State of Minnesota,

1
STATE OF MINNESOTA

IN SUPREME COURT

A20-0779

Court of Appeals Anderson, J.

State of Minnesota,

Respondent,

vs. Filed: July 6, 2022
Office of Appellate Courts
Rodney Donta Jackson,

Appellant.
________________________

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appella te Public Defender, Julie Loftus Nelson, Assistant
State Public Defender, Saint Paul, Minnesota, for appellant.
________________________
S Y L L A B U S
1. The appropriate remedy for a violation of a defendant’s asserted right to a
public trial during a post -trial Schwartz hearing is a remand for a new, public hearing
involving the jurors who previously privately testified.
2. No exceptional circumstances exist to warrant using our inherent supervisory
power over the district courts given the good-faith attempt by the district court to meet the
applicable legal standard.
Affirmed.
2
O P I N I O N
ANDERSON, Justice.
This dispute concerns the proper remedy for a violation of a criminal defendant’s
asserted constitutional right to a public trial during part of a post -trial Schwartz hearing.1
After a jury found appellant guilty of second -degree murder, one of the jurors provided
feedback suggesting that she m ight have introduced extraneous information during
deliberations. To assess the effect of this information on the verdict of the jury, the district
court held a Schwartz hearing, which was divided into two parts because of scheduling
conflicts of two jurors. To ensure the testimony of the first two jurors did not influence the
remaining jurors, the court ordered the first part of the Schwartz hearing closed to the
public. After all the jurors testified, the court found that the extraneous information did
not impact the verdict. Concluding that the district court erred when it closed the first part
of the Schwartz hearing to the public, the court of appeals remanded to the district court to

1 Named after Schwartz v. Minneapolis Suburban Bus Co ., 104 N.W.2d 301 (Minn.
1960), “a Schwartz hearing is a procedure in which a district court may investigate alleged
juror misconduct by summoning a juror for questioning about the alleged misconduct in
the presence of counsel for both parties.” Martin v. State, 969 N.W.2d 361, 363 n.1 (Minn.
2022). The constitutional guarantee to a public trial applies to “all phases of trial, including
pretrial suppression hearings and jury voir dire.” State v. Brown , 815 N.W.2d 6 09, 617
(Minn. 2012). But the right does not apply to “routine administrative proceedings” such
as basic evidentiary rulings and matters traditionally addressed during bench conferences.
State v. Smith , 876 N.W.2d 310, 329 (Minn. 2016). Our use of the p hrase “ asserted
constitutional right” here reflects the fact that we have never considered the question of
whether the public trial right attaches to a Schwartz hearing. For purposes of this appeal,
we assume the right attaches to a Schwartz hearing because the parties do not contest th is
question of first impression. See State v. Meger , 901 N.W.2d 418, 422 n.4 (Minn. 2017)
(assuming, without deciding, a point agreed upon by the parties).

