State v. Koss

¶21 (concurring in result) — I agree with the majority’s resolution of this case. However, I write separately because I believe the logic and experience test is harmful and incorrect. See State v. Smith, 181 Wn.2d 508, 528-33, 334 P.3d 1049 (2014). Thus, I disagree with the majority’s application of the test to find that the public trial right does not attach to in-chambers discussion of jury instructions prior to deliberations. Majority at 500-01.

Wiggins, J.

¶22 Under article I, section 10, every part of the administration of justice is presumptively open. Wash. Const, art. I, § 10. Open administration of justice is paramount; “ ‘[a] public trial is a core safeguard in our system of justice.’ ” State v. Slert, 181 Wn.2d 598, 603, 334 P.3d 1088 (2014) (quoting State v. Wise, 176 Wn.2d 1, 5, 288 P.3d 1113 (2012)). The reason we protect open and public trials is to “ensure that judges and lawyers are accountable for what occurs during trial. It helps remind them to act with decorum and to consider the consequences of their actions.” Smith, 181 Wn.2d at 544 (dissent). “Public trials also help foster trust in our judicial system, and they allow members of the public to see justice done in their communities.” Id.

¶23 Unfortunately, applying the logic and experience test has resulted in arbitrary line-drawing that has not necessarily farthered the goals of public trials. For instance, in this case, we hold that the public trial right does not attach to in-chambers conferences to discuss jury questions. *506See State v. Sublett, 176 Wn.2d 58, 292 P.3d 715 (2012) (plurality opinion).8 But is this or should this always be the case? A recent law review article understandably asks the following:

Does the [logic and experience test] permit chambers consideration of all questions from a deliberating jury, such as questions about evidence, or is it limited to questions about the court’s instructions? What analytical path is to be used for a different sort of question? What if the court and counsel all have new trials underway and cannot be physically present where the jury is deliberating — can they resolve the issue on the telephone, which has been a frequent practice? By email? What about consideration of questions from the jury during trial? If jurors are permitted to submit proposed questions for witnesses, may counsel and the court confer in chambers to decide which questions should be asked?

Anne L. Ellington & Jeanine Blackett Lutzenhiser, In Washington State Open Courts Jurisprudence Consists Mainly of Open Questions, 88 Wash. L. Rev. 491, 518 (2013).

¶24 The Sublett plurality adopted the “logic and experience test” because it allows the trial court “to consider the actual proceeding at issue for what it is, without having to force every situation into predefined factors.” Sublett, 176 Wn.2d at 73-74 (citing Press-Enter. Co. v. Superior Court, 478 U.S. 1, 13-14, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986)). Ironically, however, the majority has used the test to categorically permit closures in certain types of proceedings without considering the effect that such closures have on the open administration of justice in that particular case.

¶25 Accordingly, I would reject the logic and experience test and instead presume all stages of trial are open, which *507brings us into adherence with the language of article I, section 10 and would advance the benefits of openness and publicity. While there may be areas of constitutional law so complex that confusion is inevitable, the public trial right need not be one of them. We should simply announce that the right attaches to all proceedings; we presume all courts are open unless the trial court conducts the five-step analysis required by State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).

¶26 I agree with the majority’s resolution affirming Koss’s conviction but would hold so because Koss failed to object to a closure. In other words, he has failed to establish a record of closure and he has not shown “manifest error affecting a constitutional right.” RAP 2.5(a)(3).

¶27 I concur in result.

Notably, Sublett specifically involved a question from a deliberating jury about already issued instructions. 176 Wn.2d 58. Nonetheless, courts have applied Sublett’s holding to a broader range of situations such as in-chambers discussion of proposed jury instructions (State v. Miller, 179 Wn. App. 91, 100-01, 316 P.3d 1143 (2014)); a jury’s questions about the formulation of jury instructions and a request for clarification on how to proceed when the jury felt it was deadlocked (State v. Burdette, 178 Wn. App. 183, 196-97, 313 P.3d 1235 (2013)); and a jury’s request for a tape measure and masking tape (State v. McCarthy, 178 Wn. App. 90, 97-98, 312 P.3d 1027 (2013)).