2021 IL 124832
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 124832)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
HAYZE L. SCHOONOVER, Appellee.
Opinion filed December 16, 2021.
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Anne M. Burke and Justices Theis, Michael J. Burke, Overstreet,
and Carter concurred in the judgment and opinion.
Justice Neville dissented, with opinion.
OPINION
¶1 A jury found defendant, Hayze L. Schoonover, guilty of three counts of
predatory criminal sexual assault of a child. At trial, the Champaign County circuit
court invoked section 115-11 of the Code of Criminal Procedure of 1963 (Code)
(725 ILCS 5/115-11 (West 2014)) to effectuate a temporary closure of the
courtroom during the minor victim’s testimony.
¶2 The appellate court majority reversed and remanded for a new trial after finding
the trial court committed second-prong plain error for failing to inquire as to
whether the spectators removed from the courtroom during the minor’s testimony
had a direct interest in the case.
¶3 We granted the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July
1, 2018). Finding no clear or obvious error under section 115-11 or the sixth
amendment (U.S. Const., amend. VI), we reverse the appellate court and remand
for further proceedings.
¶4 BACKGROUND
¶5 Defendant, Hayze L. Schoonover, was charged with four counts of predatory
criminal sexual assault against his niece, M.L., a child under 13, in violation of
section 11-1.40(a)(1) of the Criminal Code of 2012 (720 ILCS 5/11-1.40(a)(1)
(West 2014)). The State alleged defendant, who was over the age of 17, committed
“act[s] of contact” with the victim, M.L., who was under the age of 13, for the
purpose of defendant’s sexual gratification, in that he touched M.L.’s vagina with
his hand (count I), touched M.L.’s breasts with his hand (count II), placed his penis
in M.L.’s mouth (count III), and placed his penis in M.L.’s hand (count IV).
¶6 Relevant here are the proceedings surrounding the temporary and partial closure
of the courtroom during M.L.’s testimony at trial. The record reflects M.L. was the
first to testify for the State. Prior to M.L.’s testimony, the trial court indicated its
intention to have the courtroom cleared during M.L.’s testimony. The record
reflects the following exchange:
“THE COURT: When [M.L.] testifies, I want the courtroom cleared except
for family members.
MR. LARSON [(ASSISTANT STATE’S ATTORNEY)]: Thank you, Your
Honor.
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MR. ALLEGRETTI [(DEFENSE ATTORNEY)]: I’m sorry, Judge.
[Defendant’s] family members are here. Is that—are you barring them?
THE COURT: Out.”
¶7 Other matters relevant to the trial proceedings were then addressed before
returning to the issue of closing the courtroom during M.L.’s testimony. The record
reflects the following discussion:
“THE COURT: All right. Well pursuant to [section 115-11 of the Code (725
ILCS 5/115-11 (West 2014))], where the alleged victim of the offense is a minor
under eighteen years of age, the court may exclude from the proceedings while
the victim is testifying all persons who, in the opinion of the court, do not have
a direct interest in the case except the media. So I’m going to order that the
courtroom be cleared, with the exception of the media, when [M.L.] testifies. I
will note [defense counsel’s] objection.[1]
MR. LARSON: Your Honor, if I may.
THE COURT: Yes.
MR. LARSON: The victim’s grandmother is here and would like to remain.
THE COURT: She would be someone who is allowed to remain. All right.
With that—
MR. ALLEGRETTI: Judge, I’m sorry. Just one thing before we get started.
I just would like to make a standing objection to all 115-10 evidence.[2]
THE COURT: All right. The objection is overruled. Bring in the jurors.”
1
The record is devoid of any objection pertaining to section 115-11 (725 ILCS 5/115-11 (West
2014)) or the closure of the courtroom prior to the court’s statement.
2
Section 115-10 (725 ILCS 5/115-10 (West 2014)) permits the admission of out-of-court
statements made by a victim in certain criminal cases as an exception to the hearsay rule. Prior to
trial, the State filed a motion pursuant to section 115-10 to admit out-of-court statements made by
M.L. to family members recounting her interactions with defendant. The trial court granted the
State’s motion and held it would allow the statements to be admitted if M.L. were unavailable to
testify at trial.
