Issue Presented (from Certification):
Is the failure to object to the closure of a public trial to be analyzed upon appellate review under the “forfeiture standard” or the “waiver standard”?
As suggested, in each of these consolidated cases the trial judge barred the public from the courtroom (during jury selection in each instance), without objection. The Certification stresses that the supreme court hasn’t settled whether failure to object to trial-closure represents “forfeiture” or “waiver” of the issue. The former is mere failure to assert, while the latter is intentional relinquishment of, a right. While a forfeited right generally isn’t subject to appellate review, it may be reviewed as part of an IAC claim (which each defendant raises). Waiver, by contrast, precludes review (beyond validity of the waiver itself). See generally, State v. Ndina, 2009 WI 21, ¶¶29-32, 315 Wis. 2d 653, 670, 761 N.W.2d 612; and State v. Soto, 2012 WI 93, ¶¶36-45, 343 Wis. 2d 43, 817 N.W.2d 848. The State doesn’t appear to have raised the forfeiture-waiver distinction in either of these cases. To the contrary, each defendant has asserted an IAC “backstop” claim, which the State resists at least in part on the issue of prejudice, not waiver. E.g., Seaton Resp. Br., p. 17 (“(Seaton “does not explain why there is a reasonable probability of an acquittal at trial had counsel objected at the beginning of voir dire.”) This focus on prejudice raises an interesting problem of another sort: can you test for IAC-prejudice that which would, if preserved, represent structural error? Violation of the right to public trial is structural error, i.e., subject to automatic reversal without regard to the harmless rule. E.g., Ndina, 2009 WI, ¶43. If Seaton and Pinno had preserved meritorious closure objections, they’d be entitled to automatic reversal of their convictions – could the convictions nonetheless be sustained under IAC analysis? The conundrum isn’t discussed by the Certification but is certain to be a focal point of the arguments if review is granted. In any event, the court sums up the need for resolution:
From the foregoing discussion it appears clear that an unobjected-to trial closure might constitute (1) a forfeited error that is reviewed under the ineffective-assistance-of-counsel standard, or (2) a waivable error that is initially reviewed for whether the right to public trial was knowingly relinquished before considering whether a constitutional violation occurred. Resolution of which path to follow will likely be dictated by the court’s determination of whether the right to a public trial is a right that is “particularly important to the actual or perceived fairness” of a criminal proceeding. See id., ¶40.
We also have an additional concern not raised by the parties. The public has a constitutional interest in public trials. The openness of trial proceedings, including the process of jury selection, is important not only to adversaries in the immediate proceedings but to the entire criminal justice system. Press-Enterprise, 464 U.S. at 505. The public has an interest in openness to ensure that justice is not being horse-traded or performed by a Star Chamber.