IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

STATE OF WASHINGTON, 

Respondent, 

v. 

UNTERS LEWIS LOVE, 

Petitioner. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

_______________________ ) 

No. 89619-4 

En Bane 

Filed JUL 1 6 2015 

Yu, J.-This case is another opportunity to clarify our evolving jurisprudence 

on open courts. Today we decide if a particular method of challenging jurors after 

voir dire-a method commonly employed in trial courts around the state-violates 

the constitutional right to a public trial. At the conclusion of voir dire questioning, 

counsel exercised for cause challenges orally at the bench and subsequently 

exercised peremptory challenges silently by exchanging a list of jurors and 

alternatively striking names from it. All of voir dire, including the juror challenges, 

occurred in open court, on the record, and in full view of any observer in the 
State v. Love, No. 89619-4 

courtroom. We hold the juror challenges in this case were exercised in a manner 

consistent with the minimum safeguards of the public trial right and affirm. 

BACKGROUND 

Petitioner Unters Lewis Love elected to go to trial on several counts of theft 

and bail jumping. The first day of trial was unremarkable from an open court 

perspective. Several preliminary matters consumed the morning, and the trial judge 

heard argument and ruled on these motions in open court and on the record. The 

jury pool was brought into the courtroom after lunch for jury selection. The trial 

judge placed the jury pool under oath and briefly explained the mechanics of jury 

selection, including the parties' right to challenge jurors. 

Voir dire examination began immediately thereafter. Both the trial judge and 

counsel questioned the jury pool in open court; their questions and the potential 

jurors' responses were on the record. When questioning concluded, the trial judge 

asked counsel to approach the bench to discuss for cause challenges in the presence 

of the court reporter: 

THE COURT: 

[DEFENSE]: 

THE COURT: 

[STATE]: 

THE COURT: 

[DEFENSE]: 

Any for-cause challenges? 

Fifteen. 

Fifteen? Any objection? 

I think that's-the state has no objection to 

No. 15 being struck for cause. 

Mm-hm. Any others? 

Number 30. 

2 
State v. Love, No. 89619-4 

THE COURT: 

[STATE]: 

Number 30? 

Yeah. No objection. 

Verbatim Report Proceedings (Apr. 9, 2012) at 132-33. Jurors 15 and 30 had 

strongly indicated they could not be impartial jurors in response to questions during 

voir dire, which occurred in the presence of Love, other potential jurors, and the 

public. The trial judge granted both of Love's for cause challenges. Though the 

discussion and ruling on these challenges occurred at the bench, the exchange was 

on the record and visible to observers in the courtroom. The record does not indicate 

if observers could hear what was said, but no one was asked to leave the courtroom. 

Peremptory challenges followed. The record reflects that counsel exercised 

peremptory challenges silently in the courtroom by exchanging a written list of 

jurors between themselves. Counsel alternated striking one name from the list (the 

struck juror sheet), indicating they had exercised a peremptory challenge and 

removed the juror, until each side had exhausted its challenges. 1 The struck juror 

1 The method of exercising peremptory challenges on paper appears common in this state 

and is explicitly required in several counties. See COWLITZ COUNTY SUPER. CT. LOCAL CIV. R. 

47(e)(9) ("The clerk shall keep a list of jurors passed for cause and when it is complete will provide 

the list to the attorneys for the parties who will, in turn, exercise challenges by striking the name 

of each challenged juror without oral comment."); FERRY\PEND 0REILLE\STEVENS COUNTY 

SUPER. CT. LOCAL CIV. R. 47(e)(9) ("The exercise or waiver of peremptory challenges shall be 

noted silently."); GRANT COUNTY SUPER. CT. LOCAL CIV. R. 47(c) ("After examination of the 

panel, counsel will, in turn, exercise peremptory challenges by striking names from a roster of 

those panel members not previously dismissed."); HELLS CANYON CIRCUIT SUPER. CT. LOCAL CIV. 

