United States v. Gupta, No. 09-4738-cr (2d Cir. June 17, 2011) (Walker, Parker, Hall, CJJ)
Anyone who has ever selected a jury in the Southern District knows that the typical voir dire there is a perfunctory affair indeed: a few questions about potential bias, a few about household composition, then you exercise your challenges and open after lunch. Perhaps that’s why the panel majority here held that the exclusion of the entire public for an entire SDNY voir dire was covered by the circuit’s “triviality exception” to the Sixth Amendment right to a public trial.
Before jury selection began at Gupta’s immigration fraud trial, the district court closed the courtroom to the public, preventing – at a minimum – Gupta’s girlfriend and brother from attending. The court acted without notice to the parties and, when later called upon to do so, gave two reasons for the closure: the need to “accommodate the large number of jurors in the venire” and to protect the members of the venire from having contact with any members of the public.
The majority had no trouble finding a Sixth Amendment violation – even the government agreed that the court’s reasons for the closure violated the four-factor test of Waller v. Georgia. But the majority also held that the Second Circuit’s so-called “triviality exception” covered this situation.
The court has been using this exception since 2005; as the court described it then, the exception does not look for prejudice or harm to the defendant. Rather, it looks to “whether the actions of the court and the effect that they had on the conduct of the trial deprived the defendant … of the protections conferred by the Sixth Amendment.” In other words, the court asks whether a closure undermines the values that the Sixth Amendment was intended to protect.
A few years back, in a habeas case, the court used this exception to avoid finding structural error where the defendant’s mother was excluded from a portion, but not all of, the voir dire. See Structural Failure, posted February 6, 2009. The majority here found that there was no difference between a partial voir dire closure and the closure of the entire proceeding. Either way, “nothing of significance happened” in the absence of public scrutiny, and this was true whether the closure was for all of, or only part of, jury selection.
The majority also identified a “broader, institutional reason” for finding the closure “trivial”: here members of the public – the venire itself – were present. And, according to the majority, “members of the venire remain public wittneses during much of the voir dire proceedings.”
Finally, the majority rejected the argument that a 2010 Supreme Court decision, Presley v. Georgia, invalidated the triviality exception. In Presley, the Georgia Supreme Court had found no Sixth Amendment violation where the trial judge excluded the defendant’s mother from the voir dire, because the defendant did not present the trial court with alternatives to the closure. The Supreme Court reversed, holding that trial courts are not excused from Waller’s requirement that they consider alternatives merely because the defendant did not suggest any.
As the majority here saw it, since all the Court did in Presley was conclude that the state misapplied Waller “from the onset,” it had “no occasion to consider a ‘trivilaity exception’ to the public trial guarantee.”
The majority’s opinion prompted a stinging rebuke from Judge Parker in dissent. To Judge Parker, there was nothing at all “trivial” about the closure here. He first noted the exception “was never meant to apply, and should not now be applied” to the “entirety of jury selection,” particularly where, as here, the closure was undisclosed to the parties. “A trial judge’s undisclosed exclusion of the public from jury selection, without the knowledge or assent of the accused or the lawyers, seriously undermines the basic fairness of a criminal trial and the appearance of fairness so essential to public confidence in the system.”
Judge Parker then surveyed all of the reported decisions holding that a closure during voir dire was too trivial to warrant reversing a conviction. He concluded that in all of them the closure was (1) for only part of the voir dire, (2) limited to certain spectators, or (3) inadvertent. “Never, until today, has any court held that a judge’s intentional, unjustified, and undisclosed exclusion of the public for the entirety of voir dire can be brushed aside as a merely ‘trivial’ affront to the Sixth Amendment.”
Judge Parker also took issue both with the notion that “nothing of significance happened” – since what happened was “the entire process of selecting the jury” – and that the right to a public trial was protected because the prospective jurors were present. “This reason makes no sense” because the panel members had received summonses and were “required to be there and [be] part of the judicial process itself.”
Judge Parker concluded by characterizing the result here as “so self-evidently inconsistent with Supreme Court jurisprudence that I would hope that it becomes the subject of certiorari.”