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State v. Dixon6/3/2005
ase is State v. Kleypas, 272 Kan. 894, 930, 40 P.3d 139 (2001), where it was cited for another principle--that only improperly seized evidence need be suppressed. Dixon cites several New York cases in which new trials were granted because the courtroom was closed following presentation of the evidence. See, e.g., People v. Singh, 287 App. Div. 2d 748, 749, 732 N.Y.S.2d 415 (2001), in which the defendant's right to an open trial was said to apply where the courtroom was closed from the time the jury was instructed to the end of the proceedings. Dixon also cites People v. Martinez, 172 App. Div. 2d 428, 568 N.Y.S.2d 940 (1991), in which the defendant's family was removed from the courtroom before announcement of the verdict.
In Waller, the Supreme Court stated that "under the Sixth Amendment any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press-Enterprise and its predecessors." 467 U.S. at 47. In Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 509-10, 78 L.Ed. 2d 629, 104 S.Ct. 819 (1984), the Supreme Court quoted Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07, 73 L.Ed. 2d 248, 102 S.Ct. 2613 (1982), as follows:
"' he circumstances under which the press and public can be barred from a criminal trial are limited; the State's justification in denying access must be a weighty one. Where . . . the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest and is narrowly tailored to serve that interest.'"
The Supreme Court continued:
"The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered." 464 U.S. at 510.
Dixon contends that the decision to close announcement of the verdicts in this case did not satisfy the Waller test because the trial court failed to consider reasonable alternatives to closure. Dixon argues that the trial court could and should have gone ahead and sworn in Griffin's jury in order to subject it to the trial judge's direct control and instructed it to avoid media coverage of the verdicts in Dixon's trial. Defense counsel did not suggest this or any other alternatives to the trial judge. Dixon further argues that any exposure to information about the verdicts in Dixon's trial could have been cured for Griffin by replacement of jurors. Contrary to Dixon's contention, the trial judge did consider the possibility of selecting new jurors for Griffin's trial:
"Item Number 4, change of venire. Basically that means pick a different jury pool. I would challenge anyone in this courtroom to go out and find a different jury pool than what we found. That jury pool was selected as randomly as any one. The publicity would have the same effect on the jury pool. I can't go out and find a different 50,000 people to try and select a jury pool from. That's not an option available to me, and that is cold hard fact.
"Next issue or next option available to me is intense voir dire. We had that, and as far as I'm concerned counsel will have another opportunity to ask questions. I don't know what the result of those questions is going to be. The point is, at this point in time I cannot make a factual conclusion to the contrary that the extent of this publicity, which has been intensive and daily, has not had some effect.
"The ne
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