R. 47(d)(6) ("When questioning by the court and counsel is completed, the Court will allow the 

private exercise of peremptory challenges by striking [the] name of the first exercised challenge 

from the panel of the first 12 jurors remaining after the entire panel has been passed for cause."); 

HELLS CANYON SUPER. CT. LOCAL CRIM. R. 6.3; KITTITAS COUNTY SUPER. CT. LOCAL CIV. R. 47 

3 
State v. Love, No. 89619-4 

sheet, which was filed in the court record and available to the public, shows Love 

waived his peremptory challenges and the State challenged juror 4. There is no 

indication that spectators (prospective jurors included) were forced to leave the 

courtroom, that the courtroom was locked, or that anyone was prohibited from 

entering. Instead, the courtroom remained open while counsel exercised their 

peremptory challenges, in the same manner as it was during the discussion of the for 

cause challenges. The record does not reflect that observers were unable to see 

counsel exchanging the struck juror sheet. 

The trial judge thereafter announced that a jury had been selected. In open 

court and on the record, the judge read the names of the first 14 jurors left on the 

struck juror sheet (excluding jurors 4 and 15) and empaneled 12 jurors and two 

alternates. The judge thanked and dismissed the remaining potential jurorsincluding jurors 4, 15, and 30-without further explanation. The empaneled jury 

convicted Love on all counts. 

("Unless good cause is shown, all peremptory challenges shall be exercised in open Court at the 

side bar by marking the challenged juror's name on a form to be provided by the Court."); 

KLICKITAT\SKAMANIA SUPER. CT. LOCAL CIV. R. 9(VI)(A) ("In trial by jury cases, peremptory 

challenges shall be exercised secretly [by] mark[ing] and initial[ing] such challenge upon the sheet 

furnished for that purpose."); SPOKANE COUNTY SUPER. CT. LOCAL CIV. R. 4 7( e )(9) ("The exercise 

or waiver of peremptory challenges shall be noted secretly on the jury list."); YAKIMA COUNTY 

SUPER. CT. LOCAL Crv. R. 47(e)(l) ("All peremptory challenges allowed by law shall be exercised 

in writing. . . . The purpose of this mle is to preserve the secrecy of the peremptory challenge 

process and all parties and their counsel shall conduct themselves to that end."). Since we 

disapprove of secret proceedings, we assume that references to "secrecy" in these mles refer to 

exercising peremptory challenges silently on paper. 

4 
State v. Love, No. 89619-4 

Love appeals his convictions, arguing that the method of jury selection in his 

case violated his right to a public trial. He maintains that exercising for cause 

challenges at the bench and peremptory challenges on the struck juror sheet 

effectively "closed" the courtroom, though it was unlocked and open, because the 

public was not privy to the challenges in real time. He also argues his right to be 

present at all critical stages of the trial was violated because he could not approach 

the bench with counsel to discuss the for cause challenges. 

The Court of Appeals affirmed in an opinion that predates many of our recent 

public trial right cases. State v. Love, 176 Wn. App. 911, 309 P.3d 1209 (2013). We 

granted review to consider how our open courts jurisprudence affects how parties 

can exercise for cause and peremptory challenges at trial. State v. Love, 181 Wn.2d 

1029, 340 P.3d 228 (2015). 

ANALYSIS 

Love's two claims are purely legal questions, so our review is de novo. State v. 

Irby, 170 Wn.2d 874,880,246 P.3d 796 (2011); State v. Strode, 167 Wn.2d 222, 

225, 217 P.3d 310 (2009). 

A. PUBLIC TRIAL RIGHT CLAIM 

We first consider Love's claim that potential jurors were challenged in a 

manner that violated his right to a public trial. A criminal defendant's right to a 

"speedy public trial" is found in article I, section 22 of the Washington Constitution, 

5 
State v. Love, No. 89619-4 

one of two constitutional components of our open courts doctrine. Love's standing 

in this case flows from article I, section 22.2 The other component to open courts, 

article I, section 10, guarantees the public that "[j]ustice in all cases shall be 

administered openly, and without unnecessarily delay." These related constitutional 

provisions "serve complementary and interdependent functions in assuring the 

fairness of our judicial system," State v. Bone-Club, 128 Wn.2d 254, 259, 906 P.2d 

325 (1995), and are often collectively called the "public trial right." 

