U.S. ex rel. Latimore v. Sielaff

Decision Date26 August 1977
Docket Number77-1136,Nos. 77-1135,s. 77-1135
Citation561 F.2d 691
PartiesUNITED STATES of America ex rel. Rico LATIMORE and Arthur Vesey, Petitioners-Appellants, v. Allyn R. SIELAFF, etc., et al., Respondents-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Allen L. Wiederer, Elgin, Ill., James Geis, Deputy State Public Defender, Chicago, Ill., for petitioners-appellants.

Gerri Papushkewych, Springfield, Ill., William J. Scott, Atty. Gen., Chicago, Ill., for respondents-appellees.

Before CASTLE, Senior Circuit Judge, and SWYGERT and SPRECHER, Circuit Judges.

CASTLE, Senior Circuit Judge.

Petitioners were among four defendants convicted of rape in a joint trial before a jury in the Circuit Court of Saline County, Illinois. They seek a writ of habeas corpus on two grounds. First, they assert that their right to a public trial was denied by the exclusion of spectators during the testimony of the alleged victim. Second, they assert that the trial judge coerced the jury to return a verdict by failing to provide sleeping facilities at the jurors' request. 1 The district court denied the petition. We affirm.

I.

We turn first to the question of whether petitioners were denied the right to public trial. After the State called the alleged victim, a 21-year-old unmarried woman, as its ninth and last witness, the trial judge ordered the bailiff to clear the courtroom of spectators. He asked the following persons to remain: the jury and alternates, the defendants, their attorney, the State's attorney, the clerk, the reporter, the bailiff and the sheriff. He also asked anyone who wished to remain give his name and his reason for staying. He gave a minister permission to remain "because of her position in the community and because of whom she represents." He made clear that members of the press were welcome, "but a person who has come out of curiosity only or who is concerned only with the progress of the case and desire to hear the testimony of this witness (is) excluded."

The public trial guarantee of the Sixth Amendment 2has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.

In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 92 L.Ed. 682 (1948). The action of the trial judge did not create any potential for secret abuse of the judicial power. Clearing the courtroom of spectators during the testimony of the complaining witness did not remove the trial proceedings from the forum of public opinion. Even in that part of the trial, the press and others with substantial interest in knowing what transpired were permitted to remain or to enter the courtroom.

It is well-recognized that the interest of a defendant in having ordinary spectators present during trial is not an absolute right but must be balanced against other interests which might justify excluding them. United States v. Eisner, 533 F.2d 987, 993 (6th Cir.), cert. denied, 429 U.S. 919, 97 S.Ct. 314, 50 L.Ed.2d 286 (1976); United States ex rel. Lloyd v. Vincent, 520 F.2d 1272, 1274 (2d Cir.), cert. denied, 423 U.S. 937, 96 S.Ct. 296, 46 L.Ed.2d 269 (1975). The propriety of the trial court's action depends on the circumstances of each case. Aaron v. Capps, 507 F.2d 685, 687 (5th Cir.), cert. denied, 423 U.S. 878, 96 S.Ct. 153, 46 L.Ed.2d 112 (1975). Because the public trial guarantee not only prohibits secrecy but also reflects a preference for an open forum, prejudice to the defendant is implied whenever the trial judge lacks substantial justification for excluding spectators, and an affirmative showing of harm is unnecessary to establish a violation of the defendant's right to public trial. United States v. Kobli,172 F.2d 919 (3d Cir. 1949); Tanksley v. United States, 10 Alaska 443, 145 F.2d 58 (1944); Davis v. United States, 247 F. 394 (8th Cir. 1917).

In Harris v. Stephens, 361 F.2d 888, 891 (8th Cir. 1966), cert. denied, 386 U.S. 964, 87 S.Ct. 1040, 18 L.Ed.2d 113 (1967), the Eighth Circuit noted that exclusion of spectators during the testimony of an alleged rape victim "is a frequent and accepted practice when the lurid details of such a crime must be related by a young lady." 3 See Douglas v. State, 328 So.2d 18 (Fla.), cert. denied, 429 U.S. 871, 97 S.Ct. 185, 50 L.Ed.2d 151 (1976); State v. Purvis, 157 Conn. 198, 251 A.2d 178 (1968), cert. denied,395 U.S. 928, 89 S.Ct. 1788, 23 L.Ed.2d 246 (1969); Ex parte Rudolph, 276 Ala. 392, 162 So.2d 486, cert. denied, 377 U.S. 919, 84 S.Ct. 1185, 12 L.Ed.2d 188 (1964); Price v. State, 496 S.W.2d 103 (Tex.Cr.App.1973). Primary justification for this practice lies in protection of the personal dignity of the complaining witness. 4 The Supreme Court has recognized that, short of homicide, rape is the "ultimate violation of self." Coker v. Georgia, --- U.S. ----, 97 S.Ct. 2861, 2868, 53 L.Ed.2d 982 (1977). It is characterized by an

almost total contempt for the personal integrity and autonomy of the female victim and for the latter's privilege of choosing those with whom intimate relationships are to be established.

