February 24, 2011
DAVID O. BARROWS, APPELLANT,
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (CMD-22626-07) (Hon. Robert R. Rigsby, Trial Judge)
The opinion of the court was delivered by: Thompson, Associate Judge:
Argued October 6, 2010
Before RUIZ, KRAMER, and THOMPSON, Associate Judges.
A jury convicted appellant David Barrows of engaging in disorderly and disruptive conduct on United States Capitol grounds, in violation of D.C. Code § 10-503.16 (b)(4) (2001).*fn1 The government's evidence was that, on September 11, 2007, appellant entered a Senate Foreign Relations Committee hearing in the Hart Senate Office Building and, during the testimony of General David Petraeus, shouted, "You are trying to set a trap for us to bomb the helpless people of Iran. Aren't 750,000 deaths enough for your blood thirst?"
Appellant raises four issues on appeal, all of which relate to the trial court's conduct of the jury-selection process. Specifically, appellant contends that he was deprived of an impartial jury and a fair and public trial because the court (1) closed the courtroom to the public during voir dire;
(2) improperly struck two prospective jurors for cause; (3) did not adequately probe the prospective jurors with questions regarding appellant's political views; and (4) improperly allowed the prosecutor to ask prospective jurorsabout whether they or any of their close relatives were injured during the September 11, 2001 terrorist attacks. We find no reversible error.
After the court and the parties had discussed the government's proposed voir dire questions and before members of the jury venire entered the courtroom, the trial judge announced, "I'm going to ask everybody in the courtroom, just for voir dire, to please leave the courtroom, because I'm going to have to fill up the chairs in the back, okay. Is that okay with everybody? Not okay?" The trial judge then directed his attention to one spectator and said, "Okay. Ma'am, do you understand why you have to leave?" That unidentified spectator answered, "Yes. Thank you."
The judge then explained to another spectator why he wanted to close the courtroom during voir dire: "Well ma'am, it's kind of hard for you to stay while we do this because I don't want to get confused as to who you are and who the jurors are. But after voir dire is over, you all - when the trial starts, you all are welcome to come in. Okay? It's [a]n open court, okay. All right."
Appellant contends that he is entitled to reversal of his conviction because the closure of the courtroom to spectators during voir dire violated his Sixth Amendment right to a public trial. He made no contemporaneous objection to closure of the courtroom, however, instead raising the issue for the first time in this appeal. The government therefore argues that appellant has waived the issue*fn2 or that his claim for relief is subject to plain error-review.*fn3 Appellant, of course, disagrees, and asserts that the record "suggests that the second unidentified woman objected to being removed," a putative objection that appellant argues sufficed to preserve the issue for appellate review. He relies on Williams v. United States, 966 A.2d 844, 847 (D.C. 2009) (holding that, in limited circumstances, a co-defendant's objection may suffice to preserve an issue on appeal for an appellant who did not himself lodge the objection in the trial court).
Appellant concedes that the transcript of what transpired as the court was about to conduct voir dire contains no actual spectator objection, but he asks us to surmise from the trial judge's remarks ("Not okay? . . . Well, ma'am, it's kind of hard for you to stay while we do this . . . .") that an unidentified woman spectator objected to being removed from the courtroom. Even assuming that there was such a spectator objection (rather than, for example, a facial expression or gesture of displeasure) and that the rationale of Williams may be extended to cover spectator objections (an issue we need not and do not decide), we are not persuaded that the trial judge was alerted to the issue that appellant has raised on appeal. The (putative) spectator objection may not have been a rights-based or other legal objection (but instead, for example, an expression of displeasure at the spectator's having to expend energy to rouse herself and move out of the courtroom). We are unwilling to assume that the putative objection alerted the trial court to the legal error of which appellant now complains.*fn4
At the same time, mindful that appellant proceeded pro se in the trial court (albeit with the assistance of two attorney-advisors), this is not a case in which the "circumstances suggest that the lack of objection might have been strategic, rather than inadvertent," such that "overlooking the lack of objection simply encourages defense gamesmanship." Robinson, 976 A.2d at 1080. We proceed therefore to review appellant's claim under the strictures of the plain-error standard. Under that standard of review, to obtain relief, appellant must show not only (1) that the trial court erred in excluding spectators from voir dire, but also (2) that the error "should have been 'clear' or 'obvious' to the [trial] court," (3) "affected his 'substantial rights,'" and (4) "seriously affect[ed] the fairness, integrity, or public reputation of the judicial proceedings." Zanders v. United States, 999 A.2d 149, 158 (D.C. 2010) (quoting United States v. Olano, 507 U.S. 725, 732 (1993) (further citation omitted)). We have discretion to correct the error only if each of these four prongs is satisfied. Olano, 507 U.S. at 737.
