In January, I said that Judge Wallace was right.
I was wrong.
To be clear, so was pretty much everyone else. Judge Wallace's opinion held that it wasn't reversible error to temporarily kick spectators out of the courtroom because there was a shortage of seats. The key limitation being "temporary". Once seats became available, people were invited back in.
Or so we thought.
In the amended opinion, it turns out that the closure wasn't necessarily temporary. The closure may well instead have been for the entire time. In which case maybe the result should be different. This wasn't clear from the original briefing, so the panel decides to remand the case to the district court for fact-finding. Was the closure indeed temporary? Or was it for the entire voir dire?
This makes eminent sense to me. Indeed, I give credit to the panel. It's not a natural tendency for judges on the Court of Appeals to admit that they may have made a factual error, and to accordingly change their result. People get invested in their decisions. Amending them involves work, as well as confessing error. It makes me proud when judges to so. Justice is more important than keeping to one's original path.
Judge Wallace dissents. He'd retain the original result.
Kudos to Judges Fisher and Berzon.
