Defendant Was Not Denied Right to Public Trial by Partial Courtroom Closure – Kovaleski v. State

November 1, 2012 by David S. Seltzer

Under the U.S. and Florida constitutions, everyone who is accused of a crime is entitled to a fair and public trial. However, courtrooms may be closed under special circumstances, and Florida state law includes testimony from a victim of sexual assault as one of those special circumstances. The defendant in Kovaleski v. State, a recent Florida Supreme Court decision, argued that partial courtroom closure in his trial violated his right to a public trial. Anthony Kovaleski was accused of two counts of lewd and lascivious acts on a minor; the judge in his case closed the courtroom pursuant to a state law permitting that closure when the victim requests it during his or her testimony. The Florida Supreme Court found that this did not deny Kovaleski’s right to a fair trial, and it also conformed to the requirements set down by the U.S. Supreme Court in Waller v. Georgia.

Kovaleski had two trials, starting in 1998. At the first, the judge closed the courtroom during the testimony of the victim, J.L., pursuant to a law permitting closure during testimony from sex offense victims under the age of 16. Kovaleski was convicted, but the trial was thrown out on appeal because it became clear that J.L. was over age 16 during the trial, yet the judge didn’t reopen the courtroom or make the necessary findings under Waller. On retrial in 2006, the judge again partially closed the courtroom during J.L.’s testimony, this time pursuant to a law permitting closure at the victim’s request. Kovaleski was again convicted, and appealed the partial closure, as well as some sentencing issues, to the Fourth District Court of Appeal. That court found Waller didn’t apply to partial closures, but did remand for resentencing. Kovaleski appealed.

The Florida Supreme Court upheld the Fourth District, but for different reasons than those the appeals court cited. Waller requires that before courts may be closed, the party seeking closure must show an overriding interest that’s likely to be prejudiced; the closure must be no broader than necessary; the court must consider reasonable alternatives; and it must make findings adequate to support closure. The court found that the state law allowing partial closure during victims’ testimony met those requirements. Protecting victims at their own request meets the overriding interest test, it said; the law is also narrowly tailored because it permits many people to remain in the courtroom, including members of the press. The court found that the “no broader than necessary” test was passed because partial closure was the most reasonable alternative to full closure; and it cautioned trial courts that they must make findings adequate to the fourth prong. Thus, it upheld Kovaleski’s conviction.

Kovaleski was accused of a very sensitive crime: lewd and lascivious acts on a minor. While the opinion in this case spares us the details, media outlets frequently don’t name the victims of sex crimes, in order to spare them the shame and trauma of being named publicly. The same could be said of public testimony, and indeed, many jurisdictions allow private testimony, testimony by video or testimony with assistance. However, this sympathy for the victims must be tempered by respect for the civil rights afforded to all defendants. As this case shows, no matter how serious the accusation is, every defendant has a right to a public trial within the bounds of the law.

If you’re accused of a serious crime in Florida, don’t wait before you contact an experienced attorney for help. At Seltzer Law, P.A., we represent clients in south Florida and around the state who are facing serious criminal charges. For a free, confidential case evaluation, send us a message online or call 1-888-THE-DEFENSE (1-888-843-3333).

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