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¶8 After the parties’ opening statements and prior to M.L. taking the stand, the
following discussion occurred outside the presence of the jury:
“THE COURT: All right. At this point pursuant to [section 115-11], I’m
going to clear the courtroom. Mr. Larson, you said the grandmother is going to
be present.
MR. LARSON: Yes, Your Honor.
THE COURT: Who else?
MR. LARSON: Your Honor, her father and stepfather we would also ask to
be present.
THE COURT: Who is in the back of the courtroom? Who is the gentleman
sitting there? And then the rest of the people on this side. All right. As soon as
we get done with her testimony, I will bring the rest of the people in the
courtroom.”
¶9 After M.L. testified, the courtroom was reopened and remained open for the
remainder of the trial. M.L. was subsequently recalled and testified a second time
where she testified in open court.
¶ 10 The jury convicted defendant of three counts of predatory criminal sexual
assault of a child, including counts I, III, and IV. The trial court sentenced defendant
to consecutive imprisonment terms totaling 85 years.
¶ 11 In a posttrial motion for new trial, defendant alleged errors unrelated to the
partial closure of the courtroom. The trial court denied the motion.
¶ 12 On appeal, defendant argued the partial closure violated section 115-11 of the
Code (725 ILCS 5/115-11 (West 2014)) and his right to a public trial under the
sixth amendment of the United States Constitution (U.S. Const., amend. VI). 2019
IL App (4th) 160882. Specifically, defendant argued he was denied his
constitutional right to a public trial when the trial court cleared the courtroom
during M.L.’s testimony pursuant to section 115-11. Defendant also maintained the
court violated statutory requirements when clearing the courtroom and improperly
excluded persons with a direct interest in his trial.
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¶ 13 In response, the State argued defendant’s claims were “waived” when counsel
failed to object to the closure of the courtroom. Further, the State argued the record
was devoid of any indication that the spectators who were excluded were immediate
family members or otherwise had a direct interest in the case.
¶ 14 In a thorough discussion, the majority of the appellate court found defendant’s
claims were not waived but forfeited. 3 Although forfeited, the court reviewed the
claims for plain error. The court found that noncompliance with the statute
constituted second-prong plain error and denied defendant his right to a public trial.
The court ultimately reasoned the trial court overstepped its authority under section
115-11 because it failed to make an express finding concerning the interests of those
excluded. The court held:
“The [trial] court’s failure to make any inquiry indicates that it did not make an
informed decision as to whether the family members brought to its attention
had a direct interest in the proceedings prior to excluding them. Such action
amounted to a blanket exclusion of anyone other than members of M.L.’s
family and the media and constituted a violation of statutory requirements.”
2019 IL App (4th) 160882, ¶ 29.
¶ 15 The appellate court majority reversed the convictions and remanded for a new
trial. Justice DeArmond, in dissent, argued that, while the court should have
conducted a greater inquiry into the identity and relationship of those present,
defendant failed to sustain his burden or clearly express his objection. Id. ¶¶ 59-86
(DeArmond, J., dissenting).
¶ 16 This court allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff.
July 1, 2018).
¶ 17 ANALYSIS
¶ 18 At issue is whether the trial court’s partial and temporary closure and exclusion
of spectators from the courtroom during M.L’s testimony, without making an
3
The issue of waiver is not raised before this court. Instead, the State raises the issue of
forfeiture.
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express determination as to whether each spectator asked to leave during the closure
had a direct interest in the case, violated section 115-11 of the Code and, in turn,
defendant’s constitutional right to a public trial pursuant to the sixth amendment.
¶ 19 Whether an individual’s constitutional rights have been violated is subject to
de novo review. People v. Hale, 2013 IL 113140, ¶ 15. This case also presents an
issue of statutory construction subject to de novo review. People v. Hunter, 2013
IL 114100, ¶ 12; People v. Zimmerman, 239 Ill. 2d 491, 497 (2010).
