In re the Personal Restraint of Orange , 152 Wash. 2d 795 ( 2004 )

Ireland, J.

(dissenting) — I agree with the concurrence by Justice Madsen that the court may close a courtroom in order to protect a defendant’s right to a fair trial. As the concurrence points out, overcrowding may be a legitimate reason for closing a courtroom. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 n.18, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980). In fact, it is in the interest of the defendant to have a jury venire untainted by the distractions of warring family members and spectators mingling among them. Much of the jury inquiry during the claimed court closure was conducted in chambers. Allowing the jury venire to occupy all of the available seating in this case, to the exclusion of spectators, even family, was not an abuse of discretion. No member of the press claimed actual exclusion. The reference hearing showed the effect of the claimed closure was de minimis. Although the trial court should follow the five-step closure test of State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995), I reject the notion that failure to do so is subject to automatic reversal. I would remand the case for resentencing after dismissal of one of two charges of attempted murder of Marcel Walker and first degree assault of Walker, which the majority properly finds violates double jeopardy. Otherwise, I would affirm the verdict of the court in all respects. Therefore, I dissent.

After modification, further reconsideration denied January 20, 2005.