FILE IN CLERK'S OFFICE SUPREME COURT, STATE OF WASHINGTON
DATE SEP 2 5 2014
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 87844-7 ) Petitioner, ) ) v. ) EnBanc ) KENNETH LANE SLERT, ) ) Filed SEP 2 5 2014 Respondent. )
GONZALEZ, J.-Kenneth Slert has been tried and convicted three times
for the murder of John Benson. His first two convictions were reversed. In his
third trial, prospective jurors were given a questionnaire designed to determine
if any of them had heard about the two prior trials. We are asked today to
decide whether a pre-voir-dire in-chambers discussion of their answers and the
dismissal of four prospective jurors for outside knowledge of the case violated
the open public trials provisions of the Washington State Constitution. On this
record, we find no error. State v. Slert, No. 87844-7
FACTS
On Sunday, October 22, 2000, Slert set up a hunting camp in Lewis
County near Mount Rainier. Benson and his son had already.set up a hunting
campsite. nearby. After his son went home, Benson drove his truck to Slert's
campsite. According to Slert, Benson invited him into the truck to talk and
they shared shots of whiskey. Less than an hour later, Slert shot Benson twice
at short range, once in the head and once in the neck, killing him.
The next day, Park Ranger Uwe Nehring pulled over on a forest service
road to allow Slert's powder blue Volkswagen Beetle pass him. Instead, the
Beetle stopped and Slert told Nehring that he had shot and killed someone in
his campsite the night before. Nehring found guns, drugs, and alcohol in
Slert's car and called for backup. Slert cooperated and guided park rangers and
sheriff deputies to his campsite.
Slert was convicted of murdering Benson in two separate trials before
the one on appeal before us today. His first conviction was reversed for
instructional error and ineffective assistance of counsel. State v. Slert, noted at
128 Wn. App. 1069,2005 WL 1870661. His second conviction was reversed
on the trial judge's failure to recuse himself, an improper self-defense
instruction, and ineffective assistance of counsel. State v. Slert, noted at 149
Wn. App. 1043, 2009 WL 924893. Prior to the third trial, the defense and
prosecution discussed how to guard against a panel member "blurt[ing] out,
2 State v. Slert, No. 87844-7
'Oh, yeah, I read about that case and that guy should be hanging."' Verbatim
Report of Proceedings (VRP) (Jan. 6, 2010) at 3-4. To avoid potential taint,
several weeks before trial, defense counsel proposed a questionnaire to screen
potential jurors. Among other things, the two page questionnaire noted that
"[t]here have been a number of prior proceedings in this case which were
reported by both the newspapers and the radio, since October 2000 and most
recently in late 2009" and asked jurors what, if anything, they had heard about
them. Clerk's Papers (CP) at 360-61. Slert's counsel twice asked the judge to
question potential jurors in chambers if their answers suggested they had
outside knowledge of the case. The judge declined. The completed
questionnaires were not made part of the record.
On the first morning scheduled for Slert's trial, two panels of potential
jurors were given the questionnaire. The record does not reflect whether they
were sworn in first. Because of the large number of jurors called, one panel
completed the questionnaire in the jury assembly room and the other in the
courtroom. 1 Counsel and the judge reviewed the completed questionnaires in
chambers and agreed to dismiss 4 jurors based simply on their answers. The
record suggests that Slert was not present during this in-chambers conference.
Afterwards, the judge went on the record in the courtroom and, in Slert' s
1 The entire panel of jurors who filled out the questionnaire in the courtroom was dismissed prior to voir dire. 1 VRP (Jan. 25, 2010) at 12; CP at 196. Due to a miscommunication, these potential jurors saw Slert escorted into the courtroom by jail officers. 1 VRP (Jan. 25, 2010) at 6-7.
3 State v. Slert, No. 87844-7
presence, stated that "I have already, based on the answers, after consultation
with counsel, excused [4] jurors." 1 VRP (Jan. 25, 2010) at 5. On the record,
and with the parties' agreement, the judge dismissed another potential juror for
cause without questioning the juror on the record. Fourteen jurors who said
that they had heard of the case were brought in individually, given an oath or
affirmation, and-questioned about their answers. Three more were dismissed
for cause based on their individual voir dires. When individual questioning
was complete, the remaining 40 potential jurors were brought into the
courtroom and given an oath or affirmation. After about two hours of voir dire
in open court with all potential jurors present, a jury was sworn in to try the
case.
The jury found Slert guilty of second degree murder while armed with a
firearm. Slert was sentenced to 280 months' confinement. The Court of
Appeals reversed on two grounds: (1) that the trial court had violated the public
trial guaranties of the Washington constitution and (2) that the court violated
Sle1i' s right to be present by dismissing jurors in chambers. State v. Slert, 169
Wn. App. 766, 769, 282 P.3d 101 (2012). We granted review "only on the
public trial issue." Order Granting Review, State v. Slert, No. 87844-7, at 1
(Wash. Apr. 8, 2013). State v. Slert, No. 87844-7
ANALYSIS.
· Only questions of law are before the court.· Our review is de novo.
