State of Iowa v. Ronald James Brimmer ( 2022 )

IN THE SUPREME COURT OF IOWA
No. 21–0744
Submitted September 15, 2022—Filed December 22, 2022
STATE OF IOWA,
Appellee,
vs.
RONALD JAMES BRIMMER,
Appellant.
Appeal from the Iowa District Court for Dubuque County, Thomas
J. Bitter, Judge.
A criminal defendant seeks review of the sufficiency of the State’s
evidence supporting his second-degree sexual abuse conviction and
challenges the trial court’s decision to close his trial to the public during
the COVID-19 pandemic. REVERSED AND REMANDED.
Oxley, J., delivered the opinion of the court in which McDonald, J.,
joined, McDermott and May, JJ., joined except as to section IV.B.2, and
Christensen, C.J., and Mansfield and Waterman, JJ., joined as to part III
only. Mansfield, J., filed an opinion concurring in part and dissenting in
part, in which Christensen, C.J., and Waterman, J., joined. May, J., filed
a special concurrence, in which McDermott, J., joined.
Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Genevieve Reinkoester,
Assistant Attorney General, for appellee.
2
OXLEY, Justice.
Criminal jury trials in Iowa and around the country over the last two
and a half years would have looked strange to an observer plucked out of
prepandemic times. Witnesses speaking through masks and see-through
face shields; brightly colored tape on floors every six feet to mark where
people could stand; clients sitting at different tables from their attorneys,
trying to nonetheless communicate in private; separate “in” and “out”
doors to courthouses and courtrooms to direct traffic patterns; juries
selected in school gymnasiums or large warehouses; jurors spread out in
the back of a courtroom instead of sitting in the jury box. These are but a
few of the accommodations courts in Iowa and across the country made in
trying to stem the spread of COVID-19 while preventing the wheels of
justice from grinding to a halt.
Ronald Brimmer was set to stand trial on serious felony charges on
March 31, 2020, but then, well, COVID, and his trial was repeatedly
rescheduled. A full year later, at which time Brimmer was in jail awaiting
trial, his trial was finally set to go on April 6, 2021. When he requested
that his family and friends be allowed to attend trial in person, the answer
was “no,” not even his mom. The district court considered rearranging the
already rearranged courtroom but ultimately concluded that while it could
make room for a few people and comply with the COVID protocols this
court had previously implemented, anyone allowed in would still be too
close to jurors for the court’s liking. The district court also dismissed the
3
option of livestreaming the trial so the public could participate virtually
because the judge couldn’t navigate that technology by himself.
“[E]ven in a pandemic, the Constitution cannot be put away and
forgotten.” Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68
(2020) (per curiam). A public trial is among the most fundamental of
constitutional rights—a stalwart feature of a criminal prosecution that
distinguishes a free society from “Star Chamber” techniques. State v.
Lawrence, 167 N.W.2d 912, 913–14 (Iowa 1969) (recognizing the right has
been “universally regarded by state and federal courts as basic and
substantial, and the language declaring it as mandatory”). It was included
in the constitution to “ensure that [it] will not be sacrificed to expediency.”
Hudson v. Palmer, 468 U.S. 517, 556 (1984) (Stevens, J., concurring in
part and dissenting in part). And it is our obligation to jealously guard it.
See 1 Annals of Cong. 439 (1789) (Joseph Gales & William W. Seaton eds.,
1834) (statement of Rep. Madison) (envisioning courts as “the guardians
of [constitutional] rights; . . . an impenetrable bulwark against . . . every
encroachment upon [those] rights” from whatever quarter).
As such, and as the head of the judicial branch, we recognize our
responsibility to guide Iowa courts through these unprecedented times.
Our concern here is whether Brimmer’s constitutionally-protected right to
a public trial was violated, not who is to blame. We do not doubt the district
court judge’s sincere belief that he was doing the best he could under the
circumstances, nor do we intend to disparage his efforts, recognizing we
have the luxury of unhurried deliberation. But if we, as a branch, failed to
4
protect Brimmer’s rights, then we, as a branch, must own up to that
failure. No solution to the COVID conundrum was ideal. But simply closing
Brimmer’s trial to the public violated his constitutional rights, and that
structural error entitles him to a new trial.
I. Factual Background.
In the summer of 2018, twenty-year-old Ronald Brimmer and
thirty-five-year-old Augustin Bon-Orduno (coworkers at John Deere in
Dubuque) met sixteen-year-old J.H. during one of her work shifts at a
McDonald’s drive-through. In the afternoon on July 19, Bon-Orduno
answered J.H.’s Snapchat message looking for someone to supply her with
alcohol. Bon-Orduno invited Brimmer to hang out with them, and that
evening the two went together to pick up J.H., along with her fifteen-year-
old sister, N.D., and drove back to Bon-Orduno’s house for drinks.
While at the house, the four sat and talked in a bedroom, played
music, and drank alcohol. N.D. characterized the music as “decently loud.”
N.D. only had “sips” of alcohol, while J.H. drank “a bunch.” J.H. poured
her first drink herself, but Brimmer and Bon-Orduno poured the rest for
her. During one instance where the two mixed J.H. a drink, N.D. observed
them remain in the kitchen for about three minutes before actually
pouring the drink.
At one point, J.H. got up to use the bathroom. She had never
consumed much alcohol before and by all accounts was drunk at this
point. As she came out of the bathroom, she was accosted by Bon-Orduno.
He attempted to kiss J.H. over her protests and eventually forced her back
5
into the bathroom where he sexually assaulted her as she was bent over
the bathtub. Brimmer saw Bon-Orduno kissing J.H. in the hallway but
testified he saw no signs of a struggle and believed the kissing was mutual.
Earlier in the evening, Brimmer had sent J.H. a Snapchat message
asking if she was interested in a “threesome” with him and Bon-Orduno
and, according to his testimony, believed she had agreed. After Bon-
Orduno assaulted J.H., he left her on the floor of the bathroom, and
Brimmer entered the bathroom shortly after. He asked J.H. if he could
touch her and claimed she then “turned around, [and] faced the tub,”
which he “presumed” meant she was giving her consent to sexual
intercourse. He attempted to have sex with J.H. but was unable to get an
erection. According to Brimmer, he eventually abandoned his attempt and
left the bathroom. According to J.H., he then asked her to give him oral
sex. She did not respond but did not comply, and when he finally got an
erection, he lifted her up off the tub and sexually assaulted her.
II. Procedural History.
On September 20, 2019, Brimmer was charged with second-degree
sexual abuse under Iowa Code section 709.3(1)(c) (2018), and he pleaded
not guilty. Trial was initially scheduled to begin in December 2019. After
several continuances at the parties’ request, trial was set for March 31,
2020. And then, COVID. Nearly all aspects of life were significantly altered
in March 2020 as federal and state authorities grappled with the global
pandemic, balancing the need to keep society moving while keeping people
6
distanced from each other in an attempt to stop the spread of the unknown
disease.
In response to the pandemic and Governor Reynolds’s Proclamation
of Disaster Emergency, State of Iowa Exec. Dep’t, Proclamation of Disaster
Emergency (Mar. 9 2020), https://governor.iowa.gov/sites/default/files/docu
ments/202003100818.pdf [https://perma.cc/JV4T-94NL], this court,
similar to courts across the country, issued a supervisory order directing
district courts to reschedule any criminal jury trial not yet in progress to
“a date no earlier than April 20.” Iowa Sup. Ct. Supervisory Order, In the
Matter of Ongoing Preparation for Coronavirus/COVID-19 Impact on Court
Services 1 (Mar. 14, 2020).1 In April, we again delayed trials until mid-
July. Iowa Sup. Ct. Supervisory Order, In the Matter of Ongoing Preparation
for Coronavirus/COVID-19 Impact on Court Services 3 (Apr. 2, 2020). And
then again in May, we delayed trials until September. Iowa Sup. Ct.
Supervisory Order, In the Matter of Ongoing Provisions for
Coronavirus/COVID-19 Impact on Court Services 4 (May 22, 2020).
Although we briefly allowed in-person trials to resume in September, we
again postponed trials in November until a time “no earlier than February
1, 2021.” Iowa Sup. Ct. Supervisory Order, In the Matter of Ongoing
Provisions for Coronavirus/COVID-19 Impact on Court Services 1 (Nov. 10,
2020).
1All
of this court’s COVID-19 related administrative orders are available online at
https://www.iowacourts.gov/iowa-courts/supreme-court/orders/.
7
When it was possible to conduct jury trials, courts across the
country had to make adjustments to normal procedures. To that end, this
court issued guidance on how to safely resume in-person trials while still
honoring defendants’ constitutional rights, including the right to an open
trial. See Iowa Sup. Ct. Supervisory Order, In the Matter of Resuming In
Person Court Services During COVID-19 (July 9, 2020) [hereinafter July 9
Supervisory Order]. In accordance with the Centers for Disease Control
and Prevention’s (CDC) then-existing guidance on preventing the spread
of COVID-19,2 we required courts to maintain six feet of distance between
persons in courtrooms, which in turn meant courts had to limit public
attendance “as physically-distanced space permit[ted].” Id. at 4. If that
resulted in no room available for the public, we directed courts to “set up
live feeds of public court proceedings in another room in the courthouse
(or, as necessary, streaming online or by videoconference) to permit
simultaneous viewing.” Id. at 4–5.
For Brimmer, all of this meant that his trial did not begin until
April 6, 2021.3 And, when it did begin, the court had to physically distance
2See Ctrs. for Disease Control & Prevention, How to Protect Yourself & Others
(updated April 24, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-
getting-sick/
prevention.html [https://web.archive.org/web/20200709054401/https://www.cdc.gov
/
coronavirus/2019-ncov/prevent-getting-sick/prevention.html].
3After his arrest on September 11, 2019, Brimmer’s bond was set at $50,000. He
could not make bond at that amount, or the $25,000 it was reduced to in October. In
June 2020, it was further reduced to $10,000, which Brimmer posted in August. After a
violation of his release conditions just two months later, however, Brimmer was returned
to jail to await trial. Overall, then, nineteen months elapsed between Brimmer’s initial
arrest and his trial, seventeen of which Brimmer spent in jail without having been
convicted of any crime.
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venire members in the “gallery” of the courtroom (where the public
typically sits), leaving little—but still some—space for public spectators.
As the court explained when first considering closing Brimmer’s trial:
The only setup that we have that can accommodate a jury trial
in our county is to spread the jurors out evenly in the back of
the courtroom behind the bar. Therefore, if we had any people
from the public . . . those people would have to sit very close
to -- either right next to or right behind the jurors. The couple
of jury trials that we’ve done up to this point, we’ve simply
closed the trial to the public, and I know that is not ideal, but
most important to me is that we get a fair trial in this case . . .
and we want the jurors to feel, number one, that they don’t
have people sitting too close to them during this time of Covid,
and, number two, that we don’t have people sitting close
enough to the jurors that the jurors either hear something
they shouldn’t hear or that the jurors feel in some way
intimidated by either side.
Just prior to jury selection the next day, Brimmer’s counsel again brought
up his right to a public trial, “requesting that the public be allowed in” and
objecting if it was not.
The court’s plan for jury selection was to stagger two venire panels
to avoid having the full venire present in the courtroom all at once: one
panel of twenty jurors and another of seventeen. In the first set, eighteen
jurors were spread out in the gallery and two were seated in the jury box.
In the second set, twelve jurors were spread out in the gallery and five sat
in the jury box.
