Excluding police supporters did not violate Sixth Amendment

Although it was wrong for the government to insist members of the Virginia State Police leave the courtroom in the trial of a former special agent, their removal did not justify setting aside the jury’s verdict because it did not violate the defendant’s Sixth Amendment rights.

Background

A jury in this court found defendant Shade Carlton Workman, a former Special Agent with the Virginia State Police, guilty of making false statements to the FBI, soliciting and accepting a bribe and obstructing justice.

Workman has moved the court to overturn the guilty verdict on the ground that the government engaged in misconduct in violation of his Sixth Amendment right to a public trial by requiring some of Workman’s fellow police officers to leave the courtroom during closing arguments.

The government counters that no Sixth Amendment violation occurred because the courtroom was never closed to the public, the right to a public trial does not guarantee the attendance of particular individuals and the officers’ departure from the courtroom did not prejudice Workman. The government also contends that it was Lieutenant Colonel Lyon, rather than the United States Attorney or his assistant, who ultimately directed the officers not to attend closing arguments, and that Lyon had a reasonable basis for doing so.

Analysis

I find as a fact that had the government not contacted Lyon, the spectators in question would not have been removed from the courtroom.  It is of course true that the government itself did not direct Workman’s supporters to leave, but the credible evidence shows that two days before trial, Lyon expressed the view that he could not or would not prevent VSP officers from attending the trial to support Workman. He merely directed their supervisor to try to persuade them not to attend, which obviously was not successful.

It was only after First Assistant Bubar advised Lyon that United States Attorney Cullen wanted them out of the courtroom, and that their attendance could “affect the relationship” between the two law enforcement agencies, did Lyon make the decision to order them to leave. United States Attorneys have significant authority and particularly since Lyon did not want his officers attending anyway, the message that one of the most important law enforcement officials in his state did not want VSP officers attending the trial, certainly made the difference. While I do not rule on whether the VSP can direct its off-duty officers not to attend a public trial, I find that it was the government, and not the VSP, that in fact made the decision here.

It was wrong to have excluded the officers. There is no evidence that they were planning to make any sort of disturbance or indication of approval or disapproval during closing arguments. They were in plain clothes, with no visible indication that they were police officers. I was on the bench when they left, and while at the time I did not know who they were or why they were leaving, I observed that their departure was in a perfectly dignified manner. As far as I can determine, they were there only to show a fellow police officer that they supported him.

In addition, of course, the United States Attorney did not bring the matter to my attention, which clearly would have been the appropriate course of action. The court, and not the litigants or their attorneys, controls the courtroom and who may be present or not. Regretfully, I find that the United States Attorney made a serious error in judgment in obtaining the removal of the officers.

In spite of my finding that the officers should not have been removed, I also find that their removal does not justify setting aside the jury’s verdict. There was no prejudice shown here, particularly in view of the likelihood that the jury was not even aware as they entered the courtroom that certain persons were leaving the courtroom at the same time, or if they were aware, what it meant. The courtroom had a number of spectators present for closing arguments, and even if the officers had not been removed, the reason for their presence would have been beyond the knowledge of the jury. I cannot find that the outcome of the case was influenced in any way by the fact that certain of the defendant’s fellow police officers were not present for closing arguments.

Defendant’s motion to dismiss denied.

United States v. Workman, Case No. 18-cr-00020, Aug. 15, 2019. WDVA at Abingdon (Jones). VLW 019-3-391. 8 pp.