Davis v. United States

• Decision Date: 31 December 1917
• Docket Number: 4558.
• Citation: 247 F. 394
• Parties: DAVIS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

247 F. 394

DAVIS et al. v. UNITED STATES.

No. 4558.

United States Court of Appeals, Eighth Circuit.

December 31, 1917

S. M Rutherford, of Muskogee, Okl. (De Roos Bailey, of Muskogee Okl., on the brief), for plaintiffs in error.

W. P McGinnis, Sp. Asst. U.S. Atty., of Muskogee, Okl. (D.H Linebaugh, U.S. Atty., of Muskogee, Okl., on the brief), for the United States.

Before HOOK, Circuit Judge, and REED and BOOTH, District Judges.

PER CURIAM.

The only question in this case that merits discussion is whether the defendants who were convicted of a crime against the United States were given a public trial as required by the Sixth Amendment to the Constitution.

Near the conclusion of the trial, which lasted several days, a night session of the court was held for the arguments to the jury. When the jurors were in the box, and just before the court convened, the courtroom, which had become crowded, was by the direction of the trial judge cleared of all spectators except relatives of the defendants, members of the bar, and newspaper reporters, and a bailiff at the door was instructed to admit none but those of the excepted classes. The bailiff thereafter admitted a few others, but it was by way of favor of the court officers. Some citizens against whom no objection appeared on account of character or condition afterwards sought and were denied admission. The seats in the audience part of the courtroom back of the bar rail would have accommodated at least 100 spectators. About 25 were allowed to be present. Within the rail, besides the court officials and the defendants, a couple of women relatives of the latter, a few newspaper men, and about 10 members of the bar were present. The reasons for the action of the court were these:

The crime of which defendants were charged had connection with a train robbery, and the trial, which was held at Muskogee, Okl., excited more than ordinary interest. At previous sessions the courtroom was crowded with spectators, so much so that in one instance the court directed the bailiffs to clear the aisles, so that witnesses would not be impeded when called. Considerable ill feeling had developed between the defendants, their relatives and friends, and some of the witnesses for the prosecution, and the court had placed the latter in the custody and care of an officer. Precautions had also been taken that defendants should come unarmed into the courtroom. On the evening of the night session an encounter occurred in a restaurant, in which a relative of one of the defendants hit a witness for the prosecution across the face with a newspaper. This was reported to the court; also that one or more of the witnesses in the courtroom were intoxicated. It does not appear that the courtroom was crowded beyond its seating capacity when the order to clear it was made, or that any person was making a disturbance or threatening to do so, or that there was any well-founded apprehension that a disturbance would occur.

We appreciate the better position of the trial court to appraise the significance of surrounding conditions, but we cannot avoid the conviction that it acted upon the representations of those who did not adequately realize the great importance of keeping a place where the justice of the nation is judicially administered a public place for the admission of peaceful citizens. An intoxicated man could have been excluded or removed; the aisles and passageways could have been kept clear; when the seats were filled, other spectators could have been denied at the door; if the noise in the lobbies interfered with the proceedings, the lobbies could have been cleared; and individuals whose conduct outside the courtroom made their presence within a menace might have been excluded. But it is quite a different thing to exclude the public generally, regardless of their conduct or character.

The Sixth Amendment provides that 'in all criminal prosecutions the accused shall enjoy the right to a * * * public trial. ' The provision is one of the important safeguards that were soon deemed necessary to round out the Constitution, and it was due to the historical warnings of the evil practice of the Star Chamber in England. The corrective influence of public attendance at trials for crime was considered important to the liberty of the people, and it is only by steadily supporting the safeguard that it is kept from being undermined and finally destroyed. As the expression necessarily implies, a public trial is a trial at which the public is free to attend. It is not essential to the right of attendance that a person be a relative of the accused, an attorney, a witness, or a reporter for the press, nor can those classes be taken as the exclusive representatives of the public. Men may have no interest whatever in the trial, except to see how justice is done in the courts of their country.

The qualifications of the broad scope of the constitutional provision and of like provisions in the Constitutions of the states are few, and are based upon considerations of public morals and peace and good order in the courtrooms. They are definitely illustrated in cases in which the exclusion of some or all of the spectators has been upheld.

In Grimmett v. State, 22 Tex.App. 36, 2 S.W. 631, 58 Am.Rep. 630, the audience was temporarily excluded during the cross-examination of a young girl who was a witness in a trial for rape. The court certified that persons in the audience persisted by their laughter in disturbing the proceedings and embarrassing the witness, and it was impossible to distinguish them from the others.

People v. Kerrigan, 73 Cal. 222, 14 P. 849, was a case of violent and abusive conduct of the defendant, and disorder in the audience. The courtroom doors were not closed, and the defendant's friends and reporters were allowed to enter and leave at will.

In Benedict v. People, 23 Colo. 126, 46 P. 637, the trial involved a recital of disgusting details. Members of the bar, officers of the court, law students, and witnesses were allowed to remain.

State v. Nyhus, 19 N.D. 326, 124 N.W. 71, 27 L.R.A. (N.S.) 487, was a prosecution for the rape of a girl under 14 years of age. The order excluding auditors excepted all jurors and litigants at the term, attorneys, witnesses for both parties, 'and any other person or persons whom the several parties to the action may request to remain.'

Reagan v. United States, 120 C.C.A. 627, 202 F. 488, 44 L.R.A. (N.S.) 583, was also a case of rape. Court officers, witnesses for both parties, and members of the bar were not excluded.

In State v. Callahan, 100 Minn. 63, 110 N.W. 342, during a part of the examination of the prosecutrix in a trial for rape, the courtroom was cleared of all persons excepting counsel, officers of the court, witnesses, and of course the defendant. The court held that, while a sweeping, unlimited order would have been erroneous, the situation was but temporary, and it appeared that the prosecutrix was so embarrassed by the crowd that counsel for the state was unable to elicit from her a definite statement of what occurred.

In Myers v. State, 97 Ga. 76, 25 S.E. 252, the court, in passing on defendant's complaint of an overcrowding of the courtroom, sad that the requirement of a public trial did not prevent the exclusion of spectators for lack of seating capacity.

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