“Did the trial court actually make specific findings to support whatever level of closure it believed was appropriate?”

Justice Brunner to the Assistant Prosecuting Attorney

“What about the fact that the Fifth District didn’t seem to follow U.S. Supreme Court precedent?”

Justice DeWine, to counsel for Bond

On March 30, 2021, the Supreme Court of Ohio heard 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 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. The trial court 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, 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 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.

Read the oral argument preview of the case here.

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. Georgia467 U.S. 39 (1984) (Established the test for determining whether a courtroom closure violates a criminal defendant’s Sixth Amendment right to a public trial. “[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.”)

*Johnson v. United States, 520 U.S. 461 (1997) (The Supreme Court held that the trial court’s action does not constitute plain error where the petitioner failed to timely object to the trial court’s mistake concerning whether the materiality of a false statement must be decided by a jury or a judge. The Court stated that “the seriousness of the error claimed does not remove consideration of it from the ambit of the Federal Rules of Criminal Procedure.”)

*State v. Drummond, 2006-Ohio-5084 (“[w]hen 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.”)

*United States v. Marcus, 560 U.S. 258 (2010) (An appellate court may correct an error not raised at trial only when the appellant demonstrates the following: (1) there is an error; (2) the error is clear and obvious; (3) the error affected the appellant’s substantial rights; and (4) the error seriously affects the fairness, integrity, or reputation of judicial proceedings.)

*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. Wilks2018-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.)

*Cited by counsel at argument.

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.

At Oral Argument

Arguing Counsel

Jodie M. Shumacher, Assistant Prosecuting Attorney, Richland County, for Appellant State of Ohio

Charles A. Koenig, Koenig & Owen, LLC, Columbus, for Appellee Khairi A. Bond

State’s Argument

The Fifth District should be reversed for failing to apply plain error review to the partial closure of the courtroom during the course of this trial.  The partial closure resulted from a near brawl outside the courtroom during a recess immediately following an identifying witness’s testimony.  But even under a structural error analysis, the Fifth District erred in finding error. While the right to an open trial is admittedly a fundamental right, it is a right that must yield at times, including to the administration of justice. 

Trial courts have the authority and the discretion to control the process and to control the courtroom. In this case, attendance was limited to family members of both the defendant and the victim and to the press. The press was present and remained present throughout the entire trial and even came in for pronouncement of the verdict.

The trial court did discuss alternatives to a partial closure on the record. Prior to taking testimony, the trial court instructed those present to be on their best behavior or else no one would be in attendance. This in and of itself shows that the court did consider alternatives to a partial closure. While it is true that the trial court did not make specific findings to support the partial closure, the entire record must be examined.   As the U.S. Supreme Court said in Weaver, in a post-conviction context, “It would be unconvincing to deem a trial fundamentally unfair just because a judge omitted to announce factual findings before making an otherwise valid decision to order the courtroom temporarily closed.”

If there is an objection lodged at trial, we go immediately to structural error. If error is found, it must result in an automatic reversal without any consideration as to harm. However, if there is no objection at trial, recognizing that the trial court is in the best position to cure any error, on appeal there has to be a demonstration under plain error –that there was error, that the error was obvious and that the result would have been different but for that.

The public’s interest in a public trial was met here. The media was present. The defendant’s immediate family was present and no one  has the defendant’s interest more at heart than his own family members.  Also present were the victims and their immediate family, further acknowledging the public’s interest as well as the victim’s rights interests.

The closure of a courtroom is admittedly very important. It should always be a rarity. However, in this situation, there was a substantial interest justifying a partial closure, and that substantial interest was the administration of justice.  Tension was building up inside the courtroom following the testimony of a key witness for the state; it built to the point where defense counsel had requested the court to order the spectators in the courtroom to refrain from commenting. During a recess following this testimony, there was a near brawl in the hallway that resulted in the breaking or damaging of a candy machine, courthouse property. The partial closure followed this incident.

In this case, the entire record demonstrates that partial closure was the appropriate decision. While there may not be specific findings, it can be imparted from the entire record that the administration of justice was at risk here and it was necessary to partially close the courtroom. The Court of Appeals should be reversed.

Bond’s Argument

As the law stands today, there is no reason for this court to overturn the 5th district decision. The defense does not believe the U.S. Supreme Court has ever said that plain error analysis is to apply to a structural error violation. In Weaver, the most recent U.S. Supreme Court case on this subject, the Court was concerned about the fact that the structural error violation was not raised in direct appeal. Specifically, the Court said that “the factors and circumstances that might justify a temporary closure are best considered in the regular appellate process and not in the context of a later proceeding.” What the Weaver Court said was bring this to the attention of the appellate court on direct appeal, which is what Bond did in this case.

