Charlie Buttrey

May 20, 2022

Among other things, the Sixth Amendment guarantees the right to a public trial. This right is not just personal to the defendant; in the words of Justice Oliver Wendell Holmes when he was on the Massachusetts Supreme Judicial Court, “the trial of causes should take place under the public eye… because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.”

At the height of the COVID pandemic in 2020, a U.S. District Court in California prohibited the public from attending the suppression hearing and trial of James David Allen II. Not only was the public barred, the court made no provision for remote attendance, although it permitted an audio stream of the proceedings.

Earlier this week (in a decision you can see HERE), a panel of the Ninth Circuit Court of Appeals held that this was a violation of the 6th Amendment, and ordered a new suppression hearing and a new trial.

The court emphasized that an order prohibiting the public’s visual access to a trial or suppression hearing will not always violate the defendant’s public trial right, as certain interests (such as national security) may be so compelling that prohibiting the public’s observation of some or all of the proceedings may be warranted. Here, however, the court concluded, the district court’s blanket prohibition against public viewing of the hearing and trial was not sufficiently narrowly tailored to effectuate the court’s interest in the health and safety of the courtroom participants over and against the Sixth Amendment’s guarantee of a public trial.

I’m not sure it will ultimately make any difference to Mr. Allen, who was charged with being a felon in possession of a firearm after a weapon was found in the (stolen) vehicle in which he was sitting.

But Justice Holmes would approve.


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