In re Pers. Restraint of Serano Salinas

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CMIB=JLIS71CF COURT OF THE STATE OF WASHINGTON

In the Matter ofthe Personal Restraint of
No. 91905-4

HECTOR SERANO SALINAS, En Banc

Respondent. Filed -IAN 0 >{ 20t8
J

MADSEN,J.—This case addresses the availability and application of the invited

error doctrine on Hector Serano Salinas's personal restraint petition(PRP), which asserts

for the first time on collateral review that his public trial right was violated by private

questioning of some potential jurors in chambers and that his appellate counsel was

ineffective for failing to raise the public trial right violation on direct review. Based on

the particular circumstances of this case, we hold that Salinas invited the courtroom

closure error that he now asserts and is precluded from raising that error. Further,

consistent with the Supreme Court's recent decision in Weaver v. Massachusetts,

U.S. , 137 S. Ct. 1899, 198 L. Ed. 2d 420(2017), we hold that Salinas's assertion of

ineffective assistance of appellate counsel fails because he has not met his burden of

showing that he was prejudiced by the courtroom closure error.^

FACTS

In 2010, a jury convicted Salinas of three counts of first degree rape and one count

of first degree kidnapping concerning his assault on a homeless woman at a Bellingham

' Weaver recognized that closing the courtroom constitutes structural error, but noted different
categories of structural error, some requiring reversal and others not, as discussed infra.
No. 91905-4

park. See State v. Salinas, 169 Wn. App. 210, 214, 279 P.3d 917(2012), review denied,

176 Wn.2d 1002(2013). He was sentenced as a persistent offender to life without the

possibility of release. Id. at 216; Resp. to PRP, App. A.^ Salinas's direct appeal raised

numerous substantive issues challenging his conviction and sentence. See Salinas, 169

Wn. App. at 216-27. Division One of the Court of Appeals affirmed his conviction and

persistent offender sentence, but remanded for vacation ofthe kidnapping conviction and

for a determination regarding whether the rapes constituted the same criminal conduct.^

Id. at 227.

Within a year of the resolution of his appeal, Salinas filed the current PRP alleging

a violation of his public trial right during jury selection and that his appellate counsel was

ineffective for failing to raise the issue on direct review. The relevant facts eoneeming

jury voir dire are as follows.

More than a month before trial, Salinas's defense counsel filed a proposed jury

questionnaire and instruction that informed prospective jurors:

Some ofthese questions may call for information of a personal
nature that you may not want to discuss in public. If you feel that your
answer to any question may invade your right to privacy or might be
embarrassing to you, you may so indicate on the form that you would prefer
to discuss your answer in private. You will find instructions for this on the
questionnaire.

^ Further references to appendices are to documents appended to the State's response to Salinas's
PRP.
^ After remand from the direct appeal, Salinas filed another appeal challenging the recalculation
of his offender score based on his amended judgment and sentence for three coimts offirst
degree rape, but Division One affirmed in an unpublished decision. See State v. Salinas, No.
70125-8-1, slip op.(Wash. Ct. App. July 21, 2014)(unpublished),
http://www.courts.wa.gov/opinions/pdf/701258.pdf.
No. 91905-4

App. B at 2. Question 26 then asked whether the juror would prefer to discuss the answer

to any ofthe questions ''privately rather than in open court''' and asked the juror to

identify the questions by number. Id. at 7(emphasis added). Several ofthe questions

asked about jurors' experience with sexual abuse or misconduct.

Defense counsel filed two more proposed juror questionnaires before the trial date.

All three questionnaires provided the same advisement to jurors noted above, asked

similar questions about sexual abuse or misconduct, and asked whether the jurors would

prefer to discuss their answers to some questions "privately rather than in open court."

Id.-, App. C at 7; App. D at 7. The prosecutor did not file a proposed juror questionnaire,

did not agree with some of the questions in the defense questionnaire, and did not request

private voir dire.

