In Drummond v. Houk, ___ F.3d ___, 2013 WL 4505144 (6th Cir. Aug. 26, 2013), the panel (Cole with Griffin; dissent by Kethledge) affirmed the district court’s ruling that the trial court violated John Drummond’s right to a public trial by clearly the courtroom of non-media spectators during part of the capital trial. The panel majority agreed with the lower court’s finding that the state court’s denial of relief involved an unreasonable application of Waller v. Georgia, 467 U.S. 39 (1984).
The warden’s primary argument on appeal was that because media had been permitted to remain in the courtroom in Drummond’s case, and Waller involved a complete closure of the courtroom, there was no existing clearly established law barring partial courtroom closures at the time of the state court’s ruling. (The Supreme Court did not expressly hold that Waller applies equally to complete and partial closures until Presley v. Georgia, 558 U.S. 209 (2010), which was issued three years after the relevant state court decision in Drummond’s case.) While the panel majority conceded that circuit courts prior to Presley did sometimes draw a distinction between full and partial closure in applying Waller, it observed that no circuit court had failed to apply Waller at all when determining whether a Sixth Amendment violation had occurred in a partial closure case. The panel majority found that "the unanimous circuit court consensus lends credence to our holding that the law of Waller was clearly applicable to partial closures just as the circuit court divergence in [Carey v.] Musladin[, 549 U.S. 70 (2006)] demonstrated that Supreme Court law was not clearly established." That the Supreme Court in 2007 had vacated a grant of habeas relief in a partial closure case from the Second Circuit and remanded for consideration of Musladin also failed to convince the panel majority that there was no clearly established law at the time the state court denied Drummond’s claim. The panel majority pointed out that the error by the Second Circuit had been in relying on its own precedent to require heightened scrutiny when family members, rather than the general public, were the subject of exclusion from the courtroom.