State v. Slert

¶20 (concurring in result) — As explained in my concurrence in State v. Smith, 181 Wn.2d 508, 334 P.3d 1049 (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 *610questionnaire 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 602.

Wiggins, J.

*610¶21 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 600. 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.” Id. at 606. And in the federal system, jury questionnaires are not traditionally subject to public review and discussion. Id. at 606. Under the logic prong, the lead opinion finds that public access would have a miniscule role, positive or negative, on the review of questionnaires to screen out those with prior prejudicial knowledge of the case. Id. at 607.

f 22 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 612-13. 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. Id. at 617.

f 23 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.” Id. at 613 (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 795, 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 distinc*611tion 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 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) (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), review granted, 176 Wn.2d 1031, 299 P.3d 20 (2013).

¶24 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.

¶25 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. *612See 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. Id. 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 law.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 595, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) (Brennan, J., concurring).

¶26 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 portion6 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.”

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

By “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.