In response to Brimmer’s objection to excluding members of the
public, the court again acknowledged that it could fit some spectators in
the courtroom but that it would be “really, really difficult . . . because the
jurors [would] be evenly spaced out in the back of the courtroom,
[meaning] anybody from the public [would] be seated very close to the
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jurors.” The court was not comfortable with that option because it
“want[ed] the jurors to feel like it’s safe and [to not] overhear anything [or]
feel intimidated in any way.” When Brimmer’s counsel pointed out that
there would be more space in the courtroom after jury selection (the court
planned to seat fourteen jurors for the trial) and asked for clarification as
to whether the courtroom would still be closed at that time, the court
answered in the affirmative, explaining:
[B]oth times the jurors are going to sit spaced out in the back
of the courtroom, and with a criminal jury, we’re going to have
14 jurors so they’re going to fill up that back of the courtroom.
I walked around there yesterday. The only place we could
possibly fit public would be those benches against the back
windows and even there, they’re going to be seated about six
feet behind the second row of jurors, and I’m not -- I’m just
not comfortable with that. I don’t want -- even if somebody
says something unintentionally by reaction without any
intention to cause any influence, I don’t want the jurors seated
that close to the public where they can overhear something
that they shouldn’t hear. So, yes.
The court did consider electronically livestreaming the trial but said
it did not “have that capability” and therefore would not do so unless “the
State want[ed] to provide somebody to do that.” Brimmer did not comment
one way or the other about the livestreaming option. The district court also
suggested that Brimmer waive his speedy-trial right in order to postpone
trial to an unspecified time when physical distancing requirements were
more relaxed; an offer Brimmer declined. When the court later said it
would make room for the victim advocate in the jury box at the State’s
request, Brimmer requested that the court allow his mother in—“just one
person, during trial”—which the court refused to do. It explained that the
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advocate had “a purpose with this trial” and was not considered part of
the public.
After jury selection was finished, but just before trial began, the
court excused a juror for a personal conflict, leaving just thirteen jurors
seated in the gallery during trial. Both jury selection and the entire trial
were completely closed to public spectators, and no electronic recording or
livestream was made available so the public could watch remotely.
Trial proceeded over the next three days. The jury found Brimmer
guilty, and in May 2021 Brimmer was sentenced to an indeterminate
twenty-five-year sentence. Brimmer appeals, asking this court to find a
violation of his constitutional right to a public trial. He separately
challenges the sufficiency of the evidence to support his conviction. We
retained the appeal.
III. Sufficiency of the Evidence to Support Second-Degree
Sexual Abuse Under Section 709.3(1)(c).
We address Brimmer’s challenge to the sufficiency of the evidence
first, as it could provide him greater relief than the new trial he seeks for
his public trial challenge. In his sufficiency argument, Brimmer challenges
only the State’s evidence to establish that he was aided and abetted by
another, which enhanced his conviction from third-degree sexual abuse, a
class “C” felony, see Iowa Code § 709.4(2), to second-degree sexual abuse,
a class “B” felony, see id. § 709.3(1)(c), (2). If the State presented
insufficient evidence to support the enhancement, Brimmer is entitled to
dismissal of the second-degree charge, entry of conviction on the lesser
included third-degree charge (which he does not otherwise challenge), and
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resentencing. See State v. Chapman, 944 N.W.2d 864, 875 (Iowa 2020) (“If
the State fails to present sufficient evidence to convict a defendant at trial,
the Double Jeopardy Clause prevents the State from trying to prove its
case in a second trial.”); State v. Ortiz, 905 N.W.2d 174, 183 (Iowa 2017)
(“The remedy under our precedent is to remand this case for entry of a
judgment of conviction for the lesser offense of third-degree robbery and
resentencing.”).
A. Standard of Review for Sufficiency Challenges. “We review the
sufficiency of the evidence for correction of errors at law.” State v.
Crawford, 972 N.W.2d 189, 202 (Iowa 2022) (quoting State v. Buman,
955 N.W.2d 215, 219 (Iowa 2021)). Evidence is sufficient to sustain a
verdict if it is “substantial.” Id. “Substantial evidence,” in turn, “is evidence
sufficient to convince a rational trier of fact the defendant is guilty beyond
a reasonable doubt.” Id. “In determining whether the jury’s verdict is
supported by substantial evidence, we view the evidence in the light most
favorable to the State, including all ‘legitimate inferences and
presumptions that may fairly and reasonably be deduced from the record
evidence.’ ” Id. (quoting State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017)).
It is not our place “to resolve conflicts in the evidence, to pass upon the
credibility of witnesses, to determine the plausibility of explanations, or to
weigh the evidence; such matters are for the jury.” State v. Musser,
721 N.W.2d 758, 761 (Iowa 2006) (quoting State v. Williams,
695 N.W.2d 23, 28 (Iowa 2005)). It is also for the jury to decide which
evidence to accept or reject. See Williams, 695 N.W.2d at 28. Finally, we
12
recognize that circumstantial evidence is as probative as direct evidence.
See State v. Ernst, 954 N.W.2d 50, 57 (Iowa 2021).
B. Aiding and Abetting Another to Commit Sexual Abuse. As
relevant here, sexual abuse is elevated to a second-degree offense if the
abuser is “aided or abetted by one or more persons” and the offense is
committed against the victim’s will. Iowa Code § 709.3(1)(c). While
“sometimes called the ‘gang rape’ statute,” State v. Finnigan,
478 N.W.2d 630, 632 (Iowa 1991), it is not limited to the colloquial
understanding of that term. Rather, we apply our aiding-and-abetting
jurisprudence to determine whether the State provided sufficient evidence
that Brimmer was “aided or abetted by one or more persons,” Iowa Code
§ 709.3(1)(c), namely, Bon-Orduno.
Brimmer does not challenge the trial court’s instructions to the jury,
which establish the law of the case for our review:
“[A]id and abet” means to knowingly approve and agree to the
commission of a crime, either by active participation in it or
by knowingly advising or encouraging the act in some way
before or when it is committed. Conduct following the crime
may be considered only as it may tend to prove the defendant’s
earlier participation. Mere nearness to, or presence at, the
scene of the crime, without more evidence, is not “aiding and
abetting”. Likewise, mere knowledge of the crime is not
enough to prove “aiding and abetting”.
See also State v. Neiderbach, 837 N.W.2d 180, 211 (Iowa 2013) (requiring
substantial evidence that the abettor “assented to or lent countenance and
approval to the criminal act either by active participation or by some
manner encouraging it prior to or at the time of its commission” (quoting
State v. Spates, 779 N.W.2d 770, 780 (Iowa 2010))).
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Aiding and abetting therefore contains both a mens rea, or
knowledge, component, as well as an actus reus, or conduct, component
through active participation or advising and encouraging. See id.; see also
People v. Perez, 113 P.3d 100, 104 (Cal. 2005) (identifying three elements
to establish aiding and abetting: “(a) the direct perpetrator’s actus reus—
a crime committed by the direct perpetrator, (b) the aider and abettor’s
mens rea—knowledge of the direct perpetrator’s unlawful intent and an
intent to assist in achieving those unlawful ends, and (c) the aider and
abettor’s actus reus—conduct by the aider and abettor that in fact assists
the achievement of the crime”).
Proof may be supplied directly or through “circumstantial evidence
including presence, companionship and conduct before and after the
offense is committed.” State v. Miles, 346 N.W.2d 517, 520 (Iowa 1984)
(quoting Fryer v. State, 325 N.W.2d 400, 406 (Iowa 1982)) (using
circumstantial evidence to infer participation); see State v. Lewis,
514 N.W.2d 63, 66 (Iowa 1994) (quoting Miles as support for using
circumstantial evidence to infer participation); see also State v. Henderson,
908 N.W.2d 868, 878 (Iowa 2018) (“[K]nowledge can be proved by
circumstantial evidence.”). Brimmer argues the State failed to provide
evidence to support a finding that Bon-Orduno both knew that Brimmer
was going to assault J.H. and that he actively participated in or
encouraged Brimmer’s assault. In short, he asserts the evidence
establishes only that two assaults were committed, wholly independent of
one another.
14
Under the court’s jury instruction, the mens rea of aider and abettor
liability requires “knowingly advising or encouraging the [principal] act.”
(Emphasis added.) The knowledge element requires the abettor to be aware
of the underlying offense “at the time of or before its commission.”
Henderson, 908 N.W.2d at 876 (quoting State v. Tangie, 616 N.W.2d 564,
574 (Iowa 2000) (en banc)). In State v. Ledezma, for example, the court of
appeals rejected a sufficiency challenge where “it [was] clear all three men
knew[, including the defendant, that the victim] was struggling and
resisting her confinement” prior to the men assaulting her.
549 N.W.2d 307, 312 (Iowa Ct. App. 1996).
Here, although there was no direct evidence presented on the issue
of Bon-Orduno’s prior knowledge of Brimmer’s intended actions, the State
presented sufficient circumstantial evidence from which a rational juror
could infer Bon-Orduno knew Brimmer intended to commit a
nonconsensual sex act with J.H. prior to or during its commission.
Brimmer testified he believed J.H. had agreed to have a threesome with
him and Bon-Orduno, a scenario the jury could reasonably infer Brimmer
shared with Bon-Orduno. Brimmer would have had time to do so during
the several minutes the two spent in the kitchen pouring another alcoholic
drink for J.H. Importantly, J.H. testified she rejected Bon-Orduno’s
advances when he attempted to kiss her in the hall before he then pushed
her into the bathroom and sexually assaulted her. The jury could have
inferred from the hallway interaction both that Brimmer told Bon-Orduno
about his threesome Snapchat conversation with J.H. and that J.H.’s
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rejection made clear to Bon-Orduno that any sexual encounter with J.H.
would be nonconsensual. In addition, N.D. testified that while J.H. was in
the bathroom—after Bon-Orduno had assaulted J.H. and come out of the
bathroom—Bon-Orduno came into the bedroom where N.D. was listening
to music and talked to her about music and her interest in singing, offering
to help her possibly get a record deal with an acquaintance in California.
This would have been during the time that Brimmer was in the bathroom
with J.H. Brimmer also testified that after he left J.H. in the bathroom, he
“went and got [Bon-Orduno] and told him what was going on.” Bon-Orduno
did not appear to be surprised, instead asking N.D. to check on her sister
who had been in the bathroom for a while, suggesting J.H. might have
fallen off the toilet. The jury could conclude from this evidence that Bon-
Orduno had nonconsensual sex with J.H. knowing that Brimmer intended
to do the same.
In addition to proving Bon-Orduno had the requisite mens rea to be
an aider or abettor, the State also needed to present sufficient evidence of
his actus reus, or conduct. The jury was instructed the conduct element
is met by a person “active[ly] participat[ing] in” or “advising or encouraging
the act in some way before or when it is committed.” This element is
important because “neither knowledge nor proximity to the scene is—
standing alone—enough to prove aiding and abetting.” Lewis, 514 N.W.2d
at 66.
Consistent with its reputation as “the ‘gang rape’ statute,” Finnigan,
478 N.W.2d at 632, cases under section 709.3(1)(c) often involve an
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abettor who was physically present during the principal’s crime and who
actively participated in it, either by conducting their own assault on the
victim or by restraining or instructing the victim in some way during the
principal’s assault. See, e.g., State v. Williams, 574 N.W.2d 293, 295–96
(Iowa 1998) (rejecting sufficiency challenge where victim was assaulted by
defendant and three others, all of whom took turns holding the victim
down while another assaulted her); Finnigan, 478 N.W.2d at 631–32
(rejecting sufficiency challenge where defendant assisted her husband in
assaulting the couple’s daughter by initiating and directing sex acts,
photographing the acts, and making and enforcing threats for
noncompliance); Ledezma, 549 N.W.2d at 312 (rejecting sufficiency
challenge where defendant continued to drive vehicle while the victim was
obviously struggling to get away, parked the car and observed as the victim
was assaulted, perpetrated his own assault against the victim, and
observed as a third person assaulted the victim). However, this does not
mean that level of involvement is necessarily required.
