DAVID T. PROSSER, J.
¶ 1 These cases are before the court on certification by the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2011-12).
¶ 2 Fond du Lac County Circuit Judge Richard J. Nuss (Judge Nuss) presided over jury trials in Pinno and Seaton, including the voir dire proceedings. In both voir dire proceedings, the judge said he wanted the public to leave the courtroom to make room for large jury panels. Neither defendant objected, and both defendants were later found guilty by juries in trials that were completely open after the juries were selected.
¶ 3 The defendants, Travis J. Seaton (Seaton) and Nancy J. Pinno (Pinno), pursued postconviction relief, and in both cases Judge Nuss found that the courtroom had never actually been closed to all members of the public not part of the jury panel. In Seaton's Wis. Stat. § 974.06 motion, filed almost four years after the guilty verdict, Seaton alleged that a second, unknown closure took place in his case when someone stood in front of the courtroom doors to prevent the public from reentering the courtroom. Judge Nuss denied all postconviction motions, and these appeals followed.
¶ 4 Seaton and Pinno argue that a violation of the public trial right is structural error, and the right is not forfeited by their failure to make timely objections. Both defendants argue in the alternative that they received ineffective assistance of counsel because their attorneys failed to timely object to the exclusion of the public from voir dire. In addition, Seaton argues that he was denied his right to an impartial judge when Judge Nuss failed to grant Seaton's recusal motion.
¶ 5 We reach the following conclusions.
¶ 6 First, the Sixth Amendment right to a public trial extends to voir dire. Presley v. Georgia, 558 U.S. 209, 213, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010). A judge's decision to "close" or limit public access to a courtroom in a criminal case requires the court to go through an analysis on the record in which the court considers overriding interests and reasonable alternatives as set out in Waller v. Georgia, 467 U.S. 39, 45, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). The court must make specific findings on the record to support the exclusion of the public and must narrowly tailor the closure. Id.
¶ 7 Second, the Sixth Amendment right to a public trial may be asserted by the defendant at any time during a trial. A defendant who fails to object to a judicial
¶ 8 Third, the records in these cases are clear that neither Seaton nor Pinno objected to the alleged courtroom closure. In Seaton's case, the allegation that courtroom personnel prevented the public from reentering the courtroom does not alter the analysis because Seaton was aware of the initial exclusion. If courtroom personnel did prevent the public from coming back into the courtroom, that prevention was part of the initial exclusion. Therefore, Seaton and Pinno both forfeited their rights to a public trial.
¶ 9 Fourth, defendants must demonstrate prejudice to prove ineffective assistance of counsel when counsel fails to object to the closure of the courtroom. The categorization of the denial of the public trial right as structural error does not create a presumption of prejudice in ineffective assistance of counsel claims. Seaton and Pinno have not proven that they were prejudiced by their attorneys' failure to object to the exclusion of the public from the courtroom. Therefore, both defendants have failed to prove that their counsel was ineffective.
¶ 10 Finally, Seaton was not denied his right to an impartial judge. Judge Nuss's communications show that he was cognizant of his responsibilities under the Judicial Code of Conduct, and he did not appear to be biased. We presume that judges are impartial, and Seaton has not offered sufficient evidence to rebut that presumption. Therefore, Judge Nuss properly denied the recusal motion.
¶ 11 Travis J. Seaton was charged with first-degree reckless homicide as a repeater contrary to Wis. Stat. §§ 940.02(1) and 939.62(1)(c), on November 17, 2006. The charges stemmed from an incident that occurred in the early morning hours of November 15 in the City of Fond du Lac. Seaton was involved in an altercation with Keith Rockweit (Rockweit) outside a bar. Seaton threw a single punch that caused Rockweit to fall down and hit his head on the concrete pavement. Seaton was arrested a few minutes later about two blocks from the bar. Rockweit was taken to a hospital and treated for cerebral hemorrhaging and a broken jaw, but he died later that day.
¶ 12 Seaton engaged Attorneys Gerald P. Boyle and K. Richard Wells to represent him at trial, which was scheduled for March 24, 2008. Attorney Wells handled voir dire for the defendant.
¶ 13 Before voir dire began, Judge Nuss attempted to make room for the large incoming jury panel, indicating that he might clear the courtroom:
¶ 14 No one objected.
¶ 15 The jury panel entered the courtroom at 9:40 a.m. Before the jury entered, the court disposed of several evidentiary issues and made the following concluding observation:
¶ 16 The record shows that the court actually seated 91 potential jurors, 14 of whom were ultimately selected for the jury. After the jurors were selected the court asked: "Does either attorney have any motions to make regarding the jury selection process?" Both the prosecutor, Assistant Attorney General Thomas L. Storm, and defense counsel, Richard Wells, specifically answered, "No, Your Honor." Then the jury was sworn and excused for lunch. Again the court asked counsel: "Counsel have anything for the Court?" Attorney Wells responded, "No."
¶ 17 On March 28, 2008, the jury found Seaton guilty of first-degree reckless homicide as a repeater, and on August 6, 2008, he was sentenced to 15 years in prison and 15 years of extended supervision. Seaton moved for an order granting a mistrial,
¶ 18 On February 16, 2009, Seaton filed a postconviction motion pursuant to Wis. Stat. § 809.30. In that motion, Seaton argued that his sentence was too harsh, reasserted his argument that one of the jurors was biased, and argued that "other acts evidence" was used improperly. The circuit court held a hearing on the motion on April 2, 2009 and denied Seaton's motion in its entirety on April 13, 2009. On April 28, 2009, Seaton filed a notice of appeal. The court of appeals affirmed the circuit court on July 14, 2010. Seaton did not raise his present Sixth Amendment and ineffective assistance of counsel claims in the court of
¶ 19 On January 4, 2012, Seaton filed a Wis. Stat. § 974.06
¶ 20 Kirkpatrick wrote Judge Nuss to request an interview, but Judge Nuss declined that request in a letter dated December 29, 2011.
¶ 21 Also on December 28, Seaton's new attorney, Amelia Bizzaro (Attorney Bizzaro), filed an open records request with the Fond du Lac County Corporation Counsel for the names and contact information of the bailiffs assigned to Judge Nuss's courtroom on March 24, 2008. The Fond du Lac County Clerk of Courts granted the request in part on December 29, 2011, and supplied the names of the bailiffs but did not provide their contact information.
¶ 22 On January 4, 2012, the same day he filed the § 974.06 motion, Seaton also filed a motion requesting that Judge Nuss recuse himself. The circuit court held a hearing, on April 13, 2012, for argument on the § 974.06 and recusal motions. The hearing was limited to argument; it was not an evidentiary hearing.
¶ 23 At the hearing, Judge Nuss explained:
He said that he "wanted to be very respectful of the seating space limitation, preventing unnecessary nonjurors from intermingling with and compromising the jury panel, protection of the jurors to maintain that impartiality and really most importantly to ensure and promote the protection of the defendant's right to a fair and impartial jury." Judge Nuss also explained:
(Emphasis added.)
¶ 24 At the hearing, Judge Nuss denied the request for an evidentiary hearing as well as the motions for recusal and postconviction relief, and he issued a written
¶ 25 Judge Nuss presided at a second, unrelated jury trial approximately 21 months after the Seaton verdict. The case involved Nancy J. Pinno who was accused of assisting her biological son, Brandon Mueller (Mueller), in disposing of the body of his girlfriend, whom Mueller had killed a few weeks earlier. Pinno purportedly transported the woman's body in her car to the house of a friend. There, Mueller and Pinno's friend burned the body before they dumped the woman's ashes into a hole they drilled in the ice on Lake Winnebago.
¶ 26 Unsurprisingly, the case drew wide attention as it preceded Mueller's homicide and corpse mutilation trial. Pinno's attorney filed a motion on November 10, 2009, to change the venue or to bring in jurors from another venue because of the high level of publicity that the case had received.
¶ 27 Pinno was represented by Attorney Catherine Block (Attorney Block). In the first hour of the trial, before voir dire, Judge Nuss made several comments about excusing non-jurors during voir dire.
