from the District Court of Ward County, North Central
Judicial District, the Honorable Stacy J. Louser, Judge.
G. Birst, Special Assistant State's Attorney, Bismarck,
N.D., for plaintiff and appellee.
C. Kraus-Parr, Grand Forks, N.D., for defendant and
1] Mark Allen Rogers appeals from a district court judgment
for gross sexual imposition ("GSI"). Rogers argues
the district court: 1) violated his Sixth Amendment right to
a public trial by closing his competency hearing on March 28,
2017; and 2) acted arbitrarily when it assigned extradition
costs as restitution to this case. Because the district court
did not make individualized findings supporting closure of
the competency hearing, the Sixth Amendment public trial
guarantee was violated. The restitution award was proper, and
it is affirmed consistent with our remand. We reverse the
district court's closure of the competency hearing and
remand for further proceedings.
2] In 2014, Rogers was charged with one count of GSI with a
minor under 15 years of age--a class A felony under N.D.C.C.
§ 12.1-20-03. Rogers did not appear at his trial
scheduled for February 10, 2015. He was extradited from
Thailand in November of 2016 and charged with bail-jumping.
The district court held several pretrial hearings in the GSI
case, some of which included issues raised in the separate
bail-jumping case. On March 28, 2017, the court held a
hearing relating to both cases in which it first considered
whether Rogers was competent to proceed to trial. The
courtroom was closed for the competency hearing. After the
court found Rogers competent to proceed, Rogers indicated his
desire to plead guilty to both charges. The courtroom was
opened to the public to receive Rogers' guilty plea to
both charges. Rogers argues the closure of the competency
hearing violated his Sixth Amendment right to a public trial,
was a structural error, and requires reversal of the
3] In criminal cases, errors not raised in the district court
may fall into one of three categories: forfeited error,
waived error, and structural error. State v.
Watkins, 2017 ND 165, ¶ 12, 898 N.W.2d 442. A
structural error is a "constitutional error[, ] 'so
intrinsically harmful as to require automatic reversal'
regardless of whether [it was] forfeited or waived."
Id.; State v. Rende, 2018 ND 56, ¶ 8,
907 N.W.2d 361. "We apply a de novo standard of review
to a claim of a constitutional violation." State v.
Decker, 2018 ND 43, ¶ 6, 907 N.W.2d 378 (quoting
State v. Aguero, 2010 ND 210, ¶ 16, 791 N.W.2d
4] A structural error is a "defect affecting the
framework within which the trial proceeds, rather than simply
an error in the trial process itself." Johnson v.
United States, 520 U.S. 461, 468 (1997) (quoting
Arizona v. Fulminante, 499 U.S. 279, 310 (1991)).
Such errors "necessarily render a criminal trial
fundamentally unfair or an unreliable vehicle for determining
guilt or innocence." Neder v. United States,
527 U.S. 1, 9 (1999). They "defy analysis by
'harmless-error' standards by affecting the entire
adjudicatory framework." Puckett v. United
States, 556 U.S. 129, 141 (2009) (internal quotations
omitted). Structural errors do not require a finding of
impact on the trial's outcome. United States v.
Marcus, 560 U.S. 258, 263 (2010); see also
Decker, 2018 ND 43, ¶ 8, 907 N.W.2d 378
("Structural error differs substantially from obvious
error, for which a defendant bears the burden of showing
either prejudice or an adverse effect on the outcome of the
proceeding."). Not only do structural errors not require
an impact finding, but part of what makes an error a
"structural error" is the difficulty in
"asses[sing] the effect of the error."
Marcus, 560 U.S. at 263.
5] "The purpose of the structural error doctrine is to
ensure insistence on certain basic, constitutional guarantees
that should define the framework of any criminal trial."
