Aileen Cannon, the judge in the Trump documents case, made multiple errors in an earlier trial

WASHINGTON — The judge in former President Donald Trump’s upcoming trial over his handling of classified documents made two key errors in a June trial, one of which violated a fundamental constitutional right of the defendant and could have invalidated the proceedings, according to legal experts and a court transcript.

Florida-based U.S. District Judge Aileen Cannon closed jury selection for the trial of an Alabama man — accused by federal prosecutors of running a website with images of child sex abuse — to the defendant’s family and the general public, a trial transcript obtained by Reuters showed. A defendant’s right to a public trial is enshrined in the U.S. Constitution’s Sixth Amendment.

Cannon, a 42-year-old former federal prosecutor appointed by Trump to the bench in 2020 late in his presidency, also neglected to swear in the prospective jury pool — an obligatory procedure in which people who may serve on the panel pledge to tell the truth during the selection process. This error forced Cannon to re-start jury selection before the trial ended abruptly with defendant William Spearman pleading guilty as part of an agreement with prosecutors.

Cannon’s decision to close the courtroom represents “a fundamental constitutional error,” said Stephen Smith, a professor at the Santa Clara School of Law in California. “She ignored the public trial right entirely. It’s as though she didn’t know it existed.”

In Cannon’s decision to close jury selection, the judge cited space restrictions in her small courtroom at the federal courthouse in Fort Pierce, Florida.

Legal experts said closing a courtroom to the public has been recognized by the U.S. Supreme Court as a “structural error” — a mistake so significant that it can invalidate a criminal trial because it strikes at the heart of the entire process. A public trial also has been found to implicate First Amendment rights of freedom of assembly, speech and press.

Cannon’s decision raises questions about how she will handle the intense public interest at Trump’s trial, which is scheduled to begin on May 20, 2024, in the same courtroom.

The unprecedented prosecution of a former president as he campaigns seeking a return to the White House promises to bring enormous public scrutiny. The trial also will represent the first time that Cannon handles a case involving classified evidence and the arcane rules surrounding it.

Cannon’s trial errors also illustrate her judicial inexperience, five former federal judges — Democratic and Republican appointees — said in interviews.

“A lack of experience can be really hard in a big case, especially when there’s all this media attention and everything you do is being watched and commented on and second-guessed,” said Jeremy Fogel, a former federal judge who leads the Berkeley Judicial Institute in California.

Fogel said Cannon made “two fairly significant mistakes” during jury selection in the June trial.

“It looms larger because of who the judge is,” Fogel added.

Mark Bennett, the former Chief U.S. District Judge of the Northern District of Iowa, said, “She should have figured ahead of time a way to accommodate a small number of family members in a very small courtroom, in my opinion. It’s just the right thing to do, and not run the risk of there being reversible error.”

Cannon did not respond to a request for comment. Scott Berry, a federal public defender representing Spearman, declined to comment, as did a Justice Department spokesperson.

Limited experience

As a judge, Cannon so far has presided over four criminal trials that resulted in jury verdicts. She previously also worked on four criminal trials that resulted in jury verdicts when she served a federal prosecutor from 2013 to 2020, according to a questionnaire she filled out before the Senate confirmed her as a judge.

Cannon faced a rebuke from the Atlanta-based 11th U.S. Circuit Court of Appeals when it reversed her 2022 order appointing a third party to review documents seized by the FBI from Trump’s Mar-a-Lago resort home in Florida in the classified records investigation.

“We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so,” the 11th Circuit panel of three judges — all Republican appointees — wrote in reversing Cannon’s ruling and ordering the dismissal of a lawsuit filed by Trump that sought to shield documents from federal investigators.

Trump’s upcoming trial on 40 criminal counts of retaining classified records, obstruction of justice, conspiracy and concealment will present a new level of complexity. Trump faces separate trials on two other sets of federal and state criminal charges.

Paul Grimm, a former federal judge in Maryland who now leads the Bolch Judicial Institute at Duke Law School in North Carolina, said it is not unusual for a new judge to have to deal with a high-profile matter, as case assignments are random.

“You get the case on the draw of it,” Grimm said. “You can ask for help — but if you choose not to ask for help, then no one’s going to make you” seek guidance.

‘Your objection is overruled’

Cannon began jury selection on June 12 in the trial of Spearman, who was charged with conspiring to advertise and distribute images of child sexual abuse and with engaging in a child exploitation enterprise.

That day, the court transcript showed, Cannon failed to swear in the jury pool. Cannon also declined to open the courtroom to the public despite repeated requests from both prosecutors and defense attorneys, the transcript showed.

Some of the former federal judges interviewed by Reuters said their courtroom deputies sometimes would remind them of procedural steps like swearing in prospective jurors, as they may be focused on other aspects of running a trial.

Berry, the federal defender, argued in the courtroom that Cannon’s refusal to let his client’s mother and sister be present during jury selection was a Sixth Amendment violation.

“All right, thank you. Your objection is overruled,” Cannon replied, according to the transcript.

A federal prosecutor in the case, Greg Schiller, later pressed Cannon to let in Spearman’s mother. Schiller raised a 2010 U.S. Supreme Court precedent that held that judges must weigh less restrictive alternatives prior to closing a courtroom to the public, including during the jury selection process.

When Berry later pointed to two open chairs in the room, Cannon resisted his request again, saying the chairs were reserved for law enforcement.

“Mr. Spearman’s mother is free to join us once the jury selection process has concluded and/or there is truly enough room in the courtroom,” Cannon said, according to the transcript.

Cannon later offered to let in Spearman’s family after the judge realized she also had failed to swear in the jury pool. She said there would be room in the courtroom after certain jurors who both sides in the case agreed should be dismissed had left.

The jury selection process never re-started because Spearman and the prosecutors entered into a “conditional” plea deal, an uncommon arrangement that preserves a defendant’s right to appeal certain rulings by the trial judge. In most plea deals, defendants waive the bulk of their appellate rights.

The decision by Spearman, who is due to be sentenced by Cannon on Aug. 31, to enter a plea deal averted the problem with the court closure. But legal experts said it raises questions about how Cannon will handle public access for Trump’s trial.

“She is going to have to make some accommodations,” Santa Clara’s Smith said.

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