In the

United States Court of Appeals

For the Seventh Circuit

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No. 01-2928

JOHNNIE WALTON,

Petitioner-Appellant,

v.

KENNETH R. BRILEY, Warden,

Respondent-Appellee.

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Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 97 C 2539—John F. Grady, Judge.

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ARGUED DECEMBER 11, 2003—DECIDED MARCH 17, 2004

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Before BAUER,POSNER,andEASTERBROOK, Circuit Judges.

BAUER, Circuit Judge. Petitioner-Appellant, Johnnie

Walton, brought this action for a writ of habeas corpus

under 28 U.S.C. § 2254(a) . He claimed that his trial in the

Cook County Circuit Court was conducted in violation of his

Constitutional right to a public trial. The district court did

not agree and denied the writ. We reverse.

I. BACKGROUND 

Johnnie Walton was arrested after delivering a sizeable

quantity of phencyclidine, more commonly known as PCP,
2 No. 01-2928

to an undercover police officer. He was tried in the Cook

County Circuit Court before Judge Ralph Renya on September 19, 21, and October 2, 1989. The first two sessions,

which encompassed the prosecution’s entire case, were held

in the late evening hours after the courthouse had been

closed and locked for the night. Walton’s fiancée twice

attempted to attend the trial and was twice prevented from

doing so. A confidential informant involved in the case was

also prevented from attending the trial because the courthouse was locked. Walton was convicted and ultimately

sentenced to a term of life in prison without the possibility

of parole.

After Walton exhausted his state remedies he filed the

instant habeas corpus petition. See 28 U.S.C. § 2254(a). The

district court found that the first two-thirds of Walton’s

trial had indeed been held during the late evening hours

and therefore, the public had been excluded; nevertheless,

it held that Walton’s failure to object to the lateness of the

trial resulted in a waiver of the issue.

II. DISCUSSION

We review the district court’s findings of fact for clear

error and its findings of law de novo. Ouska v. CahillMasching, 246 F.3d 1036, 1044 (7th Cir. 2001). The

Antiterrorism and Effective Death Penalty Act of 1996 does

not apply in this case because the state courts did not

adjudicate the claim on the merits. Id.

The Respondent claimed that Walton procedurally defaulted on this habeas claim. The district court rejected this

argument but found that the Respondent had failed to

develop the factual record to support such a finding. United

States ex rel. Walton v. Gilmore, No. 97 CV 2539, 1998 WL

787220, *2 (N.D. Ill Nov. 4, 1998). 
No. 01-2928 3

The Sixth Amendment to the United States Constitution

guarantees that, “[i]n all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial.” U.S.

CONST. amend. VI. This right is applicable to the states

through the Fourteenth Amendment. Duncan v. Louisiana,

391 U.S. 145, 148-49 (1968). The benefits of a public trial,

although “frequently intangible, difficult to prove, or a

matter of chance,” Waller v. Georgia, 467 U.S. 39, 49 n.9

(1984), are a central tenant of our judicial structure. Public

trials help to prevent perjury, unjust condemnation, and

keep the accused’s “triers keenly alive to a sense of their

responsibility and to the importance of their functions.” Id.

at 46 (quoting In re Oliver, 333 U.S. 257, 270 n.25 (1948)).

Such trials may encourage unknown witnesses to come

forward and further serve to preserve the integrity of the

judicial system in the eyes of the public. Id.

While criminal trials that are closed to the public are

strongly disfavored, they are not forbidden. A party seeking

to bar the court’s doors to the public must satisfy a fourpart test: (1) the party who wishes to close the proceedings

must show an overriding interest which is likely to be

prejudiced by a public trial, (2) the closure must be narrowly tailored to protect that interest, (3) alternatives to

closure must be considered by the trial court, and (4) the

court must make findings sufficient to support the closure.

Id. at 48. The record of this case fails to show that the court

even considered the four-part test. While this may be due to

the fact that the closure was inadvertent and merely a

result of trial court Judge Renya’s honorable desire to “get

it done” (Supp. App. at 85), nevertheless, the judge’s devotion to work is not an interest sufficient to overcome

Walton’s constitutional guarantee of a public trial.

