ERIC PRESLEY v. GEORGIA
on petition for writ of certiorari to the supreme court of georgia
Justice Thomas , with whom Justice Scalia joins, dissenting.
Today the Court summarily disposes of two important questions it left unanswered 25 years ago in Waller v. Georgia , 467 U. S. 39 (1984) , and Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty. , 464 U. S. 501 (1984) (Press-Enterprise I) . I respectfully dissent from the Courts summary disposition of these important questions.
First, the Court addresses whether it is so well settled that [a defendants] Sixth Amendment right to a public trial extends to jury voir dire that this Court may proceed by summary disposition. Ante , at 4. The Courts affirmative answer to this question relies exclusively on Waller and Press-Enterprise I; but those cases cannot bear the weight of this answer.
The Court correctly notes that Waller answers whether a defendants Sixth Amendment right to a public trial applies to a suppression hearing (not to jury voir dire ), 467 U. S., at 43, and that Press-Enterprise I interprets the publics First Amendment right to attend jury voir dire , 464 U. S., at 509, n. 8, so neither Waller nor Press-Enterprise I expressly answers the question here, see ante , at 4. That acknowledgment should have eliminated any basis for disposing of this case summarily; the Court should reserve that procedural option for cases that our precedents govern squarely and directly. See, e.g. , United States v. Haley , 358 U. S. 644 (1959) (per curiam) (summarily reversing a federal courts judgment that refused to follow, or even mention, one of our precedents upholding the statute in issue under identical circumstances).
The Court nevertheless concludes that Waller and Press-Enterprise I in combinationwell settl[e] the point. Ante , at 4. It admits that [t]he extent to which the First and Sixth Amendment public trial rights are coextensive is an open question, but, apparently extrapolating from Press-Enterprise I , asserts that there is no legitimate reason, at least in the context of juror selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has. Ante , at 45. But this conclusion decides by implication an unstated premise: that jury voir dire is part of the public trial that the Sixth Amendment guarantees. As Justice Stevens recognized in Press-Enterprise I , that case did not decide this issue. See 464 U. S., at 516 (concurring opinion) (If the defendant had advanced a claim that his Sixth Amendment right to a public trial was violated by the closure of the voir dire , it would be important to determine whether the selection of the jury was a part of the trial within the meaning of that Amendment). Until today, that question remained open; the majority certainly cites no other case from this Court answering it. Yet the Court does so hereeven though the Supreme Court of Georgia did not meaningfully consider that question, and petitioner does not ask us to do so.* * I am unwilling to decide this important question summarily without the benefit of full briefing and argument.
Second, I am also unwilling to join the Court in reading the alternatives to closure language it quotes from Waller and Press Enterprise I as squarely foreclosing the decision of the Supreme Court of Georgia. See ante , at 6. The Court chides the Supreme Court of Georgia for conclud[ing], despite our explicit statements to the contrary, that trial courts need not consider alternatives to closure absent an opposing partys proffer of some alternatives . Ante , at 56 (emphasis added). But neither Waller nor Press-Enterprise I expressly holds that jury voir dire is covered by the Sixth Amendments [P]ublic [T]rial Clause. Accordingly, it is not obvious that the alternatives to closure language in those opinions governs this case.
Even assuming the Court correctly extends Waller and Press-Enterprise I to this ( Sixth Amendment voir dire ) context, neither opinion explicit[ly] places on trial courts the burden of sua sponte suggesting alternatives to closure absent an opposing partys proffer of some alternatives. Ante, at 6 . The statement that a trial court must consider reasonable alternatives to closing the proceeding, ibid. (quoting Waller , supra , at 48), does not definitively establish who must suggest alternatives to closure that the trial court must then consider , nor does it expressly address whether the trial court must suggest such alternatives in the absence of a proffer. I concede that the language can easily be read to imply the latter, and the Court may well be right that a trial court violates the Sixth Amendment if it closes the courtroom without sua sponte considering reasonable alternatives to closure. But I would not decide the issue summarily, and certainly would not declare, as the Court does, that Waller and Press-Enterprise I settl[e] the point without leav[ing] any room for doubt. Ante , at 6.
