In a rarely used procedural maneuver, the U.S. Supreme Court on Tuesday agreed to decide — and then, decided right on the spot — the issue of whether excluding the public from watching jury selection violates the accused’s right to a fair trial.
The Court’s 7-2 answer: Yes, unless the judge shows that she has considered less drastic alternatives — even if the accused fails to suggest any.
The Court’s ruling in Presley v. Georgia resoundingly reaffirms that courts may not exclude the public from key stages of criminal cases — in this instance, the questioning of prospective jurors — unless the judge finds an “overriding interest” in closure that cannot be satisfied by other reasonably available alternatives.
The underlying case involved the trial of Eric Presley on cocaine trafficking charges in a DeKalb County, Ga., state court. The trial judge decided that the courtroom was too crowded for both the jury pool and spectators, and so members of the public — including Presley’s uncle — were told to wait outside. The Georgia Supreme Court found no constitutional violation in the judge’s decision, but Justice Leah Sears issued a stinging dissent in which she concluded: “A room that is so small that it cannot accommodate the public is a room that is too small to accommodate a constitutional criminal trial.”
Tuesday’s U.S. Supreme Court ruling was issued per curiam, meaning it was not signed by a particular author, but it represents the consensus of Justices John Paul Stevens, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Chief Justice John Roberts.
The seven-justice majority said that the right of the accused to have the public present during jury selection was obvious from the Court’s previous ruling in Press-Enterprise Co. v. Superior Court of Calif., 464 U.S. 501 (1984), that the news media has a right to attend preliminary hearings in a criminal trial. If journalists have a First Amendment right to attend pretrial proceedings, the majority wrote, then it must necessarily be true that the defendant has a Sixth Amendment right to have those same proceedings conducted in public view. (The Sixth Amendment guarantees “the right to a speedy and public trial(.”)).
This is an important point for journalists to understand. There generally is no First Amendment right to be present where news is being made — but criminal trials are the exception to the rule. The media can be excluded from criminal proceedings only in the rarest of cases, e.g., where an undercover organized-crime informant’s life would be placed in danger — and even then, only if some lesser curative measure (such as letting the informant sit behind a screen) would be ineffective.
Justice Clarence Thomas, joined by Justice Antonin Scalia, issued a brief dissenting opinion. Although they did not take a firm position as to the ultimate constitutional question, they objected to resolving the case without the customary opportunity for the parties to present oral arguments.