State v. Russell

This oolnion was filed for record
at· !OO 01 ·

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

)
STATEOFWASHINGTON, )
)
Respondent, ) No. 85996-5
)
v. )
) ENBANC
FREDERICK DAVID RUSSELL, )
)
Petitioner. ) Filed: AUG 2 0 2015
________________________)
YU, J.- This case involves the question of whether reviewing jury
questionnaires for hardship implicates the public trial right. On each of the first

two days of jury selection in this case, the trial judge, the attorneys, and petitioner

Frederick David Russell held work sessions to review juror questionnaires and to

separate the hardship juror requests from the others. These work sessions occurred

in the jury room, rather than in the courtroom, and the trial court did not conduct a

Bone-Club 1 analysis on the record before holding the work sessions.

1
State v. Bone-Club, 128 Wn.2d 254,906 P.2d 325 (1995).
State v. Russell, No. 85996-5

Russell contends that the work sessions violated the public trial right

guaranteed by article I, sections 10 and 22 of our state constitution and that his

convictions should therefore be reversed. The Court of Appeals rejected that

contention, as do we. The public trial right was not implicated, and we affirm the

Court of Appeals.

FACTUAL AND PROCEDURAL HISTORY

On June 4, 2001, Russell had been drinking alcohol and, at about 10:35 p.m.,

was driving well above the speed limit, straddling both sides of a two-lane

highway in a no-passing zone. Russell sid~swiped a green Geo that was traveling

in the opposite direction, then crashed head-on into a Cadillac that was behind the

green Geo. The crash instantly killed the Cadillac's driver and two passengers and

severely injured three other passengers, leaving them with permanent disabilities.

Russell's car then hit a red Geo that was behind the Cadillac. Russell, his

passenger, and the red Geo's driver were able to get out of their cars before both

cars caught fire.

Russell was arrested the morning after the accident. He posted bail but did

not return for a pretrial hearing in October 2001. Russell was eventually captured

in Ireland in 2005. In 2006, he was extradited back to the United States. Due to

extensive pretrial publicity throughout eastern Washington, the trial court granted

Russell's motion to change venue. Whitman County's only superior court judge

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State v. Russell, No. 85996-5

traveled across the state to Cowlitz County to preside over the guilt phase of the

trial, which was estimated to take three to four weeks. 9 Tr. of Proceedings (TrP)

(Oct. 15, 2007) at 1304-05, 1312.

Before trial, Russell requested "the use of a written juror questionnaire,

comprised of questions presented by both parties, to be filled out by all prospective

jurors before oral questioning is to commence by the Court or the parties." Clerk's

Papers at 1105. Consistent with this request, when prospective jurors arrived for

jury duty, they were asked to fill out a questionnaire before being called into the

courtroom. 2 The questionnaire was duplicated for review by the judge and

counsel. 9 TrP at 1294.

While waiting for the juror questionnaires to be completed and copied, the

court went through some preliminary matters on the record in open court. The jury

was not present, id., and it is not apparent from the record whether any members of

the media or the public were in the courtroom. The judge announced that he, the

attorneys, and Russell had held an in-chambers conference, id., where they had

agreed to have a work session "in the jury room going through those

[questionnaires] and trying to week [sic] out those that will automatically be

excused for hardship purposes," id. at 1297. 3 The court clerk then brought two

2
No juror questimmaires-either blank or completed-are in the record before this court.
3
The judge also addressed issues including the State's motion to amend the information,
Russell's not-guilty pleas, and anticipated juror seating arrangements. 9 TrP at 1294-1300.

3
State v. Russell, No. 85996-5

prospective jurors to the court's attention-one who was disqualified, possibly due

to illness (although it is not entirely clear from the record), and another who had

brought her child with her-and the judge excused both jurors in open court

without objection. Id. at 1301-02. It appears from the record that the prospective

jurors were in another room (not the comiroom) and that the courtroom clerk was

communicating with court staff who were in that prospective juror holding room.

The attorneys then confirmed there were no other preliminary issues that needed to

be addressed. Id. at 1303.

