2nd Cir: District Court made findings, based on father's affidavit, that the closure of the Courtroo
The government recovered a Yahoo transcript between Defendant Ledee and a mother and her child (referred to as KO) describing various sexual acts a mother performed via webcam with her child, KO. The government executed a warrant and confronted Ledee up where “Ledee also admitted that he was masturbating during the chat session and could see KO’s mother sexually abusing KO via the webcam.”
“On March 30, 2012, prior to trial, the government moved to close the courtroom during KO’s testimony pursuant to 18 U.S.C. § 3509(e). Section 3509(e) permits such closure, on conditions which the government argued were met, to all persons ‘who do not have a direct interest in the case.’” Affidavits were submitted by KO’s father and by the Defendant. After hearing from both sides and Defendant Ledee objecting to his parents being removed from the Courtroom during the portion of KO’s testimony, “[t]he district judge held that ensuring KO’s uninhibited testimony was an overriding interest that would likely be prejudiced unless the courtroom were closed and that such closure during KO’s testimony would be no broader than necessary to protect that interest.” KO’s testimony was heard and Ledee was convicted.
His appeal raises the issue of whether his sixth amendment right to a public trial was violated when Defendant Ledee’s parents were removed from the Courtroom during KO’s testimony.
In order to close the courtroom in compliance with the Sixth Amendment, (1) the closure must “advance an overriding interest that is likely to be prejudiced”; (2) the closure must be “no broader than necessary to protect that interest”; (3) the trial court must consider “reasonable alternatives to closing the proceeding”; and (4) the trial court must make “findings adequate to support the closure.” United States v. Smith, 426 F.3d 567, 571 (2d Cir. 2005) (citing Waller, 467 U.S. at 48).
The Second Circuit held that “The interest at risk of being prejudiced—KO’s ability to effectively communicate about her abuse—was sufficient to justify the relatively narrow closure here.” Indeed, “ensuring a child victim’s ability to effectively communicate is [] a compelling higher value that can justify a closure.” United States v. Yazzie, 743 F.3d 1278, 1287 (9th Cir. 2014). KO’s father’s affidavit was sufficient, the Court found, to mandate a closure for KO, a sexually abused minor child who was ten years old at the time of trial. The closure was sufficient because it was only during KO’s testimony and the transcript was made public. The Second Circuit found that reasonable alternatives to closure were considered and that Defendant Ledee’s alternatives were unreasonable and, therefore, denied.
Lastly, the majority of the Court found that a sufficient record had been made (Judge Pooler dissenting on this issue):
[The district judge acknowledged that simply a parent’s opinion about his or her child’s ability to testify would be an insufficient justification. See Ledee, 2012 WL 1247222, at *2. Instead, the district judge credited KO’s father’s evaluation of KO’s emotional state because it was “based on specific instances he has observed, and the effect press coverage has had on KO in the past, rather than a generalized or projected fear or discomfort.” Id. at*1.]
The judgment was affirmed – Defendant sentenced to 325 months.
Dissent:
Judge Pooler, Circuit Judge stated that:
“The district court, in contravention of Supreme Court precedent, failed to make an adequate record as to what alternatives to closure it considered and why those alternatives were deemed inadequate.”
While the right to have family members present “may give way in certain cases to other rights or interests.” Waller, 467 U.S. at 45, the majority fails to appreciate the difference between excluding the defendant’s parents and excluding the general public and the press. But no one disagrees with the decision to close the courtroom to the press and general public.
The Court Failed to make a record: “Once a defendant objects to a courtroom closing, a trial court is required to consider reasonable alternatives to the closing, even in the absence of suggestions from the parties. Presley v. Georgia, 558 U.S. 209, 214 (2010). Thus, “[t]rial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials.” Id. There is no question that in some cases, an “overriding interest that is likely to be prejudiced” will provide a basis for closing the courtroom, unable to be overcome by a reasonable alternative. But when that is the case, “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.” Id. at 215 (internal quotation marks omitted).”