Dreiling v. Jain, 151 Wn.2d 900, 908, 93 P.3d 861 (2004) (citing Rivett v. City
ofTacoma, 123 Wn.2d 573, 578, 870 P.2d 299 (1994)).
1. Jury Questionnaires and Open Courts
"Justice in all cases shall be administered openly." WASH. CONST. art. I,
§ 10. Our constitution flatly prohibits secret tribunals and Star Chamber
justice. See generally State v. Easterling, 157 Wn.2d 167, 179, 137 P.3d 825
(2006) (citing Allied Daily Newspapers v. Eikenberry, 121 Wn.2d 205, 848
P.2d 1258 (1993)); State v. Coe, 101 Wn.2d 364, 383-84, 679 P.2d 353 (1984).
"A public trial is a core safeguard in our system of justice," and violations of
article I, section 10 are structural error and can be raised for the first time on
appeal. State v. Wise, 176 Wn.2d 1, 5, 9, 288 P.3d 1113 (2012) (citing State v.
Brightman, 155 Wn.2d 506, 514-15, 122 P.3d 150 (2005)).
Justice shall be administered openly, "[b Jut not every interaction
between the court, counsel, and defendants will implicate the right to a public
trial, or constitute a closure if closed to the public." State v. Sublett, 176 Wn.2d
58, 71, 292 P.3d 715 (2012). While open public trial rights are fixed stars in
our constitutional firmament, they do not shine alone. The trial judge has both
the inherent authority and statutory "power to preserve and enforce order in the
courtroom and to provide for the orderly conduct of its proceedings." State v.
5 State v. Slert, No. 87844-7
Lormor, 172 Wn.2d 85, 93-94, 257 P.2d 624 (2011) (citing RCW 2.28.010).
This includes the authority, when appropriate, to seal the courtroom or take
matters into chambers for discussion with counsel. E.g., Sublett, 176 Wn.2d at
75-76 (recognizing that the trial judge has the authority to discuss jury
instructions and jury questionnaires in chambers without formally closing the
proceedings on the record first). The defendant's right to a fair and speedy
trial, the potential jurors' right to privacy, the judge's obligation to provide a
safe and orderly courtroom, and many other considerations may justify a
courtroom closure. Not all arguable courtroom closures require satisfaction of
the five factor test established in State v. Bone-Club, 128 Wn.2d 254, 906 P.2d
325 (1995).
We have adopted the United States Supreme Court's "logic and
experience" test for determining when public trial rights are implicated by a
particular alleged closure. Sublett, 176 Wn.2d at 73 (lead opinion), 94 (Madsen,
C.J., concurring), 136 (Stephens, J., concurring); see also id. at 73-74 (citing
Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8-10, 106 S. Ct. 2735,92 L.
Ed. 2d 1 (1986) (Press II)). As we explained:
The first part of the test, the experience prong, asks "whether the place and process have historically been open to the press and general public." Press II, 478 U.S. at 8. The logic prong asks "whether public access plays a significant positive role in the functioning of the particular process in question." Id. If the answer to both is yes, the public trial right attaches and the Waller [v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L.
6 State v. Slert, No. 87844-7
Ed. 2d 31 (1984)] or Bone-Club factors must be considered before the proceeding may be closed to the public. Press II, 478 U.S. at 7-8.
Sublett, 176 Wn.2d at 73 (footnote omitted). Trial counsel and the courts below
did not have the benefit of our Sublett opinion.
Slert argues that there is no need to apply the experience and logic test
"because it is well-settled that the public trial right applies" to jury selection.
Resp't Supplemental Br. at 8 (citing Wise, 176 Wn.2d at 12 n.4; In re Pers.
Restraint of Morris, 176 Wn.2d 157, 174, 288 P.3d 1140 (2012) (Chambers, J.,
concurring)). We respectfully disagree with this characterization of our case
law. First, the mere label of a proceeding is not determinative. Sublett, 176
Wn.2d at 72-73. Second, it is not at all clear that this proceeding is
substantially similar to the jury selection before us in Wise and Morris. As the
Court of Appeals recently observed:
[E]xisting case law does not hold that a defendant's public trial right applies to every component of the broad "jury selection" process (which process includes the initial summons and administrative culling of prospective jurors from the general adult public and other preliminary administrative processes). Rather, existing case law addresses application of the public trial right related only to a specific component of jury selection-i.e., the "voir dire" of prospective jurors who form the venire (comprising those who respond to ..the court's initial jury . summons and who are not subsequently excused administratively). Thus, whether pretrial administrative juror excusals implicate a defendant's public trial right is one of first impression.
7 State v. Slert, No. 87844-7
State v. Wilson, 174 Wn. App. 328, 338, 298 P.3d 148 (2013). 2 We agree.
Whether this portion of jury selection raises public trial rights has not been
settled by cases where jurors were taken into chambers after being sworn in and
after formal voir dire had begun. Thus application of the experience and logic
test is called for.
