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7th Cir. Upholds Convictions Despite Closed Voir Dire

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By Casey C. Sullivan, Esq. on January 11, 2017 6:00 AM

The Supreme Court has held that the Sixth Amendment's right to a public trial extends to the voir dire process. But that right doesn't require a new trial for two Wisconsinites who were convicted after their judge barred the public from voir dire, the Seventh Circuit ruled last week.

Why? Lack of objection from the defense attorneys. In a brief opinion penned by Judge Richard Posner, the Seventh ruled that those attorneys "forfeited their clients' right to an audience by failing to object to the judge's ruling excluding the audience in whole or part."

No Objection = Waiver

The consolidated cases deal with two separate criminal convictions, both following closed voir dire, and both under the same state trial judge. In the first, Nancy Pinno was convicted of assisting in the mutilation of a corpse. Pinno had helped cover up her son's murder of his girlfriend, by driving her body to a friend's house, weeks after the murder. The body was then burned and the ashes dumped under the frozen Lake Winnebago.

The second case was a bit less gruesome, but no less serious. Travis Seaton was convicted of first-degree reckless homicide following a late-night fight. Seaton was sentenced to 15 years after punching a man during an argument apparently over a woman. The victim, Keith Rockweit, fell to the pavement after he was punched, hitting his head and later dying of brain injuries.

In both cases, the same trial judge kept the public out of voir dire. "The problem for Pinno," Judge Posner wrote, joined by Judges Frank H. Easterbrook and Diane S. Sykes, "is that her lawyers did not object to the public's limited access to the trial at the voir dire stage." The same was true for Seaton, as well.

Their lawyers' failure to object waived their clients' rights. "So the Wisconsin Supreme Court determined, and we are obliged to defer to that determination," the court concluded.

What About Ineffective Assistance? Or Walton?

The Seventh further rejected the argument that the defendants suffered from ineffective assistance of counsel. It can't be presumed, the court said, that the failure "to insist on ample seating space for the public during voir dire" constituted ineffective assistance.

Nor does the Seventh's 2004 opinion in Walton v. Briley change things, the court explained. In Walton, the Seventh ruled that the defendant's lawyer's failure to object to closed voir dire did not waive the defendant's Sixth Amendment rights. But that was just a circuit court decision, the Seventh explained. A state prisoner's habeas petition can only be granted if the state court's decision was contrary to Supreme Court precedent. "It is not enough that the state court's decision is contrary to one of our decisions."

And a Final Wrist Slap for the Appellate Lawyers

The brief opinion ended with a bit of public scolding for the appellate attorneys, as well, which the court chided for their verbosity. The parties submitted 250 pages of briefs, for "simple and straightforward" cases where "no more than 100 pages at the most" would be needed "to present their claims fully."

"There is no justification for such verbosity," the court said.

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