Thursday, December 1, 2011
Saturday, October 8, 2011
Friday, August 26, 2011
I spend upwards of an hour familiarizing the jury panel with their role and the justice system's expectations of them. I explain all phases of the jury trial from Voir Dire through Deliberations in great detail. I "leave no stone unturned" and, based on my discussions with the jurors after the case, I am confident that they followed by instructions. They have told me that they recognized that they had an awesome responsibility to arrive at a fair verdict and that the parameters I set for them to follow kept them focused.
Wednesday, August 17, 2011
Tuesday, August 2, 2011
Wisconsin Statutes section 54.44(5), which governs guardianship actions in probate court, sets forth the general rule that these proceedings shall be closed to the general public unless the ward moves that the hearing be open.
Wisconsin Statutes section 55.10(3), which governs protective placement or services actions in probate court, sets forth the general rule that these proceedings shall be open to the general public unless the ward requests that the hearing be closed.
CASE LAW EXCEPTIONS TO THE RIGHT TO A PUBLIC TRIAL
In addition to statutory exceptions to the right to a public trial, case law does recognize other exceptions.
Under Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), a party seeking to bar the court's doors to the public in a criminal case must satisfy a four part test.
(1) The party who wishes to close the proceedings must show an overriding interest which is likely to be prejudiced by a public trial.
(2) The closure must be narrowly tailored to protect that interest.
(3) Alternatives to closure must be considered by the trial court. and
(4) The court must make findings sufficient to support the closure.
Under Braun v. Powell, 227 F.3d 908 (7th Cir. 2000), where an unjustified closure is trivial, there is also no constitutional violation.
Under Peterson v. Williams, 85 F.3d 39 (2nd Cir. 1996), the "triviality standard" looks to whether the actions of the court and the effect that they and on the conduct of the trial and whether it deprived the defendant of the protections conferred by the Sixth Amendment.
Under Vanness, supra, it is important to determine if critical portions of the trial were closed to the public in making a determination if the right to a public trial was violated.
Most recently in State v. Ndina, 315 Wis.2d 653 (2009), the Wisconsin Supreme Court addressed the Sixth Amendment right to a public trial for a criminal defendant. The court held that:
(1) while the right to a public trial it is an important right, and
(2) while there is a presumption of openness, and
(3) while the values served look to:
(a) ensure a fair trial,
(b) remind the court and the prosecutor of their responsibility to the defendant, and
(c) encourage witnesses to come forward, and
(d) discourage perjury,
that the right of a member of the public to attend can be forfeited or lost if justification is shown under Press-Enterprise Co., supra.
An examination of the United States and Wisconsin Constitutions and case law tells us that:
(1) The right to a public trial is the constitutional right of every criminal defendant. It is a precious right that must be closely guarded.
(2) Before the constitutional right to a public trial can be restricted the four part Press-Enterprise test must be met.
An examination of Wisconsin Statutes tells us that:
(1) In Wisconsin, the statutory right to a public hearing, open courtrooms and free access to every citizen is to be honored and respected in all court proceedings unless a statutory exception is present or unless Press-Enterprise test is met.