The experience prong asks "'whether the place and process have
historically been open to the press and general public.'" Sublett, 176 Wn.2d at
73 (quoting Press II, 478 U.S. at 8). A judge's chambers is not traditionally
open to the public. Voir dire is. See, e.g., In re Pers. Restraint of Orange, 152
Wn.2d 795, 804, 100 P.3d 291 (2004) (quoting Press-Enter. Co. v. Superior
Court, 464 U.S. 501, 505, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984)). But based
on the record, it does not appear that voir dire had begun. Under our rules,
"[t]he judge shall initiate the voir dire examination by identifying the parties
and their respective counsel and by briefly outlining the nature of the case."
CrR 6 .4(b). Nothing in this record suggests that "initiation" under the rule had
occurred here before the questionnaires were completed or reviewed.
We could find no cases, and none were brought to our attention by
counsel, that suggest examination of jury questionnaires is traditionally
performed before the public. Accord Wilson, 174 Wn. App. at 342-44 (finding
2 Our dissenting colleagues make much of the fact that the Wilson court was careful to distinguish Slert in two footnotes. See dissent at 3 (quoting Wilson, 174 Wn. App. at 339 n.ll, 342 n.l3). Given that Slert had been announced prior to Wilson and was thus controlling precedent in the division, we do not find this particularly noteworthy.
8 State v. Slert, No. 87844-7
no tradition of public access to pre-voir-dire portions of jury selection). In a
somewhat similar case, we found no closure when potential juror
questionnaires were sealed after voir dire. State v. Beskurt, 176 Wn.2d 441,
447, 293 P.3d 1159 (2013) (lead opinion). We observed:
[t]he questionnaires were cbmpleted prior to voir dire and utilized by the attorneys as a "screening tool." This facilitated the process by helping the attorneys identify which venire members would be questioned individually in open court and what questions to ask, if any. During general and individual voir dire, the judge, prosecutor, and defense attorneys, including [defendant's] counsel, questioned venire members in order to determine their ability to sit as an impartial juror. At most, the questionnaires provided the attorneys and court with a framework for that questioning.
I d. (lead opinion); see also id. at 457 (Stephens, J., concurring); accord In re
Pers. Restraint of Yates, 177 Wn.2d 1, 30, 296 P.3d 872 (2013). These
observations apply here. Further, we note that in the federal system, jury
questionnaires like those before us have not been traditionally subject to public
review and discussion .. Federal circuit courts have approved of judges
dismissing jurors sua sponte for cause based on their answers to written
questionnaires. Nothing in those cases suggests that the judge considered the
questionnaires in open court before dismissing the potential jurors. See, e.g.,
United States v. Spriggs, 322 U.S. App. D.C. 217, 102 F.3d 1245, 1252 (1996);
United States v. Paradies, 98 F.3d 1266, 1277 (11th Cir. 1996). 3 We conclude
3 The dissent criticizes our persuasive authority on this point but brings no contrary authority to our attention.
9 State v. Slert, No. 87844-7
that based on the experience prong, this in-chambers discussion does not raise
open public court concerns.
The logic prong asks "'whether public access plays a significant
positive role in the functioning of the particular process in question.'" Sublett,
176 Wn.2d at 73 (quoting Press II, 478 U.S. at 8). Again, neither party has
called a case on point to our attention, but it appears public access would have
little role, positive or negative, on review of questionnaires to screen out those
with prior prejudicial knowledge of the case. Questioning the jurors about their
disqualifying knowledge in open court in front of the other jurors could have
been potentially devastating to Slert's right to a fair trial. At a minimum, it is a
waste of time to question potential jurors individually while everyone else
waits if the parties and the court agree the potential juror is disqualified because
of prejudicial knowledge of the case. Logic does not suggest conducting this
review in public would play a significant positive role. Accord Wilson, 17 4
Wn. App. at 346 (finding public access to bailiffs decision to dismiss jurors for
illness-related reasons pre-voir-dire would not serve a positive role).
Analogously, it is not an open public courts violation to discuss jury
instructions and questions from a deliberating jury in chambers. Sublett, 176
Wn.2d at 71-72 Uury questions), 75 Uury instructions). Historically, these
discussions have been held in chambers. Jd. at 75. Initial discussions of jury
instructions have often been held informally, and as we noted in Sublett, we
10 State v. Slert, No. 87844-7
have found no evidence that has been held to raise open courts concerns. !d. at
75-76. Like here, these informal proceedings are often a prelude to a formal
process, on the record and without the jury present, to allow any party to object
and to create a record for review. !d. (citing Schmidt v. Cornerstone Invs.,
Inc., 115 Wn.2d 148, 162-63, 795 P.2d 1143 (1990)). 4
Slert has not shown there was a closure under the experience and logic
test. We recognize that there may be cases where similar discussions in
chambers might implicate the public trial right. But "[t]he party presenting an
issue for review has the burden of providing an adequate record to establish
such error." State v. Sisouvanh, 175 Wn.2d 607,619,290 P.3d 942 (2012)
(citing State v. Wade, 138 Wn.2d 460,464,979 P.2d 850 (1999)). In this case,
the record Slert provided does not establish that the two potential jury panels
had been sworn in, whether voir dire had been initiated under CrR 6.4(b ), who
moved to take the conversation into chambers, whether the trial court invited
comment from the courtroom, what specifically was discussed in chambers, or
many other facts that could usefully bear on our analysis. The parties
designated this record long before Sublett was announced, and we do not fault
them for not recognizing additional information would be helpful to our
4The experience and logic test is also a useful analytical tool for determining whether a discussion may be held in chambers. For example, application of the test would quickly show that discussion of jury instructions or jury questions have long been held in chambers and, without more, would riot present an open public court issue. Sublett, 176 Wn.2d at 71-72, 75.
