State v. Slert

FILE
IN CLERK'S OFFICE
SUPREME COURT, STATE OF WASHINGTON

DATE SEP 2 5 2014

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 87844-7
)
Petitioner, )
)
v. ) EnBanc
)
KENNETH LANE SLERT, )
) Filed SEP 2 5 2014
Respondent. )

GONZALEZ, J.-Kenneth Slert has been tried and convicted three times

for the murder of John Benson. His first two convictions were reversed. In his

third trial, prospective jurors were given a questionnaire designed to determine

if any of them had heard about the two prior trials. We are asked today to

decide whether a pre-voir-dire in-chambers discussion of their answers and the

dismissal of four prospective jurors for outside knowledge of the case violated

the open public trials provisions of the Washington State Constitution. On this

record, we find no error.
State v. Slert, No. 87844-7

FACTS

On Sunday, October 22, 2000, Slert set up a hunting camp in Lewis

County near Mount Rainier. Benson and his son had already.set up a hunting

campsite. nearby. After his son went home, Benson drove his truck to Slert's

campsite. According to Slert, Benson invited him into the truck to talk and

they shared shots of whiskey. Less than an hour later, Slert shot Benson twice

at short range, once in the head and once in the neck, killing him.

The next day, Park Ranger Uwe Nehring pulled over on a forest service

road to allow Slert's powder blue Volkswagen Beetle pass him. Instead, the

Beetle stopped and Slert told Nehring that he had shot and killed someone in

his campsite the night before. Nehring found guns, drugs, and alcohol in

Slert's car and called for backup. Slert cooperated and guided park rangers and

sheriff deputies to his campsite.

Slert was convicted of murdering Benson in two separate trials before

the one on appeal before us today. His first conviction was reversed for

instructional error and ineffective assistance of counsel. State v. Slert, noted at

128 Wn. App. 1069,2005 WL 1870661. His second conviction was reversed

on the trial judge's failure to recuse himself, an improper self-defense

instruction, and ineffective assistance of counsel. State v. Slert, noted at 149

Wn. App. 1043, 2009 WL 924893. Prior to the third trial, the defense and

prosecution discussed how to guard against a panel member "blurt[ing] out,

2
State v. Slert, No. 87844-7

'Oh, yeah, I read about that case and that guy should be hanging."' Verbatim

Report of Proceedings (VRP) (Jan. 6, 2010) at 3-4. To avoid potential taint,

several weeks before trial, defense counsel proposed a questionnaire to screen

potential jurors. Among other things, the two page questionnaire noted that

"[t]here have been a number of prior proceedings in this case which were

reported by both the newspapers and the radio, since October 2000 and most

recently in late 2009" and asked jurors what, if anything, they had heard about

them. Clerk's Papers (CP) at 360-61. Slert's counsel twice asked the judge to

question potential jurors in chambers if their answers suggested they had

outside knowledge of the case. The judge declined. The completed

questionnaires were not made part of the record.

On the first morning scheduled for Slert's trial, two panels of potential

jurors were given the questionnaire. The record does not reflect whether they

were sworn in first. Because of the large number of jurors called, one panel

completed the questionnaire in the jury assembly room and the other in the

courtroom. 1 Counsel and the judge reviewed the completed questionnaires in

chambers and agreed to dismiss 4 jurors based simply on their answers. The

record suggests that Slert was not present during this in-chambers conference.

Afterwards, the judge went on the record in the courtroom and, in Slert' s

1
The entire panel of jurors who filled out the questionnaire in the courtroom was
dismissed prior to voir dire. 1 VRP (Jan. 25, 2010) at 12; CP at 196. Due to a
miscommunication, these potential jurors saw Slert escorted into the courtroom by jail
officers. 1 VRP (Jan. 25, 2010) at 6-7.

3
State v. Slert, No. 87844-7

presence, stated that "I have already, based on the answers, after consultation

with counsel, excused [4] jurors." 1 VRP (Jan. 25, 2010) at 5. On the record,

and with the parties' agreement, the judge dismissed another potential juror for

cause without questioning the juror on the record. Fourteen jurors who said

that they had heard of the case were brought in individually, given an oath or

affirmation, and-questioned about their answers. Three more were dismissed

for cause based on their individual voir dires. When individual questioning

was complete, the remaining 40 potential jurors were brought into the

courtroom and given an oath or affirmation. After about two hours of voir dire

in open court with all potential jurors present, a jury was sworn in to try the

case.

The jury found Slert guilty of second degree murder while armed with a

firearm. Slert was sentenced to 280 months' confinement. The Court of

Appeals reversed on two grounds: (1) that the trial court had violated the public

trial guaranties of the Washington constitution and (2) that the court violated

Sle1i' s right to be present by dismissing jurors in chambers. State v. Slert, 169

Wn. App. 766, 769, 282 P.3d 101 (2012). We granted review "only on the

public trial issue." Order Granting Review, State v. Slert, No. 87844-7, at 1

(Wash. Apr. 8, 2013).
State v. Slert, No. 87844-7

ANALYSIS.

· Only questions of law are before the court.· Our review is de novo.