A three-step framework guides our analysis in public trial cases. First, we ask 

if the public trial right attaches to the proceeding at issue. Second, if the right 

attaches we ask if the courtroom was closed. And third, we ask if the closure was 

justified. State v. Smith, 181 Wn.2d 508, 513-14, 334 P.3d 1049 (2014) (citing 

State v. Sublett, 176 Wn.2d 58, 92, 292 PJd 715 (2012) (Madsen, C.J., concurring)). 

The appellant carries the burden on the first two steps; the proponent of the closure 

carries the third. See id. at 516-1 7. 

The State argues that Love's claim fails at the outset, urging us to hold that 

the public trial right does not attach to for cause or peremptory challenges. Typically 

experience and logic determine if the public trial right attaches to a particular court 

2 Whether a criminal defendant also has standing to assert the public's right under article 

I, section 10 is an open question that we need not address in this case. See State v. Shearer, 181 

Wn.2d 564,574,334 P.3d 1078 (2014); State v. Herron, 177 Wn. App. 96,318 P.3d 281 (2013), 

review granted, 182 Wn.2d 1001, 342 P.3d 326 (2015). 

6 
State v. Love, No. 89619-4 

proceeding, though we can also rely on prior cases that have applied right to the 

proceeding at issue. Sublett, 176 Wn.2d at 73; State v. Wise, 176 Wn.2d 1, 12 n.4, 

288 P.3d 1113 (2012) (noting it was "not necessary to engage in a complete 

'experience and logic test,"' instead citing previous cases to support attachment). 

Our prior cases hold it "well settled that the right to a public trial ... extends to jury 

selection," State v. Brightman, 155 Wn.2d 506, 515, 122 P.3d 150 (2005), and we 

reaffirm that the right attaches to jury selection, including for cause and peremptory 

challenges. Unlike administrative or hardship excusals, for cause and peremptory 

challenges can raise questions about a juror's neutrality and a party's motivation for 

excusing the juror that implicate the core purpose of the right, and questioning jurors 

in open court is critical to protect that right. Open and transparent questioning fosters 

public confidence in subsequent challenges to jurors and, ultimately, the 

composition of juries in criminal trials. 

We nevertheless affirm Love's conviction because he has not shown a 

courtroom closure in this case, failing to carry his burden under the second prong of 

our analysis. We have reversed convictions for two types of closures. The first, 

obvious type of closure occurs "when the courtroom is completely and purposefully 

closed to spectators so that no one may enter and no one may leave." State v. Lormor, 

172 Wn.2d 85, 93, 257 P.3d 624 (2011); see Brightman, 155 Wn.2d at 511-12 

(public excluded from courtroom during voir dire); In re Pers. Restraint of Orange, 

7 
State v. Love, No. 89619-4 

152 Wn.2d 795, 801-02, 100 P.3d 291 (2004) (same). Love does not allege the 

courtroom was closed in this traditional way. 

The second type of closure occurs where a portion of a trial is held someplace 

"inaccessible" to spectators, usually in chambers. Lormor, 172 Wn.2d at 93; see also 

State v. Shearer, 181 Wn.2d 564, 568,334 P.3d 1078 (2014) (private questioning of 

juror in chambers); Strode, 167 Wn.2d at 227 (same of multiple jurors); State v. 

Paumier, 176 Wn.2d 29, 33, 288 P.3d 1126 (2012) (same). Love equates the for 

cause and peremptory challenges in his trial-which occurred in open court-to 

those exercised behind a closed chambers door. He argues the possibility that 

spectators at his trial could not hear the discussion about for cause challenges or see 

the struck juror sheet used for peremptory challenges rendered this portion of his 

trial inaccessible to the public. 

We find no merit in that comparison. The public trial right facilitates fair and 

impartial trials through public scrutiny. Shearer, 181 Wn.2d at 566. The public's 

presence in the courtroom reminds those involved about the importance of their roles 

and holds them accountable for misconduct. I d.; Strode, 167 Wn.2d at 226. Effective 

public oversight of the fairness of a particular trial begins with assurance of the 

fairness of the particular jury. 

