Mind Your P’s and Q’s and M&M’s: Is Closing a Trial to the Public Structural or Plain Error Without an Objection?

Photo by Vern Hart on Flickr

Sara Leonhartsberger, Associate Member, University of Cincinnati Law Review

I. Introduction

Should a court hallway brawl over M&Ms deprive a criminal defendant of the constitutional right to a public trial? The Sixth Amendment, applicable to the states through the Fourteenth Amendment, establishes the right of a criminal defendant to a public trial.[1] The right to a public trial allows the community to observe their justice system in process, but this serves a more substantive role in criminal justice than at first glance. This right guards against unfair procedures by ensuring accountability from all parties.[2] Additionally, the right to a public trial encourages witnesses to come forward and dissuades perjury.[3] State constitutions may also establish the right to a public trial.[4]

The violation of a right to a public trial is considered structural error and not subject to harmless-error analysis.[5] A structural error is an error that compromises the integrity of the trial itself that would invalidate the conviction.[6] In contrast, a plain error standard grants discretion to an appellate court to correct the error only if the error (1) is a deviation from a legal rule not affirmatively waived, (2) the error is plain, clear, and obvious, such that it cannot be reasonably contested, (3) the outcome affects the appellant’s substantive rights, and (4) if the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.”[7] However, the right to a public trial is not absolute, [8] because “a judge has authority to exercise control over the proceedings and the discretion to impose control over the proceedings.”[9] Before curtailing that right, however, a judge must determine that closure of the courtroom to the public is both necessary and narrowly-tailored.[10] In a pending Supreme Court of Ohio decision, State v. Bond, the Court will determine whether the right’s protection to both defendants and the justice system outweighs counsel’s due diligence to their clients—all hinged on an argument over M&Ms.[11]

State v. Bond raises the question of whether a partial closing of a trial constitutes structural error or plain error if the defendant’s counsel fails to object.[12] Part II of this article will provide a background, discussing State v. Bond’s procedural posture, United States Supreme Court precedent and Supreme Court of Ohio precedent. Part III of this article will provide an analysis of State v. Bond, a prediction of the Supreme Court of Ohio’s decision, and two legal strategies emphasized by State v. Bond. Part IV will conclude.

II. Background

A. State v. Bond’s Procedural Posture

In State v. Bond, an Ohio trial court closed a murder trial to all but the victim’s and defendant’s immediate relatives after an altercation in the hallway sparked by a broken M&Ms machine.[13] In a sparse record, the trial judge notes the altercation occurred, asks counsel whether the jury had heard the altercation, and decides closure is appropriate without any other reasoning detailed.[14]  The trial court closed the courtroom to the public on the third day and did not reopen it for the remainder of the trial.[15] Appealing his conviction for murder, Bond argued that his right to a public trial under the Sixth Amendment and Article 1 subsection 10 of the Ohio Constitution had been violated.[16] The Ohio Fifth Appellate District Court held that the trial court had violated Bond’s constitutional rights to a public trial—a structural error requiring reversal and remand for a new trial.[17] The Supreme Court of Ohio accepted discretionary appeal on July 7, 2020[18] and heard oral arguments on March 30, 2021,[19] but the Court has not released its opinion on the matter.

B. United States Supreme Court Precedent

State v. Bond is just the latest case in a line of well-established federal and state precedent regarding violations of the right to a public trial. In Waller v. Georgia, the United States Supreme Court held that four factors applied in assessing whether the closure of a trial would be permissible under the Sixth Amendment; if even one of the factors were not met, a violation would occur.[20] The Court applied the following four factors to the closed suppression hearing at issue in the case: (1) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; (2) the closure must be no broader than necessary to protect that interest; (3) the trial court must consider reasonable alternatives to closing the proceeding; and (4) it must make findings adequate to support the closure.[21] While finding that the suppression hearing failed all four factors,[22] the Court held that a closed suppression hearing did not guarantee the defendant a right to a new trial, as the remedy would need to match the violation.[23] A new trial would only be granted if the public suppression hearing resulted in the “suppression of material evidence not suppressed at the first trial, or in some other material change in the position of the parties.”[24] Notably, even though the Court stated a constitutional violation of the right to an open trial would be structural error,[25] defendant’s counsel at trial objected to the closed suppression hearing.[26] Thus, the question of whether a structural error finding would guarantee an invalidated conviction regardless of counsel’s failure to object went unanswered in Waller.