Dreiling v. Jain, 151 Wn.2d 900, 908, 93 P.3d 861 (2004) (citing Rivett v. City

ofTacoma, 123 Wn.2d 573, 578, 870 P.2d 299 (1994)).

1. Jury Questionnaires and Open Courts

"Justice in all cases shall be administered openly." WASH. CONST. art. I,

§ 10. Our constitution flatly prohibits secret tribunals and Star Chamber

justice. See generally State v. Easterling, 157 Wn.2d 167, 179, 137 P.3d 825

(2006) (citing Allied Daily Newspapers v. Eikenberry, 121 Wn.2d 205, 848

P.2d 1258 (1993)); State v. Coe, 101 Wn.2d 364, 383-84, 679 P.2d 353 (1984).

"A public trial is a core safeguard in our system of justice," and violations of

article I, section 10 are structural error and can be raised for the first time on

appeal. State v. Wise, 176 Wn.2d 1, 5, 9, 288 P.3d 1113 (2012) (citing State v.

Brightman, 155 Wn.2d 506, 514-15, 122 P.3d 150 (2005)).

Justice shall be administered openly, "[b Jut not every interaction

between the court, counsel, and defendants will implicate the right to a public

trial, or constitute a closure if closed to the public." State v. Sublett, 176 Wn.2d

58, 71, 292 P.3d 715 (2012). While open public trial rights are fixed stars in

our constitutional firmament, they do not shine alone. The trial judge has both

the inherent authority and statutory "power to preserve and enforce order in the

courtroom and to provide for the orderly conduct of its proceedings." State v.

5
State v. Slert, No. 87844-7

Lormor, 172 Wn.2d 85, 93-94, 257 P.2d 624 (2011) (citing RCW 2.28.010).

This includes the authority, when appropriate, to seal the courtroom or take

matters into chambers for discussion with counsel. E.g., Sublett, 176 Wn.2d at

75-76 (recognizing that the trial judge has the authority to discuss jury

instructions and jury questionnaires in chambers without formally closing the

proceedings on the record first). The defendant's right to a fair and speedy

trial, the potential jurors' right to privacy, the judge's obligation to provide a

safe and orderly courtroom, and many other considerations may justify a

courtroom closure. Not all arguable courtroom closures require satisfaction of

the five factor test established in State v. Bone-Club, 128 Wn.2d 254, 906 P.2d

325 (1995).

We have adopted the United States Supreme Court's "logic and

experience" test for determining when public trial rights are implicated by a

particular alleged closure. Sublett, 176 Wn.2d at 73 (lead opinion), 94 (Madsen,

C.J., concurring), 136 (Stephens, J., concurring); see also id. at 73-74 (citing

Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8-10, 106 S. Ct. 2735,92 L.

Ed. 2d 1 (1986) (Press II)). As we explained:

The first part of the test, the experience prong, asks "whether the place
and process have historically been open to the press and general public."
Press II, 478 U.S. at 8. The logic prong asks "whether public access
plays a significant positive role in the functioning of the particular
process in question." Id. If the answer to both is yes, the public trial right
attaches and the Waller [v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L.

6
State v. Slert, No. 87844-7

Ed. 2d 31 (1984)] or Bone-Club factors must be considered before the
proceeding may be closed to the public. Press II, 478 U.S. at 7-8.

Sublett, 176 Wn.2d at 73 (footnote omitted). Trial counsel and the courts below

did not have the benefit of our Sublett opinion.

Slert argues that there is no need to apply the experience and logic test

"because it is well-settled that the public trial right applies" to jury selection.

Resp't Supplemental Br. at 8 (citing Wise, 176 Wn.2d at 12 n.4; In re Pers.

Restraint of Morris, 176 Wn.2d 157, 174, 288 P.3d 1140 (2012) (Chambers, J.,

concurring)). We respectfully disagree with this characterization of our case

law. First, the mere label of a proceeding is not determinative. Sublett, 176

Wn.2d at 72-73. Second, it is not at all clear that this proceeding is

substantially similar to the jury selection before us in Wise and Morris. As the

Court of Appeals recently observed:

[E]xisting case law does not hold that a defendant's public trial right
applies to every component of the broad "jury selection" process (which
process includes the initial summons and administrative culling of
prospective jurors from the general adult public and other preliminary
administrative processes). Rather, existing case law addresses
application of the public trial right related only to a specific component
of jury selection-i.e., the "voir dire" of prospective jurors who form the
venire (comprising those who respond to ..the court's initial jury
.
summons and who are not subsequently excused administratively). Thus,
whether pretrial administrative juror excusals implicate a defendant's
public trial right is one of first impression.

7
State v. Slert, No. 87844-7

State v. Wilson, 174 Wn. App. 328, 338, 298 P.3d 148 (2013). 2 We agree.

Whether this portion of jury selection raises public trial rights has not been

settled by cases where jurors were taken into chambers after being sworn in and

after formal voir dire had begun. Thus application of the experience and logic

test is called for.