In light of the Supreme Court's 2010 opinion in Presley, the
government concedes that the court's closure of the courtroom during
voir dire was error. See 130 S. Ct. at 724 ("[T]he Sixth Amendment
right to a public trial extends to the voir dire of prospective
jurors"). The government also acknowledges that the error was
structural*fn5 and that, under this court's
jurisprudence, we must assume that it affected appellant's
"substantial rights." See Arthur v. United States, 986 A.2d 398, 413
(D.C. 2009) ("[I]f [the error] is structural in nature, the
defendant's substantial rights will be
deemed to have been affected, without need for further analysis in the
context of the particular trial.") (citation omitted).*fn6
The government contends, however, that the error was not
"plain" at the time of appellant's 2007 trial and that appellant also
has not met his burden with respect to the fourth prong of the
To support its argument that the error was not plain at the time of trial, the government points to the statement by the dissenting justices in Presley that the Court had not previously decided that "voir dire is part of the 'public trial' that the Sixth Amendment guarantees." 130 S. Ct. at 726 (Thomas, J., dissenting). In holding that the Sixth Amendment right to a public trial extends to voir dire, the Presley majority relied on the Court's holdings in two prior cases, Waller v. Georgia, 467 U.S. 39 (1984) (holding that the public-trial right extends to pretrial suppression hearings), and Press-Enterprise Co. v. Superior Court of Cal., Riverside Cnty., 464 U.S. 501 (1984) (holding that the press and the public have a First Amendment right to attend voir dire). See Presley, 130 S. Ct. at 723-24. The government relies on the statement in the Presley dissent that neither Waller nor Press-Enterprise "govern[ed] squarely and directly" the issue of whether the accused's Sixth Amendment public-trial right extends to voir dire. Id. at 726 (Thomas, J., dissenting) (noting, at 727, that petitioner Presley "did not seek summary reversal based on . . . well-established precedents . . ., but instead asked [the Court] to 'resolve [a] split of authority'"). The government also cites a number of federal court decisions reflecting that, prior to Presley, jurisprudence about whether the Sixth Amendment public-trial right extends to voir dire was less than well-settled.*fn7
However, the Presley majority used strong language, declaring that under the Court's "clear precedents," it was "so well settled that the Sixth Amendment right extends to jury voir dire that this Court may proceed by summary disposition." 130 S. Ct. at 722-24. This court, too, has previously taken as a given that the Sixth Amendment right to a public trial "applies to the entire trial, including that portion devoted to jury selection." Kleinbart v. United States, 388 A.2d 878, 881 n.4 (D.C. 1978). We must agree, therefore, that the error in excluding members of the public from the courtroom during voir dire (without a compelling reason and consideration of alternatives, as described in Waller*fn8 ) was an obvious, and thus "plain," error at the time of appellant's trial.
The question that remains is whether appellant has met his burden under plain-error review to show that the error in excluding spectators from the courtroom during voir dire "seriously affected the fairness, integrity or public reputation of the judicial proceedings." A number of federal appellate courts have reasoned that because a structural error (such as denial of the right to a public trial) "necessarily render[s] a trial fundamentally unfair," Neder, 527 U.S. at 8, it is "difficult to imagine a case where structural error will not satisfy Olano's fourth requirement" of an error that "seriously affects the fairness . . . of judicial proceedings." United States v. Jimenez Recio, 371 F.3d 1093, 1103 n.7 (9th Cir. 2004).*fn9 One judicial opinion observed a dozen years after Olano that "[s]o far as can be discovered, no court has ever actually held that an error is structural but fails to meet the fourth prong of the plain error test." United States v. Rodriguez, 406 F.3d, 1261,1266 (11th Cir. 2005) (Carnes, J., concurring). But neither the Supreme Court nor this court has squarely addressed the question of whether an error that is structural will, invariably, satisfy the fourth prong of the plain-error test. Thus, we are confronted with an issue of first impression.
