The Washington State Supreme Court recently handed down four cases reiterating that criminal trials must be open to the public and that closing them at any time during trial-related proceedings requires specific procedures. Counsel and trial court judges should make sure to follow the proper procedures before closing any part of a trial or other proceeding, because the remedy will nearly always be an entirely new trial.
Washington’s Constitution grants criminal defendants the right to “a speedy public trial” and requires that “[j]ustice in all cases shall be administered openly.” Justice Owens, writing for the Court in State v. Wise, (No. 82802-4), explained why open trials are so important:
A public trial is a core safeguard in our system of justice. Be it through members of the media, victims, the family or friends of a party, or passersby, the public can keep watch over the administration of justice when the courtroom is open. The open and public judicial process helps assure fair trials. It deters perjury and other misconduct by participants in a trial. It tempers biases and undue partiality. The public nature of trials is a check on the judicial system, which the public entrusts to adjudicate and render decisions of the highest import. It provides for accountability and transparency, assuring that whatever transpires in court will not be secret or unscrutinized. And openness allows the public to see, firsthand, justice done in its communities.
Closing the Courtroom: Bone-Club Requirement
Occasionally, however, circumstances compel privacy. The Supreme Court, in State v. Bone-Club, 128 Wn.2d 254 (1995), held that judges may close courtrooms to the public. Before they do so, however, they must explain on the record the importance of open proceedings, name the compelling interest requiring closure, weigh the competing interests, allow anyone present to object, and consider alternatives to closure.
Open Courtroom: Beyond Testimony
In Wise and the other cases before the Court — State v. Paumier, (No. 84585-9), In re Personal Restraint of Morris, (84929-3), and State v. Sublett, (No. 84856-4) — the courtroom was never closed to the public during any of the testimony during trial. But what was “closed” in Wise, Paumier, and Morris, occurred during voir dire, when jurors were permitted to answer questions of a personal nature in the privacy of the judge’s chambers (with the prosecutor and defense attorney present). And in Sublett, during jury deliberations, the judge responded in chambers — with only counsel present — to a written question from the jury. None of the trial court judges engaged, on the record, in the considerations required before “closing” their courtrooms to the public. The Supreme Court held that public trial rights were violated in each case.
The Court also decided that these violations involve structural errors, rather than simply procedural ones. Procedural errors usually don’t require a new trial unless they were harmful and the defendant objected. But structural errors prevent a trial from reliably serving its function. Thus, even if the defendant remained silent, they require a new trial without the need to decide whether they were harmful. Indeed, the Court went even further. While the defendants in Wise, Sublett, and Paumier were challenging their convictions on direct appeal, the defendant in Morris was raising his open trial rights after he failed to do so during his direct appeal. The Court held that his appellate counsel was ineffective for failing to raise the issue, meaning that the defendant could raise it for the first time — and receive a new trial — even after he exhausted his appeals.
Several justices disagreed with various aspects of each of the opinions, prompting a flurry of concurring and dissenting opinions. Most notable is Chief Justice Madsen’s dissent in Sublett. Calling the decisions “remarkable for [their] severe and categorical approach[,]” she lamented the Court’s refusal to decide whether any error was harmless and its insistence on a completely new trial in nearly every instance. If the only problem is a failure to engage in a process before closing a courtroom, she argued, the remedy should be to engage in the process on remand, not to grant an entirely new trial.
“Sunlight is the best disinfectant,” Justice Louis Brandeis once wrote. The Washington State Supreme Court fully agrees. Counsel and courts should follow the required steps before shutting the blinds.