Admittedly, there was no objection at the trial court level.  While that may be an error on the part of defense counsel, it does not change the nature of the violation. The violation is still a deprivation of a public trial right that was committed by the trial court. It is the trial court judge that is responsible for safeguarding the constitutional protections of the defendant, and in this case, it was the trial court that violated those protections.

There are only about half a dozen instances where there is structural error. If this court were to say that those instances of structural error required defense counsel to object at trial before they are treated as structural error, structural error would be lost for such things as not giving the defendant the right to have his own attorney present, the right to participate as counsel, forcing the defendant to be tried before a biased court, and a discriminatory jury pool.

Defense counsel in this case was foolish enough to go along with the partial closure, and not object to it, but he did not agree to it and did not ask the court for closure. Also, the record is devoid of any evidence that the press was allowed to attend the trial; in fact, the opposite is true. The court was clear that only immediate family members could attend.  And merely because there were articles in the press about the trial does not mean the press was present. There is no evidence in the record that the press was present. However, even if the press was present, there can still be a partial closure, as happened in Drummond where the court found the press was present but still found a partial closure after going through a Waller analysis to see if the closure was constitutionally permitted.

It would not be a good idea for defense counsel to purposely not object to a partial trial closure. It’s the job of trial counsel to win the trial, not to have more trials. Closing the trial to the public tears the very framework of the trial apart. It destroys the ability to make sure there are people in the audience. All closures are violative of a defendant’s rights unless there is compliance with Waller or Drummond, where the substantial reason for the closure overcomes the right to a public trial. In the partial closure in Drummond, the press and an extensive number of people from the family were there. In this case there were only a couple of people in the courtroom.

There were no reasons articulated in the record by the judge as to why he partially closed the courtroom. All we know was there was an altercation in the hallway. We don’t know that any of the witnesses were there when it happened, that anybody was threatened, or that the jurors knew anything about it. Based on what’s in the record, we know nothing about the altercation. There are substantial reasons set forth in the state’s brief about reasons for the closure, but not in the record.

The 5th district did a painstaking analysis of everything that was in the record and found that there was no substantial reason stated by the trial court for the partial closure. The judge just decided he wanted to close the courtroom because a gumball machine got broken in the hallway. The record tells us nothing more than that. There was no substantial reason articulated, no alternative methods considered, no reasons put on the record. The trial court ignored both Waller and Drummond.

The fundamental characteristic of structural error is that you cannot tell whether the outcome of the trial was adversely affected. To now say that the burden should be on the defendant to prove prejudice because counsel didn’t object is taking away constitutional rights for no good or compelling reason.

 What Was On Their Minds

The Partial Closure

Did the trial judge in this case limit attendance strictly to family members, asked Justice Donnelly?

This was not a complete closure, was it, asked Justice Stewart? Did defense counsel object to the partial closure at the trial court level? She added that not all rulings from the courtroom rise to the level of structural error. 

What in the record supports the substantial reason for the partial closure asked Chief Justice O’Connor? What did the judge state on the record, to support the substantial reason for the partial closure? Was there evidence that the hallway damage was done by the people who were associated with this trial? This would be a very different situation if this had been a complete closure, she noted, adding that she doubted defense counsel would have agreed to that. But, she said, based on her understanding of the record, this was an agreed upon procedure for a partial closure that allowed for family and the press to be present, and the press did cover it. (Defense counsel repeatedly disagreed that it could be assumed that the press was present simply because there was coverage of the trial in the press.)

No party sought to close the hearing, did they, asked Justice Brunner?  Did the trial court discuss any alternatives on the record? Did the trial court actually make specific findings to support whatever level of closure it believed was appropriate?

The Record

We don’t have secret tribunals without good cause for it, noted Justice Brunner. There needs to be something in the record that supports the closure and shows that the trial judge limited that as much as possible because that’s like the essence of our democracy.

Isn’t one of the reasons there aren’t more findings in the record because there was no objection, asked Justice DeWine, adding that if someone had objected, the judge presumably would have explained why the judge was doing what he or she did.

The Press

Where in the record does it say that the press would be allowed to attend, asked Justice Donnelly?  Does the record reflect that the press was allowed to remain in the courtroom after the restriction?