In deciding the issue here, we begin by recognizing that any error
that is "structural" is likely to have an effect on the fairness,
integrity or public reputation of judicial proceedings.*fn10
cannot, however, lose sight of the Supreme Court's instruction in
Olano that, in applying the fourth prong of the plain-error standard,
courts must consider whether an error "seriously" affected those
factors. 507 U.S. at 732. Although Olano did not involve structural
error, we take it from that general instruction that a conclusion that
an error had some slight impact on the fourth-prong factors is not
enough for a court to conclude that the fourth prong is satisfied. We
also take heed of the Supreme Court's recent admonition that the
fourth prong test "is meant to be applied on a case-specific and
fact-intensive basis," and that a "per se approach to plain-error
review is flawed." Puckett, 129 S. Ct. at 1433 (citation and internal
quotation marks omitted).*fn11 Puckett also was not a
case involving structural error, but its admonition about applying the
fourth-prong analysis of an error's effect on the fairness of a
criminal proceeding on a "case-specific and fact-intensive basis" was
consistent with the Court's observation a few years earlier that, even
in preserved-error cases, "[i]t is only for certain structural errors
undermining the fairness of a criminal proceeding as a
whole" that the error "requires reversal without regard to the
mistake's effect on the proceeding." United States v. Dominguez
Benitez, 542 U.S. 74, 81 (2004) (italics added).
Considering the specific facts of this case, we are not persuaded that the brief closure of the courtroom during voir dire seriously affected the factors that concern us in applying the fourth-prong test.*fn12 To begin with, the trial judge offered a neutral (though insufficiently compelling) reason for closing the courtroom to spectators and assured spectators they would be "welcome to come in" for trial and that "[i]t's [a]n open court." We cannot conclude that the judge's (polite) handling of the matter, though erroneous, had any serious adverse effect on the public reputation of the court. Further, nothing in the record suggests that this is a case "where it is or could be charged that the judge deliberately enforced secrecy in order to be free of the safeguards of the public's scrutiny." Levine, 362 U.S. at 619-20 (1960). Nor is this a case in which it is likely that, if spectators had been permitted to remain in the courtroom during voir dire, they "would in the slightest have affected the conduct of the proceedings or their result." Id. As noted above, the court's discussion of the government's proposed voir dire questions was conducted in open court before the trial judge asked spectators to leave the courtroom, as were the trial judge's acknowledgment of his background in the military and active reserve status and his question to appellant about whether appellant would "like to voir dire the Judge." Once voir dire started (with the courtroom then closed), the court turned on the "husher"*fn13 during the questioning of each prospective juror (an action to which appellant has raised no objection). Thus, had they remained in the courtroom, spectators would not have been able to hear the questions that the court, the prosecutor, and appellant posed, or the exchanges with each prospective petit juror.*fn14 The undoubted value of an open courtroom is that it "gives assurance that established procedures are being followed and that deviations will become known" and thereby "enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system." Press-Enterprise, 464 U.S. at 508. This assurance is particularly important in a case such as this, where the conduct for which appellant was charged involved protected political speech and policy views of public interest. But here, especially given the (unobjected-to) use of the husher during the individual juror interviews, we cannot say that allowing the courtroom to remain open during the relatively short voir dire would have contributed appreciably to those goals.*fn15 We therefore see no basis for concluding that the error that appellant has identified seriously compromised the fairness or integrity of his trial.
Appellant's remaining arguments focus on the voir dire examination itself. In reviewing appellant's claims, we are guided by the principle that the trial court has "broad discretion in conducting voir dire examination." Murray v. United States, 532 A.2d 120, 122 (D.C. 1987). We will not reverse a trial judge's ruling regarding the content and scope of voir dire "absent an abuse of discretion and substantial prejudice to the accused." Id. (citations omitted). The trial judge's broad discretion over the voir dire process extends to decisions "to strike a juror for cause[.]" Ahmed v. United States, 856 A.2d 560, 563 (D.C. 2004) (per curiam) (citation omitted).
