State of Minnesota, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A24-0129

State of Minnesota,
Respondent,

vs.

Fawaz Mohamed Abukar,
Appellant.

Filed February 3, 2025
Reversed and remanded
Ross, Judge

Olmsted County District Court
File No. 55-CR-23-2432

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

Mark A. Ostrem, Olmsted County Attorney, James E. Haase, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, John Patrick Monnens, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Ross, Judge; and Harris,
Judge.
SYLLABUS
A district court’s midtrial order prohibiting spectators from entering the courtroom
except each morning before the proceedings begin and during the three scheduled daily
breaks constitutes a true closure of the courtroom that implicates the criminal defendant’s
Sixth Amendment right to a public trial.

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OPINION
ROSS, Judge
Midway through appellant Fawaz Abukar’s three-day criminal trial, the district
court prohibited any member of the public from entering the courtroom except before the
trial day commenced and during scheduled breaks in the proceedings. On appeal from his
convictions, Abukar argues that the district court violated his constitutional right to a public
trial and erroneously calculated his criminal-history score for sentencing. Because we hold
that the district court violated Abukar’s right to a public trial by closing the courtroom
without adequate justification, and because the violation constitutes a structural error, we
reverse Abukar’s convictions and remand for a new trial without addressing his sentencing
argument.
FACTS
The state charged Fawaz Abukar with two counts each of first-degree burglary,
felony domestic assault, and violation of a domestic-abuse no-contact order (DANCO)
after incidents in which Abukar allegedly entered the home of his child’s mother without
consent and assaulted her. Abukar pleaded not guilty and his case proceeded to a jury trial.
During an afternoon break the first day of trial, the prosecutor brought to the district
court’s attention her concerns that “supporters of Mr. Abukar[]” had been engaging with
the state’s witnesses in the courthouse hallway. The court addressed Abukar’s sister to
express its concern about witness interference, explain ing the importance of prospective
witnesses not being informed about the content of other witnesses’ testimony.
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Over the lunch break on the second day of trial, the district court explained to the
parties that the court’s witness-interference concerns discussed the previous day were
unfounded but that the court perceived there to be courtroom distractions:
[Y]esterday and then again this morning . . . as our lay
witnesses were coming and going from the courtroom, there
were members of the gallery that were also coming and going
from the courtroom with those lay witnesses. That activity
stopped once our law enforcement officers started taking the
stand. I did not have people coming and going from the
courtroom at that time.

The district court then orally ordered that no one other than trial counsel and testifying
witnesses could enter or re-enter the courtroom except in the morning before the
proceedings began and during the planned midmorning, lunch, and midafternoon breaks.
The court maintained that the described activity had been distracting to the jury, to court
personnel, and to the judge herself. The district court said that it was “not closing the
courtroom” by its order but that it was “going to limit folks coming and going in the
courtroom so that we can pay attention to what’s going on in the courtroom.”
Abukar’s attorney moved the district court to declare a mistrial, challenging the
district court’s assertion that any improper spectator behavior had occurred and arguing
that the district court was violating Abukar’s right to a public trial by closing the courtroom
without adequate justification. The district court denied Abukar’s motion. It reasoned that
it was distracting “to have people coming and going from the trial while we were
undergoing,” that these distractions had occurred throughout the trial, and that the court
was therefore limiting the public’s access to the courtroom during proceedings. The district
court again asserted that its order had not actually closed the courtroom:
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People were allowed to be present and to be in once we started
going. They were not allowed to continue to come and go from
the session. We did have members of the public present and
with us during session yesterday afternoon. There were
members of the public as well as members of various offices
present during the trial yesterday afternoon. It was not a closed
courtroom. People were simply not allowed to come and go as
they desired.

