FORT WORTH -- A Mansfield man sentenced to 12 years in prison for fatally shooting a man he caught kissing his wife at a party is entitled to a new trial because the trial court did not let three relatives sit through jury selection, the 2nd Court of Appeals ruled this week.
The ruling states that Kory Nelson Turner was denied his constitutional right to a public trial when state District Judge George Gallagher rejected a request by defense attorney Larry Moore that the family members be in the courtroom while attorneys questioned potential jurors.Moore wanted to find out whether the potential jurors recognized Turner's wife, brother and father-in-law. Because the courtroom's seating area was full, he asked Gallagher to seat some jury candidates in the jury box to make room for the relatives.Gallagher denied the request because he was already having chairs brought in to accommodate the large jury panel. But he did let Moore introduce the relatives to the potential jurors.The appeals court's opinion refers to a U.S. Supreme Court ruling that trial courts are "obligated to take every reasonable measure to accommodate public attendance at criminal trials" and that circumstances justifying closure "will be rare." In Turner's case, the appeals court found that the trial court did not state an overriding interest other than space concerns, nor did the court consider reasonable alternatives that might have accommodated Turner's relatives."The exclusion of even a single person from court proceedings can violate a person's Sixth Amendment right to a public trial," the opinion says. "Additionally, the right extends to voir dire proceedings," that is, the examination of jury candidates.The opinion of the Fort Worth-based court, signed by Chief Justice Terrie Livingston, was issued Thursday. As of Friday, the Tarrant County district attorney's office had not decided how it would proceed.Deputy District Attorney Jack Strickland said it was "not likely" that prosecutors will appeal the reversal."While we certainly regret the events that led to the reversal of this case, we do not disagree with the principles that underlie the reversal," Strickland said.Defendant got 12 yearsTurner was convicted of killing Leonard Keith Jr., 39, during a party at Turner's home Aug. 23, 2008.Turner testified that the shooting was accidental. He said he repeatedly threw Keith out of the house after catching Keith pinning his wife against a refrigerator in the kitchen. Finally, he went to a bedroom closet to get his loaded 9 mm handgun. He was in his garage when Keith startled him, Turner testified, and he flinched and fired.Prosecutors introduced testimony that Turner's wife was willingly kissing Keith and was not being assaulted. They also argued that it was unlikely that Turner accidentally shot Keith with a gun that took more than 7 pounds of pressure on the trigger to fire.The jury convicted Turner of murder but agreed that he was influenced by sudden passion and sentenced him to 12 years."Our position has been from the very first that this was a justified killing, and we were disappointed whenever he got convicted in the first place," Moore said. "Whatever the state chooses to do ... we'll be there."Gallagher said in an e-mail that he could not comment on a pending case.Opinion not a surpriseThe opinion created a stir at the courthouse.Stephanie Patten, a criminal defense attorney and board member of the Tarrant County Criminal Defense Lawyers Association, said she believes it has been a routine practice that "people who are in the potential voir dire panel would be given priority over other spectators.""I had a recent trial where the bailiff did the same thing -- they told our client's family they needed to leave," Patten said, adding that the judge realized what was going on and had the family members accommodated."It has happened probably pretty regularly and nobody really thought much about it just because of the size of the courtroom and the size of the [jury] panel," Patten said.Patten applauded Moore for objecting to the decision and thus preserving the error for appeal.Moore said he realizes that judges must try to make proceedings accessible to the public in courtrooms that are often too small. However, he said, the opinion sends the message that under the law, even if courts aren't given the resources to deal with space issues, "you're going to have to do it anyway. This right trumps that concern."Strickland said that the opinion should not be surprising and that the real test will be how the opinion is applied to other phases of trials, including final arguments, during which some judges have prevented spectators from coming and going."I think when you read this case and apply the logic that this case mandates, you'll see that logic does not allow for that kind of behavior in the final arguments any more than it does in voir dire -- no more to the end of the trial than in the beginning," Strickland said.That's a good thing, he said."If it does cause a distraction, that's the price of being in a free society," Strickland said.'It's unconstitutional'State District Judge Sharen Wilson said she agrees wholeheartedly that courtrooms are public."I am concerned that we've had other courts when a visiting judge has closed a courtroom for voir dire," Wilson said. "That's just incredibly improper. Forget improper -- it's unconstitutional."But Wilson said she is not concerned that the opinion will hinder her practice of prohibiting spectators from entering her courtroom while attorneys are in the middle of making final arguments."That last 30 minutes to an hour of summation is when we're trying to focus the jury's attention on what the attorneys are saying." Wilson said. "The attorneys are talking about the evidence and law and applying the evidence to the law."As a judge, Wilson said, part of her job is to make sure jurors are not distracted from the trial."What defense attorney is going to object that people aren't allowed to come in and out and roam around the courtroom during his final argument?" Wilson said. "No, I'm not worried."Deanna Boyd, 817-390-7655Twitter: @deannaboydHave more to add? News tip? Tell us