Appellant's first argument focuses on Jurors 600 and 720. During voir dire, the trial judge asked Juror 600 if she "could . . . listen to the law as I give it to you, and be fair and impartial in this case[,]" to which Juror 600 responded, "I don't feel impartial . . . . because I feel very partial about the law right now. I have issues with the system, and the fact that we have real criminals running around." Without objection from appellant, the trial judge granted the government's motion to strike the juror for cause.
In responding to the written voir dire questions given to prospective jurors, Juror 720 indicated that he would be "unable to decide this case." At the bench, the following discussion occurred between Juror 720 and the court:
JUROR 720: I consider myself a bit of a libertarian. I don't know anything about the particulars. I don't know Mr. Barrows. But just on the basis of what you said, this doesn't sound like a very serious crime, or charge. It seems kind of frivolous, on the face of it. Again, I don't know the details . . . of why he was protesting, or what he was doing blocking the business of the Congress. . . . If it was a more serious crime-if he had shot someone-then you would have indicated that. So it . . . doesn't seem like a very serious crime to me-and as a libertarian . . . I'm going to be inclined to-particularly, if he's protesting the war, the symbolism of September 11th-we're all familiar with. I don't know, again, what he was doing, but it just doesn't seem very serious to me, on the face of it.
COURT: You're here to decide this case based only on the facts and the law.
JUROR 720: Okay.
COURT: And if you can't apply the facts or the law to the facts, and if you can't be fair and impartial, then you can't be a juror.
JUROR 720: I'm not-again, without knowing the details-I'm not sure, as this proceeds, that I would be. I would probably be inclined to dismiss the charges if it is, in my opinion, somewhat sort of frivolous.
The government then moved to dismiss, and the court granted the motion without objection.
Appellant contends that the court erred in striking jurors 600 and 720 for cause, contending that their dismissals "skew[ed] the jury in favor of the government." However, his failure to object in the trial court limits our review to a plain-error analysis, and we discern no plain error. The purpose of voir dire is to "obtain an impartial jury, in part by disqualifying biased jurors." Doret v. United States, 765 A.2d 47, 53 (D.C. 2000). The task is made easy when the court has "received responses from the juror that permit an inference that the juror in question would not be able to decide the matter objectively." Id. That is precisely what occurred here. Juror 600 said unequivocallythat she "[didn't] feel impartial" and Juror 720 said that he was "not sure . . . that [he] would be [fair and impartial]." Cf. United States v. Nell, 526 F.2d 1223, 1230 (5th Cir. 1976) (reading prospective juror's "statements during the voir dire as an express admission of bias" because "[n]ever once did he say that he would be able to render a fair and impartial verdict"). Moreover, Juror 600 admitted to having "issues with the system, and the fact that we have real criminals running around" and Juror 720 responded that the crime that appellant had been charged with committing "doesn't sound like a very serious crime," and "seem[ed] kind of frivolous," and said that he would "be inclined to dismiss the charges" if he determined that they were "frivolous." Cf. Doret, 765 A.2d at 54 (describing the trial court's "responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions"). Because both prospective jurors' responses reasonably could have been perceived as exhibiting actual bias against the government, and because the government "has as much right to an impartial jury as the defendant," United States v. Sutton, 732 F.2d 1483, 1493 (10th Cir. 1984), we cannot say that the trial court plainly erred in granting the government's unopposed motions to excuse these jurors for cause. Cf. Nell, 526 F.2d at 1229 ("If 'actual bias' is discovered, then the court must grant the challenge for cause").
