State v. Clifford , 135 Ohio App. 3d 207 ( 1999 )

The courtroom door must remain open. The Ohio Constitution states, as does the Sixth Amendment to the United States Constitution, that a defendant has the right to a "public trial."¹ The framers of the Ohio Constitution did not add rights as amendments — they put them right up front in Article I. We have to believe that they meant what they said.

While the issue in this case arose not in a "trial" but in a motion hearing, "trial" includes all substantive parts of courtroom litigation.² Thus, the fact that the problem arose in a pretrial hearing is not material.

The requirement that trials be open is not only a criminal defendant's right — it is also the right of the public to see that justice is done. The cases concerning public access to the courts are grounded also in the First Amendment to the United States Constitution and Section 11, Article I, of the Ohio Constitution, the "freedom of the press" provisions. The courtroom door may be closed to anyone only when absolutely necessary, after the trial judge makes a specific finding to that effect. Any closure order must be as narrow as possible under the circumstances. (I also believe that the same rules apply to civil proceedings, because a trial is a public event that is of interest to the entire community — the disinfectant of sunlight applies equally to criminal and civil trials.³)

All court proceedings are presumptively open to everyone.⁴ It is the trial judge's duty to enforce this policy of openness, over the objection of either side, or even despite the agreement of both sides to close a proceeding. The judge's role is to secure not only the parties' rights, but also the right of the public to open proceedings.

But the trial judge must control the courtroom. Disruptive persons, whether they be members of the public, media representatives, or friends, family or supporters of the parties, must be dealt with. The right to a trial means the right to an orderly trial. If any people, by noise or behavior, disrupt the proceedings and fail to desist after warning, they may be removed from the courtroom. No one's rights are protected if the judge cannot even hear the testimony. Still, the removal order must be directed at specific persons — those found to be causing the disruption.

The problem in this case is that we cannot tell from the record what, if anything, happened to cause a disturbance. An appellate court is limited to the record before it. While it is possible that people were talking, or even yelling, in the courtroom, there is nothing in the record concerning their behavior. After only the colloquy set out in the lead opinion, the judge ordered everyone on one side of the room removed. The dissent states that the record provides support for the removal. I am unable to discover where this alleged support lies. Constitutional rights may not be abrogated by wishful interlineation of the record.

To make an appropriate record supporting the removal of unruly persons, the trial judge could have (1) stated the objectionable behavior on the record, (2) given a short warning that disruption would not be tolerated, and then (3) if the behavior persisted, stated that fact on the record and ordered the specific culprits removed. It may be that all those removed were causing problems, but there is nothing in the record to demonstrate that any of them were. Without such a reflection on the record, the removal of spectators violated the defendant's and the public's (the ejected spectators were members of the public) rights.

The trial judge may have been justified in removing some or all of those ejected. But we simply cannot find anything in the record to support the removal. Because we are bound by the record, we must reverse.

¹ Section 10, Article I, Ohio Constitution.

² See Waller v. Georgia (1984), 467 U.S. 39, 46-47,104 S.Ct. 2210, 2215-2216; State ex rel. The Repository v. Unger (1986),23 Ohio St.3d 418, 504 N.E.2d 37 (right of public trial extends to pretrial proceedings).

³ NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (July 27, 1999), 86 Cal Rptr 778, 1999 Cal. Lexis 4634, Cal. S.Ct. No. S056924.

⁴ Some hearings are restricted by statute. See, e.g., R.C.3107.17 (adoption). And deliberations, whether of a court or of a jury, are closed. But these are exceptions, and they do not negate the rule that court proceedings are presumptively open.