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SCOW: Violation of right to public trial is forfeited if defendant doesn’t object

State v. Nancy J. Pinno & State v. Travis J. Seaton, 2014 WI 74, 7/18/14, on certification from the court of appeals, and affirming the circuit court’s orders denying postconviction relief; majority opinion by Justice Prosser; case activity: Pinno; Seaton

Deciding an issue left open by State v. Ndina, 2009 WI 21, ¶¶34-38, 315 Wis. 2d 653, 761 N.W.2d 612, the supreme court rejects the argument that the right to a public trial must be affirmatively and knowingly waived by the defendant. Instead, the court holds, “[a] defendant who fails to object to a judicial decision to close the courtroom forfeits the right to a public trial, so long as the defendant is aware that the judge excluded the public from the courtroom.” (¶7).

In each of these consolidated cases the trial judge barred the public from the courtroom during jury selection. Neither defendant objected. (¶¶13-16, 27-29, 64-65, 67). Does the failure to object mean the defendants forfeited any claim on appeal that right to a public trial was violated? Or can the right be given up only upon affirmative and intentional waiver? A forfeited right generally isn’t subject to appellate review, except as part of an ineffective assistance of counsel claim (which each defendant also raises). Waiver, on the other hand, precludes review beyond the validity of the waiver itself. Ndina, 315 Wis. 2d 653, ¶¶29-32; State v. Soto, 2012 WI 93, ¶¶36-45, 343 Wis. 2d 43, 817 N.W.2d 848. 

Whether a forfeiture or waiver analysis is appropriate depends on “the constitutional or statutory importance of the right, balanced against the procedural efficiency in requiring immediate final determination of the right.” Soto, 343 Wis. 2d 43, ¶38. Applying this balancing test, the majority concludes the right to public trial may be forfeited:

¶59  First, although the public trial right is very important, the absence of the public for part or even all of a criminal trial does not necessarily mean that the trial was unfair—that it did not serve its function as a reliable vehicle for the determination of guilt or innocence or that the punishment resulting from the trial was not legitimate. …

¶60  Second, a requirement that a defendant must waive his public trial right in order to lose it would effectively supersede the circuit court’s acknowledged authority to close the courtroom for compelling reasons by applying and satisfying the four Waller [v. Georgia, 467 U.S. 39, 45, 48 (1984)] factors. …

61  Third, the procedural efficiency in requiring objections to the denial of the public trial right favors a forfeiture analysis. … If waiver were required, a defendant could tax judicial resources by demanding a new trial if the judge excluded the public, even if the exclusion did not affect the proceedings. ...

62  Fourth, using a forfeiture analysis in this context is supported by language in both Waller and Presley [v. Georgia, 558 U.S. 209 (2010)]. … Both cases use phrases suggesting that the onus is on the defendant to assert his right. Thus, even though the denial of the public trial right has been deemed structural error, these cases use language that arguably promotes a forfeiture analysis.

Because the failure of trial counsel to object forfeited the issue, it has to be raised via ineffective assistance of counsel. (¶¶66, 68). The majority holds that neither Seaton’s nor Pinno’s trial counsel performed deficiently by failing to object (¶¶87, 90) and, even if trial counsel was deficient, the defendants haven’t demonstrated prejudice; rather, they simply alleged the denial of the right to a public trial is presumed to be prejudicial because it’s a structural error. (¶¶83, 88, 91). The majority refuses to presume prejudice in this situation:

¶86  Given that prejudice is rarely presumed, an error does not automatically receive a presumption of prejudice merely because it is deemed structural. … Indeed, a rule that prejudice must be presumed when counsel fails to object to the exclusion of the public would effectively nullify the forfeiture rule. It would not matter that the defendant failed to object because he could demand a reversal on appeal based on ineffective assistance if he could prove his counsel was deficient. As discussed above, the denial of the right to a public trial does not always lead to unfairness or prejudice. “Thus, only when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel’s actual performance at trial.” [United States v.] Cronic, 466 U.S. [648,] 662 [(1984)] (footnote omitted). Structural errors, generally, do not fall under one of those circumstances. …