¶ 28 Before the jury came in, Judge Nuss said:
No one objected to the order closing voir dire. After the recess and before the jury came in, Judge Nuss gave counsel an opportunity to raise any concerns when he asked, "Any other matters that require judicial intervention before we have the jury brought in?" District Attorney Daniel
¶ 29 After the jury was selected, Judge Nuss asked counsel: "Does either attorney have any motions to make regarding the jury selection process?" Both District Attorney Kaminsky and Attorney Block replied: "No, Your Honor."
¶ 30 On December 18, 2009, the jury found Pinno guilty of mutilating a corpse as a party to the crime and of obstructing an officer. She was sentenced to seven and a half years of confinement and five years of extended supervision for the mutilating a corpse count, and nine months of confinement to be served consecutively for obstructing an officer.
¶ 31 At the evidentiary hearing for the postconviction motion, Judge Nuss explained:
Judge Nuss put his clerk, who was sitting in the courtroom during voir dire, on the stand, and she stated that the courtroom "was never locked." The clerk also said that "there [were] people that were in the courtroom and that were allowed to come in and out of the courtroom" during the voir dire process, but she could not remember who came in and could not describe them.
¶ 32 Attorney Block also took the stand during the motion hearing. Attorney Block testified that she did not object to the court's exclusion of the public because "[t]he motion or the order of the Court or the statement of the Court was never readdressed [after they took a break] and therefore I never brought it up again or objected to it as I didn't believe it had taken place." Attorney Block said that because the court did not try to close the courtroom after the break, she felt no need to address it. In addition, Attorney Block thought that the presence of the public could potentially negatively affect voir dire and noted "that the media coverage up to the trial was relatively inflammatory in nature." Pinno's postconviction counsel said, "I would have to agree to some extent with [the District Attorney] that you can't fault Ms. Block too much for not interrupting the Court in the middle of the Court's Statement.... That's not clearly the strongest prong of our motion in this case."
¶ 33 After hearing all the evidence, Judge Nuss denied Pinno's motion orally and explained his reasoning:
The court made it clear that it wanted to ensure that the jury pool was not tainted in any way and noted that "what is of importance also is the publicity that this case had gotten...."
¶ 34 The circuit court issued a written order denying Pinno's postconviction motion on October 3, 2011. Pinno filed a notice of appeal on October 14, 2011.
¶ 35 As noted, these cases came to this court on certification, which we accepted on February 25, 2013.
¶ 36 This court applies constitutional principles to historical facts to determine whether a criminal defendant was denied his Sixth Amendment right to a public trial. State v. Ndina, 2009 WI 21, ¶ 45, 315 Wis.2d 653, 761 N.W.2d 612. We uphold the circuit court's findings of historical fact unless they are clearly erroneous. Id. "The appellate court determines the application of constitutional principles to those evidentiary or historical facts independently of the circuit court and court of appeals but benefiting from those courts' analyses." Id. (footnote omitted).
¶ 37 Both cases raise ineffective assistance of counsel claims. "Whether counsel was ineffective is a mixed question of fact and law." State v. Balliette, 2011 WI 79, ¶ 19, 336 Wis.2d 358, 805 N.W.2d 334 (citation omitted). We will uphold the circuit court's findings of fact unless they are clearly erroneous, but ultimately, whether counsel provided ineffective assistance is a question of law subject to de novo review. Id. (citations omitted).
¶ 38 Seaton argues that he is entitled to an evidentiary hearing based on his Wis. Stat. § 974.06 motion. Whether a postconviction motion is sufficient to require an evidentiary hearing is a question of law that an appellate court reviews de novo. Id., ¶ 18. If the motion sets forth facts that, if true, would entitle the defendant to relief, normally the circuit court must hold an evidentiary hearing. Id. "However, if the motion does not raise facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the circuit court has the discretion to grant or deny a hearing." State v. Allen, 2004 WI 106, ¶ 9, 274 Wis.2d 568, 682 N.W.2d 433 (citations omitted).
¶ 39 Finally, Seaton argues that Judge Nuss should have recused himself. Whether a judge is required to recuse himself is a question of law subject to de novo review. State v. Walberg, 109 Wis.2d 96, 104-05, 325 N.W.2d 687 (1982); State v. Goodson, 2009 WI App 107, ¶ 7, 320 Wis.2d 166, 771 N.W.2d 385.
¶ 40 The Sixth Amendment to the United States Constitution provides an accused the right to a public trial:
U.S. Cont. amend. VI. The Supreme Court has determined that the public trial right is applicable to the states based on its incorporation into the Fourteenth Amendment. See Presley, 558 U.S. at 211-12, 130 S.Ct. 721 (citing In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948)).
¶ 41 The right to a public trial "has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution." In re Oliver, 333 U.S. at 270, 68 S.Ct. 499. An open courtroom "is an effective restraint on possible abuse of judicial power" and a deterrent to arbitrary decision-making. Id. (footnote omitted).
¶ 42 This court indicated in Ndina that the Sixth Amendment right to a public trial advances four core values: "(1) to ensure a fair trial; (2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions; (3) to encourage witnesses to come forward; and (4) to discourage perjury." Ndina, 315 Wis.2d 653, ¶ 49, 761 N.W.2d 612 (quoting Peterson v. Williams, 85 F.3d 39, 43 (2d Cir.1996) (citing Waller, 467 U.S. at 46-47, 104 S.Ct. 2210)). However, the Ndina court noted that "[t]hese four values do not necessarily represent an exhaustive list of the values served by the Sixth Amendment right to a public trial." Id., ¶ 49 n. 25 (citing Peterson, 85 F.3d at 43 n. 5).
¶ 43 The right to a public trial includes suppression hearings, Waller, 467 U.S. 39, 104 S.Ct. 2210, and voir dire,
¶ 44 Acknowledging the potential breadth of the right to a public trial, the fact remains that the right is not absolute. Ndina, 315 Wis.2d 653, ¶ 44, 761 N.W.2d 612. The Supreme Court "has made clear that the right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information." Waller, 467 U.S. at 45, 104 S.Ct. 2210. "There are no doubt circumstances where a judge could conclude that threats of improper communications with jurors or safety concerns are concrete enough to warrant closing voir dire." Presley, 558 U.S. at 215, 130 S.Ct. 721. "[T]he public-trial guarantee is not violated if an individual member of the public cannot gain admittance to a courtroom because there are no available seats. The guarantee will already have been met, for the `public' will be present in the form of those persons who did gain admission." Estes v. Texas, 381 U.S. 532, 588-89, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (Harlan, J., concurring).
¶ 45 To close a courtroom proceeding to the public in a criminal case without violating a defendant's public trial right, the circuit court must ensure that the following four requirements are satisfied: (1) the party advocating for closure "must advance an overriding interest that is likely to be prejudiced"; (2) the closure must be narrowly tailored to protect the overriding interest; (3) the judge must consider reasonable alternatives to excluding the public; and (4) the judge must make specific findings to support the exclusion of the public so that a reviewing court may assess whether the courtroom was properly closed. Waller, 467 U.S. at 45, 48, 104 S.Ct. 2210.
¶ 46 In addition to qualifying the denial of the public trial right as described, the Waller Court also determined that "the remedy should be appropriate to the violation" to prevent defendants from taking advantage of the error. See id. at 50, 104 S.Ct. 2210. In Waller, the trial court violated the defendant's right to a public trial when it excluded the public from a suppression hearing over a period of seven days. Id. at 41-43, 104 S.Ct. 2210. The Court ordered a new suppression hearing rather than a new trial because if a second suppression hearing ended in the same result as the first, "a new trial presumably would be a windfall for the defendant, and not in the public interest." Id. at 50, 104 S.Ct. 2210 (citations omitted). Thus, even in the event of an improper courtroom closure, courts must carefully fashion a remedy to avoid granting a "windfall" to an opportunistic defendant.
¶ 47 Because the right to a public trial is not absolute, excluding the public from the courtroom will not always be error. When deprivation of the public trial right is an error, however, the Supreme Court has said that the error is structural — that it defies harmless error analysis. Thus, it is important to consider how excluding the public from voir dire fits within the framework of structural error.
