DeKalb County Judge Gregory Adams' removal of the public from his courtroom during the early phase of jury selection in the Andrea Sneiderman trial Monday raised eyebrows on the Judicial Qualifications Commission.
"Generally, that is the kind of thing that the JQC is going to take a hard look at, any time we have somebody saying that the public has been excluded," said JQC Vice Chairman Lester Tate.
Tate declined to discuss Adams' orders in the Sneiderman case specifically, but he said there is U.S. Supreme Court case law upholding the public's right to be present for voir dire. The case, Presley v. Georgia, 130 S. Ct. 721 (2010), reversed the Georgia Supreme Court and held that the Sixth Amendment right to a public trial extends to the voir dire of potential jurors. In the underlying case, a man convicted of cocaine trafficking claimed his constitutional rights were violated when DeKalb County Superior Court Judge Linda Hunter excluded the public from jury selection during his trial.
The U.S. high court's decision led the drug conviction to be reversed, but the public defender who won the case said Sneiderman likely wouldn't be able to challenge any conviction on the basis of Adams' closing the courtroom.
The reason, said public defender Gerard Kleinrock, is that he had objected to the closure during the Presley case. Sneiderman's legal team did not object to Adams' closure on Monday.
Even though the U.S. high court wrote in the Presley case that, "The public has a right to be present whether or not any party has asserted the right," the Georgia Supreme Court subsequently held that an objection was necessary to benefit from such an error.
Three weeks after the Presley decision was released, the Georgia high court ruled in Reid v. State, 286 Ga. 484, that a defendant couldn't get his conviction tossed over a courtroom closure because his trial lawyer hadn't objected. The defendant also hadn't shown how he had been hurt by the closure, but Chief Justice Carol Hunstein dissented that the conviction should be overturned because an objection "is not required … in order to obtain relief for a structural error such as a violation of the public-trial right."
On Monday morning, Adams required members of the public and media seated in the gallery to vacate their seats and leave the courtroom so he could call in 50 potential jurors for general questioning. Adams said a lack of space in the courtroom necessitated his move.
Adams reiterated that the public had a right to be in the courtroom, but that because seating was limited, only the jury could sit in the gallery.
Prior to the courtroom being emptied for jurors, a television news reporter asked the judge whether the media could relocate to the empty jury box, but Adams denied his request. The Daily Report's request that a staff writer be allowed to stand in the back of the courtroom near the deputies on guard was denied by the deputies.
A few members of the Sneiderman family were called into the courtroom during general juror questioning, but deputies did not allow any other spectators.
The public and media were allowed to return about 45 minutes later, once general questioning was complete.
Afterward, potential jurors were called in one by one for individual questioning, and presumably space in the gallery was more available.
Tate said that case law allows courtrooms to be closed in certain, limited circumstances, but lack of space is not one of them.
"It is not sufficient [for any judge] to say, 'Well we just don't have enough room. We're not going to let the public in,'" he said.
The Presley decision stated, "The right to an open trial may give way in certain cases to other rights or interests, such as the accused's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information."
However, it also stated, "Such circumstances are rare, however, and the balance of interests must be struck with special care. The party seeking to close a 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."
"I would urge all judges to very carefully look at the Presley case," Tate added. "Because, I think a lot of folks that run afoul of the law about having open courtrooms just aren't aware of exactly what the law is about."
Kleinrock said the judge could have considered alternatives to initially questioning all 50 prospective jurors at once, such as smaller voir dire panels, to make the best use of limited space while allowing the public and media to remain present.
"[T]here isn't much of a reason not to break up the venire. The only one I can dream up is efficiency, but what about trial is efficient anyway?" Kleinrock said. "And it is not really that inefficient to just repeat the same 20 general questions three times instead of once. The question for the courts is whether it is worth extending the trial by an hour or so to protect the public's constitutional right of access. Sounds like a no-brainer to me."
Since the Presley case, there have been other challenges to courtroom closures around the state.
In February, a federal judge in Albany affirmed the constitutional principle that Georgia courts should be open to the public in an order allowing a suit challenging courtroom closures by judges in the Cordele Judicial Circuit to go forward. Those judges had cited limited seating in courtrooms in law enforcement centers and security concerns associated with transporting defendants to larger courtrooms at the county courthouses in response to allegations that only family members of defendants were permitted to attend court hearings.
U.S. District Judge Louis Sands' order laid the groundwork for a declaratory judgment that lawyers with the Southern Center for Human Rights are seeking to force the judges and court personnel to accommodate members of the public who want to observe court proceedings. Sands rejected as "unpersuasive" arguments put forth by Georgia Attorney General Sam Olens and four members of his legal staff—who are defending the judges—that the courts in Cordele were not closed and the judges' determination to limit public access for reasons of space or security was not the same as an unconstitutional closure.
In 2011, DeKalb County State Court Judge Barbara Mobley resigned from the bench to end a JQC ethics investigation that included allegations she blocked public access to court hearings by posting signs outside court hearings that there wasn't room for "extra people" and directing court personnel to ask court observers to identify themselves.
Adams' courtroom was less full than Friday, during a pretrial hearing in which DeKalb District Attorney Robert James dropped charges of murder, malice murder and aggravated assault against Sneiderman. She remains on trial for charges including perjury and false statements.
She had been accused of encouraging her former boss and alleged lover to kill her husband. Rusty Sneiderman was gunned down in November 2010 outside a Dunwoody day-care center. A jury convicted Andrea Sneiderman's former boss, Hemy Neuman, of being the triggerman in March 2012. The verdict of guilty but mentally ill resulted in Neuman serving a life sentence without possibility of parole.
Sneiderman and her legal defense team of J. Tom Morgan, Tom Clegg, John Petrey and Doug Chalmers have maintained her innocence and have denied allegations that she had an intimate relationship with Neuman.