Brief Bank # B-843 (Re: PG VII(C)(35) [Substantive Constitutional Issues: Public Trials].)
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NOTE: The text of the footnotes appear at the end of the document.
Date of Brief: February 1986
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA, ) Crim. 00000
)
Plaintiff and Respondent, ) (Yuba County)
) (No. 0000)
)
vs. )
)
JOHN DOE, )
)
Defendant and Appellant. )
___________________________________)
Appeal from the Judgement of the Superior Court
State of California, County of Yuba
Hon. Richard A. Shoenig, Judge
APPELLANT’S SECOND SUPPLEMENTAL BRIEF
TOM LUNDY
Attorney at Law
1275 Fourth Street, 4260
Santa Rosa, CA 95404
(707) 538-1305
III
THE “READ-BACK” AND VALIUM BOTTLE PROCEEDINGS ALSO VIOLATED APPELLANT’S RIGHT TO A “PUBLIC TRIAL” (U.S. CONST. SIXTH AMEND, CALIF. CONST., ART. I S15.)
Because the “read-back’ and Valium bottle proceedings were not held in open court appellant’s state and Federal constitutional rights to a ‘public trial’ were implicated. [Footnote 1]
A. The Right To Public Trial Applies To The Entire Trial And The Right Is Violated By Closure Of Any Part 0f the Trial Absent Waiver of Compelling Necessity.
The right to public trial is deeply rooted in the common law, is “universally regarded by state and federal courts as basic and substantial,” and has “long been regarded as a fundamental right of the defendant in a criminal prosecution. (State v. Lawrence (1969) 167 NW2d 912, 913, and authorities cited therein.) Modern courts recognize that an open trial is not “merely a safeguard against unfair conviction …” but acts as “la check on judicial conduct and tends to improve the performance of both parties and the judiciary.” (RoVinsky v. McKaskle (5th Cir. 1984) 722 F2d 197, 201-02; U.S. v. Chagra (5th Cir. 1983) 701 F2d 354, 363.)
“The open trial thus plays as important a role in the administration of justice today as it did for centuries before our separation from England.”) Press-Enterprise Co. v. Superior Court (1984) 404 U.S. 501, 508.
Because of this fundamental impact of public trial upon “both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system,” the closure of any criminal proceeding “must be rare and only for cause shown that outweighs the value of openness. [footnote omitted.]” (Press-Enterprise, supra, at 508-09.) Moreover, the right to a public trial “may be overcome only by an overriding [state] interest” (Press-Enterprise, supra, 521) and “no state interest, however compelling, can sustain the exclusion of press and public from part of a trial, absent findings of necessity articulated in the record.” (Rovinsky v. McKaskle, supra, 722 F2d at 200.)
This constitutional guarantee “applies to the entire trial from the empaneling of the jury to the rendering of its verdict.” (State v. Lawrence, supra, 167 NW2d 912, 915.) Absent waiver or a satisfactory determination of necessity, a criminal trial must be “public in all respects” (People v. Hartman (1984) 103 C 242, 245) and “at all times.” (People v. Frutos (1984) 158 CA.3d at 987.)
From these principles it follows, and has been consistently held, that “exclusion of the public from a part of the trial” may violate the public trial guarantee. State v. Lawrence, supra, 167 NW2d at 915 – instruction of jury; see also, U.S. v. Chagra (5th Cir. 1983) 701 F2d 354 – pretrial motion to reduce bail; U.S. ex-rel. Bennett v. Rundle, (3rd Cir 1969), 419 F2d 599, 603 – suppression of evidence hearing; U.S. v. Sorrentino (3d Cir. 1949) 175 F2d 721, cert. denied 338 U.S. 868, rehg. den. 338 U.S. 896 – jury selection.) And while there appear to be few cases which have directly considered application of the public trial right to proceedings during jury deliberations (but see, Walker v. U.S., supra 322 F2d at 438 (dis. op.)), it has been firmly held that a proceeding which “is held as a part of the trial and after the jury has been sequestered, falls within the constitutional guarantee and must be conducted as a public trial.” (U.S. Ex. Rel. Bennett v. Rundle supra, 419 F2d at 606.)
In sum, absent a strong showing of necessity articulated upon the record, or waiver – neither of which occurred in the present case – it must be concluded that the public trial guarantee applies to proceedings after the jury has begun deliberations, regarding the disposition of newly discovered evidence and the reading back of testimonial evidence.
B. The Public Trial Guarantee Applied To The Proceedings Held In The Present Case
In the present case, there were actually four separate judicial actions or proceedings during jury deliberations which were not conducted in open court:
1. In chambers revelation, discussion and ruling upon the jury’s note regarding discovery of the Valium Bottle. (RT 1922-3, CT 155.)