11 State v. Slert, No. 87844-7
application of recently announced case law to this case. However, we note that
in the wake of Sublett, counsel for either side could have sought that
information from the participants and moved to supplement the record under
RAP 9.10 or 9 .11. In the absence of an adequate record, we will not infer that a
trial judge violated the constitution. Sisouvanh, 17 5 ·wn.2d at 619 (citing
Wade, 138 Wn.2d at 464).
2. Justiciable Controversy
The Court of Appeals reversed Slert's conviction on two grounds: "that
the trial court violated Slert' s right to a public trial and his right to be present
during critical stages ofthe proceedings." Slert, 169 Wn. App. at 769. We
granted review "only on the public trial issue." Order Granting Review, No.
87844-7, at 1. Slert suggests that we should dismiss our review as
improvidently granted. Resp't's Suppl. Br. at 4-6.
Perhaps given its decision to reverse on the public trial rights issue, the
Court of Appeals did not complete the "right to be present" analysis. We will
not reverse on ·a violation of the defendant's right to be present if we are
convinced, beyond a reasonable doubt, that the error was harmless. State v.
Jrby, 170 Wn.2d 874, 885-86, 246 P.3d 796 (2011). Accordingly, we remand
12 State v. Slert, No. 87844-7
to the Court of Appeals to decide whether the violation of Slert's right to be
present is harmless beyond a reasonable doubt. 5
CONCLUSION
Slert has not shown an open public trial rights violation. Accordingly,
we reverse the Court of Appeals and remand back to that court for
consideration of whether, standing alone, the violation of Slert's right to be
present warrants relief.
5 Given our disposition, we do not reach the remaining arguments of the parties.
13 State v. Slert, No. 87844-7
I
WE CONCUR:
14 State v. Slert (Kenneth Lane) (Wiggins, J., concurring in result)
No. 87844-7
WIGGINS, J. (concurring in result)- As explained in my concurrence in State
v. Smith, No. 85809-8 (Wash. Sept. 25, 2014), the logic and experience test is
incorrect and harmful. This case provides yet another example of the test's
ambiguities and defects. Here, Kenneth Slert was tried and convicted three times for
the murder of John Benson. His first two convictions were reversed. In his third trial,
prospective jurors were given a questionnaire designed to determine if they had heard
about the two prior trials. To avoid potential taint, defense counsel proposed a
questionnaire to screen potential jurors. On the first day of trial, two panels of potential
jurors completed the questionnaire. Counsel and the judge reviewed the
questionnaires in chambers and agreed to dismiss four jurors, evidently based on their
knowledge of Slert's prior trials. Lead opinion at 3.
The lead opinion applies the logic and experience test to find that the public
trial right does not attach to "pre-voir-dire" in-chamber discussions about jurors'
answers to the questionnaires. Lead opinion at 1. The lead opinion reasons that
under the experience prong, "[w]e could find no cases, and none were brought to our
attention by counsel, that suggest examination of jury questionnaires is traditionally
performed before the public." /d. at 8. And in the federal system, jury questionnaires
are not traditionally subject to public review and discussion. /d. at 9. Under the logic
prong, the lead opinion finds that public access would have a miniscule role, positive No. 87844-7 (Wiggins, J., concurring in result)
or negative, on the review of questionnaires to screen out those with prior prejudicial
knowledge of the case. /d. at 10.
The dissent, however, points out that several jurors were dismissed for cause
as a result of the questionnaires, indicating that this was voir dire and not pre-voir-
dire. Dissent at 1. The dissent reasons that the questions were not used merely as
a framework for questioning; they were used to evaluate jurors' fitness to serve and
to excuse jurors for cause. /d. at 6.
This court has made clear that the public trial right attaches to voir dire-"the
individual examination of jurors concerning their fitness to serve in a particular case."
/d. at 1-2 (citing State v. Wise, 176 Wn.2d 1, 12 n.4, 288 P.3d 1113 (2012); State v.
Brightman, 155 Wn.2d 506, 515, 122 P.3d 150 (2005); In re Pers. Restraint of Orange,
152 Wn.2d 295, 804-05, 100 P.3d 291 (2004)); see also State v. Paumier, 176 Wn.2d
29, 35, 288 P.3d 1126 (2012). It appears that this is a voir dire case that easily could
have been decided under Paumier and Wise, but the majority creates a new
distinction and thereby avoids sending back this murder case for a fourth trial. The
majority employs the logic and experience test to conclude that the closure fell outside
of one of the narrow public trial pigeonholes recognized by this court. Therein lies one
of the harms of the logic and experience test-instead of illuminating when a closure
has occurred, it can support a decision either way. See State v. Wilson, 174 Wn. App.