3
have the two jurors who testified in private questioned again in a public hearing. Because
the remand order of the court of appeals is appropriate, we affirm.
FACTS
On November 6, 2018, appellant Rodney Donta Jackson and his girlfriend drove to
a gas station and convenience store in South Minneapolis. After park ing, other vehicles
blocked his car by parking in front of, and behind, Jackson’s car. Jackson’s girlfriend asked
the occupants of the car parked in front, M.A. and a passenger, to move their car so that
she and Jackson could leave. M.A. refused, and an altercation ensued. According to
Jackson, M.A. and his passenger were rude and made violent threats. The passenger
testified that Jackson repeatedly hit their car with his own vehicle and made violent threats.
A bystander testified that he convinced M.A. and his passenger to disengage and go into
the store but that Jackson’s girlfriend started throwing objects . Jackson’s girlfriend
admitted throwing a container of Vaseline. The bystander arranged for the car behind
Jackson to move, and Jackson and his girlfriend left the gas station. But after leaving,
Jackson’s girlfriend told Jackson that she wanted to retrieve something she had dropped.
Jackson parked across the street and his girlfriend returned to the gas station . There, she
threw a can at M.A.’s car. M.A. retaliated by throwing rocks at Jackson’s girlfriend, who
screamed and ran back to Jackson’s car. Jackson heard the scream and saw his girlfriend
running back to his car, pursued by M.A. Jackson, who had a valid permit to carry a
handgun, drew his gun and fired a single shot at M.A. The shot struck M.A. in the head,
killing him. Jackson and his girlfriend then drove away, ate at a restaurant, and went to
see a movie. They were arrested leaving the movie theater.
4
The State charged Jackson with first-degree premeditated murder under Minn. Stat.
§ 609.185(a)(1) (2020), and second-degree intentional murder under Minn. Stat. § 609.19,
subd. 1(1) (2020). The trial occurred between October 21 and November 1, 2019. The
State presented eyewitness testimony and security camera footage of the incident. Jackson
admitted to firing the shot that killed M.A. But Jackson testified that he saw M.A. holding
a gun and claimed that he fired in self-defense. No other witness es reported seeing M.A.
armed, no weapon was found on the scene, and no witness es reported seeing anyone
touching M.A.’s body or removing anything from the scene.
The district court instructed the jury on the elements of a self -defense claim,
including that “the judgment of the defendant as to the gravity of the peril to which he or
another is exposed must have been reasonable under the circumstances” and that “there
was no reasonable possibility of retreat to avoid the danger.” The jury found Jackson guilty
of second-degree intentional murder and not guilty of first-degree premeditated murder.
At the request of the district court, the jurors provided post-trial anonymous written
feedback regarding their experience as jurors . One juror stated that the State should have
“[p]resented info on conceal [and] carry —responsibility of self -defense. Should have
explained what [Jackson] would have learned in conceal and carry class regarding MN law
about obligation to retreat. This jury was going for self defense and not guilty before I
shared what’s taught in permit class.” Jackson moved for a post -trial Schwartz hearing
based on t he statements made by the juror, arguing that the statements were extraneous
information that could have prejudiced the jury.
5
The district court granted Jackson’s motion from the bench on November 26, 2019,
and scheduled a Schwartz hearing for January 17, 2020. The court cautioned Jackson and
the State not to contact the jurors to avoid potentially influencing the testimony. And the
court noted that members of the press were present in the courtroom and asked that no
reporting on the hearing occur, also to avoid influencing the jurors who would testify.
On December 16, 2019, the district court told the parties that , despite the court’s
request, a local newspaper had published a story about the potential juror misconduct and
at least one juror reported reading the story. Further, the court had learned that two of the
jurors would be out of the country on the day of the January 17 , 2020 hearing: one would
be on a week -long vacation and the other was working abroad from early January 2020
until the middle of May 2020. Rather than delay the hearing for over 5 months, the court
proposed dividing the hearing into two parts so that th e jurors who would be out of the
country could be questioned before they left.
Jackson’s attorney objected to the proposed division, arguing that the jurors who
testified later would be influenced by the earlier testimony. The State suggested that the
district court order the jurors not to follow the matter in the media to avoid influencing the
later testimony. Jackson’s attorney argued that the court did not have the authority to do
so. According to Jackson’s attorney, the court should simply enforce th e subpoenas and
proceed with the originally planned hearing date, thereby forcing the two jurors to cancel
their trips abroad.
The district court overruled the objection and divided the Schwartz hearing into two
parts. The court scheduled the first hearing on December 31, 2019 , to receive testimony
6
from the two jurors who were going abroad. The remaining jurors would still testify on
January 17, 2020. To prevent the testimony of the first two jurors from influencing th e
testimony of the remaining jurors, the court ordered the December 31 hearing closed to the
public. The court noted that under the Supreme Court of the United States decision in
Waller v. Georgia, a defendant’s right to a public trial may be outweighed when there is
(1) an overriding interest in the closure, (2) the closure is narrowly tailored, (3) the court
considers and rejects reasonable alternatives, and (4) the court makes sufficient findings
on the record to justify the closure. 467 U.S. 39, 48 (1984). Applying Waller to the facts
here, the court first found that the closure was justified by an overriding interest in the
