State v. Sublett, No. 84856-4

CourtUnited States State Supreme Court of Washington
Writing for the CourtBarbara A. Madsen
Docket NumberNo. 84856-4
PartiesState v. Sublett (Michael Lynn) State v. Olsen (Christopher Lee)
Decision Date21 November 2012

Sublett (Michael Lynn)
Olsen (Christopher Lee)

No. 84856-4

Supreme Court of Washington, en Banc

Date: November 21, 2012

MADSEN, C.J. (concurring)—I agree with the court's decision and concur in the result reached by the court.

The present case is one of several cases that have come before the court involving the right to a public trial, State v. Sublett, No. 84856-4 (Wash. Nov. 21, 2012) (plurality opinion); State v. Paumier, No. 84585-9 (Wash. Nov. 21, 2012); State v. Wise, No. 82802-4 (Wash. Nov. 21, 2012); and In re Personal Restraint of Morris, No. 84929-3 (Wash. Nov. 21, 2012) (plurality opinion). I have written opinions in each of the latter three cases, but take the opportunity here to write a single opinion touching on the multiple aspects of the public trial right and appellate review as they are presented by all four cases. My intent is to present as complete a picture of the court's decisions in this area as these cases suggest. In this way, I explain why I believe the court's approach to reviewing public trial issues is exceptionally and unnecessarily strict, better than I could do by only writing separate opinions addressing the individual issues in each case.

It is without doubt a critical function of the court to carry out the constitutional

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requirement that criminal justice be rendered in public, to ensure that judges, prosecutors, and witnesses are ever mindful to carry out their respective responsibilities so that a fair and impartial proceeding results, and to encourage witnesses to come forward and testify truthfully. But recently this court has ordered a new trial in virtually every case where a closure occurred without an on-the-record inquiry into whether closure was justified, regardless of whether the claimed error was preserved and regardless of whether the particular error could possibly have had any effect on the defendant's receipt of a fair trial. When doing so, the court has dispensed with its own Rules of Appellate Procedure.

We often address deeply valued and closely held constitutional rights that must be protected to assure that a criminal defendant has a fair and just trial. However, there are procedural requirements that generally must be satisfied for appellate review of claimed constitutional errors, even with respect to the most fundamental rights we are privileged to enjoy, such as the right to remain silent, the right to confront witnesses, the right to compel attendance of witnesses, and the right to present a defense. For example, we generally insist that an objection is required to preserve claimed error, and if there is no objection then we apply a more stringent standard for review of a claimed violation of a constitutional right. The defendant must show that the asserted constitutional violation is manifest and had a negative impact on the outcome of the proceedings. But a majority of the court has decided that no such showing is ever required for a violation of the public trial right, notwithstanding the failure to object.

Additionally, when a violation of even an important constitutional right is claimed,

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we will consider the record to determine whether the violation actually occurred. But in the context of the right to a public trial, if the trial court did not engage in an on-the-record inquiry into whether closure was justified, this court now assumes that the closure was not justified and declines to permit any further inquiry, even if the record would conclusively show that the closure was justified. Indeed, in one of the cases presently before the court, the majority significantly undermines the precedential force of a prior case where we did examine a record that showed effective but not express compliance with the required on-the-record inquiry.1 Instead, in Wise, Paumier, and Morris, the majorities2 reiterate the rule that the record will not be examined to determine if it shows that the closure was in fact justified.

In addition, the court declines to permit remands for entry of facts on the issue whether closure was justified or remand for a hearing on the issue. Thus, it is entirely possible that even a minimal closure, which an after-the-fact inquiry might show was fully justified, will require a new trial because no on-the-record inquiry was made at the time of the closure.

The court has effectively created a new constitutional right virtually independent of the public trial itself—the right to an on-the-record inquiry.

When compared to the decisions of the United States Supreme Court and many other federal and state courts, our state's law is remarkable for its severe and categorical

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approach. For example, in cases when no suitable inquiry occurred at the time of the closure, other courts often examine the record, remand for fact-finding, or remand for a hearing on the issue whether the closure was justified.

I begin by examining the concerns involved in determining whether the public trial right is implicated at all, the issue in Sublett. I then turn to the question whether, if the public trial right is implicated, there is in fact a closure of the courtroom; and if there is a closure, whether it implicates the public trial right. If a closure occurs that does implicate the public trial right, the next issue is whether the closure was justified because a justified closure does not violate the defendant's right to a public trial. This issue raises the question whether only a contemporaneous on-the-record inquiry into justification will be considered on appellate review, foreclosing review of the claimed error where an inquiry was not performed prior to closing the courtroom.

I next address the matter of reviewing claimed violations of the public trial right, including the issue whether an objection is required and what approach is appropriate if no objection to closure was made; whether a violation must invariably be considered structural error so that no showing of prejudice is required; and whether a violation must lead to reversal and a new trial or other proceeding. These issues arise in Wise, Paumier, and Morris.

I will explain how I believe the four cases before the court should be resolved. My intent is to show that in many respects this court has taken an unwarranted, hard-line approach to the matter of public trial violations, with the result that we reverse and

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require new trials where there is no constitutional need to do so.

We can honor the constitutional right, give it full force and effect, ensure that it serves its purposes, and protect the defendant's rights without taking the restrictive position of that the majorities' decisions in Wise, Paumier, and Morris represent.

Whether a Closure Occurred

The first issue that often arises is whether the case in fact involves a closure implicating the constitutional right to a public trial. There are cases that involve a particular trial aspect or procedure and the question is whether this particular part of a trial is ever within the protection of the public trial right. Sublett is this type of case, and a majority of the court employs the "experience and logic" test for the purpose of determining whether the public trial right is implicated at all with respect to the particular procedure.

Experience and Logic Test

In Sublett, the court provides guidance for determining whether the right to a public trial attaches to a particular aspect of a criminal trial. The analysis will prove useful, especially given that in recent years we have seen a significant number of appellate cases in this state involving the public trial right.

The "experience and logic" test that the court uses in Sublett is found in First Amendment cases involving the right of the public and the press to access court proceedings. To this point, I have not discovered any case where this test has been used to decide whether the Sixth Amendment right to a public trial applies, although there are

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a number of cases where the experience and logic test has been applied to determine that a particular criminal proceeding should be open to the public and the press under the First Amendment. E.g., United States v. Alcantara, 396 F.3d 189, 198 (2d Cir. 2005) (plea colloquy and sentencing proceedings; interestingly, the court found the First Amendment right existed in response to the defendants' arguments, unlike the typical case where a member of the media argues applicability of the First Amendment right); United States v. Wecht, 537 F.3d 222, 235-39 (3d Cir. 2008) (presumptive right of access under the First Amendment includes jurors' names); Applications of Nat'l Broad. Co., 828 F.2d 340 (6th Cir. 1987) (First Amendment right of access to preliminary proceedings concerning whether a judge must be disqualified for bias and to inquire into an attorney's possible conflict of interest); Oregonian Publ'g Co. v. U.S. Dist. Court, 920 F.2d 1462, 1465-66 (9th Cir. 1990) (First Amendment right of access to plea agreements). After applying the experience and logic test, courts have also concluded that the First Amendment right of access does not apply to a particular type of criminal proceedings. E.g., Times Mirror Co. v. United States, 873 F.2d 1210, 1213-18 (9th Cir. 1989) (no First Amendment right of access to issuance of pre-indictment search warrants).

There is a recognized close relationship between the First Amendment right of the public and press to...

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