be closed to the public. Even more disturbing, the logic has no apparent end. Many cross-examinations, arguments to the court, statements to jurors, and instructions to defendants and to counsel are not especially long. Now, apparently, the summary exclusion of the public from such proceedings can be excused so long as what occurred behind closed doors was brief and “nothing of significance happened.” And the majority‘s approach is completely unable to accommodate the facts that the closing at issue was both advertent and undisclosed.
The majority also asserts that the closure was justified because the public was present in the courtroom for voir dire—in the form of the potential jurors. Id. at 868-71. This reason makes no sense to me. The long-established tradition of open voir dire contemplates ensuring that members of the general public, external to the judicial process, have the opportunity to observe the proceedings. As the Supreme Court found in Press-Enterprise, “beginning in the 16th century, jurors were selected in public,” 464 U.S. at 507, 104 S. Ct. 819 (emphasis added), meaning that the doors of the “towne house” or other “common place” were open to “so many as will or can come so neare as to heare it,” id. at 506-07, 104 S. Ct. 819 (emphasis deleted) (quoting T. Smith, De Republica Anglorum 96 (Alston ed. 1906)). By contrast, a voir dire is neither “public” nor “open” if the only members of the public allowed to attend are those who, having received juror summonses, are required to be there and part of the judicial process itself. Indeed, if the presence of potential jurors were sufficient to “safeguard[]” the values underlying the Sixth Amendment, Majority Op. at 870-71, it would seem that spectators could always be excluded. Furthermore, the assertion that the presence of the venire alleviated the Sixth Amendment concerns in this particular case ignores the fact that the potential jurors sitting in the courtroom did not (of course) include Gupta‘s brother and girlfriend, who had been forced to leave. Cf. Smith v. Hollins, 448 F.3d 533, 539 (2d Cir. 2006) (noting our “strong devotion to the preservation of [a defendant‘s] right to have family and friends present at his trial“).
This case is not, in my view, close. A criminal defendant‘s right to a public trial extends to voir dire. Therefore, the intentional, unjustified, and undisclosed closure of an entire voir dire is necessarily a non-trivial structural error that violates the Sixth Amendment and requires reversal. The result in this case is so self-evidently inconsistent with Supreme Court jurisprudence that I would hope that it becomes the subject of certiorari.
Docket No. 10-1372-cv.
United States Court of Appeals, Second Circuit.
Argued: Aug. 6, 2010. Decided: June 20, 2011.
Notes
Additionally, we reject the dissent‘s attempt to extrapolate our holding beyond the narrow confines defined in this opinion. See Dissenting Op. at 875-76 (“Now, apparently, the summary exclusion of the public . . . can be excused so long as what occurred behind closed doors was brief and ‘nothing of significance happened.’ “). As made clear in Peterson and subsequent decisions, application of the triviality exception requires a fact-specific analysis of the unique circumstances in a given case to determine whether a particular exclusion implicates a defendant‘s public trial right. Nothing in our opinion alters this analytical framework—indeed, it simply reaffirms the rule articulated in Gibbons and applies it to the particular facts before us in this case.