¶ 20 Forfeiture
¶ 21 First, we consider whether the issue is subject to review. The State argues
(1) defendant forfeited his claims when he failed to object at trial and in a posttrial
motion and (2) the appellate court erred when it excused defendant’s forfeiture as
second-prong plain error. Defendant acknowledges he failed to preserve his claims
for appellate review; however, he maintains he is excused under the plain error
doctrine.
¶ 22 “To preserve a purported error for consideration by a reviewing court, a
defendant must object to the error at trial and raise the error in a posttrial motion.”
People v. Sebby, 2017 IL 119445, ¶ 48. Failure to preserve an error results in
forfeiture. Id.
¶ 23 Finding no objection to the removal of spectators from the courtroom on the
record nor finding the issue raised in a posttrial motion, as well as recognizing
defendant’s acknowledgment that he failed to preserve his claim, we conclude
defendant forfeited his claim.
¶ 24 Plain Error
¶ 25 Finding forfeiture, we consider whether defendant’s forfeiture may be excused.
A defendant’s forfeiture may be excused under the plain error doctrine. Id. Illinois
Supreme Court Rule 615(a) (eff. Jan. 1, 1967) provides “[p]lain errors or defects
affecting substantial rights may be noticed although they were not brought to the
attention of the trial court.” As such, “remedial application of the plain error
doctrine is discretionary.” People v. Clark, 2016 IL 118845, ¶ 42.
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¶ 26 “A defendant seeking plain-error review has the burden of persuasion to show
the underlying forfeiture should be excused.” People v. Johnson, 238 Ill. 2d 478,
485 (2010) (citing People v. Herron, 215 Ill. 2d 167, 187 (2005)). “The ultimate
question of whether a forfeited claim is reviewable as plain error is a question of
law that is reviewed de novo.” Id. (citing People v. McLaurin, 235 Ill. 2d 478, 485
(2009)).
¶ 27 The plain error doctrine is applicable when a clear or obvious error occurred
and (1) the evidence is so closely balanced that the error alone threatened to tip the
scales of justice against the defendant (first-prong plain error) or (2) the error is so
serious that it affected the fairness of the defendant’s trial and challenged the
integrity of the judicial process (second-prong plain error). Clark, 2016 IL 118845,
¶ 42.
¶ 28 The State argues the appellate court erred when it found second-prong plain
error. The State contends a courtroom closure only exceeds the scope of section
115-11 when it in fact excludes the media or persons who have a direct interest in
the case. The State notes the appellate court majority recognized that defendant did
not in fact prove that persons with a direct interest in the case were improperly
excluded from the courtroom during M.L.’s testimony. Further, while the trial court
may solicit information from the parties to make a determination, section 115-11
does not mandate such a determination. Moreover, even if the court exceeded the
scope of section 115-11 when it failed to further inquire about the remaining
spectators, such failure does not amount to a violation of the sixth amendment.
¶ 29 Defendant argues section 115-11 serves as a limited pathway by which a trial
judge can effect a partial courtroom closure without conducting the more complex
Waller test. See generally Waller v. Georgia, 467 U.S. 39 (1984). As a result, a
court’s failure to strictly comply with section 115-11 places a court in
“constitutional peril.” Defendant posits that, absent section 115-11, a trial court
must abide by the more stringent limitations established by the United States
Supreme Court in Waller. See generally id. Further, defendant argues that failure
to meet the requirements of section 115-11 necessarily results in a failure to meet
constitutional standards. Defendant ultimately suggests this court should find that
a statutory violation alone requires reversal.
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¶ 30 The preliminary question of whether the plain error doctrine applies is whether
a clear or obvious error occurred. Sebby, 2017 IL 119445, ¶ 49.
¶ 31 We start by determining whether section 115-11 applies. Section 115-11 states,
“In a prosecution for [certain sex offenses, including predatory criminal sexual
assault of a child (720 ILCS 5/11-1.40 (West 2014))], where the alleged victim
of the offense is a minor under 18 years of age, the court may exclude from the
proceedings while the victim is testifying, all persons, who, in the opinion of
the court, do not have a direct interest in the case, except the media.” 725 ILCS
5/115-11 (West 2014).
It is evident the statute applies here as defendant was charged with four counts of
predatory criminal sexual assault of a child and the testifying witness was the
victim, a minor. See id.
