State v. Russell, 85996–5.

• Decision Date: 20 August 2015
• Docket Number: No. 85996–5.,85996–5.
• Citation: 357 P.3d 38,183 Wash.2d 720
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Frederick David RUSSELL, Petitioner.

183 Wash.2d 720

357 P.3d 38

STATE of Washington, Respondent

v.Frederick David RUSSELL, Petitioner.

No. 85996–5.

Supreme Court of Washington, En Banc.

Argued June 25, 2015.

Decided Aug. 20, 2015.

Dennis W. Morgan, Attorney at Law, Republic, WA, for Petitioner.

Lana Sue Weinmann, Ofc. of the Atty. General, Melanie Tratnik, Attorney Generals Office/CJ Division, Seattle, WA, Noah Guzzo Purcell Washington Attorney General's Office, Solicitor General Division Attorney General, Attorney at Law, Olympia, WA, for Respondent.

Margaret Ji Yong Pak, Enslow Martin, PLLC, Nancy Lynn Talner, Attorney at Law, Seattle, WA, amicus counsel for Aclu.

Seth Aaron Fine, Attorney at Law, Snohomish Co. Pros. Ofc., Everett, WA, amicus counsel for Washington Association of Prosecuting Attorneys.

Hugh Davidson Spitzer, Lee Richard Marchisio, Foster Pepper, PLLC, Seattle, WA, amicus counsel for Office of Crime Victims Advocacy.

Hugh Davidson Spitzer, Lee Richard Marchisio, Foster Pepper, PLLC, Seattle, WA, amicus counsel for Washington COAlition of Sexual Assault Programs.

Opinion

YU, J.

¶ 1 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–Club¹ analysis on the record before holding the work sessions.

¶ 2 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

¶ 3 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 sideswiped 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.

¶ 4 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 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.

¶ 5 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.

¶ 6 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 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 courtroom) 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.

¶ 7 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. Id. 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.

¶ 8 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 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. Id. 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.

¶ 9 After thanking all the jurors for coming in and stressing the value of their service, id. at 1307–09, 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.” Id. 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.” Id. at 1310.

¶ 10 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. Id. The judge first addressed the concerns of jurors with physical impairments. Id. 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.

¶ 11 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. Id. 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.

¶ 12 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

Id. at 1372–83. Russell's attorney generally took a broad approach, supporting excusal of jurors who might “have distractions.” Id. at 1377. The judge, the attorneys, and Russell then returned to the courtroom, and the judge excused two more jurors for hardship. Id. at 1381, 1383.

¶ 13 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.

¶ 14 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,...