1
STATE OF MINNESOTA

IN SUPREME COURT

A20-1638

Court of Appeals Thissen, J.
Dissenting, McKeig, J., Gildea, C.J.
State of Minnesota,

Respondent,

vs. Filed: July 26, 2023
Office of Appellate Courts
Abraham Isaac Bell,

Appellant.

________________________

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

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant Scott County Attorney,
Shakopee, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Rebecca Ireland, Assistant State
Public Defender, Saint Paul, Minnesota, for appellant.

________________________
S Y L L A B U S
1. The exclusion of the public from a courtroom during the COVID-19
pandemic was a closure implicating appellant’s right to a public trial.
2. The findings of the district court are insufficient to evaluate whether the
appellant’s public trial right was violated.

2
3. The appropriate remedy under the circumstances present here is a remand to
the district court to make sufficient factual findings about the decision to close the
courtroom.
Reversed and remanded.
O P I N I O N
THISSEN, Justice.
This case requires us to analyze the impact of COVID-19 pandemic restrictions on
a defendant’s right to a public trial under the Sixth Amendment to the U.S. Constitution
and Article I, Section 6, of the Minnesota State Constitution. Appellant Abraham Isaac
Bell was charged in Scott County with first-degree aggravated robbery in December 2019.
Pursuant to the restrictions placed on trials due to the COVID-19 pandemic, Scott County
submitted a trial plan for Bell’s trial that excluded all spectators from the courtroom but
included a one-way video feed that would broadcast his trial in an adjacent courtroom. Bell
objected to the plan as a violation of his right to a public trial, but the objection was
overruled, and the trial proceeded beginning in June 2020. Following the trial, Bell was
convicted of first-degree aggravated robbery.
Bell now seeks a new trial based on an alleged violation of his right to a public trial.
The State argues that the restrictions implemented by the district court were too trivial to
be a closure subject to analysis under the Sixth Amendment, but that, even if a closure
occurred, it was constitutionally justifiable. We conclude that the restrictions put in place
by the district court due to the COVID-19 pandemic amounted to a closure that implicated
Bell’s public trial right. But we further conclude that the record before us is insufficient to

3
determine whether Bell’s public trial right was violated . Due to this insufficient record,
we reverse the court of appeals and remand to the district court for additional findings on
the decision to close the courtroom.
FACTS
In December 2019, respondent State of Minnesota charged appellant Abraham Isaac
Bell with first -degree aggravated robbery in violation of Minnesota Statutes section
609.245, subdivision 1 (2022). The complaint alleged that Bell had robbed a victim at
gunpoint in Prior Lake, Minnesota. Bell entered a not guilty plea, and the case was set for
trial.
On March 13, 2020, Governor Tim Walz issued Emergency Executive Order
No. 20-01, which declared a peacetime emergency due to the spread of COVID-19 and the
resulting pandemic. Emerg. Exec. Order No. 20-01, Declaring a Peacetime Emergency
and Coordinating Minnesota’s Strategy to Protect Minnesotans from COVID-19 (Mar. 13,
2020). On the same day, the Chief Justice issued an order stating that “no new jury trials
will begin or be scheduled on or after March 16, 2020, for the next 30 days.” Continuing
Operations of the Courts of the State of Minnesota Under a Statewide Peacetime
Declaration of Emergency, No. ADM20-8001, Order at 2 (Minn. filed Mar. 13, 2020). A
week later, another order was issued prohibiting new trials before April 22, 2020, or further
order of the court, whichever occurred first. Continuing Operations of the Courts of the
State of Minnesota Under a Statewide Peacetime Declaration of Emergency,
No. ADM20-8001, Or der at 3 (Minn. filed Mar. 20, 2020). On March 31, 2020, Bell
demanded a speedy trial.