328, 298 P.3d 148 (2013) (right does not attach to excusal of jurors for illness-related
reasons because this is pretrial juror excusal, not voir dire); State v. Love, 176 Wn.
App. 911, 918, 309 P.3d 1209 (2013) (right does not attach to parties' use of
peremptory and for-cause challenges at a sidebar conference because challenges
2 No. 87844-7 (Wiggins, J., concurring in result)
are not part of voir dire); cf. State v. Jones, 175 Wn. App. 87, 303 P.3d 1084 (2013)
(public trial right attached to court recess where court clerk randomly selected four
alternate jurors because that is part of jury selection); State v. Tinh Trinh Lam, 161
Wn. App. 299, 254 P.3d 891 (2011 ), review granted, 176 Wn.2d 1031, 299 P.3d 20
(2013) (public trial right attached to questioning of sworn-in juror because process
was procedurally similar to and conducted for the same purpose as voir dire).
In addition, like other recent opinions, this case provides little guidance to trial
and appellate judges in applying the logic and experience test. Indeed, our decision
in this case raises more questions even though our precedent seems to resolve it.
The logic and experience test provides no practicable standards for determining when
a closure occurs,· nor does it provide satisfactory answers to any of the above
questions. We disserve trial judges, attorneys, the parties, and the public by failing to
provide clear guidance on this issue, especially in light of the other public trial cases
currently before us.
Accordingly, I would reject the logic and experience test. The history and origin
of the public trial clause make clear that the open courts right was designed to deter
and expose corruption and manipulation in the justice system. See State v. Sublett,
176 Wn.2d 58, 146, 292 P.3d 715 (2012) (Wiggins, J., concurring). Public scrutiny
serves as a check on abuse of judicial power and enhances public trust in the judicial
system. /d. These concerns are at play during each and every stage of a judicial
proceeding, whether it be cross-examination, a clarifying question from the jury to the
judge, or even a sidebar. Indeed, in any proceeding, absence of public scrutiny could
"breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for
3 No. 87844-7 (Wiggins, J., concurring in result)
law." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 595, 100 S. Ct. 2814, 65
L. Ed. 2d 973 (1980) (Brennan, J., concurring).
Thus, every stage of judicial proceedings must be presumptively open under
our constitution. WASH. CONST. art. I, § 10 ("Justice in all cases shall be administered
openly .... "). A judge may close a portion 1 of the trial only after conducting a Bone-
Club hearing. See State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995). If a
judge closes a portion of the trial and no party objects, I would hold that no party may
challenge the closure later without compliance with RAP 2.5(a)(3). I would so hold
whether or not the judge conducted a Bone-Club hearing. Accordingly, I would
reverse the Court of Appeals and affirm the conviction because Slert did not object at
trial and he has not satisfied the requirements of RAP 2.5(a)(3)-i.e., he has not
shown "manifest error affecting a constitutional right."
1By "a portion of a trial" I mean the entirety of a particular phase of trial, such as voir dire, the complete examination of a witness, or any significant phase of the trial proceedings.
4 No. 87844-7 (Wiggins, J., concurring in result)
For these reasons, I concur in the majority's resolution but not its reasoning.
5 State v. Slert (J(enneth Lane)
STEPHENS, J. (dissenting)-The lead opinion offers a theory of this case
that ignores what actually happened. The in-chambers proceeding here was not
simply an "examination of jury questionnaires." Lead opinion at 8. Several jurors
were dismissed for cause behind closed doors based on the same questionnaire
answers other jurors were asked about in open court. This was not a precursor to
voir dire; this was voir dire. The lead opinion's attempt to recast the facts is
unconvincing, and its reliance on the inadequacy of the record only highlights the
problem of closing courtrooms without engaging in an analysis of the critical
factors under State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995). I
respectfully dissent.
The For-Cause Dismissal ofJurors Based on Their Prior Knowledge of the Case was Plainly Part of Voir Dire
This court has made clear that the public trial right attaches to voir dire, as
that term encompasses the individual examination of jurors concerning their fitness State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)
to serve in a particular case. State v. Wise, 176 Wn.2d 1, 12 n.4, 288 P.3d 1113
(2012); State v. Brightman, 155 Wn.2d 506, 515, 122 P.3d 150 (2005); In re Pers.
Restraint of Orange, 152 Wn.2d 795, 804-05, 100 P.3d 291 (2004). The lead
opinion misdescribes the event at issue here as the "examination of jury
questionnaires" rather than the examination of jurors, lead opinion at 8, further
characterizing it as a "prelude" to voir dire, lead opinion at 11. This leads the lead
opinion into an unnecessary analysis under the experience and logic test, in which
it attempts to equate this case to those involving administrative excusals of jurors
(State v. Wilson, 174 Wn. App. 328, 338, 298 P.3d 148 (2013)), the preliminary
review of questionnaires as a "'"screening tool'"" to determine which jurors may
be questioned individually (State v. Beskurt, 176 Wn.2d 441, 447, 293 P.3d 1159
(2013)), and the discussion of jury instructions or of questions submitted by a
deliberating jury (State v. Sublett, 176 Wn.2d 58,71-72,75,292 P.3d 715 (2012)).