Id. Rape constitutes an intrusion upon areas of the victim's life, both physical and psychological, to which our society attaches the deepest sense of privacy. Shame and loss of dignity, however unjustified from a moral standpoint, are natural byproducts of an attempt to recount details of a rape before a curious and disinterested audience. The ordeal of describing an unwanted sexual encounter before persons with no more than a prurient interest in it aggravates the original injury. Mitigation of the ordeal is a justifiable concern of the public 5 and of the trial court. 6

Recognition that protection of the dignity of the complaining witness is a substantial justification for excluding spectators does not end our inquiry. Protection of the complaining witness from potential embarrassment does not justify any perceptible increase in the likelihood that the defendant might be convicted. The presence of this justification merely eliminates the implication as a matter of law that the defendant was prejudiced by the exclusion of spectators and leads us to the question of whether the defendant actually was prejudiced by that action.

Petitioners have not asserted that any prejudice resulted to their defense as a result of the exclusion of spectators, and our examination of the record has revealed none. The action did not reflect or suggest any partiality on the part of the trial judge. The circumstances of the case do not suggest any reasonable possibility that the spectators might have included an unknown witness. We do not believe the gaze of curious and disinterested spectators would have prompted the witness to be truthful to any appreciable degree beyond the encouragement provided by the oath, the presence of the defendants and the possible testimony of other witnesses. We therefore conclude that the trial judge's action was both justified and proper and that it did not violate the petitioners' right to public trial.

Petitioners cite in support of their position Tanksley v. United States, supra, in which the Ninth Circuit held that the exclusion of spectators throughout a rape trial, in which the 19-year-old alleged victim was one of nine witnesses, violated the defendant's right to public trial. Tanksley is not inconsistent with our holding in this case. The exclusion of spectators may not exceed the scope necessary to serve the legitimate purpose for which the trial judge acted. United States v. Kobli, supra; Davis v. United States, supra. The Ninth Circuit subsequently highlighted the sweeping nature of the trial court's order in Tanksley as a distinguishing factor of that decision in Geise v. United States, 262 F.2d 151, 156 (9th Cir. 1958), cert. denied, 361 U.S. 842, 80 S.Ct. 94, 4 L.Ed.2d 80 (1959). In Geise, the Ninth Circuit held that the exclusion of spectators in a rape trial during the testimony of witnesses age seven, nine and eleven, one of whom was the complaining witness, did not violate the defendant's right to public trial. Like Tanksley, the state court holdings cited by the petitioners involve the exclusion of spectators throughout the course of trial. See State v. Schmit, 273 Minn. 78, 139 N.W.2d 800 (1966); Thompson v. People, 156 Colo. 416, 399 P.2d 776 (1965); People v. Byrnes, 84 Cal.App.2d 72, 190 P.2d 290 (1948). The exclusion order in the instant case was not overbroad. Spectators were excluded only during the testimony of the alleged victim.

The Geise court also distinguished Tanksley on the ground that the earlier case did not involve a child. We perceive no justifiable reason for holding that a trial judge's power to protect a witness from indignity is limited to children. In light of the relative maturity of the complaining witness in this case, the better course would have been for the trial judge to hold an evidentiary hearing before deciding that the witness needed the protection granted. However,

(t)he standard to be applied in determining whether there is a sufficient record to support (an exclusion of spectators) is whether there has been an abuse of discretion. United States ex rel. Lloyd v. Vincent, supra, 520 F.2d at 1275.

United States v. Eisner, supra, 533 F.2d at 994. The indictments in this case accused four young men of having raped the complaining witness, a 21-year-old unmarried woman at the time of trial, on February 21, 1972. At the time the State called the complaining witness, it had adduced strong circumstantial evidence that the alleged rapes had occurred in a single incident. We cannot say that the trial judge abused his discretion by concluding that the prospect of testifying about the alleged incident before a full audience posed a substantial threat of indignity to the witness.

II....

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