Colorado’s second-highest court clarified last month that ejecting a disruptive observer from the livestream of a criminal trial will not typically violate the Sixth Amendment’s guarantee of a public trial.

A three-judge panel for the Court of Appeals considered for the first time whether a Weld County judge effectively “closed” his courtroom mid-trial by banning one attendee from the livestream whose repeated failure to mute themselves was causing a distraction. The panel’s majority agreed that as long as the physical courtroom was still open, restricting the observer’s virtual attendance was permissible.

“Absent extraordinary circumstances not present here, if a courtroom remains open,” wrote Judge Timothy J. Schutz in the Dec. 28 opinion, “the partial cessation of virtual proceedings does not amount to a closure of the courtroom for purposes of the constitutional right to a public trial.”

Judge Sueanna P. Johnson wrote separately to raise a broader question – and a warning – about trial judges’ ability to control livestreams of criminal proceedings: Is a livestream part of “the courtroom,” with the potential for a constitutional violation whenever a participant is excluded?

“For instance, under the majority’s reasoning, the person expelled in this case might very well have been out of state, and the individual could not just hop in a car to be ‘present’ in the physical courtroom,” she explained. “We are treading on shaky ground if, first, we consider remote proceedings to be an extension of the physical courtroom in all cases.”

Case: People v. Gonzalez-Quezada

Decided: December 28, 2023

Jurisdiction: Weld County

Ruling: 3-0

Judges: Timothy J. Schutz (author)

Jerry N. Jones

Sueanna P. Johnson (concurrence)

Background: Gilpin County judge who kicked out defendant’s family committed public trial violation, court finds

Prosecutors charged Jaime Quezada – incorrectly identifying him as “Gonzalez-Quezada” – with murder and related offenses after he shot Gilberto Marron six times in October 2019. Quezada advanced a “heat of passion” defense, arguing he killed Marron on a belief that Marron and Quezada’s wife were having a sexual relationship. Jurors convicted Quezada and he received a sentence of 48 years in prison.

The 2021 trial took place amid COVID-19 precautions. District Court Judge Vincente G. Vigil kept his courtroom open for observers, but also maintained a livestream through Webex. There were occasional hiccups, such as Vigil forgetting to turn on the feed, the Webex service crashing, or participants neglecting to mute themselves.

At one point, during a witness’s testimony, Vigil interjected that he previously “had to expel” a specific phone number because their repeated failure to mute themselves resulted in background noise. The same person was now causing more disruption.

“I am expelling you at this time,” he said. “You are not to return to observe these proceedings because you apparently cannot follow the instructions of the court not to be disruptive.”

The defense did not object, but on appeal, Quezada argued Vigil violated his Sixth Amendment right to a public trial by partially “closing” his courtroom to the expelled observer. Such violations require automatic reversal of a conviction.

Under the U.S. Supreme Court’s 1984 ruling in Waller v. Georgia, trial judges must consider specific factors when deciding whether to close a courtroom to one or more people. Quezada contended Vigil did not consider “reasonable alternatives” to ejecting the participant, nor did he sufficiently justify the “extreme measure” of expulsion.

As long as the option of virtual attendance was available, wrote public defender Jessica A. Pitts, the right to a public trial applied just as it would to closures of the physical courtroom.

“To hold otherwise would result in the absurd outcome that a court, offering virtual attendance of a trial and inducing the public’s reliance on that option, could exclude any person or every person from viewing the remote trial for any reason at all,” she wrote.

The Colorado Attorney General’s Office countered that the livestream was “above and beyond” the constitutional requirement of an open courtroom and, consequently, Vigil could not have violated the Sixth Amendment by limiting access to the feed.

In the Court of Appeals’ majority opinion, Schutz rejected the idea that Webex attendees were “in the courtroom” and explained that the expelled participant could have come in person to Vigil’s courtroom after being banned from the livestream – “in the same manner people have for centuries.”

When the COVID-19 pandemic forced courts to conduct business virtually, “trial court judges were also required to enable and monitor the attendance and online behavior of virtual attendees” alongside their regular duties, wrote Schutz, a former trial judge, for himself and Judge Jerry N. Jones.

Given those new demands, it is more than a “minor inconvenience” for trial judges to stop and evaluate the Waller factors every time they encounter an online disruption, Schutz concluded, finding Vigil handled the ejection appropriately.

Johnson wrote separately, saying she believed a judge’s ability to remove a disruptor is inherently part of their authority to “maintain an orderly administration of justice.” She conceded a majority of the Colorado Supreme Court rejected that view in a 2022 decision, when it found judges could not simply eject someone from their physical courtroom “for cause” without going through the Waller factors.

Nonetheless, Johnson worried the increased livestreaming of criminal trials, which the legislature mandated in 2023, raised the possibility that virtual courtrooms now are protected by the Sixth Amendment. It was unclear to her whether judges will need to analyze the U.S. Supreme Court’s Waller factors every time they police their feeds.

“What if the person is writing remarks for everyone to read in the chat feature, possibly unseemly ones or ones that specifically target certain people or comment on the evidence being presented? Or the person has the video feature on and is making rude and inappropriate gestures while onscreen?” she wondered.

The panel’s majority believed Johnson’s concerns were “best assessed on a case-by-case basis” going forward.

The case is People v. Gonzalez-Quezada.