GROUNDS FOR RELIEF
IN THIS CASE REVERSAL OF CONVICTION IS MANDATED UNDER THE LAW RESULTING FROM THE TRIAL COURT’S DISMISSAL OF SEVERAL JURORS WITHOUT REQUISITE CAUSE UNDER RCW 4.44.170 WHILE DISMISSING SAID JURORS OUTSIDE OF THE COURTROOM WITHOUT DEFENDANT BEING PRESENT IN VIOLATION OF PUBLIC TRIAL, RIGHT TO BE PRESENT, RIGHT TO PARTICIPATE IN ONE’S OWN DEFENSE, WHICH ARE SUBSTANTIVE RIGHTS GUARANTEED AND PROTECTED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION NOT SUBJECT OT PROCEDURAL BAR, NOTWITHSTANDING GROSS VIOLATIONS OF PROCEDURAL AND SUBSTANTIVE DUE PROCESS.
In this case the trial judge held hearings outside the courtroom without the presence of Defendant with purpose to decide which jurors should be dismissed for cause, knowing that it deprived defendant and the public of the right to a public trial; knowing that the Defendant would be deprived of his legal and constitutional right to be present and to participate in his own defense regarding dismissal of jurors for cause; knowing that outside of the courtroom hearing on jury selection dismissal of jurors for cause would be in direct violation of procedural and substantive due process; all of which created actual conflicts of interest for the defense attorney, the prosecutor and the trial judge.
It is well established that jury selection is a constitutionally protected critical stage of trial proceedings which attaches “at least from the time when the work of impaneling the jury begins,” Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), in addition to the State created and enhanced right of a criminal Defendant to “appear and defend in person” under Washington Constitution Article I, & 22; and it is also well established the a criminal Defendant has third party standing to claim the public’s right and interests regarding the jury selection process, see Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1864, 113 L.Ed.2d 411 (1991).
Petitioner has attached hereto and hereby incorporates herein by reference Exhibits (1) through (12) in support of this issue, of which, inter alia, evidences the following:
(1) The attached Exhibits are substantial evidence that the trial judge, prosecutor, and defense attorney had already decided from the beginning, which jurors they wished to dismiss for cause, and throughout a sequence of questions and out-of-courtroom proceedings attempted to fraudulently establish a basis to dismiss said predetermined jurors for cause, apparently in effort to stack the jury with guilt prone jurors, with no request by the attorneys for dismissal for cause.
(2) To accomplish said unlawful dismissal for cause of the several jurors, said judicial participants conducted hearings outside of the courtroom so the public could not hear or become aware of their deceptive unlawful conduct to fraudulently dismiss jurors they did not believe would be guilt prone, and without allowing the criminal Defendant, herein Petitioner, the right to be present at said out-of-court hearing knowing that Defendant would participate in the form of objecting to dismissing certain jurors for cause that had repeatedly stated that they could decide the case fair and impartially based solely on the evidence, e.g., Exhibit (4) and (8), and that Defendant-Petitioner would want other jurors dismissed for cause, such as Exhibit (5) who should have been dismissed for cause, but was not, and later was accused of prejudicing the other juror as reason for alternate replacement of the juror from jury panel.
(3) All of the jurors dismissed for cause stated they could be fair and impartial and decide the case on the evidence submitted at trial, leaving no lawful basis for the trial judge to dismiss said jurors for cause, as evidenced by the fact that neither the defense attorney nor the prosecutor requested that any of the jurors be dismissed for cause.
(4) The defense attorney at trail created his own actual conflict of interest by not allowing his client to be present at numerous out-of-courtroom secret hearings between the defense attorney, the prosecutor and the trial judge, at which time they intentionally deprived Defendant-Petitioner of his legal and constitutional rights of meaningful participation in his own defense, both Defendant-Petitioner and the public’s right of a public trial, and deprived Defendant-Petitioner of his right to put on a complete defense, inter alia, the opportunity to object to the dismissal for cause of jurors who had stated they could be fair and impartial and decide that case solely on the evidence submitted at trial.
