Bless Div. II for only putting out one opinion tonight. And from the looks of it, its criminal. Lets see if that means easy blogging for yours truly:

State v. Heath

The trial court wanted to wrap up its day, so it cut off motions in limine for Heath’s firearms possession trial, to pick back up in the morning. In the morning, instead of hearing the motions in open court, it heard them in chambers. The judge also allowed jurors to ask questions individually in chambers during voir dire if they felt they’d not be able to see it in open court. However, to do closed proceedings of this nature requires a Bone-Club analysis. State v. Bone Club, 128 Wn.2d 254, 906 P.2d 325 (1995). The state had argued that the right to a public trial belonged to the public. However, the right to a public trial belongs to the accused.

The trial court didn’t apply the Bone-Club factors, but here they are for you anyhow:

1. The proponent of closure or sealing must make some showing [of a compelling interest], and where that need is based on a right other than an accused’s right to a fair trial, the proponent must show a “serious and imminent threat” to that right.

2. Anyone present when the closure motion is made must be given an opportunity to object to the closure.

3. The proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests.

4. The court must weigh the competing interests of the proponent of closure and the public.

5. The order must be no broader in its application or duration than necessary to serve its purpose.

Bone-Club, 128 Wn.2d at 258-59.

Judge Hunt, in her dissent, would require the trial court to explicitly close proceedings to the public for a Bone-Club analysis to be implicated. This, of course, would lead only to judge’s implicitly closing proceedings. I fail to see how any closer, whether explicit or implicit, isn’t a foreclosure on the right to a public trial. Moving a trial to chambers effectively closes it to the public. I wonder if she would so readily allow the public into her chambers?

This entry was posted on May 13, 2009 at 12:09 am and is filed under Criminal Law, Division II, Judge David H. Armstrong - Draft Majority, Judge Elaine Houghton - Concur in Majority, Judge J. Robin Hunt - Draft Dissent, Rant, WA Court of Appeals. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.