Lead opinion at 7-10 (quoting Beskurt, 176 Wn.2d at 447). As a closer look at
those cases reveals, they are nothing like what happened here.
Consider first the lead opinion's reliance on the Court of Appeals decision in
Wilson, 174 Wn. App. 328. See lead opinion at 7 (quoting Wilson, 174 Wn. App.
at 338), 8, 10 (citing Wilson as in accord with its decision). In Wilson, the trial
court's bailiff administratively excused two persons from the jury pool; one was
"apparently sick enough that the bailiff excused him 'before [the juror] even said
anything' or had a chance to complete the juror questionnaire." 174 Wn. App. at
332. The second person apparently completed the questionnaire but was excused
-2- State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)
as being '"ill'" before 9:00 a.m. Id. Both people were rescheduled for jury service
at a later date. !d. In holding this procedure did not violate Wilson's public trial
right, the Court of Appeals appropriately distinguished between the broad process
of jury selection that begins when jury summonses are issued and the specific
component of voir dire that involves the individual examination of members of the
jury panel about their fitness to serve on a particular jury. Id. at 338-39; see also
id. at 340 n.12. Critically, the court in Wilson took care to distinguish this very case:
In Slert, the trial court gave prospective jurors a questionnaire asking about the jurors' familiarity with publicity from Slert's two prior trials, both of which had resulted in convictions. [State v.] Slert, 169 Wn. App. [766,] 770-71[, 282 P.3d 101 (2012)]. Based on the jurors' questionnaire responses, the trial court and counsel then held an in-chambers conference and excused four jurors from the jury pool "for cause." Slert, 169 Wn. App. at 771. Under these specific facts, we held that (I) the in-chambers conference was "part of the jury selection process to which the public trial right applied" because the jurors had been excused for "case-specific reasons" "based on their questionnaire answers"; and (2) the trial court had violated Slert's right to a public trial because it did not conduct a Bone-club analysis before excusing the jurors outside the courtroom. Slert, 169 Wn. App. at 774-75 .... Thus, the facts in Slert are distinguishable, and its holding does not apply here.
!d. at 339 n.ll; see also id. at 342 n.13 (again distinguishing Slert as a case in
which the public trial right attached under the experience and logic test because the
jurors were dismissed '"for cause' based on the information contained in their
questionnaires.") I agree with the Court of Appeals that there is a vast difference
between Wilson and this case. 1
1 The lead opinion does not find Division Two's distinction between its treatment of Slert and Wilson noteworthy because Division Two decided Slert prior to Wilson, and it was thus controlling precedent that the Wilson court was presumably required to
-3- State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)
It is simply incredible to suggest here that "based on the record, it does not
appear that voir dire had begun." Lead opinion at 8. The lead opinion invokes Criminal Rule (CrR) 6.4(b ), noting the absence of any record showing that the trial court identified the parties and their respective counsel, and briefly outlined the nature of the case, as the rule contemplates. 2 If the presence or absence of a checklist under a court rule is the determinative factor in assessing whether the public trial right attaches, then we have truly elevated form above substance. Indeed, the trial court did not preface later individual questioning of jurors in open court by imparting the information outlined in CrR 6.4(b). 1 Verbatim Report of Proceedings (VRP) (Jan. 25, 2010) at 14. Are we to conclude that this proceeding
was similarly a mere precursor to voir dire? Instead, we should look at what actually occurred here. As the lead opinion acknowledges, Slert's counsel was concerned about a tainted jury pool. Lead opinion at 3. Two jury panels were assembled from which to seat potential jurors.
VRP (Jan. 21, 2010) at 5. The trial court was aware that the jurors would be pulled
address. Lead opinion at 8 n.2. What is noteworthy, however, is that the Wilson court's discussion of Slert suggests the opposite conclusion from the one the lead opinion announces here. It is therefore bewildering that the lead opinion cites Wilson as "in accord" with its analysis. 2 The rule reads: Voir Dire. A voir dire examination shall be conducted for the purpose of discovering any basis for challenge for cause and for the purpose of gaining knowledge to enable an int'elligent exercise of peremptory challenges. The judge shall initiate the voir dire examination by identifying the parties and their respective counsel and by briefly outlining the nature of the case. The judge and counsel may then ask the prospective jurors questions touching their qualifications to serve as jurors in the case, subject to the supervision of the court as appropriate to the facts of the case. CrR 6.4(b).
