Abstract: Issues of public trial and the open administration of justice have been an intense focus of the Washington State Supreme Court in recent years. In its December issue, the Washington Law Review surveyed U.S. and Washington State public trial and public access jurisprudence, and made recommendations for clarifying the constitutional issues involved when a courtroom "closure" occurs. Just before that issue went to press, the Washington State Supreme Court decided four important public trial cases: State v. Sublett, State v. Wise, State v. Paumier, and In re Morris. The court issued fourteen separate opinions, clearly demonstrating deep divisions among the justices. This follow-up article examines the principal arguments of the new opinions, identifies what areas appear settled, and discusses the important questions that remain unresolved.
Patrick Morris was convicted of sex crimes against his daughter.1 Michael Sublett went to prison for premeditated murder.2 Both Eric Wise and Rene Paumier were convicted of burglary.3 What do these defendants have in common? At some point during their trials, a procedure was conducted in chambers instead of the public courtroom, thereby implicating both the constitutional right of each defendant to a public trial and the constitutional right of the public to the open administration of justice. In each case, the procedures were routine, longstanding practices, and the defendants made no objection. Each challenged the practice for the first time on appeal.
On November 21, 2012, the Washington State Supreme Court announced its decisions in these four cases. Of the four defendants, only Sublett's conviction was affirmed. In the other three cases, the Court reversed for violation of the defendant's public trial right and ordered new trials.
The four decisions comprise fourteen separate opinions. Only two cases garnered a majority (both 5-4); in the others, a lead opinion was accompanied by either three separate concurrences or one concurrence and two separate dissents.
In its December issue (which went to press the week the four decisions were released), the Washington Law Review surveyed U.S. and Washington State public trial and public access jurisprudence (including three of these four cases at the intermediate appellate court level), and made recommendations for clarifying the constitutional and prudential issues involved.4 This article examines whether the new decisions have clarified the analytical approach, concludes they have not, and attempts to identify the areas in which the law is settled and the issues the Court has yet to resolve. Because these include the proper analytical framework for both trial and review, and involve issues that may arise in any criminal case, consensus as to the correct approach will greatly contribute to the interests of justice.
Part I summarizes the constitutional rights implicated by exclusion of the public from court proceedings. Part II recaps the course of Washington public trial and open access jurisprudence. Part III analyzes the different opinions in the four recent cases, and highlights the persistent (and so far intractable) disagreements among the justices. Part IV identifies the areas in which agreement is most urgently needed so that trial courts are able to safeguard the important constitutional interests at issue.
I. THE U.S. AND WASHINGTON CONSTITUTIONS GUARANTEE BOTH THE DEFENDANT'S RIGHT TO PUBLIC TRIAL AND THE PUBLIC'S RIGHT TO OPEN ACCESS
When a Washington State judge excludes members of the public from court proceedings, or seals records related to a case, the exclusion implicates state and federal constitutional rights of the public and, in criminal cases, of the defendants.
The Sixth Amendment of the U.S. Constitution and article I, section 22 of the Washington Constitution contain nearly identical provisions guaranteeing the right of an accused to a public trial. …