Structural Failure

Gibbons v. Savage, No. 07-3306-pr (2d Cir. January 28, 2009)(McLaughlin, Leval, Pooler, CJJ).

At Robert Gibbons’ state court trial, the judge closed the courtroom during jury selection, expelling the only spectator, Gibbons’ mother. After exhausting his state court appeals, Gibbons filed a 2254 petition, which the district court dismissed. The circuit affirmed. In doing so, however, it created a new doctrine – the “trivial structural error.”

The circuit agreed that the state judge deprived Gibbons of his Sixth Amendment right to a public trial, because there was indeed a “closure” of the courtroom – the public was “categorically excluded,” and the courtroom was closed to “all spectators” during jury selection

The court also agreed that the Waller v. Georgia, 467 U.S. 39 (1984) test was satisfied. First, there was no “overriding interest” for the closure. Even though the courtroom was small, space could still have been found for a single spectator. And, while the judge indicated that he was concerned about taint, there was no evidence at all that Gibbons’ mother might communicate improperly with members of the venire. Second, the closure was broader than necessary to protect that interest, because the court banned all spectators, when the the mother was the only spectator who raised even a hypothetical risk of taint. Third, the judge did not meaningfully consider Gibbons’ suggestion that his mother sit in the well until space became available elsewhere; he gave “no respectable reason for refusing to adopt it.” Finally, for the same reasons, the judge did not “make findings adequate to support the closure.”

Next, the court noted that, under Waller, public trial violations are “structural errors,” in that they normally require a reversal without considering the impact of the error on the verdict. Despite this, however, “it does not follow that every temporary instance of unjustified exclusion of the public – no matter how brief or trivial, and no matter how inconsequential the proceedings that occurred during an unjustified closure – would require that a conviction be overturned.” Thus, the court held that the public trial violation here was “too trivial,” and thus that the conviction should stand.