COVID-Era Courtroom Access: Overflow-Room Viewing Is a Sixth Amendment Closure Requiring Waller Findings, Yet Unobjected Violations May Be Left Unremedied on Plain-Error Review

I. Introduction

United States v. Paul Girard (consolidated with the appeal of Kareem Harry) addresses how the Sixth Amendment public-trial right applies to COVID-era courtroom restrictions—especially when the public is diverted to an overflow room with an audiovisual feed—and what happens when defendants fail to object contemporaneously.

Girard, described as the leader of a violent drug-trafficking enterprise in the U.S. Virgin Islands, was convicted of 22 counts (drug, firearm, racketeering, and other charges). Harry, alleged to be the enterprise’s armorer, was convicted of seven racketeering and firearms counts. Their March 2022 jury trial began immediately after the District Court resumed certain in-person proceedings following COVID-related suspensions.

The central Sixth Amendment issues were (1) the trial’s first day beginning with no public access to the courtroom (spectators were required to use an overflow room feed), and (2) later trial days when federal marshals prevented the defendants’ mothers from entering the courtroom even when seating was available. Despite these events, neither defendant made an adequate contemporaneous objection. After conviction, they sought a new trial; the District Court denied relief, finding that the “public was not excluded.”

II. Summary of the Opinion

The Third Circuit held that two Sixth Amendment errors occurred:

  1. The District Court erred on the first day by requiring all spectators to watch from an overflow room without making the findings and considering alternatives required for a closure under Waller v. Georgia.
  2. After the courtroom was reopened to limited in-person attendance, it was error for marshals to exclude the defendants’ mothers on multiple days when seats were available, with no record-supported justification.

Nonetheless, the Court affirmed the convictions because—under plain-error review—these errors did not satisfy the discretionary fourth prong: they did not “seriously affect[] the fairness, integrity or public reputation of judicial proceedings,” particularly given continued public visibility through the feed and some in-person access, the absence of secrecy or misconduct, and the high cost of retrial.

The Court also rejected Harry’s separate claims that the District Court violated due process and compulsory process regarding defense witnesses who invoked the Fifth Amendment or were excluded as irrelevant.

III. Analysis

A. Precedents Cited

1. The constitutional baseline: openness and its purposes

The opinion roots the public-trial right in the longstanding presumption that criminal trials are “open to all who care to observe,” citing Richmond Newspapers, Inc. v. Virginia. It also reiterates that defendants may “insist” on this tradition, citing Presley v. Georgia. These cases frame openness as structural: it promotes accountability, legitimacy, and confidence in adjudication.

To explain why physical presence matters, the Court relied on Waller v. Georgia’s observation that “interested spectators” can keep “triers keenly alive” to their responsibilities. It also analogized—by way of function rather than doctrinal identity—to the in-person virtues discussed in Coy v. Iowa.

2. Closure doctrine and the Waller/Presley requirements

The Court applied Waller v. Georgia’s test: a closure must be justified by an “overriding interest,” be no broader than necessary, require consideration of reasonable alternatives, and be supported by adequate findings. It emphasized Presley v. Georgia’s instruction that trial courts must take “every reasonable measure to accommodate public attendance,” and that alternatives must be considered even if not proposed by the parties.

The Court also addressed the “trivial closure” concept (raised by the Government), discussing Zornes v. Bolin and Peterson v. Williams. While not definitively endorsing the doctrine’s constitutional fit, it held the closure here was not trivial because it affected opening arguments and evidence, and because remote observation does not serve the solemnity and accountability functions to the same degree. United States v. Ivester served as the contrast point for truly insignificant, administrative closures.

3. Total closure vs. excluding specific spectators (and the “partial closure” vocabulary)

Recognizing that some situations involve excluding only particular people, the opinion surveyed other circuits holding that narrower exclusions require only a “substantial reason,” citing: United States v. DeLuca; Woods v. Kuhlmann; United States v. Smith, 117 F.4th 584 (and its related cert denials, including Alcorn v. United States); United States v. Osborne; United States v. Simmons; United States v. Thompson; United States v. Sherlock; United States v. Galloway; and Judd v. Haley.

