State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0023

State of Minnesota,
Respondent,

vs.

Joseph Loren Allen Maine,
Appellant.

Filed September 13, 2021
Reversed and remanded
Bryan, Judge

Jackson County District Court
File No. 32-CR-18-181

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Thomas J. Prochazka, Jackson County Attorney, Jackson, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bryan, Presiding Judge; Re illy, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
Appellant challenges the district court’s decision to close the courtroom during voir
dire, arguing that this decision violated his constitutional right to a public trial. We reverse

2
the district court’s decision and remand for a new trial because the circumstances of this
case do not warrant an exception to appellant’s right to a public trial.
FACTS
Appellant Joseph Loren Allen Maine was charged with first- and second-degree
criminal sexual conduct. Afte r a trial in 2019, Maine was convicted of both charges and
appealed to this court. Among other argumen ts, Maine contended that the district court
violated his right to a public trial when it conducted individual voir dire of 18 prospective
jurors without making case-specific findings to exclude the public. State v. Maine , No.
A19-1474, 2020 WL 3042248, at *8 (Minn. App. June 8, 2020), rev. denied (Minn. Aug.
25, 2020). We concluded that a true closure of the cour troom occurred and remanded to
the district court for a possibl e evidentiary hearing and furt her findings “concerning the
reasons for closing the courtroom, the necessary breadth of the closure, and the existence
or absence of reasonable alternatives to closure.” Id. at *9. After remand, the district court
issued an order explaining its decision to close the courtroom. Maine now appeals from
that order. Given the issue on appeal, we firs t summarize the process used to select the
jury and then discuss the district court’s order after remand.
Because the case involved criminal sexual conduct of minor victims, the district
court selected a jury using written questionnai res. The three-page questionnaire asked
prospective jurors seven questions regarding their experience with sexual assault and
sexual abuse. Nothing in the written questionn aire informed the pros pective jurors that
they could request an opportunity to addr ess the court in camera, with counsel and
defendant present, or otherwise asked the prospective jurors to indicate whether they could

3
be honest and forthright resp onding to questions about sexual assault in open court. The
district court also provided a verbal explan ation of the voir dire process and told the
prospective jurors that a questionnaire woul d be used because it might be uncomfortable
to answer in front of the other jurors:
To ensure both the Defendant and the State receive a
fair trial by an impartial jury, the rules provide for me and for
counsel to ask certain questions. Because of the nature of this
case, there may be certain questions that would be asked that a
juror might find uncomfortable answering while in a group of
people; therefore, the questi ons have been put in written
format.

. . . .

After the attorneys and I have reviewed the questionnaires, we
may have some follow-up questions with some of the jurors.
If we do, I will ask the juror to meet with me and the attorneys
in a separate room. After a ny follow-up questions have been
asked, we will return to the co urtroom and begin voir dire or
general questioning. I do want to assure you that your answers
on the questionnaire are kept confidential. Only I, the
attorneys, and my staff will see them. No copies will be made
of the questionnaires.

The district court did not ask the prospective jurors whethe r any of them had a concern
about answering questions in open court. The parties reviewed the completed jury
questionnaires and 18 prospective jurors were selected for individual voir dire.
The district court then held individual voir dire of jurors in a separate courtroom
that was closed to the public. The district court, and the a ttorneys for both the state and
Maine, questioned 18 potential jurors about their responses to the questionnaires for
approximately two hours. Then the district c ourt proceeded with general voir dire for an
additional hour and a half in the original courtroom. Six of the eighteen jurors questioned

4
in private were ultimately sele cted as jurors. Th e jury found Maine guilty of all charged
counts.
After the initial appeal and remand, the dist rict court made the following findings
based on the record: the panel of prospective jurors were “placed under oath” and provided
a questionnaire; after the panel had completed the questionnaires, “counsel for the State
and Maine reviewed the questi onnaires and determined which jurors they wanted to
individually question ba sed on their responses . . . relati ng to sexual abuse;” “[e]ighteen
jurors were questioned individually;” these ei ghteen jurors were “brought to the smaller
courtroom where Maine, his co unsel, counsel for the State, and the court were present;” 1
these jurors were “questioned only about their response to the sexual abuse questions and
not any other general voir dire ;” “[c]ounsel for both sides we re given an opportunity to
question the juror on the issue; ” and “[a]fter the individual questioning was concluded,
general voir dire was conducted in the main courtroom.” The district court explained that
the closure was necessary to ensure selection of a fair jury and to protect juror privacy. In
the district court’s view, the nature of criminal sexual conduct cases makes juror responses
“potentially very private and sensitive,” a nd a “potential juror, who may have never
disclosed the information before, has a strong interest in keeping the matter private or
limiting” the disclosure. The district cour t continued that “[r]evealing such private

1 In his brief, Maine states that “the court and attorneys met privately.” In addition, in the
initial appeal, this court noted that “only the juror, the judge, an d the attorneys were
present” and “the courtroom was not open to the public or the press, to appellant or any of
appellant’s friends or family, or to any other witnesses.” Maine, 2020 WL 3042248, at *9.
After remand, however, the district court fou nd that Maine was present during the closed
voir dire, and Maine does not challenge this finding.

