February 2013: Trial Practice Update

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Court Rules Jury Voir Dire Must Be Public. The Second Circuit recently reversed a criminal conviction because the public had been excluded from the courtroom during jury selection. In the case of United States v. Gupta, the courtroom deputy had asked the defendant’s brother and girlfriend to leave the courtroom because there were insufficient seats for them in the gallery along with the jury venire of 70 people. The deputy informed the two that they would be welcome back in the courtroom after jury selection was complete. The defense did not lodge an objection. Voir dire was uneventful, and the defendant’s brother and girlfriend watched the balance of the trial. Mr. Gupta was convicted of immigration fraud and sentenced to more than four years in prison.

After the trial, Mr. Gupta objected to the exclusion of his brother and girlfriend. The Court of Appeals, following the Supreme Court decisions in Waller v. Georgia, 467 U.S. 39 (1984) and Pressley v. Georgia, 558 U.S. 209 (2010) held that a courtroom cannot be closed simply to accommodate a large panel of prospective jurors, nor can a courtroom be closed to protect the panel from contact with the public. The court also rejected the Government’s argument that the closure was trivial because voir dire was not contentious. The court wrote that “it is the openness of the proceeding itself, regardless of what actually transpires,” that imparts public confidence in our system of justice.

The Court of Appeals also rejected the Government’s argument that Mr. Gupta forfeited his challenge to the courtroom closure by not raising it contemporaneously with the exclusion of his brother and girlfriend. The court rejected this argument for two reasons: first, the evidence was not clear that Mr. Gupta had been aware of the exclusion at the time. Second, the record was clear that Mr. Gupta’s trial counsel was unaware of the exclusion of the brother and girlfriend. The court refused to find waiver if counsel was ignorant of the basis for the need to object. The Second Circuit therefore vacated Mr. Gupta’s conviction and sentence. Regardless of courtroom space, criminal trials in the federal courts must remain open to the public.

Deprivation of Rebuttal Summation Leads to Reversal. In Wagner v. County of Maricopa, decided late last year, the Ninth Circuit reversed a civil case after trial because the judge refused to allow the plaintiff to do a rebuttal summation. The plaintiff in Wagner sued the county after an inmate died in custody. The case proceeded to trial in the District of Arizona. After the plaintiff delivered its principal summation, which lasted an hour, the trial court informed the plaintiff that there would be no rebuttal summation despite the practice in the District of Arizona for the plaintiff to speak last. The county delivered its summation and then the jury returned a defense verdict. The Ninth Circuit held that while a court may manage a trial in its discretion, the trial court cannot deprive a plaintiff of a rebuttal summation without notice. One dissenting judge noted that a party is only entitled to principal closing argument, and no rule requires that a plaintiff be given the opportunity for a rebuttal summation. But that view did not carry the day, and the rest of the Ninth Circuit rejected the county’s motion for rehearing en banc. So the rule in the federal courts of the Ninth Circuit is that a plaintiff cannot be deprived of a rebuttal summation without notice.