¶ 32 Section 115-11 also presents express limitations on the trial court’s ability to
close a courtroom: (1) the media shall not be excluded, (2) persons that, in the
opinion of the court, with a direct interest in the case shall not be excluded, and
(3) the exclusion may occur only while the minor victim is testifying. Id.
¶ 33 The State argues that, like in People v. Falaster, 173 Ill. 2d 220 (1996), the trial
court here properly exercised its discretion under section 115-11 when it excluded
defendant’s nonimmediate family members without a direct interest in the outcome
of the case. The State contends that the exclusion of the unidentified spectators did
not plainly exceed the scope of section 115-11 nor was it clear or obvious error to
make such an exclusion. In response, defendant argues the appellate court correctly
determined the trial court’s failure to comply with section 115-11 was error because
no express findings were made.
¶ 34 In Falaster, 173 Ill. 2d at 222, the defendant was charged and convicted of two
counts of aggravated criminal sexual assault, one count of criminal sexual assault,
and one count of unlawful distribution of harmful material; the victim was a minor.
The appellate court affirmed the defendant’s convictions after, in part, rejecting the
argument that the trial court improperly excluded spectators from a portion of the
proceedings pursuant to section 115-11. Id. at 225. In affirming the appellate court,
this court noted (1) the trial court did not close the trial (instead it ordered the
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removal of spectators during the testimony of the 14-year-old victim), (2) the
persons excluded were not immediate family members of the defendant and thus
did not have a direct interest in the outcome of the case, and (3) the court did not
impose any restrictions on the media, who were allowed continued access to the
proceedings. Id. at 226-28. Thus, we found “none of the evils of closed trials” were
implicated. Id. at 228.
¶ 35 We agree with the State and find no reason to deviate from our analysis in
Falaster. Like Falaster, section 115-11 is applicable to the facts of this case.
Analogous here, the trial court did not “close” the trial itself. Instead, the court
exercised its discretion and ordered the temporary removal of spectators from the
courtroom during M.L.’s testimony pursuant to the statute. The record is clear the
media was not excluded, and spectators were only temporarily excluded during
M.L.’s first round of testimony. While the removal of spectators here was referred
to as a closure, the removal of spectators was just that—a removal of spectators
pursuant to section 115-11.
¶ 36 Additionally, the record does not reflect that the persons excluded were
immediate family members or otherwise interested parties. While defense counsel
may have brought the presence of “family members” to the attention of the trial
court, the record is devoid of any clear indication that such family members were
immediate family members or that any family members were in fact excluded.
Instead, the record is clear the court was amenable to requests of allowing
additional family members to remain during M.L.’s testimony to include her
grandmother and stepfather. Further, when the court inquired as to the unidentified
remaining spectators, the record does not reflect that defense counsel—or the
spectators—identified those persons as family members, much less immediate
family members or otherwise interested parties, despite the court having read the
statute and its limitations almost verbatim in open court. We will not postulate that
those unidentified spectators were the family members that defense counsel
previously referenced, nor will we presume the unidentified spectators had a direct
interest in the case.
¶ 37 We now turn to whether it was error for the trial court to forgo making express
findings regarding the direct interests of each spectator removed from the
courtroom during M.L.’s testimony. The appellate court held:
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“The [trial] court’s failure to make any inquiry indicates that it did not make an
informed decision as to whether the family members brought to its attention
had a direct interest in the proceedings prior to excluding them. Such action
amounted to a blanket exclusion of anyone other than members of M.L.’s
family and the media and constituted a violation of statutory requirements.”
2019 IL App (4th) 160882, ¶ 29.
We disagree.
¶ 38 The parties and appellate court seem to assume (1) the individuals excluded
were in fact the family members defense counsel previously referenced and (2) the
objection noted by the trial court was (a) in fact made and (b) an objection to the
closure pursuant to section 115-11. The record does not reflect either contention,
nor will this court speculate or otherwise read objections into the record. We also
do not agree with the appellate majority that the trial court made no inquiry. To the
contrary, the record reflects the court acknowledged the remaining spectators and
inquired as to their identity, to which the record reflects no response by either party,
much less an objection by defense counsel:
“THE COURT: Who is in the back of the courtroom? Who is the gentleman
sitting there? And then the rest of the people on this side. All right. As soon as
we get done with her testimony, I will bring the rest of the people in the
courtroom.”