5
information in a public setting might discourage a potential juror from full[y] discussing
any possible biases or concerns because it w ould require them to state [such information]
in front of a public audience.” The district court also concluded that there were “no other
reasonable alternatives” to the courtroom closure.
DECISION
Maine argues that the district court clos ed the courtroom during voir dire without
justification. We agree. The circumstance s of this case do not satisfy the constitutional
requirements to close the courtroom and conduct criminal proceedings in private.
The United States and Minn esota Constitutions require criminal trials to be
conducted in open court. U.S. Const. amend. VI; Minn. Const. art. I, § 6; Waller v.
Georgia, 467 U.S. 39, 46 (1984). This constitu tional guarantee “applies to all phases of
trial, including . . . jury voir dire.” State v. Brown, 815 N.W.2d 609, 617 (Minn. 2012); see
also Presley v. Georgia, 558 U.S. 209, 213 (2010) (extending the right to a public trial to
voir dire proceedings). The requi rement of a public trial, however, is not absolute: “the
right to an open trial may give way in certain cases to other rights or interests.” Waller,
467 U.S. at 45. “Such circumstances will be rare,” and the district court must balance the
competing interests “with special care.” Id. In Waller, the United States Supreme Court
articulated the appropriate standard fo r determining whether a true closure 2 of the
courtroom is justified:

2 This court previously determined that a true closure occurred. Maine, 2020 WL 3042248,
at *9; see also State v. Taylor , 869 N.W.2d 1, 11 (Minn. 2015) (holding that the Waller
standard applies to a “true closure”).

6
[T]he party seeking to close the hearing must advance an
overriding interest that is likel y to be prejudiced, the closure
must be no broader than necessary to protect that interest, the
trial court must consider reasonable alternatives to closing the
proceeding, and it must make findings adequate to support the
closure.

Waller, 467 U.S. at 48 (citing Press-Enter. Co. v. Superior Court , 464 U.S. 501, 510
(1984)); see also State v. Fageroos , 531 N.W.2d 199, 201-02 (M inn. 1995). We apply a
de novo standard of review in this case. Maine, 2020 WL 3042248, at *8-9.
3
We first address whether public voir dire of the 18 jurors threatened the competing
interests advanced by the state. We conclude that the state did not advance an overriding
interest because there is no indication that any prospective jurors actually had privacy

3 We previously considered whether to apply a de novo standard of review or a plain error
standard of review to the district court’s decision to close the courtroom. Maine, 2020 WL
3042248, at *8-9 (discussing State v. Benton, 858 N.W.2d 535, 540 (Minn. 2015) (applying
the plain error standard of review) and State v. Petersen, 933 N.W.2d 545, 551 (Minn. App.
2019) (applying a de novo standard of review)). We concluded that a de novo standard of
review applied in this case because the actions of Maine’s attorney more closely resembled
those of the trial attorney in Petersen than those of the attorney in Benton:

Here, the record reveals, and appellant concedes, that he
made no objection on the reco rd to the district court
questioning jurors in privat e about their questionnaire
responses. However, as noted by appellant, nothing in the
record suggests that appellant “actively sought” questioning of
jurors in private. Thus, despite the state’s contention that this
case is more similar to Benton, in which Benton “actively
sought” closure of the courtroom two times, we conclude this
case is more like Petersen, in which there was “equivocal
objection and arguable acqui escence to the courtroom
closure.” Accordingly, we ap ply the de novo standard of
review.

Id. at *9 (citations omitted).

