DocketNumber： No. 2011AP2424-CR & 2012AP918-CR
Judges： Abrahamson, Crooks, Prosser
Filed Date： 7/18/2014
Status： Precedential
Modified Date： 11/16/2024
¶ 1. These cases are before the court on certification by the court of appeals,
¶ 2. Fond du Lac County Circuit Judge Richard J. Nuss (Judge Nuss) presided over jury trials in Pinno and Seaton, including the voir dire proceedings. In both voir dire proceedings, the judge said he wanted the public to leave the courtroom to make room for large jury panels. Neither defendant objected, and both defendants were later found guilty by juries in trials that were completely open after the juries were selected.
¶ 3. The defendants, Travis J. Seaton (Seaton) and Nancy J. Pinno (Pinno), pursued postconviction relief, and in both cases Judge Nuss found that the courtroom had never actually been closed to all members of the public not part of the jury panel. In Seaton's Wis. Stat. § 974.06 motion, filed almost four years after the guilty verdict, Seaton alleged that a second, unknown closure took place in his case when someone stood in front of the courtroom doors to prevent the public from reentering the courtroom. Judge Nuss denied all postconviction motions, and these appeals followed.
¶ 5. We reach the following conclusions.
¶ 6. First, the Sixth Amendment right to a public trial extends to voir dire. Presley v. Georgia, 558 U.S. 209, 213 (2010). A judge's decision to "close" or limit public access to a courtroom in a criminal case requires the court to go through an analysis on the record in which the court considers overriding interests and reasonable alternatives as set out in Waller v. Georgia, 467 U.S. 39, 45, 48 (1984). The court must make specific findings on the record to support the exclusion of the public and must narrowly tailor the closure. Id.
¶ 7. Second, the Sixth Amendment right to a public trial may be asserted by the defendant at any time during a trial. A defendant who fails to object to a judicial decision to close the courtroom forfeits the right to a public trial, so long as the defendant is aware that the judge has excluded the public from the courtroom. Although the Supreme Court has categorized a violation of the right to a public trial as a structural error, that categorization does not mandate a waiver analysis, and a defendant need not affirmatively relinquish his right to a public trial in order to lose it. It would be inimical to an efficient judicial system if a defendant could sit on his hands and try his luck in a closed courtroom only to argue after his conviction that his Sixth Amendment right to a public trial had been violated.
¶ 9. Fourth, defendants must demonstrate prejudice to prove ineffective assistance of counsel when counsel fails to object to the closure of the courtroom. The categorization of the denial of the public trial right as structural error does not create a presumption of prejudice in ineffective assistance of counsel claims. Seaton and Pinno have not proven that they were prejudiced by their attorneys' failure to object to the exclusion of the public from the courtroom. Therefore, both defendants have failed to prove that their counsel was ineffective.
¶ 10. Finally, Seaton was not denied his right to an impartial judge. Judge Nuss's communications show that he was cognizant of his responsibilities under the Judicial Code of Conduct, and he did not appear to be biased. We presume that judges are impartial, and Seaton has not offered sufficient evidence to rebut that presumption. Therefore, Judge Nuss properly denied the recusal motion.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. State v. Seaton
¶ 11. Travis J. Seaton was charged with first-degree reckless homicide as a repeater contrary to Wis.
¶ 12. Seaton engaged Attorneys Gerald E Boyle and K. Richard Wells to represent him at trial, which was scheduled for March 24, 2008. Attorney Wells handled voir dire for the defendant.
¶ 13. Before voir dire began, Judge Nuss attempted to make room for the large incoming jury panel, indicating that he might clear the courtroom:
THE COURT: All right. Couple housekeeping matters that the Court will then address. First of all, just for those others that are in attendance,. . . there's a hundred jurors coming in. Obviously we're short on space. And their comfort and availability will not be compromised by anyone else in the courtroom if it becomes necessary, I'm just going to excuse everybody in the courtroom, that's the way it's going to be. We'll have to be certainly sensitive to that, I'm certainly sensitive to the victim, I'm certainly sensitive to the Defendant, but jurors come first. And so the Court will address that.
Let me just invite [the clerk's opinion]. With the space that we have, do you think the jurors will be able to be seated in here?
THE CLERK: I believe so. Twenty-four in the jury box. We'll probably have to clear the courtroom first.
*120 THE COURT: All right. And so we probably will do that just to be on the safe side.
¶ 14. No one objected.
¶ 15. The jury panel entered the courtroom at 9:40 a.m. Before the jury entered, the court disposed of several evidentiary issues and made the following concluding observation:
[T]he Court wants to address those others in attendance. If there is one hint of one word of any juror at all for any reason, all are going out. Okay? I'm not going to pick and choose or identify any particular individual. Mum is the word while the Court is engaged in its voir dire.... I don't expect any comments made, I don't expect any snickering, I don't expect any outbursts, I don't expect anything. And if one person says one thing or makes one comment that I can hear up here, the whole courtroom is going to be cleared of those individuals. All right?
(Jury enters the courtroom at 9:40 a.m.)
¶ 16. The record shows that the court actually seated 91 potential jurors, 14 of whom were ultimately selected for the jury. After the jurors were selected the court asked: "Does either attorney have any motions to make regarding the jury selection process?" Both the prosecutor, Assistant Attorney General Thomas L. Storm, and defense counsel, Richard Wells, specifically answered, "No, Your Honor." Then the jury was sworn and excused for lunch. Again the court asked counsel: "Counsel have anything for the Court?" Attorney Wells responded, "No."
¶ 17. On March 28, 2008, the jury found Seaton guilty of first-degree reckless homicide as a repeater, and on August 6, 2008, he was sentenced to 15 years in prison and 15 years of extended supervision. Seaton
¶ 18. On February 16, 2009, Seaton filed a postconviction motion pursuant to Wis. Stat. § 809.30. In that motion, Seaton argued that his sentence was too harsh, reasserted his argument that one of the jurors was biased, and argued that "other acts evidence" was used improperly. The circuit court held a hearing on the motion on April 2, 2009 and denied Seaton's motion in its entirety on April 13, 2009. On April 28, 2009, Seaton filed a notice of appeal. The court of appeals affirmed the circuit court on July 14, 2010. Seaton did not raise his present Sixth Amendment and ineffective assistance of counsel claims in the court of appeals.
