Judges: Posner
Filed: Jan. 05, 2017
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-3375 NANCY J. PINNO, Petitioner-Appellant, v. PATTI WACHTENDORF, Warden, Respondent-Appellee. _ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 15 CV 296 — William C. Griesbach, Chief Judge. _ No. 15-3495 TRAVIS SEATON, Petitioner-Appellant, v. JUDY P. SMITH, Warden, Respondent-Appellee. _ Appeal from the United States District Court for the Eastern District of Wisconsin. 2 Nos. 15-337
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-3375 NANCY J. PINNO, Petitioner-Appellant, v. PATTI WACHTENDORF, Warden, Respondent-Appellee. _ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 15 CV 296 — William C. Griesbach, Chief Judge. _ No. 15-3495 TRAVIS SEATON, Petitioner-Appellant, v. JUDY P. SMITH, Warden, Respondent-Appellee. _ Appeal from the United States District Court for the Eastern District of Wisconsin. 2 Nos. 15-3375..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3375
NANCY J. PINNO,
Petitioner‐Appellant,
v.
PATTI WACHTENDORF, Warden,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 15 CV 296 — William C. Griesbach, Chief Judge.
____________________
No. 15‐3495
TRAVIS SEATON,
Petitioner‐Appellant,
v.
JUDY P. SMITH, Warden,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
2 Nos. 15‐3375, ‐3495
No. 14 CV 945 — William C. Griesbach, Chief Judge.
____________________
ARGUED NOVEMBER 29, 2016 — DECIDED JANUARY 5, 2017
____________________
Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
POSNER, Circuit Judge. In Presley v. Georgia, 558 U.S. 209
(2010), the Supreme Court held that the right of a criminal
defendant to a public trial, a right conferred by the Sixth
Amendment, extends to the voir dire. Id. at 213–14. In the
present case both petitioner‐appellants argue that this right
was violated by the decision of the state trial judge (the same
judge in both cases) to forbid members of the public to at‐
tend the voir dire phase of the petitioners’ trials in a Wiscon‐
sin state court that ended in their being convicted.
After the Wisconsin Supreme Court, rejecting the peti‐
tioners’ Sixth Amendment argument, affirmed their convic‐
tions and sentences, they asked the local federal district
court for habeas corpus. Both argued that they were entitled
to a new trial because their Sixth Amendment rights had
been violated. The district judge (the same judge in both ha‐
beas corpus proceedings) rejected their claims, awarding
judgment for the respondents, who are the wardens of the
prisons in which the petitioners are serving the sentences
imposed on them by the state judiciary.
Pinno had been convicted of assisting in the mutilation of
a corpse and interference with police. She had assisted her
son in secretly disposing of the body of his girlfriend, whom
the son had murdered a few weeks earlier. Pinno’s assis‐
tance consisted of transporting the corpse in her car to a
Nos. 15‐3375, ‐3495 3
friend’s house, where her son and a friend of hers burned
the body. They then drilled a hole in the ice on a nearby lake
and dumped the ashes through the hole, making it impossi‐
ble for the police to recover any of the body of the murdered
woman. For these offenses Pinno was sentenced to eight and
a quarter years in prison to be followed by five years of su‐
pervised release.
But that gets us ahead of our story, which is focused on
the trial, indeed the earliest stage of the trial. The trial judge
called for a very large jury pool—a pool of more than 80 pro‐
spective jurors. He wanted to assure that enough seats were
available for all the prospective jurors to be seated, and he
also wanted to prevent members of the public, who would
be seated in the audience section of the courtroom, from in‐
fluencing the jury by remarks or facial expressions. He con‐
sidered those to be dangers because the case, with its grue‐
some and bizarre facts, had attracted a great deal of publici‐
ty.
So before the prospective jurors entered the courtroom
the judge ordered the spectators to leave, and the door to the
courtroom to be locked until all the prospective jurors were
seated. After they were seated the door was unlocked and
members of the public were able to enter, though it’s unclear
how many entered, or could enter since the courtroom was
crowded with prospective jurors and the judge had an‐
nounced beforehand that he “want[ed] no one else in here
during the entire voir dire process until the jury is selected.”
Despite that admonition, since the door to the courtroom
was open during the voir dire some members of the public—
how many we don’t know—may have entered, and stayed
to observe the voir dire.
4 Nos. 15‐3375, ‐3495
An alternative way of handling the crowded‐conditions
problem would have been to accommodate the members of
the public in a different room in the courthouse, where they
could watch the trial on a television screen. But no one sug‐
gested doing that; nor have we been told whether a suitable
room and the necessary equipment existed.
We also don’t know how many, if any, members of the
public were in the courtroom during the voir dire. But we’ll
give Pinno the benefit of the doubt and assume there were
too few to make the voir dire public within the meaning of
the Sixth Amendment’s public‐trial right. Members of the
public, most importantly friends, family, or other actual or
potential supporters of a defendant, may be able from ob‐
serving the voir dire to learn things that may help the de‐
fense—learn for example that members of the jury panel
who end up being selected for the jury are visibly hostile to
the defendant, glare at her, yawn and doze, or that the ques‐
tions asked the prospective jurors by the judge or the prose‐
cutor seem to invite them to regard the defendant as an evil,
criminal person. These insights absorbed by the friends of
the accused may help to strengthen her defense. Conceivably
the presence of a defendant’s supporters may also deter any
impropriety by the prosecutors or judge, but this seems un‐
likely because the prosecutors and judge probably wouldn’t
know whether or which members of the audience were
aligned with the defendant.