7
concerns. Next, we discuss the breadth of the exclusion of the public in this case and the
existence of reasonable alternatives.4 We conclude that the cl osure of the courtroom was
too broad given alternative limitations that the district court declined to impose.
A. Likelihood of False or Withheld Information
The state argued before the district court that closure was necessary based on a
concern that the 18 jurors would be dishon est or would conceal their true beliefs if
questioned in open court. The state advanced two related interests based on this concern:
protecting juror privacy and ensuring a fair pr ocess for selecting jurors. Neither stated
interest justifies closing the courtroom in this case.
Juror privacy and ensuring a fair selection process can theoretically establish an
overriding interest that justifies an in camera voir dire. Waller, 467 U.S. at 45. However,
there must be a valid basis in fact to conclude that an actual and significant privacy interest
is implicated:
Based on our review of the record, we conclude that the
Waller standard for closing the courtroom has not been met.
The problem is that . . . there is no evidence from any witness
asserting that a witness had been intimidated or threatened.
Nor is there any evidence indicating who specifically was
intimidating or threatening witnesses or what the nature of the
intimidation and threats was. Further, with the exception of
[one witness], there is no indi cation as to which specific
witnesses had been intimidated or threatened. The only thing
in the record regarding intimid ation and threats made against
witnesses consists of the prosecutor’s assertions . . . . [T]here

4 Given our review of the state’s stated inte rests in closing the courtroom, the breadth of
the closure, and the existence of reasonable alternatives, in addition to the previous decision
by this court to remand the matter for further findings, we need not otherwise address the
adequacy of the district court’s findings supporting the closure.

8
is no indication in the record as to what it was about [the
witness’s] testimony that supported the closure.

State v. Mahkuk, 736 N.W.2d 675, 685 (Minn. 2007) (reversing the closure of a courtroom
in the absence of evidence of actual threat to a witness’s privacy or safety); State v. McRae,
494 N.W.2d 252, 259 (Minn. 1992) (reversing the closure of a courtroom in the absence of
“a showing that closure was necessary to protect the witness or ensure fairness in the trial”);
see also Press-Enter. Co., 464 U.S. at 512 (concluding that requiring a “prospective juror
to make an affirmative request” to provide an answer in private “can ensure that there is in
fact a valid basis for a belief that disclosure infringes a significant interest in privacy”
(emphasis added)).
In this case, none of the questions or statements in the questionnaire asked the
prospective jurors whether they had any concerns about discussing sexual assault in public.
Instead of tying the decision to close the courtroom to specific jurors or to specific answers
on the questionnaire, the district court reasoned that the nature of the charges alone justified
the courtroom closure. 5 While the charges involve traumatic and deeply personal
experiences, we do not agree that the charges alone support a generalized concern that the
18 jurors were likely to provide false information or withhold information if questioned in
open court. Like in Mahkuk, we find no indication or evid ence that conducting a public
proceeding would actually implicate the state’s theoretical concern. In the absence of a

5 We also observe that certain statements in the record reveal th e state’s concern about
requiring a juror to answer a sensitive question in front of other jurors. The impact of one
prospective juror’s statement on the rest of the prospectiv e jurors may be a reason to
conduct individual voir dire, but it is not a reason to exclude the public from the courtroom.

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showing that “there is in fact a valid basis for [the state’s] belief that disclosure infringes a
significant interest in privacy,” Press-Enter. Co., 464 U.S. at 512, we cannot conclude that
an overriding interest justified the closure of the courtroom.
B. Breadth of Closure given Reasonable Alternatives
Next, we turn to the second and third components of the Waller standard, which are
closely related and require a district court to narrowly tailor its restrictions to the identified
interest. Fageroos, 531 N.W.2d at 201 (adopting Waller requirements that the closure must
not be any broader than necessary to protect the identified interest and that the district court
must consider reasonable alternatives to closing the proceeding (quotations omitted)); see
also Minn. R. Crim. P. 26.02, subd. 4(4)(c) (“Any closure must be no broader than
necessary to protect the overriding interest.”). In the voir dire context, these aspects of the
Waller standard require an assessment of what steps a court can take to address the state’s
concerns without infringing on a defendant’s right to a public trial.
In this case, the closure extended to all of the 18 jurors in question and it applied to
all categories of the public. Reasonable alternatives to this broad closure included asking
jurors to affirmatively request or otherwise note their preference to answer questions in
camera. See Minn. R. Crim. P. 26.02, subd. 2(3) (stating that when using questionnaires,
the district court “ must tell prospective jurors that if sensitive or embarrassing questions
are included on the questionnaire, instead of answering any particular questions in writing
they may request an opportunity to address the court in camera , with counsel and the
defendant present, concerning their desire that the answers not be public” (emphasis
added)). In addition, the dist rict court could have consid ered whether to exclude only

10
certain members of the public . For example, when deciding whether to close the
courtroom, the presence of a defendant’s close friends and family members might present
different privacy concerns than the presence of the close friends or family of a victim. We
agree with Maine that th e district court in this case did not specifically consider these or
other alternatives to the broad closure of the courtroom applying to all 18 jurors and all
members of the public. For these reasons, the broad courtroom closure ordered in this case
infringed Maine’s right to a public trial.
Reversed and remanded.