Rape conviction thrown out

A state appeals court has overturned a second-degree rape conviction of a Spokane man because a Spokane County Superior Court judge failed to properly advise him of his rights before a closed-door questioning of prospective jurors.

It’s the second time this year that the Washington Court of Appeals in Spokane has overturned a trial court conviction because a jury was selected in part behind closed doors. In September, the court tossed out the first-degree murder conviction of Brian William Frawley for the January 2004 slaying of 20-year-old Margaret Cordova for the same reason.

In the most recent case, Nicholas G. Duckett had a “public trial right” under the Washington and U.S. Constitutions, and although he waived his right to be present while the jurors were questioned, Superior Court Judge Kathleen O’Connor didn’t conduct a required five-part analysis before the jury was questioned outside the courtroom, the appeals court ruled Tuesday.

“This requires reversal, and the remedy is a new trial,” the appeals court said. “Here, the court never advised Mr. Duckett of his public trial right or asked him to waive it,” the judges said.

One judge on the three-judge panel, Stephen Brown, dissented – as he did in the Frawley decision – saying Duckett had waived his right to be present and no closure of the trial occurred. Frawley was convicted in Superior Court Judge Neal Q. Rielly’s courtroom.

Duckett, 28, was charged with one count of second-degree rape, one count of third-degree rape and one count of first-degree burglary. His case went to trial in August 2006; he was convicted of second-degree rape of a young woman who lived in the same Spokane Valley apartment complex in an incident that took place after her 21st birthday party in January 2006. Both Duckett and the woman were drunk at the time, according to court records.

The jury questionnaire contained two questions about jurors’ experiences with sexual abuse. O’Connor said the questionnaires would be filed under seal and would not be accessible to anyone without a court order. She advised Duckett and his lawyer that follow-up questioning would take place in her jury room “so as to maintain some privacy.”

“Apparently, 16 jurors were so questioned, though the record does not contain any transcript of this voir dire,” the appeals court said, referring to the process of questioning potential jurors.

The appeals court ruling is not an effort to limit the ability of trial courts to develop procedures “that respect the privacy interests of prospective jurors and encourage more forthright answers to sensitive voir dire questions,” said appellate Judges Debra L. Stephens and Dennis J. Sweeney.

Instead, the appeal centers on a defendant’s right to a public trial, the judges said.

The judges noted that the Washington Supreme Court requires a five-part analysis before conducting part of jury questioning outside the courtroom. The test requires the court to:

“Allow a proponent of closure to make a showing of a compelling interest.

“Allow anyone present to object to the closure motion.

“Use the “least restrictive means available” for protecting the threatened interests.

“Weigh the competing interests of the public and the proponent of closure.

“Allow the order to be no broader than necessary to serve its purpose.

“While the public trial right is not absolute, it is strictly guarded to assure that proceedings occur outside the public courtroom in only the most unusual circumstances,” the judges said.

The court also rejected the state’s argument that General Rule 31, which covers the presumptive privacy of juror information, has no impact on the right to a public trial. The five-part test must be followed because a court rule cannot be used to circumvent or supersede a constitutional mandate, the court said.

The same jury issue came up Nov. 5 in O’Connor’s courtroom in the murder trial of James C. Metcalf. Metcalf was found guilty of second-degree murder in the death of Denise Marie McCormick, who was killed in February 2004.

In that trial, O’Connor also conducted a portion of voir dire in private. Jurors were questioned individually about whether they’d had any personal experience with sexual abuse or had any close friends or relatives who’d suffered such abuse.

Jurors have a right to privacy and being compelled to answer those questions in public “would be extremely upsetting,” O’Connor said before the juror questioning took place. The juror responses were filed under seal.

O’Connor referred to the appeals court’s decision in the Frawley case, saying the court “needs to go through a process” weighing competing interests of jury privacy and a defendant’s right to a fair and public trial.

O’Connor “properly applied the Frawley test” in Metcalf’s trial, said Jack Driscoll, Spokane County’s chief criminal deputy prosecutor.

The judge asked if anyone present in the courtroom objected to the partial closing of voir dire.

A reporter for The Spokesman-Review objected, citing the constitutional right to public jury trials. O’Connor overruled the objection.