Having concluded these preliminary discussions, the judge announced on the

record in open court that "we'll be in recess and as soon as the questionnaires come

in I'll let the attorneys get together in the jury room and I'll let Mr. Russell be there

as well and we'll go through those to see- about hardship cases." Id. The court

went into recess at 10:10 a.m. !d. The record does not indicate when precisely the

work session in the jury room began, and there is no record of the work session

itself. There is no indication whether the door to the jury room was open or closed

during the work session or whether any member of the press or the public

requested or was denied access to the session. There is no indication that any

prospective jurors were questioned during the work session.

The court reconvened at 12:19 p.m. Id. Thus, while the record does not

state precisely how long the work session was, it could not have been longer than

4
State v. Russell, No. 85996-5

two hours and nine minutes. It is not apparent from the record whether the panel

of 76 prospective jurors was brought into the courtroom before or after the judge,

the attorneys, and Russell reentered the courtroom. !d. The judge stated the name

of the case and those present in the courtroom for the record, introduced himself

and the attorneys, and explained to the prospective jurors that the case had been

transferred from Whitman County. Id. at 1303-06. He then explained that he had

gone through the juror questionnaires with the attorneys and Russell to look for

"severe hardship issues ... [a]nd very shortly here I am going to go through the list

of-jurors that will automatically be excluded or excused from this case-

because of hardship reasons." Id. at 1307. The judge also noted that "some of you

that listed hardships will not automatically be excluded- there'll be some further

inquiry and then the Court will be making the decision." Id.

After thanking all the jurors for coming in and stressing the value of their

service, id. at 13 07-09, the judge announced jurors who would be excused for

hardship without any oral questioning, id. at 1309-10. Those jurors were not

excused from juror service altogether-they remained "on call for other Cowlitz

County cases." !d. at 1309. The judge instructed those who had not been excused

"to remain in attendance and - there will be some inquiries on other individuals

that listed grounds that they felt were hardship and I want to inquire a little further

here - very shortly here." !d. at 1310.

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State v. Russell, No. 85996-5

The judge made preliminary remarks, id. at 1311-26, and administered the

oath to the remaining jurors, id. at 1327. He then orally questioned jurors who had

requested to be excused for "hardship reasons or based on employment-type

reasons" but had not already been excused based on their questionnaires. !d. The

judge first addressed the concerns of jurors with physical impairments. !d. at

1329-32, 1336, 1337-43, 1356-58, 1365. The judge excused some jurors who

would not be able to sit comfortably for extended periods, but reiterated that the

excused jurors would need to "check back in" because the court "might try to get

you in a shorter case." Id. at 1358.

The judge also questioned jurors who had preexisting commitments and

employment-related issues that might make it a hardship to serve for the full three-

to-four-week trial. !d. at 1333-34, 1344-46, 1349-56, 1358-69, 1372. The judge

decided some of those issues after talking to the jurors, and he deferred decision on

others pending a discussion with the attorneys. He also requested that some jurors

look into making alternate arrangements and report back the next day.

The judge then announced he would step into the hallway with the attorneys

and Russell for an on-the-record sidebar discussion regarding the remaining

hardship requests. 4 !d. at 1372-83. Russell's attorney generally took a broad

approach, supporting excusal of jurors who might "have distractions." !d. at 1377.

4
Russell does not assign error to the sidebar discussion.

6
State v. Russell, No. 85996-5

The judge, the attorneys, and Russell then returned to the courtroom, and the judge

excused two more jurors for hardship. Id. at 1381, 1383.

Before dismissing the remaining jurors for the evening, the judge noted on

the record that there was a "television camera" and "other members of the media"

present, but the record does not indicate how long they had been there or if there

were any other members of the public present. Id. at 1387. The judge instructed

the prospective jurors not to discuss the case among themselves or with anyone

else and to avoid all media coverage of the case, id. at 1386-88, and dismissed

them for the evening, id. at 1390. To ensure there would be enough jurors, the

judge requested 15 additional jurors for the next day, who would fill out the same

questionnaire and be subject to the same hardship excusal process. Id. at 1521-22.