But the problem for Pinno is that her lawyers did not ob‐
ject to the public’s limited access to the trial at the voir dire
stage. Pinno calls that ineffective assistance of counsel, a
separate ground for a new trial. But it cannot be presumed,
and has not been shown in Pinno’s case, that the failure of a
Nos. 15‐3375, ‐3495 5
defendant’s lawyers to insist on ample seating space for the
public during voir dire evidenced ineffective assistance prej‐
udicial to the client. It may have been neither ineffective nor
prejudicial, for it might well be in the defendant’s interest not
to have members of the public, as distinct from family mem‐
bers, friends, and other supporters, present for the voir dire.
A trial may attract members of the public because they’re
hostile to rather than supportive of the defendant. That
might have been a serious problem for Pinno, given the gro‐
tesque character of her crime.
The experience of the defendant in our other case, Seaton,
was virtually identical to Pinno’s, though he was convicted
of a different and even more serious crime—first‐degree
reckless homicide: he had punched a person, and the person
had died later that day as a result of the injury caused by the
punch and the victim’s resulting fall to the ground. Though
Seaton’s crime was less grotesque than Pinno’s, it was homi‐
cide and would hardly have endeared him to the members
of the public who attended the trial. Indeed, whereas he had
killed a person, Pinno had merely assisted in the destruction
of a corpse.
Whether the petitioners benefited or were harmed by the
exclusion of spectators from the voir dire phase of the trial,
their lawyers forfeited their clients’ right to an audience by
failing to object to the judge’s ruling excluding the audience
in whole or part. So the Wisconsin Supreme Court deter‐
mined, and we are obliged to defer to that determination be‐
cause it did not result in a decision that was “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States,” or that was “based on an unreasonable de‐
6 Nos. 15‐3375, ‐3495
termination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d).
The petitioners’ current lawyers, however, argue that
lawyers can’t forfeit a client’s Sixth Amendment’s right to a
public trial (including a public voir dire stage of the trial);
the right can only be waived—that is, there must be an af‐
firmative statement either by the defendants themselves or
by their lawyers acting under instruction from the clients
that they do not want members of the public to be present in
the courtroom, whether during just the voir dire or at other
stages of the trial as well. To waive the right the clients
would have to tell their lawyers to tell the judge that their
clients were waiving in whole or part their public‐trial right.
But in the two cases before us the clients evidently agreed
with their lawyers not to seek the admission of an audience
during the voir dire stage. Nor is such agreement surprising,
for as we said it’s entirely plausible that a criminal defend‐
ant will be hurt rather than helped by having the public pre‐
sent at any stage of his or her trial.
The petitioners cite our opinion in Walton v. Briley, 361
F.3d 431, 433 (7th Cir. 2004), where we said that a failure by
the defendant’s (Walton’s) lawyer to object to barring the
public from attending the trial did not constitute a waiver by
Walton of his Sixth Amendment right to a public trial. But
that can’t save the petitioners in the present case. For section
2254(d) authorizes a federal court to grant a state prisoner’s
habeas corpus petition only if the state court’s decision of
which the prisoner is complaining was contrary to U.S. Su‐
preme Court precedent; it is not enough that the state court’s
decision is contrary to one of our decisions.
Nos. 15‐3375, ‐3495 7
Walton, moreover, was a special case; and judicial opin‐
ions must be interpreted in context. In an effort to expedite
Walton’s trial the trial judge had conducted the first two trial
sessions, at which most of the prosecution’s evidence was
presented (so they were critical stages of the trial), late in the
evening—so late that the courthouse was locked. The conse‐
quence was that members of the public, among them Wal‐
ton’s fiancée, were barred from attending the sessions. The
judge had made up his mind about an audience in the court‐
room: there wasn’t going to be one, and so an objection to
the judge’s decision wasn’t going to do Walton any good in
his trial. And thus his Sixth Amendment right had been vio‐
lated.
Neither of the present cases is like Waller v. Georgia, 467
U.S. 39, 48 (1984), either, where the prosecutor asked for ex‐
clusion of the public from a portion of the trial proceedings
and the defendant’s counsel objected. There is no evidence
in either case before us that anyone objected to the initial ex‐
clusion of the public from the courtroom to enable the entire
jury panel to be seated. Given the number of prospective ju‐
rors to be seated the trial judge may have had no option but
to exclude the public until all the panel members were seat‐
ed. Maybe he didn’t need so many prospective jurors for the
voir dire, but that is not argued.
And so the judgments of the district court in these two
cases must be affirmed. But we do wish to comment briefly
on the length of the parties’ briefs. They total 250 pages, of
which 31 pages consist of the district judge’s opinion (one
opinion for the two cases). The other 219 pages are the par‐
ties’ arguments. There is no justification for such verbosity.
These two consolidated cases are simple and straightfor‐
8 Nos. 15‐3375, ‐3495
ward. Our opinion is only seven pages long; and while such
compression is not to be expected of the parties, they should
have needed, and used, no more than 100 pages at the most
to present their claims fully.
AFFIRMED