Nancy J. Pinno, Petitioner-Appellant,
Patti Wachtendorf, Warden, Respondent-Appellee. Travis Seaton, Petitioner-Appellant,
Judy P. Smith, Warden, Respondent-Appellee.
November 29, 2016
from the United States District Court for the Eastern
District of Wisconsin. Nos. 15 CV 296, 14 CV 945 - William C.
Griesbach, Chief Judge.
Posner, Easterbrook, and Sykes, Circuit Judges.
Posner, Circuit Judge.
Presley v. Georgia, 558 U.S. 209 (2010), the Supreme
Court held that the right of a criminal defendant to a public
trial, a right conferred by the Sixth Amendment, extends to
the voir dire. Id. at 213-14. In the present case
both petitioner-appellants argue that this right was violated
by the decision of the state trial judge (the same judge in
both cases) to forbid members of the public to attend the
voir dire phase of the petitioners' trials in a Wisconsin
state court that ended in their being convicted.
the Wisconsin Supreme Court, rejecting the petitioners'
Sixth Amendment argument, affirmed their convictions and
sentences, they asked the local federal district court for
habeas corpus. Both argued that they were entitled to a new
trial because their Sixth Amendment rights had been violated.
The district judge (the same judge in both habeas corpus
proceedings) rejected their claims, awarding judgment for the
respondents, who are the wardens of the prisons in which the
petitioners are serving the sentences imposed on them by the
had been convicted of assisting in the mutilation of a corpse
and interference with police. She had assisted her son in
secretly disposing of the body of his girlfriend, whom the
son had murdered a few weeks earlier. Pinno's assistance
consisted of transporting the corpse in her car to a
friend's house, where her son and a friend of hers burned
the body. They then drilled a hole in the ice on a nearby
lake and dumped the ashes through the hole, making it
impossible for the police to recover any of the body of the
murdered woman. For these offenses Pinno was sentenced to
eight and a quarter years in prison to be followed by five
years of supervised release.
that gets us ahead of our story, which is focused on the
trial, indeed the earliest stage of the trial. The trial
judge called for a very large jury pool-a pool of more than
80 prospective jurors. He wanted to assure that enough seats
were available for all the prospective jurors to be seated,
and he also wanted to prevent members of the public, who
would be seated in the audience section of the courtroom,
from influencing the jury by remarks or facial expressions.
He considered those to be dangers because the case, with its
gruesome and bizarre facts, had attracted a great deal of
before the prospective jurors entered the courtroom the judge
ordered the spectators to leave, and the door to the
courtroom to be locked until all the prospective jurors were
seated. After they were seated the door was unlocked and
members of the public were able to enter, though it's
unclear how many entered, or could enter since the courtroom
was crowded with prospective jurors and the judge had
announced beforehand that he "want[ed] no one else in
here during the entire voir dire process until the jury is
selected." Despite that admonition, since the door to
the courtroom was open during the voir dire some members of
the public- how many we don't know-may have entered, and
stayed to observe the voir dire.
alternative way of handling the crowded-conditions problem
would have been to accommodate the members of the public in a
different room in the courthouse, where they could watch the
trial on a television screen. But no one suggested doing
that; nor have we been told whether a suitable room and the
necessary equipment existed.
don't know how many, if any, members of the public were
in the courtroom during the voir dire. But we'll give
Pinno the benefit of the doubt and assume there were too few
to make the voir dire public within the meaning of the Sixth
Amendment's public-trial right. Members of the public,
most importantly friends, family, or other actual or
potential supporters of a defendant, may be able from
observing the voir dire to learn things that may help the
defense-learn for example that members of the jury panel who
end up being selected for the jury are visibly hostile to the
defendant, glare at her, yawn and doze, or that the questions
asked the prospective jurors by the judge or the prosecutor
seem to invite them to regard the defendant as an evil,
criminal person. These insights absorbed by the friends of
the accused may help to strengthen her defense. Conceivably
the presence of a defendant's supporters may also deter
any impropriety by the prosecutors or judge, but this seems
unlikely because the prosecutors and judge probably
wouldn't know whether or which members of the audience
were aligned with the defendant.
problem for Pinno is that her lawyers did not object to the
public's limited access to the trial at the voir dire
stage. Pinno calls that ineffective assistance of counsel, a
separate ground for a new trial. But it cannot be presumed,
and has not been shown in Pinno's case, that the failure
of a defendant's lawyers to insist on ample seating space
for the public during voir dire evidenced ineffective
assistance prejudicial to the client. It may have been
neither ineffective nor prejudicial, for it might well be in
the defendant's interest not to have
members of the public, as distinct from family members,
friends, and other supporters, present for the voir dire. A
trial may attract members of the public because they're
hostile to rather than supportive of the defendant. That
might have been a serious problem for Pinno, given the
grotesque character of her crime.
experience of the defendant in our other case, Seaton, was
virtually identical to Pinno's, though he was convicted
of a different and even more serious crime-first-degree
reckless homicide: he had punched a person, and the person
had died later that day as a result of the injury caused by
the punch and the victim's resulting fall to the ground.
Though Seaton's crime was less grotesque than
Pinno's, it was homicide and would hardly have endeared
him to the members of the public who attended the trial.
Indeed, whereas he had killed a person, Pinno had merely
assisted in the destruction of a corpse.
the petitioners benefited or were harmed by the exclusion of
spectators from the voir dire phase of the trial, their
lawyers forfeited their clients' right to an audience by
failing to object to the judge's ruling excluding the
audience in whole or part. So the Wisconsin Supreme Court
determined, and we are obliged to defer to that determination
because it did not result in a decision that was
"contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States, " or that was