Supreme Court May Hear Case Involving the Constitutional Right to a
By org jforward wisbar 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
“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