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State of Washington v. Eric D. Wise

November 21, 2012


The opinion of the court was delivered by: Owens, J.

En Banc

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. The right to a public trial is so important, in fact, that its violation is an error deemed structural: the error affects the framework within which the trial proceeds. We cannot lightly abandon the values of a public trial.

However, it is not an inflexible right. There exists a simple yet significant balancing test for trial courts to apply to consider whether specific circumstances warrant closing part of a trial to the public, set out in State v. Bone-Club, 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995). That process was not followed in this case, and we therefore find a violation of the public trial right. Because the violation constitutes structural error and absence of an objection is not a waiver of the public trial right, prejudice is presumed, and a new trial is warranted. We reverse the Court of Appeals.


Eric D. Wise was charged with second degree burglary and first degree theft for breaking into a minimart in Shelton, Washington, and stealing cash and retail items. A jury found Wise guilty of both counts. He received concurrent sentences of 57 months for burglary and 22 months for theft.

The only facts relevant to Wise's appeal are those related to the voir dire process used to select the jury for his trial. On June 26, 2007, voir dire began in the open courtroom. The trial court judge was the first to question the prospective jurors and, at one point, instructed them:

[I]f there is anything that we're talking about or asking you that is sensitive and you don't want to speak about it in this group setting. Just let us know. I make a list on my notebook and we take those jurors back into chambers so that we can ask those questions more privately.

Suppl. Report of Proceedings at 11-12. The trial judge asked several individual jurors if they felt comfortable answering the court's questions in the courtroom or if they would prefer to go to chambers to answer. See, e.g., id. at 12 ("Are you comfortable telling me what [your time conflict] is here or would you like to go to chambers?"); id. at 13-20. The prosecuting attorney also emphasized the option for prospective jurors to request private questioning in chambers, stating:

And, as kind of a caveat to the whole process, as you've already seen, we've taken some people in the back and talked to them privately. If there's anything that any of us ask that hits a hot button for any of you that we may not necessarily know about, by all means just say, would you mind if we talk about that in chambers?

Id. at 39-40.

In total, 10 jurors were privately questioned in the judge's chambers during voir dire. The record reflects that the trial judge, the State, and defense counsel were present in chambers for the questioning. Two of the 10 jurors requested private questioning. The other 8 were called into chambers by the trial court through a process that, while not entirely clear from the record, seems related to particular answers of those prospective jurors to questions by the court. The subjects discussed during the private questioning included personal health matters, relationships with witnesses or other law enforcement officers, and criminal history. Of the 10 jurors who were privately questioned in chambers, 6 were excused for cause. The questioning in chambers was recorded and transcribed just like the portion of voir dire done in the open courtroom.

Before moving voir dire into chambers, the trial court did not make reference to the defendant's right to a public trial, consider alternatives to closure, or address the other Bone-Club factors*fn1 on the record. The record does not reflect whether any members of the public were present in the courtroom besides the venire panel. Neither the State nor the defense objected to conducting a portion of voir dire questioning in the judge's chambers.

Wise appealed his conviction, challenging only whether his right to a public trial was violated when the trial court conducted part of voir dire in chambers, rather than in the open courtroom, without engaging in a Bone-Club analysis. A divided Court of Appeals affirmed his conviction. State v. Wise, 148 Wn. App. 425, 200 P.3d 266 (2009). Wise sought review by this court, which we granted. State v. Wise, 170 Wn.2d 1009, 236 P.3d 207 (2010).


Did the trial court violate Wise's right to a public trial by conducting voir dire in chambers without analyzing the need for a closure or considering alternatives on the record?


Standard of Review

"Whether a criminal accused's constitutional public trial right has been violated is a question of law, subject to de novo review on direct appeal." State v. Easterling, 157 Wn.2d 167, 173-74, 137 P.3d 825 (2006). Such a claim may be raised for the first time on appeal. See State v. Brightman, 155 Wn.2d 506, 514-15, 122 P.3d 150 (2005). Constitutional Right to a Public Trial

Our state and federal constitutions both provide that a defendant has a right to a public trial. Wash. Const. art. I, § 22 ("[T]he accused shall have the right . . . to have a speedy public trial."); U.S. Const. amend. VI. The right of a public trial is also vested more broadly with the public. Wash. Const. art. I, § 10 ("Justice in all cases shall be administered openly."); U.S. Const. amend. I. This court has not considered whether the public trial rights under the state and federal constitutions are coequal. See Bone-Club, 128 Wn.2d at 260 ("The Washington Constitution provides at minimum the same protection of a defendant's fair trial rights as the Sixth Amendment." (emphasis added)). This case does not require us to reach that question.*fn2