Besides departing from the standards that should govern summary dispositions, todays decision belittles the efforts of our judicial colleagues who have struggled with these issues in attempting to interpret and apply the same opinions upon which the Court so confidently relies today. See, e.g., Ayala v. Speckard , 131 F. 3d 62, 7072 (CA2 1997) (en banc), cert. denied, 524 U. S. 958 (1998) ; 131 F. 3d, at 7475 (Walker, J., concurring); id. , at 7780 (Parker, J., dissenting). The Courts decision will also surely surprise petitioner, who did not seek summary reversal based on the allegedly incorrect application of this Courts well-established precedents by the Supreme Court of Georgia, but instead asked us to resolve this split of authority over whether the opponent of closure must suggest alternatives to closure or whether those seeking to exclude the public must show that there is no available less-intrusive alternative. Pet. for Cert. 18.
* * In full, petitioners two questions presented state: I.This Court has established that the public cannot be expelled from a courtroom unless the presence of the public creates a substantial probability of prejudice to an overriding interest. But is some case-specific evidence required to meet this substantial probability test, or can generalized fears that would apply equally to nearly every trial suffice? II.This Court has repeatedly held that a trial court must consider reasonable alternatives to closing a proceeding before it can exclude the public. But who bears the burden of suggesting such alternatives? Must the proponent of closure establish that closure is necessary, in that there are no reasonable alternatives available? Or to overcome a closure motion must an opponent of closure establish that reasonable alternatives do exist? Pet. for Cert. i.
* In full, petitioners two questions presented state: I.This Court has established that the public cannot be expelled from a courtroom unless the presence of the public creates a substantial probability of prejudice to an overriding interest. But is some case-specific evidence required to meet this substantial probability test, or can generalized fears that would apply equally to nearly every trial suffice? II.This Court has repeatedly held that a trial court must consider reasonable alternatives to closing a proceeding before it can exclude the public. But who bears the burden of suggesting such alternatives? Must the proponent of closure establish that closure is necessary, in that there are no reasonable alternatives available? Or to overcome a closure motion must an opponent of closure establish that reasonable alternatives do exist? Pet. for Cert. i.
ERIC PRESLEY v. GEORGIA
on petition for writ of certiorari to the supreme court of georgia
Per Curiam .
After a jury trial in the Superior Court of DeKalb County, Georgia, petitioner Eric Presley was convicted of a cocaine trafficking offense. The conviction was affirmed by the Supreme Court of Georgia. 285 Ga. 270, 674 S. E. 2d 909 (2009). Presley seeks certiorari, claiming his Sixth and Fourteenth Amendment right to a public trial was violated when the trial court excluded the public from the voir dire of prospective jurors. The Supreme Court of Georgias affirmance contravened this Courts clear precedents. Certiorari and petitioners motion for leave to proceed in forma pauperis are now granted, and the judgment is reversed.
Before selecting a jury in Presleys trial, the trial court noticed a lone courtroom observer. Id., at 270271, 674 S. E. 2d, at 910. The court explained that prospective jurors were about to enter and instructed the man that he was not allowed in the courtroom and had to leave that floor of the courthouse entirely. Id., at 271, 674 S. E. 2d, at 910. The court then questioned the man and learned he was Presleys uncle. Ibid. The court reiterated its instruction:
Well, you still cant sit out in the audience with the jurors. You know, most of the afternoon actually were going to be picking a jury. And we may have a couple of pre-trial matters, so youre welcome to come in after we … complete selecting the jury this afternoon. But, otherwise, you would have to leave the sixth floor, because jurors will be all out in the hallway in a few moments. That applies to everybody whos got a case. Ibid.
Presleys counsel objected to the exclusion of the public from the courtroom, but the court explained, [t]here just isnt space for them to sit in the audience. Ibid. When Presleys counsel requested some accommodation, the court explained its ruling further:
Well, the uncle can certainly come back in once the trial starts. Theres no, really no need for the uncle to be present during jury selection… . [W]e have 42 jurors coming up. Each of those rows will be occupied by jurors. And his uncle cannot sit and intermingle with members of the jury panel. But, when the trial starts, the opening statements and other matters, he can certainly come back into the courtroom. Ibid.
