I'm of two minds on this one.
On the one hand, I entirely agree with the sentiment behind Judge Berzon's opinion. It's good that a criminal defendant be allowed to have his family show up at his sentencing. It shows the judge that there's a real person at issue, with a real family. It may make things more concrete. Defendant should have the ability to present that reality to a judge. I agree. Which means that district judges can't order a courtroom closed just to exclude family members from showing up. Sure. Seems right.
On the other hand, I'm not really sure that's what Judge Wright did here. Sure, he sort of did that. But what he really did was just to tell the defendant's lawyer -- forthrightly -- his preferences. For his own personal reasons, Judge Wright doesn't like family members showing up. He thinks it's lame. It gives him bad vibes. He thinks it's silly and hypocritical: the defendant trying to look like a "family man" when the evidence reflects that, in the outside world, he's ignoring his family and spending all the time on criminal (or at least other antisocial) acts. At least as applied to family members of Mongols (and, presumably, a wide variety of other criminal defendants as well). Judge Wright just doesn't like the feel of it. It doesn't "work" on him the way it might for other judges.
Judge Wright expressly told the lawyer here that he had hoped that it would "get around the Bar" that he didn't like family members showing up and that lawyers don't do their clients any favors by having them present at sentencing. Defendant's lawyer apologized and said he hadn't heard that, and certainly didn't want to bum the judge out (not surprisingly). So they rescheduled the hearing for the next week, at which time the family members -- surprise, surprise -- weren't present.
There's a fine line between "ordering" the courtroom closed and expressing a "preference" for who shows up. Judge Wright unambiguously did the latter. I'm not sure that he really did the former.
Nor, given the latter, did he need to. Sure, in the future, Judge Wright now knows that he can't do anything formal like closing the courtroom. Or something ambiguous that might look like that.
But nothing stops him from doing precisely what he referred to here: trying to have it "get out" that Judge Wright doesn't like family members being present. That it puts him in a bad mood. Which is not something you want when you're in front of a judge who has wide latitude in how much of the rest of your life you're going to spend in prison. Expressing that preference alone gets you what you want, which is a courtroom with no family members. And if you bring 'em, well, that's fine, you're allowed to do that (thank you, Ninth Circuit). Just remember that when you see the scowl on Judge Wright's face during sentencing and wonder why he decided, in his discretion, to sentence you to some portion of the guidelines range that's not at the lower end. Enjoy the extra time in prison. Oh, and good luck trying to get a reversal on that basis on appeal. There's nothing at all on the record. And your family members were indeed there. Big win for you, eh? Thirty more minutes together in a courtroom versus two more years apart while the defendant's still in prison. I know which one I'd choose.
So I don't know. I think that Judge Wright was expressing a preference. A preference that admittedly maybe he shouldn't have, but that he nonetheless retains (and, I'm certain, will retain regardless of how the Ninth Circuit views the law). Given that we can't do anything about his preferences, and that his ability to express those preferences effectively clears the courtroom, I'm not sure what we gain when we take an ambiguous expression of his preferences to be an "order" and reverse on that basis. Either in a particular case -- though admittedly we can give the defendant here a new sentencing proceeding in front of a different judge (though I wonder if the sentence will really be different) -- or in general.
As to the latter, I'm sure that Judge Wright, now chastened by the Ninth Circuit for his on-the-record comments, will no longer tell uninformed counsel that he doesn't like children present. Which means they'll be there.
Maybe that will help defendants. Maybe it'll do the exact opposite.
