In a 4-3 decision on Monday, the Colorado Supreme Court held that the temporary closure of a courtroom to re-read a jury instruction was trivial and did not undermine the defendant’s right to a public trial under the Constitution, and further decided that triviality will be the new benchmark for similar cases in the future.

Abel Lujan stood trial for first-degree murder in the 1999 beating and strangulation of his girlfriend. He admitted that he killed her, but that he did so impulsively and not intentionally. Two women, Lujan’s ex-wife and ex-girlfriend, testified about his violent behavior and attempted strangulation or suffocation of them. District Judge Andrew R. Macdonald instructed the jury to only use that testimony to establish the defendant’s intent or motive. Macdonald read this guidance aloud, and did not give it in writing to jurors.

During deliberation, the jury sent a question to the judge asking for written clarification on that specific instruction. Prosecutors asked for another oral reading from Macdonald, who in turn gave two options to Lujan’s lawyer. Macdonald could send back a written instruction without a qualifier Lujan wanted about character evidence or he could read the instruction aloud again. Lujan chose the latter.

However, Macdonald decided to close the courtroom to everyone except himself, the bailiff and the court reporter for the reading, to which Lujan’s attorney objected. Macdonald countered that “you never bring a jury out in front of the parties again” once deliberation starts. The jury returned and heard the two-paragraph instruction read a second time, which included the direction to “consider this evidence as it relates to Mr. Lujan’s motive in committing the acts in this case.” 

Subsequently, the jury found Lujan guilty of second-degree murder.

Lujan appealed, arguing that Macdonald violated his Sixth Amendment right to a “speedy and public trial.” The Colorado Court of Appeals sided with Lujan and ordered a new trial. The prosecution, consisting of Attorney General Phil Weiser’s office, asked the Supreme Court to label the courtroom closure as trivial, and therefore not a violation of Lujan’s rights.

Justice Brian D. Boatright, writing for the Supreme Court’s majority, described the goal of the Constitution’s public trial guarantee as the preservation of fairness in the judicial system. However, courts have decided elsewhere that not every courtroom closure is a Sixth Amendment violation.

“Factors to be considered include the duration of the closure, the substance of the proceedings that occurred during the closure, whether the proceedings were later memorialized in open court or placed on the record, whether the closure was intentional, and whether the closure was total or partial,” Boatright explained. The majority determined that the “triviality standard” should be standard procedure for Colorado courts going forward.

In contrast to Lujan’s characterization that the closure was “total in scope,” prosecutors maintained that it was brief, did not include witnesses, was a repetition of earlier proceedings and covered no new evidence. Boatright agreed with that characterization, saying that other parties had the opportunity to hold the court accountable during the previous public reading of the instruction.

“Ultimately, the court did exactly what it said it would do,” he wrote. “There was not any additional conversation, instruction, or clarification given by the judge.”

On behalf of herself and Justices Richard L. Gabriel and Melissa Hart, Justice Monica M. Márquez flatly rejected the notion that the closure was trivial, arguing instead that it “undermined the interests served by a public trial.” She called the trial court judge’s belief about whether a deliberating jury could see the parties again “mistaken,” and said that the closure was deliberate, unlike in other cases where it was an inadvertent error.

“The presence of court personnel in the courtroom is no substitute for the public’s attendance at a trial, let alone a substitute for the presence of counsel or the defendant himself,” Márquez wrote. She added, in a swipe at the majority, that not only had they adopted the triviality standard, but they applied it to a matter that, in her opinion, was clearly not trivial.

The case is The People of the State of Colorado v. Abel Lujan.