The facts and law herein presented provides conclusive evidence that as matter of law, Defendant-Petitioner was deprived of substantive constitutional rights that are structural and jurisdictional not subject to procedural bar, Montgomery v. Louisiana, 577 U.S. _, 126 S.Ct. 781, 192 L.Ed.2d 599 (2016):
If a state collateral proceeding is open to a claim controlled by federal law, the state court “has a duty to grant the relief that federal law requires.” Yates, 484 U.S., at 218. Where state collateral review proceedings permit prisoners to challenge the lawfulness of their confinement, States cannot refuse to give retroactive effect to a substantive constitutional right that determines the outcome of that challenge.
IMPROPER DISMISSAL FOR CAUSE
State v. Irby, 187 Wn.App. 183, 347 P.3d 1103 (2015):
Case summary, in an aggravated murder case, there was manifest error that required reversal of all convictions because Juror #38 demonstrated actual bias under RCW 4.44.170 (2) when she stated during voir dire that she would like to say that he’s guilty.”
The presence of biased juror in a criminal trail cannot be harmless. Such error requires a new trial without a showing of prejudice.
State v. Irby, 170 Wn.2d 874m 246 P.3d 796 (2011):
The record did not evidence the fact that defense counsel spoke to the defendant before responding to the trial judge’s email. The violation was not harmless. The alleged instability of three of the potential jurors to serve was never tested by questioning in defendant’s presence, indeed, they were not questioned at all. The State could not show beyond a reasonable doubt that the removal of several potential jurors in defendant’s absence had no effect on the verdict.
RCW 4.44.170:
(1) For such a bias as when the existence of the facts is ascertained, in judgment of law disqualifies the juror, and which is known in this Code as implied bias.
(2) For the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging, and which is known in the Code as actual bias.
(3) For the existence of a defect in the functions or organs of the body which satisfies the court that the challenged person is incapable of performing the duties of a juror in the particular action without prejudice to the substantive rights of the party challenging.
State v. Tingate, 117 Wn.2d 595, 817 P.2d 850 (Wash. 1991):
Trail court’s practice of excluding potential jurors prior to voir dire, based on clerk’s subjective knowledge of the juror’s acquaintance with the defendant, was an abuse of discretion, requiring reversal of defendant’s conviction… Prejudice is presumed when the jury selection procedure materially varies from statutory requirements.
State v. Rupe, 108 Wn.2d 734, 749 743 P.2d 210 (1987):
The question is whether a juror with preconceived ideas can set them aside… A juror with preconceived ideas is not subject to challenge for cause if he can put the ideas aside and decide tha case on the basis of evidence and the court’s instructions.
State v. Tingdale, 117 Wn.2d 595, 817 P.2d 850 (1991):
In State v. Phillips, 65 Wash.324, 118 P.43 (1911), we held it is not grounds for exception that a qualified juror was rejected on insufficient grounds, unless “through rejecting qualified persons, the necessity of accepting others not qualified has been purposely created.” 65 Wash. At 326 (quoting 1 S. Thompson, Trials & 120 (1912)). Under Phillips, prejudice exist in this case. As a result of the trial court’s rejection of these jurors, qualified jurors were rejected, and petitioner was forced to accept other, possibly “unqualified”, jurors (namely, the friend of the sheriff). Had there been persons acquainted with both parties on the panel, perhaps a more “balanced” (impartial) jury would have resulted. The jury selection process in the present case is a material departure from RCW 2.36 and prejudice is presumed.
State v. Easterling, 157 Wash.2d 167, 137 P.3d 825 (2006):
A criminal defendant’s failure to lodge contemporaneous objection to an order closing courtroom proceeding to the public does not waive the right to challenge the constitutional validity of the order on appeal.
In the prosecution of codefendant’s in a joint proceeding, one codefendant’s Sixth Amendment right to a public trial is violated if the trial court, at the request of the other codefendant, excludes the first codefendant and the public from hearing on a pretrial motion to sever trial or to dismiss the charges without engaging in the analysis required by State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995) and without establishing on the record a compelling interest for closure. The court’s failure to engage in a Bone-Club analysis and to enter findings justifying the closure first codefendant to reversal of judgment. The defendant’s right to a public trial is not waived simply because the closure was requested by the codefendant who moved for severance of dismissal. It is the request to close the proceedings itself, and not the party who makes the request, that triggers the trial court’s duty to apply the five part Bone-Club requirements.
