Tinsley v. United States

GLICKMAN, Associate Judge,

concurring in part and dissenting in part.

I disagree with Part III.B.(2) of the court’s opinion and, consequently, with my colleagues’ resolution of this appeal. The Sixth Amendment requires that any exclusion of members of the public from a criminal trial “must be no broader than neces*881sary” to fulfill its legitimate objectives. Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). The exclusion order in this case violated that requirement. The sole justification for closing the courtroom was to enable the intimidated witness, Sadler, to testify.1 To comport with the Sixth Amendment, the exclusion order therefore should have expired when Sadler finished testifying. See, e.g., McClinton v. United States, 817 A.2d 844, 860 (D.C.2003); Bell v. Jarvis, 236 F.3d 149, 168 (4th Cir.2000) (en banc); Woods v. Kuhlmann, 977 F.2d 74, 77 (2d Cir.1992). Instead, the order was open-ended; by not setting any limit, the trial judge unjustifiably ordered Tinsley’s family members and their associates out of the courtroom for the rest of the trial.

My colleagues agree that any exclusion of spectators should have been limited to the period of time during which Sadler was on the witness stand, and they are prepared to concede that the duration of the exclusion order was (at least) “ambiguous.” Ante at 877, 878. Nonetheless, my colleagues deem it “apparent that the order was intended to last only for the duration of Sadler’s testimony.” Ante at 878. I do not agree that we can so divine the trial judge’s unspoken intent. It is puzzling, if the trial judge truly intended the exclusion of the spectators to be temporary, that she did not so state. It is wishful thinking to infer that because the rationale expressed by the judge during the bench conference did not support her formal ruling, she did not mean to rule as she did. Notably, the government makes no such claim.

More important than what the trial judge intended, however, is what she actually did. With all due respect to my colleagues, her exclusion order was not “ambiguous on its face.” Ante at 877-78. The record shows that the judge expelled Tins-ley’s family and friends unconditionally. She did not state that the spectators eould reenter the courtroom following Sadler’s stint on the stand, nor did she explain to them why they were being removed. My colleagues overstate the case when they argue that the limited purpose of the exclusion order “was plainly known to all involved.” Ante at 877. The subjects of the order — the spectators — were not present at the bench conference. So far as the record indicates, they did not know why they were ejected and had no reason to think they could soon, or ever, return. Although Tinsley asserts only his own Sixth Amendment right to a public trial and not also the spectators’ own First Amendment right to attend the trial, both constitutional rights were violated by an order that expelled the public without notice that expulsion was only temporary. Furthermore, even if Tinsley and his defense counsel were aware of the underlying justification for the exclusion order, that does not mean they necessarily understood the order to be narrowly tailored in accordance with its rationale. Tinsley and *882his counsel reasonably could have inferred that the judge meant to eliminate entirely the potentially poisonous presence in the courtroom of persons whose appearance had caused at least one witness to be fearful and who were suspected of having engaged in witness intimidation. The record thus affords us no reason to think that the spectators or anyone else in the courtroom interpreted the exclusion to expire when Sadler finished testifying.

Further, there is no evidence that the excluded spectators ever were allowed back into the courtroom. The government argues that because it is Tinsley’s burden “to present this court with a record sufficient to show affirmatively that error occurred,” Cobb v. Standard Drug Co., 453 A.2d 110, 111 (D.C.1982), we “may not reverse based upon speculation that [Tins-ley’s] family was excluded” from the balance of the trial after Sadler’s examination ended. However, in the absence of any evidence to the contrary, the presumption surely is that the judge’s order was obeyed according to its terms. It would be “speculation” to presume otherwise. Tinsley therefore has shouldered his burden of presenting us with a record that affirmatively shows error, and the burden has shifted to the government to show that what the judge erroneously ordered did not, in fact, occur.

