The Supreme Court’s most recent orders list denied cert in a whole lot of cases; one of those denials drew a written dissent from Justice Sotomayor. She would have granted certiorari and summarily reversed an Eighth Circuit decision denying habeas relief to the defendant. Before trial, he’d sought further review and clarity about an evidentiary ruling excluding some evidence he wished to adduce; the court cleared the courtroom–over defense objection–for these proceedings on the theory that they might taint potential jurors. Everybody–all reviewing courts–agree this ruling didn’t and couldn’t satisfy the requirements set out in Waller v. Georgia, 467 U. S. 39 (1984), which established a fairly stringent balancing test for closing courtrooms.
Instead, the state supreme court held that the proceeding that the court held in secret was merely “administrative” and so not subject to Waller, and the lower federal courts found this conclusion not unreasonable under AEDPA. The problem, per Justice Sotomayor, is that there’s no “administrative” exception to the public trial right: it applies in all phases of a criminal prosecution. And, even allowing that there might be some instances where an in-chambers conference or recorded sidebar doesn’t violate the Constitution, a ruling excluding defense evidence is not such an instance. She also suggests that this isn’t just an odd one-off case, quoting the district court regarding Minnesota’s “disturbing trend” of “restricting public access to criminal trials more frequently and with greater severity.”
Review of our archives suggests we’ve had no reason to write about the public trial guarantee in recent years–there just haven’t been any citable Wisconsin cases. COVID may change this, and in any case, it’s something to look out for.