2020 INVESTIGATIVE SUMMARY 4

INVESTIGATION OF ALLEGED IMPROPER REMOVAL OF SPECTATORS FROM A COURTROOM 

Following a report of judicial criticism of a senior Department attorney, OPR investigated allegations that the attorney engaged in improper conduct by setting in motion circumstances that led to the removal of a number of spectators—friends and colleagues of the defendant—from the courtroom prior to closing arguments on the final day of trial.  OPR’s investigation examined whether the spectators’ removal implicated their First Amendment rights, the defendant’s Sixth Amendment rights, or the Department’s longstanding policy that Department attorneys “[have] a compelling duty to protect the societal interest in open proceedings.”

OPR’s investigation determined that the spectators’ presence was the most recent in a series of episodes throughout the case that created escalating tension in the courtroom that day, and the combination of those mounting tensions, lack of adequate time to reflect on alternative courses of action given the spectators’ arrival just minutes before the court proceedings began, and other factors likely contributed to the attorney’s actions.  Nevertheless, the attorney’s actions raised serious questions about possible constitutional violations and caused unnecessary and time-consuming litigation in an otherwise successful criminal prosecution.  Accordingly, based upon the results of its investigation, OPR concluded that the senior Department attorney exercised poor judgment in obtaining the spectators’ removal from an otherwise open, public proceeding.   OPR’s finding was affirmed upon further review by the Department.