4
On May 15, 2020, the Chief Justice issued another order authorizing a pilot program
for jury trials. See Operations of the Minnesota Judicial Branch Under Emerg. Exec. Order
Nos. 20-53, 20-56, ADM20-8001, Order at 2 –3 (Minn. filed May 15, 2020). Under the
order, no jury trial could be held before July 6, 2020, unless it fell within the scope of the
pilot program. Id. In accordance with the order establishing the pilot program, Scott
County submitted a “MJB Jury Trial Pilot Checklist” to the Minnesota Judicial Branch
Executive Council for approval. The checklist included a requirement to “[m]ap out [the]
courtroom to allow for strict physical distancing of 6 feet (360 degrees) for all panel
members and court staff through all points in the jury process.”
Scott County was approved to hold jury trials as part of the pilot program and Bell’s
case was selected for the pilot. Bell filed a series of motions in limine before trial, including
a motion for a public trial. The court heard argument on the motion for a public trial at a
pretrial hearing on June 18. The district court stated that it would hold a “ public trial,”
explaining that a one-way video feed would be set up in the courtroom next door and that
“somebody will be able to see and hear everything that’s happening within the courtroom
both audio and video if anybody is interested in attending.” Bell’s attorney acknowledged
that the trial would be public “in the general sense of the public” but that “the importance
of a public trial means that the witness can see the public and that the defendant c an see
and have family support.” Bell’s attorney pointed out that the Scott County jury plan would
require all spectators, including Bell’s family, to be in a different courtroom. Bell’s
attorney insisted that “some accommodation needs to be made” and refined his request ,
asking the district court to allow one or two seats in the courtroom.

5
The district court responded that “[t]here is no case law because . . . this is our first
pandemic.” It further explained that “if I had a square mile courtroom, we could probably
get this done but out of safety precautions for your client, for you, for the prosecution, for
everybody in there, every human I add to that courtroom I’ve got to now space and buffer
by 6 feet.” The district court also said that “the importance of the public trial is so that
everybody can see what is happening within our court system,” and that “it’s my position
that I’m not closing the courtroom. In fact, it’s open.” The district court concluded by
stating that, “if I had another 100 feet, I might be able to do that,” and “if Scott County
would have built a much bigger courtroom, I know I could have accommodated that,” but
“safety is paramount in this case.”
In short, the district court determined that prohibiting the public from being in the
courtroom was not a closure and that the interest in public health prevented it from allowing
the public to be in the actual trial courtroom. Bell took the position that allowing no
member of the public (even one or two family members) to be in the courtroom was a
closure under the Sixth Amendment and that any plan required not only that the public see
the trial but that participants in the trial (witnesses, the defendant, jurors) could see the
public.
Following the hearing, the district court issued a written order denying Bell’s
objection that the trial protocols violated his right to a public trial. The district court stated
that it “collaborated extensively with public health officials to institute safety protocols to
protect all necessary parties.” The court concluded that “there is no way to safely
accommodate members of the public or Defendant’s family inside the courtroom,” and that

6
therefore the court had arranged for the trial to be live -streamed in an adjacent courtroom
that would remain open to the public. The district court reasoned that the one-way
livestream “satisfies the predominant policy considerations involved here” including
protecting against abuse of power, encouraging witnesses to be truthful, and giving
confidence in the system. The court therefore denied Bell’s motion for in-person viewing.
Bell appealed and the court of appeals affirmed. The court recognized that “physical
presence of the public observing the trial is part of the public trial expectation.” State v.
Bell, No. A20-1638, 2021 WL 6110117, at *4 (Minn. App. Dec. 27, 2021). It concluded
that the trial was partially closed and moved on to consider whether the partial closure was
justified. Id.
In assessing the constitutionality of the partial closure, the court of appeals noted
that the district court had considered allowing one or two spectators, but ultimately found
the courtroom was simply not big enough to accommodate Bell’s request. Id. The court
of appeals determined that the district court’s analysis was courtroom specific and therefore
cases from other jurisdictions where spectators were allowed were not instructive. Id.
at *4–5. The court therefore concluded that Bell’s public trial right had not been violated.
Id. at *5.
Bell appealed to our court, and we granted his petition for review.
ANALYSIS
The federal and Minnesota state constitutions each protect a criminal defendant’s
right to a public trial. Minn. Const. art. I, § 6; U.S. Const. amend. VI; see also Gannett
Co. v. DePasquale, 443 U.S. 368, 379 (1979) (stating that the guarantees of the Sixth