A dissent by Justice Crooks, joined by Chief Justice Abrahamson and Justice Bradley, rejects the majority’s holding that the right to public trial is subject to forfeiture and instead concludes it should require affirmative waiver (¶¶164-73); explains why the denial of the right really is a structural error (¶¶154-62); and concludes that if the right can be forfeited by counsel’s failure to object, prejudice should be presumed (¶¶178-79). In a separate dissent joined by Justice Bradley, the Chief Justice argues the right is absolute, as it belongs to the public as well as defendants, and the courts are responsible for seeing it is honored: “Even if the defendant voluntarily and knowingly agrees to a closure, the public retains a right to open judicial proceedings. The public’s right cannot be waived by the defendant. Rather, the public’s right is an obligation that the court must enforce sua sponte.” (¶105).

On the way to deciding the right to public trial can be forfeited, the majority spends time explaining that the right is not “absolute” and suggesting that denial of the right therefore isn’t really structural error. (¶¶44-54). As ably demonstrated by Justice Crooks’s dissent (¶¶154-62), the majority’s reasoning flies in the face of Supreme Court precedent, e.g.Neder v. United States, 527 U.S. 1, 8 (1999) (listing “denial of [a] public trial” among errors deemed “to be ‘structural,’ and thus subject to automatic reversal”); Johnson v. United States, 520 U.S. 461, 468-69 (1997) (same); Arizona v. Fulminante, 499 U.S. 279, 310 (1991) (same); Waller, 467 U.S. at 49-50 & n. 9 (“the defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee” because such a requirement “would in most cases deprive [the defendant] of the [public-trial] guarantee, for it would be difficult to envisage a case in which he would have evidence available of specific injury.”).

The majority says that, because the right to public trial is not “absolute,” treating denial of the rights to public trial as structural error leads to the “questionable proposition” that “excluding the public is structural error unless it is not error at all.” (¶52). But the majority goes wrong in thinking that the category of structural error covers only the denial of an “absolute” right, assuming the court means a right that can’t be waived or forfeited—e.g., the right to an impartial judge, State v. Carprue, 2004 WI 111, ¶¶57, 59, 274 Wis. 2d 656, 683 N.W.2d 31. For instance, the right to counsel isn’t “absolute,” but can be waived or forfeited, State v. Cummings, 199 Wis. 2d 721, 756-57, 546 N.W.2d 406 (1996); likewise, the right to proceed pro se is not absolute, State v. Oswald, 2000 WI App 3, ¶28, 232 Wis. 2d 103, 606 N.W.2d 238 (Ct. App. 1999). As the majority acknowledges (¶50), denial of those non-absolute rights is structural error. That’s because structural error is based not on whether the right is “absolute” (few are), but because it is fundamental to the framework of a fair trial and its denial produces consequences that are indeterminate or unmeasurable, e.g., Neder, 527 U.S. at 8, 11, Fulminante, 499 U.S. at 309-10.

Further, determining whether a right is relinquished by waiver versus forfeiture doesn’t depend on whether denial of the right is structural or trial error. Ndina, ¶43 n.15. So why the need to suggest that denial of the right to a public trial isn’t really structural error? Because that supports the conclusion (¶86) that when a defendant raises a forfeited denial of public trial issue as part of an ineffective assistance claim, prejudice isn’t presumed, but must be proven by the defendant. But how to show prejudice when, as Justice Crooks says (¶156), the error is treated as structural because it produces consequences that difficult or impossible to quantify or measure? The majority as much as concedes that establishing prejudice is impossible because, in response to the argument this requirement leaves the defendants without a remedy, it suggests defendants “could potentially seek relief under the discretionary reversal statutes if the error involved a miscarriage of justice.” (¶86 n.25).

The majority does administer a mild rebuke to the circuit court, saying its “good intentions cannot hide its seriously mistaken approach in the two cases” (¶69), and it admonishes circuit courts to apply the Waller factors in determining whether to close the courtroom, especially when the closure is instigated by the court itself (¶¶70-78). But this is precatory, pie-in-the-sky language given the court’s adoption of the forfeiture rule and rejection of per se prejudice—holdings that belie the majority’s claim that “[a]dopting the forfeiture rule here does not give judges carte blanche to order courtroom closures when defendants are inattentive.” (¶80). It does just that. So don’t be inattentive, and be ready to object and insist the court fulfill its “obligation” to protect the right to public trial.

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