Presley v. Georgia

Cite as: 558 U. S. ____ (2010) 1

Per Curiam

SUPREME COURT OF THE UNITED STATES

ERIC PRESLEY v. GEORGIA

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME

COURT OF GEORGIA

No. 09–5270. Decided January 19, 2010

PER CURIAM.

After a jury trial in the Superior Court of DeKalb

County, Georgia, petitioner Eric Presley was convicted of a

cocaine trafficking offense. The conviction was affirmed

by the Supreme Court of Georgia. 285 Ga. 270, 674 S. E.

2d 909 (2009). Presley seeks certiorari, claiming his Sixth

and Fourteenth Amendment right to a public trial was

violated when the trial court excluded the public from the

voir dire of prospective jurors. The Supreme Court of

Georgia’s affirmance contravened this Court’s clear prece

dents. Certiorari and petitioner’s motion for leave to

proceed in forma pauperis are now granted, and the judg

ment is reversed.

Before selecting a jury in Presley’s trial, the trial court

noticed a lone courtroom observer. Id., at 270–271, 674

S. E. 2d, at 910. The court explained that prospective

jurors were about to enter and instructed the man that he

was not allowed in the courtroom and had to leave that

floor of the courthouse entirely. Id., at 271, 674 S. E. 2d,

at 910. The court then questioned the man and learned

he was Presley’s uncle. Ibid. The court reiterated its

instruction:

“ ‘Well, you still can’t sit out in the audience with the

jurors. You know, most of the afternoon actually

we’re going to be picking a jury. And we may have a

couple of pre-trial matters, so you’re welcome to come

in after we . . . complete selecting the jury this after

noon. But, otherwise, you would have to leave the

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Per Curiam

sixth floor, because jurors will be all out in the hall

way in a few moments. That applies to everybody

who’s got a case.’ ” Ibid.

Presley’s counsel objected to “ ‘the exclusion of the public

from the courtroom,’ ” but the court explained, “ ‘[t]here

just isn’t space for them to sit in the audience.’ ” Ibid.

When Presley’s counsel requested “ ‘some accommoda

tion,’ ” the court explained its ruling further:

“ ‘Well, the uncle can certainly come back in once the

trial starts. There’s no, really no need for the uncle to

be present during jury selection. . . . [W]e have 42 ju

rors coming up. Each of those rows will be occupied

by jurors. And his uncle cannot sit and intermingle

with members of the jury panel. But, when the trial

starts, the opening statements and other matters, he

can certainly come back into the courtroom.’ ” Ibid.

After Presley was convicted, he moved for a new trial

based on the exclusion of the public from the juror voir

dire. At a hearing on the motion, Presley presented evi

dence showing that 14 prospective jurors could have fit in

the jury box and the remaining 28 could have fit entirely

on one side of the courtroom, leaving adequate room for

the public. App. to Pet. for Cert. E–37, E–41. The trial

court denied the motion, commenting that it preferred to

seat jurors throughout the entirety of the courtroom, and

“it’s up to the individual judge to decide . . . what’s com

fortable.” Id., E–38. The court continued: “It’s totally up

to my discretion whether or not I want family members in

the courtroom to intermingle with the jurors and sit di

rectly behind the jurors where they might overhear some

inadvertent comment or conversation.” Id., at E–42 to E–

43. On appeal, the Court of Appeals of Georgia agreed,

finding “[t]here was no abuse of discretion here, when the

trial court explained the need to exclude spectators at the

voir dire stage of the proceedings and when members of

Cite as: 558 U. S. ____ (2010) 3

Per Curiam

the public were invited to return afterward.” 290 Ga. App.

99, 100–101, 658 S. E. 2d 773, 775 (2008).

The Supreme Court of Georgia granted certiorari and

affirmed, with two justices dissenting. After finding “the

trial court certainly had an overriding interest in ensuring

that potential jurors heard no inherently prejudicial re

marks from observers during voir dire,” the Supreme

Court of Georgia rejected Presley’s argument that the trial

court was required to consider alternatives to closing the

courtroom. 285 Ga., at 272, 273, 674 S. E. 2d, at 911. It

noted that “the United States Supreme Court [has] not

provide[d] clear guidance regarding whether a court must,

sua sponte, advance its own alternatives to [closure],” and

the court ruled that “Presley was obliged to present the

court with any alternatives that he wished the court to

consider.” Id., at 273, 674 S. E. 2d, at 911, 912. When no

alternatives are offered, it concluded, “there is no abuse of

discretion in the court’s failure to sua sponte advance its

own alternatives.” Id., at 274, 674 S. E. 2d, at 912.

