Requiring Courthouse Visitors to Show Photo ID as Condition for Entry Implicates Sixth Amendment Public Trial Concerns

United States v. Wendell Smith, Docket No. 03-1588-cr (2d Cir. Oct. 17, 2005) (Winter, Sotomayor, Parker): During Smith's trial in a courtroom located in the federal building complex in Rochester, the U.S. Marshals Service, in coordination with the Department of Homeland Security (DHS), required all visitors to the complex to show a photo identification before they would be allowed to enter. Those without photo IDs (or refused to show IDs) would be denied entry. This was done because the "National Alert Level" (set by DHS) at that time was 3 (that's "yellow" to you and me), and the Marshals had a policy (adopted after 9/11/01) of requiring presentation of a photo ID as a condition for entry whenever the alert level was 3 or above (4 is orange and 5 is the dreaded red). The policy's stated justification is that "someone who is forced to identify themselves is less likely to pose a threat than someone who is allowed to walk into the building without any [ID] at all." Op. at 4-5.

When defense counsel learned of the policy, he moved for a mistrial on the ground that Smith's Sixth Amendment right to a public trial had been violated. He submitted an affidavit claiming that "upon information and belief, . . . members of Smith's family, members of counsel's investigative staff, and members of the general public had been prevented from attending his jury trial as a result of the photo identification policy." Op. at 3. The trial court denied the motion, concluding that the Sixth Amendment was not even implicated, given that "the district court itself had not denied anyone courtroom access." Op. at 6.

The Circuit affirmed Smith's conviction, but disagreed with the trial court's odd analysis of the Sixth Amendment question. Rather, any "measure that limit[s] the public's access to federal buildings with courtrooms where public trials may be occurring implicate[s] Sixth Amendment concerns," regardless of who implements the measure. Op. at 6-7. Applying the familiar four-part test of Waller v. Georgia, 467 U.S. 39, 45 (1984), however, the Court concluded that Smith's public trial right was not violated by the "partial closure" caused by the Marshals' photo ID policy. Op. at 8-12.

The Circuit nonetheless criticized the Marshals Service's unilateral decision to implement the photo ID policy without first consulting the district court. Op. at 14-15. "Going forward," the Court cautioned, "any such steps must be coordinated with, and approved by the courts." Op. at 14. "Control [of courthouse access measures] by the courts is essential," the Court explained, "because the judiciary is uniquely attuned to the delicate balance between defendants' Sixth Amendment rights to public trial, the public and press's First Amendment rights to courtroom access, and the overarching security considerations that are unique to the federal facilities containing courtrooms." Id. Thus, the Marshals Service must "consult with the courts before implementing general security measures that significantly affect court access." Op. at 15.