C. Supreme Court of Ohio Precedent

Two Supreme Court of Ohio cases serve as precedent to State v. Bond. In State v. Drummond, the Supreme Court of Ohio applied a modified Waller factor-test in determining whether a partial closure of a trial constituted a violation of the right to a public trial.[27] Modifying Waller’s overriding interest as the first factor for a full trial closure to a substantial reason for a partial trial closure,[28] the Court held that the Waller test had been satisfied in all four factors.[29] First, the threatened safety of witnesses was a substantial reason.[30] Second, the closure was limited to one cross-examination and two witnesses’ testimonies.[31] Third, the lack of assessment of reasonable alternatives was waived as reasonable.[32] Finally, the record thoroughly explained the judge’s reasoning for closure.[33] Notably, the Court only applied the Waller analysis to the date on which defendant’s counsel objected to the court’s closure,[34] regardless of its earlier affirmation that a violation of the right to public trial is structural error—a constitutional error that invalidates conviction.[35] When defendant’s counsel did not object on the second day of the court’s closure, the Court held that counsel had waived his client’s right to a public trial.[36]

However, in State v. Bethel, the Supreme Court of Ohio had held that a defendant’s silence did not constitute a waiver of his right to a public trial under the Ohio Constitution.[37] While the Court did not grant a new trial to the defendant, it noted that a violation of a defendant’s right to a public trial constituted structural error.[38] However, the Court did state that there was no indication that defense counsel consented to the hearing at issue in this case.[39]

III. Discussion

A. State v. Bond

In State v. Bond, the Ohio Fifth District Court of Appeals held that Bond’s constitutional right to a public trial under the Sixth Amendment and Article 1 subsection 10 of the Ohio Constitution had been violated, requiring reversal of his conviction and remand for a new trial.[40] The court used the modified Waller factors articulated in Drummond in its analysis and concluded that the trial court had failed all four factors.[41] First, no substantial reason for closing the trial had been expressed in a record that only cited an argument over a broken candy machine.[42] Second, the closure for the remainder of the trial impermissibly broadened the closure beyond necessity.[43] Third, the record did not show any reasonable alternatives had been considered before closure.[44] Finally, the only stated reasoning for closing the trial to the public—an argument over a broken candy machine—did not equate to a sufficient reasoning to close a trial.[45] Holding that the violation of Bond’s right to a public trial constituted structural error that required remand and reversal,[46] the court did not even address whether defense counsel’s failure to object constituted a waiver of Bond’s right to a public trial.[47] The court’s conclusion that structural error necessitated remand and reversal aligns with structural error constituting a constitutional error within the structure of the trial itself.[48] Furthermore, Bond’s life and liberty interests were implicated in this murder trial;[49] to allow those interests to be unfairly jeopardized by an unrelated hallway scuffle over M&Ms seems absurd and beyond the court’s need to address the issue of defense counsel’s objection.

B. Predicted Supreme Court of Ohio Decision

Under Drummond and Bethel, the Supreme Court of Ohio will likely reverse the Ohio Fifth Appellate District, upholding Bond’s convictions and denying a remand for a new trial.[50] Drummond only applied the modified Waller factors to the date defense counsel objected to the closure.[51] Bethel only held that a defendant’s silence would not constitute a waiver of the right to public trial, while defense counsel’s consent would.[52] The Supreme Court of Ohio will likely hold that Bond’s counsel’s failure to object to the trial judge’s closure of the trial waived Bond’s right to public trial.[53] However, this holding would lead to the absurd conclusion that M&Ms can deprive a criminal defendant of the federal and state constitutional right to a public trial.[54] Should a right that guarantees protection against unfair proceedings[55] to better comport with true notions of fair play and substantial justice be so easily defeated?

C. Legal Strategies from State v. Bond

Two legal strategies emerge from State v. Bond, regardless of the Supreme Court of Ohio’s decision. First, a trial judge should establish a complete, thorough record to help avoid reversal and remand on appeal; the dominant concern of the Ohio Fifth Appellate District in Bond was a trial record void of discernible reasoning to make a determination other than reversal.[56] Second, defense counsel should object to every issue that could affect one’s client; relying on structural error alone to preserve a client’s right to appeal could be fatal to the claim.[57] In cases such as Bond’s murder trial, a client’s life and liberty interest could be determined by that failure to object.

IV. Conclusion

The Supreme Court of Ohio’s pending decision in State v. Bond will implicate substantive rights for criminal defendants. While both the Supreme Court of the United States[58] and Supreme Court of Ohio[59] have held a violation of the right to a public trial to be structural error, failure of defense counsel to object could waive a defendant’s right[60] and jeopardize a defendant’s life and liberty interests.[61] However, when application of this waiver leads to the absurd result of candy exterminating a criminal defendant’s constitutional rights,[62] justice should dictate the fair result of invalidated conviction under structural error.[63]

[1] U.S. Const. amend. VI; U.S. Const. amend. XIV.

[2] Waller v. Georgia, 467 U.S. 39, 46 (1984).