¶ 19. On January 4, 2012, Seaton filed a Wis. Stat. § 974.06
¶ 20. Kirkpatrick wrote Judge Nuss to request an interview, but Judge Nuss declined that request in a letter dated December 29, 2011.
¶ 21. Also on December 28, Seaton's new attorney, Amelia Bizzaro (Attorney Bizzaro), filed an open records request with the Fond du Lac County Corporation Counsel for the names and contact information of the bailiffs assigned to Judge Nuss's courtroom on March 24, 2008. The Fond du Lac County Clerk of Courts granted the request in part on December 29, 2011, and supplied the names of the bailiffs but did not provide their contact information.
¶ 22. On January 4, 2012, the same day he filed the § 974.06 motion, Seaton also filed a motion requesting that Judge Nuss recuse himself. The circuit court held a hearing, on April 13, 2012, for argument on the § 974.06 and recusal motions. The hearing was limited to argument; it was not an evidentiary hearing.
¶ 23. At the hearing, Judge Nuss explained:
What happened quite simply is that we had 91 jurors to come in and the Court in anticipation of that jury panel being brought in ... noted that some individuals were seated in areas where quite frankly the jury panel was going to have to sit. I had to sit 67 people behind the rail someplace.
He said that he "wanted to be very respectful of the
But what happened was this Court did nothing more than excuse those that in fact were in the courtroom to step out until that jury was brought in ... . And the Court was very careful never to lock it, never to close it... . It was for the sole and exclusive purpose of facilitating the sitting of the jury. Once that jury was seated those individuals were welcome back in. We tried to bring the jury up as close as we could. We did that. There was space. There were others there.
(Emphasis added.)
¶ 24. At the hearing, Judge Nuss denied the request for an evidentiary hearing as well as the motions for recusal and postconviction relief, and he issued a written order denying the same on April 16, 2012. Seaton appealed the denial of the § 974.06 and recusal motions on April 23, 2012.
B. State v. Pinno
¶ 25. Judge Nuss presided at a second, unrelated jury trial approximately 21 months after the Seaton verdict. The case involved Nancy J. Pinno who was accused of assisting her biological son, Brandon Mueller (Mueller), in disposing of the body of his girlfriend, whom Mueller had killed a few weeks earlier. Pinno purportedly transported the woman's body in her car to the house of a friend. There, Mueller and Pinno's friend burned the body before they dumped the woman's ashes into a hole they drilled in the ice on Lake Winnebago.
¶ 27. Pinno was represented by Attorney Catherine Block (Attorney Block). In the first hour of the trial, before voir dire, Judge Nuss made several comments about excusing non-jurors during voir dire.
MS. BLOCK: The two gentlemen who just walked in are friends of Nancy Pinno. They are not witnesses.
THE COURT: They will be excused during the voir dire.
MS. BLOCK: Understand.
THE COURT: So as soon as we get done with the current issues ... we'll then, as far as those non jurors are concerned, they're all going to be excused. And there are no victim's family issues here.... [T]here's victim family, but there's nobody here in that regard, correct?
MS. WERNER: Not yet. There will be.
THE COURT: Later, okay. I just want to give deference — a victim certainly is entitled to be in the courtroom during voir dire, and I just want to respect that. So if they are here, I want to give deference to that. If they are not here, it's a nonissue.
*127 MS. WERNER: They will be here this morning.
THE COURT: Okay. But once we start voir dire there won't be anybody coming in and out of here until after the jury is selected.
¶ 28. Before the jury came in, Judge Nuss said:
Others that are in the courtroom,... when we come back we're going to take a brief recess when we come back. Other than the jury, nobody will be in the courtroom. Okay. So just have the jury panel in here. I want no one else in here during the entire voir dire process until the jury is selected. Any press in here? (No response) I want no press in here either.
Any other housekeeping? (No response.) Excellent. Let's recess....
No one objected to the order closing voir dire. After the recess and before the jury came in, Judge Nuss gave counsel an opportunity to raise any concerns when he asked, "Any other matters that require judicial intervention before we have the jury brought in?" District Attorney Daniel Kaminsky replied, "Nothing from the State." Attorney Block responded, "I don't believe so, Your Honor."
¶ 29. After the jury was selected, Judge Nuss asked counsel: "Does either attorney have any motions to make regarding the jury selection process?" Both District Attorney Kaminsky and Attorney Block replied: "No, Your Honor."
¶ 30. On December 18, 2009, the jury found Pinno guilty of mutilating a corpse as a party to the crime and of obstructing an officer. She was sentenced to seven and a half years of confinement and five years of extended supervision for the mutilating a corpse count,
¶ 31. At the evidentiary hearing for the postconviction motion, Judge Nuss explained:
I believe we had a jury panel of 85, there might have been 83 or something that actually showed up ... .
And so the Court given due respect to the public trial aspect of this matter recognized that during voir dire. .. the Court had no choice other than to limit admission of the public to the courtroom in the interest of justice and for other reasons that I'll comment on. But it was a numbers issue at that point.
Judge Nuss put his clerk, who was sitting in the courtroom during voir dire, on the stand, and she stated that the courtroom "was never locked." The clerk also said that "there [were] people that were in the courtroom and that were allowed to come in and out of the courtroom" during the voir dire process, but she could not remember who came in and could not describe them.
¶ 32. Attorney Block also took the stand during the motion hearing. Attorney Block testified that she did not object to the court's exclusion of the public
¶ 33. After hearing all the evidence, Judge Nuss denied Pinno's motion orally and explained his reasoning:
With regard to the issue of closure, I just want to make it eminently clear here, I never closed the courtroom. The courtroom was never closed. It was never secured. It was never locked. The word was never mentioned. There seems to be an aura of emphasis that this was in fact a closed hearing. It was not.
The court made it clear that it wanted to ensure that the jury pool was not tainted in any way and noted that "what is of importance also is the publicity that this case had gotten ... ."
¶ 34. The circuit court issued a written order denying Pinno's postconviction motion on October 3, 2011. Pinno filed a notice of appeal on October 14, 2011.
