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A state appeals court has sided with a Milwaukee County judge who barred minors from his courtroom during a sexual assault trial. The case could set a legal precedent for whether courts, which are normally required to hold open trials, can exclude people from attending.

milwaukee county courthouse (adrian palomo)

The judge, Daniel Konkel, posted the sign after a school group inadvertently visited the courtroom during the victim’s testimony, which was graphic. Teachers led the group out of the courtroom after a prosecutor told them that the explicit testimony they had heard so far was “just the tip of the iceberg,” according to the appeals court opinion.

In excluding children, Konkel cited a state law against exposing minors to sexually explicit descriptions and narratives.

The defendant, Stephen Carpenter, argued he was denied a public trial. Carpenter is serving a 59-year sentence for kidnapping, false imprisonment and sexual assault. Prosecutors alleged he had picked up a pregnant 20-year-old Milwaukee woman in 2007 and drove her to his apartment, where a group of men raped her.

The opinion, from Wisconsin’s First District Court of Appeals, says that “although a presumption of openness exists, the right to a public trial is not absolute.” It cites federal case law concluding that an “overriding interest” can lead to closure (or partial closure, as in this case) “to preserve higher values.” The closure, however, must be “narrowly tailored to serve that interest.”

The court found Konkel met this standard. “Unquestionably, the need to protect children from hearing sexually explicit and sexually violent testimony is an overriding public interest,” its opinion says.

Carpenter’s attorney, Paul Bonneson of Milwaukee, told the Associated Press he will ask the state Supreme Court to review the case. “The door is opened to not only excluding minors from most sexual assault trial but also trials in many other criminal cases,” he told the news service.

Bonneson argues the sign should have been taken down after the victim’s testimony, the most graphic portion of the trial. He says excluding children may also exclude adults who are accompanying them.

Bill Lueders, president of the Wisconsin Freedom of Information Council, declined to comment on whether the appeals court ruling was justified but told NewsBuzz, “I would rather that the judge had simply warned people that the subject matter might not be appropriate and let the teachers decide as opposed to just barring minors.”

He added that the opinion cited federal case law, and there appeared to be no state statute “that specifically allows judges to close court proceedings to juveniles due to subject matter.”

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