On March 8, 2010, the trial court's questionnaire given to the jurors was filed in

open court. The questiormaire included several ofthe same questions defense counsel

had proposed regarding experience with sexual abuse or misconduct, and similarly

advised:

[I]f your answer to any of the following questions is ofsuch a "sensitive
nature" that you would like to discuss it "privately", please identify those
questions by number here:

App. E at 2(formatting omitted).

During pretrial motions that same day, the trial court noted that seven ofthe

prospective jurors had indicated on their questionnaires that they wanted to speak in

private. The judge suggested that the jurors be sworn in and that the jurors who wanted
No. 91905-4

to speak individually could be dealt with first, before the rest of voir dire. At the end of

pretrial motions the next day, defense counsel suggested:

I have a suggestion to help the jury here. I don't know if the Court is
willing to do this is [sic] that we take a break now and bring the jury up
here, get them sworn, and let the ones go that don't want to talk in private.

Verbatim Report ofProceedings(VRP)(Mar. 9, 2010, Pretrial CR 3.5 Hr'g & Pretrial

Mots.) at 69-70. The judge indicated that was what he had in mind: to swear the jury in

and go through the basic qualifications. The prosecutor stated,"[Wjhen you're talking

about taking them in privately"—^to which the judge responded,"I'm going to ask if

there's anybody in the courtroom who has an objection, otherwise we have to do it in

open courtroom." Id. at 70.

Later that day, after inquiring whether all the prospective jurors had filled out the

questionnaire, the judge informed the venire:

As you can see by that [questionaire], this is a case that might
involve some matters which might be of a sensitive nature. In this ease,
I'm going to offer an opportunity to those who have indicated that they
wish to speak in private about some issues the chance to do that. That is
the first thing we will undertake, and then we will go through the general
process of picking a jury which will start this afternoon.

VRP(Mar. 9, 2010, Jury Voir Dire) at 3. After addressing some other matters, the judge

returned to the issue of voir dire, noted that some potential jurors had requested to speak

in private, and inquired:

Is there anyone in this group or anyone in this courtroom at this time who
has any objection whatsoever to the Court conducting a short interview
with each of those jurors, potential jurors with counsel and the defendant in
my chambers all on the record to determine what their concerns are and be
No. 91905-4

able to have them answer those questions or tell them what their concerns
are in private? Is there anyone here that has any objection to that?

Id. at 13 (emphasis added). The court then directed the jurors who wished to speak

privately to return at 1:30 p.m. and the remainder to return at 2:30 p.m. Id. at 12-13, 23.

After the recess, the court inquired again:

I would ask if anyone has an objection to us speaking to them in
private with us and counsel and defendant and the court reporter? Then I
will go into chambers. Counsel will come in. The attorneys will come with
me. The court reporter will set up, and Ms. Ortner will bring you in one at
a time.

Id. at 23. The record indicates that when the trial court twice called for objections to the

limited in-chambers questioning, no one objected. App. G at 2.

During in chambers voir dire,jurors discussed their own and their families'

criminal histories and experiences with sexual abuse. As a result ofthe individual voir

dire, three of the jurors were excused for cause.

As noted, following Salinas's conviction and resolution of his direct appeal, he

filed the present PRP asserting that the in-camera questioning of some potential jurors

violated his public trial right. The PRP contended that the trial court's failure to conduct

a Bone-Club^ analysis before conducting in-chambers voir dire requires reversal of his

conviction and that he was denied effective assistance of appellate counsel when his

appointed attorney failed to raise the public trial issue in his direct appeal. Division One

agreed, reversing his conviction in an unpublished decision. In re Pers. Restraint of

Salinas, No. 71383-3-1, slip op.(Wash. Ct. App. June 15, 2015),

State V. Bone-Club, 128 Wn.2d 254,906 P.2d 325 (1995).
5
No. 91905-4

http://www.courts.wa.gov/opinions/pdf/713833.pdf. The State moved for discretionary

review, contending that Salinas was foreclosed from raising the voir dire public trial right

violation because he had invited the error. This court granted review. 185 Wn.2d 1024,

