Commonwealth v. Contakos

McDERMOTT, Justice,

dissenting.

The constitutional mandate for an open and public trial is not an end in itself. It is one of the means for securing a fair trial. It is a safeguard for the defendant and the court and a protection against inquisitions, star chambers and other secret proceedings wherein our freedom may be lost. It is not an inexorable necessity of fairness in all trials or on all occasions. Its purposes are well stated in the majority opinion and are as salutary now as in the days of William Penn.

Fortunately, the majority has confined its attention to the facts of this case and has not exalted the mandate into an all-encompassing rubric that suffers no exception. For, indeed, there are exceptions as this Court so plainly stated in Commonwealth v. Knight, 469 Pa. 57, 63-64 , 364 A.2d 902, 904 (1976). Therein, a court was cleared to preserve the emotional health of a young witness:

Initially, we agree with the position, advocated by Knight and Powell, that no showing of prejudice is required where a violation of an accused’s right to a public trial is asserted. United States v. Kobli, 172 F.2d 919 (3d Cir.1949); United States ex rel. Bennett v. Rundle, 419 F.2d 599 (3rd [Sic] Cir.1969); 3 Wharton’s Criminal Procedure, 12th ed., § 439. But the right to a public trial is not absolute; rather, it must be considered in relationship to other important interests. United States v. Kobli, supra; *351 United States ex rel. Smallwood v. LaValle, 377 F.Supp. 1148 (E.D.N.Y.1974), aff’d, 2 Cir., 508 F.2d 837 , cert. denied 421 U.S. 920 , 95 S.Ct. 1586 , 43 L.Ed.2d 788 . In considering such other interests, a court must assess all of the circumstances to determine if they present a situation in which an exclusion order is necessary. If the court determines a necessity exists, it may then issue an exclusion order; but the exclusion order must be fashioned to effectuate protection of the important interest without unduly infringing upon the accused’s right to a public trial either through its scope or duration. United States ex rel. Smallwood v. LaValle, supra; United States v. Kobli, supra at 923; and see generally 3 Wharton’s Criminal Procedure, 12 ed. § 439; 48 A.L.R.2d 1436 (1956). Ultimately, the determination of whether to exclude spectators, as well as the determination of the scope and duration of an exclusion order, must be left to the sound discretion of the trial court because it alone is sufficiently close to the circumstances to apprehend fully the subtleties that may be present. See generally, 48 A.L.R.2d 1436 , 1450, § 8. Thus, only if a trial court abused its discretion in issuing an exclusion order or in fashioning the order will reversible error be found on appeal. Therefore, we must determine: (1) whether the court abused its discretion in issuing the exclusion order; and (2) if it did not, whether it abused its discretion in fashioning the scope and duration of the order.

Commonwealth v. Knight, 469 Pa. at 65-66 , 364 A.2d at 906-907 (footnotes omitted). 1

The question before us is not our commitment to the mandate, but rather its uses in securing a fair trial. We ought not confuse the actions of the trial judge in this case with the King’s officers in the trial of William Penn. They are as different as are butterflies from condors. The trial judge here does not belong to a cabal sneaking upon the *352 public liberty. The issue he faced was the exact converse; he was obliged to secure a fair trial in the teeth of threatened mortal violence, not from the minions of a King, but from a growing class of criminals who would snuff out a fair trial with a bullet, even in an open and public proceeding.

The trial judge was told, during a recess, that the witness next to be called, one Colvin, would be in danger on the witness stand. The information came from credible and concerned sources. It corroborated what was previously suspected in the violent history of this case. Indeed, Colvin was kept guarded for his safety in a different county jail. That he was in danger in the courtroom was and should be a matter of grave concern, not only for the witness, the spectators, jurors and parties, but even for that forgotten personage: the trial judge himself.

Given the circumstances the trial judge exercised sound discretion; if the threat was in the courtroom itself, the courtroom should be immunized. So brazen and desperate a threat must be dealt with swiftly. The trial judge moved swiftly; unknown to the jury, he cleared the courtroom of spectators and specifically excluded representatives of the press and news media from his order, that the trial and its conduct would be observed and reported to the public. The trial judge took the quickest, most effective steps to secure the safety of everyone. 2 Jurors and the public, to say nothing of the parties, should not have their safety compromised by any measure less than the most effective.

The appellant argues that he was injured because the jury could believe the courtroom was cleared to' protect the witness. The trial court correctly perceived, however, that were the courtroom not cleared, the jury would have far graver consequences to consider, perhaps from their hospital beds or worse.

*353 In Commonwealth v. Knight, this Court properly affirmed the clearing of a courtroom to protect the emotional health of a child witness. In this case the action was taken in the interest of saving many lives. How the concepts differ, or why one is more important than the other is not clear. I suggest that there is no meaningful difference and therefore dissent.

. See also, United States v. Kobli, 172 F.2d 919 (3d Cir.1949); United States ex rel. Smallwood v. LaValle, 377 F.Supp. 1148 (E.D.N.Y. 1974), aff'd, 508 F.2d 837 (2d Cir.), cert. denied, 421 U.S. 920 , 95 S.Ct. 1586 , 43 L.Ed.2d 788 (1975).

. The scope and duration of the exclusion order did not seriously infringe upon the accused’s right to public trial, because representatives of the news media were permitted in the courtroom to report the proceedings and because the courtroom was cleared only during the testimony of the single witness who had been threatened.