Williams, April Loreace

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0504-20
APRIL LOREACE WILLIAMS, Appellant
v.
THE STATE OF TEXAS
ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
GUADALUPE COUNTY
NEWELL, J., filed a concurring opinion in which KELLER, P.J.,
and HERVEY, J., joined.
As the Court acknowledges, the United States Supreme Court has
articulated a general framework for determining whether a courtroom
closure violates a defendant’s Sixth Amendment public-trial right. This
Williams Concurring — 2
framework consists of a four-factor analysis through which the reviewing
court considers whether: 1) the party seeking to close the trial advanced
an overriding interest that is likely to be prejudiced; 2) the closure was
no broader than necessary to protect that interest; 3) the trial court
considered reasonable alternatives to closing the proceeding; and 4) the
trial court made findings adequate to support the closure. 1 Rather than
engage in that analysis, the Court adopts the State’s argument that
there was only a partial closure, or a de minimis closure, without
reaching this analysis.
I empathize with this approach because the trial court’s handling
of this situation was very reasonable. Further, the trial court’s decision
to require a single spectator to view the testimony of one witness
through a live video stream satisfies the second, third, and fourth Waller
factors. The closure was certainly no broader than necessary to protect
that interest. And the trial court clearly considered reasonable
alternatives to closing the proceedings by adopting the live-stream
approach. Finally, the record also reveals that the trial court made
findings to support the closure.
1
Waller v. Georgia, 467 U.S. 39, 48 (1984).
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However, I disagree with the Court’s decision to avoid any analysis
of whether the State advanced an overriding interest in closing the
proceedings by saying the trial court’s closure in this case was only de
minimis simply because the family member was “virtually included” via
livestream. This approach effectively holds that satisfying the second
and third Waller factors is enough to authorize a closure of the court
despite a defendant’s right to a public trial. While we have held that the
defendant must show that the court was closed before we engage in
that analysis, we have not held that a showing of a partial closure is no
closure at all. 2 Even when we have acknowledged that other
jurisdictions have applied a less stringent Waller test in the context of a
“partial” closure, we have still recognized the need for the party seeking
the closure to provide some justification for that closure. 3 Indeed,
jurisdictions analyzing a “partial” courtroom closure (as opposed to a
2
Cameron v. State, 490 S.W.3d 57, 68-69 (Tex. Crim. App. 2016) (holding that the burden
was on defendant to first prove that the trial was closed to the public); see also Cameron v.
State, 535 S.W.3d 574, 579 (Tex. App.—San Antonio 2017, pet. ref’d) (holding that defendant
carried his burden to prove that the courtroom was closed when record showed that members
of the defendant’s family were excluded from the courtroom); Lilly v. State, 365 S.W.3d 321,
328-31 (Tex. Crim. App. 2012) (holding that reviewing courts look to the totality of the
circumstances to determine whether a defendant’s trial was closed to the public).
3
See e.g., Steadman v. State, 360 S.W.3d 499, 505 n. 19 (Tex. Crim. App. 2012) (citing
Commonwealth v. Cohen, 921 N.E.2d 906, 111 (Mass. 2010) (noting that a majority of the
federal circuit courts and several state courts still require a showing of a substantial reason
to justify a partial closure).
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“trivial” one) still evaluate the sufficiency of the reason given for the
courtroom closure even though there is some disagreement regarding
how significant the interest must be. 4 The Court cites to no authority
for the proposition that physically excluding a family member from the
courtroom during live testimony is trivial simply because that member
is “virtually included” via livestream.
I believe we should consider the applicability of the less-stringent
“partial” closure standard in this case before rejecting it in favor of the
“triviality” standard we adopt today. Two of the cases the Court
references when discussing this standard seem directly analogous to the
case before us. For example, in Tinsley v. United States, the District of
Columbia Court of Appeals held that protecting the witness and avoiding
4
United States v. Simmons, 797 F.3d 409, 415–16 (6th Cir. 2015) (holding that the
defendant’s right to a public trial was violated by an even partial closure due to the lack of a
“substantial interest” in closing the courtroom to three co-defendants due to concerns
regarding witness intimidation); Garcia v. Bertsch, 470 F.3d 748, 753–54 (8th Cir. 2006)
(considering whether interest in partial closure of courtroom was substantial before denying
habeas relief due to the unsettled nature of the law); United States v. Thompson, 713 F.3d
388, 395–96 (8th Cir. 2013) (holding that the government’s interest in protecting its witness
and the witness’s concern for his own safety justified the partial closing in this case); United
States v. Osborne, 68 F.3d 94, 98–99 (5th Cir. 1995) (upholding partial closure after
determining that protecting a minor from emotional harm is substantial enough reason to
defend a limited closure of the court); People v. Jones, 750 N.E.2d 524, 614 (N.Y. 2001)
(holding that the government met its burden to show an overriding interest in partial closure
of the courtroom based upon safety concerns arising from the co-defendant being “at large”);
Tinsley v. United States, 868 A.2d 867, 876 (D.C. 2005) (holding that record demonstrating
concerns for witness safety and to prevent witness intimidation provided an overriding interest
justifying partial closure of the courtroom); State v. Mahkuk, 736 N.W.2d 675, 685 (Minn.
2007) (holding that defendant’s right to a public trial was violated by partial closure of the
courtroom because the prosecution did not present a sufficient record to establish an
overriding state interest to justify the partial closure).
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intimidation justified the partial closure of the courtroom to the
defendant’s brother and the brother’s friends in the defendant’s murder
trial. 5 Conversely, in State v. Mahkuk, the Supreme Court of Minnesota
held that the prosecution’s concern regarding witness safety and
intimidation did not justify the partial closure of the courtroom to the
defendant’s brother, a high-ranking gang member. 6 Both cases are
more closely analogous to the case before this Court than any of those
involving “trivial” closures.