-4- State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)
from these two panels. See id. Each individual in the two panels was given a questionnaire that was designed to identify jurors who may have had a bias due to prior knowledge of the case. The questionnaire recited that respondents were under oath. Clerk's Papers (CP) at 360. 3 The questionnaire summarized the charges against Slert and brief facts about the case. Id. It asked the prospective jurors questions only about potential bias-whether, for example, they had previously heard of the case, discussed the case, or formed any opinions about the case. !d. at 360-61. The questionnaire did not ask any questions related to hardship or other reasons outside of potential bias that may have disqualified a
juror. !d. The four jurors who were dismissed behind closed doors were dismissed based on their answers to the questionnaire. 1 VRP (Jan. 25, 2010) at 5. As the court in Wilson observed, these were not administrative excusals but were for-cause dismissals by the trial judge based on the responding jurors' inability to serve fairly in this particular case. 174 Wn. App. at 339-40 & nn. 11, 12. The lead opinion's reliance on our decisions in Beskurt and Sublett is also unconvincing. The very passage the lead opinion quotes from Beskurt identifies a key difference between that case and this one. See lead opinion at 8-9 (quoting
3 The lead opinion asserts that the record does not establish whether the two jury panels were sworn in, apparently concluding that we must assume they were not. Lead opinion at 11. But, a copy of the questionnaire is in the record and it told the jurors they were under oath. CP at 360. I believe we can accept this representation on a court- approved document as accurate. Nonetheless, I agree with the Court of Appeals that "[b]ecause the jury selection process begins when jurors are sworn and are given questionnaires to complete, such proceedings should be conducted on the record to facilitate appellate review." Slert, 169 Wn. App. at 770 n.7 (citing State v. Irby, 170 Wn.2d 874, 884,246 P.3d 796 (2011)).
-5- State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)
Beskurt, 176 Wn.2d at 447). In Beskurt, questionnaires were used by the attorneys
as a "'screening tool"' to "identify which venire members would be questioned
individually in open court and what questions to ask, if any." 176 Wn.2d at 447
(emphasis added). The entire voir dire then took place in open court; not a single
juror was dismissed behind closed doors based on questionnaire responses. !d.
Here, in contrast, the questionnaires were not used merely as "a framework for ...
questioning." !d. They instead substituted for the public questioning of some
jurors, as the court and counsel conferred in chambers about why these jurors'
answers to the questionnaire disqualified them from serving on Slert's jury.
Beskurt provides no support for the lead opinion's theory that juror dismissals
predicated on answers to a written questionnaire rather than oral examination are
somehow not part of voir dire. 4
Sublett is even less helpful to the lead opinion's cause. In that case, the trial
judge and counsel discussed in chambers how to respond to a question submitted
by the jury during its deliberations. 176 Wn.2d at 67. Adopting the experience
and logic test as an analytical tool for determining which parts of a trial implicate
the public trial right, the court concluded that the proceeding at issue was not
required to be held in open court. !d. at 77 (lead opinion). The court analogized to
4 Contrary to the lead opinion's assertion, what occurred here was in fact "substantially similar" to the closed jury selection that took place in Wise and In re Personal Restraint of Morris, 176 Wn.2d 157, 288 PJd 1140 (2912), which we held to be a violation of the public trial right. Lead opinion at 7; Wise, 176 Wn.2d at 7, 11-12; Morris, 176 Wn.2d at 162-63. Tellingly, in Morris the private voir dire of 14 jurors, including the dismissal of 6, was predicated on those jurors' answers to a similar questionnaire. 176 Wn.2d at 162.
-6- State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)
the practice of discussing jury instructions informally in chambers before making a
record in court. Id. at 75-76; see also id. at 140-41 (Stephens, J., concurring). The
lead opinion would extend the analogy to for-cause dismissals of jurors based on
their questionnaire answers. Lead opinion at 10. But, the situations are not
analogous. In discussions of jury instructions or questions from a deliberating
jury, no factfinding is involved and no risk of perjury exists; thus, courts have long
conducted such proceedings in chambers. Sublett, 176 Wn.2d at 77. In contrast,
courts have a centuries-old tradition of selecting jurors in public precisely because
we need to see and hear how they respond to questioning. Putting the questions in
writing does not change this. While it is sometimes helpful to use juror
questionnaires to identify which jurors may need to be questioned individually in
order to avoid tainting the entire venire, the written questionnaires cannot replace
voir dire. 5
No matter what form it takes, the dismissal of jurors by a judge for case-
specific reasons is not merely "a prelude to a formal process," as the lead opinion
5 The lead opinion states that federal courts approve of dismissing jurors in chambers based on questionnaire responses. See lead opinion at 9 (citing United States v. Spriggs, 322 U.S. App. D.C. 217, 102 F.3d 1245, 1252 (1996); United States v. Paradies, 98 F.3d 1266, 1277 (11th Cir. 1996)). In point of fact, the United States Supreme Court has yet to rule on the interplay between jury questionnaires, jury selection, and the public trial right, so we have no controlling federal precedent on this question. And the cases the lead opinion cites have nothing to do with the public trial right. See Paradies, 98 F.3d at 1277 & n.16, 1281 & n.28 (defendants claiming violation of the federal Jury Selection and Service Act of 1968, 28 U.S.C. § 1861, or right to fair and impartial jury under the Sixth Amendment); Spriggs, 102 F.3d at 1251-55 (same). At any rate, even if these federal circuit cases suggested what the lead opinion claims they do, our own controlling state precedent more clearly suggests that for-cause dismissals of jurors by a judge are part of voir dire. See Wise, 176 Wn.2d at 12 n.4; Brightman, 155 Wn.2d at 515; Orange, 152 Wn.2d at 804-05.