This Court’s rulings with respect to the public trial right

rest upon two different provisions of the Bill of Rights,

both applicable to the States via the Due Process Clause of

the Fourteenth Amendment. The Sixth Amendment

directs, in relevant part, that “[i]n all criminal prosecu

tions, the accused shall enjoy the right to a speedy and

public trial . . . .” The Court in In re Oliver, 333 U. S. 257,

273 (1948), made it clear that this right extends to the

States. The Sixth Amendment right, as the quoted lan

guage makes explicit, is the right of the accused.

The Court has further held that the public trial right

extends beyond the accused and can be invoked under the

First Amendment. Press-Enterprise Co. v. Superior Court

of Cal., Riverside Cty., 464 U. S. 501 (1984) (Press-

Enterprise I). This requirement, too, is binding on the

States. Ibid.

The case now before the Court is brought under the

4 PRESLEY v. GEORGIA

Per Curiam

Sixth Amendment, for it is the accused who invoked his

right to a public trial. An initial question is whether the

right to a public trial in criminal cases extends to the jury

selection phase of trial, and in particular the voir dire of

prospective jurors. In the First Amendment context that

question was answered in Press-Enterprise I. Id., at 510.

The Court there held that the voir dire of prospective

jurors must be open to the public under the First Amend

ment. Later in the same Term as Press-Enterprise I, the

Court considered a Sixth Amendment case concerning

whether the public trial right extends to a pretrial hearing

on a motion to suppress certain evidence. Waller v. Geor

gia, 467 U. S. 39 (1984). The Waller Court relied heavily

upon Press-Enterprise I in finding that the Sixth Amend

ment right to a public trial extends beyond the actual

proof at trial. It ruled that the pretrial suppression hear

ing must be open to the public because “there can be little

doubt that the explicit Sixth Amendment right of the

accused is no less protective of a public trial than the

implicit First Amendment right of the press and public.”

467 U. S., at 46.

While Press-Enterprise I was heavily relied upon in

Waller, the jury selection issue in the former case was

resolved under the First, not the Sixth, Amendment.

Press-Enterprise I, supra, at 516 (STEVENS, J., concurring)

(“The constitutional protection for the right of access that

the Court upholds today is found in the First Amendment,

rather than the public trial provision of the Sixth” (foot

note omitted)). In the instant case, the question then

arises whether it is so well settled that the Sixth Amend

ment right extends to jury voir dire that this Court may

proceed by summary disposition.

The point is well settled under Press-Enterprise I and

Waller. The extent to which the First and Sixth Amend

ment public trial rights are coextensive is an open ques

tion, and it is not necessary here to speculate whether or

Cite as: 558 U. S. ____ (2010) 5

Per Curiam

in what circumstances the reach or protections of one

might be greater than the other. Still, there is no legiti

mate reason, at least in the context of juror selection

proceedings, to give one who asserts a First Amendment

privilege greater rights to insist on public proceedings

than the accused has. “Our cases have uniformly recog

nized the public-trial guarantee as one created for the

benefit of the defendant.” Gannett Co. v. DePasquale, 443

U. S. 368, 380 (1979). There could be no explanation for

barring the accused from raising a constitutional right

that is unmistakably for his or her benefit. That rationale

suffices to resolve the instant matter. The Supreme Court

of Georgia was correct in assuming that the Sixth Amend

ment right to a public trial extends to the voir dire of

prospective jurors.

While the accused does have a right to insist that the

voir dire of the jurors be public, there are exceptions to

this general rule. “[T]he right to an open trial may give

way in certain cases to other rights or interests, such as

the defendant’s right to a fair trial or the government’s

interest in inhibiting disclosure of sensitive information.”

Waller, 467 U. S., at 45. “Such circumstances will be rare,

however, and the balance of interests must be struck with

special care.” Ibid. Waller provided standards for courts

to apply before excluding the public from any stage of a

criminal trial:

“[T]he party seeking to close the hearing must ad

vance an overriding interest that is likely to be preju

diced, 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 clo

sure.” Id., at 48.

In upholding exclusion of the public at juror voir dire in

the instant case, the Supreme Court of Georgia concluded,

6 PRESLEY v. GEORGIA

Per Curiam

despite our explicit statements to the contrary, that trial

courts need not consider alternatives to closure absent an

opposing party’s proffer of some alternatives. While the

Supreme Court of Georgia concluded this was an open

question under this Court’s precedents, the statement in

Waller that “the trial court must consider reasonable

alternatives to closing the proceeding” settles the point.

Ibid. If that statement leaves any room for doubt, the

Court was more explicit in Press-Enterprise I:

“Even with findings adequate to support closure, the

trial court’s orders denying access to voir dire testi

mony failed to consider whether alternatives were

available to protect the interests of the prospective ju

rors that the trial court’s orders sought to guard. Ab

sent consideration of alternatives to closure, the trial

court could not constitutionally close the voir dire.”