369 P.3d 501 (2016).

ANALYSIS

Invited Error

A criminal defendant has a right to a public trial as guaranteed by our state and

federal constitutions. U.S. CONST, amend. VI; WASH. CONST, art. I, § 22(providing "the

accused shall have the right... to have a speedy public trial"); State v. Paumier, 176

Wn.2d 29, 34, 288 P.3d 1126 (2012). We have repeatedly held that the public trial right

applies to jury selection. The public trial right extends to voir dire proceedings and the

questioning of individual prospective jurors. State v. Wise, 176 Wn.2d 1, 16-19, 288 P.3d

1113 (2012). The right to a public trial is not absolute, however, and this court has

established that a trial court may close the courtroom so long as it considers the five

criteria outlined in Bone-Club.^ Failure to conduct a Bone-Club analysis before closing

the proceeding is error generally requiring a new trial. Paumier, 176 Wn.2d at 35.

This court has applied a different rule, however, in the present context of collateral

review in which a public trial violation is asserted for the first time. This court has

^ The five factors are (1)the proponent of closure must make a showing of compelling need,(2)
any person present when the motion is made must be given an opportunity to object,(3)the
means of curtailing open access must be the least restrictive means available for protecting the
threatened interests,(4)the court must weigh the competing interests ofthe public and ofthe
closure, and (5)the order must be no broader in application or duration than necessary.
Bone-Club, 128 Wn.2d at 258-59.
No. 91905-4

recently held that the usual presumption of prejudice applicable to courtroom closure

claims raised on direct appeal does not apply in the PRP context. In re Pers. Restraint of

Coggin, 182 Wn.2d 115, 120, 340 P.3d 810 (2014).^

In Coggin, in a lead and a concurring opinion, five justices of this court denied the

petitioner's PRP, holding in part that it is petitioner's burden on collateral review to show

that a public trial right violation was prejudicial. Id. at 122, 123 (Madsen, C.J.,

concurring). Because the petitioner relied only on the presumption of prejudice that is

available in a direct appeal, he had failed to meet his burden on collateral review and his

PRP was dismissed. Id. at 122, 123(Madsen, C.J., concurring).

In Coggin, five justices also agreed that the invited error doctrine is applicable to a

petitioner's assertion of a public trial right violation. In the lead opinion's view,

however, the facts were not sufficient to establish that the error was invited. The Coggin

lead opinion (four votes) reiterated that "'[t]he basic premise of the invited error doctrine

is that a party who sets up an error at trial cannot claim that very action as error on appeal

and receive a new trial.'" Id. at 119(quoting State v. Momah, 167 Wn.2d 140, 153, 217

P.3d 321 (2009)).^ The lead opinion stated, "In determining whether the invited error

doctrine applies, we have considered whether the defendant affirmatively assented to the

error, materially contributed to it, or benefited from it." Id.(emphasis added). Similarly,

the concurrence(one vote) noted that "a party is precluded from raising a public trial

^ Coggin was decided after Salinas filed his PRP.
^ See also State v. Henderson, 114 Wn.2d 867, 871, 792 P.2d 514(1990)(even where
constitutional issues and constitutional rights are involved, invited error precludes appellate
review).
No. 91905-4

right challenge ... where the party invited the error or waived his or her public trial

rights." Id. at 124(Madsen, C.J., concurring). The concurrence opined that in assessing

invited error, the court looks to the "totality of the circumstances," considering "whether

the party engaged in affirmative and voluntary action to induce or contribute to the error

and whether he or she benefited from the trial court's action." Id.(emphasis added).

The relevant facts in Coggin are as follows. Coggin's charges, which included

first degree burglary, rape, robbery, and unlawful possession of a firearm, concerned the

home invasion and assault oftwo young sisters. During jury selection, defense counsel

expressed a desire for individual juror questioning because ofthe publicity and sensitive

nature ofthe case. The prosecutor drafted a juror questionnaire, and defense counsel

approved the final version. The questionnaire advised the potential jurors that ifthey

preferred to discuss their answers in private, the court would provide an opportunity to do

so in a closed hearing. The court and the parties questioned 12 prospective jurors in

chambers, and 6 prospective jurors were dismissed for cause. The court did not engage

in a Bone-Club analysis before the private questioning of the jurors, nor did the defense

voice any objection to the procedure. Following conviction and resolution of his appeal,

Coggin filed a PRP asserting that his right to a public trial was violated by the private

questioning of some potential jurors. See Coggin, 182 Wn.2d at 117, 125 (Madsen, C.J.,

concurring).

