Jury-Selection Limits to Face 9th Circuit Again

     (CN) - The propriety of stopping the family of an arson suspect from watching jury selection will face a panel rehearing, the 9th Circuit ruled, seven years to the day of the trial.
     It was July 2, 2007, when Sundeep Dharni attended voir dire of his criminal trial on arson and mail-fraud charges. Because of the upcoming Fourth of July holiday, the federal courtroom in Sacramento was packed with a "larger than usual panel of prospective jurors," according to briefs in the case.
     To ensure than all the prospective jurors would fit in the courtroom, the judge asked Dharni's friends and family to wait outside. Dharni was convicted that same month and sentenced to 15 years in prison.
     After the 9th Circuit had upheld his convictions and sentence, Dharni moved in 2010 to vacate, claiming for the first time that the District Court had violated his right to a public trial by having his family and other spectators miss jury selection.
     The District Court denied the motion, and a three-judge appellate panel affirmed, finding that the judge's request had amounted to nothing more than a "trivial closure" of the courtroom.
     In a petition for a rehearing, Dharni then argued, among other things, that the "panel opinion based its denial on its acceptance of the government's claim that the District Court did not intend to close the courtroom for the entirety of jury selection and that its closure order could be understood as authorizing family members to return to the courtroom on their own as they observed prospective jurors leaving."
     The government said in reply that, "as seats opened up, the District Court neither invited Dharni's family members or other spectators to return to the courtroom, nor barred them for doing so."
     Vacating the panel ruling on Wednesday, a divided appellate panel granted Dharni's petition and ordered a new hearing on the "scope of the courtroom closure."
     "Our resolution of this case was premised on the conclusion that 'the District Court judge specifically authorized family members and spectators to re-enter when seats were available,'" according to the ruling granting Dharni's petition. "It was on that understanding that we held that 'the insufficient seating for spectators and family members for a limited period of time of uncertain duration did not violate Dharni's rights.'"
     Dharni meanwhile contends that, in the District Court, "the government's position ... was actually that the closure was for the entire voir dire period, not only until seats opened up, and that the district court's decision rested on the same understanding."
     Therein lies the confusion that inspired the rehearing: Was the closure temporary or for the duration of the selection?
     "Assessing the potential triviality of a closure that spanned the entirety of voir dire would be a far different, and considerably more difficult, inquiry than the one we undertook in our now-vacated opinion, where we assumed a temporary closure," the panel found.
     Judge J. Clifford Wallace argued in a long dissent that the original panel had gotten it right, that Dharni had failed to show that he was prejudiced by any alleged violation of his rights, and that a new hearing would only delay resolution of the case further.