An Arapahoe County judge violated a defendant’s constitutional rights by closing his courtroom to keep out one individual during the trial, the Court of Appeals ruled on Thursday in reversing the convictions.

In the criminal proceedings against Terrel Shameek Turner, District Court Judge Ben L. Leutwyler III decided to exclude the wife of Turner’s co-defendant from the courtroom on the assumption that there would be a protection order keeping her away from certain parties at the trial, but without detailing the nature of the threat she might pose.

Prosecutors charged Turner with conspiring with Christopher Cruse to rob a marijuana dispensary, although the store’s manager was unable to open the safe and Turner left empty-handed. A jury found him guilty of burglary, attempt to commit robbery, attempt to commit theft and assault. He received five years in prison.

Turner appealed, citing an incident from the third day of his August 2017 trial: the prosecutor announced that Cruse’s wife had been arrested for harassing a victim advocate and a witness outside the courtroom.

“What’s important for the court, your honor,” the prosecutor told Leutwyler, “is that there will be a mandatory protection order in place that restrains [her] from having any contact with our victim advocate, and obviously, our advocate will be in the courtroom, so [she] is not going to be allowed legally to be in the courtroom.”

Cruse’s attorney responded that the wife was allowed to be present. The Sixth Amendment guarantees the right to a public trial that, among other purposes, serves to discourage perjury and encourage the fair treatment of the defendant.

Leutwyler agreed that having no contact between the wife and the alleged harassment victims was appropriate, and also pointed out that the woman had made aggressive statements and interfered with the presentation of evidence.

Although courtroom closures – even ones minor enough to exclude one person – are permissible for such reasons as protecting sensitive information, the U.S. Supreme Court in 1984 outlined in Waller v. Georgia the specific circumstances which allow for them. Those include having an “overriding interest” in the closure, considering reasonable alternatives and instituting as narrow a closure as possible.

For example, in 2010 the Supreme Court found a court had violated the Sixth Amendment by excluding the public during jury selection, believing there not to be enough room. In 2020, the Colorado Supreme Court issued two rulings on the subject, finding one judge gave no reason for excluding a pair of relatives and another judge excluded everyone but the jury to give an instruction, though not improperly. (A Court of Appeals panel subsequently ordered a new trial in the latter case.)

Considering Turner’s appeal, the three-member appellate panel agreed that Leutwyler had not elaborated upon how the wife’s presence during the remaining three-and-a-half days of testimony would have posed a threat to courtroom safety and order.

“[T]he record does not support a conclusion that [the] wife’s exclusion was for cause and necessary,” wrote Judge Gilbert M. Román, adding that the confrontation occurred outside the courtroom. “[T]he witness involved in the alleged incident had testified the following day and was excused from the trial following his testimony.”

Also problematic was the lack of details about the nature of the altercation. In this instance, the closure encompassed the testimony of 14 prosecution and one defense witnesses, plus closing arguments. The wife’s presence “could have reminded the trial participants of their duty to treat Turner and Cruse fairly,” Román wrote.

The appellate panel listed the alternatives Leutwyler could have considered to grant a closure for the benefit of the victim advocate involved: alternating between having the advocate and the wife in the room or having either of them observe remotely. The judges also noted Leutwyler took action before the issuance of any protection order.

The panel reversed Turner’s conviction and ordered a new trial. The case is People v. Turner.