[3] Id.

[4] Ohio Const. art. I, § 10.

[5] State v. Drummond, 2006-Ohio-5084, ¶ 50.

[6] Arizona v. Fulminante, 499 U.S. 279, 294 (1991).

[7] Puckett v. United States, 556 U.S. 129, 135 (2009).

[8] State v. Drummond, 2006-Ohio-5084, ¶ 51.

[9] Id.

[10] Id.

[11] State v. Bond, 2020-Ohio-398, ¶ 18 (5th Dist. Richland, 2020), appeal allowed 148 N.E. 3d 580 (Ohio 2020).

[12] Id.

[13] Id.

[14] Id.

[15] Id. at ¶ 4.

[16] Id. at ¶ 6.

[17] Id. at ¶ 30-31.

[18] State v. Bond, 2020-Ohio-3634, 2020 Ohio LEXIS 1541 (July 7, 2020).

[19] Supreme Court of Ohio – Case No. 2020-0415 State v. Khairi A. Bond, The Ohio Channel, https://www.ohiochannel.org/video/supreme-court-of-ohio-case-no-2020-0415-state-v-bond (last visited Oct. 21, 2021), [https://perma.cc/99VG-K893].

[20] Waller v. Georgia, 467 U.S. 39, 45 (1984).

[21] Id. at 48.

[22] Id. at 48-49.

[23] Id. at 50.

[24] Id.

[25] Id. at 49-50.

[26] Id. at 42.

[27] State v. Drummond, 2006-Ohio-5084, ¶ 53.

[28] Id.

[29] Id.

[30] Id. at ¶ 54.

[31] Id. at ¶ 55.

[32] Id. at ¶ 57.

[33] Id. at ¶ 58.

[34] Id.

[35] Id. at ¶ 50.

[36] Id. at ¶ 59.

[37] State v. Bethel, 2006-Ohio-4853, ¶ 81.

[38] Id. at ¶ 82.

[39] Id. at ¶ 81.

[40] State v. Bond, 2020-Ohio-398 (5th Dist. Richland, Case No. 2019 CA 0033) ¶ 30-31.

[41] Id. at ¶ 30.

[42] Id. at ¶ 21.

[43] Id. at ¶ 23.

[44] Id. at ¶ 25.

[45] Id. at ¶ 28-29.

[46] Id. at ¶ 30-31.

[47] Id. at ¶ 18 (According to the court’s records, defense counsel never objected to the closure).

[48] Arizona, 499 U.S. at 294.

[49] State v. Bond, 2020-Ohio-398 (5th Dist. Richland, Case No. 2019 CA 0033) ¶ 3.

[50] State v. Drummond, 2006-Ohio-5084, ¶ 59; State v. Bethel, 2006-Ohio-4853, ¶ 81.

[51] Drummond, 2006-Ohio-5084 at ¶ 58.

[52] Bethel, 2006-Ohio-4853 at ¶ 81.

[53] Drummond, 2006-Ohio-5084 at ¶ 59; Bethel, 2006-Ohio-4853 at ¶ 81.

[54] Bond, 2020-Ohio-398 at ¶ 18.

[55] Waller, 467 U.S. at 46.

[56] Bond, 2020-Ohio-398 at ¶ 21, 28-29.

[57] Drummond, 2006-Ohio-5084 at ¶ 59; Bethel, 2006-Ohio-4853 at ¶ 81.

[58] Arizona, 499 U.S. at 294.

[59] Drummond, 2006-Ohio-5084 at ¶ 50; Bethel, 2006-Ohio-4853 at ¶ 82.

[60] Drummond, 2006-Ohio-5084 at ¶ 59.

[61] Bond, 2020-Ohio-398 at ¶ 3.

[62] Id. at ¶ 18.

[63] Id. at ¶ 30-31.


  • Although aspiring to practice within the Intellectual Property field, Sara Leonhartsberger has focused her Cincinnati Law Review blog articles on individual rights in Ohio's criminal justice system and her main article on human rights violations within the chocolate industry. Some of her blog articles discuss whether the exceptions to the 4th Amendment's exclusionary rule have consumed the exclusionary rule itself, and whether a violation of a criminal defendant's 6th Amendment right to a public trial requires a new trial as a remedy. Her main article discusses avenues of liability to reach the enabling conduct of American chocolate producers that perpetuates child slave labor on cocoa farms in the wake of the Supreme Court's decision in Nestle USA, Inc. v. Doe et al. (2021). While her life-long hobbies of reading and creative writing have influenced her desire to work as an Intellectual Property lawyer, her Law Review topics reflect her desire that the American criminal justice system to be shaped into one that provides justice for all instead of justice for a select few.

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