The experience prong asks "'whether the place and process have

historically been open to the press and general public.'" Sublett, 176 Wn.2d at

73 (quoting Press II, 478 U.S. at 8). A judge's chambers is not traditionally

open to the public. Voir dire is. See, e.g., In re Pers. Restraint of Orange, 152

Wn.2d 795, 804, 100 P.3d 291 (2004) (quoting Press-Enter. Co. v. Superior

Court, 464 U.S. 501, 505, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984)). But based

on the record, it does not appear that voir dire had begun. Under our rules,

"[t]he judge shall initiate the voir dire examination by identifying the parties

and their respective counsel and by briefly outlining the nature of the case."

CrR 6 .4(b). Nothing in this record suggests that "initiation" under the rule had

occurred here before the questionnaires were completed or reviewed.

We could find no cases, and none were brought to our attention by

counsel, that suggest examination of jury questionnaires is traditionally

performed before the public. Accord Wilson, 174 Wn. App. at 342-44 (finding

2
Our dissenting colleagues make much of the fact that the Wilson court was careful to
distinguish Slert in two footnotes. See dissent at 3 (quoting Wilson, 174 Wn. App. at 339
n.ll, 342 n.l3). Given that Slert had been announced prior to Wilson and was thus
controlling precedent in the division, we do not find this particularly noteworthy.

8
State v. Slert, No. 87844-7

no tradition of public access to pre-voir-dire portions of jury selection). In a

somewhat similar case, we found no closure when potential juror

questionnaires were sealed after voir dire. State v. Beskurt, 176 Wn.2d 441,

447, 293 P.3d 1159 (2013) (lead opinion). We observed:

[t]he questionnaires were cbmpleted prior to voir dire and utilized by the
attorneys as a "screening tool." This facilitated the process by helping
the attorneys identify which venire members would be questioned
individually in open court and what questions to ask, if any. During
general and individual voir dire, the judge, prosecutor, and defense
attorneys, including [defendant's] counsel, questioned venire members
in order to determine their ability to sit as an impartial juror. At most, the
questionnaires provided the attorneys and court with a framework for
that questioning.

I d. (lead opinion); see also id. at 457 (Stephens, J., concurring); accord In re

Pers. Restraint of Yates, 177 Wn.2d 1, 30, 296 P.3d 872 (2013). These

observations apply here. Further, we note that in the federal system, jury

questionnaires like those before us have not been traditionally subject to public

review and discussion .. Federal circuit courts have approved of judges

dismissing jurors sua sponte for cause based on their answers to written

questionnaires. Nothing in those cases suggests that the judge considered the

questionnaires in open court before dismissing the potential jurors. See, e.g.,

United States v. Spriggs, 322 U.S. App. D.C. 217, 102 F.3d 1245, 1252 (1996);

United States v. Paradies, 98 F.3d 1266, 1277 (11th Cir. 1996). 3 We conclude

3
The dissent criticizes our persuasive authority on this point but brings no contrary
authority to our attention.

9
State v. Slert, No. 87844-7

that based on the experience prong, this in-chambers discussion does not raise

open public court concerns.

The logic prong asks "'whether public access plays a significant

positive role in the functioning of the particular process in question.'" Sublett,

176 Wn.2d at 73 (quoting Press II, 478 U.S. at 8). Again, neither party has

called a case on point to our attention, but it appears public access would have

little role, positive or negative, on review of questionnaires to screen out those

with prior prejudicial knowledge of the case. Questioning the jurors about their

disqualifying knowledge in open court in front of the other jurors could have

been potentially devastating to Slert's right to a fair trial. At a minimum, it is a

waste of time to question potential jurors individually while everyone else

waits if the parties and the court agree the potential juror is disqualified because

of prejudicial knowledge of the case. Logic does not suggest conducting this

review in public would play a significant positive role. Accord Wilson, 17 4

Wn. App. at 346 (finding public access to bailiffs decision to dismiss jurors for

illness-related reasons pre-voir-dire would not serve a positive role).

Analogously, it is not an open public courts violation to discuss jury

instructions and questions from a deliberating jury in chambers. Sublett, 176

Wn.2d at 71-72 Uury questions), 75 Uury instructions). Historically, these

discussions have been held in chambers. Jd. at 75. Initial discussions of jury

instructions have often been held informally, and as we noted in Sublett, we

10
State v. Slert, No. 87844-7

have found no evidence that has been held to raise open courts concerns. !d. at

75-76. Like here, these informal proceedings are often a prelude to a formal

process, on the record and without the jury present, to allow any party to object

and to create a record for review. !d. (citing Schmidt v. Cornerstone Invs.,

Inc., 115 Wn.2d 148, 162-63, 795 P.2d 1143 (1990)). 4

Slert has not shown there was a closure under the experience and logic

test. We recognize that there may be cases where similar discussions in

chambers might implicate the public trial right. But "[t]he party presenting an

issue for review has the burden of providing an adequate record to establish

such error." State v. Sisouvanh, 175 Wn.2d 607,619,290 P.3d 942 (2012)

(citing State v. Wade, 138 Wn.2d 460,464,979 P.2d 850 (1999)). In this case,

the record Slert provided does not establish that the two potential jury panels

had been sworn in, whether voir dire had been initiated under CrR 6.4(b ), who

moved to take the conversation into chambers, whether the trial court invited

comment from the courtroom, what specifically was discussed in chambers, or

many other facts that could usefully bear on our analysis. The parties

designated this record long before Sublett was announced, and we do not fault

them for not recognizing additional information would be helpful to our

4The experience and logic test is also a useful analytical tool for determining whether a
discussion may be held in chambers. For example, application of the test would quickly
show that discussion of jury instructions or jury questions have long been held in
chambers and, without more, would riot present an open public court issue. Sublett, 176
Wn.2d at 71-72, 75.

