                Filed 7/30/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                       STATE OF NORTH DAKOTA


                                   2019 ND 206


State of North Dakota,                                       Plaintiff and Appellee

      v.

Bradley Joe Morales,                                      Defendant and Appellant


                                  No. 20180366


       Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Douglas L. Mattson, Judge.

      REVERSED AND REMANDED.

      Opinion of the Court by Tufte, Justice.

      Rozanna C. Larson, State’s Attorney, Minot, N.D., for plaintiff and appellee.

      Bradley J. Morales, self-represented, Bismarck, N.D., defendant and appellant;
submitted on brief.
                                  State v. Morales
                                    No. 20180366


       Tufte, Justice.
[¶1]   Bradley Joe Morales appeals a district court criminal judgment following a
jury verdict finding him guilty of murdering his ex-girlfriend. Morales argues a
motion hearing, evidentiary hearing, and parts of his trial were closed to the public
without the pre-closure analysis required by Waller v. Georgia, 467 U.S. 39, 48
(1984), thus violating his right to a public trial guaranteed by the Sixth Amendment.
We reverse the judgment and remand for a new trial.
                                           I
[¶2]   During an argument with his ex-girlfriend, Morales stabbed her in the neck.
Morales was initially charged with Criminal Attempt - Murder. After the victim died
from her injuries, the district court dismissed the Criminal Attempt charge on the
State’s motion. The State then charged Morales with Murder. On appeal Morales
argues his public trial right was violated by the district court’s closures of a motion
hearing on March 27, 2018; an evidentiary hearing on April 16, 2018; and parts of the
jury trial on May 17-24, 2018. He also argues he was denied his right to represent
himself at trial and the State’s decision to dismiss the initial charge and file new
charges a week later was made in bad faith in an effort to have a new judge assigned
to the case.
[¶3]   These court proceedings attracted significant public interest and media
attention. Because of news media coverage, the trial judge expressed concern about
tainting the jury and impairing Morales’s right to a fair and impartial trial. In an
attempt to mitigate the risk of tainting potential jurors, the court issued an expansive
order on March 15, 2018, advising that “all participants, including potential
witnesse[s], are to refrain from making or authorizing extrajudicial comments to the
media and the public” encompassing all “out-of-court comments” and subject to
“sanctions against the offending individual, including contempt of court.”

                                           1
[¶4]   Morales argues the district court improperly closed the courtroom on eight
separate occasions during the trial or pretrial hearings. Seven of the closures were
initiated by the court, and one was requested by Morales. Before several of the
closures, the court failed to conduct any of the analysis required by Waller. For some,
the court discussed the Waller factors after the courtroom had already been closed.
Before three of the closures, the court acknowledged the Waller factors but failed to
articulate findings on all of the factors. In each of the eight closures, the public was
excluded without the court giving consideration to whether the public could remain
while the jury was excluded.
[¶5]   The district court closed two pretrial hearings to the public. The first, a March
27, 2018, hearing on Morales’s pro se motion for new counsel, was closed by a
written order issued prior to the hearing. The closure notice provided no explanation.
The amended notice of hearing simply stated “this hearing will be CLOSED TO THE
PUBLIC” with “Per Judge” as the only explanation. No findings supporting the
closure were made at the hearing. Neither party objected to the closure.
[¶6]   The second closure was of an April 16, 2018, pretrial evidentiary hearing
relating to admissibility of evidence under N.D.R.Ev. 404(b). At the close of the
March 27 motion hearing, the district court stated its intent to close this hearing:
       I will have a new order clarifying on the pretrial being the first part of
       the April 16th and then we will clear the press out and we will go and
       deal with the 404(b). That will be a closed hearing for obvious reasons.
Just before the court excluded the public from the courtroom, the State objected to the
closure and reminded the court of the Waller requirements. Morales’s trial counsel
then expressed concern that Morales’s right to a fair trial with an impartial jury would
be diminished if the media reported on any inadmissible evidence that would be
discussed in open court. The State suggested that by making this argument, Morales
was waiving his right to a public trial. The State asked the court to make specific
findings and adequately tailor the closure, reasserting that the State did not join in the
requested closure. When asked whether Morales concurred with the requested closure,
his attorney responded: “Mr. Morales and I are apparently taking a different position,

