Appeal from the United States District Court for the Eastern District of Illinois. Nos. 76-3-160 and 76-3-168 - James L. Foreman, Judge.
Castle, Senior Circuit Judge, Swygert and Sprecher, Circuit Judges. Swygert, Circuit Judge, dissenting.
CASTLE, Senior Circuit Judge.
Petitioners were among four defendants convicted of rape in a joint trial before a jury in the Circuit Court of Saline County, Illinois. They seek a writ of habeas corpus on two grounds. First, they assert that their right to a public trial was denied by the exclusion of spectators during the testimony of the alleged victim. Second, they assert that the trial judge coerced the jury to return a verdict by failing to provide sleeping facilities at the jurors' request.*fn1 The district court denied the petition. We affirm.
We turn first to the question of whether petitioners were denied the right to public trial. After the State called the alleged victim, a 21-year-old unmarried woman, as its ninth and last witness, the trial judge ordered the bailiff to clear the courtroom of spectators. He asked the following persons to remain: the jury and alternates, the defendants, their attorney, the State's attorney, the clerk, the reporter, the bailiff and the sheriff. He also asked anyone who wished to remain to give his name and his reason for staying. He gave a minister permission to remain "because of her position in the community and because of whom she represents." He made clear that members of the press were welcome, "but a person who has come out of curiosity only or who is concerned only with the progress of the case and desire to hear the testimony of this witness [is] excluded."
The public trial guarantee of the Sixth Amendment*fn2
has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.
In re Oliver, 333 U.S. 257, 270, 92 L. Ed. 682, 68 S. Ct. 499 (1948). The action of the trial judge did not create any potential for secret abuse of the judicial power. Clearing the courtroom of spectators during the testimony of the complaining witness did not remove the trial proceedings from the forum of public opinion. Even in that part of the trial, the press and others with substantial interest in knowing what transpired were permitted to remain or to enter the courtroom.
It is well-recognized that the interest of a defendant in having ordinary spectators present during trial is not an absolute right but must be balanced against other interests which might justify excluding them. United States v. Eisner, 533 F.2d 987, 993 (6th Cir.), cert. denied, 429 U.S. 919, 50 L. Ed. 2d 286, 97 S. Ct. 314 (1976); United States ex rel. Lloyd v. Vincent, 520 F.2d 1272, 1274 (2d Cir.), cert. denied, 423 U.S. 937, 46 L. Ed. 2d 269, 96 S. Ct. 296 (1975). The propriety of the trial court's action depends on the circumstances of each case. Aaron v. Capps, 507 F.2d 685, 687 (5th Cir.), cert. denied, 423 U.S. 878, 46 L. Ed. 2d 112, 96 S. Ct. 153 (1975). Because the public trial guarantee not only prohibits secrecy but also reflects a preference for an open forum, prejudice to the defendant is implied whenever the trial judge lacks substantial justification for excluding spectators, and an affirmative showing of harm is unnecessary to establish a violation of the defendant's right to public trial. United States v. Kobli, 172 F.2d 919 (3d Cir. 1949); Tanksley v. United States, 145 F.2d 58 (9th Cir. 1944); Davis v. United States, 247 F. 394 (8th Cir. 1917).
In Harris v. Stephens, 361 F.2d 888, 891 (8th Cir. 1966), cert. denied, 386 U.S. 964, 87 S. Ct. 1040, 18 L. Ed. 2d 113 (1967), the Eighth Circuit noted that exclusion of spectators during the testimony of an alleged rape victim "is a frequent and accepted practice when the lurid details of such a crime must be related by a young lady."*fn3 See Douglas v. State, 328 So. 2d 18 (Fla.), cert. denied, 429 U.S. 871, 50 L. Ed. 2d 151, 97 S. Ct. 185 (1976); State v. Purvis, 157 Conn. 198, 251 A.2d 178 (1968), cert. denied, 395 U.S. 928, 23 L. Ed. 2d 246, 89 S. Ct. 1788 (1969); Ex parte Rudolph, 276 Ala. 392, 162 So. 2d 486, cert. denied, 377 U.S. 919, 12 L. Ed. 2d 188, 84 S. Ct. 1185 (1964); Price v. State, 496 S.W.2d 103 (Tex. Crim. App. 1973). Primary justification for this practice lies in protection of the personal dignity of the complaining witness.*fn4 The Supreme Court has recognized that, short of homicide, rape is the "ultimate violation of self." Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 2868, 53 L. Ed. 2d 982 (1977). It is characterized by an
almost total contempt for the personal integrity and autonomy of the female victim and for the latter's privilege of choosing those with whom intimate relationships are to be established.
Id. Rape constitutes an intrusion upon areas of the victim's life, both physical and psychological, to which our society attaches the deepest sense of privacy. Shame and loss of dignity, however unjustified from a moral standpoint, are natural byproducts of an attempt to recount details of a rape before a curious and disinterested audience. The ordeal of describing an unwanted sexual encounter before persons with no more than a prurient interest in it aggravates the original injury. Mitigation of the ordeal is a justifiable concern of the public*fn5 and of the trial court.*fn6
Recognition that protection of the dignity of the complaining witness is a substantial justification for excluding spectators does not end our inquiry. Protection of the complaining witness from potential embarrassment does not justify any perceptible increase in the likelihood that the defendant might be convicted. The presence of this justification merely eliminates the implication as a matter of law that the defendant was prejudiced by the ...