The uncertain state of the law on the consequences of closing a courtroom to the public occupied the full U.S. Court of Appeals for the Second Circuit on Wednesday.

For 90 minutes, 15 judges sitting en banc grappled with the issue of whether any closing of the courtroom during jury selection constitutes a “structural” flaw in the proceedings requiring a new trial for a convicted defendant or whether there remains a subset of closings so trivial that do not violate the Sixth Amendment right to a public trial and do not warrant disturbing the verdict.

The case is United States v. Gupta, 09-4738-cr, the appeal from the 2008 conviction following a seven-day trial before Southern District Judge Deborah A. Batts (See Profile) of immigration attorney Raghubir K. Gupta for filing fraudulent immigration documents.

During voir dire, a court officer told Mr. Gupta’s brother and girlfriend they had to leave the courtroom. Courtroom Deputy William Delaney later submitted an affidavit to the circuit saying that, at Judge Batts’ direction, he instructed anyone who was not a prospective juror to leave, in part because of the large number of jurors and in part to protect the panel from hearing anything about the case.

At the time, the Sixth Amendment right to a public trial as outlined by the U.S. Supreme Court in Waller v. Georgia, 467 U.S. 39 (1984), a case that requires judges to make specific findings justifying the closing of a courtroom, had yet to be explicitly extended to voir dire.

At that point in time, the Second Circuit had more than once applied a “triviality” exception to the Sixth Amendment in analyzing appeals under Waller and had countenanced much more severe closings than the one in Gupta, including, in one case, a courtroom closed for three days of critical testimony.

But on Jan. 26, 2010, three months after Judge Batts sentenced Mr. Gupta to 51 months in prison, the U.S. Supreme Court issued Presley v. Georgia, 130 S.Ct. 721, rejecting the exclusion of a defendant’s uncle (the only spectator) from the courtroom during voir dire and holding that a trial judge is obligated to consider alternatives to courtroom closure in voir dire as it takes “every reasonable measure to accommodate public attendance at criminal trials.”

Mr. Gupta’s pending appeal to the Second Circuit was then sent back to Judge Batts on a “Presley remand,” and Judge Batts responded with Mr. Delaney’s affidavit.

Affidavit in hand, a divided three-judge circuit panel on June 17 held that the exclusion of Mr. Gupta’s brother and girlfriend, “though unjustified” was “too trivial” to implicate his right to a public trial (NYLJ, June 22).

Judges John M. Walker Jr. (See Profile) and Peter W. Hall (See Profile) were in the majority. Judge Barrington D. Parker (See Profile) dissented.

The decision was a controversial one, as a majority of active judges on the circuit voted to rehear the case en banc.

Late Wednesday afternoon, Susan C. Wolfe of Hoffman & Pollok insisted for Mr. Gupta that there was “no intentional closure of jury selection that can comport with the Sixth Amendment.”

Read the briefs for Mr. Gupta, the prosecution, and amici curiae The National Association of Criminal Defense Lawyers and The Center on the Administration of Criminal Law.

Almost immediately, Judge Walker asked Ms. Wolfe what would be required if a judge questions every prospective juror in the robing room and then goes on to conduct peremptory challenges in the robing room.

“Is there any problem with that or does it require Waller findings” for each robing room visit? he asked.

The record troubled the court because there was no indication that Mr. Gupta’s counsel objected to the exclusion, raising the issue of whether he forfeited the objection.

“The defendant was a lawyer,” Judge Walker said. “Either he didn’t care or, if he did care, he didn’t do anything about it.”

Ms. Wolfe said there was no triviality exception and the closing of the courtroom during a critical phase of the proceeding was a “structural” flaw.

When Judge Rosemary Pooler (See Profile) asked whether keeping the jury pool from being tainted was a legitimate concern, Ms. Wolfe agreed it was, but said it did not justify closing the courtroom and, in any event, Waller findings have to be made.

Assistant U.S. Attorney Katherine Polk Failla argued that Mr. Gupta had indeed waived or forfeited any objection. Ms. Failla defended the viability of the triviality exception—an exception that applies “when you consider all of the circumstances.”

“Why doesn’t closing the entirety of voir dire fail that test?” Judge Gerard E. Lynch (See Profile) asked, especially when voir dire is “a critical stage of the process?”

And Judge Lynch wanted to know, “Why does the right of the defendant turn on whether or not the lawyer objects?”

Examining all the circumstances, Ms. Failla insisted, Mr. Gupta received a fair trial.

She conceded to Judge Richard C. Wesley (See Profile) that the exclusion of the brother and girlfriend was a Waller violation, but insisted that it did not justify a new trial.

Waller has no sting?” Judge Wesley asked. “Trial judges can simply ignore Waller?”

Ms. Failla said Mr. Gupta’s brother and girlfriend missed nothing of consequence—an argument that more than one panelist took exception to—particularly Judge Reena Raggi (See Profile).

“[H]ad the courtroom been open what anyone would have seen is a judge conducting large parts of a jury selection effectively under closure because she used a questionnaire, because she brought people to sidebar, she took them to the jury room—very little of it was conducted in public,” she said. “Why shouldn’t the public know that?” and shouldn’t “judges be discouraged from doing that by public knowledge of how they’re picking juries?”

Judge Lynch derided the government for arguing, in effect, if there were no “fireworks” at the closed proceeding, it does not implicate the Sixth Amendment.

Judge Parker asked what would happen if voir dire was conducted in chambers and there was a sustained Batson challenge—a charge potential jurors were being stricken from the panel because of their race.

“I think that would be difficult to argue that was trivial,” Ms. Failla answered.