Arapahoe County District Court No. 11CR1958 Honorable
Elizabeth Beebe Volz, Judge
J. Weiser, Attorney General, Rebecca A. Adams, Senior
Assistant Attorney General, Denver, Colorado, for
A. Ring, Colorado State Public Defender, Lynn Noesner, Deputy
State Public Defender, Denver, Colorado, for
1 Defendant, De'Twan Clayton Irving, a member of the
Rollin 60s branch of the Crips gang, was convicted of second
degree murder and conspiracy to commit murder after he killed
the victim during a gang-related dispute.
2 Based on the prosecutor's allegations of witness
intimidation, the trial court partially closed the courtroom
during the testimony of two witnesses, one of whom was
Irving's former girlfriend, and closed it entirely during
the testimony of a third witness. Irving contends that the
closures violated his constitutional right to a public trial.
3 Because we agree that the court erred in excluding
Irving's mother from the courtroom during the testimony
of Irving's girlfriend, we need not consider the
propriety of the other closures. And because the error is
structural, we must reverse Irving's convictions and
remand for a new trial.
Right to a Public Trial
4 According to the prosecution's evidence, in September
2010, Irving's then girlfriend drove him and a few of his
fellow gang members to an apartment complex where Irving shot
the victim in retaliation for the victim's earlier
altercation with one of the gang members.
5 Irving was charged with first degree murder and conspiracy
to commit murder. The case proceeded to trial in April 2014.
On the third day of trial, the prosecutor requested that the
court partially close the courtroom during the testimony of
three witnesses: Irving's former girlfriend, a jailhouse
informant to whom Irving had made inculpatory statements, and
Irving's codefendant who had agreed to testify against
Irving pursuant to a plea agreement.
6 According to the prosecutor, he had received information
the day before directly from the informant and the
codefendant. The informant told the prosecutor that Irving
had made a throat-slashing gesture when the two had crossed
paths in the courthouse the prior morning and, later that
day, another inmate had told the informant that if he
testified against Irving, a "hit" would be put out
on him and his family. As for the codefendant, he reported to
the prosecutor that gang members had threatened him and his
mother and sister.
7 But the alleged threats against Irving's former
girlfriend had occurred years earlier. The prosecutor told
the court that in January 2012, a gang member "directly
threatened" the girlfriend at a gas station,
"telling her that were she to testify," her
"life would be in danger." The prosecutor also told the
court that "Mr. Irving's mother has made a
documented statement to [the girlfriend] that [she] should
8 Defense counsel disputed that Irving's mother had ever
threatened or intimidated the girlfriend. He explained that
just after the crime, Irving's mother had advised the
girlfriend not to speak to police because "nothing
good" would come of it and, in fact, after ...