State of Iowa v. Ronald James Brimmer

               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 part 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, 

(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, 

, 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, 

 (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.
                                      8
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
                                      9
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
                                     10
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 

(2), to second-degree sexual abuse,

a class “B” felony, see 

 § 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
                                       11
resentencing. See State v. Chapman, 

, 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, 

, 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, 

, 202 (Iowa 2022) (quoting State v. Buman,

, 219 (Iowa 2021)). Evidence is sufficient to sustain a

verdict if it is “substantial.” 

 “Substantial evidence,” in turn, “is evidence

sufficient to convince a rational trier of fact the defendant is guilty beyond

a reasonable doubt.” 

 “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.’ ” 

 (quoting State v. Tipton, 

 (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,

   (Iowa   2006)    (quoting     State   v.   Williams,

 (Iowa 2005)). It is also for the jury to decide which

evidence to accept or reject. See Williams, 

. Finally, we
                                     12
recognize that circumstantial evidence is as probative as direct evidence.

See State v. Ernst, 

, 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. 

(1)(c). While

“sometimes    called   the   ‘gang   rape’   statute,”   State   v.   Finnigan,

 (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,” 

(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, 

 (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, 

 (Iowa 2010))).
                                     13
      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, 

 (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, 

 (Iowa 1984)

(quoting Fryer v. State, 

 (Iowa 1982)) (using

circumstantial evidence to infer participation); see State v. Lewis,

 (Iowa 1994) (quoting Miles as support for using

circumstantial evidence to infer participation); see also State v. Henderson,

 (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, 

 (quoting State v. Tangie, 

 (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.

 (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
                                       15
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, 

.

         Consistent with its reputation as “the ‘gang rape’ statute,” Finnigan,

, cases under section 709.3(1)(c) often involve an
                                    16
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, 

, 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, 

 (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, 

 (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,

, 750–51 (Iowa 2016), superseded by statute on other

grounds, 2019 Iowa Acts ch. 140, § 32 (codified at 

(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.
                                       18
      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, 

, 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, 

 (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, 

, 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, 

, 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, 

 (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, 

 (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,

. The district court here fully understood the nature of

Brimmer’s objection and definitively overruled it. Error was preserved. See

State v. Thoren, 

, 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, 

 (1980) (plurality opinion); see also Davis v.

United States, 

 (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, 

 (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, 

 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, 

, 528 (Iowa 2021)

(quoting In re Oliver, 

).

      The purposes behind the public trial right are best served “by the

public’s ability to [literally] observe the trial.” United State v. Allen,

 (9th Cir. 2022); see also State v. Bell, No. A20–1638,

, 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, 

 (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, 

 (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, 

 (“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., 

 (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, 

, 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, 

, 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, 

, 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, 

 (Cal.
2011))); People v. Hernandez, 

 (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, 

.

       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, 

 (alteration in

original) (quoting Roman Cath. Diocese of Brooklyn, 

); see

also     United      States      v.    Davis,      No.     3:18–cr–00131–TMB–MMS,

, 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, 

, 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.” 

; see also Presley v. Georgia,

 (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., 

)).
                                      25

, 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, 

, 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,

, 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,

, 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, 

, 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, 

, 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, 

, 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, 

, 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, 

 (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, 

, at *3–4; Henson, 

, at *4, and one did, see Allen, 

, 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.” 

, 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 ___, ___, ___, 

, 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, 

,
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, 

, 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.” 

.

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 

 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. 

, 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. 

 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. 

. 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. 

 (“[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.” 

 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.” 

. 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,” 

 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, 

, 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, 

 (quoting McCullen v. Coakley, 

, 495 (2014)); Presley v.

Georgia, 

 (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,

, at *9–10 (D. Colo. Sept. 27, 2021) (court allowed

limited in-person public access during COVID); United States v. Johnson,

No. 1:21CR123, 

, 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, 

, 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, 

 (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 

(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, 

 (“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, 

, 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. at

214–15; see also Allen, 

 (“[T]he district court had an

obligation to sua sponte consider alternatives ‘even when they are not

offered by the parties.’ ” (quoting Presley, 

)); Moss v. Colvin,

 (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, 

 (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, 

, 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.’ ”

, 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, 

. 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.” 

 (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, 

 (“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, 

 (quoting

Press-Enter., 

), 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, 

(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, 

, at *1;

Henson, 

, 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, 

, 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, 

(“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 

, 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 GoTo Meeting 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, 

,

1210 (D.N.M. 2020) (using Zoom to livestream a hearing to the public);

Vazquez Diaz v. Commonwealth, 

, 838 (Mass. 2021)
                                     41
(same); State v. Williams, No. 55269–8–II, 

, 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 GoTo Meeting 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, 

(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, 

, 8–9 (1999) (first quoting

Arizona v. Fulminante, 

 (1991); then quoting Brecht v.

Abrahamson, 

 (1993); then quoting Rose v. Clark,
                                      42

 (1986)). As opposed to “trial errors,” structural errors

“defy analysis under the harmless error standard.” Thongvanh v. State,

, 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, 

; see also Lawrence,

 (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, 

.

      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 part 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, 

,

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, 

, 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, 

 (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 

.

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, 

 (Iowa Ct. App. 1985) (citing

Waller v. Georgia, 

 (1984)).

      In this case, COVID safety and overall trial fairness were certainly

“overriding interest[s]” that the district court had to address. See 

 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 

 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 

(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 

       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, 

 (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, 

 (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 

.

         COVID cases from around the country have upheld similar

courtroom closures where a video stream was provided. See United States

v. Ansari, 

, 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, 

, 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, 

, 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, 

, 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, 

, 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, 

, 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., 

 (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, 

, 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, 

, 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].
        27See La. 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, 

, 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, 

 (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, 

 (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, 

, 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, 

,

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, 

 (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, 

, 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, 

, 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, 

 (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.