In Coggin, the lead and concurring opinions disagreed as to whether the evidence

established invited error. To the concurrence, defense counsel's advocating for private

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No. 91905-4

questioning, approval of the State's juror questionnaire that promised private questioning,

and active participation in the ensuing private questioning was sufficient to bar the

petitioner's public trial right claim as invited error. The lead opinion disagreed, opining

that "Coggin's actions do not rise to the level of invited error" because he "merely

assent[ed\ to the State'sjuror questionnaire and ... it was the trial judge who decided to

question jurors in chambers." Id. at 119(emphasis added). In other words, in the lead

opinion's view, Coggin's mere joining the State's questionnaire was not a sufficient

material contribution to the public trial right error.^ See id.

In the present case, the omission that troubled the Coggin lead opinion is not

present. Here, defense counsel played the initiating and sustaining role that led to private

questioning ofjurors. Three times before trial, defense counsel submitted proposed juror

questionnaires that invited jurors to identify which questions they would "prefer to

discuss the answer[s] to . . . privately rather than in open court." App. B at 7; App. C at

7; App. D at 7(question 26). The State "did not request thatjurors be questioned in

private." App. F at 2. Accordingly, defense counsel's early and repeated advocacy for

private questioning was the impetus behind the court's questionnaire that similarly

directed jurors: "If any of the questions asked here are ofsuch a 'sensitive' nature that

you would like to discuss it privately, please indicate the number of the question(s) here:

." App. E at 4(question 13). Under these facts, Salinas carmot now be heard to

^ The dissent in Coggin did not address invited error except to say,"We should protect the public
trial right by acknowledging that an uninvited, unwaived violation ofthis important right is
always inherently prejudicial." Coggin, 182 Wn.2d at 126 (Stephens, J., dissenting)(emphasis
added).
No. 91905-4

complain that the very procedure he proposed was employed by the trial court. "The

[invited error] doctrine applies when a party takes affirmative and voluntary action that

induces the trial court to take the action that that party later challenges on appeal." 15A

Karl B.Tegland & Douglas J. Ende, Washington Practice: Washington

Handbook ON Civil Procedure § 88.4, at 758(2015 ed.); see also In re Pers. Restraint

ofThompson, 141 Wn.2d 712, 723-24, 10 P.3d 380(2000)(doctrine of invited error

prohibits a party from knowingly setting up an error by an affirmative act and then

complaining on appeal); Smith v. Whatcom County Dist. Court, 147 Wn.2d 98, 113, 51

P.3d 790(2002)(same).

Given defense counsel's role in initiating the request for private questioning,

defense counsel's advocacy for private questioning (including repeated submission of

proposed juror questionnaires that provided for such questioning), defense counsel's

active participation in the private questioning, defendant's benefiting from such

questioning, and defense counsel's failure to object to such proceeding, under these facts

defense counsel not only "materially contributed" to the private questioning but also took

"affirmative and voluntary action to induce" such private questioning. Coggin, 182

Wn.2d at 119, 124.® We hold that under these facts, petitioner may not now assert a

® See also Ames v. Ames, 184 Wn. App. 826, 849, 340 P.3d 232(2014)(a party who "first
suggested the procedure" that the court employed and who "participated in this procedure" is
estopped from subsequently objecting to the procedure because "[ujnder the doctrine ofinvited
error, a party may not materially contribute to an erroneous application of law at trial and then
complain of it on appeal"). Further, while the trial judge will always make the ultimate decision
on whether to adopt a party's proposal, the salient point here is that the proposal to close the
courtroom originated with and was pushed by defense counsel. The significance of defense
counsel's multiple proposed juror questionnaires is that they demonstrated the defense's repeated
10
No. 91905-4

public trial error concerning the private questioning ofjurors because he invited such

error.