2. Informing the jury, by note, that the Valium bottle should be considered as evidence. (RT 1923, CT 155, Jury Note attached, hereto, as Appendix A.)
3. In chambers, revelation, discussion and ruling upon the jury’s note requesting a ‘read-back’ of testimony. (RT 1923, CT 155.)
4. Read-back of testimony in jury room. (RT 1923.)
There is no reason to consider these proceedings, which concerned the disposition and re-representation of important evidence to the jury, to be any less worthy of the public trial guarantee than the various types of proceedings to which the right has already been applied. (e.g., pretrial bail hearing, suppression of evidence motion, rendition of instructions, etc.) In fact, the public trial guarantee is particularly applicable to the proceedings at issue here because they concerned “matters advanced for the consideration of the triers of fact …” (People v. Teitelbaum (1958) 163 CA2d 184, 206), and bore a relationship to “the merits of the charge [and] the outcome of the prosecution…” (Rovinsky v. McKaskle, supra, 722 F2d at 201.)
Additionally, in the case of the “read-back”, the concerns about the potential for undue emphasis during the reading provide a rationale for openness analogous to that which is applicable to a jury instruction proceeding:
“Publicity may also be said to discourage undue emphasis by the court when charging the jury. When instructing the jury as to the law applicable to a given case, overemphasis by repetition or voice inflection could, of course, materially affect jury consideration of the matter, and such undue emphasis would not be reflected by the printed copy of the instructions later available to the public.” (State v. Lawrence, supra, 167 NW2d at 914.)
In sum, the public trial guarantee was clearly applicable to the closed proceedings held in the present case.
C. There Was No Waiver Or Satisfactory Showing Of Necessity
As to all four of the proceedings at issue here, there was neither an adequate showing of waiver nor of necessity sufficient to justify exclusion of the public from the proceedings and judicial actions.
1. Any Waiver By Trial Counsel Was Insufficient Because Mr. Doe Was Not Present
It has been held that the right to public trial need not be expressly waived by the defendant (People v. Hines (1964) 61 C2d 164, 172.) Hence, waiver may be inferred without any personal acknowledgment from the defendant, when the defendant fails to object to the closure or to counsels acquiescence therein. (E.g. People v. Moreland (1970) 5 CA3d 588, 595 – co-defendant’s counsel moved for closure during testimony but Moreland refused the Court’s invitation to object; Martineau v. Perrin (1st Cir. 1979) 601 F2d 1196 – defendant’s attorney informed defendant that he had discovered the courtroom doors were locked and defendant didn’t object even though attorney stated that he could do so.)
However, the situation is qualitatively different when the defendant is absent and, thus, has no opportunity to object. To be effective, a waiver of a public trial must be “intentional and meaningful” (Annot. 61 LEd 2d 1018 , 1030) and the waiver of such a constitutional right is “not lightly inferred.” (Rovinsky v. McKaskle, supra, 722 F2d at 200.) Plainly stated, one cannot knowledgeably and intentionally waive a matter about which he has no knowledge. To the contrary, if the defendant is absent “he is to be considered as standing upon all his legal rights, waiving none of them.” (Wade v. State, supra, cited at 50 ALR 2d 203.)
2. There Was No Showing Of Necessity
There certainly was no reason why all of the proceedings and judicial actions at issue here could not have been conducted in open court. Of course, while the jury would properly have been excluded from the discussion of its notes, these proceedings could and should have been conducted and resolved in open court rather than by private proceeding and communication to the jury.
Similarly, it has been recognized that a “read-back” should be conducted in open court. (See, pp. 11-12, herein.),
In any event, even if there had been some compelling necessity for closure of the proceedings, the record fails to contain the required articulation thereof.) Press – Enterprise, supra, 464 U.8. at 510.)
D. The Denial Of The Right To Public Trial Requires Reversal
It is widely recognized that a violation of the right to a public trial is “inherently prejudicial” and requires reversal per se (Public Trials, (Annot.) 61 LEd 2d 1018, 1026-27.)
“…the right is both primary and instrumental: not merely a method to assure that nothing untoward is done clandestinely but a guarantee against the very conduct of private hearings … Even absent a showing of prejudice, infringement of the right to a public trial exacts reversal as the remedy.” Rovinsky v. McKaskle, supra, 722 F2d at 202; see also, People v. Byrnes, (1948) 84 CA.2d 72, 79.)
FOOTNOTES:
“In all criminal prosecutions, the accused shall enjoy the right to a… public trial …” (U.S. Const. Amend. 6.)
“The defendant in a criminal case has the right to a … public trial …” (Calif. Const. Art. 1 §15.)