¶ 39 Whether a trial court must make an express determination to support its
“informed decision” as to whether excluded spectators had a direct interest in the
case is a question of statutory construction. In construing a statute, our primary goal
is to ascertain and give effect to the intent of the legislature. People v. Roberts, 214
Ill. 2d 106, 116 (2005). We look to the plain statutory language and will not depart
from the language by “reading into it exceptions, limitations, or conditions.” Id.
¶ 40 The plain language of section 115-11 is clear the trial court need only formulate
an opinion as to whether the spectators being excluded have a direct interest in the
case. See 725 ILCS 5/115-11 (West 2014). The determination as to whether a direct
interest exists is left to the discretion of the court. See id.; see also Sebby, 2017 IL
119445, ¶ 48. Contrary to defendant’s position and the appellate court’s contention,
nothing in the statute requires an express finding to be made. Further, “the trial
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court is presumed to know the law and apply it properly.” People v. Howery, 178
Ill. 2d 1, 32 (1997); see also People v. Smith, 176 Ill. 2d 217, 260 (1997); In re N.B.,
191 Ill. 2d 338, 345 (2000). Therefore, we cannot presume or speculate that the
court, in excluding the remaining yet-unidentified spectators, did so without
formulating an opinion in compliance with the statute. Thus, we find the court did
not violate section 115-11.
¶ 41 This court has held section 115-11 to be constitutional and exclusionary orders
to be valid where the order meets the requirements of the statute. See Falaster, 173
Ill. 2d at 228. Because section 115-11 is constitutional and having found the trial
court comported with the requirements and limitations of section 115-11, we find
no clear or obvious error here.
¶ 42 Having found no clear or obvious error as it pertains to the application of section
115-11, we now turn to whether there was clear or obvious error pertaining to
defendant’s sixth amendment right to a public trial.
¶ 43 A criminal defendant is guaranteed the right to a public trial under the sixth
amendment. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. The United
States Supreme Court has recognized the right to a public trial is “ ‘ “ ‘for the
benefit of the accused; that the public may see he is fairly dealt with and not unjustly
condemned, and that the presence of interested spectators may keep his triers keenly
alive to a sense of their responsibility and to the importance of their functions.’ ” ’ ”
Waller, 467 U.S. at 46 (quoting Gannet Co. v. DePasquale, 443 U.S. 368, 380
(1979), quoting In re Oliver, 333 U.S. 257, 270 n.25 (1948), quoting 1 Thomas M.
Cooley, A Treatise on the Constitutional Limitations 647 (8th ed. 1927)). The right
to a public trial also encourages witnesses to come forward and discourages perjury.
Id. Further, “trial courts are obligated to take every reasonable measure to
accommodate public attendance at criminal trials.” Presley v. Georgia, 558 U.S.
209, 215 (2010) (per curiam).
¶ 44 Closure of a trial or courtroom is not entirely prohibited, nor does every closure
violate the sixth amendment, as the right of access to criminal trials is not absolute.
See People v. Holveck, 141 Ill. 2d 84, 100 (1990). The United States Supreme Court
recognized the
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“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.” Waller,
467 U.S. at 48 (citing Press-Enterprise Co. v. Superior Court of California, 464
U.S. 501 (1984)).
Ultimately, the central aim of a criminal proceeding is to fairly try the accused. Id.
at 46.
¶ 45 This court has clearly held that the stringent limitations prescribed by the United
States Supreme Court only apply in instances in which the press and public are
barred from judicial proceedings. See Falaster, 173 Ill. 2d at 228. That is not the
case before this court. Here, neither the press nor public was barred from the
judicial proceedings, as the trial court invoked section 115-11, which expressly
prohibits the exclusion of the media from the courtroom. See 725 ILCS 5/115-11
(West 2014); see also Holveck, 141 Ill. 2d at 102-03 (stating the trial court properly
invoked section 115-11, which does not violate the constitution).