Salinas contends that "[i]t is difficult to fathom any material difference between

Coggin and Salinas's case." Suppl. Br. of Resp't at 15. As discussed above, there are

key differences. In Coggin, the State took the lead in designing the courtroom closure.

Here, defense counsel supplied that role. As the Coggin lead opinion observed,"During

jury selection, defense counsel expressed a desire for individual juror questioning due to

the publicity and sensitive nature of the case. The prosecutor drafted a juror

questionnaire, and defense counsel approved the final version." 182 Wn.2d at 117. The

Coggin lead opinion determined: "The State provided the juror questionnaire that offered

potential jurors a 'closed hearing,' and while Coggin approved of the questionnaire, he

did not actively participate in designing the trial closure." Id. at 118. By contrast,

Salinas's counsel's repeated submissions of proposed questionnaires advocating for

private questioning ofjurors demonstrates the defense's impetus and advocacy for a

closed proceeding and the leading role the defense played in fomenting such closure,

particularly where the State did not request that jurors be questioned in private. Unlike

Coggin, the defense here actively participated in designing the trial closure.

Ineffective Assistance of Appellate Counsel

Invited error, as discussed above, also impacts Salinas's claim of ineffective

assistance of appellate counsel. Salinas's PRP relies on In re Personal Restraint of

and sustained advocacy for a closed proceeding, and that such advocacy began more than a
month before voir dire.

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No. 91905-4

Morris, 176 Wn.2d 157, 288 P.3d 1140(2012)(plurality opinion), as does Division One,

in reversing Salinas's convictions. "To establish ineffective assistance of appellate

counsel, a petitioner must establish that(1)counsel's performance was deficient and (2)

the deficient performance actually prejudiced the defendant." Salinas, No. 71383-3-1,

slip op. at 3 (citing Morris, 176 Wn.2d at 166 (citing In re Pers. Restraint ofOrange, 152

Wn.2d 795, 814, 100 P.3d 291 (2004))). '"[Wjhere appellate counsel fails to raise a

public trial right claim, where prejudice would have been presumed on direct review, a

petitioner is entitled to relief on collateral review.'" Id.(emphasis added)(alteration in

original)(quoting Morrw, 176 Wn.2d at 161 ("reaffirm[ing] Orange'^)).

Morris held that the case before the court was "no different from the situation in

Orange where the appellate counsel failed to raise the public trial right issue." 176

Wn.2d at 167. Morris noted that, like Orange, the failure to raise the courtroom closure

issue was "not the product of'strategic' or 'tactical' thinking," and it deprived the

petitioner of the opportunity to have the constitutional error deemed per se prejudicial on

direct appeal. Id. at 167-68. However, in both Morris and Orange, the trial court acted

sua sponte in ordering closure. See id. at 162(court moved voir dire into chambers, but

neither the State nor defense counsel moved for private voir dire); see also State v.

Easterling, 157 Wn.2d 167, 177, 137 P.3d 825 (2006)(noting that in Orange, the trial

court ordered closure sua sponte, and that in Bone-Club, the party requesting closure was

the State). Thus, Morris and Orange are not like the present case, in which the impetus

for closure originated with the petitioner. As discussed above, the presence of invited

12
No. 91905-4

error makes Salinas's case different. See State v. Henderson, 114 Wn.2d 867, 871, 792

P.2d 514(1990)(invited error precludes judicial review even where the alleged error

raises constitutional issues).

"To prevail on a claim of ineffective assistance of appellate counsel,[petitioner]

must demonstrate the merit of any legal issue appellate counsel . . . failed to raise and

also show[]he was prejudiced." In re Pers. Restraint ofNetherton, 111 Wn.2d 798, 801,

306 P.3d 918(2013)(citing re Pers. Restraint ofLord, 123 Wn.2d 296, 314, 868 P.2d

835, cert, denied, 513 U.S. 849(1994)). Here, in light ofthe invited error, Salinas cannot

demonstrate that his conviction would have been reversed if appellate counsel had raised

the public trial right violation. Thus, he cannot demonstrate prejudice from appellate

counsel's failure to raise the right to public trial violation that he alleges.

