In The Right to a Public Trial in the Time of COVID-19, Professor Stephen Smith argued that the COVID-19 pandemic justified an almost categorical suspension of the right to a public trial. Judges have relied on Smith’s Article to justify closure decisions made without the constitutionally required specific findings. These are part of a larger pattern of improper closure determinations, many made without fully considering alternatives to closure, since the beginning of the pandemic that threatens the rights of individuals with criminal cases and the collective rights of the public. But the Constitution has no pandemic exception, and it is time to address this unconstitutional pattern of closures as courts grapple with their obligation to protect criminal procedural rights within a potentially long-term public health situation. This Response explains that following the Waller test as it was contemplated by the Supreme Court can and will vindicate defendants’ Sixth Amendment rights and the public’s First Amendment rights while protecting public health during the COVID-19 pandemic.
Using Waller to Uphold First and Sixth Amendment Rights Throughout the COVID-19 Pandemic
February 16, 2022