7
Amendment apply to each state under the Fourteenth Amendment). We review de novo
any alleged denial of a defendant’s constitutional public trial right. State v. Brown,
815 N.W.2d 609, 616 (Minn. 2012).
The constitutional preference and presumption captured in the Sixth Amendment is
that trials be held in courtrooms where the public can be present both to observe the trial
and ensure participants in the trial—witnesses, jurors, the judge— know they are being
observed. We have stated that the right to a public trial is “for the benefit of the accused;
that the public may see he 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.” State v. Lindsey, 632 N.W.2d 652,
660 (Minn. 2001) (emphasis added) (quoting Waller v. Georgia, 467 U.S. 39, 46 (1984)).
The constitutional insistence that trials be public “embodies a view of human nature, true
as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective
functions more responsibly in an open court than in secret proceedings. . . . [P]ublic trial
is an institutional safeguard for attaining it.” Estes v. Texas, 381 U.S. 532, 588 (1965)
(Harlan, J., concurring) (citation omitted) (internal quotation marks omitted). “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 judicial power.” In re Oliver,
333 U.S. 257, 270 (1948). We have also suggested the importance of family presence to
the defendant as one of the values underpinning the public trial right. See State v. Schmit,
139 N.W.2d 800, 806 (Minn. 1966) (stating that relatives and friends of the defendant are
permitted in the courtroom in “most cases of general exclusion”); see also State ex rel.

8
Baker v. Utecht, 21 N.W.2d 328, 331 (Minn. 1946) (holding that courts should exercise
extreme caution when excluding the public so as not to deprive the defendant of “presence,
aid, or counsel of any person whose presence might be of advantage”); State v. Callahan, 110 N.W. 342, 344 ( Minn. 1907) (finding no infringement of public trial right when
“officers of the court, press reporters, friends of defendant, and persons necessary for him”
were not excluded).
The right to a public trial is not absolute. State v. Fageroos, 531 N.W.2d 199, 201
(Minn. 1995). In Schmit, we stated that the right to a public trial is a “limited privilege
accorded to an accused,” which is “subject to the inherent power of the court to restrict
attendance as the conditions and circumstances reasonably require for the preservation of
order and decorum in the courtroom.” 139 N.W.2d at 803. That inherent power, however,
must be exercised with “extreme caution.” Utecht, 21 N.W.2d at 331.
I.
We first turn to the question of whether the restrictions imposed on courtroom
attendance in this case resulted in a closure. See S tate v. Taylor, 869 N.W.2d 1, 11
(Minn. 2015) (analyzing whether a closure occurred before deciding whether the
limitations on a public trial were justified). We do so because we have recognized that
some limitations on public attendance at a court proceeding— those that fall short of a
closure—are t oo trivial to implicate the Sixth Amendment right to a public trial. Lindsey,
632 N.W.2d at 660–61.
We conclude that the district court’s decision to completely exclude the public,
including family members, from the courtroom where the trial occurred was not trivial.

9
Indeed, a complete prohibition on public attendance inside the courtroom for an entire trial
is far greater than restrictions we have previously deemed “trivial.” See, e.g., Lindsey,
632 N.W.2d at 660–61 (stating that excluding two children of unknown age and unknown
relationship to the defendant was not a restriction significant enough to be considered a
“true closure”); Taylor, 869 N.W.2d at 11–12 (holding that a photo identification
requirement to enter a courtroom “did not constitute a ‘true’ closure” when there was no
evidence anyone was actually excluded); Brown, 815 N.W.2d at 617–18 (holding that
locking the courtroom doors during jury instructions without clearing the courtroom of
spectators did not implicate defendant’s right to a public trial).
No spectators, including Bell’s family, were allowed in the courtroom at any time
during the trial. See State v. Silvernail, 831 N.W.2d 594, 601 (Minn. 2013) (assessing
whether a closure occurred by considering: whether the courtroom was cleared of all
spectators; whether the trial remained open to the general public and the press; whether
there was a period of the trial in which members of the public were absent; and whether
the defendant, the defendant’s family or friends, or any witnesses were improperly
excluded from the trial). And while it is true that the district court allowed Bell’s family,
the press, and the public to view the trial via a one-way video feed, that fact alone is
insufficient to remove from constitutional scrutiny the district court’s decision to exclude
the public from the courtroom where the trial occurred. The constitutional values
underlying the right to a public trial include both the opportunity for the public to view a
trial and the protection afforded when witnesses, jurors , and other trial participants
understand that they are being watched. As we observed in Schmit:

10
In our opinion the constitutional mandate contemplates that an accused be
afforded all possible benefits that a trial open to the public is designed to
assure. Unrestricted public scrutiny of judicial action is a meaningful
assurance to an accused that he will be dealt with justly, protected not only
against gross abuses of judicial power but also petty arbitrariness. The
presence of an audience does have a wholesome effect on trustworthiness
since witnesses are less likely to testify falsely before a public gathering.