Notably, the "structural error" and resulting presumed prejudice, on which both of

Salinas's PRP claims rely, has been clarified in the Supreme Court's recent decision in

Weaver v. Massachusetts, U.S. , 137 S. Ct. 1899, 198 L. Ed. 2d 420(2017). The

relevant facts of Weaver concerning prejudice are analogous to the present case. In

Weaver, a Massachusetts trial court conducted two days ofjury voir dire in a murder trial

in a closed courtroom. The public and defendant's mother and her minister were

excluded from the courtroom by judicial officers because the potential venire pool filled

the 50-60 seat courtroom. Id. at 1906. Defense counsel did not object to the exclusion of

the public at trial, nor did counsel raise the courtroom closure issue on direct appeal.

Five years after defendant's conviction and receipt of a life sentence, defendant sought a

13
No. 91905-4

new trial, asserting ineffective assistance of counsel based on the failure to object to the

courtroom closure. The Supreme Court affirmed rejection of defendant's motion for a

new trial.

The core holding of Weaver is that if defense counsel objects to courtroom closure

at trial and raises the issue on direct appeal, prejudice is presumed and defendant gets a

new trial. However, where the courtroom closure issue is raised later, e.g., as in Weaver,

in a motion for a new trial based on allegation of ineffective assistance, finality concerns

prevail such that the burden is on defendant to show a reasonable probability of a

different trial outcome or to show that the particular public trial violation was so serious

as to render his trial fundamentally unfair. In other words, absent a timely preservation

of the public trial error and a timely raising of the issue on direct appeal, a defendant

alleging a public trial violation generally must show prejudice in order to get a new trial.

The Supreme Court summarized as follows:

In the criminal justice system, the constant, indeed unending, duty of
the judiciary is to seek and to find the proper balance between the necessity
for fair and just trials and the importance of finality ofjudgments. When a
structural error is preserved and raised on direct review, the balance is in
the defendant's favor, and a new trial generally will be granted as a matter
of right. When a structural error is raised in the context of an ineffective-
assistance claim, however, finality concerns are far more pronounced. For
this reason, and in light of the other circumstances present in this case,
petitioner must show prejudice in order to obtain a new trial. As explained
above, he has not made the required showing.

Mat 1913.

Notably, the Weaver court clarified "the concept of structural error" in this

context. Id. at 1907. The court noted three "categories" of structural error: (I) where the

14
No. 91905-4

error affected some interest of defendant other than avoidance of an erroneous conviction

(e.g., the right to self-representation),(2) where the error's effect is too hard to measure

(e.g., where a defendant is denied the right to select his own attorney), and (3) where the

error always results in fundamental unfairness (e.g., where an indigent defendant is

denied an attorney or a judge fails to give a reasonable doubt instruction). Id. at 1908.

The court observed the "critical" point to be that "[a]n error can count as structural even

if the error does not lead to fundamental unfairness in every case." Id. Thus, while "a

violation of the right to a public trial is a structural error" nevertheless,"not every

public-trial violation results infundamental unfairness." Id. at 1908-09(emphasis

added). The court continued:

[Wjhile the public-trial right is important for fundamental reasons, in some
cases an unlawful closure might take place and yet the trial still will be
fundamentally fair from the defendant's standpoint.

