Sixth Amendment

Judge's COVID-19 protocols violated defendant’s right to a public trial, 9th Circuit rules

  • Print.


Image from Shutterstock.

A federal appeals court ruled Monday that a defendant’s Sixth Amendment right to a public trial was violated when a trial judge allowed an audio stream but not video access to the proceedings.

The 9th U.S. Circuit Court of Appeals at San Francisco vacated the gun conviction of defendant James David Allen II and remanded for a new trial. Allen had unsuccessfully requested video streaming for his suppression hearing and trial when the judge barred courtroom visitors because of COVID-19 concerns.

Allen’s lawyer had argued that “you miss all of that flavor” when only telephone access is allowed.

U.S. District Judge Haywood S. Gilliam Jr. of the Northern District of California denied the request, reasoning that a video stream via the internet should not be allowed because there was no way to prevent viewers from recording the trial. He also concluded that telephone access was appropriate because it is more widely available than internet access.

Allen was tried and convicted for being a felon in possession of a firearm and ammunition.

The 9th Circuit agreed that there was an overriding interest in limiting transmission of COVID-19 during the height of the pandemic in 2020, when the trial took place. But Gilliam failed to narrowly tailor his decision when he completely barred video access to the suppression hearing and trial, the 9th Circuit said in its May 16 opinion.

Gilliam could have allowed a limited number of visitors in the courtroom or in a separate room where they could watch a livestreamed video, according to the opinion. Other federal courts when confronted with the same issue “consistently allowed some form of visual access to the trial,” the opinion said. State courts adopted similar measures.

Gilliam’s decision to provide only audio was “truly exceptional,” the appeals court said.

Judge Sandra S. Ikuta wrote the opinion, joined by Judges Lawrence VanDyke and Carlos F. Lucero, a judge on the 10th Circuit at Denver who was sitting by designation.

Hat tip to, which had coverage of the opinion.

Give us feedback, share a story tip or update, or report an error.