fairness of the proceeding , and second, that the closure was no broader than necessary
because the January hearing involving the 10 remaining jurors would still be open to the
public. Third, the court considered and rejected alternatives to the closure, including
asking the media not to report on the December hearing, waiting until all the jurors would
be available, and enforci ng the subpoenas notwithstanding the conflicting plans of the
jurors. The court also scheduled a hearing for December 27, 2019, to give the public and
the media an opportunity to object to the closure if they desired. No record exists of the
December 27 hearing, though it appears that no members of the public or the media
attended.
The divided Schwartz hearing occurred as scheduled, with all 12 jurors testifying
over the two separately scheduled days. The court asked each juror three questions:
(1) whether they recalled discussing conceal -and-carry permits or the requirements to
obtain a conceal -and-carry permit ; (2) if yes, what specifically they recalled ; and
7
(3) additional clarification about context, length of discussion, and the number of jurors
involved. On December 31, the juror who provided the initial feedback that precipitated
the Schwartz hearing testified that she discussed what Jackson would have learned in his
conceal-and-carry-permit classes. She testified that she told the other jurors: “You don’t
kill somebody because you’re mad because they trash[] talked you or did something to you.
It would be because you feel like your life is absolutely threatened and you didn’t have any
other option.” The juror testified that this d iscussion came up only once. The other juror
testifying on December 31 separately testified that the jury discussed the requirements for
a conceal-and-carry permit and that “[t]o have a gun, you must know that if you shoot it,
you are responsible for it.” The juror said the discussion was not long.
The remaining 10 jurors testified individually, in public, on January 17, 2020. Each
juror testified outside the presence of the others. All 10 jurors testified that permit-to-carry
classes were discussed dur ing deliberation. One juror estimated that the discussion
“couldn’t have been longer than an hour.” The remaining jurors recalled the discussion as
being brief, describing it as “not long,” “in passing,” taking a “[c]ouple minutes,” or lasting
“five or ten minutes.” Several jurors, although not asked to do so, stated that this discussion
did not affect the verdicts. After the hearings concluded, the court denied Jackson’s motion
for a new trial, finding that “the extraneous information was not unduly prejudicial but was
merely a recitation of the law of self-defense.”
The court of appeals concluded that closing the first part of the hearing to the public
violated Jackson’s right to a public trial . State v. Jackson , 964 N.W.2d 659, 666 (Minn.
App. 2021). The court did not consider the first Waller factor—whether there was an
8
overriding interest in the closure—as it found that the other elements were not established.
Id. The court held that the closure was overbroad as the stated concern was media
exposure, but the district court excluded everyone from the hearing and not just the press.
Id. And the court held that the district court failed to consider “the most reasonable
alternative”: instructing the jurors to “vigilantly ignore” reporting on the case. Id. But the
court held that a new trial was not the appropriate remedy as it would be disproportionate
to the violation. Id. at 667. Rather, the court remanded the case “to conduct a new Schwartz
hearing involving the first two jurors” who had testified in private. Id. The court also
noted that if, at the second hearing, the two jurors testified “in a manner materially different
from their original, private testimony,” the district court should also conduct an additional
Schwartz hearing involving the other 10 jurors. Id. Jackson petitioned for review of the
appropriate remedy for the asserted violation of the asserted constitutional right, and w e
granted review.
ANALYSIS
Both the United States and Minnesota Constitutions provi de that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a . . . public trial.” U.S. Const. amend.
VI; Minn. Const. art. I, § 6. The right to a public trial originated in the English common
law and has been variously attributed as a r eaction to the excesses of the Spanish
Inquisition, the English Court of Star Chamber’s secret interrogations, and the French
monarchy’s lettres de cachet (royal decrees ordering that a subject be exiled or imprisoned
without defense or appeal). In re Oliver, 333 U.S. 257, 268–69 (1948).
9
The constitutional guarantee to a public trial applies to “all phases of trial, including
pretrial suppression hearings and jury voir dire.” State v. Brown , 815 N.W.2d 609, 617
(Minn. 2012). But the right does not apply to “routine administrative proceedings” such
as basic evidentiary rulings and matters traditionally addressed during bench conferences.
State v. Smith, 876 N.W.2d 310, 329 (Minn. 2016). We have never considered the question
of whether the public trial right attaches to Schwartz hearings. Because the parties do not
contest this question of first impression, and because neither party petitioned this court for
review of the issue , we assume without deciding that the public trial right attaches to a
Schwartz hearing.2 See State v. Meger, 901 N.W.2d 418, 422 n.4 (Minn. 2017) (assuming,
without deciding, a point agreed upon by the parties).
Jackson asserts that the only appropriate remedy for a violation of his asserted right
to a public trial during a post-trial Schwartz hearing is a new trial —or at least a new
Schwartz hearing with all 12 jurors present—because a Schwartz hearing is a “substantive
part of a trial.” In the alternative, he urges us to grant a new trial using our inherent
supervisory authority over the district courts.
I.
The appropriate remedy for a violation of the rights of a criminal defendant is a legal
question, which we review de novo. Wheeler v. State, 909 N.W.2d 558, 567 (Minn. 2018).
When a defendant’s right to a public trial is violated, structural error has occurred and the