Again, while the State’s evidence may be circumstantial, it is
sufficient to allow the jury to conclude that Bon-Orduno’s acts throughout
the evening encouraged Brimmer to sexually assault J.H. Brimmer
testified that he saw Bon-Orduno kissing J.H. outside the bathroom. After
Bon-Orduno assaulted J.H. and left the bathroom, Brimmer went into the
bathroom where he found J.H., in the dark and lying half-naked over the
bathtub, and attempted to engage in sexual intercourse with her. N.D.’s
testimony that Bon-Orduno checked in on her while J.H. was in the
17
bathroom and engaged her in conversation supports the reasonable
inference that Bon-Orduno was distracting N.D.4 Put simply, the jury
could have found from these facts that Bon-Orduno first assaulted J.H.
and left her in the bathroom and then distracted N.D. to provide cover for
Brimmer to have his turn with J.H. The jury could also have found that
Bon-Orduno’s actions emboldened Brimmer to do the same, a classic
example of a gang rape. Cf. State v. Shorter, 893 N.W.2d 65, 74 (Iowa 2017)
(noting that in another case, the “[defendant]’s striking [the victim] while
a [hostile] crowd formed was sufficient to support a finding of
encouragement of subsequent acts” by the crowd, for aider and abettor
liability to attach to the defendant (discussing State v. Tyler,
873 N.W.2d 741, 750–51 (Iowa 2016), superseded by statute on other
grounds, 2019 Iowa Acts ch. 140, § 32 (codified at Iowa Code § 814.28(2020)))).
The evidence supported the inferences needed to sustain the jury’s
findings. We therefore reject Brimmer’s challenge to the sufficiency of the
evidence supporting his conviction for second-degree sexual abuse.
IV. Constitutional Right to a Public Trial.
We turn next to Brimmer’s challenge to the district court’s exclusion
of all members of the public, including his family, from his trial as a
violation of his constitutional rights.
4We recognize that the audio of J.H.’s interview with the police from Exhibit 40
was not provided to the jury, so we do not rely on that recording here. However, N.D.’s
testimony provides the necessary evidence from which the jury could have found that
Bon-Orduno engaged her in conversation while Brimmer was assaulting J.H. That Bon-
Orduno was actively distracting N.D. is a reasonable inference from this evidence.
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A. Standard of Review & Error Preservation. “Our review of th[e]
constitutional [public trial] question is de novo in light of the totality of the
circumstances.” State v. Schultzen, 522 N.W.2d 833, 835–36 (Iowa 1994).
The State correctly points out that error preservation requires both
a specific objection to an alleged error at trial and a ruling on the issue,
see Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“[I]ssues must
ordinarily be both raised and decided by the district court before we will
decide them on appeal.”), which is precisely what occurred here. Defense
counsel specifically “object[ed] if the public is disallowed,” and the district
court ruled that “logistically it’s not going to work to have people in from
the public.” The requirements of error preservation were met at that time,
and no further action was required.
The State nonetheless makes a less-than-enthusiastic assertion
that Brimmer “[a]rguably . . . abandoned” his objection to the district
court’s closure of the courtroom when he asked that at least his mother
be allowed to attend and that it “appear[ed]” that the district court did not
affirmatively rule on that more limited request, such that Brimmer’s
challenge to his public trial right was not preserved for review. The State
is right to equivocate. Unlike in the cases it cites, see, e.g., People v. Poe,
No. A160102, 2021 WL 5578080, at *2 (Cal. Ct. App. Nov. 30, 2021)
(concluding that defendant failed to preserve error after court denied his
request for family to be allowed in courtroom during sentencing by
responding only “Okay” without further objection or mention of public trial
right); State v. Richardson, No. 2020–T–0037, 2021 WL 4477645, at *6
19
(Ohio Ct. App. Sept. 30, 2021) (finding error unpreserved where defendant
never “formally object[ed]” but merely “asked the court to ‘consider’
permitting family members to speak in mitigation” at his sentencing
hearing but “did not revisit the issue or object to the court proceeding to
sentencing”), Brimmer’s counsel formally objected on the basis of his
public trial right three times: the day before trial, the day of trial before
jury selection, and again after jury selection when he asked that just his
mom be allowed. Notably, this request followed immediately after the court
said it would allow the victim advocate to sit in the jury box during the
victim’s testimony. The court clearly and affirmatively rejected Brimmer’s
objections, even allowing Brimmer to make a record on the issue. The court
responded to Brimmer’s final request to at least allow one person in the
room by asking if he had considered the offer to waive his speedy trial right
and continue trial to a future, unknown date once physical distancing was
relaxed. When Brimmer declined that offer, the court asked, “Anything else
from the defense?” and then proceeded to trial.
The State cites no caselaw supporting its proposition that requesting
a limited alternative to complete closure waived or forfeited the objection
altogether. This argument might hold more sway if the court had granted
Brimmer’s limited request to allow at least his mother into the courtroom
and Brimmer now claimed the court violated his rights by not providing
greater public access. But where the district court denied even that more
limited alternative, we cannot say he gave up his original objection by
merely asking for a compromise, especially where the court had just said
20
the victim advocate could sit in the jury box. Even in the context of
evidentiary objections raised in a pretrial motion in limine, we find waiver
of the objection only if counsel affirmatively states “no objection” when the
evidence is later offered at trial. Compare State v. Schmidt, 312 N.W.2d
517, 518 (Iowa 1981) (holding that counsel waived any error by
“affirmatively stat[ing]—twice—that he had no objection to the very
evidence whose admission he now says amounted to reversible error”),
with State v. Brown, 656 N.W.2d 355, 361 (Iowa 2003) (distinguishing
Schmidt as having “ar[isen] from [a] situation[] in which the defendant,
through trial counsel, affirmatively consented to the admission of specific
testimony or other evidence at trial that had been subject to a prior
objection” and holding error was preserved where defendant “did not
affirmatively and specifically consent to the admission of [challenged]
testimony”).
“The preservation of error doctrine is grounded in the idea that a
specific objection . . . be made known, and the trial court be given an
opportunity to pass upon the objection and correct any error.” Brown,
656 N.W.2d at 361. The district court here fully understood the nature of
Brimmer’s objection and definitively overruled it. Error was preserved. See
State v. Thoren, 970 N.W.2d 611, 621 (Iowa 2022) (recognizing that if the
district court’s ruling leaves “no question about its finality,” the issue is
preserved for appeal).
B. Analysis of the Public Trial Right Issue. Both the United States
and Iowa Constitutions provide a criminal defendant with the “right to a
21
speedy and public trial.” U.S. Const. amend. VI; Iowa Const. art. I, § 10.
“Public trial” means just what it says: a defendant is entitled to have his
trial “open to all who care to observe.” Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 564 (1980) (plurality opinion); see also Davis v.
United States, 247 F. 394, 395 (8th Cir. 1917) (per curiam) (“As the
expression necessarily implies, a public trial is a trial at which the public
is free to attend.”). “[A]t the very least,” the right to a public trial entitles a
criminal defendant “to have his friends, relatives and counsel present, no
matter with what offense he may be charged.” In re Oliver, 333 U.S. 257,
272 (1948).
The protections provided by the right to a public trial are
unparalleled as a bedrock principle of criminal procedure. Throughout the
centuries-long evolution of the modern criminal trial, during which “great
changes in courts and procedures took place,” the requirement of an open
trial remained a constant. Richmond Newspapers, 448 U.S. at 564–66
(discussing the history of open trials dating before the Norman Conquest).
It ensures “that the public may see [the defendant] is fairly dealt with and
not unjustly condemned, and that the presence of interested spectators
may keep his triers keenly alive to a sense of their responsibility and to the
importance of their functions.” In re Oliver, 333 U.S. at 270 n.25 (quoting
Thomas M. Cooley, Constitutional Limitations 647 (8th ed. 1927)). “The
knowledge that every criminal trial is subject to contemporaneous review
in the forum of public opinion is an effective restraint on possible abuse of
22
judicial power.” Sothman v. State, 967 N.W.2d 512, 528 (Iowa 2021)
(quoting In re Oliver, 333 U.S. at 270).
The purposes behind the public trial right are best served “by the
public’s ability to [literally] observe the trial.” United State v. Allen,
34 F.4th 789, 795 (9th Cir. 2022); see also State v. Bell, No. A20–1638,
2021 WL 6110117, at *4 (Minn. Ct. App. Dec. 27, 2021) (“[P]revious
opinions indicate that the physical presence of the public observing the
trial is part of the public trial expectation.”), further rev. granted, No. A20–
1638 (Minn. Mar. 15, 2022). “Without publicity, all other checks are
insufficient: in comparison of publicity, all other checks are of small
account. Recordation, appeal, whatever other institutions might present
themselves in the character of checks, would be found to operate rather
as cloaks than checks; as cloaks in reality, as checks only in appearance.”
In re Oliver, 333 U.S. at 271 (quoting 1 Jeremy Bentham, Rationale of
Judicial Evidence 524 (1827)). It is only in its steadfast observation that
the public trial right is preserved. See United States v. Kobli, 172 F.2d 919,
924 (3d Cir. 1949) (“We are in duty bound to preserve the [public trial]
right as it has been handed down to us and this we will do only if we make
sure that it is enforced in every criminal case, even in such a sordid case
as the one now before us.”); Davis, 247 F. at 395 (“The corrective influence
of public attendance at trials for crime was considered important to the
liberty of the people, and it is only by steadily supporting the safeguard
that it is kept from being undermined and finally destroyed.”).
23
The right is not absolute, however, and “may give way in certain
cases to other rights or interests, such as the defendant’s right to a fair
trial or the government’s interest in inhibiting disclosure of sensitive
information.” Waller, 467 U.S. at 45.5 “Such circumstances will be rare,
however, and the balance of interests must be struck with special care.”
Id. That fully closed trials are the rare exception is reflected in the Supreme
Court’s admonition: a presumption of openness may be “overcome only by
an overriding interest based on findings that closure is essential to preserve
higher values and is narrowly tailored to serve that interest.” Id. (emphases
added) (quoting Press-Enter. Co. v. Superior Ct. of Cal., Riverside Cnty., 464
U.S. 501, 510 (1984)). A court may only close a trial to the public if:
1. The party seeking closure identifies an “overriding interest that
is likely to be prejudiced”;
2. The closure is “no broader than necessary to protect that
interest”;
5The right to a public trial can, like other constitutional rights, also be waived or
forfeited if not timely raised in district court, which is what happened in a number of
cases around the country during the pandemic. Defendants who failed to preserve error
were consistently denied relief either under plain-error review or as waived or forfeited
error. See, e.g., Pulczinski v. State, 972 N.W.2d 347, 356 (Minn. 2022) (holding, as a
matter of first impression, that plain-error review applies to unobjected-to public trial
claims despite it being a structural error and that defendant was not entitled to relief
under that standard); Dallas v. State, No. 384, Sept. Term, 2021, 2022 WL 304007, at
*5–10 (Md. Ct. Spec. App. Feb. 2, 2022) (refusing to apply even plain-error review to
defendant’s unpreserved claim of public trial violation); Poe, 2021 WL 5578080, at *2
(“Poe’s ‘failure to object’ forfeited ‘his right [to have his family present at sentencing] . . .
preclud[ing] any subsequent challenge by him of an order excluding the public.’ ”
(alterations and omission in original) (quoting People v. Virgil, 253 P.3d 553, 578 (Cal.
