Judges should close a courtroom only after making specific findings on the record that it is necessary and alternatives have been considered, the State Supreme Court ruled on Tuesday when it ordered a new trial for Bradley Joe Morales of Minot.

Morales was convicted last year of the August 2017 murder of his ex-girlfriend, Sharmaine Leake, and North Central District Court Judge Doug Mattson sentenced him to 40 years in prison.

Morales then appealed his conviction to the Supreme Court and argued that his constitutional right to a public trial was violated when Mattson closed the courtroom during hearings before the trial and during the actual trial.

On Tuesday, the Supreme Court agreed that Mattson had created a structural error by closing the courtroom without first considering the four “Waller factors” on the record.

Those factors are derived from the 1984 U.S. Supreme Court decision Waller v. Georgia. In its decision, the U.S. Supreme Court held that, before closing a court room over the objections of the defendant, the judge must determine whether there is “an overriding interest that is likely to be prejudiced” and that “the closure is no broader than necessary to protect that interest” and that “reasonable alternatives to closing the proceeding” were first considered. The judge also must make “findings adequate to support the closure” of the courtroom.

Mattson did not consider those factors on the record on several occasions, the Supreme Court decided, which created a structural error in the trial that requires a new trial.

Mattson closed a pre-trial hearing in April 2018, at which the parties were going to discuss what evidence would be admissible at trial, because he was concerned that an article in the Minot Daily News about Morales’s past convictions for domestic violence and the prosecution’s request to present evidence of his prior bad acts could prejudice a jury. At that hearing, before Mattson closed the courtroom, both the prosecution and Morales objected. The prosecution brought up the Waller requirements and asked Mattson to make findings on the record before closing the hearing, according to the Supreme Court opinion.

At that hearing, Mattson also scolded the press for its coverage of the case.

“There (have) been reports, I don’t know if all the excessive details that have been reported are going to be admissible or not,” said Mattson, according to the Supreme Court opinion. “And I don’t want a jury to be needlessly tainted because somebody perceives that’s the public’s right to know. The public does have a right to know … It’s just a question of balancing the matters of how soon they have a right to know if we are going to be able to have a justice system that works. Both sides are entitled to a fair and impartial jury, and that’s what I want us to have here.”

The State Supreme Court noted in its decision on Tuesday that Mattson had not first considered alternatives to closing the courtroom or considered a more “narrowly tailored” closure of the hearing that would have protected Morales’s right to a public proceeding. He had also failed to consider the Waller factors on other occasions.

The justices quoted from other court decisions indicating that a public trial is the right of the defendant and also of the general public and that it offers benefits such as ensuring the public sees the process is fair, that it encourages all involved in the court proceedings to be conscientious, and that it might also encourage better testimony from witnesses and encourage other potential witnesses to come forward with information.

The justices also offered guidance on how a trial judge can avoid similar problems at Morales’s next trial.

“The second pretrial closure … was also a violation of the public trial right,” wrote the justices. “At the prior hearing the district court stated that at the pretrial evidentiary hearing it would ‘clear the press out … and deal with the 404(b). That will be a closed hearing for obvious reasons.’ On the record prior to closing the evidentiary hearing, the court states, ‘I don’t know if all the excessive details that have been reported are going to be admissible or not.’ Waller would permit a closure even over the objection of both parties, but the court must articulate adequate findings supporting a closure. Compare Waller, which remanded for a new hearing on a motion to suppress, a hearing which necessarily includes discussion of evidence that may not be admissible. Where there is a particularized risk of tainting the jury pool by public proceedings relating to potentially inadmissible evidence, Waller tells us that the Sixth Amendment requires both tailoring any closure to be no broader than necessary to protect that interest and consideration of reasonable alternatives to closure. Should similar pretrial hearings be held on remand, the district court should make adequate findings under Waller before closing any hearing.”

“We do not lightly reverse a criminal conviction in the absence of any apparent prejudice to the defendant flowing from erroneous trial closures. It may appear that reversing a conviction for a public trial violation elevates form over function. Further, we acknowledge the trial court’s motivation to preserve the defendant’s right to a fair trial by limiting distribution of case information that may not be admitted at trial … Here, we conclude that the repeated exclusion of the public without findings articulated on the record before the closures negatively affects the fairness, integrity, and public reputation of our criminal justice system.”