11
State v. Slert, No. 87844-7

application of recently announced case law to this case. However, we note that

in the wake of Sublett, counsel for either side could have sought that

information from the participants and moved to supplement the record under

RAP 9.10 or 9 .11. In the absence of an adequate record, we will not infer that a

trial judge violated the constitution. Sisouvanh, 17 5 ·wn.2d at 619 (citing

Wade, 138 Wn.2d at 464).

2. Justiciable Controversy

The Court of Appeals reversed Slert's conviction on two grounds: "that

the trial court violated Slert' s right to a public trial and his right to be present

during critical stages ofthe proceedings." Slert, 169 Wn. App. at 769. We

granted review "only on the public trial issue." Order Granting Review, No.

87844-7, at 1. Slert suggests that we should dismiss our review as

improvidently granted. Resp't's Suppl. Br. at 4-6.

Perhaps given its decision to reverse on the public trial rights issue, the

Court of Appeals did not complete the "right to be present" analysis. We will

not reverse on ·a violation of the defendant's right to be present if we are

convinced, beyond a reasonable doubt, that the error was harmless. State v.

Jrby, 170 Wn.2d 874, 885-86, 246 P.3d 796 (2011). Accordingly, we remand

12
State v. Slert, No. 87844-7

to the Court of Appeals to decide whether the violation of Slert's right to be

present is harmless beyond a reasonable doubt. 5

CONCLUSION

Slert has not shown an open public trial rights violation. Accordingly,

we reverse the Court of Appeals and remand back to that court for

consideration of whether, standing alone, the violation of Slert's right to be

present warrants relief.

5
Given our disposition, we do not reach the remaining arguments of the parties.

13
State v. Slert, No. 87844-7

I

WE CONCUR:

14
State v. Slert (Kenneth Lane) (Wiggins, J., concurring in result)

No. 87844-7

WIGGINS, J. (concurring in result)- As explained in my concurrence in State

v. Smith, No. 85809-8 (Wash. Sept. 25, 2014), the logic and experience test is

incorrect and harmful. This case provides yet another example of the test's

ambiguities and defects. Here, Kenneth Slert was tried and convicted three times for

the murder of John Benson. His first two convictions were reversed. In his third trial,

prospective jurors were given a questionnaire designed to determine if they had heard

about the two prior trials. To avoid potential taint, defense counsel proposed a

questionnaire to screen potential jurors. On the first day of trial, two panels of potential

jurors completed the questionnaire. Counsel and the judge reviewed the

questionnaires in chambers and agreed to dismiss four jurors, evidently based on their

knowledge of Slert's prior trials. Lead opinion at 3.

The lead opinion applies the logic and experience test to find that the public

trial right does not attach to "pre-voir-dire" in-chamber discussions about jurors'

answers to the questionnaires. Lead opinion at 1. The lead opinion reasons that

under the experience prong, "[w]e could find no cases, and none were brought to our

attention by counsel, that suggest examination of jury questionnaires is traditionally

performed before the public." /d. at 8. And in the federal system, jury questionnaires

are not traditionally subject to public review and discussion. /d. at 9. Under the logic

prong, the lead opinion finds that public access would have a miniscule role, positive
No. 87844-7 (Wiggins, J., concurring in result)

or negative, on the review of questionnaires to screen out those with prior prejudicial

knowledge of the case. /d. at 10.

The dissent, however, points out that several jurors were dismissed for cause

as a result of the questionnaires, indicating that this was voir dire and not pre-voir-

dire. Dissent at 1. The dissent reasons that the questions were not used merely as

a framework for questioning; they were used to evaluate jurors' fitness to serve and

to excuse jurors for cause. /d. at 6.

This court has made clear that the public trial right attaches to voir dire-"the

individual examination of jurors concerning their fitness to serve in a particular case."

/d. at 1-2 (citing State v. Wise, 176 Wn.2d 1, 12 n.4, 288 P.3d 1113 (2012); State v.

Brightman, 155 Wn.2d 506, 515, 122 P.3d 150 (2005); In re Pers. Restraint of Orange,

152 Wn.2d 295, 804-05, 100 P.3d 291 (2004)); see also State v. Paumier, 176 Wn.2d

29, 35, 288 P.3d 1126 (2012). It appears that this is a voir dire case that easily could

have been decided under Paumier and Wise, but the majority creates a new

distinction and thereby avoids sending back this murder case for a fourth trial. The

majority employs the logic and experience test to conclude that the closure fell outside

of one of the narrow public trial pigeonholes recognized by this court. Therein lies one

of the harms of the logic and experience test-instead of illuminating when a closure

has occurred, it can support a decision either way. See State v. Wilson, 174 Wn. App.

