State v. Halverson, No. 42761 -3 –II (Sept. 24, 2013).

One way the court can avoid granting a new trial for an alleged open court/public trial violation is to hold the right has not yet attached.  The right to a public trial does not attach unless the defendant’s argument passes the experience and logic test by showing:

  • “The place and process have historically been open to the press and general public” and
  • “Public access plays a significant positive role in the functioning of the particular process in question.”  State v. Sublett, 176 Wn.2d 58, 70, 73 292 P.3d 715 (2012).

Halverson argued the trial court violated his and the public’s right to public trial when it questioned a juror about alleged misconduct in chambers and off the record.  The prosecutor and defense counsel were present, but the court did not conduct a Bone-Club analysis on the record.  The next morning it discussed the matter in detail on the record.  Halverson tried to analogize that in-camera questioning to questioning a juror about potential bias during pretrial voir dire, but the court rejected the analogy because historically they have been treated differently.

Both Washington and Federal courts show historical acceptance and practice of midtrial in-camera questioning.  United States v. Edwards, 823 F.2d 111, 117 (5th Cir. 1987), cent. denied, 485 U.S. 934 (1988); State v. Wilson, 141 Wn. App. 597, 171 P.3d 501 (2007).  Specifically, the fifth circuit suggested that midtrial proceedings have been closed to the public because questioning a juror about misconduct in open court would actually erode public confidence in the jury and create bias – exactly what the open court doctrine is meant to prevent. See Edwards, 823 F.2d at 117.

Because Halverson’s argument failed the experience prong of the test, his right to public trial had not yet attached and no Bone-Club analysis was necessary.

If you are going to make a violation of the right to public trial argument, you must first get over the “experience and logic hurdle” before you can get to the heart of your argument.

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