¶ 35. As noted, these cases came to this court on certification, which we accepted on February 25, 2013.
¶ 36. This court applies constitutional principles to historical facts to determine whether a criminal defendant was denied his Sixth Amendment right to a public trial. State v. Ndina, 2009 WI 21, ¶ 45, 315 Wis. 2d 653, 761 N.W.2d 612. We uphold the circuit court's findings of historical fact unless they are clearly erroneous. Id. "The appellate court determines the application of constitutional principles to those evidentiary or historical facts independently of the circuit court and court of appeals but benefiting from those courts' analyses." Id. (footnote omitted).
¶ 37. Both cases raise ineffective assistance of counsel claims. "Whether counsel was ineffective is a mixed question of fact and law." State v. Balliette, 2011 WI 79, ¶ 19, 336 Wis. 2d 358, 805 N.W.2d 334 (citation omitted). We will uphold the circuit court's findings of fact unless they are clearly erroneous, but ultimately, whether counsel provided ineffective assistance is a question of law subject to de novo review. Id. (citations omitted).
¶ 38. Seaton argues that he is entitled to an evidentiary hearing based on his Wis. Stat. § 974.06 motion. Whether a postconviction motion is sufficient to require an evidentiary hearing is a question of law that an appellate court reviews de novo. Id., ¶ 18. If the motion sets forth facts that, if true, would entitle the defendant to relief, normally the circuit court must hold an evidentiary hearing. Id. "However, if the motion does not raise facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record
¶ 39. Finally, Seaton argues that Judge Nuss should have recused himself. Whether a judge is required to recuse himself is a question of law subject to de novo review. State v. Walberg, 109 Wis. 2d 96, 104-05, 325 N.W.2d 687 (1982); State v. Goodson, 2009 WI App 107, ¶ 7, 320 Wis. 2d 166, 771 N.W.2d 385.
III. DISCUSSION
¶ 40. The Sixth Amendment to the United States Constitution provides an accused the right to a public trial:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial*132 jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
U.S. Const, amend. VI. The Supreme Court has determined that the public trial right is applicable to the
¶ 41. The right to a public trial "has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution." In re Oliver, 333 U.S. at 270. An open courtroom "is an effective restraint on possible abuse of judicial power" and a deterrent to arbitrary decision-making. Id. (footnote omitted).
¶ 42. This court indicated in Ndina that the Sixth Amendment right to a public trial advances four core values: "(1) to ensure a fair trial; (2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions; (3) to encourage witnesses to come forward; and (4) to discourage perjury." Ndina, 315 Wis. 2d 653, ¶ 49 (quoting Peterson v. Williams, 85 F.3d 39, 43 (2d Cir. 1996) (citing Waller, 467 U.S. at 46-47)). However, the Ndina court noted that "[t]hese four values do not necessarily represent an exhaustive list of the values served by the Sixth Amendment right to a public trial." Id., ¶ 49 n.25 (citing Peterson, 85 F.3d at 43 n.5).
¶ 43. The right to a public trial includes suppression hearings, Waller, 467 U.S. 39, and voir dire, Presley, 558 U.S. 209; Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (The Court in Press-Enterprise relied on the First Amendment, not the Sixth Amendment, to support the public trial right for the press.).
¶ 44. Acknowledging the potential breadth of the right to a public trial, the fact remains that the right is not absolute. Ndina, 315 Wis. 2d 653, ¶ 44. The Supreme Court "has made clear that the right to an open
¶ 45. To close a courtroom proceeding to the public in a criminal case without violating a defendant's public trial right, the circuit court must ensure that the following four requirements are satisfied: (1) the party advocating for closure "must advance an overriding interest that is likely to be prejudiced"; (2) the closure must be narrowly tailored to protect the overriding interest; (3) the judge must consider reasonable alternatives to excluding the public; and (4) the judge must make specific findings to support the exclusion of the public so that a reviewing court may assess whether the courtroom was properly closed. Waller, 467 U.S. at 45, 48.
¶ 46. In addition to qualifying the denial of the public trial right as described, the Waller Court also determined that "the remedy should be appropriate to the violation" to prevent defendants from taking advantage of the error. See id. at 50. In Waller, the trial court violated the defendant's right to a public trial when it
¶ 47. Because the right to a public trial is not absolute, excluding the public from the courtroom will not always be error. When deprivation of the public trial right is an error, however, the Supreme Court has said that the error is structural — that it defies harmless error analysis. Thus, it is important to consider how excluding the public from voir dire fits within the framework of structural error.
A. Structural Error
¶ 48. Both Pinno and Seaton contend that because violation of an accused's public trial right constitutes "structural error," the right cannot be forfeited — it must be waived. Consequently, they argue, any violation of the public trial right must be reviewed under a knowing, voluntary waiver standard.
¶ 49. Although "most constitutional errors can be harmless," there are a very limited number of structural errors that require automatic reversal. Neder v. United States, 527 U.S. 1, 8 (1999) (citation omitted). Structural errors are different from regular trial errors because they "are structural defects in the constitution of the trial mechanism, which defy analysis by
¶ 50. The limited class of structural errors include: complete denial of the right to counsel,
¶ 51. Although the Supreme Court has cited Waller in saying that the denial of the public trial right is structural error,
¶ 52. The fact that Waller says the public trial right is not absolute and cautions that courts should impose a remedy that is appropriate to the violation undermines the "structural" nature of the error. Thus, we are left with a questionable proposition: excluding the public from the courtroom is structural error unless it is not error at all. We recognize the importance of maintaining and enforcing constitutional rights, but we have difficulty with a label — structural error — that equates the right to a completely open criminal trial with the right to an attorney or the right to an unbiased judge.