¶ 46 It is well settled that the presence of the media preserves a defendant’s right to
a public trial as well as the fundamental protections afforded by that right. The
media is “in effect, the presence of the public.” Holveck, 141 Ill. 2d at 101. By
allowing the media to attend, a trial court preserves a defendant’s right to a public
trial. Id.; see also Falaster, 173 Ill. 2d at 227.
¶ 47 Here, the courtroom remained opened to the media pursuant to section 115-11.
Where the statute applies and the statutory requirements are met, the trial court’s
order does not need to meet “the more stringent limitations established by the
United States Supreme Court for the closure of judicial proceedings to the press
and public” because the media is allowed to remain and the media is the public. Id.
at 226-27. Ultimately, it cannot be said that the temporary closure during a minor
victim’s testimony in this case with the media allowed to remain somehow resulted
in a trial behind closed doors, deprived defendant of the protections encompassed
by the sixth amendment’s right to a public trial, or otherwise subjected him to the
evils of closed trials. See id. at 228. Further, the statute was narrowly invoked, and
the closure was limited, as further evidenced by the courtroom remaining open
while other witnesses testified as well as when M.L. testified a second time.
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¶ 48 Having found no clear or obvious error—neither under section 115-11 nor the
sixth amendment—our inquiry under the plain error doctrine ends here.
¶ 49 Cross-Relief
¶ 50 In defendant’s request for cross-relief, he argues (1) his trial counsel was
ineffective and (2) the trial court abused its discretion during sentencing.
¶ 51 Having found second-prong plain error requiring reversal, the appellate court
found it unnecessary to address the remaining claims of error pertaining to
ineffective assistance of counsel and an abuse of the trial court’s discretion during
sentencing. 2019 IL App (4th) 160882, ¶ 45.
¶ 52 Having found no error as it pertains to section 115-11 or defendant’s sixth
amendment right to a public trial, however, we do not reach the issues presented
for cross-relief and remand to the appellate court to address the remaining claims
of error.
¶ 53 CONCLUSION
¶ 54 For the foregoing reasons, we find the trial court did not violate section 115-11
of the Code, nor did it violate defendant’s sixth amendment right to a public trial
when it effectuated a partial and temporary closure of a courtroom during a minor
sex victim’s testimony pursuant to section 115-11. The judgment of the appellate
court is reversed, and we remand the cause to the appellate court for further
proceedings.
¶ 55 Appellate court judgment reversed.
¶ 56 Cause remanded.
¶ 57 JUSTICE NEVILLE, dissenting:
¶ 58 The trial judge excluded public spectators from a portion of the defendant’s trial
without asking the excluded spectators about their interest in the case. The majority
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shifts the burden of protecting the right to a public trial from the trial court to the
defendant. The trial judge violated the defendant’s sixth amendment right and the
public’s first amendment right to a public trial. Accordingly, I respectfully dissent.
¶ 59 I. The Defendant’s Right to a Public Trial
¶ 60 A. The Trial Judge Abused His Discretion
¶ 61 The trial judge exercised discretion under section 115-11 of the Code of
Criminal Procedure of 1963 (725 ILCS 5/115-11 (West 2014)) to restrict public
access to the courtroom during M.L.’s testimony. Section 115-11 permitted the
judge to “exclude from the proceedings while the victim is testifying, all persons,
who, in the opinion of the court, do not have a direct interest in the case, except the
media.” Id. “[A] trial court acting pursuant to section 115-11 may properly exclude
*** only those spectators whose connection to the case *** is tenuous or whose
presence simply reflects their curiosity about the *** proceedings,” but “a direct
interest is more likely to exist if a spectator’s interest is predicated on a relationship
with the defendant predating the commencement of the proceedings.” (Internal
quotation marks omitted.) People v. Revelo, 286 Ill. App. 3d 258, 265 (1996). The
defendant’s immediate family members have a direct interest in the case. People v.
Radford, 2020 IL 123975, ¶ 34.