                                            2
Judge. Mr. Morales will not waive his right to appeal on this issue should an appeal
become necessary.” Faced with objections from both the State and the defendant, the
court then reflected on the level of media coverage:
         There [have] been reports, I don’t know if all the excessive details that
         have been reported are going to be admissible or not. And I don’t want
         a jury to be needlessly tainted because somebody perceives that’s the
         public’s absolute right to know. The public does have a right to know,
         and that. It’s just a question of balancing the matters of how soon they
         have a right to know if we are going to be able to have a justice system
         that works. Both sides are entitled to a fair and impartial jury, and
         that’s what I want us to have here.
After stating that “I will follow this up with an additional written order,” the court
closed the courtroom without further pre-closure discussion of alternatives to closing
the courtroom or whether the closure might be more narrowly tailored to protect the
interest in an untainted jury pool without unnecessarily burdening the public trial
right.
[¶7]     The first trial closure occurred just before the jury was given preliminary
instructions. The bailiff gave the trial judge a note from a juror who wanted to alert
the court he had family working at the hospital where the victim was treated. The
district court closed the proceedings, stating: “So if you are part of the public or the
media I do ask that you leave temporarily. And just shut down your recording
equipment.” After closing the courtroom, the court found “no alternatives to closing
the courtroom” and characterized the closure as “what we would normally call a
conference at the bench.” The court then called in the juror who had written the note
and questioned him in the presence of Morales and the State about an incident in
which people unrelated to the trial had initiated conversation with the juror about the
case. The court was satisfied that the juror had complied with the court’s
admonishment against talking to people about the case, and excused the juror back to
the jury room.
[¶8]     The second closure occurred on the first day of trial after the jury had been
escorted out for a lunch recess. After a brief discussion with counsel about whether


                                            3
and in what form certain video clips would be played, the court closed the courtroom
to the public. After the closure, the court reviewed graphic video clips of the crime
scene for analysis under N.D.R.Ev. 403. There was no objection to the closure by
Morales or the State, and the court made no findings under Waller.
[¶9]   At the beginning of the second day of the trial, the court closed the trial for a
third time to have “a full and candid conversation with the attorneys” about a limiting
instruction. The court stated it did not “view that there is an alternative to” the
closure. During several closed sessions of court throughout the morning, the court
discussed limiting instructions with Morales and the attorneys and also Morales’s
dissatisfaction with his trial attorney and desire to represent himself. The courtroom
was reopened to the public when the jury returned at 1:00 p.m.
[¶10] The fourth closure was initiated by Morales when his trial attorney advised the
court, “Mr. Morales wishes to make a record. Can we close the court?” At the time,
the court had just returned from recess and the jury had not yet returned to the
courtroom. Without making Waller findings or asking for a response from the State,
the courtroom was closed to everyone other than Morales, the attorneys, and the court
staff. After the courtroom was closed, Morales’s attorney explained to the court that
Morales “wishes to make a record in regard to evidence that he wishes to offer that
I am not going to.” Morales explained his intent to take the stand and the reasons he
had for doing so. The court explained its requirements for maintaining decorum and
discussed whether Morales would testify in narrative form or would be questioned by
his attorney.
[¶11] Just before closing arguments, and before the jury was brought in, the district
court closed the courtroom to the public for a fifth time to discuss a report that two
jurors might have seen Morales brought into the courthouse in shackles. Again, there
was no analysis or findings under the Waller factors. While the courtroom was closed
to the public, the court and counsel discussed procedures for questioning the jurors
to determine whether any juror had seen Morales in shackles and, if so, whether any



                                           4
impression made would affect the juror’s ability to be fair and impartial. The court
discussed with counsel whether such questioning should be in open court.
[¶12] The courtroom was reopened to the public, and the jury panel was questioned
as a group. After one juror raised her hand to indicate she had seen Morales outside
the courtroom, the court closed the courtroom to the public for a sixth time to question
the juror. The court explained that questioning an individual juror at this point into the
trial would require “a lot of sensitivity.”
[¶13] At oral argument, the State confirmed that there were members of the public
in attendance who were excluded from the courtroom during these courtroom
closures.
                                              II
[¶14] Morales argues that each of these closures violated his constitutional right to
a public trial and requires reversal. A de novo standard of review applies to whether
facts rise to the level of a constitutional violation. State v. Rogers, 2018 ND 244, ¶ 3,
919 N.W.2d 193. “In criminal cases, errors not raised in the district court may fall into
one of three categories: forfeited error, waived error, and structural error.” Id.
“Forfeiture is the failure to timely assert a right, while waiver is the intentional
relinquishment of a right.” State v. Watkins, 2017 ND 165, ¶ 12, 898 N.W.2d 442. We
review forfeited errors under N.D.R.Crim.P. 52(b) for obvious error. Id. “A structural
error is a ‘defect affecting the framework within which the trial proceeds, rather than
simply an error in the trial process itself.’” Rogers, at ¶ 4 (quoting Johnson v. United
States, 520 U.S. 461, 468 (1997)). Errors of this nature “necessarily render a criminal
trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.”
Rogers, at ¶ 4 (quoting Neder v. United States, 527 U.S. 1, 9 (1999)). Because these
errors affect the entire adjudicatory framework, they “defy analysis by
‘harmless-error’ standards.” Rogers, at ¶ 4 (quoting Puckett v. United States, 566 U.S.
129, 141 (2009)). With structural errors, it is not necessary to “find[] [an] impact on
the trial’s outcome.” Rogers, at ¶ 4; United States v. Marcus, 560 U.S. 258, 263
(2010). Inherent in the very nature of a structural error is the “difficulty in ‘assessing