¶ 53. In any event, if the exclusions of the public during the voir dire proceedings in Pinno and Seaton were structural errors, that does not end the analysis. The Supreme Court's decision regarding the closure of voir dire in Presley provides a helpful factual comparison. In Presley, the judge told the defendant's uncle, who was the lone courtroom observer, that he had to leave the courtroom for the duration of voir dire. Id. at
¶ 54. While there are similarities among Presley and the two cases before us, there is one crucial difference. In Presley, the defendant immediately objected to the closure. Id. at 210. Even granting that the violation of the right to a public trial is structural error, the Supreme Court has never said that the structural nature of that error exempts the defendant from an obligation to object to a violation. See Freytag v. Comm'r, 501 U.S. 868, 893 (1991) (Scalia, J., concurring) (expressing concern that the Court failed to determine whether a structural right may be forfeited by failure to object and opining that "structural constitutional claimsG have no special entitlement to review."). Freytag involved a different kind of structural defect — an alleged violation of the Appointments Clause and separation of powers — but Justice Scalia's analysis is persuasive as it pertains to the type of error in Pinno and Seaton. Justice Scalia commented:
Personal rights that happen to bear upon governmental structure are no more laden with public interest (and hence inherently nonwaivable by the individual) than many other personal rights one can conceive of.. . for example,... the Sixth Amendment right to a trial that*139 is "public," provide[s] benefits to the entire society more important than many structural guarantees; but if the litigant does not assert [the right] in a timely fashion, he is foreclosed.
Id. at 895-96. (citations omitted).
¶ 55. To decide this case, we must turn now to whether the right to a public trial may be forfeited by the defendant's failure to object to a courtroom closure.
B. Waiver and Forfeiture
¶ 56. We have recognized two distinct ways in which a defendant may give up his rights: waiver and forfeiture. "Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right." Ndina, 315 Wis. 2d 653, ¶ 29 (quoting United States v. Olano, 507 U.S. 725, 733 (1993)). The forfeiture rule facilitates fair and orderly administration of justice and encourages parties to be vigilant lest they lose a right by failing to object to its denial. Id., ¶ 30. Contemporaneous objections give judges the opportunity to remedy an error so that it does not fester beneath the proceedings and infect the judgment of the court. Forfeiture "prevents attorneys from 'sandbagging' opposing counsel by failing to object to an error for strategic reasons and later claiming that the error is grounds for reversal." Id. (footnote omitted).
¶ 57. In contrast, the waiver rule applies to rights that "are so important to a fair trial that courts have stated that the right is not lost unless the defendant knowingly relinquishes the right." Id., ¶ 31. To decide whether a forfeiture or waiver analysis is appropriate,
¶ 58. We can think of at least four reasons to support this conclusion.
¶ 59. First, although the public trial right is very important, the absence of the public for part or even all of a criminal trial does not necessarily mean that the trial was unfair — that it did not serve its function as a reliable vehicle for the determination of guilt or innocence or that the punishment resulting from the trial was not legitimate. Juvenile proceedings are generally closed to the public, Wis. Stat. § 48.299, and many criminal hearings or even trials have no spectators to observe the proceedings. The presence of the public at a trial serves as a deterrent against misconduct or unfairness in the trial, but the absence of the public does not automatically lead to misconduct or unfairness or any other circumstance prejudicial to the defendant.
¶ 60. Second, a requirement that a defendant must waive his public trial right in order to lose it
¶ 61. Third, the procedural efficiency in requiring objections to the denial of the public trial right favors a forfeiture analysis. See Soto, 343 Wis. 2d 43, ¶¶ 36-38. If waiver were required, a defendant could tax judicial resources by demanding a new trial if the judge excluded the public, even if the exclusion did not affect the proceedings. For his inaction, the defendant could receive a fair trial as well as an automatic reversal if he did not like the outcome. In such a scenario, waiver encourages gamesmanship. The new trial would be a "windfall" for the defendant, a result that the Waller Court explicitly tried to prevent. Balancing the importance of the public trial right and the efficiency of a contemporaneous determination of the right, it is evident that forfeiture is the proper analytical framework.
¶ 62. Fourth, using a forfeiture analysis in this context is supported by language in both Waller and Presley. The Waller Court concluded, "In sum, we hold that under the Sixth Amendment any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press-Enterprise and its predecessors." Waller, 467 U.S. at 47 (emphasis added) (footnote omitted). Similarly, Presley said that "the accused does have a right to insist that the voir dire of the jurors be public . . . ." Presley, 558 U.S. at 213 (first emphasis added). Both cases use phrases suggesting that the onus is on the defendant to assert his right.
¶ 63. Contrary to the contentions of Pinno and Seaton, the structural nature of the error in denying the right to a public trial does not command a waiver analysis. The Supreme Court has implied in dicta that a defendant may forfeit his right to a public trial. See Peretz v. United States, 501 U.S. 923, 936 (1991) (citing Levine v. United States, 362 U.S. 610, 619 (1960)), for the proposition that a defendant "waives" his right to a public trial by failing to object to courtroom closure). In Levine, the Court analyzed under the Due Process Clause the closure of the courtroom during a grand jury proceeding. Levine, 362 U.S. at 616. The Court said:
Due regard generally for the public nature of the judicial process does not require disregard of the solid demands of the fair administration of justice in favor of a party who, at the appropriate time and acting under advice of counsel, saw no disregard of a right, but raises an abstract claim only as an afterthought on appeal.
Id. at 619-20. Although Levine was not decided on Sixth Amendment grounds, we find its reasoning persuasive here and decline to allow defendants who failed to object to the closure of a courtroom to raise that issue for the first time after the trial is over.
1. Seaton's Voir Dire
¶ 64. Chronologically, Seaton's case was tried first, but Seaton's claim that his Sixth Amendment right to a public trial was violated did not come until nearly four years after the jury found him guilty.
¶ 65. Seaton's argument that Judge Nuss's order and the bailiffs' blocking of the courtroom doors were two separate violations of his public trial right is unpersuasive. Seaton had an opportunity to object to the closure of the courtroom when Judge Nuss ordered the public to leave, and he did not take that opportunity. The bailiffs' actions were part of that same closure. This would be a different case if Judge Nuss had made no order closing the courtroom, and bailiffs, acting on their own and without notifying anyone in the courtroom, had prevented the public from entering. A defendant must have an opportunity to object to the closure if he is to forfeit his right to a public trial. See Ndina, 315 Wis. 2d 653, ¶ 135 (Prosser, J., concurring) (stating that a defendant must "enter a timely objection to a violation of the right [to a public trial] unless the defendant is not in a position to do so"). In this case, Seaton and his three attorneys were aware that the judge made an order excluding the public, and no one objected. Courtroom personnel did not create a separate closure if they acted to effect the court's order.
