United States v. Kobli

• Decision Date: 03 February 1949
• Docket Number: No. 9547.,9547.
• Citation: 172 F.2d 919
• Parties: UNITED STATES v. KOBLI.
• Court: U.S. Court of Appeals — Third Circuit

172 F.2d 919 (1949)

UNITED STATES v. KOBLI.

No. 9547.

United States Court of Appeals Third Circuit.

Argued June 25, 1948.

Reargued November 16, 1948.

Decided February 3, 1949.

Joseph P. Brennan, Asst. U. S. Atty., of Scranton, Pa., for the United States.

Ulric J. McHale, of Scranton, Pa., for appellant.

Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, O'CONNELL and KALODNER, Circuit Judges.

MARIS, Circuit Judge.

The principal question which this appeal presents, and the only one which we need discuss, is whether the appellant was accorded a public trial as guaranteed by the Sixth Amendment to the Constitution. She and three others were convicted in the United States District Court for the Middle District of Pennsylvania upon an indictment charging the violation of the Mann Act¹ and conspiracy to violate that act. The charge involved the allegation that the defendants had participated in a scheme to transport one Mary Kovacs Riviello, an eighteen year old niece of the appellant, from Scranton, Pennsylvania, to Buffalo, New York, there to place her in a house of prostitution, and that the scheme was carried out.

The case evidently attained some notoriety and on the day when the trial was to be commenced the courtroom in which it was to be tried was filled to overflowing with spectators. Included among those who had apparently been attracted by the lurid nature of the expected testimony were a great many young girls. When the trial judge entered the court-room preparatory to calling the case for trial it appeared that there was not enough room to permit the admission of the members of the jury panel, who were then in another courtroom in the building. The trial judge also noticed the great number of young girls present. He thereupon asked whether any of the defendants' counsel would object to a court order clearing the courtroom of all people except jurors, witnesses, lawyers and members of the press. Counsel for the other three defendants stated that they had no objection to such an order² but appellant's lawyers objected and requested "a trial conducted before the public". The trial judge then asked the Assistant United States Attorney: "We have a perfect right to clear the Courtroom?" and was answered: "Yes sir, that is the normal manner."

Thereupon the trial judge, mentioning the crowded condition of the room and the presence of young girls, said: "This Court * * * feels that the nature of this case is such that the Courtroom should be cleared and directs that the Courtroom be cleared of all people except the defendants, their counsel, witnesses and members of the press. The Court officer is directed to clear the Courtroom of all other persons notwithstanding one of counsel objects." Shortly thereafter the trial judge added: "May I inquire of counsel for the defendants if there are any persons who have been excluded from the room who have any connection with this case that you, counsel for the defendants, desire to be returned to the room? If so, if the request will be made — Court hears none at present. If there is any such request we will see that it is complied with immediately." While counsel at our bar were not in agreement with respect to what later transpired the record reveals nothing from which it might fairly be inferred that the order to clear the courtroom of the general public was later modified or rescinded.

The appellant asserts that the action of the trial judge deprived her of her constitutional right to a public trial. At the outset we note that it is not necessary for the appellant to show that she was in fact prejudiced by the action of the trial judge. If that action violated her constitutional right we agree with the Courts of Appeals of the Eighth and Ninth Circuits that a "violation of the constitutional right necessarily implies prejudice and more than that need not appear. Furthermore, it would be difficult, if not impossible, in such cases for a defendant to point to any definite, personal injury. To require him to do so would impair or destroy the safeguard."³ We proceed, then, to consider the nature and extent of the right to a public trial which the Sixth Amendment guaranteed to the defendant.

As the Supreme Court has pointed out,⁴ the traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French Monarchy's abuse of the lettre de cachet, all of which institutions symbolized a menace to liberty and each of which had become instruments for the suppression of political and religious heresies in ruthless disregard of the right of an accused to a fair trial.⁵ But whatever its origin, at the time of the adoption of the Sixth Amendment the common law concept of a public trial had come to be regarded as an essential guarantee against any attempt to employ the courts as instruments of persecution. The knowledge that every criminal trial was subject to contemporaneous review in the forum of public opinion was regarded as an effective restraint on possible abuse of judicial power.⁶ It was also thought that if trials were public they might come to the attention of important witnesses unknown to the parties who might voluntarily come forward to testify,⁷ and that the conduct of trials in public would enable the spectators to learn about their government and acquire confidence in their judicial remedies.⁸

The right to a public trial in a criminal case which is guaranteed by the Sixth Amendment has received universal recognition in this country, the right having been similarly guaranteed by the constitutions of nearly all the states. In determining the extent of the right, however, the courts are not in complete agreement.⁹ All of them do concede that the right to have the members of the public present is subject to some limitations. There is general agreement that spectators having no immediate concern with the trial need not be admitted in such numbers as to overcrowd the courtroom and take up room needed for those who do have special concern with the trial such as the court officers, jurors and witnesses, and the relatives and friends of the defendant.¹⁰ Moreover those spectators who are admitted must observe proper decorum and if their conduct tends in any way to interfere with the administration of justice in the courtroom they may, of course, be removed.¹¹ Likewise there is agreement that in cases involving sexual offenses youthful spectators may be excluded when the evidence is likely to involve the recital of scandalous or indecent matters which would have a demoralizing effect upon their immature minds.¹² So far the courts are in accord.

Some state courts, however, have taken the further position that in cases involving sexual offenses it is permissible and not in violation of the guarantee of a public trial to exclude the general public entirely from the courtroom, permitting, in addition to the court officers and jurors, only the parties involved in the trial, their counsel, witnesses, relatives and friends to be present. Sometimes the court's order has permitted newspaper reporters to be present, but in a number of cases the court has excluded all members of the public who are merely spectators without any special connection with the trial and has done so without any determination that those thus excluded ought not by reason of their immaturity to hear the prospective evidence.¹³ This is substantially what the trial judge did in the case now before us.

The narrow question which we have to decide, therefore, is whether the Sixth Amendment permitted such a general exclusion of all the members of the public from the trial of the defendant or whether, on the contrary, the trial judge's power of exclusion was limited to those members of the public for whom space was not available in the courtroom or whose conduct was such as to interfere with the administration of justice or who ought not in the interest of public morals to have been permitted to hear the testimony which was likely to be given. In other words, did the trial judge have power to exclude all members of the public except those having special concern with the trial or should his order of exclusion have been limited to those persons or classes of persons who should not for proper and specific reasons have been permitted to attend, leaving the courtroom door open for all other members of the public who desired to attend and for whom there were seats available in the courtroom?

After mature consideration we have reached the conclusion, in accord with the present views of the two United States Courts of Appeals which have passed upon the precise question,¹⁴ that the Sixth Amendment precludes the general indiscriminate exclusion of the public from the trial of a criminal case in a federal court over the objection of the defendant and limits the trial judge to the exclusion of those persons or classes of persons only whose particular exclusion is justified by lack of space or for reasons particularly applicable to them. Moreover whatever may have been the view in an earlier and more formally modest age, we think that the franker and more realistic attitude of the present day toward matters of sex precludes a determination that all members of the public, the mature and experienced as well as the immature and impressionable, may reasonably be excluded from the trial of a sexual offense upon the ground of public morals. In reaching our conclusion we are, of course, not passing upon the different situation which arises in a case, such as a prosecution for statutory rape, in which the prosecuting witness is of such tender years as to be seriously embarrassed in giving her testimony by the presence of spectators not concerned with the trial. It has been held that in such a case the trial judge in order to prevent a miscarriage of justice may during...