Was the press allowed to remain, asked Chief Justice O’Connor? Can we assume that they were because of the articles that were subsequently written contemporaneously with what happened in the court that day?

Structural Error/Plain Error

Is it the state’s position that if structural error is not objected to at trial, that somehow morphs into a plain error analysis, asked Justice Brunner? Structural error goes to constitutionality, and can never be waived, can it? She added that so if we look at countries where they have closed trials where the media isn’t allowed in and can only report based on what someone who is in the courtroom, that goes against the essence of democracy.

If the Court were to adopt the position that any structural error is automatic reversal, what incentive would counsel ever have to object, asked Justice DeWine?  Wouldn’t the prudent counsel’s best policy be to wait and see how the trial turns out knowing there would be an automatic do-over, that they get two bites of the apple?  He added that the U.S. Supreme Court has never said that structural error requires automatic reversal.  What they have said is that there are categories of structural error that may preclude the state from arguing that the error was harmless.

Pertinent U.S. Supreme Court Precedent

Weaver is in the context of ineffective assistance of counsel, but Waller is in the context of structural error, noted Justice Brunner. Can we keep those two differences clear? She added that she didn’t think they could be combined very effectively.  

What about the fact that the 5th district didn’t seem to follow U.S. Supreme Court precedent, asked Justice DeWine? In Johnson don’t we have the U.S. Supreme Court rejecting the argument that plain error does not apply to unraised structural error claims? How do we deal with those cases where the Supreme Court seems to have said the exact opposite of what the 5th district said? Justice DeWine also quoted Weaver as saying “Despite its name, the term ‘structural error’ carries with it no talismanic significance as a doctrinal matter. It means only that the government is not entitled to deprive the defendant of a new trial by showing that the error was ‘harmless beyond a reasonable doubt.’” He added that what Weaver said was if the defendant raises the error, structural error can mean that there’s no ability for the state to say that the error was harmless beyond a reasonable doubt. It doesn’t indicate that when error is raised, there is no plain error analysis. In fact, it seems to say the opposite, he noted.

How It Looks From The Bleachers

To Professor Emerita Bettman

Like a win for the state IF and this is a big IF the record does in fact reflect the fact that the press was allowed to stay during the partial closure.  If not, I think we may have a very different situation. The appeals court decision is confusing on this. In one place the appeals court wrote, “There is no evidence that the trial court either permitted or prevented the press from entering the courtroom.” Later in the decision, in reviewing the Waller factors, the appeals court wrote, “Nothing in the record suggests that the press was permitted into the courtroom for the remainder of the trial.”  In short, I think the state is much more likely to win this appeal if the Court concludes the press was allowed to stay.

Since this was only a partial closure, all that is needed is a substantial reason, as the Chief kept repeating in her questioning, and the state offered up the administration of justice as that reason.  The altercation and property damage in the hallway during a recess in a murder trial may be substantial enough. But the trial court was very skimpy with its reasons for the partial closure.

Justice DeWine was adamant that U.S. Supreme Court precedent compels the opposite result from what defense counsel was advocating, but Mr. Koenig, for the defense, was adamant in sticking to his guns that Bond was denied his constitutional right to a public trial.  He and Justice DeWine really got into it over plain error/structural error.

On the other hand, I think Justice Brunner favors the defense. She took a big picture threat-to-democracy view of the partial closure. Justice Stewart seemed to be leaning toward the state. Justice Donnelly was hard to read on this one. Justices Fischer and Kennedy asked no questions. In any case, I see a split decision here.

To Student Contributor Maggie Pollitt

I think the State will win this one. Chief Justice O’Connor and Justices DeWine and Stewart seemed to favor the State’s argument, though the Chief Justice appeared conflicted as the oral argument closed. Justice Brunner was adamant that structural errors are serious constitutional violations that protect the essence of democracy. Justice Brunner’s line of questioning was a nice change of pace – the justices aren’t usually as vocal about the overarching policy implications of their decisions.

Chief Justice O’Connor and Bond’s counsel had an interesting exchange about the facts in the record. Bond’s counsel argued that there are not enough facts in the record to support the closure because the trial court judge did not explain his decision. The State relied on newspaper articles and “context” to support the position that the trial court had a substantial reason to close the trial. Bond’s point seemed to stick with the Chief Justice, and I wonder whether it will change her opinion, which seemed to favor the State until then. Given the nature of the questions, I still think the State will win unless the Court digs more into the record and determines that the evidence in the record matters more than the context proffered by the State.