¶ 48 Both Pinno and Seaton contend that because violation of an accused's public trial right constitutes "structural error," the right cannot be forfeited — it must be waived. Consequently, they argue, any violation of the public trial right must be
¶ 49 Although "most constitutional errors can be harmless," there are a very limited number of structural errors that require automatic reversal. Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (citation omitted). Structural errors are different from regular trial errors because they "are structural defects in the constitution of the trial mechanism, which defy analysis by `harmless-error' standards." Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Structural defects affect "[t]he entire conduct of the trial from beginning to end." Id. An error also may be structural because of the difficulty of determining how the error affected the trial. United States v. Gonzalez-Lopez, 548 U.S. 140, 149 n. 4, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006).
¶ 50 The limited class of structural errors include: complete denial of the right to counsel,
¶ 51 Although the Supreme Court has cited Waller in saying that the denial of the public trial right is structural error,
¶ 52 The fact that Waller says the public trial right is not absolute and cautions that
¶ 53 In any event, if the exclusions of the public during the voir dire proceedings in Pinno and Seaton were structural errors, that does not end the analysis. The Supreme Court's decision regarding the closure of voir dire in Presley provides a helpful factual comparison. In Presley, the judge told the defendant's uncle, who was the lone courtroom observer, that he had to leave the courtroom for the duration of voir dire. Id. at 210, 130 S.Ct. 721. The defendant's attorney objected to the judge's exclusion of the defendant's uncle, but the judge explained that the uncle could not "intermingle" with the jurors and that he could come back after voir dire. Id. The defendant moved for a new trial and offered evidence to show that the entire jury panel could fit in the jury box and on one side of the courtroom, leaving the other side open for the public. Id. at 210-11, 130 S.Ct. 721. The exclusion of the public in Presley was perhaps exacerbated by the fact that "[n]othing in the record show[ed] that the trial court could not have accommodated the public at Presley's trial." Id. at 215, 130 S.Ct. 721.
¶ 54 While there are similarities among Presley and the two cases before us, there is one crucial difference. In Presley, the defendant immediately objected to the closure. Id. at 210, 130 S.Ct. 721. Even granting that the violation of the right to a public trial is structural error, the Supreme Court has never said that the structural nature of that error exempts the defendant from an obligation to object to a violation. See Freytag v. Comm'r, 501 U.S. 868, 893, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J., concurring) (expressing concern that the Court failed to determine whether a structural right may be forfeited by failure to object and opining that "structural constitutional claims[] have no special entitlement to review."). Freytag involved a different kind of structural defect — an alleged violation of the Appointments Clause and separation of powers — but Justice Scalia's analysis is persuasive as it pertains to the type of error in Pinno and Seaton. Justice Scalia commented:
Id. at 895-96, 111 S.Ct. 2631. (citations omitted).
¶ 55 To decide this case, we must turn now to whether the right to a public trial may be forfeited by the defendant's failure to object to a courtroom closure.
¶ 56 We have recognized two distinct ways in which a defendant may give up his rights: waiver and forfeiture. "Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right." Ndina, 315 Wis.2d 653, ¶ 29, 761 N.W.2d 612 (quoting
¶ 57 In contrast, the waiver rule applies to rights that "are so important to a fair trial that courts have stated that the right is not lost unless the defendant knowingly relinquishes the right." Id., ¶ 31. To decide whether a forfeiture or waiver analysis is appropriate, "we look to the constitutional or statutory importance of the right, balanced against the procedural efficiency in requiring immediate final determination of the right." State v. Soto, 2012 WI 93, ¶ 38, 343 Wis.2d 43, 817 N.W.2d 848. Rights that must be waived if they are to be lost include the right to assistance of counsel, the right to refrain from self-incrimination, the right to trial by jury, and the right of the defendant to be in the same courtroom as the presiding judge. Id., ¶¶ 37, 40; see State v. Huebner, 2000 WI 59, ¶ 14, 235 Wis.2d 486, 611 N.W.2d 727. This court has not yet determined whether the right to a public trial is subject to a waiver or forfeiture analysis; courts are divided on this issue. Ndina, 315 Wis.2d 653, ¶ 35, 761 N.W.2d 612. We conclude that a criminal defendant may forfeit his right to a public trial when he knows of a court's order to exclude the public from the courtroom but fails to object.
¶ 58 We can think of at least four reasons to support this conclusion.
¶ 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. Juvenile proceedings are generally closed to the public, Wis. Stat. § 48.299, and many criminal hearings or even trials have no spectators to observe the proceedings. The presence of the public at a trial serves as a deterrent against misconduct or unfairness in the trial, but the absence of the public does not automatically lead to misconduct or unfairness or any other circumstance prejudicial to the defendant.
¶ 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 factors. The public trial right is not absolute. If a right is so important to a fair trial that the right cannot be lost unless the defendant intentionally waives it, then the right cannot be taken away by the court solely to advance another party's interests.
¶ 61 Third, the procedural efficiency in requiring objections to the denial of the public trial right favors a forfeiture analysis. See Soto, 343 Wis.2d 43, ¶¶ 36-38, 817 N.W.2d 848. 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. For his inaction, the defendant could receive a fair trial as well as an automatic reversal if he did not like the outcome. In such a scenario,
¶ 62 Fourth, using a forfeiture analysis in this context is supported by language in both Waller and Presley. The Waller Court concluded, "In sum, we hold that under the Sixth Amendment any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press-Enterprise and its predecessors." Waller, 467 U.S. at 47, 104 S.Ct. 2210 (emphasis added) (footnote omitted). Similarly, Presley said that "the accused does have a right to insist that the voir dire of the jurors be public...." Presley, 558 U.S. at 213, 130 S.Ct. 721 (first emphasis added). 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.
¶ 63 Contrary to the contentions of Pinno and Seaton, the structural nature of the error in denying the right to a public trial does not command a waiver analysis. The Supreme Court has implied in dicta that a defendant may forfeit his right to a public trial. See Peretz v. United States, 501 U.S. 923, 936, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991) (citing Levine v. United States, 362 U.S. 610, 619, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960)), for the proposition that a defendant "waives" his right to a public trial by failing to object to courtroom closure. In Levine, the Court analyzed under the Due Process Clause the closure of the courtroom during a grand jury proceeding. Levine, 362 U.S. at 616, 80 S.Ct. 1038. The Court said:
Id. at 619-20, 80 S.Ct. 1038. Although Levine was not decided on Sixth Amendment grounds, we find its reasoning persuasive here and decline to allow defendants who failed to object to the closure of a courtroom to raise that issue for the first time after the trial is over.
¶ 64 Chronologically, Seaton's case was tried first, but Seaton's claim that his Sixth Amendment right to a public trial was violated did not come until nearly four years after the jury found him guilty.
¶ 65 Seaton's argument that Judge Nuss's order and the bailiffs' blocking of the courtroom doors were two separate violations of his public trial right is unpersuasive. Seaton had an opportunity to object to the closure of the courtroom when Judge Nuss ordered the public to leave, and he did not take that opportunity. The bailiffs' actions were part of that same closure. This would be a different case if Judge Nuss had made no order closing the courtroom, and bailiffs, acting on their own and without notifying anyone in the courtroom, had prevented the public from entering. A defendant must have an opportunity to object to the closure if he is to forfeit his right to a public trial. See Ndina, 315 Wis.2d 653, ¶ 135, 761 N.W.2d 612 (Prosser, J., concurring) (stating that a defendant must "enter a timely objection to a violation of the right [to a public trial] unless the defendant is not in a position to do so"). In this case, Seaton and his three attorneys were aware that the judge made an order excluding the public, and no one objected. Courtroom personnel did not create a separate closure if they acted to effect the court's order.