RIGHT TO “APPEAR AND DEFEND” UNDER ART. I, &22
State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011):
The record did not evidence the fact that defense counsel spoke to the defendant before responding to the trial judge’s email. The violation was not harmless. The alleged instability of three of the potential jurors to serve was never tested by questioning in defendant’s presence, indeed, they were not questioned at all. The State could not show beyond a reasonable doubt that the removal of several potential jurors in defendant’s absence had no effect of the verdict.
State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011):
We hold that the trial court violated Irby’s rights under the due process clause of the Fourteenth Amendment and article I, section 22 by conducting a portion of jury selection in Irby’s absence, and we conclude that the violation of these rights was not harmless beyond a reasonable doubt. In light of our decision, it is unnecessary to decide whether the trial court violated Irby’s right to a public trial or erred by concluding that he was a persistent offender.
Footnote 6: The right under the state constitution to “appear and defend” is, arguably. Broader than the federal due process right to be present. Unlike Snyder, 291 U.S. at 108 (“ There is nothing he could do if he were there, and almost nothing he could gain.)), or the extent of which the defendant’s presence may have aided his defense, see id., at 113 ( “No one can…have even a passing thought that the presence of Snyder would have been an aid to his defense.:)), but rather on the chance that defendant’s “substantial rights may be affected” at that stage of trial.
In Gomez v. United States, 490 U.S. 858, 873, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), the United States Supreme Court affirmed that jury selection is “a critical stage of the criminal proceeding during which the defendant has a constitutional right to be present.” The court pointed out that it is “the primary means by which a court may enforce a defendant’s rights to be tried by a jury free from ethic, racial, or political prejudice, or predisposition about the defendant’s culpability.” Id. (citations omitted). This right attaches “’”at least form the time when the work of empaneling the jury begins.”’” Id. At 873 (quoting Lewis, 146 U.S. at 374 (quoting Hopt v. Utah, 110 U.S. 574, 578, 4 S.Ct. 202, 28 L.Ed. 262 (1884))).
Unlike the United States Constitution, article I, section 22 of the Washington Constitution provides an explicit guaranty of the right to be present: “In criminal prosecution the accused shall have the right to appear and defend in person or by counsel.” Wash. Const. Art. I, & 22. All though Irby claims that the trial court violated article I, section 22 in addition to the due process clause of the Fourteenth Amendment, he has not asked this court to interpret article I, section 22 independently. We are nonetheless obliged to examine Irby’s state constitutional claim separately because this court has previously interpreted the right to “appear and defend” independently of federal due process jurisprudence.
As early as 1914, this court announced that “it is a constitutional right of the accused in a criminal prosecution to appear and defend in person and by counsel… at every stage of the trial when his substantial rights may be affected.” State v. Shutzler, 82 Wash.365, 367, 144 P. 284 (1914). Jury selection is unquestionably a “state of the trial” at which a defendant’s substantial rights may be affected,” and for that reason we do not hesitate in holding that Irby’s absence from a portion of jury selection violated his right to “appear and defend in person” under article I, section 22 as well as the due process clause of the Fourteenth Amendment.
A violation of the due process right to be present is subject to harmless error analysis. The same can be said of the right to “appear and defend” under article I, section 22. Although this court said in State v. Shutzler, 82 Wash. 365, 367, 144 P.28d (1914) that “any denial of the right to appear and defend in person without the fault of the accused is conclusively presumed to be prejudicial.” It is clear that in this respect Shutzler is no longer good law. In State v. Caliguri, 99 Wn.2d 501, 664 P.2d 466 (1983), this court overruled Wroth and its progeny, including Shutzler, after noting that “these older cases,” which “recognized a conclusive presumption of prejudice,” have been criticized as “not in accord with the modern view.”
IV. Conclusion.
We hold that the rial court violated Irby’s rights under the due process clause of the Fourteenth Amendment and article I, section 22 by conducting a portion of jury selection in Irby’s absence, and we conclude that the violation of these rights was not harmless beyond a reasonable doubt. In light of our decision, it is unnecessary to decide whether the trial court violated Irby’s right to a public trial or erred by concluding that he was a persistent offender.
