dissenting.
Because I believe that that part of the majority opinion which denies defendant’s challenge to the constitutionality of ORS 163.475(4) is wrong, I dissent. It does not do to cite cases and other authorities (53 Or App at 911) which pre-date Gannett Co. v. De Pasquale, 443 US 368, 99 S Ct 2898, 61 L Ed 2d 608 (1979), and Richmond Newspapers, Inc. v. Virginia, 448 US 555, 100 S Ct 2814, 65 L Ed 2d 973 (1980), especially when it is the defendant who is asserting his right to a public trial. It also does not do to use Gannett against the defendant’s right — or to ignore the thrust of Richmond Newspapers entirely. Even more critical is that the majority refuses to read State ex rel Oregonian Pub. Co. v. Deiz, 289 Or 277, 613 P2d 23 (1980), for what it does say and, instead, chooses to expand dicta about jury deliberations and conferences of collegial courts to sustain a holding that is totally in conflict with Deiz. (53 Or App at 914.)
*922What is particularly painful about the majority opinion is this sentence (53 Or App at 919-20): "The constitutional right to a public trial does not include the right to smear the victim with irrelevancies.” Of course not! But that is not even close to the issue. The issue is whether a privilege granted by a badly flawed1 statute is superior to an extremely valuable constitutional right. The majority says yes, and I dissent.
See State v. Jalo, 27 Or App 845, 557 P2d 1359, rev den (1977); State v. Lantz, 44 Or App 695, 607 P2d 197, rev den, 289 Or 275 (1980).