United States v. Powers, Crim. No. 79-26.

• Decision Date: 07 September 1979
• Docket Number: Crim. No. 79-26.
• Citation: 477 F. Supp. 497
• Parties: UNITED STATES of America, Plaintiff, v. Mark Richard POWERS, Defendant.
• Court: U.S. District Court — Southern District of Iowa

477 F. Supp. 497

UNITED STATES of America, Plaintiff, v. Mark Richard POWERS, Defendant.

Crim. No. 79-26.

United States District Court, S. D. Iowa.

September 7, 1979.

Roxanne Barton Conlin, U. S. Atty., Don C. Nickerson, Terry Wright, Asst. U. S. Attys., Des Moines, Iowa, for plaintiff.

John P. Roehrick, Des Moines, Iowa, for defendant.

Barbara M. Mack, Des Moines, Iowa, for amicus curiae.

RULING AND ORDER

STUART, Chief Judge.

The Court has before it the defendant's Motion to Exclude the Public During Trial filed July 25, 1979. The United States responded in a resistance filed August 6, 1979, and pursuant to the Order of this Court, the Des Moines Register and Tribune Company filed an amicus curiae brief on August 17, 1979. A hearing on the defendant's motion was held on August 29, 1979, and continued to September 4, 1979. In open court, the defendant, the plaintiff and the amicus curiae presented argument on the issue of whether the Court as a matter of law has the power to order complete closure of the criminal trial upon the defendant's request. Following these presentations, the Court closed the remainder of the hearing to the public, including the Des Moines Register and Tribune Company, and heard argument from the parties concerning the factual basis of the defendant's allegations that the presentation of his defense in open court would endanger his and his family members' lives.

The defendant contends that if the entire trial is not closed as requested he will not be able to adequately present his defense to the United States' charges because of the dangers mentioned above, and thereby will be denied his constitutional right to a fair trial. The United States resists this contention by arguing that the Court must consider three factors in evaluating the defendant's evidence in support of closure. Those factors are a demonstrated necessity for closure, a lack of viable alternatives to closure, and the effectiveness of closure in preventing the alleged harm. The Des Moines Register and Tribune Company challenged the defendant's contention by arguing that closure of a criminal trial is not a right vested in a criminal defendant, and that such closure violates the First Amendment guarantee of the freedom of the press. In addition, the amicus curiae contended that the public has a strong interest in open criminal trials that is supported by a traditional distrust of secret trials in this country. The matter before the Court, therefore, focuses on the interface of the defendant's constitutional right to a fair trial and the public's demand for an open trial, whether guaranteed by the Constitution or by the time-honored traditions of the American Judiciary.

Counsel for both parties, as well as the amicus curiae, failed to present any instance where a secret criminal trial was held in an American court of law.¹ However, the Court is not willing to say it has no power to order closure of a criminal trial. Situations might arise where the defendant by clear and convincing evidence could establish exceptional facts and circumstances that effectively prevent the defendant from presenting his defenses and thereby deny him a fair trial. See Gannett Publishing Co. v. DePasquale, ___ U.S. ___, 99 S.Ct. 2898, 2915, 61 L.Ed.2d 608 (1979) (Powell, J., concurring).² The Court, after closely scrutinizing the evidence presented in the closed hearing and carefully weighing the fundamental interests of the parties as well as the public, concludes that the defendant has failed to sustain that burden of proof.

In the Court's opinion, an order of closure would not be proper unless the defendant established:

(1) by clear and convincing evidence that there was a clear and present danger of actual harm to the life of the defendant or a member of his family;

(2) consent to the closure on the part of the prosecution, see Gannett v. DePasquale, supra, or a compelling reason for not requiring the prosecution's consent;

(3) by clear and convincing evidence that the closure of the defendant's criminal trial would effectively prevent the harm alleged and proven to exist; and

(4) by clear and convincing evidence that there are no effective alternatives to the complete closure of the criminal trial.

The Court concludes that the defendant failed to prove by clear and convincing evidence that the open court presentation of his defense would result in a clear and present danger of actual harm to the life of the defendant or a member of his family. The evidence at most demonstrates a fear of harm based on the allegedly violent nature of some of the persons involved. Admittedly, the defendant has shown that the prosecution would never consent to the closure because the issue before the Court focuses on a possible defense to the prosecution's charges against the defendant. Powers, however, failed to prove that closure would effectively prevent the alleged harm, and provided the Court with no insight on how to prevent the jurors and witnesses from discussing the case subsequent to the trial, or on how to prevent the disclosure of information if the trial court's decision is appealed. In addition, it was brought to the attention of the Court in the closed portion of the hearing that the defendant may generally be known...