328, 298 P.3d 148 (2013) (right does not attach to excusal of jurors for illness-related

reasons because this is pretrial juror excusal, not voir dire); State v. Love, 176 Wn.

App. 911, 918, 309 P.3d 1209 (2013) (right does not attach to parties' use of

peremptory and for-cause challenges at a sidebar conference because challenges

2
No. 87844-7 (Wiggins, J., concurring in result)

are not part of voir dire); cf. State v. Jones, 175 Wn. App. 87, 303 P.3d 1084 (2013)

(public trial right attached to court recess where court clerk randomly selected four

alternate jurors because that is part of jury selection); State v. Tinh Trinh Lam, 161

Wn. App. 299, 254 P.3d 891 (2011 ), review granted, 176 Wn.2d 1031, 299 P.3d 20

(2013) (public trial right attached to questioning of sworn-in juror because process

was procedurally similar to and conducted for the same purpose as voir dire).

In addition, like other recent opinions, this case provides little guidance to trial

and appellate judges in applying the logic and experience test. Indeed, our decision

in this case raises more questions even though our precedent seems to resolve it.

The logic and experience test provides no practicable standards for determining when

a closure occurs,· nor does it provide satisfactory answers to any of the above

questions. We disserve trial judges, attorneys, the parties, and the public by failing to

provide clear guidance on this issue, especially in light of the other public trial cases

currently before us.

Accordingly, I would reject the logic and experience test. The history and origin

of the public trial clause make clear that the open courts right was designed to deter

and expose corruption and manipulation in the justice system. See State v. Sublett,

176 Wn.2d 58, 146, 292 P.3d 715 (2012) (Wiggins, J., concurring). Public scrutiny

serves as a check on abuse of judicial power and enhances public trust in the judicial

system. /d. These concerns are at play during each and every stage of a judicial

proceeding, whether it be cross-examination, a clarifying question from the jury to the

judge, or even a sidebar. Indeed, in any proceeding, absence of public scrutiny could

"breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for

3
No. 87844-7 (Wiggins, J., concurring in result)

law." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 595, 100 S. Ct. 2814, 65

L. Ed. 2d 973 (1980) (Brennan, J., concurring).

Thus, every stage of judicial proceedings must be presumptively open under

our constitution. WASH. CONST. art. I, § 10 ("Justice in all cases shall be administered

openly .... "). A judge may close a portion 1 of the trial only after conducting a Bone-

Club hearing. See State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995). If a

judge closes a portion of the trial and no party objects, I would hold that no party may

challenge the closure later without compliance with RAP 2.5(a)(3). I would so hold

whether or not the judge conducted a Bone-Club hearing. Accordingly, I would

reverse the Court of Appeals and affirm the conviction because Slert did not object at

trial and he has not satisfied the requirements of RAP 2.5(a)(3)-i.e., he has not

shown "manifest error affecting a constitutional right."

1By "a portion of a trial" I mean the entirety of a particular phase of trial, such as voir dire, the
complete examination of a witness, or any significant phase of the trial proceedings.

4
No. 87844-7 (Wiggins, J., concurring in result)

For these reasons, I concur in the majority's resolution but not its reasoning.

5
State v. Slert (J(enneth Lane)

No. 87844-7

STEPHENS, J. (dissenting)-The lead opinion offers a theory of this case

that ignores what actually happened. The in-chambers proceeding here was not

simply an "examination of jury questionnaires." Lead opinion at 8. Several jurors

were dismissed for cause behind closed doors based on the same questionnaire

answers other jurors were asked about in open court. This was not a precursor to

voir dire; this was voir dire. The lead opinion's attempt to recast the facts is

unconvincing, and its reliance on the inadequacy of the record only highlights the

problem of closing courtrooms without engaging in an analysis of the critical

factors under State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995). I

respectfully dissent.

The For-Cause Dismissal ofJurors Based on
Their Prior Knowledge of the Case was Plainly Part of Voir Dire

This court has made clear that the public trial right attaches to voir dire, as

that term encompasses the individual examination of jurors concerning their fitness
State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)

to serve in a particular case. State v. Wise, 176 Wn.2d 1, 12 n.4, 288 P.3d 1113

(2012); State v. Brightman, 155 Wn.2d 506, 515, 122 P.3d 150 (2005); In re Pers.

Restraint of Orange, 152 Wn.2d 795, 804-05, 100 P.3d 291 (2004). The lead

opinion misdescribes the event at issue here as the "examination of jury

questionnaires" rather than the examination of jurors, lead opinion at 8, further

characterizing it as a "prelude" to voir dire, lead opinion at 11. This leads the lead

opinion into an unnecessary analysis under the experience and logic test, in which

it attempts to equate this case to those involving administrative excusals of jurors

(State v. Wilson, 174 Wn. App. 328, 338, 298 P.3d 148 (2013)), the preliminary

review of questionnaires as a "'"screening tool'"" to determine which jurors may

be questioned individually (State v. Beskurt, 176 Wn.2d 441, 447, 293 P.3d 1159

(2013)), and the discussion of jury instructions or of questions submitted by a

deliberating jury (State v. Sublett, 176 Wn.2d 58,71-72,75,292 P.3d 715 (2012)).

