Supreme Court May Hear Case Involving the Constitutional Right to a Public Trial

By Joe Forward, Legal Writer, State Bar of Wisconsin

Dec. 6, 2012 – In separate criminal cases, the same trial judge excluded the public from the courtroom during jury selection. The defendants did not object. Now, the Wisconsin Supreme Court may decide the standard of review in such cases.

The appeals court recently certified State v. Pinno and State v. Seaton for review and determination of the issue by the Wisconsin Supreme Court.

The Sixth Amendment right to a public trial extends to jury selection. Trial court judges may exclude the public from trials, including the press, in just two circumstances.

Public exclusion or closure is justified if the court complies with the four-part Waller test, or if an unjustified closure is trivial, meaning it “does not violate the core values of the Sixth Amendment.” Violations of this constitutional protection require automatic reversal.

Under Waller v. Georgia, 467 U.S. 39 (1984), “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.”

At the same time, an issue arises when the defendant fails to object to public closure or exclusion based on his or her Sixth Amendment right. Pinno and Seaton did not object when the trial judge closed jury selection to the public. Postconviction motions were denied.

The appeals court is asking the supreme court to decide if the defendants’ failure to object is considered a “waiver” or a “forfeiture” of their Sixth Amendment right.

Pinno and Seaton say the right can only be waived, and since neither waived the right, the Waller test applies. The state argues the forfeiture rule should apply, barring review on the Sixth Amendment question but subject to ineffective assistance of counsel claims.

Claims of ineffective assistance of counsel require the defendant to show his or her attorney prejudiced the defense through deficient performance.

“Clear direction on how reviewing courts should evaluate claims of a constitutional violation of the right to a public trial is important to our administration of justice,” the appeals court wrote.