The district court suggested that it might be important

that Judge Renya unintentionally prevented the public from

attending the trial. United States ex. rel. Walton v. Gilmore,
4 No. 01-2928

1 This court is aware of a case from the Tenth Circuit which

“requires some affirmative act by the trial court meant to exclude

persons from the courtroom” before a defendant can claim a

violation of his Sixth Amendment right to a public trial. United

States v. Al-Smadi, 15 F.3d 153, 154 (10th Cir. 1994). That case

is distinguishable in that the court was closed to the public simply

because the trial, which started when the courthouse was still

open, ran late. We make no finding as to whether or not the facts

in Al-Smadi would constitute a Sixth Amendment violation in this

Circuit.

No. 97 C 2539, 2001 WL 709463, *2 (N.D. Ill. Aug. 10,

2001). Whether the closure was intentional or inadvertent

is constitutionally irrelevant.1

The district court found that “the first two sessions of the

trial did take place, as Walton alleges, during the late

evening hours of September 19 and 21, 1989 and that the

sessions may have lasted until after 10:30 p.m.” Walton

v. Gilmore, 2001 WL 709463, at *1. The lateness of the hour

served to “foreclose the attendance of the public at the first

two sessions. . . . Walton has proved his claim that the first

two sessions, encompassing the entirety of the prosecution’s

evidence, were closed to the public.” Id. Despite Gilmore’s

argument to the contrary, we find that the district court’s

factual findings are not clearly erroneous. Because Walton

need not show specific prejudice, these facts are sufficient

to show a violation of Walton’s right to a public trial.

Waller, 467 U.S. at 49-50.

Walton’s counsel failed to object to the late trial or to its

effect of barring the public from attending the trial. Based

on this failure, the district court found that the error was

waived. Id. at 2. Our jurisprudence does not support such

a holding and we therefore, reverse.

The Supreme Court has noted, “[t]he Constitution requires that every effort be made to see to it that a defend-
No. 01-2928 5

ant in a criminal case has not unknowingly relinquished the

basic protections that the Framers thought indispensable to

a fair trial.” Schneckloth v. Bustamonte, 412 U.S. 218, 241-

42 (1973). Consequently, “every reasonable presumption

should be indulged against” waiver of a fundamental trial

right. Hodges v. Easton, 106 U.S. 408, 412 (1882). This

heightened standard of waiver has been applied to plea

agreements, the right against self-incrimination, the right

to a trial, the right to a trial by jury, the right to an attorney, and the right to confront witnesses. See, e.g., Brady v.

United States, 397 U.S. 742, 748 (1970); Miranda v. Arizona, 384 U.S. 436, 444 (1966); Moltke v. Gillies, 332 U.S.

708, 723-26 (1948). Furthermore, in dealing with the

fundamental trial right to representation by counsel, the

Supreme Court has held that presumption of waiver from

a silent record is impermissible. Carnley v. Cochran, 369

U.S. 506, 515 (1962).

The common element of the cases mentioned in the

paragraph above is the fact that the rights with which they

deal all concern the fairness of the trial. The right to a

public trial also concerns the right to a fair trial. Waller,

467 U.S. at 46 (“The requirement of a public trial is for the

benefit of the accused; that the public may see he is fairly

dealt with and not unjustly condemned . . . .”) (emphasis

added); see also discussion supra Part II, paragraph 3. So,

like other fundamental trial rights, a right to a public trial

may be relinquished only upon a showing that the defendant knowingly and voluntarily waived such a right. 

The record does not indicate that Walton intelligently and

voluntarily relinquished a known right. Therefore, we hold

that Walton’s right to a public trial was not waived by

failing to object at trial. Since he has established a violation

of his Sixth Amendment right to a public trial, as applied to

the states through the Fourteenth Amendment, we reverse

and remand with directions to issue the writ unless the

state elects to retry Walton within 120 days.

REVERSED AND REMANDED WITH DIRECTIONS.
6 No. 01-2928

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-17-04