¶ 66 An evidentiary hearing is normally required if the § 974.06 motion alleges "sufficient facts that, if true, show that the defendant is entitled to relief." Balliette, 336 Wis.2d 358, ¶ 18, 805 N.W.2d 334 (citation omitted). Nothing in Seaton's § 974.06 motion suggests that he objected to the courtroom closure. Therefore, Seaton forfeited his right to a public voir dire, and the circuit court did not erroneously exercise its discretion in denying the § 974.06 motion without a hearing.
¶ 67 In Pinno's trial, Judge Nuss said, "[O]nce we start voir dire there won't be anybody coming in and out of here until after the jury is selected." No one objected to Judge Nuss's statement. Twenty-five pages later in the transcript, Judge
¶ 68 Pinno argued in a Wis. Stat. § 974.02 motion after trial that her right to a public trial was denied, and Judge Nuss held an evidentiary hearing. At that hearing, Judge Nuss's clerk at the time said that the courtroom was not locked and that people came in and out during voir dire. Pinno's trial counsel said that because the judge did not address the issue again when they all came back from break, she did not feel the need to address it. After hearing the evidence, Judge Nuss determined that the courtroom was never closed and denied the postconviction motion. Based on the evidence at the hearing, Judge Nuss's finding that the courtroom was never closed is not clearly erroneous. Even if the finding were erroneous, Pinno failed to object to any closure that took place. Therefore, even if the courtroom was closed, Pinno forfeited her Sixth Amendment right to a public trial.
¶ 69 Despite our conclusion that Seaton and Pinno forfeited their rights to a public trial by failing to object to the exclusion of some members of the public, we pause to reflect on the circuit court's handling of voir dire. We do not doubt that the court had good intentions, but the court's good intentions cannot hide its seriously mistaken approach in the two cases.
¶ 70 The Sixth Amendment affords an accused criminal defendant the right to a public trial. This right has deep historical roots. The news media and the public have an overlapping right that is guaranteed by the First Amendment. These rights are buttressed by the Wisconsin Constitution and state statutes. They may not be diminished without very careful consideration that is detailed on the record.
¶ 71 In these jury cases, the court was faced with large jury panels that would take up most of the seating space in the courtroom. It was not unreasonable for the court to try to accommodate the seating and comfort of the jury panel. It was not unreasonable to try to avoid any undue influence on the panel or disruption of the jury selection process. It was not unreasonable to think about a defendant's interests in a case with sensational pretrial publicity. What is troublesome here is the court's failure to appreciate that it could not act alone in addressing these concerns.
¶ 72 When a party moves to close a courtroom in whole or in part, the court is accustomed to requiring the moving party to explain and justify the "overriding interest" that warrants this "rare" action by the court. The movant has the burden of showing why its identified interest will be prejudiced by a public trial. The closure
¶ 73 These requirements are not dispensed with when the court itself initiates the closure. The court must consult with the parties, one of whom has a constitutional right to a public trial and one of whom has the dual responsibility of promoting the public interest in openness and protecting the record to avoid reversible error.
¶ 74 Here the court did not protect the record. The transcript suggests that the court made up its mind to close the courtroom without explaining the situation fully or soliciting the input of affected interests. This flawed approach precluded a "tailored" solution or an alternative to closure or negotiated accommodations. This approach discouraged collaboration. This approach did not result in satisfactory findings for the record. The court's approach may have created disgruntlement on the part of people visiting the court, and it certainly fostered these appeals.
¶ 75 When a court intends to close the courtroom to the public for any reason, it should go through the four Waller factors. Possible alternatives to closure include "reserving one or more rows for the public; dividing the jury venire panel to reduce courtroom congestion; or instructing prospective jurors not to engage or interact with audience members." See Presley, 558 U.S. at 215, 130 S.Ct. 721.
¶ 76 Judges should also be cognizant of Wis. Stat. § 757.14 and should follow this court's guidance:
State ex rel. La Crosse Tribune v. Circuit Court for La Crosse Cnty., 115 Wis.2d 220, 236-37, 340 N.W.2d 460 (1983). "We agree with Professor LaFave that `[g]enerally, the best course of action is for the trial judge to hold an evidentiary hearing on the issue of closure' when an order of the trial court implicates the Sixth Amendment right to a public trial." Ndina, 315 Wis.2d 653, ¶ 63, 761 N.W.2d 612 (brackets in original) (quoting 6 Wayne R. LaFave et al., Criminal Procedure § 24.1(b), at 304 (3d ed.2007)).
¶ 77 Whenever a judge wants to close the courtroom, the judge should engage in a discussion with defense counsel and should consider the concerns and preferences of the defendant. The judge should ask if the defendant has any family or friends in attendance. If there is a victim, the same question should be asked of the state regarding the victim and the victim's family. The judge should make an effort to seat the victim and the victim's family away from the defendant's family. The judge should make an effort to seat members of the public away from the jury panel and should instruct the public and the potential jurors that they are not to
¶ 78 Fairness is essential to our system of justice. This fairness should be a pride of every court. It is hard to demonstrate this fairness if the courtroom is closed — if citizens who have done nothing wrong are shooed away. A judge should respect the importance of the duty to facilitate justice at every stage of the proceeding and should exercise great care that no rights are violated.
¶ 79 "Both the prosecutor and defense counsel should bring the Sixth Amendment right to a public trial to the circuit court's attention and should assist the circuit court in crafting a closure order consistent with the Sixth Amendment's `basic tenet of our judicial system.'" Ndina, 315 Wis.2d 653, ¶ 85, 761 N.W.2d 612 (quoting State v. Vanness, 2007 WI App 195, ¶ 8, 304 Wis.2d 692, 738 N.W.2d 154).
¶ 80 Adopting the forfeiture rule here does not give judges carte blanche to order courtroom closures when defendants are inattentive. Rights that can be forfeited are still rights, and judges and attorneys should strive to conduct trials in the fairest manner possible. We hope that this opinion clarifies the proper procedure for closing a trial proceeding so that judges may act to protect the rights of defendants and the public and to facilitate the orderly administration of justice.
¶ 81 Having determined that Pinno and Seaton forfeited their rights to a public trial, we turn now to the claims of ineffective assistance of counsel. To raise a claim of ineffective assistance of counsel, "a defendant must show both (1) that his counsel's representation was deficient and (2) that this deficiency prejudiced him so that there is a `probability sufficient to undermine the confidence in the outcome' of the case." State v. Erickson, 227 Wis.2d 758, 768, 596 N.W.2d 749 (1999) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Johnson, 153 Wis.2d 121, 127, 449 N.W.2d 845 (1990)).
¶ 82 To demonstrate deficient performance, a defendant must show that "counsel's representation fell below an objective standard of reasonableness." State v. Franklin, 2001 WI 104, ¶ 13, 245 Wis.2d 582, 629 N.W.2d 289 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). To demonstrate prejudice, the defendant must show that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id., ¶ 14 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). Thus, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052) (brackets in original). In conducting this analysis, courts should presume that the attorney has "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690, 104 S.Ct. 2052.
¶ 83 Pinno and Seaton both argue that because the right to a public trial is structural, prejudice must be presumed when counsel fails to object to a closure. However, the circumstances in which prejudice is presumed are rare. We presume prejudice: (1) "when the effective assistance of counsel has been eviscerated by forces unrelated to the actual performance of the defendant's attorney," such as when counsel is denied entirely during critical stages in judicial proceedings; (2) when
¶ 84 This court also has presumed prejudice when defense counsel failed to object when the prosecutor materially breached a plea agreement with respect to sentencing by recommending prison time instead of remaining silent as agreed. State v. Smith, 207 Wis.2d 258, 280-81, 558 N.W.2d 379 (1997). In deciding to presume prejudice, we noted that "[p]art of the rationale behind presuming prejudice is the difficulty in measuring the harm caused by the error or the ineffective assistance." Id. at 280, 558 N.W.2d 379 (citations omitted). However, Smith was different from the present case because when a prosecutor agrees not to make a sentence recommendation and breaches that agreement, the breach "is a `manifest injustice' and always results in prejudice to the defendant." Id. at 281, 558 N.W.2d 379 (footnote omitted) (citation omitted). We cannot say the same for a denial of the public trial right during voir dire, which does not necessarily implicate manifest injustice concerns that exist in the plea context.
