Mr. Blades was convicted of assault with intent to kill while armed and related offenses, after a trial in which was conducted in a manner that is quite common in D.C. Superior Court. First, the judge addressed a set of yes-or-no questions to all prospective jurors (e.g., do you know any of the parties or lawyers?; do you have a family member who is a police officer?; is there any other reason you could not serve as a juror in this case?). Afterward, he conducted follow-up questioning of individual prospective jurors at the bench, with a “husher” (a white noise machine) turned on to prevent everyone except the judge, the lawyers, the defendant, and the court reporter from hearing the dialogue.
Mr. Blades objected to this procedure on the ground that it violated his Sixth Amendment right to a public trial, of which jury selection is an important part, but the trial judge overruled his objection and used the husher.
A panel of the D.C. Court of Appeals agreed that a public jury selection process is protected by the Sixth Amendment (as the Supreme Court has said) but affirmed the convictions on the ground that the use of a husher did not make jury selection non-public, where members of the public could see the proceedings and where a transcript could be obtained (for a fee) soon afterward. Judge Beckwith dissented on the ground that the ability to purchase a subsequent transcript is no substitute for a public trial, and that the use of a husher during voir dire should not be allowed except when the trial judge finds justification for closing the proceeding under the same standards that would apply to closing the courtroom during other parts of the trial. To close the proceeding, the party who asks for it must show how having an open proceeding would negatively impact their overriding interest. The court must also consider other ways to protect this interest and, if closure is required, then the court must be sure that the closure isn’t more than what is necessary. And finally, the court must make findings that reinforce the party’s request for such a courtroom closure.
The trial judge and the majority of the appellate panel felt that requiring prospective jurors to answer questions in public could discourage them from giving fully truthful answers. The dissent’s (and Mr. Blades’) response is that the same is true of witnesses at trial, and that in specific circumstances a prospective juror (like a trial witness) could request the use of the husher and the court could use it, after making the necessary findings (e.g., a prospective juror in a rape trial who needs to disclose that she was the victim of a sexual assault).
Mr. Blades sought rehearing before the entire Court of Appeals. We joined with the Reporter’s Committee for Freedom of the Press and 16 other organizations in an amicus brief supporting rehearing, arguing that a husher may be used only if the First Amendment requirements are satisfied.