¶ 62 Section 115-11 requires a trial judge to form an opinion about the interests of
spectators before excluding them from the courtroom. 725 ILCS 5/115-11 (West
2014). The judge’s opinion, like an expert’s opinion, “is only as valid as the bases
and reasons for that opinion.” McClure v. Owens Corning Fiberglass Corp., 188
Ill. 2d 102, 151 (1999). The judge’s opinion, like an expert opinion, “cannot be
based on mere conjecture and guess.” Damron v. Micor Distributing, Ltd., 276 Ill.
App. 3d 901, 907 (1995) (citing Dyback v. Weber, 114 Ill. 2d 232, 244-45 (1986)).
¶ 63 We review the decision to exclude spectators for abuse of discretion. People v.
Holveck, 141 Ill. 2d 84, 102-03 (1990). This court “must look to the criteria on
which the trial court should rely to determine if the trial court abused its discretion.”
(Internal quotation marks omitted.) People v. Ortega, 209 Ill. 2d 354, 360 (2004).
A trial court abuses its discretion “if it fails to apply the proper criteria when it
weighs the facts.” Id. When we review the trial judge’s exercise of discretion, we
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“must consider *** the legal adequacy of the way the trial court reached its result.”
Id.
¶ 64 The statute establishes a single criterion for determining whether the trial judge
may exclude spectators from the courtroom during the testimony of a minor in a
prosecution for sex offenses committed against that minor. 725 ILCS 5/115-11
(West 2014). Section 115-11 directs the trial judge to form an opinion as to whether
the spectators have a direct interest in the case, and the section permits the exclusion
of only those who have no such interest. Id.
¶ 65 The trial judge here heard no evidence or assertions about the interests of the
spectators, apart from defense counsel’s statement that the spectators included
members of the defendant’s family. The trial judge had no adequate basis to form
an opinion about the interests of the excluded members of the public. I would hold
the trial judge violated section 115-11 and abused his discretion by failing to inquire
sufficiently to form an informed opinion about the interests of the spectators before
excluding them from the courtroom.
¶ 66 B. The Majority’s Reliance on Falaster Is Misplaced
¶ 67 The majority relies on People v. Falaster, 173 Ill. 2d 220 (1996), as authorizing
the court’s decision here. But the trial judge in Falaster, unlike the trial judge here,
knew about the interests of the spectators excluded from the court:
“The persons excluded from the courtroom by the judge’s order were two
nephews of the defendant and the grandfather of one of the nephews. ***
***
*** The persons who were temporarily excluded from the proceedings were
not members of the defendant’s immediate family and thus did not have a direct
interest in the outcome of the case.” Id. at 225, 228.
¶ 68 Falaster stands for the proposition that a judge does not violate section 115-11
if the judge excludes spectators from a limited part of the trial if the judge first
learns, before the exclusion, that the spectators do not include members of the
defendant’s immediate family or others with a direct interest in the case. See 725
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ILCS 5/115-11 (West 2014). Falaster does not authorize a court to exclude
spectators without an inquiry into their interest in the case. Falaster, 173 Ill. 2d at
225-30; 725 ILCS 5/115-11 (West 2014). Therefore, an exclusion order is only
valid if the trial judge fully complies with section 115-11’s requirements. Falaster,
173 Ill. 2d at 228; 725 ILCS 5/115-11 (West 2014).
¶ 69 C. The Majority Shifts the Burden From the Trial Court
to the Defendant to Protect the Right to a
Public Trial
¶ 70 The majority defends the trial judge’s decision here on grounds that defense
counsel did not identify any excluded spectators as members of the defendant’s
immediate family or as otherwise interested parties. See supra ¶ 35. This reasoning
shifts the burden of protecting the right to a public trial onto the defendant.
According to the American Bar Association, “The trial judge has the responsibility
for safeguarding *** the interests of the public in the administration of criminal
justice.” ABA Standards for Criminal Justice—Special Functions of the Trial Judge
§ 6-1.1(a) (3d ed. 2000). The majority provides no adequate grounds for shifting
the responsibility for protecting the right to a public trial from the court onto the
defendant.