¶ 85 We declined to extend the presumption of prejudice in Smith to a failure to object to a six-person jury in a misdemeanor case. See Franklin, 245 Wis.2d 582, ¶ 10, 629 N.W.2d 289. Even though it is difficult to assess the harm from a six-person jury as opposed to a twelve-person jury, we determined that "six-person juries do not invoke interests of justice factors which require an automatic finding of prejudice." Id., ¶ 23. Moreover, when the case does not fall into one of the three categories in which prejudice is presumed, there is prejudice only when counsel's errors deprive the defendant of a fair trial. Id., ¶ 24. Because the denial of a twelve-person jury does not fit within the three categories in which we presume prejudice, no prejudice was presumed. Id., ¶¶ 25-26. We reach the same conclusion regarding the denial of the right to a public voir dire.
¶ 86 Given that prejudice is rarely presumed, an error does not automatically receive a presumption of prejudice merely because it is deemed structural.
¶ 87 Seaton argues in his Wis. Stat. § 974.06 postconviction motion that his trial counsel was ineffective. However, Seaton's motion does not allege sufficient facts to entitle him to an evidentiary hearing. Seaton makes the conclusory argument that "[a]ny failure to object was likely based on oversight or inattention, rather than any reasoned defense strategy and thus constitutes deficient performance." That argument hardly overcomes the presumption of adequate representation. Moreover, as the State points out, counsel had a number of reasons for not objecting. Seaton's attorneys might have concluded that it would be better not to have the public sitting with jurors during voir dire for a homicide trial.
¶ 88 Even if Seaton's counsel had been deficient for failing to object, Seaton has not demonstrated that he was prejudiced by his counsel's alleged deficiency. In his § 974.06 motion, Seaton merely alleged that his counsel's failure to object deprived him of his right to a public trial and that the denial of the right to a public trial is not subject to a harmless error analysis. However, it is not enough to say that counsel failed to object to the denial of a right that would lead to structural error. The defendant must either demonstrate that the error falls within the rare circumstances in which we presume prejudice or he must prove that there was actual prejudice. Seaton has done neither. Thus, Seaton has failed to allege sufficient facts in his § 974.06 motion that, if true, would entitle him to relief, and the circuit court
¶ 89 Pinno argues that because the judge's exclusion of the public deprived her of her Sixth Amendment right, her counsel's failure to object was unreasonable and therefore constituted deficient performance. She asserts that the failure to object was likely due to oversight or inattention. However, these arguments find little support.
¶ 90 At the postconviction motion hearing, Attorney Block said that she did not object to the exclusion of the public for several reasons. She said that the court made that order before the court took a break, and there was no indication that the courtroom was closed when they came back, so there was no need to object. Attorney Block also said that public voir dire could have potentially had a negative effect on the jury, probably because of the inflammatory nature of the publicity surrounding the trial. The District Attorney said that he would not "fault Ms. Block too much for not interrupting the Court." Attorney Block's decision not to object to Judge Nuss's order closing the courtroom was not objectively unreasonable. Therefore, Pinno has failed to prove that her counsel was deficient.
¶ 91 Even assuming Attorney Block's performance was deficient, Pinno has not proven any prejudice. Pinno merely argues that her attorney's failure to object should not be subject to a harmless error analysis and argues that prejudice should be presumed. However, harmless error and prejudice are different inquiries. A presumption of harm from an error to which counsel objected does not compel a presumption of prejudice when counsel fails to object.
¶ 92 "A fair trial in a fair tribunal is a basic requirement of due process." State v. Carprue, 2004 WI 111, ¶ 59, 274 Wis.2d 656, 683 N.W.2d 31 (quoting In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955)). When considering a claim of judicial bias, the reviewing court presumes that the judge was unbiased. State v. Gudgeon, 2006 WI App 143, ¶ 20, 295 Wis.2d 189, 720 N.W.2d 114. However, that presumption of impartiality is rebuttable. Id. It is important to note that judges often consider postconviction motions relating to proceedings over which they presided. Cf., State v. Henley, 2010 WI 97, ¶ 3, 328 Wis.2d 544, 787 N.W.2d 350; State v. Boyden, 2012 WI App 38, ¶ 10, 340 Wis.2d 155, 814 N.W.2d 505; State v. Prescott, 2012 WI App 136, ¶ 7 n. 1, 345 Wis.2d 313, 825 N.W.2d 515. The fact that a judge presided over a trial does not mean that the judge may not preside over subsequent postconviction proceedings.
¶ 93 The relevant recusal standard in the Wisconsin Statutes is a subjective one. A judge must recuse himself if he "determines
(Emphasis added.) Judge Nuss determined that he was not biased; therefore, he complied with Wis. Stat. § 757.19(2)(g).
¶ 94 In addition to the requirement that a judge must reach a subjective determination that he is not biased under Wis. Stat. § 757.19(2)(g), the Due Process Clause requires an objective inquiry. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 884, 886-87, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009) (contribution of roughly $3 million to judge's campaign from a person with a personal stake in the case created "serious risk of actual bias" that rose to an unconstitutional level). However, "The Due Process Clause demarks only the outer boundaries of judicial disqualifications." Id. at 889, 129 S.Ct. 2252 (quoting Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 828, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986)). "[M]ost matters relating to judicial disqualification [do] not rise to a constitutional level." Id. at 876, 129 S.Ct. 2252 (brackets in original) (quoting FTC v. Cement Inst., 333 U.S. 683, 702, 68 S.Ct. 793, 92 L.Ed. 1010 (1948)). "Because the codes of judicial conduct provide more protection than due process requires, most disputes over disqualification will be resolved without resort to the Constitution." Id. at 890, 129 S.Ct. 2252. Judge Nuss's conduct does not approach the extreme circumstances that violate due process. Thus, we turn to the Wisconsin Supreme Court Rules (SCR) to analyze Seaton's recusal claim.
¶ 95 Seaton quotes SCR 60.04(4)(a) to support the argument that Judge Nuss was biased. That rule says that a judge must recuse himself if, "[t]he judge has a personal bias or prejudice concerning a party or a party's lawyer or personal knowledge of disputed evidentiary facts concerning the proceeding." SCR 60.04(4)(a). Notably, the comment for SCR 60.04(4)(a) says that "bias or prejudice requiring recusal most often arises from a prior personal relationship but may arise from strong personal feelings about the alleged conduct of a party." The comment suggests that bias under SCR 60.04(4)(a) generally comes from an extrajudicial source. However, there is no indication that Judge Nuss had a personal bias or prejudice for or against anyone in Seaton's case. There is no evidence to suggest
¶ 96 More generally, SCR 60.04(4) says:
SCR 60.04(4). None of SCR 60.04(4)'s enumerated circumstances fits the facts of this case. The comment to SCR 60.04(4) gives an example of a judge who is seeking employment from a law firm; such a judge must recuse himself from cases in which that law firm would appear. The comment also references Wis. Stat. § 757.19 as setting forth circumstances when the judge must disqualify himself. The comment demonstrates that the Supreme Court Rules, like Wis. Stat. § 757.19, require recusal in fairly obvious scenarios in which a judge is clearly in an ethical quagmire. Seaton is not such a case.
¶ 97 In Seaton's case, Judge Nuss was careful to foster the appearance of impartiality. In response to Kirkpatrick's letters to him, Judge Nuss denied an interview request "in order to insure that the integrity of the official court file and record are preserved" and noted that the Code of Judicial Ethics and Supreme Court Rules prohibited him from granting the interview request. Judge Nuss's response shows that he took care to avoid appearing partial. Although Judge Nuss did state that "at no time was either[] party's right to a public trial compromised during either the jury selection process or at any other time," that comment did not rise to the level of an appearance of bias, nor was that comment enough to overcome the presumption of impartiality. Therefore, Judge Nuss properly denied Seaton's recusal motion.
¶ 98 We reach the following conclusions.