139 N.W.2d at 806–07 (footnote omitted). The U.S. Supreme Court has also noted that,
“without exception all courts have held that an accused is at the very least entitled to have
his friends, relatives and counsel present, no matter with what offense he may be charged.”
In re Oliver, 333 U.S. at 271–72. The constitutional value s of having trial participants
understand they are being observed and providing the support of family to the
defendant— values that are best served when the public is physically present in the
courtroom—are undermined when the public is only allowed to view the proceedings from
a secondary location via a one-way video feed. Accordingly, we conclude that the district
court’s order is a true closure subject to constitutional scrutiny under the Sixth Amendment
and Article I, Section 6, of the Minnesota Constitution.
II.
As discussed earlier, the right to a public trial is not absolute, even for true closures
subject to constitutional scrutiny. A trial may be closed if there is an overriding interest
that is likely to be prejudiced if the public is allowed in the courtroom without any
limitations. Waller, 467 U.S. at 48. Preventing the spread of COVID-19 and ensuring the
safety of trial participants and the public during the pandemic was an overriding interest
that justified at least some restrictions on attendance. See Schmit , 139 N.W.2d at 803

11
(stating that the court may adopt restrictions “to prevent overcrowding, or in the interests
of health or for sanitary reasons” (citations omitted)). No party contests this conclusion.
But even if there is an overriding interest in limiting public presence in the
courtroom, such restrictions are not constitutional unless (1) the restrictions are no broader
than necessary to protect the overriding interest and (2) the district court considered
reasonable alternatives to closure. Waller, 467 U.S. at 48. Further, a district court must
make specific and detailed findings identifying the overriding interest requiring the closure,
disclosing that the district court considered reasonable alternatives to closure and
explaining why the limitations adopted were no broader than necessary to serve the interest
that prompted the closure. Id.; Fageroos, 531 N.W.2d at 202 (stating that the district court
“must articulate its findings with specificity and detail supporting the need for closure”).
We have previously addressed the sufficiency of findings under Waller. In State v.
McRae, we considered a courtroom closure ordered while a minor complainant was
testifying. 494 N.W.2d 252, 259 (Minn. 1992). Though the district court concluded that
the courtroom should be ordered closed following an interview with the minor, no findings
or evidence were included in the record explaining why the closure was necessary. Id. We
held that, “[o]n the record before us we cannot say that there has been compliance with the
requirements set out in Waller.” Id.
In State v. Mahkuk, we similarly concluded that the district court’s findings were
inadequate to support a courtroom closure. 736 N.W.2d 675, 685 (Minn. 2007). The
district court ordered certain spectators excluded from the courtroom based on alleged

12
threats and intimidation of witnesses. Id. at 683–85. We found the district court’s decision
insufficiently supported for constitutional purposes:
Determining whether the closure was no broader than necessary and whether
there were reasonable alternatives to closure is also made more difficult, if
not impossible, by the lack of specific findings by the trial court with respect
to specifically who was intimidating and threatening witnesses, which
witnesses . . . were being intimidated or threatened, and what the nature of
the intimidation and threats was. We therefore conclude that the trial court
failed to make findings adequate to support its closure decision. We are not
saying that closure may not have been warranted. We are simply saying that,
absent evidence in the record and adequate findings by the trial court, we
cannot say that the closure decision by the trial court was proper.

Id. at 685. Mahkuk clarifies that a broad, general statement or an implicit finding is not
enough to justify a closure; “specific findings” by the trial court are required. Id.
We conclude that the district court’s determination that it was necessary to prohibit
all spectators, including two members of Bell’s family, from being physically present in
the courtroom, was properly supported by findings. The court explained that it had
“collaborated extensively with public health officials to institute safety protocols to protect
all necessary parties.” Public health precautions required, among other things, that persons
in the courtroom be separated from each other by 6 feet. The district court developed a
plan that allowed for the defendant, his lawyer and the State’s lawyer, the judge and other
necessary court staff, and the jurors to be in the courtroom with necessary spacing. The
court specifically noted the space limitations of the courtroom, stating that “if I had another
100 feet, I might be able to do that,” and “if Scott County would have built a much bigger
courtroom, I know I could have accommodated that,” but “safety is paramount in this case.”
Accordingly, the district court’s order stated that “there is no way to safely accommodate

