Read an analysis of the argument here.

On March 30, 2021, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Khairi Bond, 2020-0415. At issue in this case is whether closing a trial to the general public is plain or structural error if the defendant fails to object.

Case Background

On May 3, 2018, Nolan Lovett was shot and killed. On June 25, 2018, Khairi Bond (“Bond”) was charged with two counts of murder, both with firearms specifications.  Bond’s case went to trial from March 18, 2019 through March 25, 2019. Three days into the trial, after a witness for the state testified, an altercation broke out in the hallway outside the courtroom causing property damage. Richland County Common Pleas Court Judge Brent Robinson restricted courtroom access to immediate family members but did not expressly permit or deny the press access to the trial. Bond did not object to the closure. Bond was found guilty of one count of murder with a firearm specification and was sentenced to 18 years to life. Bond appealed.

The Appeal

In the sole issue pertinent to his Supreme Court appeal, Bond argued that closing the trial to the public deprived him of his constitutional rights to a public trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I Section 10 of the Ohio Constitution. In a unanimous decision authored by Judge W. Scott Gwin and joined by Judges Patricia A. Delaney and Craig R. Baldwin, the Fifth District reversed the judgment of the trial court and remanded for a new trial.

The appeals court found that the denial of a defendant’s right to a public trial is considered a structural error, and thus must be evaluated under the structural error standard of review and cannot be waived by the defendant’s silence while at trial.  

The Fifth District acknowledged that the right to a public trial is not an absolute right, but also that closure must be exercised sparingly and be narrowly drawn.  In Waller v. Georgia, the U.S. Supreme Court established a 4-factor test for determining whether a courtroom closure violates a defendant’s Sixth Amendment right to a public trial. The factors are (1) the party seeking to close a public hearing 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.

However, under Ohio law, because family members were still permitted to attend, this was a partial closure, so the first part of the test requires only a “substantial reason” rather than an “overriding interest.”

The appellate court found that the trial court did not satisfy any of the four Waller factors. First, the trial judge did not have a substantial reason to close the trial to the public because the “incident” was merely an argument in the hallway, and the record did not reflect that the trial court was concerned about the witnesses or their protection. The closure also failed to satisfy the second factor because the closure was overly broad, and not limited in scope or duration. The trial court failed to satisfy the third factor because the record did not show that the trial court considered any alternatives, such as additional security measures, prior to the closure. Finally, the trial court failed to satisfy the fourth factor because the record did not disclose any other incidents that necessitated the closing of the trial to the general public. Because of these findings, the appellate court reversed the trial court’s judgment.

Votes to Accept the Case

Yes: Justices Kennedy, Fischer, DeWine, and Stewart

No: Chief Justice O’Connor, Justices Donnelly, and French

State’s Proposition of Law Accepted for Review

The trial court did not violate Appellee’s Sixth Amendment right to public trial by partially limiting access to the courtroom after an altercation disrupted court proceedings.

Key Statutes and Precedent

U.S. Const. Amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”)

Waller v. Georgia, 467 U.S. 39 (1984) (“[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.”)

State v. Drummond, 2006-Ohio-5084 (“Federal courts have concluded that when a trial judge orders a partial, as opposed to a total, closure of a court proceeding, a “substantial reason” rather than Waller’s “overriding interest” will justify the closure.”)

State v. Bethel, 2006-Ohio-4853 (“[T]he right to a public trial under Section 10, Article I of the Ohio Constitution cannot be waived by the defendant’s silence.”)

State v. Davis, 2008-Ohio-2 (“A party claiming plain error must show that (1) an error occurred, (2) the error was obvious, and (3) the error affected the outcome of the trial.”)

Weaver v. Massachusetts, 137 S.Ct. 1899 (2017) (Public-trial rights are subject to exception when a judge makes the proper factual finding under Waller. “The fact that the public-trial right is subject to these exceptions suggests that not every public-trial violation results in fundamental unfairness.”)

State v. Tabor, 2017-Ohio-8656 (4th Dist.) (“Thus, a defendant who fails to timely object to an alleged public-trial violation forfeits all but plain error.”)

State v. Wilks, 2018-Ohio-1562 (Locking courtroom doors during the 30-minute jury charge did not violate appellant’s right to a public trial. The appellant’s failure to object at trial forfeited this claim absent plain error.)

State’s Argument

The Fifth District decision should be reversed for two reasons. First, the appellate court applied the incorrect standard of review. The appellate court applied the structural error standard of review and Waller analysis when it should have applied a plain error standard of review. Second, even under a Waller analysis, the Fifth District did not give proper consideration to the findings of the trial court.

The appellate court should have applied a plain error standard of review rather than the Waller analysis. The denial of a public trial is a structural error. As such, the state agrees that it cannot be waived by the defendant’s failure to object to the error at trial. However, according to State v. Tabor, if a defendant does not object to the structural error at trial, the defendant is limited to plain error review. This is so because failure to object during trial deprives the trial court of the chance to correct the violation.  

Here, the defendant failed to object to the closure of the courtroom until the appeal and is therefore only entitled to the plain error standard of review. A party claiming plain error review must show that (1) an error occurred; (2) the error was obvious; and (3) the error affected the outcome of the trial.

Even if the Supreme Court of Ohio finds that the Waller test applies to this case, the appellate court incorrectly applied the Waller criteria to the trial court findings. Under the first factor, the trial court needed a “substantial reason” to limit access to the trial. In this case, there was a substantial reason for the closure. The altercation in the hallway took place shortly after a witness for the State testified that he saw Bond shoot and kill Nolan Lovett. The closure was necessary to ensure that the remaining witnesses were not intimidated or put in harm’s way.