State v. Slert, 186 Wn.2d 869, 383 P.3d 466 (2016) (En Banc):
Kenneth Slert has been convicted three times of killing John Benson. His first two convictions were reversed on appeal Potential jurors in his third trial were given an initial written questionnaire in an attempt to determine whether any knew of Slert’s prior convictions. Based on the written answers and after a discussion in chambers and out of Slert’s presence., four jurors were dismissed. For the first time on appeal, Slert challenged his conviction on the grounds that the discussion in chambers violated his right to be present at a critical stage of his own trial. We conclude Slert waived his right to raise his exclusion form the in chambers discussion by not raising it at trail. We also conclude disqualifying knowledge of Slert’s prior convictions or disqualifying opinions about his guilt. Accordingly, we reverse the Court of Appeals and affirm his conviction.
The completed questionnaires, the details of the in chambers discussion, and the decision to have it in chambers are not part of the record before us. The clerk’s minuted simply reflect that a “pretrial conference was held in chambers,” CP at 194, and the record reports that “based on the answers” to the questionnaire, jurors 15, 19, 36, and 49 were dismissed. 1 VRP (Jan. 25, 2010) at 5. Slert was present when the four jurors were dismissed but did not object, depriving the trail court of the ability to promptly remedy any error.
In State v. Irby, 170 Wn.2d 874, 886, 246 P.3d 796 (2011), we held that the right to be present extended to an email conversation about individual jurors ‘fitness to serve on the particular case…Slert had a right to be present during the discussion of the potential bias of these jurors.
But while Slert has a right to be present during the in chambers discussion, he is not entitled to relief is he waived appellate review by not properly preserving the error he claims on appeal…We recognize there are cases, such as Irby, where prompt objection can be excused based on the particular facts of the case. But this case is significantly different from Irby. In Irby, the dismissal of the jurors happened in an email between the judge and counsel. 170 Wn.2d at 884. There is no reason to think that Irby knew about the email or had a reasonable opportunity to object. Id. Here, by contrast, the dismissal happened in open court, in Slert’s presence, directly after the in chambers conference he now complains of. Further, Irby was decided on the merits, without consideration of whether any error was preserved.
We recognize that Slert’s attorney was complicit in any error made here, but we are not presented with an ineffective assistance of counsel claim (and indeed, it is difficult to imagine how agreeing to dismiss jurors who knew one’s client had previously been convicted of the same killing could be ineffective assistance). Instead, we are considering whether Slert is entitled to relief for an alleged violation of his right to be present that he has raised for the first time on appeal.
Finally, we turn to whether the law of the case doctrine prevents our consideration of whether any error was preserved. We find that it does not. Relevantly, “the doctrine provides where there has been a determination of applicable law in a prior appeal, the law of the case doctrine ordinarily precludes and appeal of the same legal issue.” Robertson v. Perez, 119 Wn.App. 928, 931, 83 P.3d 1026 (2004).
We hold that Slert has not preserved his right ot be present challenge and that the law of the case doctrine does not bar our review. We also hold that any error was harmless beyond a reasonable doubt. Accordingly, we reverse the Court of Appeals and reinstate Slert’s conviction.
Johnson, J. (dissenting):
The majority confuses and conflates two independent and separate principles: constitutional waiver and failure to preserve error. Compounding this, the majority applies the wrong standard of review and concluded this “waived” and “unpreserved” error is harmless.
As the majority correctly recognizes, the Sixth and Fourteenth Amendments to the United States Constitution guarantee a criminal defendant the right to be present at all “critical stages” of a criminal proceeding. Rushen V. Spain, 464 U.S. 114, 117, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (“Our cases recognize that the right to personal presence at all critical stages of the trial…is a fundamental right of each criminal defendant”). Likewise, article I, section 22 of the Washington Constitution confers the accused with the right to “appear and defend in person” during criminal prosecution. Collectively, these provisions protect a defendant’s right to be present during critical stages of trial. The majority correctly recognizes the constitutional nature of the error here, yet fails to follow our case analyzing this exact explanation or analysis of what new rule, if any, is being crafted.