13
members of the public or Defendant’s family inside the courtroom.” The court’s findings
support a conclusion that the physical exclusion of all spectators from the courtroom was
no broader than necessary to prevent the spread of COVID-19 and keep trial participants
safe from the disease, and that loosening the restrictions, even slightly, was not possible.
The district court, however, did not make sufficient findings under Waller to allow
us to assess whether the district court considered reasonable alternatives to closure that
would have allowed members of the public to be present for the trial. See Waller, 467 U.S.
at 48 (stating that a court must make findings that it considered reasonable alternatives to
closing the proceeding). For instance, the district court made no findings to suggest that it
considered holding trials in a venue other than a courtroom at the Scott County courthouse
that would have accommodated members of the public in the space where the trial
occurred. This is not an inquiry the district court can take lightly. In Presley v. Georgia ,
558 U.S. 209, 216 (2010) (per curiam), the court stated that it was “incumbent upon [the
district court] to consider all reasonable alternatives to closure.” (Emphasis added. )
District courts must “take every reasonable measure to accommodate public attendance at
criminal trials.” Id. at 215. In Presley, the Supreme Court explicitly stated that trial courts
are required to consider alternatives to closure, “even when they are not offered by the
parties.” Id. at 214.
Furthermore, the district court did not make findings to explain why a one-way
video feed from the trial courtroom to the viewing courtroom made the closure no broader
than necessary to protect the governmental interest in reducing the spread of COVID-19.
See Waller, 467 U.S. at 48. As Bell pointed out to the district court, its plan did not allow

14
participants in the trial (witnesses, the defendant, jurors) to see the public watching the
trial. The district court had to consider whether there was a way to allow trial participants
to see the spectators watching them perform their roles and responsibilities. And, as Bell
notes on appeal, a two-way video feed (as an example of a mechanism to allow participants
to see spectators) would impinge far less on the values underlying the public trial
right—specifically the values of ensuring that trial participants see and understand that the
public is watching them and of providing the support of family to the defendant during the
trial—than a one -way video feed. Of course, public health is served equally well by
segregating the public in a location remote from the trial courtroom with a two-way video
feed as it is with a one-way feed. Stated another way, using a one-way video feed is broader
than necessary to serve the interest in protecting public health if implementing some
method allowing trial participants to view spectators, such as a two -way feed, had been
reasonably possible under the circumstances existing in Scott County in the summer of
2020.
The State claims that the failure of the district court to consider two-way video does
not matter because Bell failed to specifically suggest two-way video at trial and so forfeited
the argument. We disagree. Bell broadly (and correctly) objected that the district court’s
closure plan did not allow the trial participants to see the public during the trial. See Schmit,
139 N.W.2d at 806–07; In re Oliver, 333 U.S. at 271–72. Moreover, the district court has
an independent responsibility to consider ways to limit the impact of a closure even if the
defendant does not raise the specific alternative. See Presley, 558 U.S. at 215 (“Trial courts
are obligated to take every reasonable measure to accommodate public attendance at

15
criminal trials.”). Accordingly, we conclude that Bell’s argument on this point is not
forfeited.
The dissent’s analysis appears to focus on what was reasonable in the context of the
COVID-19 pandemic. Even if the district court adhered to the Judicial Council’s
COVID-19 protocols and consulted with public health officials in a manner one might
consider reasonable, that does not exempt the district court from its responsibilities under
the Minnesota and U.S. Constitutions. Our precedent is clear that a closure must be no
broader than necessary (even if a broader closure might seem reasonable). Mahkuk,
736 N.W.2d at 685; see Waller, 467 U.S. at 48. And we have also been clear that district
courts must make express, specific findings to that effect. See Mahkuk, 736 N.W.2d at
685; McRae, 494 N.W.2d at 259. Implicit findings or speculation as to what the district
court “undoubtedly” considered is not enough to fulfill this constitutional mandate.
Although the need to protect public health during the pandemic is an overriding
interest that may require that the public trial right be limited, the pandemic does not
eliminate the district court’s constitutional responsibility to make adequate findings
justifying the need for, and scope of, the restrictions placed on the public trial right. See
Kurtenbach v. Howell, 509 F. Supp. 3d 1145, 1152 (D.S.D. 2020) (“There is no pandemic
exception to the Constitution.” (quoting Carson v. Simon, 978 F.3d 1051, 1060 (8th
Cir. 2020))); see also Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. __, 141 S. Ct.
63, 68 (2020) (per curiam) (“[E]ven in a pandemic, the Constitution cannot be put away
and forgotten.”). We hold that the district court’s decision to close the courtroom despite
the constitutional right to a public trial was insufficient under Waller because the district

