Dhosi J. Ndina faced a charge of first-degree intentional homicide while using a dangerous weapon following the stabbing of his nephew at a family gathering in 2002 at the Albanian Community Center in South Milwaukee.

Many of the witnesses for both the prosecution and the defense were members of Ndina’s family. All the potential witnesses were told to remain outside the courtroom until called and not to discuss their testimony with each other. Despite this sequestration order, the court had to stop proceedings to silence loud discussions among family members in the gallery, and some family members may have been entering and leaving the courtroom to convey information to prospective witnesses.

Believing that the family members were violating the spirit of the sequestration order and jeopardizing the integrity of the proceedings, the trial court banned all the family -- except for the defendant’s mother -- from the courtroom. The ban expired after the jury heard all of the testimony.

Ndina’s trial counsel did not object to the order. But in a postconviction action, Ndina accused his lawyer of ineffective assistance for failing to challenge the ban as a violation of his Sixth Amendment right to a public trial. The circuit court agreed with Ndina and ordered a new trial, but the Wisconsin Court of Appeals reversed.

Setting aside an argument over whether Ndina could belatedly challenge the ban after his trial counsel failed to object, the supreme court considered when a court may close proceedings without offending the Sixth Amendment. The court majority opinion authored by Chief Justice Abrahamson distinguished the right to a public trial from the Sixth Amendment’s value as a safeguard against unjust prosecutions. The court applied a two-part test in which it first asked whether the closure implicates the right to a public trial and, if it does, whether the circumstances justify it.

Testing the facts of this case under the first inquiry, the court held that Ndina’s right to a public trial was affected. The court found that the exclusion encompassed too many people and its duration of three days was too long to be dismissed as merely a “trivial” closure.

Turning to the second prong of the test, the court asked four questions:

• Did the court act to protect an overriding interest? The supreme court noted that a sequestration order promotes truthful witness testimony and that the record demonstrated enough incidents of its violation to establish the requisite interest. The justices turned away Ndina’s criticism that the trial court could have done more to investigate whether the order was actually violated, finding that the existing record permitted a reasonable inference of violation.
• Was the court’s order narrowly tailored? Ndina charged that the trial court should have ascertained exactly which family members were defying the sequestration order and so the ban was overly broad. The justices held that the court faced an impossible task of sorting witnesses given the overlapping familial connections of the defendant and the victim with the witnesses. Further, the court noted the order’s timely expiration at the conclusion of the witnesses’ testimony.
• Did the court consider alternatives? Before the supreme court, Ndina suggested several ways the trial court could have devised a more selective ban. The justices noted that Ndina did not offer these ideas to the trial court at the time of the ban and so the trial court cannot be blamed for not considering them. The trial court did sufficiently consider the information that was before it, however.
• Did the court make findings of fact sufficient to support the order? This question was also resolved in favor of the trial court on the strength of the factual findings cited in the earlier inquiries.

Justice Prosser concurred with the majority’s holding that there was no Sixth Amendment violation. But in his separate opinion, joined by Justices Kingsland Ziegler and Gableman, Prosser criticized Ndina’s failure to contemporaneously object at trial to the ban.

The majority had sidestepped this issue, but Prosser said that such a maneuver lead to “an elaborate, not always persuasive analysis of whether the circuit court’s order excluding family members from three days of trial violated the defendant’s Sixth Amendment right to a public trial.”

If defendants can make a timely objection to the violation of a constitutional right, they must do so or forfeit the right to raise it later, he wrote. In this case, Ndina was fully aware of what was going on and could protest. “The only plausible explanation for the defendant’s silence is the manifest reasonableness of the court’s order under the circumstances,” Prosser wrote.