Importantly, the panel tied this approach to the Third Circuit’s pre-Waller cases, U.S. ex rel. Laws v. Yeager and United States v. Kobli, which permitted exclusion of certain people or classes only when justified by lack of space or reasons particularly applicable to them (such as indecorous conduct or witness intimidation). The opinion also cited Drummond v. Houk for the proposition that Waller’s balancing concept applies across closure types.

In a notable aside, the Court rejected the idea (accepted elsewhere) that excluding all spectators to an audiovisual feed is a “partial closure,” distinguishing United States v. Ansari.

4. COVID-19 as a justification, and the necessity of record findings

The Court acknowledged that protecting participants from COVID-19 can qualify as an overriding interest, citing United States v. Hunt, United States v. Veneno, United States v. Allen, and the Supreme Court’s recognition of COVID mitigation as a compelling interest in Roman Cath. Diocese of Brooklyn v. Cuomo.

But the panel insisted that even compelling interests do not dispense with Waller’s process: the trial court must still explain why less restrictive alternatives (e.g., sparsely seated, socially distanced in-person attendance) are inadequate. The decisive factual gap was that the courtroom allowed some spectators after day one, yet the record did not explain why such limited attendance was infeasible on day one.

5. Plain-error review as the practical limiter on relief

Because the defendants did not adequately object, the Court applied plain-error review, citing United States v. Williams and United States v. Olano. The preservation discussion relied on United States v. Claxton (standards of review) and on Third Circuit preservation cases—United States v. Johnson, United States v. Abreu, and United States v. Grant—to hold that vague references to “comply with the Constitution” did not preserve a public-trial claim about closure.

For the fourth prong (whether to exercise discretion to correct), the Court relied heavily on its recent closure cases: United States v. Gallman and United States v. Lnu, emphasizing publicity and the absence of secrecy. It also drew support from Weaver v. Massachusetts on the significance of who ordered a closure (judge vs. court officers), and from Rosales-Mireles v. United States on the caution warranted before ordering retrial on plain-error review.

Finally, to establish that marshal-driven exclusions count even if the judge is unaware, the Court cited Walton v. Briley, United States v. Smith, 426 F.3d 567, and United States v. Negron-Sostre.

6. Compulsory process and due process witness claims

The Court rejected Harry’s witness-related claims by applying: Webb v. Texas (improper judicial intimidation of witnesses), Diggs v. Owens (Sixth Amendment compulsory process yields to a valid Fifth Amendment privilege), United States v. Morton (preference for question-by-question invocation), and Gov't of Virgin Islands v. Mills (compulsory process extends only to testimony that is “material and favorable”).

B. Legal Reasoning

1. Identifying the Sixth Amendment violations

The Third Circuit’s core move was conceptual: forcing all spectators out of the courtroom—even with an audiovisual feed—constitutes a courtroom closure triggering Waller. The courtroom is not “open” if no member of the public can enter it; the existence of a feed may mitigate harms, but it does not erase the closure or the need for findings.

The first-day error was procedural and evidentiary: the Court did not place on the record why less restrictive measures were inadequate. The panel found it telling that the courtroom later admitted some spectators; without a record, the day-one exclusion appeared broader than necessary.

The second error involved a narrower exclusion—two close family members—occurring even after the courtroom was supposed to be open on a first-come basis. The panel treated this as a nontrivial impairment of the values protected by the public-trial right, especially because mothers have “special concern with the trial” (drawing language from U.S. ex rel. Laws v. Yeager and United States v. Kobli). Crucially, there was no identified interest—space, decorum, intimidation—supporting their exclusion, and the District Court did not know it was happening and thus made no findings at all.

