                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 01-2928
JOHNNIE WALTON,
                                             Petitioner-Appellant,
                                 v.


KENNETH R. BRILEY, Warden,
                                             Respondent-Appellee.

                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
              No. 97 C 2539—John F. Grady, Judge.
                          ____________
  ARGUED DECEMBER 11, 2003—DECIDED MARCH 17, 2004
                   ____________



  Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
  BAUER, Circuit Judge. Petitioner-Appellant, Johnnie
Walton, brought this action for a writ of habeas corpus
under 28 U.S.C. § 2254(a) . He claimed that his trial in the
Cook County Circuit Court was conducted in violation of his
Constitutional right to a public trial. The district court did
not agree and denied the writ. We reverse.


                       I. BACKGROUND
  Johnnie Walton was arrested after delivering a sizeable
quantity of phencyclidine, more commonly known as PCP,
2                                                No. 01-2928

to an undercover police officer. He was tried in the Cook
County Circuit Court before Judge Ralph Renya on Septem-
ber 19, 21, and October 2, 1989. The first two sessions,
which encompassed the prosecution’s entire case, were held
in the late evening hours after the courthouse had been
closed and locked for the night. Walton’s fiancée twice
attempted to attend the trial and was twice prevented from
doing so. A confidential informant involved in the case was
also prevented from attending the trial because the court-
house was locked. Walton was convicted and ultimately
sentenced to a term of life in prison without the possibility
of parole.
   After Walton exhausted his state remedies he filed the
instant habeas corpus petition. See 28 U.S.C. § 2254(a). The
district court found that the first two-thirds of Walton’s
trial had indeed been held during the late evening hours
and therefore, the public had been excluded; nevertheless,
it held that Walton’s failure to object to the lateness of the
trial resulted in a waiver of the issue.


                      II. DISCUSSION
  We review the district court’s findings of fact for clear
error and its findings of law de novo. Ouska v. Cahill-
Masching, 246 F.3d 1036, 1044 (7th Cir. 2001). The
Antiterrorism and Effective Death Penalty Act of 1996 does
not apply in this case because the state courts did not
adjudicate the claim on the merits. Id.
  The Respondent claimed that Walton procedurally de-
faulted on this habeas claim. The district court rejected this
argument but found that the Respondent had failed to
develop the factual record to support such a finding. United
States ex rel. Walton v. Gilmore, No. 97 CV 2539, 1998 WL
787220, *2 (N.D. Ill Nov. 4, 1998).
No. 01-2928                                                  3

  The Sixth Amendment to the United States Constitution
guarantees that, “[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial.” U.S.
CONST. amend. VI. This right is applicable to the states
through the Fourteenth Amendment. Duncan v. Louisiana,
391 U.S. 145, 148-49 (1968). The benefits of a public trial,
although “frequently intangible, difficult to prove, or a
matter of chance,” Waller v. Georgia, 467 U.S. 39, 49 n.9
(1984), are a central tenant of our judicial structure. Public
trials help to prevent perjury, unjust condemnation, and
keep the accused’s “triers keenly alive to a sense of their
responsibility and to the importance of their functions.” Id.
at 46 (quoting In re Oliver, 333 U.S. 257, 270 n.25 (1948)).
Such trials may encourage unknown witnesses to come
forward and further serve to preserve the integrity of the
judicial system in the eyes of the public. Id.
   While criminal trials that are closed to the public are
strongly disfavored, they are not forbidden. A party seeking
to bar the court’s doors to the public must satisfy a four-
part test: (1) the party who wishes to close the proceedings
must show an overriding interest which is likely to be
prejudiced by a public trial, (2) the closure must be nar-
rowly tailored to protect that interest, (3) alternatives to
closure must be considered by the trial court, and (4) the
court must make findings sufficient to support the closure.
Id. at 48. The record of this case fails to show that the court
even considered the four-part test. While this may be due to
the fact that the closure was inadvertent and merely a
result of trial court Judge Renya’s honorable desire to “get
it done” (Supp. App. at 85), nevertheless, the judge’s devo-
tion to work is not an interest sufficient to overcome
Walton’s constitutional guarantee of a public trial.
  The district court suggested that it might be important
that Judge Renya unintentionally prevented the public from
attending the trial. United States ex. rel. Walton v. Gilmore,
4                                                    No. 01-2928