464 U. S., at 511.

The conclusion that trial courts are required to consider

alternatives to closure even when they are not offered by

the parties is clear not only from this Court’s precedents

but also from the premise that “[t]he process of juror

selection is itself a matter of importance, not simply to the

adversaries but to the criminal justice system.” Id., at

505. The public has a right to be present whether or not

any party has asserted the right. In Press-Enterprise I, for

instance, neither the defendant nor the prosecution re

quested an open courtroom during juror voir dire proceed

ings; in fact, both specifically argued in favor of keeping

the transcript of the proceedings confidential. Id., at 503–

504. The Court, nonetheless, found it was error to close

the courtroom. Id., at 513.

Trial courts are obligated to take every reasonable

measure to accommodate public attendance at criminal

trials. Nothing in the record shows that the trial court

could not have accommodated the public at Presley’s trial.

Cite as: 558 U. S. ____ (2010) 7

Per Curiam

Without knowing the precise circumstances, some possi

bilities include reserving one or more rows for the public;

dividing the jury venire panel to reduce courtroom conges

tion; or instructing prospective jurors not to engage or

interact with audience members.

Petitioner also argues that, apart from failing to con

sider alternatives to closure, the trial court erred because

it did not even identify any overriding interest likely to be

prejudiced absent the closure of voir dire. There is some

merit to this complaint. The generic risk of jurors over

hearing prejudicial remarks, unsubstantiated by any

specific threat or incident, is inherent whenever members

of the public are present during the selection of jurors. If

broad concerns of this sort were sufficient to override a

defendant’s constitutional right to a public trial, a court

could exclude the public from jury selection almost as a

matter of course. As noted in the dissent below, “the

majority’s reasoning permits the closure of voir dire in

every criminal case conducted in this courtroom whenever

the trial judge decides, for whatever reason, that he or she

would prefer to fill the courtroom with potential jurors

rather than spectators.” 285 Ga., at 276, 674 S. E. 2d, at

913 (opinion of Sears, C. J.).

There are no doubt circumstances where a judge could

conclude that threats of improper communications with

jurors or safety concerns are concrete enough to warrant

closing voir dire. But in those cases, the particular inter

est, and threat to that interest, must “be articulated along

with findings specific enough that a reviewing court can

determine whether the closure order was properly en

tered.” Press-Enterprise I, supra, at 510; see also Press-

Enterprise Co. v. Superior Court of Cal., County of River

side, 478 U. S. 1, 15 (1986) (“The First Amendment right

of access cannot be overcome by the conclusory assertion

that publicity might deprive the defendant of [the right to

a fair trial]”).

8 PRESLEY v. GEORGIA

Per Curiam

We need not rule on this second claim of error, because

even assuming, arguendo, that the trial court had an

overriding interest in closing voir dire, it was still incum

bent upon it to consider all reasonable alternatives to

closure. It did not, and that is all this Court needs to

decide.

The Supreme Court of Georgia’s judgment is reversed,

and the case is remanded for further proceedings not

inconsistent with this opinion.

It is so ordered.

Cite as: 558 U. S. ____ (2010) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

ERIC PRESLEY v. GEORGIA

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME

COURT OF GEORGIA

No. 09–5270. Decided January 19, 2010

JUSTICE THOMAS, with whom JUSTICE SCALIA joins,

dissenting.

Today the Court summarily disposes of two important

questions it left unanswered 25 years ago in Waller v.

Georgia, 467 U. S. 39 (1984), and Press-Enterprise Co. v.

Superior Court of Cal., Riverside Cty., 464 U. S. 501 (1984)

(Press-Enterprise I). I respectfully dissent from the

Court’s summary disposition of these important questions.

First, the Court addresses “whether it is so well settled

that [a defendant’s] Sixth Amendment right” to a public

trial “extends to jury voir dire that this Court may proceed

by summary disposition.” Ante, at 4. The Court’s affirma

tive answer to this question relies exclusively on Waller

and Press-Enterprise I; but those cases cannot bear the

weight of this answer.

The Court correctly notes that Waller answers whether

a “defendant’s Sixth Amendment right to a public trial

applies to a suppression hearing” (not to jury voir dire),

467 U. S., at 43, and that Press-Enterprise I interprets the

public’s First Amendment right to attend jury voir dire,

464 U. S., at 509, n. 8, so neither Waller nor Press-

Enterprise I expressly answers the question here, see ante,

at 4. That acknowledgment should have eliminated any

basis for disposing of this case summarily; the Court

should reserve that procedural option for cases that our

precedents govern squarely and directly. See, e.g., United

States v. Haley, 358 U. S. 644 (1959) (per curiam) (summa

rily reversing a federal court’s judgment that refused to

follow, or even mention, one of our precedents upholding

2 PRESLEY v. GEORGIA

THOMAS, J., dissenting

the statute in issue under identical circumstances).