It also announced that its order would continue for the remainder of the trial, emphasizing,
“If you are in, you are in. If you are out, you are out. Those changes and transitions can be
made at our scheduled breaks during the day.”
The trial concluded later that same day, and the jury found Abukar guilty on all
charges. The district court sentenced Abukar to concurrent executed prison terms, the
longest being 108 months.
Abukar appeals.
ISSUE
Did the district court violate Abukar’s constitutional right to a public trial by
restricting public access to the courtroom during the second half of his trial, permitting
entrance only before each day’s proceedings and during scheduled breaks?
ANALYSIS
Abukar argues that the district court improperly closed the courtroom in violation
of his right to a public trial. The federal and state constitutions afford Abukar the right to a
public criminal trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6. The Sixth Amendment
public-trial right “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
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his triers keenly alive to a sense of their responsibility and to the importance of their
functions.” Waller v. Georgia, 467 U.S. 39, 46 (1984) (quotation omitted). Whether the
district court violated a defendant’s constitutional right to a public trial is a legal question
that we review de novo. State v. Brown, 815 N.W.2d 609, 616 (Minn. 2012). A violation
of the right to a public trial is a structural error, which entitles the defendant to relief without
a showing of prejudice. State v. Bobo, 770 N.W.2d 129, 139 (Minn. 2009). But the district
court can close the courtroom without violating the defendant’s public-trial right by
identifying an overriding interest and making “findings specific enough that a reviewing
court can determine whether the closure order was properly entered.” Waller, 467 U.S. at
45 (quotation omitted). Our de novo review leads us to conclude that the district court
closed the courtroom without adequate justification, violating Abukar’s right to a public
trial.
The entry restriction was a courtroom closure implicating the right to a public trial.
We must first address the threshold question of whether the district court’s actions
constituted a courtroom closure substantial enough to implicate Abukar’s public-trial right.
This is because a restriction on courtroom access in Minnesota does not implicate a
defendant’s right to a public trial when it is too insignificant to “amount to a ‘true closure’
of the courtroom and, thus, do[es] not require” the district court to justify it. State v.
Petersen, 933 N.W.2d 545, 551 (Minn. App. 2019); see also State v. Taylor, 869 N.W.2d
1, 11 (Minn. 2015) (recognizing the preliminary issue of “whether a closure was too trivial
to amount to a violation of the Sixth Amendment”) (quotation and alteration omitted). To
determine whether a “true closure” occurred here, we must consider factors such as
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whether the courtroom was “cleared of all spectators,” whether the proceedings remained
“open to the general public and the press at all times,” whether members of the public were
absent during any stage of trial, and whether the defendant, his friends or family, or any
witnesses were excluded from the courtroom. State v. Lindsey, 632 N.W.2d 652, 660–61
(Minn. 2001). The main focus of this analysis is to determine whether “the values sought
to be protected by a public trial right were in fact protected.” Id. The attendant factors in
this case present a close question, but after careful consideration we conclude that the
district court’s entry restrictions during the latter half of Abukar’s trial are of a nature that
triggers Sixth Amendment protection.
We reach this conclusion by comparing the circumstances of this case to those
addressed by the state supreme court in Brown, Caldwell, and Silvernail. The court has
consistently concluded that closing the courtroom for discrete trial segments does not
implicate the right to a public trial. In State v. Brown, the court held that the district court
did not implicate the defendant’s right to a public trial by closing the courtroom for jury
instructions but allowing the spectators already present to stay. 815 N.W.2d at 617–18. The
Brown court reasoned that the trial stayed open to those members of the public who
remained in the courtroom during the instructions, that it never ordered any specific person
to be removed, and that the jury instructions “did not comprise a proportionately large
portion of the trial proceedings.” Id. at 618. In State v. Caldwell, the court held that
excluding the defendant’s mother from trial after she repeatedly disrupted proceedings and
closing the courtroom for jury instructions did not violate the defendant’s public-trial right
because the district court excluded only a specific individual “and never excluded all
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spectators from the courtroom even when the court locked the courtroom doors.” 803
N.W.2d 373, 390 (Minn. 2011). And in State v. Silvernail, the court concluded that locking
the courtroom during the state’s closing argument was “trivial” because the district court
did not remove any spectators before doing so and because the record included no evidence
that any member of the public was actually denied access. 831 N.W.2d 594, 600–01 (Minn.