2011))); People v. Hernandez, 488 P.3d 1055, 1063 (Colo. 2021) (en banc) (holding that
the defendant waived his claim of error by failing to “raise th[e] argument below,” without
reviewing for plain error).
24
3. The trial court considers “reasonable alternatives to closing the
proceeding”; and
4. The trial court “make[s] findings adequate to support the
closure.”
Id. at 48.6 We apply this standard to the parallel public trial right under
article I, section 10 of the Iowa Constitution. See Sothman, 967 N.W.2d at
528–29, 529 n.3; Schultzen, 522 N.W.2d at 836.
No doubt, the COVID-19 pandemic presented serious issues for
safely holding jury trials. Courts have universally agreed that “[s]temming
the spread of COVID-19 is unquestionably a compelling interest” that
satisfies the first Waller prong. Allen, 34 F.4th at 797 (alteration in
original) (quoting Roman Cath. Diocese of Brooklyn, 141 S. Ct. at 67); see
also United States v. Davis, No. 3:18–cr–00131–TMB–MMS,
2021 WL 2020479, at *1 (D. Alaska May 20, 2021) (“[T]here is a
substantial reason for the partial closure. In order to reduce the spread of
COVID-19, the District of Alaska currently has protocols in place to protect
the health and safety of the parties, jurors, witnesses, court staff, and
public.”); Henson v. Commonwealth, No. 2020–SC–0343,
6The district court here did not explicitly analyze the Waller factors before ordering
its closure, but its “on-the-record description of the courtroom and its findings regarding”
Brimmer’s public trial objection “implicitly address the Waller factors” sufficiently to
permit appellate review. State v. Modtland, 970 N.W.2d 711, 721 (Minn. Ct. App. 2022).
That said, “[g]oing forward, we encourage district courts to make explicit Waller findings
on the record when they limit courtroom access.” Id. at 723; see also Presley v. Georgia,
558 U.S. 209, 215 (2010) (noting that “in those cases [in which the facts may justify a
courtroom closure], the particular interest [justifying closure], and threat to that interest,
must ‘be articulated along with findings specific enough that a reviewing court can
determine whether the closure order was properly entered’ ” (quoting Press-Enter., 464
U.S. at 510)).
25
2021 WL 5984690, at *3 (Ky. Dec. 16, 2021) (“Public-health guidance at
that time advised social distancing, masking, and quarantining as the
primary means of defense from the virus. . . . Without [courtroom]
closure[s], the social distancing prescribed by the Centers for Disease
Control would have been impossible to maintain.”); Commonwealth v.
Masa, No. 1981CR0307, 2020 WL 4743019, at *3–5 (Mass. Dist. Ct. Aug.
10, 2020) (“There remains a public health emergency in Massachusetts
due to the continuing spread of a novel coronavirus . . . .” (footnote
omitted)).
We join those courts on this point. Our court—along with courts
across the country—placed a moratorium on jury trials for certain time
periods during the pandemic. Yet, we remained acutely aware of the peril
to defendants, protected by their constitutional rights to both a speedy and
a public jury trial, who, like Brimmer, were stuck in jail awaiting trial until
it was deemed safe enough to resume in-person court proceedings. Even
when trials resumed, limiting public gatherings was still a significant
concern, and things like face masks, physical distancing, and COVID
questionnaires had become part and parcel of everyday life. Thus, the
pandemic is an overriding interest that supports the court’s decision to
limit the public’s access to Brimmer’s trial.
But identifying an overriding interest is only the first step to closing
a trial to the public. The district court was also required to tailor any
closure so that it was “no broader than necessary to protect” the identified
26
interest and to consider—and adopt—any reasonable alternatives to a
complete closure. Waller, 467 U.S. at 48.
1. The district court’s exclusion of Brimmer’s family was not narrowly
tailored. As trials resumed, courts around the country adopted measures
to balance COVID precautions with defendants’ rights, and many
subsequently faced constitutional challenges to their modified trial
proceedings. Some courts reconfigured their courtrooms to make space for
at least a limited number of people to attend while maintaining physical
distancing requirements, as Brimmer requested here.7 Others provided
alternative means for the public to observe proceedings, such as
livestreaming a video or audio feed to another location within the
courthouse or over the internet, so that members of the public could view,
or in some instances at least listen, to the trial as it was happening. Courts
utilized YouTube, local television broadcasts, and Zoom teleconferencing
platforms to provide virtual access to the public in real time.8
7See, e.g., United States v. Holder, No. 18–cr–00381–CMA–GPG–0,
2021 WL 4427254, at *9–10 (D. Colo. Sept. 27, 2021) (rejecting motion for new trial on
basis of violating public trial rights where court allowed limited in-person public access
and audio livestreaming via telephone); United States v. Johnson, No. 1:21CR123,
2021 WL 3011933, at *1–2 (N.D. Ohio July 16, 2021) (addressing demand for public trial
by opening trial to limited number of in-person spectators and livestreaming trial to
another courtroom); United States v. Bledson, No. 2:20–cr–99, 2021 WL 1152431, at *2–
3 (M.D. Ala. Mar. 25, 2021) (addressing public trial limitation by allowing defendant’s
family to attend trial in person and providing access to other members of the public
through audiovisual livestream to a separate courtroom and online).
8See, e.g., United States v. Rosenschein, 474 F. Supp. 3d 1203, 1210 (D.N.M.
2020) (concluding that “provid[ing] the public with appropriate electronic access to the
hearing” through Zoom satisfied defendant’s public trial rights during the pandemic);
Vazquez Diaz v. Commonwealth, 167 N.E.3d 822, 838–41 (Mass. 2021) (holding a
sentencing hearing was not closed to the public where it was conducted entirely via Zoom
made accessible to the public “either through a Zoom link where nonparticipants’ video
displays are turned off and sound is muted, or through an audio-only telephone line,”
reasoning “there [was] no limit on who or how many individuals [could] virtually or
telephonically attend the hearing”); Peters v. State, No. 82437, 2022 WL 17367580, at *1
27
While most courts have upheld these various modifications to a
public trial challenge when scrutinized under the Waller test, virtually all
of those cases involved only a partial closure. Cf. Schultzen, 522 N.W.2d at
836 (distinguishing a full closure from a “quasi closure” and applying the
Waller test to conclude the quasi-closure at issue was both no broader
than necessary to protect the identified overriding interest and a
reasonable alternative to entirely closing the proceeding to the public). But
here, all members of the public were excluded from in-person
participation, and no live video, or even audio, feed of the trial was made
available.
We have located only three pandemic-related cases where the
courtroom was deemed to be fully closed to the public. Two cases found
no public trial violation, see Poe, 2021 WL 5578080, at *3–4; Henson, 2021
WL 5984690, at *4, and one did, see Allen, 34 F.4th at 800, but both cases
upholding complete closures are readily distinguishable.
In People v. Poe, a California trial court closed a sentencing hearing
to “the public—including Poe’s family.” 2021 WL 5578080, at *1. Putting
aside Poe’s failure to preserve error, the court of appeals noted it still would
(Nev. Nov. 30, 2022) (concluding public trial rights were preserved where district court
“provided the live stream alternative to ensure the right to a public trial was afforded”);
Williams v. State, ___ S.W.3d ___, ___, ___, 2022 WL 4490406, at *1, *11 (Tex. Crim. App.
Sept. 28, 2022) (rejecting public trial challenge to exclusion of defendant’s brother during
testimony of one witness where the brother was still allowed to view the testimony via a
livestream in an adjacent courtroom and describing the livestreaming accommodation as
“the defining feature of this case”); State v. Williams, No. 55269–8–II, 2022 WL 3043541,
at *4 (Wash. Ct. App. Aug. 2, 2022) (concluding trial was not truly “closed” where public
was provided access through Zoom, YouTube, and local television broadcast even though
YouTube channel went down during a portion of the trial); Lappin v. State, 171 N.E.3d
702, 704–07 (Ind. Ct. App. 2021) (affirming trial court’s decision to limit public
observation of voir dire to an audio-only livestream broadcast to the courthouse lobby).
28
have found no public trial violation given that “the [trial] court’s health and
safety concerns presented an adequate basis for its decision.” Id. at *3.
Poe’s full closure is materially distinguishable in a number of ways. The
defendant there did not contemporaneously raise his public trial rights to
give the district court an opportunity to consider alternatives to complete
closure, the hearing was a sentencing hearing rather than a full trial,
and—most importantly—the hearing took place on March 27, 2020, at the
very beginning of the pandemic. See id. CDC guidance was unclear and
changing daily, and courts had not had time to establish alternative
practices for allowing public access to court hearings while complying with
CDC guidelines.
Henson v. Commonwealth likewise involved a trial held at the
beginning of the pandemic. 2021 WL 5984690, at *1. Jury selection began
on March 12, 2020, the same day the Kentucky Supreme Court issued
Administrative Order 2020-08, to be implemented starting the following
Monday, March 16. Id. at *1–2. In compliance with the Order, the trial
“court limited attendance of the trial to attorneys, parties, and necessary
witnesses” beginning on March 16. Id. at *2. In addressing Henson’s public
trial challenge to the court’s exclusion of his family and friends, the
Kentucky Supreme Court was placed in the unenviable position of
analyzing the Waller factors as applied to its own administrative order. Id.
at *3 (“[O]ur analysis considers whether the Kentucky Supreme Court
fulfilled the Waller test in issuing Order No. 2020-08.”). The court
recognized that while “technologies are [currently] available that provide
29
streaming of proceedings live to any computer or phone with access to the
internet[,] . . . Kentucky’s courts were not equipped with such technology
at the outset of the COVID-19 pandemic,” leaving only “the options of full
closure, closure to spectators, or full access to the public.” Id. Because it
found the administrative order “satisfie[d] the elements of the Waller test[,]
. . . the trial court’s adherence with [it] did not constitute a denial of
Henson’s right to a public trial.” Id. at *4. Even though Henson upheld a
full closure, its reason for doing so—that the district court was faced only
with “the options of full closure, closure to spectators, or full access to the
public,” id. at *3—is inapposite here.
Brimmer’s trial commenced on April 6, 2021, two months after jury
trials in Iowa resumed the second time. By then, jury trials had been
conducted across the state under our July 9 Supervisory Order for a total
of four months—two months in 2020 and another two months starting in
February 2021. That order gave clear direction for courts to permit public
attendance as space allowed and to livestream trials when it did not. July
9 Supervisory Order 4. The district court judge considered Brimmer’s
objection to excluding his family and friends, walking around the
courtroom to study whether space could be made available for the public,
and ultimately concluded that limited space was available. Clearly, then,
there were more options than just full closure or nothing. Nevertheless,
the district court in Dubuque County “simply closed the trial to the
public.” This complete “closure was far more extensive than necessary.”
Waller, 467 U.S. at 49; cf. Bell, 2021 WL 6110117, at *3–4 (explaining the
30
district court only closed the courtroom to in-person spectators and set up
livestreaming “after collaborating ‘extensively with public health officials
to institute safety protocols to protect all necessary parties’ ” and
concluding it “could not safely accommodate any spectators—not even
one—within the courtroom while maintaining the protections in place to
protect all participants from the COVID-19 pandemic”).
When considering the necessary extent of a closure, “the balance of
interests must be struck with special care.” Waller, 467 U.S. at 45. Waller’s
narrow tailoring requirement means the district court must “show that
reasonable alternative measures ‘would fail to achieve the [overriding]
interest[], not simply that the chosen route is easier.’ ” Allen, 34 F.4th at
799 (quoting McCullen v. Coakley, 573 U.S. 464, 495 (2014)); Presley v.