Appellant contends that the two jurors were "targeted for exclusion based on their views," resulting in a petit jury that was "unacceptably skew[ed] . . . in favor" of the government. We reject this characterization. The voir dire transcript shows that the court was focused on the ability of jurors to be impartial rather than on their association with particular viewpoints. For example, when the prosecutor wanted the court to strike for cause Juror 176, who said that "people [she was] close to" had participated in protesting "[t]he war going on now," the court declined to do so because the juror said that she could be "fair and impartial" (and Juror 176 went on to be seated on the petit jury). In addition, we cannot conclude from the voir dire proceedings as a whole that the jurors' viewpoints were skewed in favor of the government or against those who would engage in protests against war or against the actions of government officials. Among the jurors who were seated were Jurors 425, 564 and 808, who, respectively, had protested regarding the war in Vietnam, the pardon of Richard Nixon, and abortion rights issues, as well as Juror 585, who stated that she had a friend who was arrested after demonstrating against a nuclear power plant. The court struck for cause Juror 895, who said that she had "little patience for grandiosity in the guise of social conscience"; Juror 493, who worked for a member of Congress and admitted to "feel[ing] a natural irritation . . . of protesters coming to the Capitol grounds"; and Juror 539, who worked as chief of staff for a member of Congress and who said that "matter[s]" such as appellant was charged with "happen a lot."*fn16
Before voir dire commenced, the court indicated that it would use a topic list of seventeen questions to pose to the jury venire members - a standard set of questions not specifically tailored to appellant's charged offense. The prosecutor proposed three additional questions. The trial judge permitted the government to ask its proposed questions (and the prosecutor repeatedly posed the questions to prospective jurors), but declined to include the three questions as part of the court's questions. Appellant did not propose any stock questions to be read to the jury venire, but posed a number of questions to prospective jurors during the individual interviews.
Before venire members were individually examined, the court read to them the charge against appellant:
On or about September 11th, 2007, within the District of Columbia, David O. Barrows willfully and knowingly engaged in disorderly and disruptive conduct upon the United States Capitol grounds, or within any of the Capitol buildings, with the intent to impede, disrupt and disturb the orderly conduct of a session of the Congress in either House thereof, or the orderly conduct within any such building of a hearing before, and deliberations of, a committee or subcommittee of the Congress in either house thereof. This offense is alleged to have occurred on September 11, 2007, at 10:27 a.m., at the Hart Senate Office Building, located at 120 Constitution Avenue, Northeast, Washington, D.C.
On this record, appellant argues that the "[v]oir dire was conducted in a way that would not have detected bias against [him] based on his political views." In particular, he argues that the trial court had an obligation to ask specific questions sua sponte regarding his "antiwar stance and his belief that the Iraq war was fought for 'bloodlust.'" He relies on Cordero v. United States, 456 A.2d 837 (D.C. 1983), in which we recognized that "[f]airness requires a careful voir dire examination when there is a 'significant likelihood' of juror prejudice," id. at 841 (quoting Ristaino v. Ross, 424 U.S. 589, 598 (1976)) (other citation omitted); that a "significant likelihood of prejudice exists when (1) a case involves matters concerning which either the local community or the population at large is commonly known to harbor strong feelings, and (2) these matters are inextricably bound up with the conduct of the trial,"id. at 842 (citations and internal quotation marks omitted); and that one of the "controversial matters requiring careful scrutiny" is "political attitudes." Id. (citations omitted).*fn17 Because the trial court in Cordero "took no action to minimize the likelihood of prejudice to [Cordero] from the controversial matters inextricably bound up with the trial," we reversed his conviction, concluding that the "trial court abused its discretion in declining to incorporate into voir dire examination the substance of" the questions offered by appellant (including a question about whether any prospective juror would be prejudiced against Cordero because of his political beliefs or affiliations). Id. at 844.
The factual similarities between this case and Cordero are apparent,*fn18 and the government concedes that the factual context of the charged offense presented "a significant likelihood of juror prejudice." What distinguishes Cordero from this case, however, is that Cordero proposed and the trial court rejected several voir dire questions relating to his political affiliation and viewpoints, while here appellant proposed no voir dire questions for the court to pose and took no issue with the court's not having included questions regarding the potential offensiveness of appellant's political views or of his characterization of the war. Thus, unlike Cordero's claim, appellant's claim is subject to the strictures of plain-error review.*fn19
Appellant argues that the plain-error standard of review should not
apply because "the burden [was] on the trial court to assure that the
jury was fair and impartial." This argument overlooks that "[h]ow
[the] biases [of prospective jurors] will be uncovered during voir
dire is left
to the trial court's broad discretion." Matthews v. United States, 599
A.2d 1389, 1389 (D.C. 1991) (citation omitted). Under Super. Ct. Crim.
