Argued October 15, 2013
Appeal from Whatcom County Superior Court. No. 09-1-01189-6. Honorable Charles Russell Snyder.
David S. McEachran, Prosecuting Attorney for Whatcom County, and Hilary A. Thomas, Deputy ; and Daniel T. Satterberg, Prosecuting Attorney for King County, and James M. Whisman, Deputy, for petitioner.
Marla L. Zink and Lila J. Silverstein (of Washington Appellate Project ), for respondent Grisby.
Andrew P. Zinner and David B. Koch (of Neilsen, Broman & Koch PLLC ), for respondent Shearer.
Sarah A. Dunne, Nancy L. Talner, and Douglas B. Klunder on behalf of American Civil Liberties Union of Washington, amicus curiae.
Colin Fieman and Katherine George on behalf of Allied Daily Newspapers of Washington, Washington Coalition for Open Government, and Washington Newspapers Publishers Association, amici curiae.
AUTHOR: Justice Susan Owens. WE CONCUR: Justice Charles W. Johnson, Justice Mary E. Fairhurst, Justice Debra L. Stephens. AUTHOR: Justice Sheryl Gordon McCloud. AUTHOR: Justice Charles K. Wiggins. AUTHOR: Justice Steven C. Gonzá lez. WE CONCUR: Chief Justice Barbara A. Madsen, James M. Johnson, Justice Pro Tem.
[181 Wn.2d 566] Owens,
¶ 1 Defendants have the constitutional right to a public trial. Wash. Const. art. I, § 22. This foundational safeguard helps to ensure a fair trial, deters misconduct and partiality, and provides accountability for our judicial system. In 2012, this court reviewed a number of cases involving a defendant's constitutional right to a public trial. State v. Wise, 176 Wn.2d 1, 288 P.3d 1113 (2012); State v. Paumier, 176 Wn.2d 29, 288 P.3d 1126 (2012); State v. Sublett, 176 Wn.2d 58, 292 P.3d 715 (2012). In particular, we considered cases in which jurors were individually questioned in chambers rather than in public. See Wise, 176 Wn.2d at 7-8; Paumier, 176 Wn.2d at 32-33. We concluded that a defendant's right to a public trial applies to the jury selection process but that jurors can be questioned in private if the trial court finds that specific circumstances warrant closing the questioning to the public. Wise, 176 Wn.2d at 11-13; Paumier, 176 Wn.2d at 34-35. The trial court determines whether closing the courtroom is appropriate by analyzing the criteria outlined in State v. Bone-Club, 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995). If the trial court fails to engage in that analysis, closing the questioning to the public violates the defendant's right to a public trial. Wise, 176 Wn.2d at 12-13; Paumier, 176 Wn.2d at 35.
¶ 2 Our holdings in those 2012 cases control the outcome of the two cases we consider today. In the unrelated trials of Henry Grisby III and Gregory Shearer, the trial judges questioned a juror in private without making a finding that specific circumstances warranted closing the questioning to the public. This was a violation of both Grisby's and Shearer's right to a public trial.
¶ 3 The State asks us to overrule two key holdings from our 2012 cases on public trial rights. First, the State asks [181 Wn.2d 567] that we overrule our holding that a defendant's failure to object to a closure at trial does not constitute a waiver of his or her public trial rights. Second, the State asks that we overrule our holding that public trial rights violations are structural error and thus prejudice is presumed when a public trial rights violation is shown. We will overrule our precedent only when it has been shown to be incorrect and harmful. The State has not made such a showing. Therefore, we apply the holdings from our 2012 cases here and find that the public trial rights of both Shearer and Grisby were violated when a portion of juror questioning was closed to the public without a finding that specific circumstances warranted the closure.
State v. Shearer
¶ 4 Based on a violent domestic dispute with his girl friend, Shearer was charged
with felony harassment and fourth degree assault. During voir dire, juror 7 indicated that she was a victim of and a witness to domestic violence but said she did not want to talk about it. The judge asked if she would be more comfortable discussing it in chambers, and she said yes. The trial judge asked if anyone present objected but did not conduct a Bone-Club analysis. No one objected, and the parties went into chambers for a seven-minute conference that was on the record. During the conference, juror 7 disclosed that her grandson had been killed by his father in the family home and that she felt her experience would affect her view of the case. Defense counsel moved to dismiss juror 7 for cause. The State did not object, and the juror was excused.
¶ 5 The jury ultimately found Shearer guilty on both charges. He appealed, raising a number of claims, including that his public trial rights were violated when the court questioned one of the jurors in chambers. The Court of Appeals agreed that his public trial rights were violated [181 Wn.2d 568] and reversed his conviction without reaching the other issues. State v. Shearer, noted at 162 Wn.App. 1007, 2011 WL 2120054, at *3. The State petitioned this court for review of the public trial rights issue, which this court granted. State v. Shearer, 176 Wn.2d 1031, 299 P.3d 19 (2013). The case was consolidated with State v. Grisby, No. 87259-7.
State v. Grisby
¶ 6 Grisby was charged with delivery of a controlled substance. During voir dire for his trial, a question arose as to whether juror 18 had a prior criminal conviction that would disqualify him from jury service. The trial judge asked the attorneys and Grisby to come into chambers for a conference with juror 18. The judge did not ask whether anyone objected and did not conduct a Bone-Club analysis prior to the in-chambers conference. The conference lasted about five minutes, and there is no record of what occurred during the meeting. Subsequently, the defense used a peremptory challenge on juror 18.  The trial proceeded, and Grisby was ultimately convicted.
¶ 7 Grisby appealed his conviction, contending that his article I, section 22 right to a public trial was violated when the trial court conducted a portion of voir dire in chambers without first engaging in a Bone-Club analysis. He also claimed that the closure violated article I, section 10, which requires that " [j]ustice in all cases shall be administered openly." Wash. Const. art. I, § 10. The Court of Appeals reversed the conviction on the basis of his article I, section 22 claim but did not reach his article I, section 10 claim. State v. Grisby, noted at 167 Wn.App. 1005, 2012 WL 763116, at *1-3. The State petitioned this court for review, which this court granted. State v. Grisby, 176 Wn.2d 1031, 299 P.3d 19 (2013).
[181 Wn.2d 569] ISSUES
¶ 8 1. Can Shearer and Grisby raise the public trial rights issue on appeal even though they did not object at trial?
¶ 9 2. Were these courtroom closures de ...