2. Why the defendants still lost: the fourth prong of plain-error review

The most precedent-setting practical aspect of the opinion is remedial: even where a Sixth Amendment public-trial error exists, the Third Circuit may decline to correct it on plain-error review if the proceeding retained the functional attributes of a public trial and the costs of retrial are substantial.

Applying United States v. Williams, the panel weighed (a) the effect of the error on the interests protected by the public-trial right against (b) the costs of remedying it. The Court emphasized three “values”:

  • Publicity: The trial was viewable either through the audiovisual feed or in person for at least some members of the public, so participants could not reasonably assume their actions would escape contemporaneous scrutiny (citing United States v. Lnu and comparing the circumstances to United States v. Gallman).
  • Neutrality: The initial closure was a good-faith COVID measure, not a secrecy tactic; and later exclusions did not carry the judge’s “imprimatur” because the judge was unaware and acted once notified (supported by Weaver v. Massachusetts’s distinction between judge-made and officer-made closures).
  • Professionalism: There was no suggestion of misbehavior by judge, prosecutor, or parties (again echoing Gallman and Williams).

On the other side, the Court stressed the extraordinary practical cost of retrial: a three-week racketeering and conspiracy trial, nearly 50 witnesses, and a four-year time gap. In that setting, the Court viewed reversal as a “windfall” inconsistent with justice on plain-error review.

C. Impact

  • Overflow-room or remote-only viewing is not a free pass: In the Third Circuit, requiring all spectators to watch from an overflow room triggers the public-trial framework; trial courts must make Waller findings and explain why less restrictive alternatives are inadequate.
  • Operational failures can become constitutional failures: Marshal-enforced exclusions (even if contrary to a judge’s intent) can violate the Sixth Amendment; courts should institute clear, recorded access protocols and ensure security staff receive precise guidance.
  • Preservation is pivotal: Defendants who suspect a closure must object “squarely” and with “sufficient[] particulari[ty]” (as framed by United States v. Johnson and United States v. Abreu), or they risk a no-remedy outcome even after proving error.
  • Remedy is increasingly contextual under plain-error review: This opinion further entrenches the Third Circuit’s approach (seen in United States v. Williams and United States v. Gallman) that some unobjected-to public-trial violations will not result in retrial where the trial remained broadly observable and there is no indicia of secrecy, bias, or misconduct.

IV. Complex Concepts Simplified

  • Public-trial right (Sixth Amendment): Your criminal trial should be open to the public. The point is not only fairness to the defendant, but also transparency and confidence in the justice system.
  • Courtroom “closure”: Any meaningful restriction on public access to the courtroom itself. Here, forcing everyone to watch from an overflow room counted as a closure.
  • Waller test: Before closing a courtroom, the judge must (1) identify a strong enough reason (“overriding interest”), (2) keep the closure as narrow as possible, (3) consider alternatives, and (4) put adequate findings on the record.
  • “Trivial closure” doctrine: Some courts treat very minor, inconsequential closures as not implicating the Sixth Amendment’s core purposes. The Third Circuit did not need to adopt or reject the doctrine outright because the closures here were not minor.
  • Plain-error review: If you did not properly object at trial, you must clear a high bar on appeal: show clear error and, even then, convince the appellate court to exercise discretion to fix it.
  • Fifth Amendment privilege and compulsory process: A defendant can subpoena witnesses, but cannot force a witness to testify if the witness would incriminate themselves and validly invokes the Fifth Amendment.

V. Conclusion

United States v. Paul Girard establishes (and operationalizes) two important points in the Third Circuit: (1) diverting all spectators to an overflow room feed is a public-trial closure that requires Waller v. Georgia-compliant justification and findings, and (2) unjustified spectator exclusions carried out by court security can violate the Sixth Amendment even when the judge is unaware.

At the same time, the decision underscores an equally consequential lesson about appellate remedies: absent a timely and specific objection, even genuine public-trial violations may not lead to reversal when the proceedings remained publicly observable in substance and retrial would impose heavy costs on the administration of justice.