¶ 66. An evidentiary hearing is normally required if the § 974.06 motion alleges "sufficient facts that, if true, show that the defendant is entitled to relief." Balliette, 336 Wis. 2d 358, ¶ 18 (citation omitted).
2. Pinno's Voir Dire
¶ 67. In Pinno's trial, Judge Nuss said, "[0]nce we start voir dire there won't be anybody coming in and out of here until after the jury is selected." No one objected to Judge Nuss's statement. Twenty-five pages later in the transcript, Judge Nuss reiterated that the courtroom would be closed: "Other than the jury, nobody will be in the courtroom."
¶ 68. Pinno argued in a Wis. Stat. § 974.02 motion after trial that her right to a public trial was denied, and Judge Nuss held an evidentiary hearing. At that
3. The Obligations of Circuit Courts
¶ 69. Despite our conclusion that Seaton and Pinno forfeited their rights to a public trial by failing to object to the exclusion of some members of the public, we pause to reflect on the circuit court's handling of voir dire. We do not doubt that the court had good intentions, but the court's good intentions cannot hide its seriously mistaken approach in the two cases.
¶ 70. The Sixth Amendment affords an accused criminal defendant the right to a public trial. This right has deep historical roots. The news media and the public have an overlapping right that is guaranteed by the First Amendment. These rights are buttressed by the Wisconsin Constitution and state statutes. They may not be diminished without very careful consideration that is detailed on the record.
¶ 71. In these jury cases, the court was faced with large jury panels that would take up most of the seating space in the courtroom. It was not unreasonable for the
¶ 72. When a party moves to close a courtroom in whole or in part, the court is accustomed to requiring the moving party to explain and justify the "overriding interest" that warrants this "rare" action by the court. The movant has the burden of showing why its identified interest will be prejudiced by a public trial. The closure must be tailored to protect that interest, alternatives to closure must be considered, and judicial findings sufficient to support the closure must be made.
¶ 73. These requirements are not dispensed with when the court itself initiates the closure. The court must consult with the parties, one of whom has a constitutional right to a public trial and one of whom has the dual responsibility of promoting the public interest in openness and protecting the record to avoid reversible error.
¶ 74. Here the court did not protect the record. The transcript suggests that the court made up its mind to close the courtroom without explaining the situation fully or soliciting the input of affected interests. This flawed approach precluded a "tailored" solution or an alternative to closure or negotiated accommodations. This approach discouraged collaboration. This approach did not result in satisfactory findings for the record. The court's approach may have created disgruntlement on the part of people visiting the court, and it certainly fostered these appeals.
¶ 76. Judges should also be cognizant of Wis. Stat. § 757.14 and should follow this court's guidance:
The trial judge should recite on the record the factors that impel him to close the courtroom and why such factors override the presumptive value of a public trial. The findings of fact must be made with specificity. The process must be a rational one, and the rationality of it must be demonstrated on the record, showing that the conclusion was reached on facts of record or which are reasonably derived by inference from the record. Upon review an appellate court should be able to determine from the record whether discretion was in fact exercised and whether a reasonable judicial mind could have reached the conclusion it did. A trial court is required to hold a hearing and publicly reach a conclusion based on the exercise of discretion prior to ordering a closing. The parties, and members of the public present in court, may appear at such hearing.
State ex rel. La Crosse Tribune v. Circuit Court for La Crosse Cnty., 115 Wis. 2d 220, 236-37, 340 N.W.2d 460 (1983). "We agree with Professor LaFave that '[g]enerally, the best course of action is for the trial judge to hold an evidentiary hearing on the issue of closure' when an order of the trial court implicates the Sixth Amendment right to a public trial." Ndina, 315 Wis. 2d 653, ¶ 63 (brackets in original) (quoting 6 Wayne R. LaFave et al., Criminal Procedure § 24.1(b), at 304 (3d ed. 2007)).
¶ 78. Fairness is essential to our system of justice. This fairness should be a pride of every court. It is hard to demonstrate this fairness if the courtroom is closed — if citizens who have done nothing wrong are shooed away. A judge should respect the importance of the duty to facilitate justice at every stage of the proceeding and should exercise great care that no rights are violated.
¶ 79. "Both the prosecutor and defense counsel should bring the Sixth Amendment right to a public trial to the circuit court's attention and should assist the circuit court in crafting a closure order consistent with the Sixth Amendment's 'basic tenet of our judicial system.' " Ndina, 315 Wis. 2d 653, ¶ 85 (quoting State v. Vanness, 2007 WI App 195, ¶ 8, 304 Wis. 2d 692, 738 N.W.2d 154).
C. Ineffective Assistance of Counsel
¶ 81. Having determined that Pinno and Seaton forfeited their rights to a public trial, we turn now to the claims of ineffective assistance of counsel. To raise a claim of ineffective assistance of counsel, "a defendant must show both (1) that his counsel's representation was deficient and (2) that this deficiency prejudiced him so that there is a 'probability sufficient to undermine the confidence in the outcome' of the case." State v. Erickson, 227 Wis. 2d 758, 768, 596 N.W.2d 749 (1999) (citing Strickland v. Washington, 466 U.S. 668, 694 (1984); State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990)).
¶ 82. To demonstrate deficient performance, a defendant must show that "counsel's representation fell below an objective standard of reasonableness." State v. Franklin, 2001 WI 104, ¶ 13, 245 Wis. 2d 582, 629 N.W.2d 289 (quoting Strickland, 466 U.S. at 688). To demonstrate prejudice, the defendant must show that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id., ¶ 14 (quoting Strickland, 466 U.S. at 687). Thus, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors,
¶ 83. Pinno and Seaton both argue that because the right to a public trial is structural, prejudice must be presumed when counsel fails to object to a closure. However, the circumstances in which prejudice is presumed are rare. We presume prejudice: (1) "when the effective assistance of counsel has been eviscerated by forces unrelated to the actual performance of the defendant's attorney," such as when counsel is denied entirely during critical stages in judicial proceedings; (2) when the circumstances are such that even a competent attorney could not provide effective assistance, such as when the state or the court interferes with counsel's representation; and (3) when the attorney engages in egregious conduct far outside the bounds of effective assistance such as providing representation under a conflict of interest or failing to present known evidence that calls into question the defendant's competency to stand trial. Erickson, 227 Wis. 2d at 769-71 (citations omitted); see Bell v. Cone, 535 U.S. 685, 695-98 (2002); Strickland, 466 U.S. at 692-93; United States v. Cronic, 466 U.S. 648, 659-60 (1984).
