U.S. v. Thunder

• Decision Date: 22 February 2006
• Docket Number: No. 04-3780.,04-3780.
• Citation: 438 F.3d 866
• Parties: UNITED STATES of America, Appellee, v. Ralph Joseph THUNDER, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

438 F.3d 866

UNITED STATES of America, Appellee, v. Ralph Joseph THUNDER, Jr., Appellant.

No. 04-3780.

United States Court of Appeals, Eighth Circuit.

Submitted: November 15, 2005.

Filed: February 22, 2006.

Paul C. Engh, argued, Minneapolis, Minnesota, for appellant.

Erica H. MacDonald, argued, Minneapolis, Minnesota, for appellee.

Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Ralph Thunder, Jr., appeals his conviction on three counts of aggravated sexual abuse, see 18 U.S.C. §§ 1151, 1153, 2241(c). He asserts that his sixth-amendment right to a public trial was violated when the district judge closed the courtroom during the testimony of the children whom Mr. Thunder allegedly abused. He raises other issues as well, but in view of our holding on his sixth-amendment argument we find it unnecessary to address them. We reverse.

Mr. Thunder was accused of raping his daughter and her half sister and attempting to rape his daughter's aunt. At the time of trial, two of the alleged victims were twelve years old and the other was eleven. The government moved to close the courtroom to the public under 18 U.S.C. § 3509(e), which allows a court, in some circumstances, to exclude anyone lacking a direct interest in a case from a courtroom when a child is testifying. The trial court granted the government's motion without a hearing and without making any findings to support the closure. Defense counsel objected and renewed the objection each time that the courtroom was cleared for a child's testimony. The courtroom was open to spectators during the rest of the trial.

The government implies in its brief that requiring children to testify in public in this kind of case could only expose them to voyeuristic or prurient interests. We believe that this argument is untenable. We have an open government, and secret trials are inimical to the spirit of a republic, especially when a citizen's liberty is at stake. The public, in a way, is necessarily a party to every criminal case. The sixth amendment speaks in unqualified terms and provides that in "all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. While the Supreme Court has held that the right of access to a criminal trial is "not absolute," Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 606, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), the Court has never actually upheld the closure of a courtroom during a criminal trial or any part of it, or approved a decision to allow witnesses in such a trial to testify outside the public eye.

The right to a public trial has long been viewed as "a safeguard against any attempt to employ our courts as instruments of persecution." In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 92 L.Ed. 682 (1948). Even the Elizabethan Star Chamber was open to the public. 5 William Holdsworth, A History of English Law 156 (3d ed.1973). "Public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the factfinding process, with benefits to both the defendant and to society as a whole." Globe Newspaper, 457 U.S. at 606, 102 S.Ct. 2613. An open trial assures that the proceedings are conducted fairly and discourages perjury, misconduct, and decisions based on partiality or bias. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). Even though most community members do not attend trials, the knowledge that they could and that others do fortifies the public's confidence in the trials' results. Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 508, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). "`Without publicity, all other checks are insufficient.'" Oliver, 333 U.S. at 271, 68 S.Ct. 499 (quoting 1 Jeremy Bentham, Rationale of Judicial Evidence 524 (1827)).

While many of the cases dealing with the constitutionality of closing criminal trials address the first amendment rights of the press and public to attend and observe such trials, see e.g., Globe Newspaper, 457 U.S. at 598, 102 S.Ct. 2613, the "explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public." Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). To withstand a defendant's objection to closing a trial or any part of one, an order directing closure must adhere to the principles outlined in Press-Enterprise, 464 U.S. at 510, 104 S.Ct. 819, which holds that "the presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." See Waller, 467 U.S. at 47, 104 S.Ct. 2210. Even if the government makes out an interest that would support closure, "the closure must be no broader than...