Lead opinion at 7-10 (quoting Beskurt, 176 Wn.2d at 447). As a closer look at

those cases reveals, they are nothing like what happened here.

Consider first the lead opinion's reliance on the Court of Appeals decision in

Wilson, 174 Wn. App. 328. See lead opinion at 7 (quoting Wilson, 174 Wn. App.

at 338), 8, 10 (citing Wilson as in accord with its decision). In Wilson, the trial

court's bailiff administratively excused two persons from the jury pool; one was

"apparently sick enough that the bailiff excused him 'before [the juror] even said

anything' or had a chance to complete the juror questionnaire." 174 Wn. App. at

332. The second person apparently completed the questionnaire but was excused

-2-
State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)

as being '"ill'" before 9:00 a.m. Id. Both people were rescheduled for jury service

at a later date. !d. In holding this procedure did not violate Wilson's public trial

right, the Court of Appeals appropriately distinguished between the broad process

of jury selection that begins when jury summonses are issued and the specific

component of voir dire that involves the individual examination of members of the

jury panel about their fitness to serve on a particular jury. Id. at 338-39; see also

id. at 340 n.12. Critically, the court in Wilson took care to distinguish this very
case:

In Slert, the trial court gave prospective jurors a questionnaire asking about
the jurors' familiarity with publicity from Slert's two prior trials, both of
which had resulted in convictions. [State v.] Slert, 169 Wn. App. [766,]
770-71[, 282 P.3d 101 (2012)]. Based on the jurors' questionnaire
responses, the trial court and counsel then held an in-chambers conference
and excused four jurors from the jury pool "for cause." Slert, 169 Wn.
App. at 771. Under these specific facts, we held that (I) the in-chambers
conference was "part of the jury selection process to which the public trial
right applied" because the jurors had been excused for "case-specific
reasons" "based on their questionnaire answers"; and (2) the trial court had
violated Slert's right to a public trial because it did not conduct a Bone-club
analysis before excusing the jurors outside the courtroom. Slert, 169 Wn.
App. at 774-75 .... Thus, the facts in Slert are distinguishable, and its
holding does not apply here.

!d. at 339 n.ll; see also id. at 342 n.13 (again distinguishing Slert as a case in

which the public trial right attached under the experience and logic test because the

jurors were dismissed '"for cause' based on the information contained in their

questionnaires.") I agree with the Court of Appeals that there is a vast difference

between Wilson and this case. 1

1
The lead opinion does not find Division Two's distinction between its treatment
of Slert and Wilson noteworthy because Division Two decided Slert prior to Wilson, and
it was thus controlling precedent that the Wilson court was presumably required to

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State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)

It is simply incredible to suggest here that "based on the record, it does not

appear that voir dire had begun." Lead opinion at 8. The lead opinion invokes
Criminal Rule (CrR) 6.4(b ), noting the absence of any record showing that the trial
court identified the parties and their respective counsel, and briefly outlined the
nature of the case, as the rule contemplates. 2 If the presence or absence of a
checklist under a court rule is the determinative factor in assessing whether the
public trial right attaches, then we have truly elevated form above substance.
Indeed, the trial court did not preface later individual questioning of jurors in open
court by imparting the information outlined in CrR 6.4(b). 1 Verbatim Report of
Proceedings (VRP) (Jan. 25, 2010) at 14. Are we to conclude that this proceeding

was similarly a mere precursor to voir dire?
Instead, we should look at what actually occurred here. As the lead opinion
acknowledges, Slert's counsel was concerned about a tainted jury pool. Lead
opinion at 3. Two jury panels were assembled from which to seat potential jurors.

VRP (Jan. 21, 2010) at 5. The trial court was aware that the jurors would be pulled

address. Lead opinion at 8 n.2. What is noteworthy, however, is that the Wilson court's
discussion of Slert suggests the opposite conclusion from the one the lead opinion
announces here. It is therefore bewildering that the lead opinion cites Wilson as "in
accord" with its analysis.
2
The rule reads:
Voir Dire. A voir dire examination shall be conducted for the purpose of
discovering any basis for challenge for cause and for the purpose of gaining
knowledge to enable an int'elligent exercise of peremptory challenges. The
judge shall initiate the voir dire examination by identifying the parties and
their respective counsel and by briefly outlining the nature of the case. The
judge and counsel may then ask the prospective jurors questions touching
their qualifications to serve as jurors in the case, subject to the supervision
of the court as appropriate to the facts of the case.
CrR 6.4(b).