                                              5
the effect of the error.’” Id. “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).
[¶15] Violation of the right to a public trial is a structural error. Rogers, 2018 ND
244, ¶ 5, 919 N.W.2d 193. We have said that structural errors are constitutional errors
“so intrinsically harmful as to require automatic reversal” regardless of whether they
were forfeited or waived. Id. at ¶ 3 (reversing and remanding for new pretrial
competency hearing); State v. Pittenger, 2019 ND 22, ¶ 8, 921 N.W.2d 439; State v.
Decker, 2018 ND 43, ¶ 8, 907 N.W.2d 378; State v. Watkins, 2017 ND 165, ¶ 12, 898
N.W.2d 442; State v. White Bird, 2015 ND 41, ¶ 24, 858 N.W.2d 642.
                                            A
[¶16] To review a claimed violation of the constitutional right to a public trial, we
must first consider whether there was a closure implicating the right. State v. Taylor,
869 N.W.2d 1, 11 (Minn. 2015) (“[B]efore we can apply the Waller test to determine
if a closure is justified, we must determine whether a closure even occurred.”). This
Court has said some courtroom closures may be “errors . . . ‘not significant enough
to rise to the level of a constitutional violation.’” State v. Decker, 2018 ND 43, ¶ 13,
907 N.W.2d 378 (quoting Carson v. Fischer, 421 F.3d 83, 94 (2d Cir. 2005)); see also
Decker, at ¶ 35 (Tufte, J., dissenting) (“Whether called ‘trivial’ or not, such partial or
temporary restrictions on public access are not properly considered the sort of
‘closure’ within the meaning of the Sixth Amendment or N.D. Const. art. I, § 12.”).
Like the Sixth Amendment right to counsel, the Sixth Amendment public trial right
attaches from the beginning of adversarial proceedings through sentencing. Rogers,
2018 ND 244, ¶¶ 11-12, 919 N.W.2d 193. Closures of pretrial hearings implicate the
public trial right, although they do not always require reversal of a subsequent
conviction. Rogers, at ¶¶ 19-21.
[¶17] Brief sidebars or bench conferences ordinarily will not implicate the public
trial right where they are conducted during trial to address routine evidentiary or
administrative issues outside the hearing of the jury. For example, arguments and

                                            6
rulings on objections and other routine evidentiary matters that must be held outside
the jury’s hearing need not be conducted so that the public can hear. State v. Smith,
334 P.3d 1049, 1054 (Wash. 2013) (concluding the public trial right was not
implicated by sidebars to address speaking objections throughout trial); State v. Smith,
876 N.W.2d 310, 329 (Minn. 2016) (“[C]ourts have also treated routine evidentiary
rulings and matters traditionally addressed during private bench conferences or
conferences in chambers as routine administrative proceedings.”). Courts have
similarly rejected public trial claims in the context of closed hearings to consider a
party’s offer of proof. E.g., United States v. Vazquez-Botet, 532 F.3d 37, 51-52 (1st
Cir. 2008) (“While we leave open the possibility that the public-trial right may apply
to some offer-of-proof hearings, we decline to recognize such a right on facts as
uncompelling as these.”). Where a bench conference is held in view of both the public
and the jury, despite their inability to hear what is said, the public trial right is
satisfied by prompt availability of a record of those proceedings. See Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 598 n.23 (1980) (Brennan, J., concurring
in the judgment) (“when engaging in interchanges at the bench, the trial judge is not
required to allow public or press intrusion upon the huddle”); United States v. Valenti,
987 F.2d 708, 713-14 (11th Cir. 1993) (holding that closed bench conferences do not
require pre-closure findings supporting closure); Smith, 876 N.W.2d at 330 (“We have
held that bench and chambers conferences may occur, so long as a record is made and
the record is available to the press and the public.”). In contrast, trial proceedings
ordinarily may not be closed to the public where the jury is not present. Compare
People v. Harris, 12 Cal. Rptr. 2d 758, 765 (Cal. Ct. App. 1992) (concluding public
trial right violated by process of conducting peremptory challenges in chambers to
expedite jury selection and avoid jurors knowing which side exercised which
challenges) with People v. Williams, 31 Cal. Rptr. 2d 769, 772-73 (Cal. Ct. App.
1994) (approving procedure where peremptory challenges and related motions were
initially made at sidebar in view of the jury).



