Eighth Circuit panel discusses of public trial rights at sentencing

A panel of the Eighth Circuit provides a pair of interesting opinions in US v. Thompson, No. 12-1673 (8th Cir. April 23, 2013) (available here), concerning the rarely litigated issue of whether a defendant's right to a public trial extends to sentencing.  Here is a snippet from the majority opinion:

In light of the First Amendment public trial access jurisprudence, the emphasis by the Supreme Court that the right was created specifically for the benefit of the accused, the Supreme Court's reminder regarding the critical nature of sentencing hearings themselves, and, most importantly, our conclusion that public access at a sentencing hearing plays a significant positive role in its functioning and furthers the benefits sought to be afforded the accused under the Sixth Amendment, we hold that the Sixth Amendment right to public access attaches at sentencing.  Accordingly, we move on to determine whether the district court, in this instance, violated that right....

In this case, the district court, noting the absence of press representation at the proceeding, reviewed its possible alternatives and cleared Thompson's family from the courtroom during Campbell's testimony, a partial closure.  From the record, it is clear that Thompson's family members were the only people in the gallery who were not court staff. And, even though the district court did not make a thorough record articulating the substantial reason it contemplated prior to its partial closure, the record is sufficient for this court, on appeal, to do so.  Having made such a review, we find no abuse of discretion by the district court.

Judge Gruender authored an extended and very interesting concurring opinion, which gets started this way:

I write separately because although I would affirm the district court’s decision to order a partial closure, I would recognize Thompson’s constitutional right to a public sentencing under the Fifth Amendment, rather than the Sixth.