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State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)

from these two panels. See id. Each individual in the two panels was given a
questionnaire that was designed to identify jurors who may have had a bias due to
prior knowledge of the case. The questionnaire recited that respondents were
under oath. Clerk's Papers (CP) at 360. 3 The questionnaire summarized the
charges against Slert and brief facts about the case. Id. It asked the prospective
jurors questions only about potential bias-whether, for example, they had
previously heard of the case, discussed the case, or formed any opinions about the
case. !d. at 360-61. The questionnaire did not ask any questions related to
hardship or other reasons outside of potential bias that may have disqualified a

juror. !d. The four jurors who were dismissed behind closed doors were
dismissed based on their answers to the questionnaire. 1 VRP (Jan. 25, 2010) at 5.
As the court in Wilson observed, these were not administrative excusals but were
for-cause dismissals by the trial judge based on the responding jurors' inability to
serve fairly in this particular case. 174 Wn. App. at 339-40 & nn. 11, 12.
The lead opinion's reliance on our decisions in Beskurt and Sublett is also
unconvincing. The very passage the lead opinion quotes from Beskurt identifies a
key difference between that case and this one. See lead opinion at 8-9 (quoting

3
The lead opinion asserts that the record does not establish whether the two jury
panels were sworn in, apparently concluding that we must assume they were not. Lead
opinion at 11. But, a copy of the questionnaire is in the record and it told the jurors they
were under oath. CP at 360. I believe we can accept this representation on a court-
approved document as accurate. Nonetheless, I agree with the Court of Appeals that
"[b]ecause the jury selection process begins when jurors are sworn and are given
questionnaires to complete, such proceedings should be conducted on the record to
facilitate appellate review." Slert, 169 Wn. App. at 770 n.7 (citing State v. Irby, 170
Wn.2d 874, 884,246 P.3d 796 (2011)).

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State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)

Beskurt, 176 Wn.2d at 447). In Beskurt, questionnaires were used by the attorneys

as a "'screening tool"' to "identify which venire members would be questioned

individually in open court and what questions to ask, if any." 176 Wn.2d at 447

(emphasis added). The entire voir dire then took place in open court; not a single

juror was dismissed behind closed doors based on questionnaire responses. !d.

Here, in contrast, the questionnaires were not used merely as "a framework for ...

questioning." !d. They instead substituted for the public questioning of some

jurors, as the court and counsel conferred in chambers about why these jurors'

answers to the questionnaire disqualified them from serving on Slert's jury.

Beskurt provides no support for the lead opinion's theory that juror dismissals

predicated on answers to a written questionnaire rather than oral examination are

somehow not part of voir dire. 4

Sublett is even less helpful to the lead opinion's cause. In that case, the trial

judge and counsel discussed in chambers how to respond to a question submitted

by the jury during its deliberations. 176 Wn.2d at 67. Adopting the experience

and logic test as an analytical tool for determining which parts of a trial implicate

the public trial right, the court concluded that the proceeding at issue was not

required to be held in open court. !d. at 77 (lead opinion). The court analogized to

4
Contrary to the lead opinion's assertion, what occurred here was in fact
"substantially similar" to the closed jury selection that took place in Wise and In re
Personal Restraint of Morris, 176 Wn.2d 157, 288 PJd 1140 (2912), which we held to
be a violation of the public trial right. Lead opinion at 7; Wise, 176 Wn.2d at 7, 11-12;
Morris, 176 Wn.2d at 162-63. Tellingly, in Morris the private voir dire of 14 jurors,
including the dismissal of 6, was predicated on those jurors' answers to a similar
questionnaire. 176 Wn.2d at 162.

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State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)

the practice of discussing jury instructions informally in chambers before making a

record in court. Id. at 75-76; see also id. at 140-41 (Stephens, J., concurring). The

lead opinion would extend the analogy to for-cause dismissals of jurors based on

their questionnaire answers. Lead opinion at 10. But, the situations are not

analogous. In discussions of jury instructions or questions from a deliberating

jury, no factfinding is involved and no risk of perjury exists; thus, courts have long

conducted such proceedings in chambers. Sublett, 176 Wn.2d at 77. In contrast,

courts have a centuries-old tradition of selecting jurors in public precisely because

we need to see and hear how they respond to questioning. Putting the questions in

writing does not change this. While it is sometimes helpful to use juror

questionnaires to identify which jurors may need to be questioned individually in

order to avoid tainting the entire venire, the written questionnaires cannot replace

voir dire. 5

No matter what form it takes, the dismissal of jurors by a judge for case-

specific reasons is not merely "a prelude to a formal process," as the lead opinion

5
The lead opinion states that federal courts approve of dismissing jurors in
chambers based on questionnaire responses. See lead opinion at 9 (citing United States v.
Spriggs, 322 U.S. App. D.C. 217, 102 F.3d 1245, 1252 (1996); United States v. Paradies,
98 F.3d 1266, 1277 (11th Cir. 1996)). In point of fact, the United States Supreme Court
has yet to rule on the interplay between jury questionnaires, jury selection, and the public
trial right, so we have no controlling federal precedent on this question. And the cases
the lead opinion cites have nothing to do with the public trial right. See Paradies, 98
F.3d at 1277 & n.16, 1281 & n.28 (defendants claiming violation of the federal Jury
Selection and Service Act of 1968, 28 U.S.C. § 1861, or right to fair and impartial jury
under the Sixth Amendment); Spriggs, 102 F.3d at 1251-55 (same). At any rate, even if
these federal circuit cases suggested what the lead opinion claims they do, our own
controlling state precedent more clearly suggests that for-cause dismissals of jurors by a
judge are part of voir dire. See Wise, 176 Wn.2d at 12 n.4; Brightman, 155 Wn.2d at 515;
Orange, 152 Wn.2d at 804-05.