State v. Paumier, 176 Wn.2d 29, 288 P.3d 1126 (Wash. 2012):
The next concerns we must address are whether Paumier had to contemporaneously object to the individual questioning to preserve the error and if he must show prejudice on appeal… Here, that would mean Paumier must show actual prejudice because he failed to object to the closure during trail…A structural error affects the framework within which the trial proceeds and renders a criminal trial an improper vehicle for determining guilt or innocence… The right to a public trial is a unique right that is important to both the defendant and the public…Requiring a showing of prejudice would effectively create a wrong without a remedy. Therefore, we do not require a defendant to prove prejudice when his right to a public trail has been violated.
State v. Wise, 176 Wn.2d 1, 288 P.3d 1113 (Wash. 2012):
Our state and federal constitutions both provide that a defendant has a right to a public trail. Wash. Const. Art. I, § 22 (“The accused shall have the right….to have a speedy public trail.”); U.S. Const. Amend. VI. The right of a public trail is also vested more broadly with the public. Wash. Const. Art. I, & 10 (“Justice in all cases shall be administered openly.”) U.S. Const. Amend. I. Tis court has not considered whether the public trail rights under the state and federal constitutions are coequal. See Bone-Club, 128 Wash.2d at 260, 906 P.2d 325 (“The Washington Constitution provides at minimum that same protection of a defendant’s fair trial rights as the Sixth Amendment.” This case does not require us to reach that question. Footnote 2: We briefly not that article I, section 10 of our Constitution has no exact parallel in the federal Constitution. It, states in full, and in clear terms, that “justice in all cases shall be administered openly. And without unnecessary delay.” Wash. Const. Art. I, § 10.
Structural error is a special category of constitutional error that “affects the framework within which the trial proceeds, rather than simply an error in the trail process itself.” Fulminante, 499 U.S. at 310, 111 S.Ct. 1246. Where there is structural error a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair. Id… Structural error, including deprivation of the public trail right, is not subject to harmlessness analysis. Id. At 309-10; Easterling, 157 Wash.2d at 181, 137 P.3d 825. A defendant should not be required to prove specific prejudice in order to obtain relief.
STRUCTURAL ERROR NO HARMLESS ERROR APPLICATION
In re Detention of Kisternmadier, 163 Wn.2d 166, 178 P.3d 949 (2008):
Structural errors…are not subject to harmless error review, “State v. Frost, 160 Wn.2d 765, 779, 161 P.3d 361 (2007) (citing Fulminite, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Internal structural errors are “subject to automatic reversal,” Neder, 527 U.S. at 8. In the criminal context, deprivation of “the presence of counsel at a critical stage” constitutes structural error requiring reversal. Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (quoting United States Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 557 (1984).
U.S. v. Davila, _ U.S. _, 133 S.Ct. 2139, 16 L.Ed.2d 139 (2013) (“Structural errors, which trigger automatic reversal because the undermine fairness of criminal proceedings as a whole, include denial of counsel of choice, denial of self representation, denial of public trial, and failure to convey to jury that guilt must be proved beyond a reasonable doubt”)
State v. Foreman, 2018 Wash.App. Lexis 375 (2018):
In United States v Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), complete denial of counsel includes the following scenarios: (1) Where a defendant is denied counsel at a critical stage of his trial; (2) Where counsel entirely fails to subject the prosecutions case to meaningful adversarial testing; (3) Where the circumstances are such that the likelihood that any lawyer, even a fully competent one, could provide effective assistance of counsel is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trail; (4) When counsel labors under an actual conflict of interest.
State v. Wicker, 105 Wn.App. 428, 20 P.3d 1007 (2001) (“On December 27, 1999, Tara’s counsel filed a motion for revision. The superior court denied the motion because it was not filed within 10 days of the disposition…In Flores-Ortega (Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000)) the Supreme Court reasoned, ‘the complete denial of counsel during a critical stage of a judicial proceeding…mandates a presumption of prejudice because the adversary process itself has been rendered presumptively unreliable.’ The even more serious denial of the entire juridical proceedings also demands a presumption or prejudice because no presumption of reliability can be accorded to judicial proceedings that never took place”)