¶ 84. This court also has presumed prejudice when defense counsel failed to object when the prosecutor materially breached a plea agreement with respect to sentencing by recommending prison time instead of remaining silent as agreed. State v. Smith, 207 Wis. 2d 258, 280-81, 558 N.W.2d 379 (1997). In deciding to
¶ 85. We declined to extend the presumption of prejudice in Smith to a failure to object to a six-person jury in a misdemeanor case. See Franklin, 245 Wis. 2d 582, ¶ 10. Even though it is difficult to assess the harm from a six-person jury as opposed to a twelve-person jury, we determined that "six-person juries do not invoke interests of justice factors which require an automatic finding of prejudice." Id., ¶ 23. Moreover, when the case does not fall into one of the three categories in which prejudice is presumed, there is prejudice only when counsel's errors deprive the defendant of a fair trial. Id., ¶ 24. Because the denial of a twelve-person jury does not fit within the three categories in which we presume prejudice, no prejudice was presumed. Id., ¶¶ 25-26. We reach the same conclusion regarding the denial of the right to a public voir dire.
¶ 86. Given that prejudice is rarely presumed, an error does not automatically receive a presumption of prejudice merely because it is deemed structural.
1. Seaton's Ineffective Assistance Claim
¶ 87. Seaton argues in his Wis. Stat. § 974.06 postconviction motion that his trial counsel was ineffective. However, Seaton's motion does not allege sufficient facts to entitle him to an evidentiary hearing. Seaton makes the conclusory argument that "[a]ny failure to object was likely based on oversight or inat
2. Pinno's Ineffective Assistance Claim
¶ 89. Pinno argues that because the judge's exclusion of the public deprived her of her Sixth Amendment right, her counsel's failure to object was unreasonable and therefore constituted deficient performance. She asserts that the failure to object was likely due to oversight or inattention. However, these arguments find little support.
¶ 90. At the postconviction motion hearing, Attorney Block said that she did not object to the exclusion of the public for several reasons. She said that the court made that order before the court took a break, and there was no indication that the courtroom was closed when they came back, so there was no need to object. Attorney Block also said that public voir dire could have potentially had a negative effect on the jury, probably because of the inflammatory nature of the publicity
¶ 91. Even assuming Attorney Block's performance was deficient, Pinno has not proven any prejudice. Pinno merely argues that her attorney's failure to object should not be subject to a harmless error analysis and argues that prejudice should be presumed. However, harmless error and prejudice are different inquiries. A presumption of harm from an error to which counsel objected does not compel a presumption of prejudice when counsel fails to object.
D. Seaton's Recusal Motion
¶ 92. "A fair trial in a fair tribunal is a basic requirement of due process." State v. Carprue, 2004 WI
¶ 93. The relevant recusal standard in the Wisconsin Statutes is a subjective one. A judge must recuse himself if he "determines that, for any reason, he ... cannot, or it appears he ... cannot, act in an impartial manner." Wis. Stat. § 757.19(2)(g). This statute "is clearly drafted so as to place the determination of partiality solely upon the judge." State v. Harrell, 199 Wis. 2d 654, 664, 546 N.W.2d 115 (1996) (citing State v. Am. TV and Appliance of Madison, Inc., 151 Wis. 2d 175, 182-83, 443 N.W.2d 662 (1989)); see State v. Rochelt, 165 Wis. 2d 373, 379, 477 N.W.2d 659 (Ct. App. 1991) ("The trial judge's declaration that he was not biased satisfies the subjective test."). A reviewing court decides objectively whether the judge actually made the subjective determination. Harrell, 199 Wis. 2d at 664. In this case, Judge Nuss said, "I take great pride in my impartiality .... I don't think at any time in the Seaton case [have] my standards with regard to that ever wandered." Later on, Judge Nuss explicitly considered the subjective bias test:
*158 The subjective test is one that I just do internally, whether or not there has been something presented that has polarized me to a point where either the State or the defendant's rights in further proceedings are in any way compromised because of preconceived opinions that this Court may have with regard to subsequent decisions. Well, I can assure both sides that that never presented itself in this case, to this day it doesn't. I maintain I'm extremely fair and impartial.
(Emphasis added.) Judge Nuss determined that he was not biased; therefore, he complied with Wis. Stat. § 757.19(2)(g).
¶ 94. In addition to the requirement that a judge must reach a subjective determination that he is not biased under Wis. Stat. § 757.19(2)(g), the Due Process Clause requires an objective inquiry. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 884, 886-87 (2009) (contribution of roughly $3 million to judge's campaign from a person with a personal stake in the case created "serious risk of actual bias" that rose to an unconstitutional level). However, "The Due Process Clause demarks only the outer boundaries of judicial disqualifications." Id. at 889 (quoting Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 828 (1986)). "[M]ost matters relating to judicial disqualification [do] not rise to a constitutional level." Id. at 876 (brackets in original) (quoting FTC v. Cement Inst., 333 U.S. 683, 702 (1948)). "Because the codes of judicial conduct provide more protection than due process requires, most disputes over disqualification will be resolved without resort to the Constitution." Id. at 890. Judge Nuss's conduct does not approach the extreme circumstances that violate due process. Thus, we turn to the Wisconsin Supreme Court Rules (SCR) to analyze Seaton's recusal claim.
¶ 96. More generally, SCR 60.04(4) says:
[A] judge shall recuse himself or herself in a proceeding when the facts and circumstances the judge knows or reasonably should know establish one of the following or when reasonable, well-informed persons knowledgeable about judicial ethics standards and the justice system and aware of the facts and circumstances the judge knows or reasonably should know would reasonably question the judge's ability to be impartial!)]
