Does a judge violate a criminal defendant’s Sixth Amendment right to a public trial violated when a cell phone goes off and the judge clears the courtroom? In a word, Yes. But what is the remedy?

The Sixth Amendment:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been         previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

A recent unpublished Michigan Court of Appeals opinion, People v. Dixon (Sept. 12, 2013) No. 305185, brings us this legal principle.

In an appeal from his criminal conviction, defendant Dequeze Dixon claimed (among several other claims) that the trial court denied him the right to a public trial.

Here are the facts giving rise to this claim:

At the beginning of [a witness’] testimony, the judge heard a ringing telephone in the courtroom and stated:

Who’s got the ringing phone? Whoever’s got it better give it up or I’m going to kick everybody out of the courtroom. Who’s got the ringing phone? Okay, everybody leave the gallery. You’re gone. Everybody’s gone.

Deputies cleared the courtroom, and counsel from both sides approached the judge. Dixon’s counsel stated, “I don’t care who’s in the gallery. That’s not my concern.”

For the rest of the day, no spectators were permitted to reenter the courtroom except for a member of the media, who had previously requested permission to video-record some testimony. The next day, the courtroom was reopened to all.

In Michigan, the right to a public trial must be asserted. If a defendant neither objects nor asserts his right to a public trial, review on appeal will be for plain error affecting defendant’s substantial rights.

Here, the defendant did not object to the closure. The Appeals Court also wrote, “In our view, the trial court’s reaction was extreme and excessive; justice is better served by a calmer and more measured response. However, it appears on balance that the trial court’s closure was less “to exclude the public, but to control courtroom distractions.”

Because the defendant did not demonstrate that the courtroom closure impacted the ability of counsel to examine the witness thoroughly or in any manner “seriously affect[] the fairness, integrity, or public reputation of [the] judicial proceedings, Dixon cannot demonstrate entitlement to a new trial.

No word yet, however, on whether you could get your phone back if a judge took it.