The next day, the court began with an in-court, on-the-record hearing outside

the jurors' presence regarding pretrial evidentiary motions. 10 TrP (Oct. 16, 2007)

at 1529. Meanwhile, the 15 newly summoned jurors filled out their questionnaires,

which were again copied for review by the judge and counsel. I d. at 153 7. The

judge announced on the record in open court that they would have another work

session to "go through and do like we did yesterday or at least determine

hardships" once those questionnaires were copied. Id. The record does not

indicate whether any members of the media or the public were in the courtroom

7
State v. Russell, No. 85996-5

when the judge made that announcement. The court then resumed hearing pretrial

motions.

The clerk notified the judge that the 15 new jurors had completed their

questionnaires. I d. at 1543. After some further argument on pretrial motions, the

court noted it was now nine o'clock, asked about the questionnaires, id. at 1562,

and announced that"[ o]nee they're all copied we'll take a break and review those,"

id. at 1563. After confirming with the clerk that all the new jurors' questionnaires

had been copied, id. at 1567, the judge announced the court would recess for

another work session, "retire to the jury room briefly[,] and try to sort out the

hardship requests," id. at 1570.

The court recessed at 9:08a.m., id., and there is no indication in the record

whether any members of the public or the media were present in courtroom at that

time. The record does not indicate whether the work session began immediately or

after a break, and there is no record of the work session itself. There is no

indication whether the door to the jury room was open or closed during the work

session or whether any member of the press or the public requested or was denied

access to the session. There is no indication that any prospective jurors were

questioned during the work session.

The court reconvened at 10:08 a.m. !d. Thus, while the record does not

indicate precisely how long t~e work session was, it could not have lasted more

8
State v. Russell, No. 85996-5

than one hour. It is not apparent from the record whether the prospective jurors

were brought into the courtroom before or after the judge, the attorneys, and

Russell reentered the courtroom. Id. The clerk announced court was back in

session, id., and the judge explained to the new jurors that the trial was expected to

last three to four weeks and "a couple of the issues that were addressed - in the

jury questionnaire related to - hardship issues; whether or not it would create a

hardship for a particular juror to have to serve - for a lengthy period of time in

this case." Id. at 1571.

The judge then explained that he had gone through the questionnaires with

the attorneys and announced on the record in open court which of the 15 newly

summoned jurors would be excused for hardship without oral questioning. !d. at

1572-73. No jurors who had been there the day before were excused immediately

after the second work session. !d. at 1573. The judge told the excused jurors that

they would need to check back in with the bailiff because they "may be called in

for another trial, a shorter trial." !d. The judge then questioned other jurors who

had made hardship requests, revisited those jurors who had needed to look into

alternate arrangements, and issued oral decisions on the record in open court. Id. at

1574-81.

9
State v. Russell, No. 85996-5

After the preliminary hardship determinations were concluded, 5 the judge

made preliminary remarks for the benefit of the new jurors, id. at 15 81-97, and

administered the oath to all those who had not been there the day before, id. at

1594. Then the court turned voir dire questioning over to the attorney for the State.

!d. at 1597. Attorney voir dire took place on October 16, 17, and 18. At the end of

the day on October 18, the attorneys exercised peremptory challenges and the final

jury was announced.

Trial lasted until November 6, 2007. 28 TrP (Nov. 6, 2007) at 5175. The

jury convicted Russell of three counts of vehicular homicide and three counts of

vehicular assault. The Court of Appeals affirmed Russell's convictions, holding

that the work sessions on the first two days of jury selection did not implicate

Russell's public trial right because those sessions were concerned only with

excusals for general hardship considerations, rather than case-specific, for-cause or

peremptory challenges. See State v. Russell, noted at 161 Wn. App. 1002, slip op.

at 47-55 (2011). The Court of Appeals remanded the case for the sole purpose of

granting Russell credit for the time he spent in detention in Ireland while he was

challenging extradition.

5
0nejuror's initial hardship request was deferred. 10 TrP at 1579-80. Later, during attorney
voir dire, the juror revealed an employment-related financial burden and she was excused for
hardship at that time. 12 TrP (Oct. 17, 2007) at 1908-10.

10
State v. Russell, No. 85996-5

This court deferred consideration of Russell's petition for review pending

final decisions in State v. Sublett, 176 Wn.2d 58, 292 P.3d 715 (2012), State v.

