975 N.W.2d 572
N.D.2022Background
- Defendant Robert Pulkrabek was tried on terrorizing, threatening public servants, menacing, and disorderly conduct; the jury convicted him of terrorizing and disorderly conduct (threatening/menacing acquitted) and he was sentenced in 2021.
- Multiple pretrial conferences occurred outside the public courtroom (in chambers and the jury room); topics included jury selection, jury instructions, a video, evidentiary stipulations, counsel-withdrawal, and the defendant’s request for a bench trial and continuance.
- During voir dire the court did not record the parties’ peremptory challenges; during trial several bench conferences occurred with no record.
- Pulkrabek did not raise a public-trial objection at trial; on appeal he argued these nonpublic proceedings violated his Sixth Amendment public-trial right.
- The State conceded no Waller-factor analysis was done before closures; the Supreme Court treated the issue as forfeited (obvious-error review) and held the nonpublic pretrial conferences invoked the public-trial right and required reversal because no Waller findings were made.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pretrial conferences held outside the public courtroom implicated the Sixth Amendment public-trial right | Pretrial matters were administrative and did not implicate the public-trial right | Nonpublic pretrial conferences (including evidentiary discussions) implicated the public-trial right | Court: Pretrial closures did implicate the public-trial right; no Waller findings were made — obvious structural error requiring reversal and remand for new trial |
| Whether discussion in the jury room about counsel withdrawal, bench trial request, continuance, and defendant’s psychological fitness implicated the public-trial right | Such discussions were administrative and did not require public hearing | Those discussions implicated the public-trial right because they related to substantive trial matters (competence/representation) | Court: These nonpublic pretrial proceedings implicated the public-trial right and lacked required Waller findings; reversal required |
| Whether failure to record peremptory challenges and bench conferences during trial violated the public-trial right | Lack of record was not a public-trial violation or was harmless/administrative | Absence of a public record of jury challenges and bench conferences implicated public-trial protections | Court: Because one structural public-trial error (pretrial closures) required reversal, resolution of remaining issues was unnecessary; they were not decided on the merits |
| Preservation and standard of review for public-trial objections | No contemporaneous public-trial objection was made; State treats as forfeited | Defendant argued structural error requiring automatic reversal despite forfeiture | Court: Treated as forfeited and reviewed for obvious error under N.D.R.Crim.P. 52(b); public-trial violations are structural and lack of Waller findings here constituted obvious structural error mandating reversal |
Key Cases Cited
- State v. Klem, 438 N.W.2d 798 (N.D. 1989) (trial courts must articulate reasons on the record before excluding the public)
- Waller v. Georgia, 467 U.S. 39 (U.S. 1984) (framework requiring on-the-record findings before closure)
- State v. Morales, 932 N.W.2d 106 (N.D. 2019) (pretrial closures implicate the public-trial right; absence of Waller findings is prejudicial)
- State v. Rogers, 919 N.W.2d 193 (N.D. 2018) (distinguishes closures requiring new public hearing from those requiring automatic reversal)
- State v. Martinez, 956 N.W.2d 772 (N.D. 2021) (structural errors require reversal; trial courts strictly must make Waller findings)
- State v. Olander, 575 N.W.2d 658 (N.D. 1998) (preservation principles and standards of review for unpreserved errors)