After Presley was convicted, he moved for a new trial based on the exclusion of the public from the juror voir dire . At a hearing on the motion, Presley presented evidence showing that 14 prospective jurors could have fit in the jury box and the remaining 28 could have fit entirely on one side of the courtroom, leaving adequate room for the public. App. to Pet. for Cert. E37, E41. The trial court denied the motion, commenting that it preferred to seat jurors throughout the entirety of the courtroom, and its up to the individual judge to decide . . . whats comfortable. Id., E38. The court continued: Its totally up to my discretion whether or not I want family members in the courtroom to intermingle with the jurors and sit directly behind the jurors where they might overhear some inadvertent comment or conversation. Id., at E42 to E43. On appeal, the Court of Appeals of Georgia agreed, finding [t]here was no abuse of discretion here, when the trial court explained the need to exclude spectators at the voir dire stage of the proceedings and when members of the public were invited to return afterward. 290 Ga. App. 99, 100101, 658 S. E. 2d 773, 775 (2008).
The Supreme Court of Georgia granted certiorari and affirmed, with two justices dissenting. After finding the trial court certainly had an overriding interest in ensuring that potential jurors heard no inherently prejudicial remarks from observers during voir dire, the Supreme Court of Georgia rejected Presleys argument that the trial court was required to consider alternatives to closing the courtroom. 285 Ga., at 272, 273, 674 S. E. 2d, at 911. It noted that the United States Supreme Court [has] not provide[d] clear guidance regarding whether a court must, sua sponte, advance its own alternatives to [closure], and the court ruled that Presley was obliged to present the court with any alternatives that he wished the court to consider. Id., at 273, 674 S. E. 2d, at 911, 912. When no alternatives are offered, it concluded, there is no abuse of discretion in the courts failure to sua sponte advance its own alternatives. Id., at 274, 674 S. E. 2d, at 912.
This Courts rulings with respect to the public trial right rest upon two different provisions of the Bill of Rights, both applicable to the States via the Due Process Clause of the Fourteenth Amendment. The Sixth Amendment directs, in relevant part, that [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial … . The Court in In re Oliver , 333 U. S. 257, 273 (1948) , made it clear that this right extends to the States. The Sixth Amendment right, as the quoted language makes explicit, is the right of the accused.
The Court has further held that the public trial right extends beyond the accused and can be invoked under the First Amendment. Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty. , 464 U. S. 501 (1984) (Press-Enterprise I) . This requirement, too, is binding on the States. Ibid.
The case now before the Court is brought under the Sixth Amendment, for it is the accused who invoked his right to a public trial. An initial question is whether the right to a public trial in criminal cases extends to the jury selection phase of trial, and in particular the voir dire of prospective jurors. In the First Amendment context that question was answered in Press-Enterprise I . Id. , at 510. The Court there held that the voir dire of prospective jurors must be open to the public under the First Amendment. Later in the same Term as Press-Enterprise I , the Court considered a Sixth Amendment case concerning whether the public trial right extends to a pretrial hearing on a motion to suppress certain evidence. Waller v. Georgia , 467 U. S. 39 (1984) . The Waller Court relied heavily upon Press-Enterprise I in finding that the Sixth Amendment right to a public trial extends beyond the actual proof at trial. It ruled that the pretrial suppression hearing must be open to the public because there can be little doubt that 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. 467 U. S., at 46.
While Press-Enterprise I was heavily relied upon in Waller , the jury selection issue in the former case was resolved under the First, not the Sixth, Amendment. Press-Enterprise I , supra , at 516 ( Stevens , J., concurring) (The constitutional protection for the right of access that the Court upholds today is found in the First Amendment, rather than the public trial provision of the Sixth (footnote omitted)). In the instant case, the question then arises whether it is so well settled that the Sixth Amendment right extends to jury voir dire that this Court may proceed by summary disposition.