SCR 60.04(4). None of SCR 60.04(4)'s enumerated circumstances fits the facts of this case. The comment to SCR 60.04(4) gives an example of a judge who is seeking employment from a law firm; such a judge must recuse himself from cases in which that law firm would appear. The comment also references Wis. Stat. § 757.19 as setting forth circumstances when the judge must dis
¶ 97. In Seaton's case, Judge Nuss was careful to foster the appearance of impartiality. In response to Kirkpatrick's letters to him, Judge Nuss denied an interview request "in order to insure that the integrity of the official court file and record are preserved" and noted that the Code of Judicial Ethics and Supreme Court Rules prohibited him from granting the interview request. Judge Nuss's response shows that he took care to avoid appearing partial. Although Judge Nuss did state that "at no time was either[] party's right to a public trial compromised during either the jury selection process or at any other time," that comment did not rise to the level of an appearance of bias, nor was that comment enough to overcome the presumption of impartiality. Therefore, Judge Nuss properly denied Seaton's recusal motion.
IV CONCLUSIONS
¶ 98. We reach the following conclusions.
¶ 99. First, the Sixth Amendment right to a public trial extends to voir dire. Presley, 558 U.S. at 213. A judge's decision to "close" or limit public access to a courtroom in a criminal case requires the court to go through an analysis on the record in which the court considers overriding interests and reasonable alternatives as set out in Waller, 467 U.S. at 45, 48. The court must make specific findings on the record to support the exclusion of the public and must narrowly tailor the closure. Id.
¶ 101. Third, the records in these cases are clear that neither Seaton nor Pinno objected to the alleged courtroom closure. In Seaton's case, the allegation that courtroom personnel prevented the public from reentering the courtroom does not alter the analysis because Seaton was aware of the initial exclusion. If courtroom personnel did prevent the public from coming back into the courtroom, that prevention was part of the initial exclusion. Therefore, Seaton and Pinno both forfeited their rights to a public trial.
¶ 102. Fourth, defendants must demonstrate prejudice to prove ineffective assistance of counsel when counsel fails to object to the closure of the courtroom. The categorization of the denial of the public trial right as structural error does not create a presumption of prejudice in ineffective assistance of counsel claims. Seaton and Pinno have not proven that they were prejudiced by their attorneys' failure to object to the
¶ 103. Finally, Seaton was not denied his right to an impartial judge. Judge Nuss's communications show that he was cognizant of his responsibilities under the Judicial Code of Conduct, and he did not appear to be biased. We presume that judges are impartial, and Seaton has not offered sufficient evidence to rebut that presumption. Therefore, Judge Nuss properly denied the recusal motion.
By the Court. — The judgment and order of the circuit court are affirmed.
All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
References to a closed courtroom in this opinion refer to the exclusion of at least some members of the public from the courtroom. The opinion does not use "closure" to suggest that no one, other than the parties and their attorneys, is or was permitted to be present in the courtroom.
State v. Pinno, Nos. 2011AP2424-CR & 2012AP918, unpublished slip op. (Wis. Ct. App. Dec. 5, 2012).
In the motion, Seaton alleged that one of the jurors encountered Seaton's aunt at a gas station before the trial and told her that he had read a news article about Seaton and was convinced that Seaton was guilty. The juror did not reveal that conversation during voir dire. At a hearing on the motion for a mistrial on October 31, the allegedly biased juror testified that he did not get the paper and did not read anything about the trial before it began. He said he did not talk to anyone about the trial before it began and did not know what the charges against Seaton were before trial.
Up to this point, Seaton was represented by Boyle, Boyle & Boyle, S.C. Seaton subsequently retained Bizzaro Law LLC to petition this court for review after the first appeal and to pursue other postconviction relief.
Wisconsin Stat. § 974.06(1) states:
(1) After the time for appeal or postconviction remedy provided in s. 974.02 has expired, a prisoner in custody under sentence of a court or a person convicted and placed with a*122 volunteers in probation program under s. 973.11 claiming the right to be released upon the ground that the sentence was imposed in violation of the U.S. constitution or the constitution or laws of this state, that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
(4) All grounds for relief available to a person under this section must be raised in his or her original, supplemental or amended motion. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the person has taken to secure relief may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended motion.
On November 13, 2011, juror Lisa Krusick told Kirkpatrick that the jury box and courtroom seats were filled with
The note said, "Request denied given absence of proper basis, lack of justification warranting the same and in the public interest." In a post scriptum, Judge Nuss said, "This case was affirmed on appeal & petition for review before the Supreme Court denied. Given the same the Court considers this case closed."
In the letter, Judge Nuss said that information about the bailiffs was not available when Kirkpatrick requested it earlier because the record was still at the Wisconsin Supreme Court,
The court denied the motion at a hearing on November 16, 2009.
Pinno was represented by Attorney Catherine Block until the postconviction stage of the proceedings, at which point Attorney Leonard Kachinsky was appointed to represent her.
Persons other than the defendant may invoke the right to a public trial under the First Amendment. See Presley v. Georgia, 558 U.S. 209, 212 (2010) (citing Press-Enterprise Co. v. Superior Court of Cal., Riverside Cnty., 464 U.S. 501 (1984)). However, our analysis is limited to the Sixth Amendment right to a public trial. See Presley, 558 U.S. at 213 ("The extent to which the First and Sixth Amendment public trial rights are coextensive is an open question, and it is not necessary here to speculate whether or in what circumstances the reach or protections of one might be greater than the other.").
In addition to the First and Sixth Amendments, Wis. Stat. § 757.14 also provides a basis for the public trial right. That statute says:
The sittings of every court shall be public and every citizen may freely attend the same, except if otherwise expressly provided by law on the examination of persons charged with crime; provided, that when in any court a cause of scandalous or obscene*132 nature is on trial the presiding judge or justice may exclude from the room where the court is sitting all minors not necessarily present as parties or witnesses.