16
court made insufficient findings to show that (1) it considered reasonable alternatives that
would have allowed it to hold a trial with public spectators in the courtroom1 and (2) there
was no way for the trial participants to see the public observing the trial even though it was
necessary for the public to be segregated in a room different from the trial courtroom.
III.
We now turn to the proper remedy for the district court’s failure to make adequate
findings discussing the lack of reasonable alternatives to closure and the scope of the
closure.
Unjustified or overbroad closure of a trial is structural error and not subject to
harmless error review. State v. Bobo, 770 N.W.2d 129, 139 (Minn. 2009). Nonetheless,
Waller and our precedent make clear that the remedy for a public trial right violation should
be appropriate to the violation. Waller, 467 U.S. at 49–50; State v. Jackson, 977 N.W.2d

1 Relying on State v. Brimmer, 983 N.W.2d 247, 269 –70 (Iowa 2022), the dissent
posits that the district court complied with court orders related to the conduct of trials in
the summer of 2020 and asserts that fact should alleviate our concern about the requirement
that the district court make factual findings on less restrictive alternatives. We are not so
easily assuaged. First, the Brimmer court was criticizing the district court for not
complying with court orders on the conduct of trials during COVID-19. Id. at 267
(concluding that a defendant’s public-trial rights were violated when the district court
excluded his mother from the courtroom, despite having space available and a directive
“to permit public attendance as space allowed”). We are not claiming the district court
failed to comply with court orders in this case. Second, nothing in any of the
COVID-19-motivated court orders mandated that trials be held in the manner allowed by
the district court in this case. The orders were much more general. Finally, there is nothing
in the record concerning whether the district court considered other reasonable alternatives
when it established the plan for courtroom trials in Scott County. We are remanding this
case to the district court precisely to allow for such findings to be made as required under
Waller.

17
169, 174–76 (Minn. 2022), cert. denied, 143 S. Ct. 500 (2022); see also Bobo, 770 N.W.2d
at 139.
A remand for further findings on the need for, and scope of, a closure may be more
appropriate than a new trial to remedy inadequate findings under Waller, 467 U.S. at 50.
In State v. Biebinger, we used this precise remedy following a jury trial. 585 N.W.2d 384
(Minn. 1998). The district court in Biebinger ordered the courtroom closed during the
testimony of the victim but failed to make “adequate findings of necessity and availability
of other, better alternatives to closure.” Id. at 385. We remanded the case for an
evidentiary hearing for findings on the closure, stating that doing so was the “appropriate
initial remedy.” Id.; see also State v. Petersen, 933 N.W.2d 545, 552 (Minn. App. 2019)
(citing Biebinger for the rule that “if a district court does not make findings to justify the
closure of the courtroom, the appropriate initial remedy is a remand to the district court for
an evidentiary hearing and findings concerning the closure”).
We similarly conclude that the appropriate initial remedy here is to remand this case
to the district court. On remand, the district court must address objective questions about
what was reasonably possible in the summer of 2020. Accordingly, we see no unfairness
in giving the district court judge a second opportunity to make an explicit record on the
reasonable alternatives to closure that it considered before issuing its order closing the trial
and on whether the trial closure was broader than necessary.2

2 One reason the district court did not include the specific findings required under the
fourth factor of Waller may be that it had mistakenly concluded there was no closure at all.
If no closure occurred, no findings are required under Waller. Asking the district court to
go back and make these findings is not, as the dissent alleges, “moving the goalposts.” At

18
As an appellate court, we are “mindful of the dynamic circumstances in which
district court judges must make decisions.” State v. Dorsey, 701 N .W.2d 238, 250 n.7
(Minn. 2005). The district court was facing a global pandemic; a circumstance that our
courts have not faced in at least several generations. There was little understanding about
the mechanisms by which the COVID-19 virus spread and no vaccine was available when
the district court had to make its decision. The district court—indeed, our entire state court
system— was also acting under pressure to get criminal trials restarted for constitutional
reasons; Bell himself had demanded a speedy trial. See generally State v. Tate ,
985 N.W.2d 291, 301–04 (Minn. 2023) (outlining the challenges created by the COVID-19
pandemic in the context of a challenge to a conviction under the Sixth Amendment
Confrontation Clause). In that context, balancing the competing challenges of moving
criminal trials forward and keeping trial participants safe, while remaining true to
constitutionally guaranteed fundamental rights, was not easy; certainly, it is much harder
than it is for us reviewing those decisions from our perch of “ evaluating a static,
unchanging record” after the fact. But insisting that those fundamental constitutional rights
be respected is our job. Dorsey, 701 N.W.2d at 250 n.7.
On remand, the district court should make express findings concerning reasonable
alternatives to closure that it considered before issuing its order closing the trial. The
district court should also make findings on whether the trial closure was broader than

