Wash. cases reaffirm steps to protect public's court access

Two decisions last month by the Washington Court of Appeals reaffirmed the procedural steps a trial court must take before sealing juror questionnaires from the public and the news media. Those decisions, along with another recent appellate ruling, also highlighted the differences between the rights of the public to open court proceedings and that of criminal defendants to have a public trial.

Washington Court of Appeals Judge Ronald E. Cox's recent opinions in State v. Beskurt and State v. Lee addressed challenges by criminal defendants to trial court orders sealing juror questionnaires after jury selection. The Court of Appeals rejected the defendants' assertions that the sealing orders violated the defendants' personal right to a public trial because the questionnaires were available to the parties and were not sealed until after jury selection.

A different analysis is applied with respect to the right of the public and press to access court proceedings and records, the court said. Cox emphasized that a trial court must undertake a a five-part test before closing portions of a criminal trial or sealing access to court documents. Failure to undertake this Bone-Club analysis, which was established in the 1995 state Supreme Court case State v. Bone-Club, is "inconsistent with the public's right of open access to court records," Cox said in Beskurt.

The proper remedy for failing to conduct this analysis under the public's right to an open trial is to remand the case to the trial court for reconsideration of the sealing, the court ruled in Beskut and Lee. In contrast, because the court ruled that the defendants' rights to a public trial were not violated, the court declined to reverse the defendants' convictions.

Steven Witchely, council for defendants in both cases, stated that he will petition the state Supreme Court to review the decisions because the ordered remands were a "meaningless remedy" for the defendants. The main issue of these cases is not whether the courts can seal the questionnaires, but rather the procedure the court has to follow before it enters such a sealing order, he said.

"If they actually do the proper weighing of the competing interest, then they can properly seal those questionnaires and they would do so in the majority of cases, but that just wasn't done here," said Witchely.

Less than two weeks after Cox's rulings, another division of Washington's Court of Appeals issued a ruling in a similar case concerning sealed juror questionnaires. The petitioner in In re Personal Restraint Petition of Stockwell challenged his earlier child molestation conviction on the grounds that the trial court did not conduct the proper inquiry prior to sealing the juror questionnaires. The appellate court again disagreed. Writing for the court, Judge David Armstrong stated that even if there was an error by the trial court, it affected only the public's right to "'open' justice" and did not prejudice the petitioner.

Notable in the Stockwell decision is the court's conclusion that a defendant is not the proper party to assert the public's right to open court proceedings. Armstrong's reasoning is reminiscent of Washington Supreme Court Justice Mary Fairhurst's concurring opinion in a 2009 case, State v. Strode, in which she objected to the "conflation of the rights of the defendant, the media, and the public." Fairhurst said that a "defendant should not be able to assert the right of the public or the press in order to overturn his conviction when his own right to a public trial has been safeguarded as required under Bone-Club or has been waived."

Eric M. Stahl, attorney at Davis Wright Tremaine, said that the media's rights after the Stockwell decision "are inline with what they were under the state Supreme Court decisions that came down last year, which is you can't seal without the appropriate showing." As a general matter in cases that deal with open court proceedings, "the Washington Supreme Court has staked out a very strong position favoring open public access to courts and it has applied that principle to not just proceedings, but to court records," said Stahl. He also noted that the media or any interested member of the public has a right to appear and challenge the closure.

While the outcome in the recent cases protects the media and public's access to court records, Stahl explained that, because these cases have arisen in the context of rape trials or sexual assault trials where jurors are being questioned about their own history, the trial court may find a ground for sealing that information.

Stahl described how courts and prosecutors are aware of the open government duty that courts have, and prosecutors do not want to see their convictions reversed because of an error in a procedure that is needed to assure public access.