The government’s only effort to carry this burden is its argument that since “defense counsel did not request that appellant’s family members have an opportunity to watch the defense case or the closing arguments, it is entirely possible that they were, in fact, readmitted to the courtroom.” This conjectural possibility hardly serves to demonstrate that Tinsley’s family members in fact were allowed back into the courtroom to watch the remainder of the trial.2 From the fact that no one — not the prosecutor, nor the defense counsel, nor the judge — noted the reappearance of the excluded spectators, it is more natural to infer that none of them came back. For example, had Tinsley’s mother sought to return after Sadler left the stand, counsel most likely would have requested permission from the judge for her to reenter the courtroom, given that the judge had placed no temporal limit on her exclusion.

While Tinsley objected to the expulsion order in its entirety, my colleagues fault him for not objecting specifically to “the alleged overbreadth of the exclusion at trial.” Ante at 878. As a matter of law, however, this omission did not constitute a waiver of the objection. Rather, the only possible legal significance of the omission is that, on appeal, the specific “over-breadth” argument might be subject to the rigors of “plain error” review. See Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).3 My colleagues do not invoke the plain error rule or evaluate Tinsley’s claim according to its strictures, however; nor does the *883government contend that Tinsley forfeited his “overbreadth” objection and must show plain error to prevail on it.4

There is good reason not to invoke the plain error standard of review in this case. This court does not “apply plain error review in a rigid fashion which elevates form over the practical dynamics of trial litigation.” Brown v. United States, 726 A.2d 149, 154 (D.C.1999). We appreciate that “difficult questions may ... arise at trial with little warning, and ... trial counsel (and indeed, the judge) may be ‘understandably taken off guard by a completely unexpected denouement.’ ” Salmon v. United States, 719 A.2d 949, 953 (D.C.1997) (citations omitted). When that happens, our cases do not hold counsel to unrealistic standards of precision. Rather, we treat a claim as preserved for appeal so long as the judge is “fairly apprised as to the question on which [she] is being asked to rule.” Id. (internal quotation marks and citations omitted); see also Hunter v. United States, 606 A.2d 139, 144 (D.C.1992). Moreover, “once a ... claim is properly presented [to the trial court], a party can make any argument [in the appellate court] in support of that claim; parties are not limited to the precise arguments made below.” Yee v. Escondido, 503 U.S. 519, 534, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992); see, e.g., Stancil v. United States, 866 A.2d 799, 805 (D.C.App.2005); West v. United States, 710 A.2d 866, 868 n. 3 (D.C.1998).

As my colleagues and the government implicitly concede, these principles preclude application of a plain error review standard here. Issues concerning the Sixth Amendment right to a public trial seldom arise at all, and here those issues arose in the midst of trial with no warning. It would be unreasonable to expect defense counsel in such a situation to have at his fingertips the particular criteria that the Supreme Court enunciated in Waller. It is enough that Tinsley objected and put the trial judge (and the prosecutor) on notice of his basic claim that the order of exclusion was not justified. The record confirms that the judge was well aware of the legal issue before her, because she acknowledged that “extreme circumstances” had to exist to justify any exclusion. Given that express acknowledgment, it is perfectly fair to view the judge as being on notice that any order of exclusion must be no broader than the circumstances justified. My colleagues admit as much when they confidently (though, in my view, mistakenly) opine that the judge intended her order to be of limited duration. Cf. Stancil, at 804-05. (“In this case, as in Chatmon v. United States, 801 A.2d 92, 100 (D.C.2002), the appellant ‘benefits from the supervision of the trial by an attentive trial judge,’ who recognized the existence of a significant issue.... ”). Thus, although Tinsley did not argue to the trial judge specifically that the unlimited duration of the order of exclusion was broader than necessary, he is entitled under Yee, Stancil and West to present that *884argument on appeal in support of his basic claim, which is unquestionably preserved.

As Tinsley’s objection to the duration of the courtroom closure is preserved, we must determine the relief to which he is entitled on account of the unconstitutional exclusion order. There can be no argument that the unjustified courtroom closure in this case was de minimis or trivial. So far as appears, it encompassed part of the prosecution case, the entire defense case, jury instructions, and closing arguments. A substantial portion of Tinsley’s trial was not open to the public. That is not a technicality; even if unintentional, it is a grievous departure from a fundamental principle of the administration of justice. It is not something we should dismiss as unimportant or harmless. “The violation of the constitutional right to a public trial is a structural error, not subject to harmless error analysis.” Bell, 236 F.3d at 165; see Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Therefore, Tinsley is nbt required to show prejudice in order to be entitled to a new trial. Kleinbart v. United States, 388 A.2d 878, 882 (D.C.1978); Waller, 467 U.S. at 49-50, 104 S.Ct. 2210. The constitutional deprivation is “per se reversible.” Kleinbart, supra.