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State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)

believes. Lead opinion at 11. What occurred in chambers here was voir dire.

Under well-settled precedent, voir dire must be conducted in open court unless the

trial court justifies a closure under the Bone-Club factors. Brightman, 155 Wn.2d

at 515; Wise, 176 Wn.2d at 11-12; State v. Paumier, 176 Wn.2d 29, 34-35, 288

P.3d 1126 (2012); see In re Pers. Restraint of Morris, 176 Wn.2d 157, 166, 288

P.3d 1140 (2012).

While the Record Is Sparse Due to the Failure To Engage in a
Bone-Club Analysis, It Is Sufficient To Demonstrate a Public Trial Violation

The lead opinion attempts to turn this into a case about an inadequate record.

Lead opinion at 11-12. It even suggests that "there may be cases where similar

discussions in chambers might implicate the public trial right," lead opinion at 11,

though it fails to explain how this is possible given its broad holding that

dismissals based on questionnaires are not part of voir dire. The record here is

sufficient to show a public trial violation; we know that jurors were dismissed for

cause by the judge in chambers. Reading between the lines in the transcript, the

only difference between these jurors and the 14 others who were dismissed in open

court based on their answers to the juror questionnaires seems to be that both

counsel agreed on the dismissals that were made in chambers. 1 VRP (Jan. 25,

2010) at 5. 6

6
The trial court explained, "We have had the questionnaires that have been filled
out. I have already, based on the answers, after consultation with counsel, excused jurors
number 19, 36, and 49 from panel two which is our primary panel and I've excused juror
number 15 from panel one, the alternate panel that we'll be using today." 1 VRP (Jan.
25, 2010) at 5.

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State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)

The lead opinion complains that we do not know who moved to take the

conversation regarding the juror dismissal into chambers but does not explain how

such information would be relevant to a public trial analysis. Lead opinion at 11.

It also laments that we do not know "whether the trial court invited comment from

the courtroom" or "what specifically was discussed in chambers." Id. But, this is

because the proceeding took place in chambers and the trial judge did not engage

in a Bone-Club analysis. That is, the sparse record results from the very

constitutional error at issue. 7

Ultimately, the lead opinion simply does not believe what happened here

was a big deal. It claims that "public access would have little role, positive or

negative, on review of questionnaires to screen out those with prior prejudicial

knowledge of the case." Lead opinion at 10. But "screening out those with prior

prejudicial knowledge of the case," whether based on questionnaire answers or oral

answers, is voir dire. We have long recognized the value of conducting voir dire in

public. The lead opinion further explains that logic is served by its resolution

because "[ q]uestioning the jurors about their disqualifying knowledge in open

court in front of the other jurors could have been potentially devastating to Slert's

right to a fair trial." Lead opinion at 10. Given that such a concen1 is easily

remedied-by conducting juror questioning in open court but outside the presence

7
The lead opinion explains that "[n]ot all arguable courtroom closures require
satisfaction of' the Bone-Club factors. Lead opinion at 6. To be clear, any proceeding to
which the public trial right attaches requires consideration of the Bone-Club factors to
effect a constitutional closure of the proceeding. But not all proceedings will implicate
the public trial right.

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State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)

of the rest of the panel-this concern should never serve as the basis for curtailing

the constitutional right to a public trial. Indeed, here 14 jurors were individually

questioned about their questionnaire answers in open court outside the presence of

the rest of the panel, as the lead opinion acknowledges. Lead opinion at 4.

Given that 14 jurors, were individually questioned based on their

questionnaire responses, I am baffled at the lead opinion's assertion that it would

be a "waste of time to question potential jurors individually while everyone else

waits if the parties and the court agree" on the disqualification. Lead opinion at 10.

I do not regard any part of voir dire as a waste of time, especially when individual

voir dire may be necessary to safeguard both the public trial right and the

defendant's right to a fair trial. Nor do I believe the public trial right attaches only

to matters on which the parties and the court cannot agree.

It may have been obvious-at least to those who were m the judge's

chambers-that the 4 jurors dismissed in chambers needed to be dismissed. But

their dismissal was still a part of voir dire. In the absence of a Bone-Club analysis

supporting a closure, these 4 jurors should have been questioned in open court, just

as the 14 other jurors who responded positively to the questionnaire were.

CONCLUSION

"A public trial is a core safeguard in our system of justice." Wise, 176

Wn.2d at 5. We have been clear and consistent in recognizing that the process by

which members of a jury are selected-voir dire-takes place in open court. This

case does not test the outer limits of that rule. What occurred here was plainly voir

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State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)

dire: the disqualification of potential jurors by a judge based on case-specific
answers to questions concerning potential bias. The dismissals should have been
made in open court absent a Bone-Club analysis justifying the closure. I would
affirm the Court of Appeals. Accordingly, I dissent.

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State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)

12