Closure of courtroom requires reversal

Michelle Davis won in State v. Barnes, No. 102,290 (Kan. App. April 8, 2011), obtaining a new trial in a Wyandotte County aggravated robbery prosecution. During trial, concerns about spectators taking pictures of the jury arose (although they were never confirmed). In any case, the district court closed the courtroom to the public for several parts of the trial, including a rebuttal witness, reading of instructions, and closing argument. The COA reached the Public Trial Clause issue for the first time on appeal and held that the closure was improper:

The State argues that the spectators abused their privileges to observe the witnesses and, therefore, the trial court rightly closed the courtroom.

However, the standard for denying a defendant his or her right to a public trial requires that the decision be no broader than necessary and the court consider reasonable alternatives to closure. Barnes correctly argues the trial court failed to consider reasonable alternatives to closing the courtroom, including banning cell phones from the courtroom.

The trial court could also have removed only Brooks without closing the entire proceeding to the public. The court had satisfied itself that Brooks was not taking pictures of the jury. If the court believed Brooks was acting in an unruly manner, which it may well have, its best option would have been to tell her to leave while allowing the rest of Barnes' friends and family to remain.

The COA correctly recognized that Public Trial Clause violation is not subject to harmless error analysis and reversed.

[Update: the state did not file a PR and the mandate issued on May 12, 2011.]