Yet the public had ample opportunity to oversee the selection of Love's jury 

because no portion of the process was concealed from the public; no juror was 

8 
State v. Love, No. 89619-4 

questioned in chambers. To the contrary, observers could watch the trial judge and 

counsel ask questions of potential jurors, listen to the answers to those questions, see 

counsel exercise challenges at the bench and on paper, and ultimately evaluate the 

empaneled jury. The transcript of the discussion about for cause challenges and the 

struck juror sheet showing the peremptory challenges are both publically available. 

The public was present for and could scrutinize the selection of Love's jury from 

start to finish, affording him the safeguards of the public trial right missing in cases 

where we found closures of jury section. See Wise, 176 Wn.2d at 7-8; Paumier, 176 

Wn.2d at 33-34. We hold the procedures used at Love's trial comport with the 

minimum guarantees of the public trial right and find no closure here. 

Although Love argues for a broad rule that all peremptory challenges must be 

spoken aloud, written peremptory challenges are consistent with the public trial right 

so long as they are filed in the public record. Spoken peremptory challenges 

certainly increase the transparency of jury selection, but there are still legitimate 

methods of challenging jurors in writing, like the practice here, that do not amount 

to a courtroom closure because they are made in open court, on the record, and 

subject to public scrutiny. 

In summary, Love cannot show a closure occurred on these facts and his 

public trial claim fails. 

9 
State v. Love, No. 89619-4 

B. RIGHT To BE PRESENT CLAIM 

Love next argues that his absence from the bench conference where the trial 

judge and counsel discussed and excused two jurors for cause violated his right to 

be present at critical stages of his trial.3 Our state and federal constitutions protect 

the right of a criminal defendant to be present "at any stage of the criminal 

proceeding that is critical to its outcome if his presence would contribute to the 

fairness of the procedure." Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 

96 L. Ed. 2d 631 (1987); In re Pers. Restraint of Lord, 123 Wn.2d 296, 306, 868 

P.2d 835 (1994). This protection is guaranteed by the Sixth and Fourteenth 

Amendments to the United States Constitution; our state equivalent is article I, 

section 22, which, in addition to a "speedy public trial," also entitles defendants to 

"appear and defend in person." 

Jury selection is a critical stage of a criminal trial under both the state and 

federal constitutions. See Irby, 170 Wn.2d at 884. But the record before us does not 

demonstrate a violation of Love's right to be present. Love was present in the 

courtroom during all of voir dire, including potential jurors' answers to questions 

that form the basis for challenges. Nothing suggests that Love could not consult 

3 The Court of Appeals declined to reach the merits ofthis error, finding it unpreserved and 

outside any ofthe circumstances in RAP 2.5(a). But the record shows that Love himself tried to 

object to his lawyer conducting the juror challenge process. Love asked the trial judge several 

times to approach the bench after his lawyer exercised the for cause challenges. This preserved the 

error. 

10 
State v. Love, No. 89619-4 

with his attorney about which jurors to challenge or meaningfully participate in the 

process. Cf id. (right to be present violated where portion of jury selection occurred 

between the court and counsel over e-mail, without consultation of jailed defendant). 

It is a long-standing rule that we do "'not, for the purpose of finding reversible error, 

presume the existence of facts as to which the record is silent."' Barker v. Weeks, 

182 Wash. 384, 391, 47 P.2d 1 (1935) (quoting 4 C.J. Appeal and Error§ 2666 

(1916)). Love's right to be present claim also fails. 

CONCLUSION 

Potential jurors at Love's trial were questioned and challenged in an open 

courtroom and on the record. This is all that the public trial right requires of jury 

selection. We hold on these facts that exercising for cause challenges at a bench 

conference and peremptory challenges on a written list do not constitute a closure. 

Love's convictions are affirmed. 

11 
State v. Love, No. 89619-4 

WE CONCUR: 

12