Slert, 181 Wn.2d 598, 334 P.3d 1088 (2014), and State v. Njonge, 181 Wn.2d 546,

334 P.3d 1068 (2014). On February 4, 2015, we granted Russell's petition for

review only as to the public trial issues. 182 Wn.2d 1001, 342 P.3d 326 (2015).

ISSUES

A. Did the trial court's work sessions in the jury room with the attorneys
and Russell to review juror questionnaires for hardship issues implicate the public
trial right?

B. Should this court revisit its application of the structural error doctrine
in public trial rights cases?

ANALYSIS

Experience and logic show that the public trial right was not implicated by

the two work sessions regarding preliminary hardship issues raised by the juror

questionnaires, 6 and we affirm the Court of Appeals. In light of this determination,

we will not revisit our approach to structural error at this time.

A. The public trial right was not implicated by the work sessions

Where there is no directly controlling precedent determining whether the

public trial right is implicated by a particular proceeding, we use the experience

6
To the extent Russell speculates that the public trial right was implicated because other matters
may have come up during the work sessions, see Am. Pet. for Review at 15, it is his burden on
appeal to provide a record showing that the public trial right was implicated, State v. Koss, 181
Wn.2d 493, 503, 334 P.3d 1042 (2014). He has not done so.

11
State v. Russell, No. 85996-5

and logic test. Njonge, 181 Wn.2d at 553-54. 7 Neither experience nor logic

indicates that the public trial right is implicated by work sessions to review juror

questionnaires for hardship issues.

1. There is no indication that proceedings like the work sessions held in
this case have historically been open to the press and the public

As Russell correctly argues, jury selection, and particularly voir dire,

implicates the right to a public trial. State v. Brightman, 155 Wn.2d 506, 515, 122

P.3d 150 (2005). However, "jury selection" encompasses significantly more than

attorney voir dire, and the mere label of "jury selection" does not mean the public

trial right is automatically implicated. State v. Wilson, 174 Wn. App. 328, 338,

298 P .3d 148 (20 13 ). Relevant cases, statutes, and court rules show that, as a

matter of experience, Russell's public trial right was not implicated when the

judge, Russell, and the attorneys held work sessions to review juror questionnaires

for hardship.

The public trial right is not implicated by preliminary excusals for statutory

reasons (including hardship) based on juror questionnaires. See Slert, 181 Wn.2d

at 605-06 (Gonzalez, J., lead opinion), 614 (Stephens, J., dissenting); State v.

Schumacher,_ Wn. App. _ , 347 P.3d 494, 500-01 (2015). Determining

7
Njonge considered the public trial right implications of juror hardship excusals, but we resolved
that case with a holding that the record did not establish that the hardship determination process
was closed to the public. Njonge, 181 Wn.2d at 558.

12
State v. Russell, No. 85996-5

whether a juror is able to serve at a particular time or for a particular duration (as

in hardship and administrative excusals) is qualitatively different from challenging

a juror's ability to serve as a neutral factfinder in a particular case (as in

peremptory and for-cause challenges). See In re Pers. Restraint of Coggin, 182

Wn.2d 115, 117, 340 P.3d 810 (2014) (C. Johnson, J., lead opinion); In re Pers.

Restraint of Speight, 182 Wn.2d 103, 105, 340 P.3d 207 (2014) (C. Johnson, J.,

lead opinion); cf State v. Irby, 170 Wn.2d 874, 882, 246 P.3d 796 (2011) (drawing

the distinction in the context of the defendant's right to be present). In addition to

our own case law, this distinction is supported by the statutes and rules regarding

juror selection proceedings. See GR 28(a) (setting forth "procedures for

postponing and excusing jury service under RCW 2.36.100 and 2.36.110 and for

disqualifying potential jurors under RCW 2.36.070"), (b )(3) (explicitly

distinguishing between excusal for statutory reasons and "peremptory challenges

or challenges for cause that fall outside the scope of this rule"); CrR 6.4 (governing

voir dire, challenges for cause, and peremptory challenges).