                                           7
[¶18] In Rovinsky v. McKaskle, the Fifth Circuit held that the defendant’s Sixth
Amendment right to a public trial was violated when the trial court conducted
in-chambers conferences to decide motions to limit the cross examination of two
witnesses. 722 F.2d 197 (5th Cir.1984). Without pre-closure findings to review, the
court explained it had no ability to evaluate the propriety of holding the conferences
behind closed doors. Id. at 201. “Any necessity that the motions be heard outside the
jury’s presence did not require that they be heard behind closed doors. Prejudice could
readily have been prevented without excluding the press and public by, for example,
sequestering the jury.” Id.
[¶19] Ultimately, the district court must take “every reasonable measure to
accommodate public attendance at criminal trials.” Presley v. Georgia, 558 U.S. 209,
215 (2010) (per curiam). We conclude a bench conference concerning an evidentiary
objection seeking to exclude evidence during trial is not a closure implicating the
public trial right. In that situation, the public remains present and is able to see and
hear everything the jury is able to see and hear. However, a court proceeding
concerning a motion in limine or motion to suppress evidence that is held either
before trial or otherwise outside the presence of the jury is a proceeding that must be
in open court unless pre-closure findings under Waller justify a closure.
                                           B
[¶20] The Sixth Amendment guarantees 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; see also N.D. Const. art. 1, § 12 (guaranteeing “the right to a
speedy and public trial”). The defendant’s right to a fair trial is not the sole test
because, at times, an “unlawful closure might take place and yet the trial still will be
fundamentally fair from the defendant’s standpoint.” Rogers, 2018 ND 244, ¶ 6, 919
N.W.2d 193 (quoting Weaver, 137 S. Ct. at 1910).
[¶21] “The right to a public trial ‘must give way in rare instances to other interests
essential to the fair administration of justice.’” Rogers, 2018 ND 244, ¶ 14, 919
N.W.2d 193 (quoting State v. Garcia, 1997 ND 60, ¶ 20, 561 N.W.2d 599). An

                                           8
example of one such overriding interest is “the defendant’s right to a fair trial.”
Rogers, at ¶ 14 (quoting Presley, 558 U.S. at 213). Preserving a fair trial against the
risk of a tainted jury pool was the trial judge’s stated concern here. However, for the
right to a public trial to yield to an overriding interest, the party seeking closure must
assert an overriding interest to the court, and that interest must be the standard against
which the court tailors any closure.
       The presumption of openness may be overcome only by an overriding
       interest based on findings that closure is essential to preserve higher
       values and is narrowly tailored to serve that interest. The interest is to
       be articulated along with findings specific enough that a reviewing
       court can determine whether the closure order was properly entered.
State v. Klem, 438 N.W.2d 798, 801 (N.D. 1989) (quoting Press-Enterprise Co. v.
Superior Court of California, 464 U.S. 501, 510 (1984)). We review the district
court’s application of the Waller factors “when evaluating claimed violations of the
public trial right,” Rogers, at ¶ 15, and therefore “strictly requir[e] the trial court to
make findings before closure.” Decker, 2018 ND 43, ¶ 9, 907 N.W.2d 378. This
analysis consists of:
       1. the claiming party must advance an overriding interest that is likely
          to be prejudiced,
       2. the closure must be no broader than necessary to protect that
          interest,
       3. the trial court must consider reasonable alternatives to closing the
          proceeding, and
       4. it must make findings adequate to support the closure.
Rogers, at ¶ 15 (quoting Waller, 467 U.S. at 48). If these requirements are satisfied,
“the public trial right is not violated and the proceedings may be closed.” Rogers, at
¶ 18. But if a closure during trial was not ordered consistent with Waller, the remedy
is a new trial. Id. at ¶ 3.
[¶22] “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.’” Rogers, 2018 ND 244, ¶ 8, 919 N.W.2d 193 (quoting


