Rebecca L.Kurz won in State v. Cox, No. 103,674 (Kan.
June 21, 2013), obtaining a new trial in a Labette County aggravated
criminal sodomy prosecution. During the
jury trial, the district court cleared the courtroom while photographs of the
victim’s genitalia were displayed and discussed. Defense counsel suggested that the district
court’s concerns could be addressed by simply passing photographs to the jurors
without closing the courtroom. The KSC
held that the district court’s procedure violated the Public Trial Clause:
The district judge's wholesale closure
of the courtroom during the presentation of this evidence, in the absence of
the State or the judge expressing any “overriding interest” combined with the
lack of meaningful consideration of alternatives, violated Cox's Sixth
Amendment right to a public trial.
The KSC
reiterated that a Public Trial Clause violation cannot be harmless and also
rejected the state’s attempt to have the case remanded to allow the district
court to make some retrospective findings with regard to the need to completely
close the courtroom.
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