United States of America, Appellee, v. Ralph Joseph Thunder, Jr., Appellant.
No. 04-3780
United States Court of Appeals FOR THE EIGHTH CIRCUIT
February 22, 2006
Submitted: November 15, 2005
ARNOLD, Circuit Judge.
Ralph Thunder, Jr., appeals his conviction on three counts of aggravated sexual abuse, see
Mr. Thunder was accused of raping his daughter and her half sister and attempting to rape his daughter‘s aunt. At the time of trial, two of the alleged victims were twelve years old and the other was eleven. The government moved to close the
The government implies in its brief that requiring children to testify in public in this kind of case could only expose them to voyeuristic or prurient interests. We believe that this argument is untenable. We have an open government, and secret trials are inimical to the spirit of a republic, especially when a citizen‘s liberty is at stake. The public, in a way, is necessarily a party to every criminal case. The sixth amendment speaks in unqualified terms and provides that in “all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”
The right to a public trial has long been viewed as “a safeguard against any attempt to employ our courts as instruments of persecution.” In re Oliver, 333 U.S. 257, 270 (1948). Even the Elizabethan Star Chamber was open to the public. 5 William Holdsworth, A History of English Law 156 (3d ed. 1973). “Public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the factfinding process, with benefits to both the defendant and to society as a whole.” Globe Newspaper, 457 U.S. at 606. An open trial assures that the proceedings are conducted fairly and discourages perjury, misconduct, and decisions based on partiality or bias. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569 (1980). Even though most community members do not attend trials, the knowledge that they could and that
While many of the cases dealing with the constitutionality of closing criminal trials address the first amendment rights of the press and public to attend and observe such trials, see e.g., Globe Newspaper, 457 U.S. at 598, the “explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public.” Waller v. Georgia, 467 U.S. 39, 46 (1984). To withstand a defendant‘s objection to closing a trial or any part of one, an order directing closure must adhere to the principles outlined in Press-Enterprise, 464 U.S. at 510, which holds that “the presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” See Waller, 467 U.S. at 47. Even if the government makes out an interest that would support closure, “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.” Id. at 48.
As we have said, the district court‘s decision to grant the government‘s motion to close the courtroom during the alleged victims’ testimony followed no hearing and was based on no particular findings. The district judge simply stated that he “certainly [had] no problem with closing the courtroom.” This action failed to give effect to the stringent requirements that the Supreme Court‘s public trial cases have imposed. The district court‘s order was not narrowly tailored to the advancement of any compelling government interest or, in fact, to any identified interest at all. We therefore conclude that Mr. Thunder‘s sixth-amendment rights were violated. The government does not argue that the error was harmless, or, indeed, that it even could be, so we do not reach the issue.
We also observe that
Reversed.