this point, we are not deciding whether the restrictions were justified. We are merely
asking the district court to make findings it understandably did not make at the time given
the incorrect conclusion under which the district court was operating.

19
necessary, including specific findings regarding whether two-way video (or some other
mechanism to make trial participants aware that they were being watched by the public and
provide Bell with the support of his family) was reasonably possible during Bell’s trial.
Before making these findings, the district court should allow input from both Bell and the
State. Assuming there was no reasonable alternative to holding trial in the Scott County
courtroom, the district court need not make further findings on whether there was room in
the courtroom for spectators including one or two members of Bell’s family. As we
discussed, its findings on that point are sufficient.
If the district court did consider reasonable alternatives to closing the trial and
determines with specific findings that the closure was no broader than what was necessary
to protect against the spread of COVID-19, Bell’s conviction stands (subject, of course, to
further appeal). If the district court did not consider reasonable alternatives to closing the
trial or if it determines that the closure was broader than needed to protect against the spread
of COVID-19 (for instance, if it concludes that two-way video was a reasonable option in
the summer of 2020), then it must hold a new trial.
CONCLUSION

For the foregoing reasons, we reverse the decision of the court of appeals and remand
to the district court for further proceedings consistent with this opinion.
Reversed and remanded.

D-1
D I S S E N T

McKEIG, Justice (dissenting).

The COVID-19 pandemic upended countless parts of society, including the court
system. This court recognizes this cataclysmic shift in our world, yet uses the benefit of
its current vantage point to assess the actions of a district court at the height of the
pandemic. With the benefit of hindsight, the court ultimately concludes that the district
court failed to make adequate findings as required by Waller v. Georgia, 467 U.S. 39, 48
(1984). I disagree with this conclusion. The findings of the district court are sufficient to
hold that Bell’s public trial right was not violated. I therefore respectfully dissent.
1
The United States and Minnesota Constitutions guarantee criminal defendants the
right to a public trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6. But the right to a
public trial under the Sixth Amendment is not an absolute right. State v. Taylor,
869 N.W.2d 1, 10 (Minn. 2015). The court may adopt restrictions “to prevent
overcrowding, or in the interests of health or for sanitary reasons.” State v. Schmit,
139 N.W.2d 800, 803 (1966) (footnotes omitted) (emphasis added). To determine if there
is a violation of the defendant’s right to a public trial, the court applies a four -factor test,
set forth in Waller v. Georgia: (1) the party seeking closure advances an overriding interest
that is likely to be prejudiced; (2) the closure is no broader than necessary to protect that
interest; (3) the court considers reasonable alternatives to closure; and (4) the court makes
adequate findings that support the closure. State v. Fageroos, 531 N.W.2d 199, 201 (Minn.

1 I assume without deciding that the limitations in the courtroom were a closure.

D-2
1995) (citing Waller, 467 U.S. at 48). District courts determine whether closure is
necessary on a case-by -case basis. See Globe Newspaper Co. v. Superior Ct., 457 U.S.
596, 608 (1982); Fageroos, 531 N.W.2d at 202.
I agree with the majority that the goal of curbing the spread of the COVID-19
pandemic and ensuring the safety of trial participants in this case was an overriding
governmental interest that justified restrictions on attendance, which therefore satisfies the
first Waller factor. See Waller, 467 U.S. at 48. But I disagree with the majority’s
determination that the district court did not satisfy the fourth Waller factor by failing to
make sufficient findings.
The purpose of the fourth Waller factor is to ensure that reviewing courts have
findings with enough specificity to determine that the other three Waller factors justified
the closure imposed in a particular case. See Fageroos, 531 N.W.2d at 202 (explaining
that the decision to close a courtroom must involve a “case -by-case” determination). The
majority claims that the findings are inadequate because we lack the necessary information
to determine whether the closure was no broader than necessary under the second factor of
Waller and whether all reasonable alternatives were considered under the third factor of
Waller. But from the record before us, we have enough information to conclude that the
district court satisfied both factors.
Regarding the second Waller factor—whether the closure was no broader than
necessary— the majority acknowledges that the district court made findings adequate to
support the determination that Bell could not have even a single supporter present in the
courtroom. But the majority further states that we lack the findings to determine whether

