You have to wonder what the backstory is on this one, no?
During COVID, lots of jury trials were shut down (obviously), but then they (slowly) restarted. By September of 2020, in the Northern District of California, criminal jury trials were back on calendar, and judges there -- like judges all across the country -- had to decide how to handle them. Some of them had everyone wear masks, some of them did live video feeds into a separate room, etc.
There was a set of general orders in the Northern District that said that the only people allowed in the courtroom were people authorized to be there. But there's also a constitutional right for the public to witness criminal trials. We don't, after all, have trials in secret. So how to balance the relevant interests.
Like I mentioned, most courts had said, okay, there's a global pandemic, so we're going to do things a little differently, but still, people were allowed to actually witness the trial. Maybe not in person, maybe over a (sometimes) sloppy video feed, but still, allowed to watch.
But Judge Gilliam -- at least in this case (and presumably lots of others) -- went a different path.
Judge Gilliam understood that we couldn't have secret trials. But he also was worried that a video feed that was uncontrolled might let people record the thing, which he didn't want. (Mind you, that'd be illegal, and maybe that's the solution -- just warn and/or punish -- but that's a separate point.) At the same time, he also didn't want people coming into the courthouse to view a collective video feed; too much of a potential superspreader event.
So Judge Gilliam decided that he (1) wouldn't allow witnesses to attend, and (2) also wouldn't let them watch via video. Anyone who wanted to watch would only get an audio feed. Nothing else.
The Ninth Circuit holds that that's unconstitutional. There's a right to actually see the trial, unless it's a special case. And the fear that someone might (illegally) record the video doesn't count.
So the conviction here gets reversed. Just as, presumably, all the other convictions that took place (in the face of a contemporary objection, anyway) in Judge Gilliam's courtroom during the relevant period.
Which inexorably leads to the question: Why did Judge Gilliam decide to risk such a result? Why did he elect a process that was much more restrictive of public access than the vast, vast majority of other judges?
It'd be one thing if Judge Gilliam was super old, and hence uniquely concerned about getting COVID himself. But he's not; indeed, he's basically the youngest judge in the entire Northern District. (Judge Chhabria may, I believe, be a month or so younger, but still). The decision would also make sense if Judge Gilliam was historically hostile to the press or witnesses or the like, but I have no reason at all to believe that's the case.
So why make a call -- why risk all these convictions -- just because you're concerned that someone might illegally make a recording of the video feed of a routine criminal case? A call that the other judges weren't making in identical contexts?
Maybe others know. I don't. No clue.
Regardless, I suspect this is the first of a large number of cases that'll get reversed and remanded on identical grounds. So stay tuned.