Wis. Stat. § 757.14; see State ex rel. La Crosse Tribune v. Circuit Court for La Crosse Cnty., 115 Wis. 2d 220, 233, 340 N.W.2d 460 (1983) (applying Wis. Stat. § 757.14 to voir dire proceeding). The defendants do not mention this statute in their briefs as it would likely not provide the remedy they seek. In La Crosse Tribune, the court ordered that the transcript be given to the plaintiff newspaper as a remedy for the judge's improper decisions to hold voir dire in his chambers and to exclude the reporter. Id. at 224-30, 241 (noting also that "no meaningful order affecting the [defendant's] trial could be issued by this court" because voir dire had been completed and the trial was over).
Thus, the remedies available under Wis. Stat. § 757.14, namely, the production of the transcript of the private proceeding, would be insufficient to grant the desired relief to the defendants here. We need not decide today whether someone other than the defendant can seek additional remedies under that statute. Moreover, Supreme Court "cases have uniformly recognized the public-trial guarantee as one created for the benefit of the defendant." Presley, 558 U.S. at 213 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979)). Although the public generally has an independent right to attend public trials, it would seem odd to allow a reversal of a judgment based on the demand of a member of the public. Therefore, while the judge's orders in these cases likely violated Wis. Stat. § 757.14, that issue is not before us, and the defendants' claims and requested remedies stem from the Sixth Amendment.
Gideon v. Wainwright, 372 U.S. 335 (1963).
Tumey v. Ohio, 273 U.S. 510 (1927).
Vasquez v. Hillery, 474 U.S. 254 (1986).
McKaskle v. Wiggins, 465 U.S. 168 (1984).
Waller v. Georgia, 467 U.S. 39 (1984).
Sullivan v. Louisiana, 508 U.S. 275 (1993).
See, e.g., United States v. Gonzalez-Lopez, 548 U.S. 140, 148-49 (2006); Neder v. United States, 527 U.S. 1, 8 (1999); Arizona v. Fulminante, 499 U.S. 279, 310 (1991).
We are not alone in determining that a defendant forfeits the right to a public trial by failing to object. See, e.g., United States v. Christi, 682 F.3d 138, 142-43 (1st Cir. 2012) (concluding that the defendant abandoned the right to a public trial by failing to object); United States v. Hitt, 473 F.3d 146, 155 (5th Cir. 2006), cert. denied, 549 U.S. 1360 (2007) (footnote omitted) (citations omitted) ("[R]egardless of whether the Waller prerequisites are met, defendants can waive their right to a public trial. ... Where a defendant, with knowledge of the closure of
Pinno, by contrast, argued in her Wis. Stat. § 974.02 motion on August 3, 2011, that the closing of voir dire violated her public trial right. Thus, Seaton's § 974.06 motion, filed on January 4, 2012, came after Pinno's motion.
Wisconsin Stat. § 974.06(4) requires that the defendant provide a sufficient reason for raising an issue for the first time in a § 974.06 motion when that issue "could have been raised on direct appeal or in a sec. 974.02 motion." State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994). It is unclear why Seaton believes the denial of the public trial right could not have been raised in prior motions or on appeal. However, because the result that we reach has the same effect as determining his motion was procedurally barred, we will disregard the potential procedural defect for the purpose of our analysis.
For the purpose of our analysis for both cases, we will assume that if the voir dire proceedings were closed, the closures were not trivial. In both cases, the State argues that the Sixth Amendment was not implicated because of the trivial nature of the closure. We have determined that a closure may be trivial "if the closure 'does not implicate the values served by the Sixth Amendment.'" State v. Ndina, 2009 WI 21, ¶ 49, 315 Wis. 2d 653, 761 N.W.2d 612 (quoting United States v. Perry, 479 F.3d 885, 890 (D.C. Cir. 2007)). In Ndina we noted that it would be rare that exclusion of the defendant's friends and family would be trivial. Id., ¶¶ 51-52. Since the allegations are that Judge Nuss closed voir dire for the duration of that proceeding, we will assume that these cases do not present the rare circumstances in which the closure is trivial.
See Purvis v. Crosby, 451 F.3d 734, 743 (11th Cir. 2006). In Purvis, the court said:
*153 For the same reasons that prejudice cannot he presumed in order to satisfy the prejudice requirement when an objection to structural error was not made at trial, it cannot be presumed to satisfy the prejudice component of an ineffective assistance claim arising from the same failure to preserve the structural error.
Id.
Contrary to the assertions of both defendants, declining to presume prejudice when an attorney fails to object to the violation of the right to a public trial does not necessarily leave defendants without a remedy. Defendants could potentially seek relief under the discretionary reversal statutes if the error involved a miscarriage of justice. Wis. Stat. §§ 751.06 and 752.35.
Although it is clear that the danger of improper discussions between the public and jurors is not a proper basis for a judge to close voir dire, Presley, 558 U.S. at 215, that does not necessarily mean that it is unreasonable for counsel and even the defendant to prefer a private proceeding. It is important not to conflate the analysis of public trial violation claims and claims of ineffective assistance of counsel relating to the same. See, e.g., Horton v. Allen, 370 F.3d 75, 82-83 (1st Cir. 2004) (noting that there are strategic advantages to a private voir dire even though a defendant has the right to insist on a public proceeding, and defense counsel's decision to agree to closed voir dire was objectively reasonable); Vaughn, 821 N.W.2d at 306 (suggesting that it may be reasonable for counsel to determine that a closed voir dire will facilitate honest answers from prospective jurors).
See State v. Small, 2013 WI App 117, ¶ 10, 351 Wis. 2d 46, 839 N.W.2d 160. In Small, the defendant's attorney initially objected to the exclusion of an observer who allegedly threatened a witness. Id. The court then prudently offered, "I'll interrupt this trial at 1:30 and we'll take testimony...." Id. The lawyer responded, "We don't want a delay in the trial." Id. The court determined that the defendant failed to show that he was prejudiced by his counsel's conduct without discussing whether the performance was deficient, id., ¶ 12, but it seems unlikely that the defendant would have been able to show that his attorney was deficient for deciding not to interrupt the trial.
The presumption of harm granted to a structural error to which counsel objects gives the defendant and counsel incentive to timely assert a right by objecting to its denial. However, when a defendant benefits from forfeiting a right, such as when voir dire is private in a highly publicized and controversial case, it would be unreasonable, absent some proof, to afford the defendant a presumption that his attorney's failure to object resulted in prejudice.