2013). These cases all bear some minor similarities to this case. But for the following
reasons we see fundamental distinctions that lead us to conclude that the scope of the
district court’s restrictions here are not the sort of trivial restrictions that escape the need
for justification.
Unlike the cases mentioned, the restriction on courtroom access here was not for a
discrete segment of the trial proceedings, such as only jury instructions or only a party’s
closing argument. The district court in this case issued a plenary restriction on the public’s
entry into the courtroom for what turned out to be the entire second half of Abukar’s trial.
This included a substantial portion of the state’s presentation of its evidence as well as the
parties’ closing arguments, the court’s instructions to the jury, a hearing on Abukar’s
mistrial motion, the jury’s in-court review of a video exhibit, and the jury’s return of its
verdicts. So while the district court’s actions in Brown could be described as trivial because
they “did not comprise a proportionately large portion of the trial proceeding s,” 815
N.W.2d at 618, the same cannot be said here.
Locking the courtroom during trial to allo w the attendance of only those who had
entered before the closure is no substitute for an open proceeding. At oral argument,
counsel for the state attempted to justify this sort of closure by analogizing the district
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court’s action here to a trial during which the courtroom gallery is so full that no additional
member of the public could enter. The analogy’s flaw is similar to the irony that infects the
(purported) Yogiism, “Nobody goes there anymore. It’s too crowded.” It fails as a
constitutional argument for the obvious reason that a courtroom closed to additional public
attendees because it has too many public attendees is, necessarily, a courtroom where the
defendant’s right to a public trial is being vindicated as much as it physically can be. By
contrast here, it was the district court’s choice rather than the physical restraint of capacity
that closed the courtroom to more entrants.
Despite the state’s contrary assertion, it is self-evident to us that the values that the
public-trial right seeks to protect are not, in fact, protected by allowing entry to the
courtroom only during intermissions. It is true that, as in the cases discussed, the district
court did not oust those who were already present before it imposed its restriction. And as
the state asserts, at least some members of the public—including Abukar’s family and
friends—were present throughout the trial. But none of the cases we have reviewed suggest
that these circumstances render an entry restriction trivial and free from Sixth Amendment
scrutiny.
The public inaccessibility during the evidentiary and other segments of the trial
indicates the nontrivial nature of the closure here. The district court’s entry prohibition was
broad and threatened to prevent all public access to key trial segments if no spectator made
it back in time after a break. We do not believe that the mere presence of several members
of the public in a courtroom from which all others have been barred during “a
proportionately large portion of the trial proceedings,” Brown, 815 N.W.2d at 618, can
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shield the restriction from Sixth Amendment review. As the supreme court cautioned in
Brown, the locking of the courtroom doors— even for the limited duration while instructing
the jury—will “create[] the appearance that Minnesota’s courtrooms are closed or
inaccessible to the public,” and “[t]rial courts should therefore commit such acts carefully
and sparingly.” 815 N.W.2d at 618. Holding that the closure in Abukar’s trial was trivial
would undermine that principle and implicitly preauthorize district courts statewide to
employ an intermission-only admission policy as a matter of course in every case,
regardless of the circumstances. We are convinced that approving that sort of unfettered
exclusionary power would necessarily and improperly dilute Minnesota criminal
defendants’ constitutional right to a public trial. For these reasons, we hold that the
restriction employed here was a “true closure” of the proceedings that implicated Sixth
Amendment protection and obligated the district court to provide a sufficient justification.
The courtroom closure was not justified.
Having dete rmined that the district court’s restriction was a closure that implicated
Abukar’s right to a public trial, we turn to consider the circumstances and district court’s
rationale for the closure. This is because the right to a public trial is not absolute and “may
give way in certain cases to other rights or interests, such as the defendant’s right to a fair
trial or the government’s interest in inhibiting disclosure of sensitive information.” Waller,
467 U.S. at 45. The Supreme Court cautions that “[s]uch circumstances will be rare,
however, and the balance of interests must be struck with special care.” Id. To this end,
criminal proceedings enjoy a “presumption of openness,” which “may be overcome only
by an overriding interest based on findings that closure is essential to preserve higher
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values and is narrowly tailored to serve that interest.” Id. (quotation omitted). The district