We must "consider the actual proceeding at issue for what it is, without

having to force every situation into predefined factors," Sublett, 176 Wn.2d at 73

(C. Johnson, J., lead opinion). The record indicates that the actual proceedings

here-the work sessions-consisted of the trial judge, Russell, and the attorneys

sitting in the jury room and reviewing the jurors' written questionnaires for

13
State v. Russell, No. 85996-5

potential hardship issues. No jurors were questioned during those work sessions.

The judge announced all his excusal decisions in open court and clearly stated that

the excusals immediately following the work sessions were based on hardship.

Those jurors were not disqualified or excused from service altogether-the judge

mentioned several times on the record that they might be called back to serve on a

shorter case. And the judge did question many jurors about hardship in open court,

strongly indicating that the judge did not excuse any juror without oral questioning

unless the judge, the attorneys, and Russell agreed that excusal for hardship was

justified based on the questionnaire alone. Cf In re Det. of Morgan, 180 Wn.2d

312, 326, 330 P.3d 774 (2014) (holding the experience prong is not met for

proceedings "akin to a status conference").

Proceedings like the work sessions here have not historically been open to

the press or general public. The experience prong is not met.

2. Logic does not require work sessions to review juror questionnaires
for hardship issues to be conducted in open court

As a matter of logic, the purposes of the public trial right would not be

served by requiring work sessions like the ones at issue here to be conducted in

open court. No jurors were questioned during the work sessions, so the purposes

of discouraging perjury and encouraging witnesses to come forward would not be

advanced. See id. at 325. The trial judge announced the work sessions before they

occurred, explained what occurred during the work sessions afterwards, announced

14
State v. Russell, No. 85996-5

all his decisions in open court, and specified that the excusals were based on

hardship. The work sessions therefore did not involve the kind of secret decision-

making that would undermine legitimacy or public confidence in judicial

proceedings. See id. The judge's announcements on the record, coupled with

Russell's personal participation in the work sessions, also served to remind the

court and the attorneys of their duties to Russell and to the public. See id.

Neither the experience nor the logic prong is met, and the public trial right

was not implicated by the work sessions. To avoid appeals like this one, we

strongly encourage trial courts to conduct all proceedings in open court (or conduct

on-the-record Bone-Club analyses before removing any proceedings from open

court), even if the public trial right is not (or is unlikely to be) implicated.

B. We do not revisit our application of the structural error doctrine in this case

The State and allied amici urge us to revisit our application of the structural

error doctrine in public trial cases. Any such discussion would be unnecessary to

the resolution of this case, and we decline to reconsider the structural error doctrine

as applied to the public trial right in dicta.

CONCLUSION

The public trial right was not implicated by the work sessions the trial court

held with Russell and the attorneys to review the juror questionnaires for hardship

issues. We affirm the Court of Appeals.

15
State v. Russell, No. 85996-5

WE CONCUR:

~~ o,c;
---L,L~~--~

16
State v. Russell (Frederick David), No. 85996-5
(Gordon McCloud, J., Concurrence in Result)

No. 85996-5

GORDON McCLOUD, J. (concurring m result)-The single question

presented in this case is whether the right to open justice and a public courtroom

applies to preliminary hardship determinations based on written jury questionnaires,

where, as here, the judge memorializes those decisions immediately afterward on

the record in open court. 1 I agree with the majority that the answer to that question

1s no.

However, I disagree with the majority's additional dicta and I write separately

to make clear that it is unnecessary to our decision in this case.

First, the majority makes clear that the two preliminary hardship

determination discussions at issue occurred outside of the courtroom, in a separate

'"jury room,"' during what was clearly a recess. Majority at 3-4 (quoting 9 Tr. of

Proceedings (TrP) (Oct. 15, 2007) at 1297 (portion of transcript showing that court

1
As we all agree, the right to a public trial is guaranteed by both the Washington
(CONST. art. I, §§ 10, 22) and United States (U.S. CONST. amends. I, VI) constitutions.
1
State v. Russell (Frederick David), No. 85996-5
(Gordon McCloud, J., Concurrence in Result)

recessed at 10:10 a.m. and reconvened at 12:19 p.m. and that the jury room session

occurred in the interim)). In fact, the second such jury room discussion is

characterized by the trial judge himself as something that would occur after he

"'retire[d]'" to that "jury room." Majority at 8 (quoting 10 TrP (Oct. 16, 2007) at

1570). But the majority then twice calls out the fact that the transcript is silent about

whether the door to that jury room was open or closed during this recess and even

characterizes it as a "work sessi~:m" rather than a recess. Majority at 4 ("There is no

indication whether the door to the jury room was open or closed during the work

session or whether any member of the press or the public requested or was denied

access to the session."), 8 ("There is no indication whether the door to the jury room

was open or closed during the work session .... ").