D-3
a two-way video feed was considered. Bell did not raise the possibility of two-way video
to the district court, but the majority cites Presley v. Georgia, 558 U.S. 209, 216 (2010)
(per curiam), for the proposition that courts must “consider all reasonable alternatives to
closure,” regardless of whether they are raised by either party. Therefore, the majority
concludes, the district court had to make findings on the availability of a method for trial
participants to view spectators, such as two-way video.
But Presley requires the district court to consider “all reasonable alternatives” to
closure—the third factor of Waller, not the second. See id. (emphasis added). Neither our
court nor the U.S. Supreme Court require that the district court must independently
consider all possible ways to limit the breadth of the closure, including those not raised by
the parties. Moreover, even if we assume that the mandat e in Presley also applies to the
district court’s responsibility to make sure the closure is no broader than necessary, the
purpose for the analysis under the second factor would be the same as the third: that the
court must act reasonably to vindicate the public trial right.
So what was reasonable for a district court at the height of the COVID-19 pandemic?
On this issue, we have ample findings from the district court and the Judicial Council. As
stated by the district court, “[t]he Court has collaborated extensively with public health
officials to institute safety protocols to protect all necessary parties.” Additionally, the
district court’s on-the-record description and acknowledgement of its limited courtroom
sizes as well as the Judicial Branch COVID 19 Preparedness Plan and the Scott County
Jury Trial Plan approval all implicate the Waller factors. The district court’s explicit
findings clearly demonstrate that the court followed all Judicial Orders and public health

D-4
official’s guidance to develop a detailed plan for the jury trial as part of the Minnesota Jury
Trial Pilots. The public access restrictions imposed in this trial were not arbitrary or
impulsive; they were the result of careful collaboration between multiple entities that
would have undoubtedly included conversation about potential alternatives.
But according to the majority, this is not enough. The district court was required to
sua sponte consider two-way video, alternative venues, and numerous other hypothetical
situations that would have either limited the breadth of the closure or served as an
alternative to closure altogether. These hypotheticals might have been possible, but
possible is not the same thing as reasonable. We have already recognized that the impact
of the COVID-19 pandemic should be considered in cases involving other constitutional
issues. See generally State v. Paige, 977 N.W.2d 829, 839–43 (Minn. 2022) (analyzing
the impact of the COVID-19 pandemic on a defendant’s constitutional right to a speedy
trial). And other courts have held that whether a district court complies with relevant
judicial orders informs whether a defendant’s public trial right was violated and “whether
it considered reasonable and less restrictive alternatives.” State v. Brimmer, 983 N.W.2d
247, 269–70 (Iowa 2022); see also State v. Modtland, 970 N.W.2d 711, 722–23 (Minn.
App. 2022), rev. granted in part and stayed (Apr. 27, 2022), rev. denied (Mar. 14, 2023)
(holding that a district court’s adherence to the Minnesota Judicial Branch’s Preparedness
Plan showed it “considered the options available to it”).
Here, the district court did everything it could to rigidly adhere to the requirements
set by the Judicial Council and guidance from public health officials, all while balancing
Bell’s other constitutional rights, including a trial by jury and a speedy trial. By concluding

D-5
that the district court failed to vindicate Bell’s public trial right despite perfectly following
the mandates it was given, the majority is moving the goalposts. The district court may
not have considered all ways to limit the breadth of the closure. The court may not have
considered all alternatives to the closure. But that is not required. Instead, we should look
to what was reasonable given the surrounding circumstances of the closure. The district
court’s description of the restrictions imposed, how and why they were imposed, and the
background of the COVID-19 pandemic and need to vindicate Bell’s other constitutional
rights are sufficient findings to conclude that the district court satisfied the second and third
factors of Waller.
CONCLUSION
For the foregoing reasons, I respectfully dissent.

GILDEA, Chief Justice (dissenting).
I join in the dissent of Justice McKeig.