In one case, Nancy Pinno was convicted in 2009 of mutilating a corpse for helping her son, Brandon Mueller, cover up the murder of Renee Redmer. In the other, Travis Seaton was convicted in 2008 of reckless homicide for the death of Keith Rockweit. At some point during both of their trials, Judge Richard Nuss closed the courtroom to the public, in part to help manage the crowds.
Both appealed arguing their Constitutional rights to public trials were violated. The attorneys argued that although they did not object to the public's removal at the time, such a Constitutional right is not subject to needing to have raised the objection at that moment.
But Justice David Prosser, writing the opinion for the 4-3 ruling on the case, said that's not the case.
"We conclude, therefore, that the Sixth Amendment right to a public trial may be forfeited when a defendant knows that the judge has ordered the public to leave the courtroom but does not object," Prosser wrote. "The absence of the public does not automatically lead to misconduct or unfairness or any other circumstance prejudicial to the defendant."
Furthermore, neither proved that they were harmed by the public's exclusion from the courtroom, Prosser wrote.
That said, the justices did criticize Judge Nuss for the way he made his decision, without following the proper procedures.
"What is troublesome here is the court's failure to appreciate that it could not act alone in addressing these concerns... 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," Prosser wrote.
Three justices dissented, including Chief Justice Shirley Abrahamson, who was critical of her colleagues' decision. Her opinion focused on the public's right to access.
"The majority opinion is filled with soaring rhetoric deploring closed court proceedings and with solemn, sober admonitions to circuit courts about the procedures to be followed before closing a proceeding to the public... Yet the majority opinion renders the lofty legal tenets meaningless as it empowers circuit courts to close courtrooms to the public without any compelling reason and offers no remedy for the circuit court's violations of the public's right to open court proceedings. The judiciary must enforce the fundamental right of the public to open court proceedings," Abrahamson wrote.
Justice N. Patrick Crooks also dissented, but focused on the defendants' rights.
"Considering that the public trial right is such a fundamental concept to our criminal justice system, I cannot agree with the majority's conclusion that a criminal defendant's failure to make a contemporaneous objection results in his or her forfeiture of that right. Contrary to the majority opinion, I assert that a defendant's public trial right, guaranteed by both the Sixth Amendment and the Wisconsin Constitution, can be given up only if the defendant affirmatively voices a willingness to do so," Crooks wrote.