Here we are, pushing forth into the month of May and as yet we are not even through the first chapter of this monstrous CCP, this albatross, this millstone, this student-loan of all possible Codes. But this month we will do our best, as we always do, to chug ahead, in this never-ending pandemic, to Art. 1.24, “Public Trial.” “The proceedings and trials in all courts shall be public.” Doomp. End of sentence. Of course, that’s not the end of the real sentence, though. Like most of our unlucky clients, it’s what comes after the sentence that does you in…the parole/annotations.
Lily v. State, 365 S.W.3d 321 (Tex. Crim. App. 2012), tells us about how judges can allow closure of “an accused’s trial or any part thereof.” (1) The party seeking to close the proceeding must advance an “overriding interest” that he is likely to be prejudiced (so we know the court can’t do this sua sponte, at least); (2) the closure must be no broader than it has to be to protect that interest; (3) the Court has to consider reasonable alternatives to closure; and (4) it has to make findings to support the closure. That’s a lot of steps.
Interestingly, the right to a public trial isn’t only held by the defendant under the sixth amendment – it’s also held by the public under the first amendment. Presley v. Georgia, 558 U.S. 209 (2010). In Presley, the Court closed voir dire proceedings to the defendant’s uncle, over defense objection. The court said what a lot of courts, I think, would like to say, which was essentially: “Look, it’s just during voir dire, and we don’t really have a lot of room. I don’t want him mingling with the jury and I don’t want him taking up space, so just tell him to come back for opening statements.” Presley was convicted and appealed based on the exclusion of his uncle from jury selection. The ever-stodgy Supreme Court of Georgia ruled against him. Guess what, though? SCOTUS struck them down, ruling that trial courts are “obligated to take every reasonable measure” to keep trials open to the public, which could include things that sound pretty labor-intensive to me, including, “dividing the jury venire panel to reduce courtroom congestion.” Presley at 212.
There is hope, dear reader, for Georgia, yet.
Your Darling Allison pretends to remember the days of the King’s (or Queen’s) Star Chamber, back in the Tudor days, in which those muckety-mucks too effete to be tried in lower courts could be comfortably tried in private by the biggest of wigs. Though in theory this seemed like a good idea, like many good ideas it quickly turned into a literal torture chamber where high-ranking enemies of the Crown were quietly, un-due-processily, beaten, branded with irons, and forced to have their… various parts cut off. Yes, they carried out these gruesome punishments on very expensive rugs in privy chambers.
It was probably the Star Chambers and their echoing injustices that terrified our Founding Fathers into including the right to a public trial into our constitution. My dear friend William Blackstone commented that it kept everyone honest to have public trials, and it prevented judges from overstepping as much. Maybe that is true, or maybe sitting and watching trials is just a long-standing form of human entertainment, akin to Roman bread and circuses.
But sometimes as we sit in court checking our phones and waiting for the ever-later chance to approach the bench and deal with our cases, we should remember to pay attention to what’s going on. To sit with arms crossed as a silent and effective observer when judges are doing the wrong thing. To take notes, obviously. To raise an eyebrow and stare down the State as a member of the great and powerful mob, exercising our right to be present.