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Jul 11 2012

Exclusion of Defendant’s Wife During Jury Selection Causes Reversal of Conviction

That pesky Constitution got in the way of a criminal conviction yet again in the case of People v. Torres a 2011 case out of Onandaga County in Upstate NY. Vincent Torres was convicted by a jury of burglary,sodomy and sexual abuse.

Onondaga County Judge William Walsh barred the defendant’s wife from the courtroom for the start of jury selection because there “wasn’t any room,” but made clear that she would be allowed to return once prospective jurors started to be excused.

However, it was one to two hours before a court officer invited the wife back into the courtroom. During that time Judge Walsh read preliminary instructions, the first panel of 21 possible jurors was questioned, two were excused on consent, 16 were rejected under peremptory challenges and two were seated.

The Sixth Amendment to the Constitution requires that criminal trial be open to the public and excluding the public from any phase of a trial violates that provision unless the court deems it necessary for public safety. In that case a strong record must be made. For example, when undercover narcotics officers testify, the courtroom is often closed to the public to protect their identity.

All five Fourth Department judges agreed that Walsh erred in closing the courtroom, and all agreed that a violation of the right to an open trial is not subject to harmless error analysis under People v. Martin, 16 NY3d 607 (2011). But they disagreed on the application of Martin, which, coincidentally, was handed down by the Court of Appeals the day after Torres’ wife was barred from the courtroom.

In Martin, the defendant’s father had been excluded for the better part of the day during jury selection, also because there was no room in the court. The Court rejected the argument that it was a minor violation stating that “a per se rule of reversal irrespective of prejudice is the only realistic means to implement this important constitutional guarantee.”

While the three judges in the Torres majority found that the 2 hour exclusion was not trivial in light of what occurred during that time period, they also held that Martin does not have a “triviality” exception to it,meaning that almost any closure of the courtroom or exclusion of the public may warrant reversal.

The dissent felt that the defendant should have said something once one or two jurors were excused and room was made, or else he should have been deemed to have waived the objection. The majority said that burden is on the court not defense counsel:

Under the circumstances of this case, in which the court specifically excluded the wife from the courtroom and it is undisputed that she did not reenter the courtroom before the court officer retrieved her, we conclude that the burden was on the court, not the excluded individual or the parties, to reopen the courtroom,” the majority said. “Thus, the courtroom was closed to defendant’s wife until such time as the court officer told her she had permission to reenter./blockquote>

The 3-2 decision is likely to end up before the Court of Appeals next year, where the Court will decide if (a) the 2 hour exclusion was trivial and (b) whether the Martin case even has a triviality exception.

What this case reflects is that counsel must be aware of the strong regard that courts have held to the right to a public trial and that counsel must make clear objections to any removal or restriction of the public without an adequate showing by the court.

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