2 We also assume without deciding that the district court’s decision to close the first
part of the Schwartz hearing to the public was overbroad because the State does not
challenge the analysis by the court of appeals of the Waller factors.
10
violation is not subject to a harmless error analysis. State v. Bobo, 770 N.W.2d 129, 139
(Minn. 2009). But the remedy “should be appropriate to the violation, and a retrial is not
required if a remand will remedy the violation.” Id.
We have not previously addressed the circumstances in which a remand is an
appropriate remedy rather than a new trial. It is generally recognized , however, that in
certain circumstances, the “ ‘do over’ can be limited to the specific proceeding that was
affected by the closure.” Jocelyn Simonson, The Criminal Court Audience in A Post-Trial
World, 127 Harv. L. Rev. 2173, 2221 (2014). And other courts have observed that when
the public trial right violation occurs during an “easily separable part of a trial, ” the
appropriate remedy is a remand of the case to redo only the portion that was improperly
closed to the public. State v. Wise, 288 P.3d 1113, 1122 (Wash. 2012).
The two most instructive decisions concerning the appropriate remedy for a public
trial r ight violation are the Supreme Court of the United States decisions in Waller v.
Georgia, 467 U.S. 39, 49–50 (1984), and Presley v. Georgia , 558 U.S. 209 (2010). In
Waller, the district court closed a pretrial suppression hearing to the public. 467 U.S. 41 –
42. Although the Waller Court held that this closure was unconstitutional , the Court did
not order a new trial. Id. at 48–50. Rather, it held that a “new trial need b e held only if a
new, public suppression hearing results in the suppression of material evidence not
suppressed at the first trial, or in some other material change in the positions of the parties.”
Id. at 50. Otherwise, a new trial would be a “windfall” to the defendant. Id.
But the Presley Court reversed a conviction due to a public trial violation during
voir dire without limiting the scope of relief on remand to the district court. 558 U.S. at
11
216. The Court did not discuss the specific remedy and remanded for “further proceedings
not inconsistent with this opinion.” Id. But unlike in Waller, the Presley Court did not
state that the remedy should be limited in any way. Id. T he Georgia state courts then
ordered a new trial, not merely conducting voir dire again. See Presley v. State, 706 S.E.2d
103, 104 (Ga. Ct. App. 2011). Other courts since Presley have also held that a violation of
a defendant’s right to a public trial due to an improper courtroom closure during voir dire
requires a new trial, not merely a substituted voir dire process on remand. E.g., United
States v. Gupta, 699 F.3d 682, 690 (2d Cir. 2012); United States v. Agosto-Vega, 617 F.3d
541, 547–48 (1st Cir. 2010).
Jackson argues that a post -trial Schwartz hearing is analogous to voir dire because
both proceedings i nvolve questioning jurors under oath and implicate the validity of the
jury’s verdict by attempting to prevent or address juror bias . He therefore argues that we
should remand for a new trial in accordance with Presley. For the reasons that follow, we
conclude that a post-trial Schwartz hearing is more analogous to a suppression hearing than
voir dire.
Post-trial Schwartz hearings, pretrial suppression hearings, and voir dire all involve
questioning individuals under oath . But unlike voir dire, the purpose of Schwartz and
suppression hearings is to build a record of past facts relevant to limited and discrete
issues—whether misconduct occurred during jury deliberations and whether the
government engaged in conduct that requires the suppression of evidence, respectively.
Martin v. State, 969 N.W.2d 361, 363 n.1 (Minn. 2022); State ex rel. Rasmussen v. Tahash,
141 N.W.2d 3, 13 –14 (Minn. 1965) . Also, unlike voir dire, Schwartz and suppression
12
hearings are standalone proceedings that can easily be separated from the rest of the trial.3
The inseparable nature of voir dire has been recognized by other courts. For example, in
Wise the Supreme Court of Washington wrote, “we cannot reasonably order a ‘redo’ of
voir dire to remedy the public trial right violation that occurred here. The jury would
necessarily be differently composed, and it is impossible to speculate as to the impact of
that on [the defendant’s] trial.” 288 P.3d at 1122. But there is no reason why we cannot
order a repetition of a post-trial Schwartz hearing, especially when the participants and the
questions are fixed, the jurors are each questioned separately from the others, and the jury
has already deliberated and returned its verdict.
Having concluded that a post-trial Schwartz hearing is more analogous to a pretrial
suppression hearing, we now conclude that the appropriate remedy is a remand to conduct
a public Schwartz hearing rather than a new trial. Not only is our conclusion consistent
with Waller, 467 U.S. at 49–50, it provides a proportionate remedy for the error here, which
only implicated brief testimony from 2 of the 12 jurors.
Jackson argues that even if the appropriate remedy is a remand for a public Schwartz
hearing rather than a new trial, the district court should be required to conduct the new
Schwartz hearing with all 12 jurors. Jackson analogizes to Waller, where the Supreme
Court ordered a redo of an entire suppression hearing and not just the portions that had

