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NM Supreme Court considering rules for closing courtrooms

Copyright © 2016 Albuquerque Journal

It’s more than a hypothetical.

A prosecutor in a criminal case tells the judge that a key prosecution witness is afraid to testify because gang members in the courtroom will intimidate her. That, the prosecution argues, is reason to clear the courtroom while the witness is on the stand.

But a decision to close the courtroom collides with the right of the defendant to a public trial, the right of the public to attend court proceedings and of the news media to report on them.

The wrong decision has consequences. For example, the witness might refuse to testify, and the case is lost. Or, the judge might clear the courtroom and find that decision reversed on appeal.

In an effort to provide guidance to trial judges, the New Mexico Supreme Court is considering a rule that would define the issues involved in closing a courtroom and set out a process judges would follow in order to close.

Currently, judges have only a ruling in a 1984 U.S. Supreme Court case called Waller v. Georgia to guide them. That ruling created what is commonly referred to as the Waller test, which sets four criteria to consider before closing a courtroom.

The proposed rules, if approved, would be the first in New Mexico to set out the tenets of the Waller test as the official guide for closures and establish the steps and notification that must be followed before a courtroom is closed.

The Albuquerque Journal and the New Mexico Foundation for Open Government contributed feedback to the proposal and support the rules.

“The rule establishes a presumption in favor of open courtrooms to allow the public to see and hear judicial proceedings,”said Barry Massey, spokesman for the Administrative Office of the Courts, the administrative arm of the Supreme Court and courts in the state. “The rule provides guidance and clarification on the proper procedures when a party to a case or some other person asks to close the courtroom. It’s up to a judge to decide whether that’s appropriate.”

Greg Williams, president of NMFOG, said the Waller test allows closure of a courtroom when “the court is convinced there is no alternative (to closing) and there is some interest, very important interest, that can’t be protected in another way.”

“That is a very rare situation,” he said.

The proposed rule changes come after several convictions in cases that were appealed – some successfully – over a closure.

In one case, a gang member’s murder conviction was overturned and sent for a retrial because the judge had partially closed the courtroom to exclude rival gang members accused of trying to intimidate witnesses, including etching gang symbols on the courtroom doors. The news media was allowed to stay, along with family members of the defendant.

The state Court of Appeals said the judge was correct to close proceedings against Manuel Turrietta in Bernalillo County.

But on further appeal, the Supreme Court said there was not enough proof the witnesses were in danger and that the partial closure excluded people who weren’t targeting the witnesses. This failed the first step of the Waller test, which requires an “overriding interest” to close the courtroom.

In a Chaves County voluntary manslaughter case, the courtroom was closed with prosecutor and defendant consent so that a frightened witness would agree to testify. The defendant later appealed his conviction partially on the grounds that closure was unconstitutional, but the Court of Appeals ruled that his consent made that argument moot.

And in still another case, a San Juan County man was allowed a new trial after a judge closed the courtroom during the testimony of an undercover police officer.

The Court of Appeals said the closure was unconstitutional and the court didn’t look at other ways to meet the need to keep the officer safe. The third step of the Waller test requires all alternatives be explored before a closure.

The appeals judges in that case asked that the state’s Supreme Court Criminal Procedure Rules Committee clarify the rules of courtroom closure to keep such closure issues from triggering appeals.

The committee worked with lawyers, court administrators and the media, including the Journal, to draft the proposed rules, which they have submitted for consideration by the Supreme Court justices. There is no timeline for the Supreme Court to make a decision.