¶ 99 First, the Sixth Amendment right to a public trial extends to voir dire. Presley, 558 U.S. at 213, 130 S.Ct. 721. A judge's decision to "close" or limit public access to a courtroom in a criminal case requires the court to go through an analysis on the record in which the court considers overriding interests and reasonable alternatives as set out in Waller, 467 U.S. at 45, 48, 104 S.Ct. 2210. The court must make specific findings on the record to support the exclusion of the public and must narrowly tailor the closure. Id.
¶ 100 Second, the Sixth Amendment right to a public trial may be asserted by the defendant at any time during a trial. 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 has excluded the public from the courtroom. Although the Supreme Court has categorized a violation of the right to a public trial as a structural error, that categorization does not mandate a waiver analysis, and a defendant need not affirmatively relinquish his right to a public trial in order to lose it. It would be inimical to an efficient judicial system if a defendant could sit on his hands and try his luck in a closed courtroom only to argue after his conviction that his Sixth Amendment right to a public trial had been violated.
¶ 102 Fourth, defendants must demonstrate prejudice to prove ineffective assistance of counsel when counsel fails to object to the closure of the courtroom. The categorization of the denial of the public trial right as structural error does not create a presumption of prejudice in ineffective assistance of counsel claims. Seaton and Pinno have not proven that they were prejudiced by their attorneys' failure to object to the exclusion of the public from the courtroom. Therefore, both defendants have failed to prove that their counsel was ineffective.
¶ 103 Finally, Seaton was not denied his right to an impartial judge. Judge Nuss's communications show that he was cognizant of his responsibilities under the Judicial Code of Conduct, and he did not appear to be biased. We presume that judges are impartial, and Seaton has not offered sufficient evidence to rebut that presumption. Therefore, Judge Nuss properly denied the recusal motion.
The judgment and order of the circuit court are affirmed.
SHIRLEY S. ABRAHAMSON, Chief Justice (dissenting).
¶ 104 I join the reasoning set forth in Justice N. Patrick Crooks' dissent, which focuses on the defendant's Sixth Amendment right to a public trial.
¶ 105 I write separately to focus on the violations in the instant cases of the public's right to open court proceedings, a right with deep historical roots in the First Amendment to the United States Constitution, in Wisconsin statutes dating back to 1849, and in the common law. 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.
¶ 106 The news media and the public have rights to open court proceedings, "guaranteed by the First Amendment ... [and] buttressed by the Wisconsin Constitution and state statutes. They may not be diminished without a court's very careful consideration that is detailed on the record."
¶ 107 The majority opinion is filled with soaring rhetoric deploring closed court proceedings and with solemn, sober admonitions to circuit courts about the procedures to be followed before closing a proceeding to the public. The majority opinion fittingly declares that in the present cases, the circuit court's "good intentions cannot hide its seriously mistaken approach in the two cases" and goes on to chastise the circuit court as follows:
¶ 108 The majority opinion concedes that the closures in the instant cases were improper. It accepts that closures have been characterized as structural error,
¶ 109 Yet the majority opinion renders the lofty legal tenets meaningless as it empowers circuit courts to close courtrooms to the public without any compelling reason and offers no remedy for the circuit court's violations of the public's right to open court proceedings.
¶ 110 The judiciary must enforce the fundamental right of the public to open court proceedings.
¶ 111 Rather than enforce the public's right, the majority simply throws up its collective hands and sends a jarring message: This court will not honor the legal commandments of the United States and Wisconsin Constitutions, the statutes, and the common law.
¶ 112 The majority opinion asserts that "it would seem odd to allow a reversal of a judgment based on the demand of a member of the public." Majority op., ¶ 40 n. 12. But the majority opinion does not explain what is "odd" about this court's enforcement of constitutional, statutory, and common-law mandates that court proceedings be open.
¶ 113 Unlike the majority opinion, I do not view enforcement of public rights to open court proceedings as "inimical to an efficient judicial system." Majority op., ¶ 7. I view enforcement of the public right to open judicial proceedings as essential to an accountable judiciary deserving of the public's trust and confidence in the fair administration of justice. "It is hard to demonstrate ... fairness if the court is closed."
¶ 114 The issue is what is the remedy in the present case for the violation. Different facts and circumstances dictate different remedies.
¶ 115 The two cases before the court are not rare cases justifying closed courtrooms. It is this court's task to protect the public's right to open court proceedings. Accordingly, I dissent.
¶ 116 Our forebears thought the public right to open court proceedings so important that they firmly embedded and protected the right in three vital legal sources: The United States and Wisconsin Constitutions, the Wisconsin statutes dating back to 1849, and the common law.
¶ 117 The United States Constitution and Wisconsin Constitution guarantee the right of the public to attend trials. The right of the public to attend trials under the First Amendment has been recognized as protecting distinctly public rights, notwithstanding the interests of criminal defendants under the Sixth Amendment.
¶ 118 The right to attend public trials "is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press would
¶ 119 The public's constitutional right to public access to a trial plays a particularly significant role in the proper functioning of the judicial process and the government as a whole.
¶ 120 Indeed, the United States Supreme Court has recognized that any deprivation of the public right to open court proceedings requires the highest level of judicial scrutiny, declaring that a court closing a courtroom must show "that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest."
¶ 121 The Wisconsin statutes echo the strong constitutional protection of the public right to open court proceedings. The public right to open court proceedings has been entrenched in Wisconsin statutory law since the legislature declared in 1849: "The sittings of every court within this state shall be public, and every citizen may freely attend the same."
¶ 122 The 1849 legislature's "clear and express legislative policy that courts are to be open to all the people"
¶ 123 In interpreting and applying Wis. Stat. § 757.14, the court has declared:
¶ 124 The majority opinion concedes that the circuit court orders in the instant cases "likely violated Wis. Stat. § 757.14."
¶ 125 In addition to the constitutional and statutory mandates, the public right to open court proceedings is rooted in our Anglo-American common-law heritage.
¶ 126 The public right to open court proceedings "is a reflection of the notion, deeply rooted in the common law, that justice must satisfy the appearance of justice."
¶ 127 Thus, three sources of law separately and in combination mandate that court proceedings be open. To whom are these mandates addressed? The courts!
¶ 128 The public right to attend court proceedings is not, as the majority opinion would have you believe, a right that requires a party to the litigation or a member of the public to act in order to enforce it. The responsibility to keep court proceedings open lies with each court.
¶ 129 Contrary to the majority opinion's protestations,
¶ 130 As this court has noted in another context, a statutory mandate serves as a requirement on the courts themselves. The courts are obligated to obey those mandates, sua sponte, regardless of the parties' positions:
State v. Harvey, 2002 WI 93, ¶ 47 n. 12, 254 Wis.2d 442, 647 N.W.2d 189 (emphasis added).
¶ 131 Like the harmless error rule, the public right to open court proceedings is a mandate on the courts, which the courts, including this court, must address. Even an issue not raised by any party is properly before the court when our law places that responsibility on the court. The statute in the instant case explicitly directs that judicial proceedings "shall be public and every citizen may freely attend the same."
¶ 132 The duty to ensure that this mandate is carried out falls on the judges of the state, including the justices of this court, who must maintain the integrity of the court system by following the law: "A judge shall respect and comply with the law...."
¶ 133 If court proceedings are to be closed, the court must articulate clear reasons on the record for contravening the explicit mandate of the Constitutions, statutes, and common law to keep court proceedings open:
A court's power to close a proceeding may be exercised only if the court follows a procedure that balances a compelling interest in closing the courtroom against the public's interest in freely attending court proceedings:
¶ 134 It is thus the obligation of each court to make the public right to open judicial proceedings a reality.
¶ 135 In the instant cases, the circuit court did not meet the necessary burden to justify closure of the courtroom, either under the constitutions, Wis. Stat. § 757.14, or the common law. In each of the instant cases, the circuit court did not articulate that it was exercising its discretion to close a courtroom "to assure justice would not be thwarted"
¶ 136 In Seaton, the circuit court gave the following justifications for its closing of the courtroom. First, the circuit court noted the comfort of seating the jurors:
Later, the circuit court noted that it wanted to prevent disruptions in the courtroom or conversations with potential jurors:
¶ 137 Regarding the circuit court's first concern — the comfort of and availability of seating for the jurors — nothing in the record or in the case law suggests that this rationale rises to the level of a compelling government interest or that this interest could not have been met by alternative means.