-7- State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)
believes. Lead opinion at 11. What occurred in chambers here was voir dire.
Under well-settled precedent, voir dire must be conducted in open court unless the
trial court justifies a closure under the Bone-Club factors. Brightman, 155 Wn.2d
at 515; Wise, 176 Wn.2d at 11-12; State v. Paumier, 176 Wn.2d 29, 34-35, 288
P.3d 1126 (2012); see In re Pers. Restraint of Morris, 176 Wn.2d 157, 166, 288
P.3d 1140 (2012).
While the Record Is Sparse Due to the Failure To Engage in a Bone-Club Analysis, It Is Sufficient To Demonstrate a Public Trial Violation
The lead opinion attempts to turn this into a case about an inadequate record.
Lead opinion at 11-12. It even suggests that "there may be cases where similar
discussions in chambers might implicate the public trial right," lead opinion at 11,
though it fails to explain how this is possible given its broad holding that
dismissals based on questionnaires are not part of voir dire. The record here is
sufficient to show a public trial violation; we know that jurors were dismissed for
cause by the judge in chambers. Reading between the lines in the transcript, the
only difference between these jurors and the 14 others who were dismissed in open
court based on their answers to the juror questionnaires seems to be that both
counsel agreed on the dismissals that were made in chambers. 1 VRP (Jan. 25,
2010) at 5. 6
6 The trial court explained, "We have had the questionnaires that have been filled out. I have already, based on the answers, after consultation with counsel, excused jurors number 19, 36, and 49 from panel two which is our primary panel and I've excused juror number 15 from panel one, the alternate panel that we'll be using today." 1 VRP (Jan. 25, 2010) at 5.
-8- State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)
The lead opinion complains that we do not know who moved to take the
conversation regarding the juror dismissal into chambers but does not explain how
such information would be relevant to a public trial analysis. Lead opinion at 11.
It also laments that we do not know "whether the trial court invited comment from
the courtroom" or "what specifically was discussed in chambers." Id. But, this is
because the proceeding took place in chambers and the trial judge did not engage
in a Bone-Club analysis. That is, the sparse record results from the very
constitutional error at issue. 7
Ultimately, the lead opinion simply does not believe what happened here
was a big deal. It claims that "public access would have little role, positive or
negative, on review of questionnaires to screen out those with prior prejudicial
knowledge of the case." Lead opinion at 10. But "screening out those with prior
prejudicial knowledge of the case," whether based on questionnaire answers or oral
answers, is voir dire. We have long recognized the value of conducting voir dire in
public. The lead opinion further explains that logic is served by its resolution
because "[ q]uestioning the jurors about their disqualifying knowledge in open
court in front of the other jurors could have been potentially devastating to Slert's
right to a fair trial." Lead opinion at 10. Given that such a concen1 is easily
remedied-by conducting juror questioning in open court but outside the presence
7 The lead opinion explains that "[n]ot all arguable courtroom closures require satisfaction of' the Bone-Club factors. Lead opinion at 6. To be clear, any proceeding to which the public trial right attaches requires consideration of the Bone-Club factors to effect a constitutional closure of the proceeding. But not all proceedings will implicate the public trial right.
-9- State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)
of the rest of the panel-this concern should never serve as the basis for curtailing
the constitutional right to a public trial. Indeed, here 14 jurors were individually
questioned about their questionnaire answers in open court outside the presence of
the rest of the panel, as the lead opinion acknowledges. Lead opinion at 4.
Given that 14 jurors, were individually questioned based on their
questionnaire responses, I am baffled at the lead opinion's assertion that it would
be a "waste of time to question potential jurors individually while everyone else
waits if the parties and the court agree" on the disqualification. Lead opinion at 10.
I do not regard any part of voir dire as a waste of time, especially when individual
voir dire may be necessary to safeguard both the public trial right and the
defendant's right to a fair trial. Nor do I believe the public trial right attaches only
to matters on which the parties and the court cannot agree.
It may have been obvious-at least to those who were m the judge's
chambers-that the 4 jurors dismissed in chambers needed to be dismissed. But
their dismissal was still a part of voir dire. In the absence of a Bone-Club analysis
supporting a closure, these 4 jurors should have been questioned in open court, just
as the 14 other jurors who responded positively to the questionnaire were.
"A public trial is a core safeguard in our system of justice." Wise, 176
Wn.2d at 5. We have been clear and consistent in recognizing that the process by
which members of a jury are selected-voir dire-takes place in open court. This
case does not test the outer limits of that rule. What occurred here was plainly voir
-10- State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)
dire: the disqualification of potential jurors by a judge based on case-specific answers to questions concerning potential bias. The dismissals should have been made in open court absent a Bone-Club analysis justifying the closure. I would affirm the Court of Appeals. Accordingly, I dissent.
-11- State v. Slert (Kenneth Lane), 87844-7 (Stephens, J. Dissent)