Georgia, 558 U.S. 209, 215 (2010) (per curiam) (“Trial courts are obligated
to take every reasonable measure to accommodate public attendance at
criminal trials.”). Thus, courts must fashion closures to the least-
restrictive alternative possible to serve the asserted overriding interest.9
See Waller, 467 U.S. at 48 (requiring, prior to a courtroom closure, “an
overriding interest that is likely to be prejudiced [by an open proceeding
and] the closure . . . be no broader than necessary to protect that interest,”
i.e., the overriding interest threatened by a public hearing (emphasis
added)).
9“Like some of the tests applied to government actions under the Equal Protection
Clause and First Amendment, Waller’s test requires a strong government interest in the
closure and a narrowly tailored means of effecting it.” Stephen E. Smith, The Online
Criminal Trial as a Public Trial, 51 Sw. L. Rev. 116, 129 (2021) (footnote omitted).
31
Striking a proper balance means allowing at least the defendant’s
family to attend if possible within the parameters of the overriding interest,
see In re Oliver, 333 U.S. at 271–72 (“[A]n accused is at the very least
entitled to have his friends, relatives and counsel present, no matter with
what offense he may be charged.”), as was done by other courts during
COVID, see, e.g., United States v. Holder, No. 18–cr–00381–CMA–GPG–01,
2021 WL 4427254, at *9–10 (D. Colo. Sept. 27, 2021) (court allowed
limited in-person public access during COVID); United States v. Johnson,
No. 1:21CR123, 2021 WL 3011933, at *2 (N.D. Ohio July 16, 2021)
(closing voir dire to in-person spectators, but opening trial to limited
number of in-person spectators); United States v. Bledson, No. 2:20–cr–
99–RAH, 2021 WL 1152431, at *3 (M.D. Ala. Mar. 25, 2021) (allowing
defendant’s family to attend in person). That’s because “[o]f all members
of the public, a criminal defendant’s family and friends are the people most
likely to be interested in, and concerned about, the defendant’s treatment
and fate, so it is precisely their attendance at trial that may best serve the
purposes of the Sixth Amendment public trial guarantee.” Tinsley v. United
States, 868 A.2d 867, 873 (D.C. Cir. 2005) (per curiam).
Here, the court’s overriding interest (maintaining COVID safety
protocols) was narrowly served by limiting public attendance only to the
extent necessary to comply with physical-distancing requirements. But as
the jury-selection process reveals, and as the district court itself
recognized, additional people could fit inside the courtroom while still
maintaining our COVID-19 protocols.
32
Eighteen potential jurors sat in the gallery during the first round of
jury selection, but only thirteen jurors actually heard the case, leaving five
empty seats in the gallery during trial. Five jurors sat in the jury box
during the second round of selection, but no one sat in the jury box during
the trial (except the victim advocate during the victim’s testimony). The
district court explicitly conceded there was room both in the jury box and
along the back windows in the gallery for public spectators, stating,
“Technically, and from a spacing standpoint, I think it would [work,] I
think we can fit some people up in the jury box” and, “The only place we
could possibly fit [the] public would be those benches against the back
windows.” Thus, according to the court’s own assessment, allowing at least
Brimmer’s mother to attend would not have compromised its asserted
overriding interest in stemming the spread of COVID-19. During trial she
could have been seated in one of the five then-empty seats along the back
window that had been filled with jurors during jury selection or in one of
the five available seats in the then-empty jury box.10 The court was even
prepared to allow additional people who “h[ad] a purpose” in the trial, such
as “another attorney,” an “assistant,” an “interpreter,” or the victim’s
advocate—who the court did in fact allow to attend in person.11
10In all, there appear to be ten seats in the courtroom that had been used for
prospective jurors that were empty during trial. The district court could have allowed
three or four people in addition to Brimmer’s mother and still have left over half of those
seats empty.
11While a victim has a statutory right to insist on the presence of a victim’s
advocate, see Iowa Code § 915.20(2), Brimmer’s right to insist on his mother’s presence
is constitutional, In re Oliver, 333 U.S. at 271–72.
33
The district court’s more direct concern with seating Brimmer’s
mother, it seems, was its discomfort at having spectators sit near jurors
in the gallery or sit closer to the witness stand than it would normally
allow. As it explained:
I don’t want people from the public seated really close to the
witness stand up in front where the jury box is. I don’t want
people from the public on either side sitting right next to or
right behind the jurors because I want the jurors to feel like
it’s safe and that I don’t want them to overhear anything. I
don’t want them to feel intimidated in any way.
....
[E]ven [if the public sat in the available space in the back of
the courtroom], they’re going to be seated about six feet behind
the second row of jurors, and I’m not -- I’m just not comfortable
with that. I don’t want -- even if somebody says something
unintentionally by reaction without any intention to cause any
influence, I don’t want the jurors seated that close to the public
where they can overhear something that they shouldn’t hear.
(Emphases added.)
In other words, the district court was worried her presence would
compromise “[t]he generic risk of jurors overhearing prejudicial remarks,”
a concern the Supreme Court has explicitly held cannot override a
defendant’s constitutional right to a public trial absent more specific
findings. Presley, 558 U.S. at 215 (“If broad concerns of this sort were
sufficient to override a defendant’s constitutional right to a public trial, a
court could exclude the public from jury selection almost as a matter of
course.”). Neither the district court nor the State cited any concrete,
specific facts that would warrant concerns over “improper
communications with jurors” if Brimmer’s mother sat in the jury box or
along the back windows, and we find none in the record. Id.; see also
34
United States v. Gupta, 699 F.3d 682, 687–90 (2d Cir. 2012) (holding that
exclusion of defendant’s brother and girlfriend during voir dire was not
justified by “ ‘the large number of jurors in the venire panel’ and the need
‘to protect the panel from hearing anything about the case from any
member of the public present,’ ” a circumstance so well acknowledged the
government conceded the fact).
Thus, by simply closing the courtroom to all spectators, “the closure
was far more extensive than necessary.” Waller, 467 U.S. at 49. We
recognize that the pandemic created havoc for everyone, including trial
courts. We also recognize that the district court here made a sincere effort
to physically reconfigure the courtroom to meet Brimmer’s request to allow
at least a few members of the public into the courtroom. The seating
options were not ideal and ordinarily would likely not have been allowed.
But when the court conceded it could do so and still comply with our
physical distancing directives, it had an obligation to do more than slam
shut the courtroom door. Precluding Brimmer’s mother from attending in
person violated his public-trial rights.
2. The district court failed to consider reasonable alternatives to full
closure. Even if spacing limitations due to COVID did require excluding all
members of the public from attending a trial in person under the second
Waller prong, the third prong requires district courts to then consider any
reasonable alternatives that would better protect defendants’ rights than
prohibiting all public access. Thus, when the district court here decided
that COVID required it to close the trial to all in-person spectators, it was
35
still required to consider whether reasonable alternatives would allow at
least some access for the public to view the trial to protect Brimmer’s rights
as much as possible. We conclude the district court also failed to satisfy
this factor because it unreasonably rejected the alternative of
livestreaming Brimmer’s trial.
The Supreme Court has made clear that courts are obligated to
consider, and provide, reasonable alternatives, regardless of whether the
defendant specifically requested or offered any. See Presley, 558 U.S. at214–15; see also Allen, 34 F.4th at 799 (“[T]he district court had an
obligation to sua sponte consider alternatives ‘even when they are not
offered by the parties.’ ” (quoting Presley, 558 U.S. at 214)); Moss v. Colvin,
845 F.3d 516, 520 (2d Cir. 2017) (recognizing that Presley v. Georgia
clarified the district court’s responsibility under the third Waller prong to
consider alternatives even if not offered by the defendant); Johnson v.
Sherry, 465 F. App’x 477, 480 (6th Cir. 2012) (“[Presley] clarified that when
a party objects to closure, but does not propose alternatives, the judge
must think of some sua sponte.”). So whether Brimmer requested, or even
wanted, livestreaming as an alternative makes no difference in this
analysis.12
12The State suggests in a footnote to its brief that because Brimmer did not ask
for livestreaming at trial and does not push it on appeal, we should not consider it here.
That livestreaming was not Brimmer’s preferred method for providing a public trial does
not preclude livestreaming from satisfying his demand for one. Brimmer might not have
wanted livestreaming, but neither did any of the defendants in the numerous cases where
courts around the country found that livestreaming saved district courts from violating
the defendant’s demand for a public trial. See, e.g., Bell, 2021 WL 6110117, at *3–5
(“Asserting his Sixth Amendment right to a public trial, Bell moved to allow members of
his family and the general public to observe his trial from within the courtroom. The
district court [found] . . . there was no way to safely accommodate members of the public
36
In Presley v. State, the Georgia Supreme Court upheld a complete
closure of Presley’s voir dire, relying on “the general appellate precept that
one who objects to an action of the trial court must raise the issue at the
time of the trial court’s action . . . or else forfeit review” to conclude that
Presley was not entitled to relief because he suggested “no alternatives” to
closure other than “a nebulous request for ‘accommodation.’ ”
674 S.E.2d 909, 911–12 (Ga. 2009). On certiorari to the United States
Supreme Court, the Georgia Supreme Court’s reasoning was rejected
because it “contravened th[e United States Supreme] Court’s clear
precedents.” Presley, 558 U.S. at 209. The Court considered it well-settled
“that trial courts are required to consider alternatives to closure even when
they are not offered by the parties.” Id. at 214 (emphasis added). The
Supreme Court’s holding in Presley makes clear that once the public trial
right is raised, courts have an obligation to provide as open a trial as
possible—even if that means providing an alternative not identified, or
even wanted, by the defendant.
Considering alternatives under the third Waller prong is a crucial
part of the underlying analysis of whether any closure is narrowly tailored.
See Allen, 34 F.4th at 798 (“The existence of reasonable alternatives . . .
within the courtroom[,] but livestreaming the proceedings in an adjacent courtroom
satisfied the ‘predominant policy considerations’ of Bell’s constitutional rights.”).
Brimmer adequately argued livestreaming as an alternative that should have been
considered when he cited Waller and related cases in his opening brief, arguing the trial
court’s complete closure of the courtroom failed to consider all reasonable alternatives.
And in his reply brief, he distinguished cases cited by the State that recognized
livestreaming as a reasonable alternative from this case, where the court ordered a
complete closure. Livestreaming as a reasonable alternative is properly before us.
37
sheds light on whether closure restrictions are narrowly tailored.”).
“Absent consideration of alternatives to closure, . . . trial court[s] c[an] not
constitutionally close [proceedings],” Presley, 558 U.S. at 214 (quoting
Press-Enter., 464 U.S. at 511), and “[t]rial courts are obligated to take every
reasonable measure to accommodate public attendance at criminal trials,”
id. at 215 (emphasis added). As such, courts must not only consider, but
must “accept [an] alternative when it would be reasonable to do so and
unreasonable to refuse to do so.” Gibbons v. Savage, 555 F.3d 112, 118
(2d Cir. 2009) (“[Although] the precise words of Waller were that the court
is obliged to ‘consider reasonable alternatives,’ we do not think the
obligation is discharged if the court considers a reasonable alternative but
then unreasonably rejects it.” (quoting Waller, 467 U.S. at 48)). If, under
the third Waller factor, a reasonable, more narrowly-tailored option exists,
failure to implement that option in favor of a less narrowly-tailored one
makes the closure fail under both Waller factors.