¶ 138 Regarding the circuit court's second concern — disruptions created by members of the public — nothing in the record evidences any disruption by members of the public. The circuit court issued its warning, but made no finding of any disruption.
¶ 139 In Pinno, the circuit court stated its reasoning for closure at the postconviction evidentiary proceeding as a generalized "interest of justice," "for other reasons," and as a "numbers issue":
¶ 140 The circuit court does not elaborate on any "interest of justice" or "other reasons" for closing the courtroom. As in Seaton, the circuit court justified closure on the number of jurors in the courtroom. As in Seaton, there was no evidence that the jury and the public could not, in some manner, have been accommodated in the courtroom safely.
¶ 141 Our case law requires that if court proceedings are to be closed, "[a] trial court is required to hold a hearing and publicly reach a conclusion based on the exercise of discretion prior to ordering a closing."
¶ 142 The circuit court did not demonstrate a compelling interest for excluding the public. The circuit court abdicated its constitutional, statutory, and common-law responsibilities. This court should not do the same.
¶ 143 I would reverse the judgments of the circuit courts and remand the causes to the circuit courts for a new trial.
¶ 144 For the foregoing reasons, I dissent.
¶ 145 I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.
¶ 146 I join the reasoning set forth in Chief Justice Shirley S. Abrahamson's dissent concerning the public trial right guaranteed by the First Amendment. I write separately to focus on a defendant's Sixth Amendment right to a public trial and to address remedy in this context.
¶ 147 Courtroom closures, by their very nature, are extremely troubling. The circumstances under which a courtroom can be closed without violating a bedrock principle of our justice system — the right to a public trial — are rare. Travis Seaton and Nancy Pinno, the defendants in these consolidated cases, each asserts that voir dire proceedings during their criminal trials in Fond du Lac County were closed to the public apparently to make room for large jury venires. While these allegations alone are disconcerting, the record in Seaton's case demonstrates that these types of closures are apparently common practice in Fond du Lac County.
¶ 148 Considering that the public trial right is such a fundamental concept to our criminal justice system, I cannot agree with the majority's conclusion that a criminal defendant's failure to make a contemporaneous objection results in his or her forfeiture of that right. Contrary to the majority opinion, I assert that a defendant's public trial right, guaranteed by both the Sixth Amendment
¶ 149 In addition, I write separately to express my disagreement with the majority opinion's conclusion that prejudice should not be presumed when a claim of ineffective assistance of counsel is based on an alleged violation of the public trial right.
¶ 150 For these reasons, I respectfully dissent.
¶ 151 The majority opinion carefully and thoroughly sets forth many of the principles underlying the Sixth Amendment public trial right. For example, there is no dispute that the Sixth Amendment provides a criminal defendant with the right to a public trial and that this public trial right extends to voir dire.
¶ 153 The Sixth Amendment public trial right results from the long-held belief that secret proceedings will not produce just results.
¶ 154 Although the majority opinion sets forth four of the core values of the Sixth Amendment public trial right, it is worthwhile to set them forth again.
Although stated as four distinct values, each of these principles underlying the public trial right works to guarantee one fundamental concept of our criminal justice system: fairness. The United States Supreme Court's classification of a violation of the public trial right as a structural constitutional error further supports the contention that the public trial right is undoubtedly concerned with the fairness of criminal trials.
¶ 155 The United States Supreme Court divides constitutional errors into two categories.
¶ 156 In a smaller category of constitutional errors are those that are not subject to harmless error analysis, and these are referred to as structural errors or defects.
¶ 157 My emphasis on a violation of the public trial right as a structural constitutional error does not directly answer the important question of whether a forfeiture or a waiver analysis applies. However, this categorization, as I will explain, does inform my position on both the issue of whether waiver or forfeiture applies and the issue of whether prejudice should be presumed in an ineffective assistance of counsel claim. The designation of a public trial violation as structural error absolutely heightens the seriousness of this type of error when compared to constitutional violations categorized as trial errors. This is because, as noted above, the effect of a violation of the public trial right cannot be measured and always poses a threat to the fairness of the entire trial process.
¶ 158 It is these concepts — that the effect of a violation of the public trial right cannot be measured, and the public trial right's concern with fairness — that the majority fails to fully recognize. Instead of adhering to the two categories of constitutional errors established by the United States Supreme Court, namely trial errors and structural errors, the majority attempts to minimize the seriousness of a public trial right violation. It does so in two primary ways.
¶ 159 First, the majority opinion attempts to separate a violation of the public trial right from other structural errors and cast it into a category all its own. However, the majority's attempt to place the public trial right into a lesser category of structural constitutional rights is not supported by United States Supreme Court precedent.
¶ 160 It is of no importance that Waller, decided in 1984, did not use the phrase "structural error"
¶ 161 I am also not persuaded that the United States Supreme Court's failure to use the phrase "structural error" in every case that addresses a violation of a structural constitutional right or the public trial right has any significance. In Presley, the Court applied Press-Enterprise I and Waller to hold that the public trial right extends to voir dire.
¶ 162 Second, the majority opinion repeatedly relies on its conclusion that a public trial right violation does not automatically result in unfairness or prejudice to the defendant.
¶ 163 Classification of a violation of the public trial right as a structural constitutional error does not answer the question of whether a waiver or forfeiture analysis applies. However, a discussion of the violation of the public trial right as a structural constitutional error highlights the importance of the public trial right and its concern with the fairness of criminal trials. Therefore, the discussion of a public trial right violation as a structural constitutional error informs my conclusion that waiver analysis is the applicable standard.
¶ 164 The importance of the public trial right, its categorization when violated as a structural constitutional error, and its concern with fairness inform my position. I also find support in both Wisconsin precedent and in case law from other jurisdictions, that waiver
¶ 165 As the majority opinion sets forth, this court uses a balancing test, stated in State v. Soto,
¶ 166 In Soto, this court determined that waiver, rather than forfeiture, applied to a defendant's statutory right to be present in the courtroom during a plea hearing.
¶ 167 The court's emphasis in Soto on the connection between rights subject to waiver and those same rights' concern with fairness or perceived fairness of a criminal trial convinces me that requiring waiver, rather than permitting forfeiture, is the correct approach. As discussed previously, the public trial right is an exceedingly important constitutional right that is absolutely tied to the actual or perceived fairness of a criminal trial. It is of no consequence that a public trial right violation may not actually affect fairness because whether the violation permeates the trial is a question an appellate court simply cannot evaluate in the same way that an appellate court can evaluate the effect of an evidentiary error. Like a defendant's statutory right to be present in person, a defendant's constitutional right to a public trial must be subject to waiver, not forfeiture.
¶ 168 Furthermore, the fact that juvenile proceedings are often closed to the public, or that some criminal proceedings may be void of spectators, is of no importance. First, most jurisdictions do not recognize a public trial right in the context of juvenile adjudications because of the overriding confidentiality interest as well as the noncriminal nature of the proceedings.
¶ 169 Although I conclude that a criminal defendant must voluntarily and knowingly waive his or her right to a public trial to give up that right, I acknowledge that there is no doubt that permitting forfeiture encourages efficiency by both the prosecution and defense by bringing timely objections to the circuit court's attention. The benefit of efficiency, however, does not outweigh the necessity of safeguarding the public trial right. This is especially true considering that the purpose of the public trial right is to ensure fairness of every aspect of a criminal trial.
¶ 170 The decision in Walton v. Briley
¶ 171 In addition, I am persuaded that waiver analysis can coexist with the four Waller factors.
¶ 172 Finally, I am not persuaded that language in prior United States Supreme Court decisions supports forfeiture rather than waiver analysis.