That said, I note that there is a potentially significant gap in the record regarding the implementation of the order of ejection. The order evidently was communicated to at least some of the spectators by the courtroom marshal rather than by the judge herself. This communication was accomplished off the record. Although it may be presumed that the marshal faithfully transmitted the judge’s order, the fact remains that the trial transcript does not disclose whether the marshal informed the spectators that they could return after Sadler finished testifying. I do not regard it as wholly implausible that the marshal might have done so. Moreover, as the government argues, the record does not conclusively exclude all possibility that the ejected spectators eventually did return to the courtroom (or understood, somehow, that they could return) after Sadler finished testifying. This is a consequence, perhaps, of the fact that no one focused on the question during the trial. In light of the residual uncertainties, I think that immediate reversal of Tinsley’s convictions would be premature. Instead, it would be appropriate to give the government an opportunity to prove, if it can, that the spectators ejected from Tinsley’s trial actually were allowed to return following Sadler’s examination. Cf. United States v. Doe, 63 F.3d 121, 131 (2d Cir.1995) (remanding in light of “the sparseness of the record” for the trial court to make factual findings respecting its closure order); Stancil, supra (remanding the record for trial court to make findings on whether out-of-court statements admitted against defendant were “testimonial”).

Accordingly, I would remand the record for the judge to hold a hearing to determine what the spectators actually were told regarding the duration of their exclusion. 'Unless the spectators were excluded only while the intimidated witness was still on the stand, Tinsley should receive a new trial.

. None of the spectators disrupted the trial or otherwise engaged in misconduct during the proceeding. Thus their exclusion was not necessary to maintain order and decorum in the courtroom. Cf. Zeledon v. United States, 770 A.2d 972, 978 (D.C.2001) (finding no plain error in the exclusion of family members who carried signs urging that the defendant be acquitted). Further, none of the spectators was identified as having participated in the attack on Sadler. (I do not overlook the prosecutor’s proffer that Tinsley’s mother had threatened Sadler. The prosecutor did not disclose the circumstances of the alleged threat and did not view the incident as being serious enough to warrant the mother’s removal. It is not contended that this allegation warranted the mother’s total exclusion. As a general matter, though, I would think that a spectator who actually has threatened a witness reasonably could be excluded from the entire trial and not just while the particular threatened witness is on the stand.)

. Among other things, both the government and my colleagues ignore the fact that when the spectators were expelled without being informed that they could return, they had no reason to remain indefinitely in the vicinity of the courtroom. Instead, it is "entirely possible” (to quote the government; I would say it is probable) that they simply left the courthouse. If this is indeed what happened, defense counsel would not have been in a position to request that they be readmitted to observe the balance of the trial.

. Under Superior Court Criminal Rule 52(b), as under its federal counterpart, "before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights.... If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson, 520 U.S. at 466-67, 117 S.Ct. 1544.

. Rather, the government agrees that our review in this case is for abuse of discretion. When the government has not argued for it, we have declined to apply the plain error standard of review sua sponte. See In re T.L., 859 A.2d 1087, 1090-91 n. 6 (D.C.2004); Medrano-Quiroz v. United States, 705 A.2d 642, 648-49 (D.C.1997); see also Rose v. United States, 629 A.2d 526, 537 (D.C.1993). Courts of appeals "consistently” have held that "when [the government] has neglected to argue on appeal that a defendant has failed to preserve a given argument in the [trial] court ... the government has 'waived waiver.’ ” United States v. Quiroz, 22 F.3d 489, 491 (2d Cir.1994) (citing cases); see, e.g., United States v. Fields, 371 F.3d 910, 916 n. 3 (7th Cir.2004); United States v. Beckham, 296 U.S.App. D.C. 311, 318 n. 5, 968 F.2d 47, 54 n. 5 (1992).