Indeed, the original purpose of the “trivial” or “de minimis”
exception to a defendant’s open trial right was to address rare situations
involving “brief and inadvertent” courtroom closures. 7 For example,
Peterson v. Williams involved a courtroom closure that was initially
justified under a traditional Waller analysis but inadvertently continued
5
Tinsley v. United States, 868 A.2d 867, 876 (D.C. 2005).
6
State v. Mahkuk, 736 N.W.2d 675, 685 (Minn. 2007).
7
See, e.g., Peterson v. Williams, 85 F.3d 39, 40 (2d Cir. 1996) (holding that an otherwise
justified courtroom closure that inadvertently continued for twenty minutes because of an
administerial mistake was a “brief and inadvertent” closure that did not violate the Sixth
Amendment); see also People v. Jones, 464 P.3d 735, 743-44 (Colo. 2020) (recognizing that
cases such as Peterson focused on “brief and inadvertent” closures); United States v. Greene,
431 F. App’x. 191, 197 (3d Cir. 2011) (applying a triviality standard to court security officer’s
exclusion of family members during voir dire because the trial court was unaware of the
exclusion); United States v. Anderson, 881 F.3d 568, 573 (7th Cir. 2018) (trial continued
after courthouse was locked for the night at 5:00 p.m.).
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for twenty minutes unbeknownst to the trial court or the parties. 8
Similarly, in United States v. Greene, the Third Circuit applied a
“triviality” standard where the defendant’s family members were
wrongfully excluded from the courtroom during voir dire by the bailiff
without the knowledge of the trial court. 9 Even the rare cases applying
the “triviality” standard to otherwise intentional courtroom closures are
easily distinguishable from this case because they involved
administrative matters rather than the development of evidence or
obvious interests justifying the closure that were apparent on the
record. 10 None of the cases cited by the Court that apply the triviality
8
Peterson, 85 F.3d at 40.
9
Greene, 431 F. App’x. at 197.
10
For example, People v. Lujan, 461 P.3d 494, 500 (Colo. 2020) deals with the closure that
occurred during the re-reading of a jury instruction to the jury that had previously been read
twice in open court. Similarly, United States v. Ivester, 316 F.3d 955, 958 (9th Cir. 2003)
dealt with questioning jurors in open court in the presence of the defendant and his attorney
but outside the presence of the spectators because the questioning regarded safety concerns
from the jury about the spectators. Both cases involved administrative matters rather than
the development of evidence. By contrast, the closure in this case involved the live testimony
of a confidential informant, not any administrative matter. Further, Carson v. Fischer, 421
F.3d 83, 94 (2d Cir. 2005) dealt with a situation in which the Waller test was properly applied
on direct appeal regarding a state trial court’s exclusion of everyone from the courtroom but
the defendant’s immediate family. It was only on habeas review that the exclusion of the
defendant’s ex-mother-in-law was deemed trivial. And United States v. Perry, 479 F.3d 885,
887 (D.C. Cir. 2007) dealt with the exclusion of the defendant’s eight-year-old son to protect
the child from the effect of seeing his father on trial. Even though the court of appeals applied
the triviality standard, there was still an obvious and substantial interest justifying the
courtroom closure considered and provided by the trial court.
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standard go as far as the Court does in this case. Comparing all these
cases, I believe this case involves a partial closure, not a trivial one.
There is a presumption in favor of openness that must be
overcome. 11 Analyzing whether Appellant has shown that his interest
in a public trial has been violated by a trivial closure rather than whether
the State presented a substantial justification for that closure flips this
presumption on its head. Instead, we should recognize that a partial
closure may be a reasonable alternative to a complete closure of the
proceedings if it is justified by a showing from the party seeking closure
that keeping the trial open would prejudice a substantial, if not
overriding interest.
I acknowledge that in this case, the State made a paltry showing
in this regard. Nevertheless, I believe the State had at least a
substantial interest in partially closing the court room given that it
appears that the excluded spectator, Appellant’s brother, would be
intimidating to the witness, a confidential informant. Further,
Appellant’s arguments that excluding Appellant’s brother from the
courtroom gave the witness the ability to testify in a “consequence-free
11
Lilly v. State, 365 S.W.3d 321, 328 (Tex. Crim. App. 2012).
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environment” implicitly bolstered the State’s contention that the
brother’s presence would intimidate the witness.
Whatever else can be said about this argument, it still requires
evaluation for some justification of the partial closure. Under the Court’s
holding, however, the State need not make any showing to justify the
closure at all. This holding is far more likely to diminish public trial rights
than holding that the State had a substantial interest in excluding
Appellant’s brother to prevent intimidation of a crucial witness. And if
we are refusing to perform the Waller analysis because doing so would
require a vindication of Appellant’s right to a public trial, then it is hard
for me to agree that the partial closure in this case was trivial. 12
Ultimately, the Court effectively holds that a trial court can convert a
partial closure into a trivial one by simply livestreaming the proceedings
to the excluded members of the public. This “virtual inclusion” rationale
will turn the de minimis exception into a de maximus one that will
swallow the Waller standard whole.
With these thoughts, I concur.
12
Maj. Op. at 26, fn. 17 (“Here, were we to undertake a full Waller analysis, we would be
inclined to agree with the dissent’s view that, given the lack of facts in the record beyond the
prosecutor’s bare assertions alleging witness intimidation, the State failed to demonstrate
how this interest would have been prejudiced by allowing Appellant’s brother to remain in the
courtroom.”).
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Filed: September 28, 2022
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