A Gilpin County judge who ejected the defendant’s family and other observers from his courtroom and told them to watch the livestream from elsewhere in the courthouse violated the defendant’s constitutional right to a public trial, Colorado’s second-highest court ruled last week.

Michelle Re Nae Bialas was on trial for the second time when some jurors reported hearing talk among the spectators about Bialas’ previous trial. Although the comments about Bialas’ first trial appeared to come from the alleged victim’s family, not Bialas’, District Court Judge Todd L. Vriesman kicked everyone out, saying he was “not going to sit around” to determine who was at fault.

A three-judge panel for the Court of Appeals criticized Vriesman’s handling of the situation.

“The threat of disruption here did not come from Bialas’s family, and thus there was no reason for their exclusion,” wrote Judge Ted C. Tow III in the panel’s June 8 opinion. “This action exceeded what was necessary to insulate the jury from improper statements.”

Because violating a defendant’s Sixth Amendment right to a public trial requires reversal of her convictions, the panel ordered a new trial for Bialas. The appeals court previously reversed Bialas’ convictions after her first trial in 2017, finding a different judge improperly limited the defense’s questioning of jurors. Tow also authored the opinion that granted Bialas a second trial, which was the subject of her latest appeal.

A spokesperson for District Attorney Alexis King did not immediately say whether her office would try to prosecute Bialas for the third time in six years.

Case: People v. Bialas

Decided: June 8, 2023

Jurisdiction: Gilpin County

Ruling: 3-0

Judges: Ted C. Tow III (author)

David Furman

Sueanna P. Johnson

Background: ‘The law is the law’: Conifer students experience real appellate cases, quiz judges

Prosecutors charged Bialas with assaulting her ex-boyfriend and violating a protection order, also known as a restraining order. During her second trial in 2021, public health protocols to prevent COVID-19 transmission were still in place, requiring spectators to disperse throughout the courtroom. Another room in the courthouse had a live video feed of the trial.

During Bialas’ testimony, Vriesman received a note from the jury, saying some spectators were discussing “the history of the case and we could hear them.” Vriesman questioned jurors individually, who told him they had overheard about Bialas’ previous conviction. The comments apparently came from the victim’s family members.

Although the parties had agreed beforehand that the families for Bialas and the victim would be in the courtroom, rather than the remote viewing room, Vriesman ejected all members of the public, telling them to watch the remainder of the trial on livestream.

“It is my province to govern what (is) happening here in the courtroom and something has happened, which is not proper,” he said. “I’m not going to sit around and try and determine who is at fault for making comments.”

The defense objected, claiming Vriesman was effectively closing his courtroom to the public in violation of the Sixth Amendment guarantee of a public trial. The prosecution acknowledged it had no issue with Bialas’ family being allowed to stay.

“I am not going to take sides as to who it is or what spectators get special preference,” Vriesman responded in shutting down the request.

After jurors found Bialas guilty for a second time, she appealed. The right to a public trial, she pointed out, ensures that judges and prosecutors treat the accused fairly, and it also discourages perjury. The Court of Appeals panel held oral arguments in May at Conifer High School as part of its “Courts in the Community” program, and Bialas’ attorney used the event itself as proof of a public trial’s importance.

“This court wouldn’t be here today – actually, physically in this high school – if we didn’t intuitively understand there is a difference between in-person attendance and online observation,” argued public defender Meredith K. Rose. “And that is what is at stake here.”

The government countered that Vreisman was responding to a disruption and had wide latitude to mange his courtroom.

“If one person disrupts the courtroom,” Tow interjected, “does that give the judge license to exclude every single person without any individualized inquiry as to who was disrupting?”

Ultimately, the panel agreed Vriesman partially closed his courtroom by relegating spectators to the livestream area. Tow cited other courts across the country that have reached similar conclusions, including a decision from the San Francisco-based federal appeals court finding audio-only streaming during COVID-19 failed to ensure the protections of the public trial guarantee.

“While there may have been an overriding interest in excluding the misbehaving spectators,” wrote Tow, “the broad concern that any member of the public might make inappropriate comments cannot justify a closure because it would essentially allow a court to exclude the public as ‘a matter of course’.”

Directly after oral arguments to the high school students, Rose acknowledged she was glad the Court of Appeals had chosen her client’s case to hear at its Courts in the Community event.

“It would be hard for the Court of Appeals to go back and say there really isn’t a difference between being in person and being on a livestream – when we came here for a reason today,” she said.

The case is People v. Bialas.