No. 97 C 2539, 2001 WL 709463, *2 (N.D. Ill. Aug. 10,
2001). Whether the closure was intentional or inadvertent
is constitutionally irrelevant.1
  The district court found that “the first two sessions of the
trial did take place, as Walton alleges, during the late
evening hours of September 19 and 21, 1989 and that the
sessions may have lasted until after 10:30 p.m.” Walton
v. Gilmore, 2001 WL 709463, at *1. The lateness of the hour
served to “foreclose the attendance of the public at the first
two sessions. . . . Walton has proved his claim that the first
two sessions, encompassing the entirety of the prosecution’s
evidence, were closed to the public.” Id. Despite Gilmore’s
argument to the contrary, we find that the district court’s
factual findings are not clearly erroneous. Because Walton
need not show specific prejudice, these facts are sufficient
to show a violation of Walton’s right to a public trial.
Waller, 467 U.S. at 49-50.
  Walton’s counsel failed to object to the late trial or to its
effect of barring the public from attending the trial. Based
on this failure, the district court found that the error was
waived. Id. at 2. Our jurisprudence does not support such
a holding and we therefore, reverse.
  The Supreme Court has noted, “[t]he Constitution re-
quires that every effort be made to see to it that a defend-



1
   This court is aware of a case from the Tenth Circuit which
“requires some affirmative act by the trial court meant to exclude
persons from the courtroom” before a defendant can claim a
violation of his Sixth Amendment right to a public trial. United
States v. Al-Smadi, 15 F.3d 153, 154 (10th Cir. 1994). That case
is distinguishable in that the court was closed to the public simply
because the trial, which started when the courthouse was still
open, ran late. We make no finding as to whether or not the facts
in Al-Smadi would constitute a Sixth Amendment violation in this
Circuit.
No. 01-2928                                                   5

ant in a criminal case has not unknowingly relinquished the
basic protections that the Framers thought indispensable to
a fair trial.” Schneckloth v. Bustamonte, 412 U.S. 218, 241-
42 (1973). Consequently, “every reasonable presumption
should be indulged against” waiver of a fundamental trial
right. Hodges v. Easton, 106 U.S. 408, 412 (1882). This
heightened standard of waiver has been applied to plea
agreements, the right against self-incrimination, the right
to a trial, the right to a trial by jury, the right to an attor-
ney, and the right to confront witnesses. See, e.g., Brady v.
United States, 397 U.S. 742, 748 (1970); Miranda v. Ari-
zona, 384 U.S. 436, 444 (1966); Moltke v. Gillies, 332 U.S.
708, 723-26 (1948). Furthermore, in dealing with the
fundamental trial right to representation by counsel, the
Supreme Court has held that presumption of waiver from
a silent record is impermissible. Carnley v. Cochran, 369
U.S. 506, 515 (1962).
  The common element of the cases mentioned in the
paragraph above is the fact that the rights with which they
deal all concern the fairness of the trial. The right to a
public trial also concerns the right to a fair trial. Waller,
467 U.S. at 46 (“The requirement of a public trial is for the
benefit of the accused; that the public may see he is fairly
dealt with and not unjustly condemned . . . .”) (emphasis
added); see also discussion supra Part II, paragraph 3. So,
like other fundamental trial rights, a right to a public trial
may be relinquished only upon a showing that the defen-
dant knowingly and voluntarily waived such a right.
  The record does not indicate that Walton intelligently and
voluntarily relinquished a known right. Therefore, we hold
that Walton’s right to a public trial was not waived by
failing to object at trial. Since he has established a violation
of his Sixth Amendment right to a public trial, as applied to
the states through the Fourteenth Amendment, we reverse
and remand with directions to issue the writ unless the
state elects to retry Walton within 120 days.
               REVERSED AND REMANDED WITH DIRECTIONS.
6                                         No. 01-2928

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—3-17-04