The point is well settled under Press-Enterprise I and Waller . The extent to which the First and Sixth Amendment public trial rights are coextensive is an open question, and it is not necessary here to speculate whether or in what circumstances the reach or protections of one might be greater than the other. Still, there is no legitimate reason, at least in the context of juror selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has. Our cases have uniformly recognized the public-trial guarantee as one created for the benefit of the defendant. Gannett Co. v. DePasquale , 443 U. S. 368, 380 (1979) . There could be no explanation for barring the accused from raising a constitutional right that is unmistakably for his or her benefit. That rationale suffices to resolve the instant matter. The Supreme Court of Georgia was correct in assuming that the Sixth Amendment right to a public trial extends to the voir dire of prospective jurors.
While the accused does have a right to insist that the voir dire of the jurors be public, there are exceptions to this general rule. [T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendants right to a fair trial or the governments interest in inhibiting disclosure of sensitive information. Waller, 467 U. S. , at 45. Such circumstances will be rare, however, and the balance of interests must be struck with special care. Ibid. Waller provided standards for courts to apply before excluding the public from any stage of a criminal trial:
[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. Id., at 48.
In upholding exclusion of the public at juror voir dire in the instant case, the Supreme Court of Georgia concluded, despite our explicit statements to the contrary, that trial courts need not consider alternatives to closure absent an opposing partys proffer of some alternatives. While the Supreme Court of Georgia concluded this was an open question under this Courts precedents, the statement in Waller that the trial court must consider reasonable alternatives to closing the proceeding settles the point. Ibid. If that statement leaves any room for doubt, the Court was more explicit in Press-Enterprise I:
Even with findings adequate to support closure, the trial courts orders denying access to voir dire testimony failed to consider whether alternatives were available to protect the interests of the prospective jurors that the trial courts orders sought to guard. Absent consideration of alternatives to closure, the trial court could not constitutionally close the voir dire . 464 U. S. , at 511.
The conclusion that trial courts are required to consider alternatives to closure even when they are not offered by the parties is clear not only from this Courts precedents but also from the premise that [t]he process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system. Id., at 505. The public has a right to be present whether or not any party has asserted the right. In Press-Enterprise I , for instance, neither the defendant nor the prosecution requested an open courtroom during juror voir dire proceedings; in fact, both specifically argued in favor of keeping the transcript of the proceedings confidential. Id., at 503504. The Court, nonetheless, found it was error to close the courtroom. Id., at 513.
Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials. Nothing in the record shows that the trial court could not have accommodated the public at Presleys trial. Without knowing the precise circumstances, some possibilities include reserving one or more rows for the public; dividing the jury venire panel to reduce courtroom congestion; or instructing prospective jurors not to engage or interact with audience members.
Petitioner also argues that, apart from failing to consider alternatives to closure, the trial court erred because it did not even identify any overriding interest likely to be prejudiced absent the closure of voir dire . There is some merit to this complaint. The generic risk of jurors overhearing prejudicial remarks, unsubstantiated by any specific threat or incident, is inherent whenever members of the public are present during the selection of jurors. If broad concerns of this sort were sufficient to override a defendants constitutional right to a public trial, a court could exclude the public from jury selection almost as a matter of course. As noted in the dissent below, the majoritys reasoning permits the closure of voir dire in every criminal case conducted in this courtroom whenever the trial judge decides, for whatever reason, that he or she would prefer to fill the courtroom with potential jurors rather than spectators. 285 Ga., at 276, 674 S. E. 2d, at 913 (opinion of Sears, C. J.).
There are no doubt circumstances where a judge could conclude that threats of improper communications with jurors or safety concerns are concrete enough to warrant closing voir dire . But in those cases, the particular interest, and threat to that interest, must be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered. Press-Enterprise I, supra, at 510; see also Press-Enterprise Co. v. Superior Court of Cal., County of Riverside , 478 U. S. 1, 15 (1986) (The First Amendment right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of [the right to a fair trial]).
We need not rule on this second claim of error, because even assuming, arguendo , that the trial court had an overriding interest in closing voir dire , it was still incumbent upon it to consider all reasonable alternatives to closure. It did not, and that is all this Court needs to decide.
The Supreme Court of Georgias judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.