... Despite its name, the term "structural error" carries with it no
talismanic significance as a doctrinal matter. . . . Thus, in the case of a
structural error where there is an objection at trial and the issue is raised on

Of particular note conceming Salinas's assertion of stmctural error based on the trial court's
failure to expressly employ a Bone-Club analysis before closure, the Weaver court opined about
the importance of such written findings as follows:
A public-trial violation can occur, moreover, as it did in Presley [v.
Georgia, 558 U.S. 209, 130 S. Ct. 721, 175 L. Ed. 2d 675(2010)(per curiam)],
simply because the trial court omits to make the proper findings before closing the
courtroom, even if those findings might have been fully supported by the
evidence. See 558 U.S., at 215, 130 S.Ct. 721. It would be unconvincing to deem
a trialfundamentally unfairjust because ajudge omitted to announcefactual
findings before making an otherwise valid decision to order the courtroom
temporarily closed. As a result, it would be likewise unconvincing ifthe Court
had said that a public-trial violation always leads to afundamentally unfair trial.
Indeed,[this] Court has not said that a public-trial violation renders a trial
fundamentally unfair in every case.
137 S. Ct. at 1909-10(emphasis added).

15
No. 91905-4

direct appeal, the defendant generally is entitled to "automatic reversal"
regardless of the error's actual "effect on the outcome."

Id. at 1910 (quoting v. United States, 527 U.S. 1, 7, 119 S. Ct. 1827, 144 L. Ed. 2d

35 (1999)). The court asked the question: "[W]hat showing is necessary when the

defendant does not preserve a structural error on direct review but raises it later in the

context of an ineffective-assistance-of-counsel claim?" Id. The answer is that defendant

must show deficient performance and resulting prejudice. Id. The Weaver court further

opined:

As explained above, not every public-trial violation will in fact lead
to a fundamentally unfair trial. Nor can it be said that the failure to object
to a public-trial violation always deprives the defendant of a reasonable
probability of a different outcome. Thus, when a defendant raises a public-
trial violation via an ineffective-assistance-of-counsel claim, Strickland [v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984),]
prejudice is not shown automatically. Instead, the burden is on the
defendant to show either a reasonable probability of a different outcome in
his or her case or ... to show that the particular public-trial violation was
so serious as to render his or her trial fundamentally unfair.

Id. at 1911 (citation omitted).

The court explained the rationale for placing the burden on the defendant in this

circumstance as follows:

The reason for placing the burden on the petitioner in this case,
however, derives both from the nature ofthe error and the difference
between a public-trial violation preserved and then raised on direct review
and a public-trial violation raised as [a later] ineffective-assistance-of-
counsel claim. As explained above, when a defendant objects to a
courtroom closure, the trial court can either order the courtroom opened or
explain the reasons for keeping it closed. When a defendant first raises the
closure in an ineffective-assistance claim, however, the trial court is
deprived of the chance to cure the violation either by opening the
courtroom or by explaining the reasons for closure.

16
No. 91905-4

/i/. at 1912 (citation omitted).

Regarding the preference for finality in this circumstance, the court opined:

When an ineffective-assistance-of-counsel claim is raised in
postconviction proceedings, the costs and uncertainties of a new trial are
greater because more time will have elapsed in most cases. The finality
interest is more at risk, and direct review often has given at least one
opportunity for an appellate review oftrial proceedings. These differences
justify a different standard for evaluating a structural error depending on
whether it is raised on direct review or raised instead in a [later] claim
alleging ineffective assistance of counsel.

Id.(citation omitted).

Applying the above to the facts in Weaver, the Supreme Court found that

petitioner had not met his burden. Despite the fact that the defendant's mother and her

minister had been excluded from two days of voir dire, the court found the following

(among other facts) persuasive: petitioner's trial was not conducted in secret or in a

remote place, the closure was limited to the jury voir dire, the courtroom remained open

during the evidentiary phase ofthe trial, and there was a record made ofthe proceedings

that does not indicate any basis for concern other than the closure itself. Concluding that

the petitioner had not met his burden to show prejudice and, thus, was not entitled to a

new trial, the Supreme Court concluded:

It is true that this case comes here on the assumption that the closure
was a Sixth Amendment violation. And it must be recognized that open
trials ensure respect for the justice system and allow the press and the
public to judge the proceedings that occur in our Nation's courts. Even so,
the violation here did not pervade the whole trial or lead to basic unfairness.

17
No. 91905-4

/