Today’s Lilly v. State (Tex. Ct. Crim. App. Apr. 18, 2012) (some paragraph breaks added):
Appellant, Conrad Lilly, was charged with two counts of assault on a public servant. He now asks this Court to reverse the judgment of the court of appeals, which held that his trial proceedings, which were convened at the prison-chapel courtroom, were not closed to the public, that a violation of the Establishment Clause is not structural error [i.e., the sort of trial error that requires reversal, without an inquiry into whether the error was likely harmless in in this situation -EV], and that the violation of the Establishment Clause in his case was harmless. Lilly v. State, 337 S.W.3d 373, 380, 384 (Tex. App.–Eastland 2011). We hold that Appellant showed that his trial was closed to the public, and because that closure was not justified, we reverse the judgments of the court of appeals and trial court. We remand this cause to the trial court for a new trial….
The right to a public trial is not absolute and may be outweighed by other competing rights or interests, such as interests in security, preventing disclosure of non-public information, or ensuring that a defendant receives a fair trial. Waller, 467 U.S. at 45. However, such cases will be rare, and the presumption of openness adopted by the Supreme Court must be overcome….
In the pretrial hearing, the TDCJ publication, Offender Rules and Regulations for Visitation, was offered into evidence and witnesses were called. The testimony developed at that hearing showed that the Unit is located approximately 36 miles from the county seat. To enter the Unit and attend a defendant’s proceedings, a visiting person must first pass through a “highway gate” to enter the prison-grounds parking area. Once past the highway gate, to get to the prison-chapel courthouse, a person must then pass through the “front gate”of the Unit, followed by two fences with razor wire, and a series of three locked metal doors.
At the front gate of the Unit, visitors are subjected to a physical pat-down search and must walk through a metal detector. Before walking through the metal detector, people attempting to enter must remove their shoes and belt. If the metal detector is triggered, then that person will also be frisked with a “wand” (i.e., an individual-use metal detector) before he is allowed beyond the gate. In addition to the practices described, the only people allowed to pass beyond either gate are required to show a valid state-employee identification card or they must have the on-duty warden’s approval. Conflicting testimony was given regarding whether a non-state employee not appearing on an inmate’s visitor list could enter the Unit with the permission of the on-duty warden. But, regardless of whether an individual attempting to enter the Unit is ultimately allowed entry, the prison keeps a record of the name and identification number (e.g., a person’s driver’s license number or TDCJ identification number) of anyone who attempts to enter the Unit and that identification is checked at each barrier.
Also, it was the policy of the prison that unaccompanied minors and individuals released from confinement within the last two years were categorically prohibited from entering the Unit and that visitors could not bring cell phones or more than twenty dollars into the Unit. Other policies for excluding visitors could be enforced at the discretion of the guard stationed at any access point or the on-duty warden. For example, people attempting to attend could be denied entrance if they wore offensive clothing or sought admittance for an “improper purpose.” At the conclusion of the pretrial hearing, the State noted that the docket for the chapel-courtroom was posted at the Jones County Courthouse a month prior to the pretrial hearing and that the docket reflected that the hearing would be at the Unit.
The court of appeals held that Appellant’s trial was not closed to the public because there was no evidence that anyone was “dissuaded from attempting” to attend, and no one was actually prohibited from attending his trial. Lilly, 337 S.W.3d at 380. We disagree with this decision. When determining whether a defendant has proved that his trial was closed to the public, the focus is not on whether the defendant can show that someone was actually excluded. Rather, a reviewing court must look to the totality of the evidence and determine whether the trial court fulfilled its obligation “to take every reasonable measure to accommodate public attendance at criminal trials.” Presley, 130 S. Ct. at 725.
While the admittance policies at the Unit were not tailored specifically to Appellant or any other inmate, they were highly restrictive. And, even though many of the individual admittance policies in this case would not, standing alone, necessarily amount to a per se closure, the cumulative effect of the Unit’s policies undermines our confidence that every reasonable measure was taken to accommodate public attendance at Appellant’s trial. In sum, we hold that, under the facts of this case, Appellant met his burden to show that his trial was closed to the public and that the trial court failed “to take every reasonable measure to accommodate public attendance at criminal trials.” Presley, 130 S. Ct. at 725.