When the law states that a criminal defendant is entitled to a "public" trial, it means a public trial.
That's why the following exchange between Champaign County Circuit Judge Thomas Difanis and attorneys in the case of accused child molester recently persuaded a state appeals court to overturn the conviction and lengthy prison sentence of a 32-year-old Thomasboro man.
"Judge Thomas Difanis: 'When (the child) testifies, I want the courtroom cleared except for family members.'"
"(Prosecutor Scott) Larson: 'Thank you, your honor.'"
"Defense lawyer Tony Allegretti: 'I'm sorry, Judge. (Defendant's) family members are here. Is that — are you barring them?'"
"Judge Difanis: 'Out.'"
By a 2-1 vote, the 4th District Appellate Court in Springfield overturned Hayze Schoonover's conviction on sex-assault charges involving a child under the age of 13. Currently held at the Pontiac Correctional Center, Schoonover is serving what is effectively a life sentence — 85 years in prison.
Champaign County State's Attorney Julia Rietz described the decision as "incredibly frustrating."
She expressed hope the Illinois Supreme Court will review and reverse the decision.
If not, she said the state will pursue a retrial.
The appellate court's opinion once again reinforces the mandatory nature of statutory provisions on trial judges when they interpret state law.
Difanis was acting under a specific provision that allowed him to bar general-interest spectators from the courtroom when a child witness is testifying. Difanis' error was to allow the victim's family members to be present in the courtroom because of their "direct" interest in the case while not making a determination of whether the defendant's relatives who were present had a similar "direct" interest in also being present.
"At the very least, once defendant's family members were brought to the court's attention, it should have inquired as to who those individuals were and their interest in the case" wrote Justice Thomas Harris. "The court's failure to make any inquiry indicates it did not make an informed decision as to whether the family members brought to its attention had a direct interest in the proceedings prior to excluding them."
A defense affidavit attached to Schoonover's legal brief identified his father and stepmother as those who were required to leave the courtroom during the child's testimony.
Harris, who was joined in the decision by Justice John Turner, said Difanis' action violated Illinois law because it "amounted to a blanket exclusion of anyone other than (the child's) family and the media."
The court majority deemed the error "structural," mandating an automatic reversal.
Justice Craig DeArmond wrote a vigorous dissent.
He contended that the defendant "forfeited his argument by failing to properly preserve the issue for appellate review."
"I part company with the majority in its finding that defendant established second-prong structural error entitling him to a new trial. The majority places the entire burden on the trial court, while I believe a defendant bears some level of responsibility to provide a court of review with an adequate record before he may seek the drastic relief to which he might otherwise be entitled for a claimed 'structural' error," DeArmond wrote.
Schoonover, a tattoo artist, was convicted in 2016 of repeatedly molesting a young girl in 2014 and 2015.
The child would occasionally spend nights at the Schoonover residence.
She testified that Schoonover would, after his wife had gone to bed, ply her with alcohol and marijuana, speak to her in suggestive terms, photograph her unclothed and engage in sex acts with her.
The child testified that Schoonover told her that he would get in trouble and that her life would be in danger if she told anyone about what had occurred.
The incidents came to light after she told a relative about it.
The question for the appellate court to determine was whether Difanis' action, considered in the absence of the defense's failure to cite it in a posttrial motion, violated the "plain error doctrine," which are defects "affecting substantial rights" that may be considered on appeal even if it was "not brought to the attention of the trial court."
In addition to arguing that the defense waived the issue, the dissenting DeArmond questioned the claim that Schoonover was denied a public trial.
He noted that Difanis specifically allowed a News-Gazette reporter to remain in the courtroom.
Indeed, The News-Gazette published a series of articles on the proceedings that included details of the child's testimony.
But the majority found that the mere presence of the news media was insufficient to show "no public trial violation." It said that would allow a trial judge to ignore statutory requirements that he must determine which spectators have a "direct" interest in the proceedings as part of the process of clearing a courtroom to protect a child witness.
"If nonexclusion of the media were all that was required to avoid constitutional concerns, even a defendant's demonstration that his immediate family members were excluded would not amount to a public trial violation. Plainly, this is incorrect," Harris wrote for the majority.
The "public" trial question raises a potentially interesting issue to present for review to the Illinois Supreme Court.
However, the high court hears less than 5 percent of the cases it's asked to, so the overwhelming odds indicate the state's desire for a review of the appellate court decision will be denied.
Jim Dey, a member of The News-Gazette staff, can be reached email@example.com or 217-351-5369.