R. 24 (a), "[t]he Court may permit the defendant or the defendant's
attorney and the prosecutor to conduct the examination of prospective
jurors or may itself conduct the examination. In the latter event the
Court shall permit the defendant or the defendant's attorney and the
prosecutor to supplement the examination by such further inquiry as it
deems proper." If the trial court affords both parties the opportunity
to supplement its voir dire questions, as the court undisputedly did
here,*fn20 it is immaterial that the trial court's own
questions do not ferret out every potential bias that a prospective
juror could have. See Doret, 765 A.2d at 54 (noting that the proper
inquiry is whether "the trial court ask[ed], or permit[ted] the
parties to pose, sufficient questions to determine whether seven
jurors should have been struck for cause" (emphasis added)); Cordero,
456 A.2d at 841--42("At a minimum, when requested by counsel, inquiry
must be made into matters where the likelihood of prejudice is so
great that not to inquire would risk failure in assembling an
impartial jury.") (quoting United States v. Dellinger, 472 F.2d 340,
368 (7th Cir. 1972)) (emphasis added). This is no less true in cases
such as this one, where the parties agree that there was a significant
potential for juror prejudice. Cf. Rosales-Lopez v. United States, 451
U.S. 182, 191 (1981) ("In our judgment, it is usually best to allow
the defendant to . . . mak[e] the determination of whether or not he
would prefer to have the inquiry into racial or
ethnic prejudice pursued."); Matthews, 599 A.2d at 1390 (explaining
that "drug-related crime" is one of "several controversial matters
requiring careful inquiry during voir dire" and that, in an
appropriate case, a voir dire question regarding drug use "should
generally be asked . . . if either counsel requests it") (internal
quotation marks omitted) (emphasis added). Accordingly, the trial
court did not plainly err in failing to ask questions sua sponte
during voir dire related to appellant's antiwar stance.*fn21
Cf. Mills v. United States, 796 A.2d 26, 36 (D.C. 2002)
(discerning no constitutional error or an abuse of discretion in the
trial court's handling of the voir dire where "defense counsel did not
advise the trial judge, before the voir dire process, of the specific
question he wished to have posed to potential jurors").
Finally, appellant argues that the trial court committed reversible error in allowing the government to ask prospective jurors the question, "Were you, or any close relative, injured during the September 11, 2001 attacks? If yes, will your or your relative's injuries prevent you from being fair and impartial during the trial?" Appellant contends that this question "improperly linked [his] nonviolent political activity to terrorism."*fn22
We are satisfied that the court did not abuse its discretion in permitting the government to ask the September 11 question. Had the only connection between appellant's arrest and the September 11, 2001 terrorist attacks been that they occurred on the same day of the year, we might agree that the question was not a proper one for voir dire.*fn23 However, the record suggests that the scheduling of the Senate hearing on the anniversary of the September 11, 2001 attacks was not happenstance, and that a focus of the hearing was the United States's military involvement in the Middle East post-September 11, 2001. Thus, appellant's assertion that the government was permitted to ask the September 11 question because of the "mere coincidence that [his] alleged conduct took place on September 11, 2007" is not entirely accurate. The government's question was relevant at least to the extent that it provided the "opportunity to expose bias or prejudice," Finley v. United States, 632 A.2d 102, 104 (D.C. 1993), of jurors who, because of any September 11, 2001-related sentiments, might, upon learning the details of the case, render a verdict based on an emotional response to the fact that appellant's protest action related to the conduct of government affairs in the wake of the events of that date. Cf. Chatmon v. United States, 801 A.2d 92, 100 (D.C. 2002) (referring to the need to ensure that jury verdicts are not based on "the emotional response of inflamed passions").
And, in any event, we are not persuaded by appellant's argument that the September 11 question prejudiced him at trial by "link[ing] his nonviolent expression of dissent to the criminal acts of terrorists." Indeed, appellant suggests that Juror 720 "speculated out loud what all of the jurors must have been thinking" when he said "that the case might involve Mr. Barrows 'protesting the war, the symbolism of September 11th[.]'" Far from forming a negative view of appellant or linking his actions to the criminal acts of terrorists, Juror 720 considered the charges against appellant "kind of frivolous" and not "very serious."
For all of the foregoing reasons, the judgment of the Superior Court is Affirmed.