Experts say the judge in the Trump documents case violated a previous defendant’s constitutional right.

The Judge’s Errors in ⁢Trump’s Trial

The judge in former⁣ U.S.⁣ president Donald Trump’s upcoming trial ⁢over his handling of classified documents ‍made two key errors in‌ a June‍ trial, one of which violated a fundamental constitutional right of the defendant and could have invalidated the proceedings, according to legal experts and a ⁢court ⁣transcript.

A Closed Jury Selection

Florida-based U.S. District Judge Aileen Cannon closed jury selection for the trial of an Alabama man—accused by federal prosecutors of running a website with images of ⁢child⁤ sex abuse—to the defendant’s family and the general public, a ​trial transcript obtained by Reuters⁣ showed. A defendant’s right to a ⁤public trial is enshrined in the U.S. ⁢Constitution’s Sixth Amendment.

Cannon, a⁣ 42-year-old former federal prosecutor appointed⁤ by Trump to the⁣ bench​ in ‍2020 late in‌ his presidency, also neglected to swear in‌ the‍ prospective jury ⁤pool—an obligatory⁢ procedure⁤ in which people who may serve ⁤on the panel pledge to tell the truth during the selection process. This error forced Cannon to re-start jury selection before the trial ended abruptly with defendant⁤ William Spearman pleading ‍guilty as ‍part ⁤of an agreement with prosecutors.

Cannon’s decision to close the courtroom⁤ represents ⁢”a fundamental constitutional error,” said Stephen Smith, a ‍professor at​ the Santa Clara School of​ Law in ​California. ​”She ignored the public trial right‍ entirely. It’s as though she didn’t know it existed.”

In Cannon’s decision to close⁢ jury selection,​ the judge cited⁢ space restrictions in her small courtroom at the federal courthouse in Fort Pierce, Florida.

Legal experts said closing ‌a courtroom to the public has ⁤been ⁤recognized ‍by the U.S. Supreme Court as a “structural error”—a mistake so⁢ significant that it can invalidate a criminal trial because it⁢ strikes at the⁤ heart of the entire process. A​ public trial also has been found to implicate ⁣First Amendment ‍rights ‍of freedom of‌ assembly, speech, and press.

Cannon’s decision ​raises questions about​ how she will handle ‌the ‍intense public interest at ⁢Trump’s trial, which is scheduled ⁣to begin on May 20, 2024, in the same courtroom.

The unprecedented prosecution of a⁤ former president as ⁤he campaigns seeking⁢ a return to the White ‌House promises‌ to bring enormous public scrutiny. The trial also will represent ‌the first time that Cannon handles a ‌case involving classified evidence and the arcane rules surrounding ⁤it.

Cannon’s trial⁤ errors ⁢also illustrate her judicial‍ inexperience, five former federal judges—Democratic and Republican appointees—said⁢ in interviews.

“A lack of experience can be really hard in a big case, especially when there’s all this media attention and everything you do is being watched and ⁤commented​ on and second-guessed,” said Jeremy‌ Fogel, a former federal judge who leads the‌ Berkeley Judicial ‌Institute in California.

Fogel said Cannon made “two fairly ‌significant mistakes” during ⁣jury‍ selection​ in the June⁢ trial.

“It looms larger⁢ because of who ⁤the judge is,” Fogel added.

Mark Bennett, ‍the former chief U.S. district judge of the Northern District of Iowa, said, “She should have ​figured ahead of ⁢time a‍ way to accommodate a small number of family members in a ‌very ⁤small ⁤courtroom, in my opinion. It’s just the ‌right thing to do, and⁣ not run the risk of there ⁢being reversible error.”

Cannon did not respond ​to​ a request for comment. Scott‌ Berry, a federal public defender representing​ Spearman, declined to comment, as ‍did a Justice Department spokesperson.

Limited ⁤Experience

As a judge, ⁢Cannon so⁢ far⁢ has presided​ over ​four criminal trials that resulted in‍ jury verdicts. ⁣She ⁣previously also​ worked on four criminal trials that resulted in jury verdicts when she‌ served a federal prosecutor ⁢from 2013 to 2020,​ according to a questionnaire she filled out before the Senate confirmed her as a judge.