Here, we are not faulting the district court for failing to consider
extraordinary alternatives we conjured up after the fact. In fact, the district
court actually considered livestreaming as an alternative but rejected it.
Our role on de novo review is to determine whether, “in light of the totality
of the circumstances,” the district court’s refusal to accommodate
livestreaming complied with Waller’s directive to ensure closures are no
broader than necessary and consider all reasonable alternatives.
Schultzen, 522 N.W.2d at 835–36.
38
In United States v. Allen, the United States Court of Appeals for the
Ninth Circuit canvassed the broad array of reasonable alternatives to
complete closure courts around the country adopted to keep trials as open
as possible during the pandemic. 34 F.4th at 798–99. “In determining
whether the district court erred in not adopting less restrictive
alternatives” to an audio-only livestream of the defendant’s trial, otherwise
closed to the public, the court found “the availability of [such] alternatives”
persuasive in its analysis, such as “allow[ing] only a small number of
public attendees”; adopting screening measures such as “temperature
checks, . . . mask[s], and answer[ing] a health questionnaire”; or providing
“a live video feed of the trial.” Id. Because “other jurisdictions [had]
address[ed] the pandemic using more targeted means,” the Ninth Circuit
concluded that “the district court . . . had ‘too readily forgone options that
could serve its interests just as well, without substantially burdening’
Allen’s public trial right.” Id. at 799 (quoting McCullen, 573 U.S. at 490
(holding that a Massachusetts statute violated the Free Speech Clause of
the First Amendment because it was not “narrowly tailored to serve a
significant governmental interest”)). Notably, that district court was
considering courtroom modifications in September 2020, and other courts
had figured out less restrictive alternatives to complete closure by that
time.
We find Allen’s reasoning persuasive. Here, if the district court
believed it was truly necessary to exclude all spectators from attending in
person to protect against COVID, it would have been reasonable for the
39
district court to livestream the trial as an alternative to completely closing
the courtroom, and it was therefore unreasonable not to do so. In
considering livestreaming, the court stated it did not have the capabilities
to stream the trial to “another courtroom or publicly somehow,” otherwise
it “would do that.” It concluded that unless the State provided “somebody
to do that,” the court “can’t run that” itself. While livestreaming would have
posed additional work on the court, it was work that—under the
circumstances—was required to ensure constitutional compliance.
First, other than two cases involving trials held in April 2020, before
livestreaming was as readily available, see Poe, 2021 WL 5578080, at *1;
Henson, 2021 WL 5984690, at *2–3, courts around the country
consistently provided a live video or audio feed, streamed to another
location within the courthouse or over the internet, as an alternative
means for the public to observe the trial as it was happening. See Allen,
34 F.4th at 798–99 & nn. 5–6 (identifying numerous courts that had made
virtual accommodations by the fall of 2020).
Second, our July 9 Supervisory Order directed the district court to
make arrangements for livestreaming nine months prior to Brimmer’s trial.
His was not the first trial to be held in Dubuque County during the
pandemic, and the district court admitted it had “simply closed the trial to
the public” in the few trials conducted to that point, despite our directive.
Whether a district court complied with relevant supervisory orders is
germane to our assessment of whether it considered reasonable and less
restrictive alternatives. Compare State v. Modtland, 970 N.W.2d 711, 722–
40
23 (Minn. Ct. App. 2022) (holding district court’s adherence to Minnesota
Judicial Branch’s Preparedness Plan by configuring courtroom to comply
with six-foot physical distancing requirement and livestreaming
proceedings to separate courtroom open to the public showed it
“considered all reasonable alternatives”), with Allen, 34 F.4th at 793
(“Notwithstanding” COVID-19 orders allowing limited in-person access to
courtrooms, “the judge presiding over Allen’s proceedings adopted
additional COVID restrictions” by “preclud[ing] members of the public from
entering”). It also further distinguishes this case from Henson, which
involved a complete closure implemented in compliance with that court’s
COVID-19 administrative order. See 2021 WL 5984690, at *2–4.
And finally, the record reveals the district court had the capability
to livestream the trial through a videoconferencing system that could have
been made available to the public. It had conducted three hearings in
Brimmer’s case using the GoToMeeting videoconferencing platform: a bond
review hearing held on November 23, 2020; a hearing on Bon-Orduno’s
motion to sever held on March 1, 2021; and a hearing on the State’s motion
in limine held on April 5, 2021. Using the same technology the court had
already used throughout Brimmer’s case would have provided a
reasonable alternative to excluding the public from the trial altogether.
See, e.g., United States v. Rosenschein, 474 F. Supp. 3d 1203, 1210
(D.N.M. 2020) (using Zoom to livestream a hearing to the public); Vazquez
Diaz v. Commonwealth, 167 N.E.3d 822, 838 (Mass. 2021) (same); State v.
41
Williams, No. 55269–8–II, 2022 WL 3043541, at *4 (Wash. Ct. App. Aug.
2, 2022) (same).
Accordingly, considering our July 9 Supervisory Order, the district
court’s colloquy about livestreaming, the fact that the district court had
previously used GoToMeeting three times in Brimmer’s case alone, and the
fact that federal and state courts across the country were making similar
accommodations for remote access to proceedings during the pandemic,
we must conclude that the district court took the easier route rather than
utilizing a reasonable alternative that would have more narrowly limited
the intrusion on Brimmer’s right to a public trial. By April 2021, the
district court should have made the trial accessible to the public via
livestreaming, particularly when it closed it to all in-person spectators. It
had available a reasonable alternative to cutting off all public view of
Brimmer’s trial, and it violated his right to a public trial when it failed to
use that alternative.
V. Remedy.
Depriving a criminal defendant of his right to a public trial is a
structural error. See Weaver v. Massachusetts, 137 S. Ct. 1899, 1905
(2017) (plurality opinion). Structural errors are “structural” because they
affect “the framework within which the trial proceeds,” “infect the entire
trial process,” and undermine the ultimate “determination of guilt or
innocence.” Neder v. United States, 527 U.S. 1, 8–9 (1999) (first quoting
Arizona v. Fulminante, 499 U.S. 279, 310 (1991); then quoting Brecht v.
Abrahamson, 507 U.S. 619, 630 (1993); then quoting Rose v. Clark,
42
478 U.S. 570, 578 (1986)). As opposed to “trial errors,” structural errors
“defy analysis under the harmless error standard.” Thongvanh v. State,
938 N.W.2d 2, 13 (Iowa 2020).
The importance of the public-trial right is not merely an academic
exercise. Its importance is precisely why such errors virtually always
require reversal. What is academic when a structural error exists is
whether the error actually affected the trial process. Even if, beyond a
reasonable doubt, it did not, “the government is not entitled to deprive the
defendant of a new trial.” Weaver, 137 S. Ct. at 1910; see also Lawrence,
167 N.W.2d at 919 (reversing murder conviction and remanding for a new
trial when public was unjustifiably excluded from trial during reading of
jury instructions). Allowing such errors to go uncorrected simply because
correcting them may be difficult or may subject witnesses to the retrial of
an unsavory case erodes the fundamental character of the constitution
and places our judgment as to the value of its protections in individual
cases ahead of the judgment it consecrates. The violation of Brimmer’s
constitutional rights is therefore reversible error. See Lawrence, 167
N.W.2d at 919.
VI. Conclusion.
The State presented sufficient evidence to sustain Brimmer’s
conviction for second-degree sexual abuse. But Brimmer’s constitutional
right to a public trial was violated, and he is entitled to a new trial.
REVERSED AND REMANDED.
43
McDonald, J., joins this opinion, McDermott and May, JJ., join
except as to section IV.B.2, and Christensen, C.J., and Mansfield and
Waterman, JJ., join only as to part III. Mansfield, J., files an opinion
concurring in part and dissenting in part, in which Christensen, C.J., and
Waterman, J., join. May, J., files a special concurrence, in which
McDermott, J., joins.
44
#21–0744, State v. Brimmer
MAY, Justice (concurring specially).
Ronald Brimmer had a constitutional right to a public trial. Even so,
the district court declined to allow members of the public to observe. Not
even Brimmer’s mother.
It didn’t have to be that way. The district court acknowledged that
there was room for at least some spectators in the courtroom. Indeed,
during jury selection, the courtroom had accommodated twenty potential
jurors at a time. And after jury selection was done, the court said that
additional people could attend if—in the court’s view—those people “have
a purpose” in the trial. For example, the court said that it would be
permissible to have “another attorney,” an “assistant,” an “interpreter,” or
a victim’s advocate in the courtroom.13 And the court actually allowed a
victim’s advocate to attend during part of the trial. Yet the court refused
to admit Brimmer’s mother at all.
Like the majority, I believe her exclusion was a constitutional
violation. “A defendant’s right to a public trial is protected by both the
13When asked about whether a victim’s advocate would be allowed, the court made
this record:
I should say, we have in other trials -- if [the prosecuting attorney]
had another attorney from his office that wanted to sit at the table with
him, even for part of the trial or if you had another attorney or an assistant
that came in, I would allow that to happen, just not the public, and I don’t
really consider the advocate, who’s only going to be here during the
testimony of the victim and then will leave, I don’t consider that to be
somebody from the public. They actually have a purpose with this trial. It’s
sort of like if we needed an interpreter for one of the jurors, we’d allow the
interpreter even though we’re not allowing the public. So, yes, I will allow
the advocate.
(Emphases added.)
45
United States and Iowa Constitutions.” Sothman v. State, 967 N.W.2d 512,
528 (Iowa 2021) (citing U.S. Const. amend. VI; Iowa Const. art. I, § 10).
The public trial right protects the defendant’s right to have the defendant’s
family present. In re Oliver, 333 U.S. 257, 271–72 (1948) (“[A]n accused is
at the very least entitled to have his friends, relatives and counsel present,
no matter with what offense he may be charged.”). Indeed, “[o]f all
members of the public, a criminal defendant’s family and friends are the
people most likely to be interested in, and concerned about, the
defendant’s treatment and fate, so it is precisely their attendance at trial
that may best serve the purposes of the Sixth Amendment public trial
guarantee.” Tinsley v. United States, 868 A.2d 867, 873 (D.C. 2005) (per
curiam). From a constitutional perspective, then, Brimmer’s mother had
an important purpose in the trial.
Of course, the right to public trial is not absolute. See id. at 874.
Limits can be imposed if all four of these Waller requirements are met:
1) the party seeking to close the hearing must advance an
overriding interest that is likely to be prejudiced,
2) the closure must be no broader than necessary to protect
that interest,
3) the trial court must consider reasonable alternatives to
closing the proceeding, and
4) the trial court must make findings adequate to support the
closure.
State v. Hightower, 376 N.W.2d 648, 650 (Iowa Ct. App. 1985) (citing
Waller v. Georgia, 467 U.S. 39, 48 (1984)).
In this case, COVID safety and overall trial fairness were certainly
“overriding interest[s]” that the district court had to address. See id. But
46
the extent of the district court’s closure—the exclusion of even the
defendant’s mother—was “broader than necessary to” address those
concerns. See id. Again, the court acknowledged there was room for extra
people. The court was prepared to allow extra people—an extra attorney,
an assistant, an interpreter, a victim advocate14—whom the court
considered to have a purpose in the trial. If there was room for them,
couldn’t there have been room for Brimmer’s mother?
A final note on procedure: I acknowledge the dissent’s points about
preservation of error and waiver of arguments on appeal. But those
concerns appear limited to the district court’s failure to livestream the trial.
And even if we assume Brimmer has waived any complaint about
livestreaming, the same is not true of Brimmer’s complaints about his
mother’s exclusion. Those complaints were preserved below and properly
presented in his appellate brief. Those complaints can—and I believe
should—provide grounds for Brimmer to receive a new trial—this time
open to the public.