¶ 71 The trial judge’s exclusion of spectators here, without any basis for forming an
opinion of their interest in the case—without even asking whether the defendant’s
family in the courtroom included members of the defendant’s immediate family—
constitutes structural error requiring reversal. This court, in People v. Thompson,
238 Ill. 2d 598, 608-09 (2010), recognized “denial of a public trial” as structural
error. See Weaver v. Massachusetts, 582 U.S. ___, ___,137 S. Ct. 1899, 1910
(2017) (explaining structural error in denial of public trial).
“[A] defendant need not prove specific prejudice when a trial court excludes
persons with a direct interest in the proceeding. *** It would be difficult, if not
impossible, *** to prove, or the State to disprove, prejudice. However, if section
115-11 is to confer anything beyond a meaningless right without a remedy,
defendants must conclusively be presumed to be prejudiced by a section 115-
11 violation.” Revelo, 286 Ill. App. 3d at 267.
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Accordingly, I would find the trial judge violated the defendant’s sixth amendment
right to a public trial and committed plain error requiring reversal when he excluded
spectators from the courtroom without inquiring into their interest in the
proceedings.
¶ 72 II. The Public’s Right to a Public Trial
¶ 73 A. The Public Has a First Amendment Right to a Public Trial
¶ 74 The public has a first amendment right to a public trial that is independent from
the press’s first amendment right to a public trial. Weaver, 582 U.S. at ___, 137 S.
Ct. at 1910. The presence of the media is not an adequate substitute for the presence
of the public. See Radford, 2020 IL 123975, ¶¶ 110-12 (Neville, J., dissenting).
¶ 75 As I noted in Radford, courtroom audience members differ from the press
because audience members are not “ ‘attracted to the courthouse by famous or
newsworthy stories in the way that the institutional press is.’ ” Id. ¶ 112 (quoting
Jocelyn Simonson, The Criminal Court Audience in a Post-Trial World, 127 Harv.
L. Rev. 2173, 2190 (2014)). “ ‘Instead, audience members arrive at their local
courthouse because of actual events in their communities that have affected them
or their loved ones.’ ” Id. (quoting Simonson, supra, at 2190). The public has an
important and distinct identity and role in the criminal justice system. See id. ¶ 109.
“ ‘When community members gain access to a nontrial courtroom, their presence
in court does not just affect the case that they are there to see. The effect of their
presence in the courtroom can be to change the nature of the nontrial proceedings
as well.’ ” Id. (quoting Simonson, supra, at 2182).
¶ 76 B. The Trial Judge Has Responsibility to the Press
But Also to the Public
¶ 77 Because the public spectators had an independent first amendment right to be
present at defendant’s trial, the trial judge had a responsibility under section 115-
11 not only to the press but also to the public spectators to inquire as to their interest
in attending the trial so the trial judge could form an informed opinion as to whether
they had a direct interest in the case before excluding them. ABA Standards for
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Criminal Justice—Special Functions of the Trial Judge § 6-1.1(a) (3d ed. 2000).
Moreover, a commentator has asserted that the trial judge should act as the great
equalizer in criminal trials: “The trial judge’s role in safeguarding the rights of the
accused and the interests of the public is not simply a professional duty, but an
ethical obligation.” Mary Sue Backus, The Adversary System Is Dead; Long Live
the Adversary System: The Trial Judge as the Great Equalizer in Criminal Trials,
2008 Mich. St. L. Rev. 945, 951 (2008).
¶ 78 By failing to ask the public spectators about their interests in the case, the trial
judge committed structural error and violated his statutory duty to form an informed
opinion about those interests before excluding members of the public from the trial.
By shifting the burden to the defense to identify members of the public with a direct
interest in the case, the majority improperly shifts from the trial judge to the
defendant the burden of protecting the interests of the public in public trials. I would
reverse because the trial judge also violated the public’s first amendment right to a
public trial.
¶ 79 III. Conclusion
¶ 80 The trial court violated the defendant’s sixth amendment right and the public’s
first amendment right to a public trial in its implementation of section 115-11 (1) by
failing to ask public spectators about their interests in the case and (2) by failing to
form an informed opinion about those interests before excluding members of the
public from the trial. This court should not create excuses when the trial judge
deprives the defendant and the public of their constitutional right to a public trial. I
cannot join the majority’s opinion, which ignores the right to a public trial.
Therefore, I respectfully dissent.
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