Under the second Waller factor, the Fifth District found that the closure was broader than necessary. This is not the case. The closure was limited in scope: the closure only applied to those individuals who were involved in the altercation, not the general public or the press. The closure was also limited in duration as it began on the third day of the trial. There is also no evidence that the press was barred from entering the courtroom. In fact, the record shows that the trial court did not have an issue with the press in the courtroom and expressly acknowledged the reporter’s right to report on the case.

Under the third Waller factor, the Fifth District stated that the trial court did not consider alternatives to the closure. However, this was not a complete closure. A partial closure is an alternative remedy to the full closure. According to State v. Drummond, a partial closure is sufficient to satisfy the third Waller factor. 

Finally, the trial court satisfied the fourth factor of the Waller test. The trial court found that the immediate family members were not involved in the hallway altercation. The trial court took the least restrictive measure possible to ensure the security of the proceedings.

Bond argues that the courtroom was closed to the general public, but this was not the case. The trial court stated that immediate family members were permitted back into the courtroom but did not explicitly prohibit the general public from re-entering the courtroom. Effectively, only the hallway combatants were targeted in the restriction.

This case should be reviewed under the plain error standard, under which it is clear that no plain error occurred.

Bond’s Argument

Structural errors are fundamental flaws of the trial’s framework. Generally, courts automatically reverse a defendant’s conviction where a structural error has been committed. Here, the State is asking the Supreme Court of Ohio to alter this protection by changing the standard of review for public trial violations when the defendant’s attorney fails to object to the closure at trial. The structural error standard of review for public trial violations articulated by Waller and used by the appellate court was the correct standard of review for this case. The appellate court correctly applied the facts of this case to that analysis. 

Regardless of whether the defendant objected to the closure at trial, the structural error standard of Waller is the correct standard of review for public trial closures. Structural errors erode the integrity of the trial. Employing a plain error standard would create an insurmountable burden for many defendants in asserting their constitutional rights. The denial of a public trial is a well-recognized structural error. While some courts question whether all public trial violations are structural errors, there is no binding precedent for replacing the structural error analysis with a plain error standard of review, regardless of whether an objection was made to the error at trial.

The Supreme Court of the United States discussed the question of the appropriate standard of review for public trial closings in Weaver v. Massachusetts. This case discussed whether all public trial violations are structural errors that lead to fundamental unfairness. Importantly, Weaver did not hold that the plain error standard of review is to be applied in cases involving a public trial violation to which no objection was made. Weaver did not change the fact that a complete closure of a trial to the public still needs to satisfy the Waller criteria.

The State cites State v. Tabor to justify using the plain error standard of review. However, State v. Tabor is a lower court decision that incorrectly uses Weaver to hold that a plain error standard of review is applicable to cases where the public trial violation was not objected to at trial.

The Supreme Court of Ohio addressed a structural error claim in the context of public trial violations in State v. Drummond. In that case the Court adopted the Waller test and recognized that public trial violations are structural errors. The other cases that the State cites do not deal with structural errors or public trial violations and should not be taken as precedent for this case. In sum, this Court should not adopt a blanket rule requiring plain error review for all claims of public trial violations to which no objection was made at trial.

Even if this Court holds that not all public trial violations are structural errors that are necessarily unfair, in this situation, the closure was indisputably unfair. Here, the trial court closure was essentially a complete closure. It excluded all members of the general public, and there is no evidence that the press was permitted to attend. The closure was not limited in duration. Rather, it began from the time of the incident through the remainder of the trial. This evidences the fundamental unfairness of this closure. As such, it should be viewed as a structural error and the Waller analysis must be applied.

The State cites State v. Wilks for justification that the plain error standard is the correct standard for this case. The Court in Wilks opted for a plain error standard of review because the Court found that there was no closure and thus no structural error. Wilks does not stand for the principle that a plain error standard of review should be used when an error occurs under Waller. Wilks is therefore inapplicable to this case.

Regardless of which standard of review this Court chooses, the case will turn out in favor of Bond. Even if the Supreme Court of Ohio chooses to apply the plain error standard, the facts of this case make it clear that a plain error occurred. A party claiming a plain error review must show that (1) an error occurred; (2) the error was obvious; and (3) the error affected the outcome of the trial. In this case, the trial court’s actions satisfied each of these criteria.

First, an error occurred because, as articulated by the Fifth District, the trial court failed to comply with Waller. The State creates its own justification for the trial court’s decision that is not substantiated by the record. Further, the state claims that barely any closure occurred because only the combating individuals were barred from entry. This is untrue. The record states that only immediate family members were allowed for the remainder of the trial. The record also does not reflect that the press was allowed to attend the trial, despite the State’s insistence that they were. Second, this error was obvious. The right to a public trial is a basic constitutional principle, obvious for all to see and understand. Finally, the error affected the outcome of the trial. This is a structural error that crippled the framework of fairness in which trials are meant to take place. The result of the trial is fundamentally unreliable and as a result, must be overturned.

The decision of the Fifth District should be affirmed. But if this Court reverses, this case should be remanded to the Fifth District for review of the public trial violation using the appropriate standard of review and to review Bond’s other assignments of error which were not addressed in the first appeal.

Student Contributor: Maggie Pollitt