McDermott, J., joins this special concurrence.
14A victim has a statutory right to insist on the presence of a victim counselor,
also referred to as a “victim’s advocate.” See Iowa Code § 915.20(2) (2018). But Brimmer’s
right to insist on his mother’s presence is constitutional. Oliver, 333 U.S. at 271–72.
47
#21–0744, State v. Brimmer
MANSFIELD, Justice (concurring in part and dissenting in part).
I concur in part and dissent in part. I agree there was sufficient
evidence to sustain Ronald Brimmer’s second-degree sexual abuse
conviction as set forth in Part III of the court’s opinion. I dissent from the
majority’s decision to order a new trial in Part IV based on a violation of
Brimmer’s public trial rights.
The lead opinion concedes that livestreaming the proceedings would
have been a “reasonable alternative” to allowing spectators in the
courtroom.15 In fact, this alternative was approved in our court’s
COVID-related supervisory order. Iowa Sup. Ct. Supervisory Order, In the
Matter of Resuming In Person Court Services During COVID-19 4–5 (July 9,
2020) [hereinafter July 9 Supervisory Order]. Thus, to the extent there was
error below, it was in failing to make this alternative available.
But Brimmer wasn’t interested in this alternative at the time of trial
and isn’t interested in it now on appeal. I would hold both that he failed to
preserve error and that he waived any claim relating to failure to provide
livestream access. And since this was the only potential constitutional
error under the circumstances, I would affirm.
15Part IV.B.1 of Justice Oxley’s opinion, which reverses the district court for failing
to grant spectators in-person access, is joined by four members of the court and speaks
for a majority. Part IV.B.2, which would also reverse the district court for failing to grant
livestream access, is only joined by two members of the court. Thus, in discussing part
IV.B.1, I will refer to “the majority,” while in discussing part IV.B.2, I will refer to “the lead
opinion.”
48
Much of the discussion of public trial rights in the majority opinion
is well-stated, and I agree with it. However, in this case, it is essentially
academic. I see no reason to put someone who was serially raped by two
men as a sixteen-year-old through another trial simply to make an
academic point about the importance of the public trial right. The victim’s
impact statement is gut-wrenching and describes a suicide attempt, the
loss of a job, and having “[m]y adolescence . . . ripped away from me
against my will by these two men.”
One other point bears emphasis. Brimmer was not “stuck in jail”
awaiting trial due to forces beyond his control. Before the commencement
of the pandemic, Brimmer had waived speedy trial. At the outset of the
pandemic, Brimmer retracted this waiver. Brimmer then sought a bond
review, and his bond was reduced to $10,000 cash or surety. Brimmer
posted bond, and on August 8, 2020, he was released.16 However, on
October 26, Brimmer was charged with domestic abuse assault with
injury. As a result, Brimmer was rearrested and remained in detention
until his trial. While in jail, Brimmer allegedly continued to call the
girlfriend he had assaulted in violation of the no-contact order. In short,
16Notably, our COVID supervisory orders encouraged judicial officers to consider
available pretrial release options under Iowa Code chapter 811. See, e.g., Iowa Sup. Ct.
Supervisory Order, In the Matter of Ongoing Provisions for Coronavirus/COVID-19 Impact
on Court Services 7 (May 22, 2020). Brimmer had been charged with—and was later
convicted of—a class “B” felony. Originally, Brimmer’s bond had been set at $25,000, the
amount set forth in the uniform bond schedule for a class “B” felony. Thus, one can fairly
conclude that Brimmer benefited from the court’s COVID supervisory orders in obtaining
a bond reduction and pretrial release—at least temporarily.
49
but for his own misconduct after his release, Brimmer would have been
free pending trial.
I. Background.
COVID remains an unprecedented event in our state’s and our
nation’s history—a highly contagious respiratory disease that has killed
over one million Americans and over 10,000 Iowans.17 In 2020, national
life expectancy declined by nearly two years largely because of COVID.18
In 2021, it declined by another year.19 In other words, by 2021, the average
expected lifespan of an American was almost three years less than it had
been in 2019.
On March 14, 2020, our court ordered a stop to all jury trials in the
state. Iowa Sup. Ct. Supervisory Order, In the Matter of Ongoing
Preparation for Coronavirus/COVID-19 Impact on Court Services 2 (Mar. 14,
2020). Jury trials restarted in September 2020, but following a surge in
infections, our court again ordered a halt to jury trials in November 2020.
Iowa Sup. Ct. Supervisory Order, In the Matter of Ongoing Provisions for
Coronavirus/COVID-19 Impact on Court Services 1–2 (Nov. 10, 2020). Jury
trials did not resume until February 2021. See id.17Ctrs. for Disease Control & Prevention, COVID Data Tracker,
https://covid.cdc.gov/covid-data-tracker/#datatracker-home [https:perma.cc/78DG-
HZVD]; Iowa Dep’t of Pub. Health, COVID-19 Reporting, https://idph.iowa.gov/emerging-
health-issues/novel-coronavirus/COVID-19-reporting [https://perma.cc/GP4U-TPBG].
18Press
Release, Ctrs. for Disease Control & Prevention, Life Expectancy in the U.S.
Dropped for the Second Year in a Row in 2021 (Aug. 31, 2022)
https://www.cdc.gov/nchs/pressroom/nchs_press_releases/2022/20220831.htm#:~:t
ext=That%20decline%20%E2%80%93%2077.0%20to%2076.1,its%20lowest%20level%2
0since%201996 [https://perma.cc/N9DR-SVZP].
19Id.
50
Our court had previously issued the following order as to the
resumption of in-court proceedings:
If the courtroom doesn’t have sufficient space to seat
spectators with appropriate physical distancing, courts shall
set up live feeds of public court proceedings in another room
in the courthouse (or, as necessary, streaming online or by
videoconference) to permit simultaneous viewing by anyone
unable to attend because of space or health limitations.
July 9 Supervisory Order 4–5. Thus, we made clear that video access was
the approved alternative when in-person access was not feasible.
April 5, 2021, the day before Brimmer’s trial began, was the first day
that the COVID vaccine became available to all adults in Iowa.20
Previously, the vaccine had been rationed based on occupation, health
status, and age; most adults were not eligible.21 Moreover, most forms of
the vaccine required two doses several weeks apart.22 Thus, when
Brimmer’s trial commenced on April 6, only a fraction of adult Iowans had
been fully vaccinated.23
As the COVID pandemic wore on, opinions began to diverge about
how to respond to the virus. Iowans came to hold different views about the
value of vaccination, face masks, and social distancing. But as a court, we
20Iowa Dep’t of Pub. Health, COVID Vaccine Administration Policy (April 5, 2021).
21Iowa Gov. Kim Reynolds Press Conference, Iowa PBS, at 8:50–8:56 (Jan. 21,
2021) https://www.iowapbs.org/shows/governorpress/episode/3586/iowa-gov-kim-
reynolds-press-conference-january-21-2021-1110-am.
22See generally Ctrs. for Disease Control & Prevention, COVID-19 Vaccine Interim
COVID-19 Immunization Schedule for Persons 6 Months of Age and Older (Dec. 8, 2022)
(providing immunization schedule for various vaccines and ages, including timelines for
additional vaccine doses), https://www.cdc.gov/vaccines/covid-19/downloads/COVID-
19-immunization-schedule-ages-6months-older.pdf [https://perma.cc/U46C-JJ3F].
23Iowa Gov. Kim Reynolds Press Conference, Iowa PBS, at 6:16–6:32 (Apr. 7, 2021)
https://www.iowapbs.org/shows/governorpress/episode/3569/iowa-gov-kim-reynolds-
press-conference-april-7-2021-1100-am.
51
had to take a conservative approach. In the midst of a pandemic, we were
asking citizens not merely to be absent from their jobs and their regular
responsibilities but also to mingle in a room with strangers for a prolonged
time. We were concerned about having enough jurors willing to serve; we
were concerned about our trials being the reason why a juror got sick, or
worse; and we were concerned about having juries that represented a fair
cross-section of the community. Juries need to include people with
different perspectives, including different perceptions of risk.
II. The District Court Did Not Commit Reversible Error in
Declining to Allow Spectators to Attend the April 2021 Trial in
Person.
I would find no error in the court’s refusal to allow members of the
public to attend the trial in person. Missing from the lengthy majority
opinion is an actual summary of the trial court record on this point. That’s
surprising, because the record is brief and easy to summarize.
On April 5, 2021, the day before trial, the district court—at the
prosecutor’s suggestion—allowed the parties to make a record on the
public trial issue. The court explained that during the trial, the jury would
be using the seats in the gallery to meet social-distancing requirements.
The court did not believe it would be appropriate to allow spectators to sit
in the same area because “those people would have to sit very close
to -- either right next to or right behind the jurors.” The court elaborated,
[W]e want the jurors to feel, number one, that they don’t have
people sitting too close to them during this time of Covid, and,
number two, that we don’t have people sitting close enough to
the jurors that the jurors either hear something they shouldn’t
hear or that the jurors feel in some way intimidated by either
side.
52
Brimmer’s counsel was asked if there was “any record [she] want[ed]
to make.” She raised the possibility of having spectators sit in the jury box.
The court explained why this might be problematic:
They’d be up seated in front of the bar. They would be directly
behind one of the counsel tables because we’ve turned the
counsel tables a little bit inward to face each other. They’d
also be seated up front pretty close to the witness stand.
Nevertheless, the court said it would “walk around the courtroom
this afternoon and think about that a little bit.” In the meantime,
Brimmer’s counsel said she would discuss with Brimmer to discuss
“whether he’s really wanting to enforce his right to a public trial or what
we can work out.”
The next morning, as trial was to begin, the court advised the parties
of its final decision:
[L]ogistics in the courtroom make it really, really difficult to
have anybody from the public in because the jurors will be
evenly spaced out in the back of the courtroom, and anybody
from the public is going to be seated very close to the jurors,
and I’ve said all along that everything is not functioning
perfectly ideal during Covid. One of my goals is to make this
trial open to the public, but my very first goal is to make sure
we have a fair trial for the State, for the Defendant and that
it’s fair in every way to all witnesses as well, including any
witness who may testify as a victim. I don’t want people from
the public seated really close to the witness stand up in front
where the jury box is. I don’t want people from the public on
either side sitting right next to or right behind the jurors
because I want the jurors to feel like it’s safe and that I don’t
want them to overhear anything. I don’t want them to feel
intimidated in any way.
At the end of that day, following jury selection, Brimmer’s counsel
made an additional record by asking that “just one person”—Brimmer’s
mother—be allowed to attend the trial in person. The district court
53
responded by asking counsel whether counsel had discussed with
Brimmer the possibility of a continuance. Counsel said that her client was
not interested in a continuance and pointed out that Brimmer had been
incarcerated most of the time prior to trial.24
I find no error in the district court’s decision not to allow in-person
public attendance under the circumstances. The court thought carefully
about the matter, even deliberating on it further overnight, and then
articulated clear and cogent reasons why it wouldn’t work. See Waller v.
Georgia, 467 U.S. 39, 48 (1984) (“[T]he closure must be no broader than
necessary to protect [an overriding interest that is likely to be prejudiced],
the trial court must consider reasonable alternatives to closing the
proceeding, and it must make findings adequate to support the closure.”).
