WA Supreme Court: Bone Club Error Requires Actual and Substantial Prejudice in Context of PRP
Surprisingly, some issues have yet to be dealt with. In a personal restraint petition, you can collaterally attack the verdict sometimes based on certain constitutional rights. Here, Coggins requested a review based on questioning of jurors in chambers. The judge did not do what is called a Bone-Club analysis for courtroom closures. As those who are following the blog know, courts are open to the public. When they’re not open to the public, there has to be a reason for the closure. Usually, this would be attacked on appeal. When the time for appeal has passed, what needs to be shown?
Well, the court answered that question…kind of. Four justices held there was no right to review here because it required a showing of actual and substantial prejudice. One justice held there was no right to review because the defendant actually invited the courtroom closure. Four justices held that a public trial right violation in questioning jurors conclusively establishes prejudice.
So what did the one justice (Madsen) sitting in the middle say regarding actual and substantial prejudice? She said its the rule:
Nevertheless, because guidance is needed I would agree with the majority that the error here, failure to engage in the analysis outlined in State v. Bone-Club, 128 Wn.2d 254, 906 P .2d 325 (1995), requires a petitioner in a personal restraint petition to prove prejudice unless he can demonstrate that the error in his case '"infect[ ed] the entire trial process"' and deprive the defendant of '"basic protections,"' without which '"no criminal punishment may be regarded as fundamentally fair."'
Now, I have a certain appreciation for Madsen here. She looked to principles of justiciability to figure that she need not answer the question that was asked at all. Its very sound judicial reasoning. However, she sees the opinion is splitting four four, and she sees that this issue will come back unless she sets the record on this issue. Great opinion riding that appeals to the justiciability nerd in me.
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