3 Although we do not reach the issue, we note that the Ninth Circuit held that
sentencing hearings are likewise separable standalone hearings in United States v. Rivera,
682 F.3d 1223, 1236–37 (9th Cir. 2012). The Ninth Circuit therefore held that the remedy
for an improper courtroom closure during sentencing is to redo only the sentencing hearing.
Id.
13
been closed to the public. 467 U.S. at 50. But the district court in Waller closed the entire
suppression hearing to the public; there was no difference between “the part of the hearing
that was closed to the public” and “the entire hearing .” Jackson has not shown why it
would be necessary to repeat the testimony from the 10 unaffected jurors, especially when
the focus of a Schwartz hearing is not a juror’s particular mental process, but the “probable
effect [of the extraneous information] on a hypothetical average jury.” State v. Cox, 322
N.W.2d 555, 559 (Minn. 1982) . Here, the public trial violation affected only the brief
testimony of two jurors. Absent any other indication of misconduct, it would be
disproportionate to repeat the testimony of the other 10 jurors who have already testified
properly and in public. If the two jurors testify in a manner that is materially different from
how they testified in the original proceeding, then the district court should conduct a new,
public Schwartz hearing involving the remaining 10 jurors.
II.
In the alternative, Jackson argues that we should use our supervisory power over the
district courts to order a new trial because the district courts have repeatedly ignored our
directives regarding courtroom closures. Citing State v. Brown , 815 N.W.2d 60 9, 618
(Minn. 2012), Jackson observes that we have repeatedly urged that courtroom closures be
done “carefully and sparingly.” He then asserts that the district courts have not listened,
citing to the dissenting opinions in State v. Silvernail, 831 N.W.2d 594, 607 (Minn. 2013)
(Anderson, Paul H., J., dissenting), and State v. Taylor , 869 N.W.2d 1, 23 (Minn. 2015)
(Page, J., dissenting).
14
We have the power to grant necessary relief arising from our supervisory power
over the district courts. State v. Beecroft, 813 N.W.2d 814, 846 (Minn. 2012). Even when
we would not usually grant a new trial, we can reverse “prophylactically or in the interests
of justice.” State v. Salitros, 499 N.W.2d 815, 820 (Minn. 1993). But such relief is limited
to exceptional circumstances. Beecroft, 813 N.W.2d at 846. For example, in Salitros, the
closing argument of the prosecution included a call for the jury to convict the defendant to
teach him a “lesson” in accountability, despite our prior opinions directly criticizing such
arguments. 499 N.W.2d at 819–20. Even though we could not say that the error was
prejudicial to the defendant, we reversed to “m a[ke] it clear to prosecutors who persist in
employing such tactics that we retain the option of reversing prophylactically.” Id. at 820;
see also State v. Cabrera, 700 N.W.2d 469, 475 (Minn. 2005) (reversing a conviction due
to a prosecutor’s “improper injection” of race as an issue at trial after we had issued prior
warnings that such statements must be scrupulously avoided).
Having reviewed the record, we conclude that Jackson’s case does not involve
exceptional circumstances. The district court was n ot on explicit notice that the Sixth
Amendment applied to Schwartz hearings because we have never addressed the issue, and
prior to this dispute neither had the court of appeals . Still, the district court made a good-
faith effort to apply the Waller factors, making findings, and developing a record. Indeed,
the primary fault identified by the court of appeals was the failure to consider ordering the
jurors to avoid media coverage of the hearing, an alternative that Jackson ’s attorney had
argued was not a possibility.
15
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.