“[N]ot every courtroom closure deprives a defendant of the right to a
public trial under the Sixth Amendment.” Morales v. United States, 294
F. Supp. 2d 174, 178 (D. Conn. 2003) (finding no error in closure of
courtroom during voir dire where the entire gallery space was needed for
prospective jurors). The record—limited though it is—indicates that the
district court had two understandable concerns. First, jurors needed to
feel protected from avoidable COVID transmission. Second, it was
important for jurors and witnesses not to be intimidated by the close
presence of spectators. The district court is right: A fair trial is important,
24As noted, Brimmer forfeited his pretrial release when he assaulted his girlfriend.
54
and it can be an “overriding interest” under Waller v. Georgia. See 467 U.S.
at 45.
COVID cases from around the country have upheld similar
courtroom closures where a video stream was provided. See United States
v. Ansari, 48 F.4th 393, 402–3 (5th Cir. 2022) (upholding closure of a May
2021 trial to the public where a video stream was provided, stating, “This
reasonable and exceedingly nonintrusive means of balancing Ansari’s right
to a prompt public trial with the countervailing need to conduct the trial
in a COVID-sensitive manner is simply not unconstitutional. . . . Because
the Sixth Amendment does not require a district court to render a
particularized dissertation to justify a partial courtroom closure that is
reasonable, neutral, and largely trivial (i.e., requiring spectators to watch
and listen on livestream rather than in-person), the district court’s partial
closure of Ansari’s jury trial was not unconstitutional.” (footnote omitted));
Henson v. Commonwealth, No. 2020-SC-0343-MR, 2021 WL 5984690, at
*4 (Ky. Dec. 16, 2021) (holding that a digital recording is sufficient to serve
the purposes of a public trial, which is for spectators to “see for themselves
how their laws are impartially applied,” and that supporters’ in-person
absences do not cause unfair prejudice against the defendant); State v.
Modtland, 970 N.W.2d 711, 722–23 (Minn. Ct. App. 2022) (finding no
public trial violation in only allowing trial participants and courtroom staff
in the courtroom while also providing a live video stream); State v. Bell,
No. A20-1638, 2021 WL 6110117, at *5 (Minn. Ct. App. Dec. 27, 2021)
(holding that livestreaming a case to an adjacent courtroom did not violate
55
the defendant’s public trial rights); Peters v. State, No. 82437, 2022 WL
17367580, at *1 (Nev. Nov. 30, 2022) (“In accordance with then existing
health directives, the district court had an overriding interest to ensure
public health and safety protections and provided the live stream
alternative to ensure the right to a public trial was afforded.”).
Brimmer argues that his request to have his mother alone attend
the trial could have been granted. But the right is to a public trial, not a
trial attended only by a relative of the defendant. The district court could
not have accommodated Brimmer’s mother while refusing, for example, to
accommodate the mother of the victim if she wanted to attend. And, the
district court explained that the problem was not simply the number of
people in the courtroom but also having a mix of spectators and jurors
seated in the same area. See Bell, 2021 WL 6110117, at *4 (“Bell relies on
recent examples and persuasive federal opinions in which the court found
that despite the COVID-19 pandemic, the defendant was entitled to have
one or two family members present at trial. However, none of these
opinions stand for the proposition that by not allowing Bell’s family
members in person, the district court’s closure and related findings
necessarily failed to satisfy the Waller factors.”).
It is noteworthy that at the time of Brimmer’s trial, some states were
still not allowing jury trials at all. For example, Connecticut and Arkansas
did not resume jury trials until June and May 2021, respectively.25 Alaska
25See Statement from Chief Court Administrator Patrick L. Carroll III, Conn. Jud.
Branch, Resumption of Jury Trials in State Courts (May 18, 2021),
https://jud.ct.gov/COVID19/htm [https://perma.cc/H72T-NPV8]; In re Response to the
56
did not resume misdemeanor jury trials until April 19, and it did not
resume felony trials until June.26 Louisiana and Tennessee had only
resumed jury trials as of April 1, 2021.27
III. Brimmer Failed to Preserve Error in the District Court and
Waived Any Argument in the Appellate Courts with Respect to
Livestreaming.
Our supervisory order provided that where in-person attendance
was not possible due to social-distancing needs, “courts shall set up live
feeds of public court proceedings in another room in the courthouse
(or, as necessary, streaming online or by videoconference) to permit
simultaneous viewing.” July 9 Supervisory Order 4–5. “Shall,” of course, is
mandatory language. Ramirez-Trujillo v. Quality Egg, L.L.C., 878 N.W.2d
759, 771 (Iowa 2016). And the cases from other jurisdictions suggest that
livestreaming was constitutionally mandated during COVID whenever
spectators could not attend in person. See United States v. Allen, 34 F.4th
789, 798 n.5 (9th Cir. 2022) (collecting cases). Thus, if the district court
committed an error here, this was it.
However, it’s an error that Brimmer failed to preserve. The district
court was the only party to mention the subject of livestreaming. The day
COVID-19 Pandemic—Resumption of Jury Trials, 2021 Ark. 72, 1–2 (Apr. 8, 2021) (per
curiam), https://www.arcourts.gov/sites/default/files/In_re_Response_to_the_COVID-19_Pandemic-
Resumption_of_Jury_Trials.pdf [https://perma.cc/SLP9-9284].
26See Alaska Sup. Ct., Special Order of the Chief Justice, Order No. 8242 1 (Mar.
1, 2021), ht t p s: //co ur t s. a la sk a. go v/ c o vid 1 9 /d o c s/ so c j -2 0 2 1 -8 2 4 2 . p d f
[https://perma.cc/M4KX-PTQU].
27SeeLa. Sup. Ct., Order 1 (Feb. 11, 2021); Tenn. Sup. Ct., Order Modifying and
Partially Lifting Suspension of In-Person Court Proceedings 1 (Feb. 12, 2021),
https://www.tncourts.gov/sites/default/files/docs/covid -19_revised_order_2-12-
21.pdf [https://perma.cc/Q9HQ-4NFX].
57
before trial, the court said, “[I]f the State wants to provide somebody to do
that, I’m happy to accommodate that, but I can’t run that myself.” At that
time, and throughout trial, Brimmer’s counsel never asked for
livestreaming, never asked the State to provide someone to handle
livestreaming, and never even mentioned livestreaming. I therefore believe
Brimmer failed to preserve error on this point in the district court.28
The lead opinion hypothesizes that the court could have
livestreamed the jury trial because the court had conducted three non-
evidentiary hearings earlier in the case using GoTo Meeting. I’m not a
technology guru (nor is the rest of our court), but that seems improbable
to me. There is a difference between holding a video conference and
simulcasting an in-person proceeding with multiple participants located
in different places around the courtroom. Our court uses an elaborate
28In his motion for new trial, Brimmer mentioned in passing,
It would appear that since the Brimmer trial, the Court has completed a
technology upgrade so that the public could view the trial from another
room. This option was not made available to Defendant at the time of his
trial.
Even if we consider this to be an effort to raise the issue of livestream access, it is too
late. See State v. Wells, 629 N.W.2d 346, 356–57 (Iowa 2001) (en banc) (rejecting claims
raised for the first time in a motion for new trial following conviction). I would also note
that Brimmer’s counsel made no reference to livestreaming when she argued the motion
for new trial prior to sentencing. As before, her arguments were exclusively focused on
in-person access.
I infer from the record that the failure to preserve error on livestreaming was not
an oversight by Brimmer’s trial counsel. Brimmer wanted his mother and other family
members to attend in person “as support on [his] behalf.” That’s certainly a legitimate
reason to ask for their presence, but it isn’t one of the core purposes of the public trial
right. See Waller, 467 U.S. at 46 (stating that the requirement of a public trial is so “that
the public may see [the accused] is fairly dealt with and not unjustly condemned, and
that the presence of interested spectators may keep his triers keenly alive to a sense of
their responsibility and to the importance of their functions” (quoting Gannett Co. v.
DePasquale, 443 U.S. 368, 380 (1979))). Livestreaming would not have served this
support role.
58
camera system and a camera operator to livestream our court proceedings.
As the district court put it, “I can’t run that myself.”
In any event, we don’t know what would have happened if Brimmer
had pressed the issue of livestreaming, because he never did. He failed to
preserve error. It would be unfair to the district court, the State, and the
victim to now give Brimmer a do-over based on failure to provide a
livestream that Brimmer didn’t ask for, that he presumably didn’t want,
and that potentially could have been provided to him if he had wanted it.
COVID cases from other jurisdictions have indicated that public trial
rights are subject to normal error preservation rules. It is not up to the
district court to make arguments for the defendant. See People v. Poe,
No. A160102, 2021 WL 5578080, at *1–2 (Cal. Ct. App. Nov. 30, 2021)
(holding that a defendant’s request to have his family in attendance did
not preserve a public trial argument because the record did not reflect
“whether [the defendant] wanted a family member to address the court or
merely sought to have them present”); State v. Jones, 2022 WL 4074794,
at *4 (Minn. Ct. App. Sept. 6, 2022) (“By simply requesting a ‘split screen’
display of the public-viewing area, [the defendant] did not provide the
district court with an opportunity to address or correct concerns about a
courtroom closure occasioned by the physical exclusion of the observers.”);
see also People v. Hernandez, 488 P.3d 1055, 1063 (Colo. 2021) (en banc)
(finding that because the defendant did not raise the public trial issue
below, the court would not consider it on appeal); Martinez v. State, 652
S.W.3d 485, 487–88 (Tex. App. 2022) (holding that the defendant waived
59
his constitutional argument by solely asserting statutory right to public
trial).
Not only did Brimmer fail to preserve error as to livestreaming below,
he also has waived the issue on appeal. I encourage anyone to read
Brimmer’s principal brief on appeal. It contains not a word of argument
about livestreaming or video. His entire complaint is that in-person access
was denied. In fact, the only “reasonable alternatives” that he argues are:
(1) “limiting the number of persons from the public who could be present
based on room capacity in light of social distancing requirements,” or
(2) “permitting even a single member of the Defendant’s family to be
present to observe trial.”
When the State filed an answering brief that observed, accurately,
that Brimmer had waived the issue of livestreaming, Brimmer didn’t
contest the point. The closest you can come to an argument in Brimmer’s
reply brief is a string-cite that “distinguish[es]” the State’s cases. In the
course of the string-cite, reference is made in some of the parentheticals
to the fact that livestreaming occurred. That’s not an argument, not even
a half-hearted one. And it’s in a reply brief, which isn’t sufficient. See Hills
Bank & Tr. Co. v. Converse, 772 N.W.2d 764, 770–71 (Iowa 2009). Tellingly,
immediately after including the string-cite, Brimmer pivoted to his actual
reply argument, which urged again that the court could have and should
have allowed in-person access to a limited number of spectators, or at least
his own family. And as before, Brimmer said nothing about livestreaming.
I see no reason to go beyond the boundaries of our existing rules for a
60
defendant who received a fair trial and whose guilt was clearly established,
as demonstrated in Part III of the majority opinion.
To be clear, I accept that “trial courts are required to consider
alternatives to closure even when they are not offered by the parties.”
Presley v. Georgia, 558 U.S. 209, 214 (2010) (per curiam). The district
court considered livestreaming, talked about it, and Brimmer failed to
pursue it. Even now he fails to pursue it.
More important than any work we are unnecessarily creating for the
judicial branch is the interest of the victim. At sentencing, after describing
her painful experiences since being raped by Brimmer and Augustin Ben-
Orduno, the victim said, “I am relieved that after all of the money and time
that I spent to get through this, that it’s finally over.” Unfortunately, it
isn’t.
For these reasons, I would affirm Brimmer’s conviction and
sentence.
Christensen, C.J., and Waterman, J., join this concurrence in part
and dissent in part.