court must articulate such an overriding interest “along with findings specific enough that
a reviewing court can determine whether the closure order was properly entered.” Id.
(quotation omitted). The state supreme court has reiterated that a nontrivial courtroom
closure is justified only if four conditions are met: that a party seeking closure has
“advance[d] an overriding interest that is likely to be prejudiced” without the closure; that
the closure is “no broader than necessary to protect that interest”; that “the trial court [has]
consider[ed] reasonable alternatives to closing the proceeding”; and that the district court
has “ma[d]e findings adequate to support the closure.” State v. Fageroos, 531 N.W.2d 199,
201–02 (Minn. 1995) (quoting Waller, 467 U.S. at 48). The district court’s closure here
fails under these factors.
Although the district court did not specifically state that it was making the findings
required by Waller, its justifications for the closure are nevertheless sufficient to permit
appellate review of those factors. We decline the state’s request for us to remand this case
for further proceedings on the ground that the district court’s reasons were insufficient to
support its closure of Abukar’s trial. We have previously observed 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.” Petersen, 933 N.W.2d at 552. But the record here already informs us of the
interest the district court believed was at stake, the circumstances inform us whether the
closure was narrowly tailored to protect that interest, and the district court’s stated rationale
informs us whether it considered reasonable alternatives and whether it could render
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findings adequate to support the closure. We therefore need not address the fact that no
party sought in advance to close the hearing or suggested that an overriding interest would
be prejudiced without the closure.
The record reveals the interest the district court believed was at stake —the
prevention of distractions to jurors and court staff caused by “people coming and going
from the courtroom” during trial. T his concern naturally derives from the district court’s
“grave responsibility in overseeing and regulating courtroom conduct and procedure during
trials, including criminal trials.” State v. Mems, 708 N.W.2d 526, 533 (Minn. 2006). And
Minnesota has long recognized that courts have the inherent authority “to restrict
attendance as the conditions and circumstances reasonably require for the preservation of
order and decorum in the courtroom and to protect the rights of parties and witnesses.”
State v. Schmit, 139 N.W.2d 800, 803 (Minn. 1966); see also State v. Ware, 498 N.W.2d
454, 458 (Minn. 1993) (“Without a doubt a trial court may, in the appropriate exercise of
its discretion, exclude spectators when necessary to preserve order in the courtroom.”). But
the supreme court has cautioned that the power to close the courtroom must be used
sparingly and that “[i]t is only under very unusual circumstances that the preservation of
order in the courtroom or of public morals may justify the temporary exclusion of some
part or all of the general public.” State ex rel. Baker v. Utecht, 21 N.W.2d 328, 331 (Minn.
1946). The record does not leave us with the impression that the district court was facing
or attempting to avoid likely disruptions, but only to preempt possible future distractions.
We do not mean to diminish the district court’s reasonable concern that the entering and
exiting of members of the public might cause some degree of distraction to the jury, to
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court personnel, and to the court itself. But risk of some distraction is an inevitable
consequence of a courtroom open to the public. The level of disturbance sufficient to justify
broadly closing the courtroom therefore must exceed the kind of minor distractions that
one might reasonably expect in all routine public-trial proceedings. Based on the district
court’s statements about what was occurring in the courtroom —statements that are
thorough and that we accept as its findings —we can say only that the district court’s
interest in maintaining order was certainly a legitimate one. But the concerns described
cannot constitute a finding that there was a reasonable risk to courtroom order without the
closure.
And even if courtroom order was in jeopardy, we also hold that the district court’s
closure was not sufficiently tailored to address the risk and that the court failed to consider
less restrictive alternatives. The district court did not attempt to address the gallery
beforehand to express its concerns, ask observers to come and go as quietly as possible, or
exclude any particularly distracting entrant. Because any of these options is less restrictive
than closing the courtroom to the public and, if employed, could have effectively remedied
the problem of entry distractions, the district court’s closure was not justified.
DECISION
Because the district court violated Abukar’s constitutional right to a public trial by
closing the courtroom for the second half of his trial without adequate justification, Abukar
is entitled to a new trial. And because we reverse the judgment of conviction and remand
for a new trial, we decline to address Abukar’s sentencing challenge.
Reversed and remanded.