Excluding the Public From Jury Selection (Part 5)

by | Nov 2, 2017 | Blog, Criminal Law, Monmouth County, Ocean County

criminal attorneyBecause petitioner has not shown a reasonable probability of a different outcome but for counsel’s failure to object or that counsel’s shortcomings led to a fundamentally unfair trial, he is not entitled to a new trial. Although potential jurors might have behaved differently had petitioner’s family or the public been present, petitioner has offered no evidence suggesting a reasonable probability of a different outcome but for counsel’s failure to object. He has also failed to demonstrate fundamental unfairness.

It is interesting that the majority suggests that the behavior of certain individuals in the gallery could have been a factor in the jury’s verdict. Jurors are repeatedly instructed to avoid such distractions that have no bearing on the merits of a given case. Moreover, federal and state precedent holds that jurors are presumed to follow all the trial judge’s instructions.

His mother and her minister were indeed excluded during jury selection. But his trial was not conducted in secret or in a remote place; closure was limited to the jury voir dire; the courtroom remained open during the evidentiary phase of the trial; the closure decision apparently was made by court officers, not the judge; venire members who did not become jurors observed the proceedings; and the record of the proceedings indicates no basis for concern, other than the closure itself. There was no showing, furthermore, that the potential harms flowing from a courtroom closure came to pass in this case, e.g., misbehavior by the prosecutor, judge, or any other party. Thus, even though this case comes here on the assumption that the closure was a Sixth Amendment violation, the violation here did not pervade the whole trial or lead to basic unfairness.

Justice Kennedy authored the six-justice majority opinion, joined by Justices Roberts, Thomas, Ginsburg, Sotomayor, and Gorsuch. Justice Breyer filed a dissenting opinion, in which he was joined by Justice Kagan.