Cannon faced a rebuke from ​the Atlanta-based 11th U.S. Circuit Court of⁣ Appeals when it reversed her 2022⁤ order appointing a third ⁤party to review documents seized by the‍ FBI​ from Trump’s Mar-a-Lago ‌resort home ⁤in Florida in the⁤ classified records investigation.

“We cannot write a rule that allows any subject of a search warrant to ‍block government investigations after the execution of the warrant. ⁣Nor can we write a rule​ that allows only former presidents to do so,” the 11th Circuit panel of three‍ judges—all Republican appointees—wrote ⁤in reversing Cannon’s ruling ‍and ordering the dismissal of a lawsuit filed by Trump that ⁣sought⁤ to⁤ shield documents from federal investigators.

Trump’s upcoming trial on 40 criminal counts of retaining classified records, obstruction of justice, conspiracy, and concealment will present a new level ‌of complexity.⁣ Trump ​faces separate ⁢trials on two other sets of federal and state criminal charges.

Paul Grimm, ‌a former federal judge ⁤in Maryland who‌ now leads the Bolch Judicial ⁢Institute at Duke Law School in North Carolina,⁢ said it is not unusual​ for a new judge ⁤to ⁤have ⁢to deal with a ⁣high-profile‌ matter,​ as⁣ case assignments ‌are random.

“You get‍ the ⁤case on the draw of ⁣it,” Grimm ⁢said. “You can ask ⁢for help—but if you choose not to ask for help, then no one’s‌ going to make‍ you” seek guidance.

‘Your ⁢Objection is⁤ Overruled’

Cannon began jury selection on June ⁢12⁢ in the ‍trial of Spearman, who was charged ⁣with conspiring ⁢to advertise and distribute ⁣images ​of child sexual abuse and with ​engaging in a child exploitation enterprise.

That day, the court ⁣transcript showed, Cannon failed to swear in the jury pool. Cannon also declined to⁣ open the courtroom to the public‍ despite repeated‌ requests ​from‍ both prosecutors and ⁢defense attorneys, the transcript showed.

Some of the former ‍federal judges interviewed by Reuters said their‌ courtroom⁣ deputies sometimes would ​remind them of⁣ procedural ‍steps like swearing in prospective ⁢jurors,​ as ⁤they may be focused on other aspects of running a trial.

Berry, the federal defender, argued in the courtroom that⁤ Cannon’s refusal to let his client’s⁢ mother and‌ sister be ‌present ⁤during jury selection was a Sixth Amendment violation.

“All right, thank ‌you. Your objection is ⁤overruled,” Cannon replied, ⁣according to the transcript.

A federal prosecutor in the ⁣case, ​Greg ⁤Schiller, later pressed⁢ Cannon ⁤to ​let ‍in Spearman’s mother. Schiller raised a 2010 U.S.⁢ Supreme Court precedent that held that judges must weigh less restrictive​ alternatives prior to closing​ a courtroom to the public, including during​ the​ jury selection process.

When Berry later ​pointed to two open chairs‌ in the room, Cannon resisted his request again, saying the ⁢chairs were⁤ reserved ⁣for law‌ enforcement.

“Mr. Spearman’s mother is free to join us once the jury selection process ‍has⁤ concluded and/or there is truly enough⁢ room ⁢in the courtroom,” Cannon said, according to the transcript.

Cannon⁣ later‌ offered to let in Spearman’s family after the judge​ realized she ⁤also had failed to ‌swear in⁤ the jury pool. She said there would be room in the courtroom after certain jurors who ⁣both‌ sides in the case agreed should be dismissed⁢ had left.

The⁢ jury selection process never re-started because Spearman and‍ the prosecutors entered into a “conditional” plea deal, ⁤an uncommon⁢ arrangement that preserves⁤ a defendant’s right to appeal certain rulings by the trial judge. In most plea deals, defendants waive the⁢ bulk of ⁣their appellate rights.

The decision by Spearman, who is due to be ⁤sentenced ⁣by Cannon on Aug. 31, to enter a ​plea deal ​averted the⁢ problem with the court closure. ‌But legal experts said it raises questions about how Cannon will​ handle ⁤public access for Trump’s ⁣trial.

“She is‍ going to have to make⁣ some accommodations,” Santa Clara’s Smith said.

(Reporting by Jacqueline Thomsen and Sarah N. Lynch. Editing by Will ⁤Dunham and Scott Malone.)