New York's Highest Court Continues to Protect the Right to a Public Trial

The NYS Court of Appeals continues its vigorous protection of an accused's Constitutional right to a public trial.

In People v. Floyd the NYS Court of Appeals reversed a Brooklyn murder conviction finding that the accused was deprived of his constitutional right to a public trial when spectators were briefly excluded from the courtroom during the initial portion of jury selection. This case illustrates how otherwise practical courtroom management decisions can be of constitutional dimension. A little back-story is necessary to understand how this could happen:

When selecting a jury, NYS Criminal Procedure Law section 270.25 entitles the parties to peremptory challenges of prospective jurors. A peremptory challenge allows the parties to exclude potential jurors without stating a reason - there are limits on this, but that's a subject for another discussion.

The number of challenges depends on the seriousness of the charge. Floyd was indicted for murder, a Class A Felony; and, CPL 270.25 gives both the defense and prosecutor, 20 peremptory challenges, each. If both sides exercise all of their peremptory challenges during jury selection, 40 potential jurors could be excluded. And this doesn't include jurors that are removed with a challenge for cause - that is, for an obvious reason. For example, a juror may know a witness or one of the lawyers - that juror can't hear that case. Both sides have an unlimited number of challenges for cause.

So, when the clerk calls for jurors in a murder case, central jury will send in excess of 50 jurors to the courtroom, on the theory, that if both sides use all of their peremptory challenges and exclude 40 jurors, and even more with challenges for cause, there should be enough jurors left to comprise a jury. Sometimes, as in Floyd's case, the court may request extra prospective jurors. This often happens in cases involving sensitive issues or shocking facts that increase the chances potential jurors might disqualify themselves because they would not be able to remain impartial or that the graphic evidence might be too much for them to handle.

Now, if the Judge who catches this case happens to be assigned to a small courtroom, when 50-plus potential jurors show up at the door, all the usual space problems arise - not enough seats, some jurors standing in the isles, etc. In order to make room for all of the jurors, so they can hear the Judge's instructions, spectators are asked to wait in the hall until some jurors are excluded and seats become available.

In any trial, it's very common for 10-15 jurors to be excused within the first few minutes because of work obligations, health issues, child care issues, planned vacations, etc.; and, Judges typically get that out of the way first, freeing-up space, allowing for spectators to return to the courtroom long before anything of substance happens during jury selection. In order to avoid this situation, Judges assigned to small courtrooms often request that jury selection take place in a larger courtroom; and, when completed, the case moves back to the smaller courtroom for the rest of the trial . . . but that didn't happen in Floyd's case.

In Floyd's case, the spectators - including the defendant's mother - were back in the courtroom to witness the real vetting of the prospective jurors. So, even though nothing sinister was at hand, the NYS Court of Appeals ordered a new trial, stating:

Defendants have a constitutional right to a "public trial" (US Const Amend VI; Presley v Georgia, 558 US 209, 211-214 [2010]). Mere courtroom overcrowding is not an overriding interest justifying courtroom closure, and the trial judge failed to consider reasonable alternatives before excluding defendant's mother from the courtroom (People v Alvarez, 20 NY3d 75{**21 NY3d at 894} [2012]; People v Martin, 16 NY3d 607, 612 [2011]). This violation is per se prejudicial and requires a new trial (Martin, 16 NY3d at 613).

That's how important the right to a public trial is, and this case is an example of how vigilantly the NYS Court of Appeals has been in protecting an accused's right to one.

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