The Court nevertheless concludes that Waller and Press-

Enterprise I—in combination—“well settl[e]” the “point.”

Ante, at 4. It admits that “[t]he extent to which the First

and Sixth Amendment public trial rights are coextensive

is an open question,” but, apparently extrapolating from

Press-Enterprise I, asserts that “there is no legitimate

reason, at least in the context of juror selection proceed

ings, to give one who asserts a First Amendment privilege

greater rights to insist on public proceedings than the

accused has.” Ante, at 4–5. But this conclusion decides by

implication an unstated premise: that jury voir dire is part

of the “public trial” that the Sixth Amendment guarantees.

As JUSTICE STEVENS recognized in Press-Enterprise I, that

case did not decide this issue. See 464 U. S., at 516 (con

curring opinion) (“If the defendant had advanced a claim

that his Sixth Amendment right to a public trial was

violated by the closure of the voir dire, it would be impor

tant to determine whether the selection of the jury was a

part of the ‘trial’ within the meaning of that Amendment”).

Until today, that question remained open; the majority

certainly cites no other case from this Court answering it.

Yet the Court does so here—even though the Supreme

Court of Georgia did not meaningfully consider that ques

tion, and petitioner does not ask us to do so.* I am unwill

——————

* In full, petitioner’s two questions presented state:

“I. This Court has established that the public cannot be expelled from a

courtroom unless the presence of the public creates a ‘substantial

probability’ of prejudice to an ‘overriding interest.’ But is some case

specific evidence required to meet this ‘substantial probability’ test, or

can generalized fears that would apply equally to nearly every trial

suffice?

“II. This Court has repeatedly held that a trial court must consider

reasonable alternatives to closing a proceeding before it can exclude the

public. But who bears the burden of suggesting such alternatives?

Must the proponent of closure establish that closure is necessary, in

that there are no reasonable alternatives available? Or to overcome a

Cite as: 558 U. S. ____ (2010) 3

THOMAS, J., dissenting

ing to decide this important question summarily without

the benefit of full briefing and argument.

Second, I am also unwilling to join the Court in reading

the “ ‘alternatives to closure’ ” language it quotes from

Waller and Press Enterprise I as squarely foreclosing the

decision of the Supreme Court of Georgia. See ante, at 6.

The Court chides the Supreme Court of Georgia for “con

clud[ing], despite our explicit statements to the contrary,

that trial courts need not consider alternatives to closure

absent an opposing party’s proffer of some alternatives.”

Ante, at 5–6 (emphasis added). But neither Waller nor

Press-Enterprise I expressly holds that jury voir dire is

covered by the Sixth Amendment’s “[P]ublic [T]rial”

Clause. Accordingly, it is not obvious that the “alterna

tives to closure” language in those opinions governs this

case.

Even assuming the Court correctly extends Waller and

Press-Enterprise I to this (Sixth Amendment voir dire)

context, neither opinion “explicit[ly]” places on trial courts

the burden of sua sponte suggesting alternatives to closure

“absent an opposing party’s proffer of some alternatives.”

Ante, at 6. The statement that a “ ‘trial court must con

sider reasonable alternatives to closing the proceeding,’ ”

ibid. (quoting Waller, supra, at 48), does not definitively

establish who must suggest alternatives to closure that the

trial court must then consider, nor does it expressly ad

dress whether the trial court must suggest such alterna

tives in the absence of a proffer. I concede that the lan

guage can easily be read to imply the latter, and the Court

may well be right that a trial court violates the Sixth

Amendment if it closes the courtroom without sua sponte

considering reasonable alternatives to closure. But I

would not decide the issue summarily, and certainly would

——————

closure motion must an opponent of closure establish that reasonable

alternatives do exist?” Pet. for Cert. i.

4 PRESLEY v. GEORGIA

THOMAS, J., dissenting

not declare, as the Court does, that Waller and Press-

Enterprise I “settl[e] the point” without “leav[ing] any

room for doubt.” Ante, at 6.

Besides departing from the standards that should gov

ern summary dispositions, today’s decision belittles the

efforts of our judicial colleagues who have struggled with

these issues in attempting to interpret and apply the same

opinions upon which the Court so confidently relies today.

See, e.g., Ayala v. Speckard, 131 F. 3d 62, 70–72 (CA2

1997) (en banc), cert. denied, 524 U. S. 958 (1998); 131

F. 3d, at 74–75 (Walker, J., concurring); id., at 77–80

(Parker, J., dissenting). The Court’s decision will also

surely surprise petitioner, who did not seek summary

reversal based on the allegedly incorrect application of

this Court’s well-established precedents by the Supreme

Court of Georgia, but instead asked us to “resolve this

split of authority” over whether “the opponent of closure

must suggest alternatives to closure” or whether “those

seeking to exclude the public must show that there is no

available less-intrusive alternative.” Pet. for Cert. 18.