COVID-required Courtroom Limitation and Testimony of Witnesses by Video Deposition Did Not Violate Constitution

US v. Smith: Smith and his codefendant, Alcorn, were charged with multiple counts relating to schemes to defraud in 2019. Their cases lingered during the lockdown period of the COVID lockdown, finally proceeding to trial in November 2021. That trial took place across multiple courtrooms, due to social distancing requirements, with spectators relegated to a second courtroom to watch via a video feed. Smith and Alcorn objected, arguing that because the public could not see the jury (although they could see the other participants in the trial) violated their right to a public trial under the Sixth Amendment. They also objected, initially to the taking of video depositions of three elderly victim witnesses from California (during which counsel was able to cross-examine them) who could not travel to Virginia for the trial, then to the admission of those depositions at trial. The district court rejected those arguments. Smith and Alcorn were convicted on all counts and sentenced to 156 and 185 months in prison, respectively.

A divided Fourth Circuit affirmed Smith and Alcorn’s convictions, but vacated Alcorn’s sentence. As to the convictions, the court first rejected the argument that Smith and Alcorn’s Sixth Amendment rights were violated. While not specifically holding, but certainly implying, that the COVID protocols did not result in a courtroom that was closed to the public, the court ultimately concluded that, even if it was a partial closure, that the district court did not abuse its discretion. In doing so, the court downplayed the importance of spectators being able to see jurors when they could see all the other participants in the trial. The court also found no abuse of discretion in the district court’s ruling regarding the video depositions, given the health care concerns of the witnesses. As to Alcorn’s sentence, the court concluded that the district court committed Rogers err by imposing terms of supervised release pursuant to a standing order that did not exist in that district.

Judge Agee concurred in the result, but wrote separately to reiterate his argument that the current remedy for a Rogers error (full resentencing) is not required and should be reconsidered.

Judge Heytens dissented, arguing that the district court did not make sufficient findings necessary to partially close the courtroom during trial, specifically whether there were “reasonable alternatives” and whether the restrictions were “no broader than necessary” to serve the stated public health purposes.