The right to public trial is not absolute. Id. at 259. Courts have recognized that, while openness is a hallmark of our judicial process, there are other rights and considerations that must sometimes be served by limiting public access to a trial. Waller v. Georgia, 467 U.S. 39, 45, 48, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984) (noting "the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information" and "privacy of persons not before the court"); see, e.g., State v. Momah, 167 Wn.2d 140, 152, 217 P.3d 321 (2009) (noting the right to an impartial jury), cert. denied, 131 S. Ct. 160 (2010); Federated Publ'ns, Inc. v. Kurtz, 94 Wn.2d 51, 55-56, 615 P.2d 440 (1980) (noting that pretrial publicity of a suppression hearing may prejudice a defendant's right to a fair trial).*fn3 To balance the public trial right and other competing rights and interests, this court and the United States Supreme Court have developed a specific analytic framework. Waller, 467 U.S. at 48; Bone-Club, 128 Wn.2d at 258-59. In Bone-Club, this court enumerated five criteria that a trial court must consider on the record in order to close trial proceedings to the public. 128 Wn.2d at 258-59. Bone-Club requires that trial courts at least: name the right that a defendant and the public will lose by moving proceedings into a private room; name the compelling interest that motivates closure; weigh these competing rights and interests on the record; provide the opportunity for objection; and consider alternatives to closure, opting for the least restrictive. Id.; cf. Waller, 467 U.S. at 48 ("[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.").

In Presley v. Georgia, 558 U.S. 209, 130 S. Ct. 721, 725, 175 L. Ed. 2d 675 (2010), the United States Supreme Court made clear that a trial court must consider alternatives to closure. The Court held that "even assuming, arguendo, that the trial court had an overriding interest in closing voir dire, it was still incumbent upon it to consider all reasonable alternatives to closure." Id. The consideration of alternatives is a necessary part of the Bone-Club factors that requires that trial courts choose the least restrictive means of closure. 128 Wn.2d at 259-60.

Though a trial court may close part of a trial upon a rigorous analysis, "protection of this basic constitutional right [to a public trial] clearly calls for a trial court to resist a closure motion except under the most unusual circumstances." Id. at 259; accord Waller, 467 U.S. at 45. We typically would never reach the complicated questions presented in Wise's case where a trial court conducts a Bone-Club analysis on the record and concludes that a closure is warranted. This is because, absent an abuse of discretion, we would be assured that the foundational principle of an open justice system is preserved.

Private Questioning of Prospective Jurors in Chambers During Voir Dire is a Closure that Requires Consideration of the Bone-Club Criteria

The public trial right applies to jury selection. Presley, 130 S. Ct. at 724; Brightman, 155 Wn.2d at 515. "'[T]he process of juror selection' . . . 'is itself a matter of importance, not simply to the adversaries but to the criminal justice system.'" In re Pers. Restraint of Orange, 152 Wn.2d 795, 804, 100 P.3d 291 (2004) (first alteration in original) (quoting Press-Enter. Co. v. Superior Court, 464 U.S. 501, 505, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984)). This court recently held that the public trial right in voir dire proceedings extends to the questioning of individual prospective jurors. Momah, 167 Wn.2d at 151-52; State v. Strode, 167 Wn.2d 222, 227, 232, 217 P.3d 310 (2009). "The trial judge's decision to allow this questioning of prospective jurors in chambers was a courtroom closure and a denial of the right to a public trial." Strode, 167 Wn.2d at 227 (Alexander, C.J., plurality opinion); see id. at 232 n.6 (Fairhurst, J., concurring) ("[A] de facto closure occurred [in Momah] . . . when jurors were individually questioned outside the courtroom in a room not ordinarily accessed by the public with the door closed."); Momah, 167 Wn.2d at 146, 151 (finding that by conducting individual questioning of prospective jurors "the trial judge closed the courtroom").

Just as in Momah and Strode, there was a closure of the trial in Wise's case when the trial court questioned prospective jurors in chambers.*fn4 The questioning occurred in a room that is ordinarily not accessible to the public. Strode, 167 Wn.2d at 232 n.6 (Fairhurst, J., concurring).

A trial court is required to consider the Bone-Club factors before closing a trial proceeding that should be public. Easterling, 157 Wn.2d at 174-75; Bone-Club, 128 Wn.2d at 261; see Presley, 130 S. Ct. at 724 ("[T]rial courts are required to consider alternatives to closure even when they are not offered by the parties."). The trial court in Wise's case did not consider any of the Bone-Club factors on the record prior to removing the questioning of prospective jurors to chambers.*fn5 There was no opportunity for objection by the State, defense, or public; there was no articulation of a compelling interest for closure; there was no balancing of whatever that interest might have been against the public trial right; and there was no consideration of alternatives to closure. Cf. Presley, 130 S. Ct. at 725 ("[I]t was . . . incumbent upon [the trial court] to consider all reasonable alternatives to closure. It did not, and that is all this Court needs to decide."). We do not comb through the record or ...

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