THE CASE OF THE CURIOUS UNCLE
Case Summary: Presley v. Georgia
by DAVID E. GILBERT, Esq.
Posted on June 8, 2010
If you can’t have a rich uncle, perhaps an uncle with time on his hands is the next best thing.
Eric Presley was charged with dealing cocaine. Neither the media nor the citizens of DeKalb County, Ga., where the case was to be tried, appear to have taken much interest in his trial. Presley had an uncle, however, who, for reasons we may never understand, showed up to observe the jury-selection phase of the trial. Presley’s uncle was the only spectator—voir dire is rarely the stuff of TV dramas. But he was one spectator too many for the trial court.
The court informed Presley’s uncle that he would have to leave the courtroom—and, indeed, the entire sixth floor of the courthouse—until the trial was ready to begin. The court appears to have been concerned about what might happen if the jurors and Presley’s uncle were permitted to mix. When Presley’s attorney objected to the uncle’s exclusion, the court replied, “We have very small courtrooms, and the witnesses and relatives cannot sit in the audience beside the potential jurors. That would be grounds for a mistrial[.]”(2)
When Presley’s attorney asked the court whether there was enough room for jurors and family members, the court declined this invitation to exercise judicial creativity. “There’s no, really no need for the uncle to be present during jury selection. . . . [W]e have 42 jurors coming up. Each of those rows will be occupied by jurors.”(3)
Alas, the Constitution is concerned not with needs but with rights. Presley was duly convicted, and when he appealed, the Georgia Supreme Court agreed with Presley that he had a Sixth Amendment right to a public trial. The court further agreed that this right to a public trial included the jury-selection phase. But few rights—if any—are absolute.
The Georgia Supreme Court, relying on U.S. Supreme Court precedent, held that the public may be excluded where “‘an overriding interest . . . is likely to be prejudiced’” and the trial court makes appropriate findings (quoting Waller v. Georgia).(4) The Georgia Supreme Court easily concluded that both of these requirements had been met. It also concluded that the scope of the exclusion had been appropriately limited—another Waller factor.
The key issue, as it turned out, was “whether a court must, sua sponte, advance its own alternatives” to closing the courtroom.(5) Waller had held that a “trial court must consider reasonable alternatives to closing the proceeding[.]”(6) But Presley had not offered the trial court any suggestions. Nor had the prosecutor. Did the trial court have to come up with and weigh its own suggestions?
The Georgia Supreme Court thought the U.S. Supreme Court had been less than clear on this point and affirmed Presley’s conviction. Drawing on a New York case, the Georgia Supreme Court held that it was Presley’s job to
propose solutions, not the trial court’s.
None too pleased with this result, Presley appealed to the U.S. Supreme Court, which, in a 7-2 decision, reversed his conviction. To reach this result, the Court relied primarily on two decisions: Waller(7)(discussed above) and Press-Enterprise Company v. Superior Court of California, Riverside County (1984)(8) (“Press-Enterprise I”).
In Waller, the state asked for, and the trial court granted, an order excluding the public from a seven-day suppression hearing. According to the prosecutor, exclusion was necessary to preserve the state’s ability to use its wiretap evidence against other defendants.(9) Most of the suppression hearing, however, had little to do with the trial court’s rationale for excluding the public.(10)
The Supreme Court held that Waller’s “Sixth Amendment right to a public trial applies to a suppression hearing”(11) and that this right was violated by the trial court’s decision to close the entire hearing. Suppression hearings, according to the Court, “often are as important as the trial itself.”(12) They also shine a light on government activities that the police or prosecutor may find embarrassing.(13)
In Press-Enterprise I, the Supreme Court held that the press had been wrongly excluded from all but three days of a six-week voir dire. The Court noted that the Anglo-American tradition of public trials predated the Norman Conquest(14) and pointed to the use of courtroom bystanders as jurors when the soldiers implicated in the “Boston Massacre” were tried for murder.(15)
“Openness,” according to the Court, “enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.”(16) It also provides “an outlet” for the “public concern, even outrage and hostility” that the public may feel in response to crime.(17) Press-Enterprise I is understood to have identified a First Amendment right.(18)
According to the Supreme Court, Presley’s Sixth Amendment right to have the public present during jury selection was “well settled under Press-Enterprise I and Waller.”(19) Also “clear,” was the trial court’s obligation “to consider alternatives to closure even when they are not offered by the parties[.]”(20) “‘The process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system.’”(21)
The dissent in Presley, Justices Thomas and Scalia, were not so sure these matters were as “well settled” as the majority claimed—or at least well enough settled for the Court to dispose of them in summary fashion. Perhaps the dissenting justices were right, but thanks to Presley’s uncle, these issues are surely settled now—at least until the Court changes its mind.
(1) Gilbert, a graduate of Columbia Law School, is a former assistant district attorney for Allegany County, New York. He teaches Criminal Law, Criminal Procedure, Environmental Law, and other courses at Liberty University School of Law.
(2) Presley v. State, 285 Ga. 270, 271, 674 S.E.2d 909, 910 (2009).
(4) Id. at 272, quoting Waller v. Georgia, 467 U.S. 39, 104S.Ct. 2210.
(5) Presley v. State at 273.
(6) Waller at 48.
(7) Id. at 39.
(8) 464 U.S. 501, 505, 104 S.Ct. 819, 821.
(9) Id. at 41—42.
(10) Id. at 42—43 and 48—49.
(11) Id. at 43.
(12) Id. at 46 (citations omitted).
(13) Id. at 47.
(14) Id. at 505.
(15) Id. at 508.
(16) Id. citing Richmond Newspapers, Inc. v. Virginia, 448 U.S., at 569—571, 100 S.Ct., at 2823—2824.
(17) Id. at 509.
(18) See Presley v. Georgia at 723—724.
(19) Presley v. Georgia, 130 S.Ct. 721, 724 (2010).
(20) Id. at 724.
(21) Id. (quoting Press-Enterprise I).