The majority's citations to the record are certainly accurate. But they are

irrelevant and therefore misleading. They tend to imply that whether the door to a

jury room or judge's chambers is open or closed is relevant to determining whether

a proceeding that occurs in there-during a "recess" when the parties and the court

"retired" to that location-is really open or closed. That is incorrect. We have held

that retiring to such a separate and presumptively private setting outside of the public

courtroom constitutes a courtroom closure. In State v. Frawley, 181 Wn.2d 452, 334

P.3d 1022 (2014), for example, we considered two consolidated cases raising

2
State v. Russell (Frederick David), No. 85996-5
(Gordon McCloud, J., Concurrence in Result)

courtroom closure issues. In one of them, the judge and counsel retired to the judge's

chambers to conduct certain voir dire proceedings-and we began by addressing

whether that constituted a courtroom closure. We noted that the record showed that

the door to the judge's chambers was open, the judge purposely left it open, and the

judge subjectively characterized his decision to leave the door open as somehow

creating another open courtroom in chambers: "The court stated multiple times

throughout this discussion and at the in-chambers questioning of the juror that the

individual questioning had to and did remain a public proceeding. During the in-

chambers questioning, the judge stated for the record, '"The inner and outer door to

my chambers are open. The courtroom door is closed, but this must remain a public

proceeding."' !d. at 457-58 & n.6. But we rejected the notion that keeping the door

to that separate, private room open created a little public courtroom right there in

chambers. Instead, we treated it as a case in which the courtroom was closed. !d. at

460 ("In both cases, the in-chambers questioning of jurors constituted a closure of

the courtroom under [State v.] Wise, 176 Wn.2d 1[, 288 P.3d 111? (2012)]."). The

court decided that case, instead, on waiver issues.

If leaving the door to chambers open did not create an open-chambers

courtroom in that case, then silence about leaving the doors to the jury room open

cannot create an open-jury-room courtroom in this case. Retiring to a jury

3
State v. Russell (Frederick David), No. 85996-5
(Gordon McCloud, J., Concurrence in Result)

deliberation room, like retiring to chambers, is leaving the courtroom, and the public,

behind.

Next, the majority discusses structural error-even though it finds no error in

the first place. The majority certainly does not depart from our settled precedent

applying structural error analysis to courtroom closure errors. But it states that the

reason it adheres to precedent is because the case did not present a proper vehicle

for revisiting that precedent. Majority at 11 ("In light of this determination [that the

public trial right does not attach to juror hardship determinations], we will not revisit

our approach to structural error at this time."), 15 ("we decline to reconsider the

structural error doctrine as applied to the public trial right in dicta").

I agree that we need not address what type of error occurred because no error

occurred. But I disagree with the dicta that undermines our structural error

jurisprudence. We have treated violations of the constitutional public trial right as

structural error, in criminal cases, for the last 20 years, since State v. Bone-Club, 128

Wn.2d 254, 906 P.2d 325 (1995). See, e.g., State v. Paumier, 176 Wn.2d 29, 33,

288 P.3d 1126 (2012); State v. Wise, 176 Wn.2d 1, 7, 288 P.3d 1113 (2012); State

v. Strode, 167 Wn.2d 222, 217 P.3d 310 (2009); State v. Easterling, 157 Wn.2d 167,

137 P.3d 825 (2006).

4
State v. Russell (Frederick David), No. 85996-5
(Gordon McCloud, J., Concurrence in Result)

I therefore respectfully disagree with the dicta in the majority's opinion. But

I concur in the result.

5
State v. Russell (Frederick David), No. 85996-5
(Gordon McCloud, J., Concurrence in Result)

6