The Bone-Club test

By William Wood, Attorney at Law

Called to jury duty?  No, I’m not going to rant about civic duty, or complain about the time it takes.

I’m going to tell you instead about a couple of judges overly sensitive to the feelings of prospective jurors.

Rene Paumier broke into a house.  Eric Wise broke into a minimart near Shelton.

Their convictions were overturned on appeal and new trials were ordered because, as stated by the Washington Supreme Court in rulings published last month, their rights to a public trial were violated when the trial judges in these two matters individually questioned potential jurors in their chambers rather than in an open courtroom.

SO WHAT?   Both the U.S. and Washington Constitutions guarantee a public trial.  As outlined by the Supreme Court in the Wise case, public trials are a core safeguard in our system of justice.

Whether by members of the media, or by victims, family or friends of a party or uninvolved passersby, any member of the public can keep watch over the administration of justice when the courtroom is open.

Openness deters perjury, tempers biases and undue partiality, is a check on judges and the judicial system, provides public scrutiny and prevents secret proceedings.

THE BACKGROUND:  In these two cases, the trial judge invited people called for jury duty to request a private meeting in chambers and not to be questioned in open court, and “if there is anything that is of a sensitive nature and you would prefer not to discuss it in this group setting, please let us know… we don’t intend to embarrass you in any way.”

Questioning of prospective jurors, called voir dire, is intended to assure that people who are biased, prejudiced or have some personal experience that would make it difficult or impossible for them to be impartial jurors are identified and not permitted to take a seat on a jury.

This scrutiny in open court is consistent with the concept of public trials and inviting people to escape the public eye when determining fitness to be on a jury compromises the open and public nature of the process.

ALWAYS OPEN?  Sure, there are times when it’s appropriate for a trial court to curtail this openness.

Avoiding damage to the defendant’s rights to due process that might be caused by publicity, the interest of the government in maintaining the secrecy of certain information and the inflammatory nature of the proceedings themselves might be some of those times.

In Washington, the test on determining when it is OK to close a court room is known as the “Bone-Club” test, named after a 1995 criminal case against defendant Joseph Bone-Club in which the prosecution called for the entire courtroom to be cleared so that an undercover narcotics detective could testify.

In reviewing whether the constitutional rights of the defendant in that case were violated because a portion of his trial was not public, our Supreme Court stated five criteria that a trial court must evaluate, on the record, before deciding to make non-public any portion of a trial.  They are:

(1) a showing of a compelling need,

(2) opportunity for anyone present to object,

(3) the proposed method for curtailing an open trial must be the least restrictive means available to protect the threatened interests,

(4) the court must weigh the competing interests of closure and the public right to know, and

(5) any closure order imposed must be no broader in its application or duration than necessary to serve its purpose.

SO WHAT’S THE PROBLEM?  In both the Paumier and the Wise cases, our Supreme Court said that no evaluation by the trial court seems to have occurred and thus no record that a “Bone-Club” analysis was undertaken, and that, our Court concluded, is a violation of constitutional rights.

Several justices dissented, stating among other things that the additional time and expense to hold a new trial is too high a price to pay for simply having failed to do a formal Bone-Club analysis before conducting voir dire in private.

Also suggested was that there should be some reason to believe that the failure to conduct a Bone-Club inquiry affected the outcome of the trials.

I think these dissents miss the point.  The idea here is protecting the right and the obligation that trials be conducted in public, with all proceedings in full view of anyone who cares to enter the courtroom.

If a trial judge decides that some portion of the trial can be held out of the public eye, that judge must first provide, on the written record, satisfaction of the Bone-Club test.

Anything less than this invites a court to conduct whatever inquiries or proceedings it pleases a judge to conduct in growing secrecy, simply in the name of efficiency, and then perhaps this leads some judge in the future to close the courtroom because it promotes convenience, and then ultimately a judge someday will decide that making all proceedings non-public isn’t a problem and will permit the public to attend only in certain circumstances, if at all.

That’s not only unconstitutional, it’s a bad situation.

THE LESSON:  Rights not protected are often easily lost, and it is no different with the right to a trial in full view of the public.

Hats off to the Washington Supreme Court for its clarity and insistence on preserving open and public courts.


This article is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Publishing this article does not create an attorney-client relationship between the author and any party. The opinions expressed in this article are the opinions of the individual author and not of any other person or entity.