Weaver v. Massachusetts, 137 S.Ct. 1899, 1907
(2017). Only a handful of situations have been determined to
fall within the structural error category: "deprivation
of right to counsel, lack of judicial impartiality, racial
exclusion from a grand jury, violation of the right to
self-represent, and denial of the right to a public
trial." Decker, 2018 ND 43, ¶ 8, 907
6] Public trial violations are considered structural error
largely because of the "difficulty of assessing the
effect of the error." Weaver, 137 S.Ct. at 1910
(quoting United States v. Gonzalez-Lopez, 548 U.S.
140, 149 n.4 (2006) (where the Supreme Court of the United
States "rest[s its] conclusion of structural error upon
the difficulty of assessing the effect of the error")).
The error cannot be quantified when a public trial right is
violated, yet it is present. Fundamental unfairness, another
factor used to determine structural errors, see
Weaver, 137 S.Ct. at 1908, is particularly unhelpful in
a public trial violation because there are cases where an
"unlawful closure might take place and yet the trial
still will be fundamentally fair from the defendant's
standpoint." Id. at 1910. Here, the competency
hearing was closed at the request of Rogers and without
objection by the State. Rogers' inviting the district
court to commit the error would ordinarily foreclose relief
from that error on appeal, Watkins, 2017 ND 165,
¶ 14, 898 N.W.2d 442, but "[s]tructural errors are
immune to the 'invited error' doctrine."
Decker, 2018 ND 43, ¶ 8, 2018 ND 43. Because a
violation of the right to a public trial is a structural
error, Waller v. Georgia, 467 U.S. 39 (1984), Rogers
is entitled to relief on appeal if the competency hearing is
part of the "public trial."
7] The Sixth Amendment expressly protects the right to a
public trial: "In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial."
U.S. Const. amend. VI. This right is further protected by the
North Dakota constitution: "In criminal prosecutions in
any court whatever, the party accused shall have the right to
a speedy and public trial." N.D. Const. art. 1, §
12. Each provision defines its scope in three dimensions:
who may assert the right (the accused);
when the right attaches ("criminal
prosecutions"); and what the right guarantees
(a "public trial"). Rothgery v. Gillespie
County, 554 U.S. 191, 214 (2008) (Alito, J.,
concurring). At the competency hearing, Rogers was undeniably
an "accused," so whether he is within the scope of
who is not in question. We are concerned here with
the when and the what: whether a pretrial
competency hearing is part of a "criminal
prosecution" such that the public trial right has
attached, and, if so, whether the public trial right was
violated by the district court's closure of the
competency hearing by agreement of Rogers and the State.
8] Before we reach the questions of when and
what, a brief discussion of why is in
order. Public trials are "for the benefit of the
accused; that the public may see he is fairly dealt with and
not unjustly condemned, and that the presence of interested
spectators may keep his triers keenly alive to a sense of
their responsibility and to the importance of their
functions." Waller, 467 U.S. at 46 (quoting
In re Oliver, 333 U.S. 257, 270 n.25 (1948));
State v. Garcia, 1997 ND 60, ¶ 20, 561 N.W.2d
599 ("Although the guarantee of a public trial was
created for the benefit of criminal defendants, the right is
also shared with the public; the common concern is to assure
fairness." (internal citation omitted)); State v.
Nyhus, 19 N.D. 326, 124 N.W. 71, 72 (1909) ("The
Constitution of this state guarantees to all persons accused
of crime a speedy and public trial. These provisions are for
the benefit of the accused."). A public trial is also a
tool to "encourage witnesses to come forward and
discourage perjury." Waller, 467 U.S. at 46;
State v. Klem, 438 N.W.2d 798, 800 (N.D. 1989)
("public trial... brings forth witnesses who might be
unknown to the parties and might not otherwise testify, and
tends to assure testimonial trustworthiness").
"Openness in court proceedings may improve the quality
of testimony, induce unknown witnesses to come forward with
relevant testimony, cause all trial participants to perform
their duties more conscientiously, and generally give the
public an opportunity to observe the judicial system."
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