¶ 173 The Sixth Amendment public trial right is one very important tool by which we guarantee the fairness of criminal trials. The majority opinion has compromised this important guarantee and has minimized the importance of the public trial right by allowing a defendant to forfeit a right so essential to the core of our judicial system. Furthermore, the forfeiture analysis applied by the majority opinion does nothing to prohibit the practice of improper courtroom closure, which at least in Fond du Lac County appears to be common practice. In contrast, requiring waivers upholds the important purpose of the public trial right and encourages courts to keep trials open to the public. Of course, under Waller, overriding interests may necessitate closure under rare circumstances.
¶ 174 Because I would apply waiver and neither Pinno nor Seaton voluntarily or knowingly waived their right to a public trial, I briefly address the remedy each defendant should receive.
¶ 175 In Seaton's case, the circuit court denied his request for an evidentiary hearing and concluded that the courtroom was never closed. However, Seaton's postconviction motion included sufficient facts to warrant an evidentiary hearing on whether the courtroom was closed. Therefore, in Seaton's case the proper remedy, under a waiver analysis, would be a remand for an evidentiary hearing to determine whether the courtroom was closed during voir dire. That hearing should be before a circuit court judge other than the one who denied the original request for an evidentiary hearing. If an evidentiary hearing revealed that the courtroom was closed during voir dire, then analysis of whether the circuit court had considered the Waller factors would also be necessary. If not, then the Waller factors must be considered and applied, and the ultimate remedy would depend on whether the Waller factors were satisfied.
However, before voir dire began in Pinno's case, and just prior to seating the jury venire in the courtroom, the circuit court remarked:
¶ 177 Based on the statements the circuit court made on the record just prior to voir dire, I would hold the circuit court's conclusion, that the courtroom was never closed, to be clearly erroneous.
¶ 178 I recognize that, under the waiver approach that I would apply, it is unnecessary to address the additional issue of whether prejudice should be presumed when an ineffective assistance of counsel claim is based on an alleged public trial right violation. However, I write separately to briefly explain why, contrary to the majority opinion, prejudice should be presumed in this context.
¶ 179 As the majority recognizes, this court has presumed prejudice in the context of ineffective assistance of counsel in cases where the harm of the error in question could not easily be measured.
¶ 180 Courtroom closures, by their very nature, are extremely troubling. The circumstances under which a courtroom can be closed without violating a bedrock principle of our justice system — the right to a public trial — are rare. Travis Seaton and Nancy Pinno, the defendants in these consolidated cases, each asserts that voir dire proceedings during their criminal trials in Fond du Lac County were closed to the public apparently to make room for large jury venires. While these allegations alone are disconcerting, the record in Seaton's case demonstrates that these types of closures are apparently common practice in Fond du Lac County. If there is to be a courtroom closure, there must be consideration and application of the Waller factors because a defendant's Sixth Amendment right to a public trial is absolutely rooted in the essential underpinning of our judicial system: fairness.
¶ 181 Considering that the public trial right is such a fundamental concept to our criminal justice system, I cannot agree with the majority's conclusion that a criminal defendant's failure to make a contemporaneous objection results in his or her forfeiture of that right. Contrary to the majority opinion, I assert that a defendant's public trial right, guaranteed by both the Sixth Amendment and the Wisconsin Constitution, can be given up only if the defendant affirmatively voices a willingness to do so. I would therefore consider the right subject to waiver analysis. This conclusion results from consideration of the importance of the public trial right, the unique position of a violation of the right as a structural constitutional error, its concern with fairness, and persuasive authority from the United States Supreme Court and from other jurisdictions, all considerations that are minimized by the majority opinion.
¶ 182 In addition, I write separately to express my disagreement with the majority opinion's conclusion that prejudice should not be presumed when a claim of ineffective assistance of counsel is based on an alleged violation of the public trial right. I recognize that under my use of a waiver analysis, there would be no need to reach the ineffective assistance of counsel claims presented by these defendants. However, I am not persuaded by the majority opinion's discussion of the presumption of prejudice. At the outset, I agree with the majority that the presumption of prejudice is warranted under circumstances in which the harm of the error in question is difficult to measure. In contrast to the majority's position, however, I conclude that a public trial violation that occurs during voir dire is exactly the type of harm that may infiltrate an entire trial in incalculable ways. Therefore, contrary to the majority approach, I would presume prejudice in this context.
¶ 183 For these reasons, I respectfully dissent.
¶ 184 I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.
In addition to the First and Sixth Amendments, Wis. Stat. § 757.14 also provides a basis for the public trial right. That statute says:
Wis. Stat. § 757.14; see State ex rel. La Crosse Tribune v. Circuit Court for La Crosse Cnty., 115 Wis.2d 220, 233, 340 N.W.2d 460 (1983) (applying Wis. Stat. § 757.14 to voir dire proceeding). The defendants do not mention this statute in their briefs as it would likely not provide the remedy they seek. In La Crosse Tribune, the court ordered that the transcript be given to the plaintiff newspaper as a remedy for the judge's improper decisions to hold voir dire in his chambers and to exclude the reporter. Id. at 224-30, 241, 340 N.W.2d 460 (noting also that "no meaningful order affecting the [defendant's] trial could be issued by this court" because voir dire had been completed and the trial was over).
Thus, the remedies available under Wis. Stat. § 757.14, namely, the production of the transcript of the private proceeding, would be insufficient to grant the desired relief to the defendants here. We need not decide today whether someone other than the defendant can seek additional remedies under that statute. Moreover, Supreme Court "cases have uniformly recognized the public-trial guarantee as one created for the benefit of the defendant." Presley, 558 U.S. at 213, 130 S.Ct. 721 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979)). Although the public generally has an independent right to attend public trials, it would seem odd to allow a reversal of a judgment based on the demand of a member of the public. Therefore, while the judge's orders in these cases likely violated Wis. Stat. § 757.14, that issue is not before us, and the defendants' claims and requested remedies stem from the Sixth Amendment.
Id.
This court has recognized that the appropriate remedy is one that conforms to the particular facts and circumstances of the case. Cf. State v. Deilke, 2004 WI 104, ¶ 25, 274 Wis.2d 595, 682 N.W.2d 945 (summarizing our case law as basing the appropriate remedy for material and substantial breach of a plea agreement on the totality of the circumstances); Summers v. Touchpoint Health Plan, Inc., 2008 WI 45, ¶¶ 44-47, 309 Wis.2d 78, 749 N.W.2d 182 (selecting appropriate remedy in wrongful termination case to "return to the status quo prior to the arbitrary and capricious termination actions"); State v. Beyer, 2006 WI 2, ¶¶ 48-62, 287 Wis.2d 1, 707 N.W.2d 509 (considering the appropriate remedy in a due process violation during civil commitment proceedings based on the purposes of the statute, the nature of the error, and the ability of the remedy to correct the error).
See majority op., ¶ 19 n. 7; J. Crooks' dissent, ¶ 147 & n. 1.
For a more extensive history of the common-law public right to trial, see Richmond Newspapers, 448 U.S. at 563-75, 100 S.Ct. 2814 (Burger, C.J., plurality op., joined by White, J. and Stevens, J.), which discusses at length the common-law roots of the public trial right, and notes that "[f]rom this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, we are bound to conclude that a presumption of openness inheres in the very nature of a criminal trial under our system of justice."
Sister states with similar statutory language have, like Wisconsin, required the courts to enforce the mandate for public court proceedings and have placed a heavy burden on courts to demonstrate a compelling reason for closure.
In interpreting a substantially similar statute providing for public access to open court, the California Supreme Court declared:
NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178, 86 Cal.Rptr.2d 778, 980 P.2d 337, 371 (1999).
Waller, 467 U.S. at 48, 104 S.Ct. 2210. See also majority op., ¶ 45 (discussing Waller).
Although the defendants' arguments are based on the Sixth Amendment rather than the Wisconsin Constitution, I note that the public trial right under art. I, § 7 does not appear to be any different than the right under the Sixth Amendment.
I also note that Wis. Stat. § 757.14 requires that courtrooms remain open. Although this statute has potential applicability to this case, my focus is on a defendant's Sixth Amendment right to a public trial.