                                            9
Waller, 467 U.S. at 46); 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)). “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.” Rogers, at ¶ 8 (quoting Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 383
(1979)); Garcia, at ¶ 20. “Without these basic protections, a criminal trial cannot
reliably serve its function as a vehicle for determination of guilt or innocence, and no
criminal punishment may be regarded as fundamentally fair.” Arizona v. Fulminante,
499 U.S. 279, 310 (1991). Our cases reference four basic principles embodied in the
public trial right: “(1) ensuring a fair trial; (2) reminding ‘the prosecutor and
judge of their responsibility to the accused and the importance of their functions’;
(3) encouraging witnesses to testify; and (4) discouraging perjury.” Rogers, at ¶ 9
(quoting Decker, 2018 ND 43, ¶ 14, 907 N.W.2d 378).
[¶23] Waller requires that any closure be no broader than necessary. To comply with
Waller, before closing a trial the district court must consider and make findings on
reasonable alternatives to closure and must tailor any closure to be no broader than
necessary to protect the interest asserted by the party requesting the closure. We have
held the Waller findings must be made before a closure. Decker, 2018 ND 43, ¶ 9,
907 N.W.2d 378. It is “an absolute requirement that before the trial court may
exclude the public, it must articulate its reasons on the record and those reasons must
be expressed in findings that enable a reviewing court to exercise its function.” State
v. Klem, 438 N.W.2d 798, 801 (N.D. 1989). Neither we nor the trial court can satisfy
the constitutional command with post-closure rationale for why the closure would
have been justified if the court had made the required findings. Id. at 802.
                                          III



                                          10
[¶24] The second closure of the trial was ordered by the court to consider whether
graphic video of the crime scene was admissible under N.D.R.Ev. 403. Morales did
not object, and the district court made no findings under Waller. Because Morales
failed to preserve the issue with a timely objection, we review this forfeited error only
for obvious error. State v. Pemberton, 2019 ND 157, ¶ 8; Watkins, 2017 ND 165,
¶ 12, 898 N.W.2d 442. To establish obvious error, the defendant must demonstrate
(1) an error, (2) that was plain, and (3) affected his substantial rights. Pemberton, at
¶ 8. “To constitute obvious error, the error must be a clear deviation from an
applicable legal rule under current law.” Id. If the defendant establishes obvious error,
an appellate court has discretion whether to correct the error “and should correct
it if it ‘seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” State v. Olander, 1998 ND 50, ¶ 16, 575 N.W.2d 658.
[¶25] Under Waller and this Court’s public trial decisions, the second trial closure
without pre-closure findings was a clear deviation from an applicable legal rule; thus
it was an error that was plain. When the district court ordered the second closure, the
jury was at its lunch recess and was not in the courtroom. Naturally, the court must
consider whether the probative value of evidence is outweighed by unfair prejudice
without the jury observing the evidence or hearing the arguments. The court’s reason
to exclude the public is less clear. We could speculate that the court’s reason was the
same as its reason for imposing the March 15 order restricting extrajudicial
comments, but avoiding the need to speculate is precisely why Waller requires pre-
closure findings. The scenario presented in Waller is particularly instructive here.
There, the Supreme Court reversed a trial court’s closure to the public of a hearing on
a motion to suppress evidence. Like the suppression hearing in Waller, this closure
involved hearing argument and discussing evidence which may or may not be
admissible at trial. It is thus clear that more than a worry about jurors hearing
prejudicial or inadmissible information is required to justify a closure. Considering
a parallel concern asserted in support of closing jury selection, the Supreme Court has
said: “If broad concerns of this sort were sufficient to override a defendant’s

                                           11
constitutional right to a public trial, a court could exclude the public from jury
selection almost as a matter of course.” Presley, 558 U.S. at 215. Assuming the
circumstances here supported a conclusion that a risk of jury taint was an overriding
interest, it is clear from our cases and Waller that the court must also consider
alternatives to closure and narrowly tailor any closure. Id. at 214 (concluding “trial
courts are required to consider alternatives to closure even when they are not offered
by the parties”).
[¶26] We now consider the third element of obvious error, whether the error “affects
substantial rights.” N.D.R.Crim.P. 52(b). The category of structural error is defined
by the error’s effect on the “entire adjudicatory framework” which “def[ies] analysis
by ‘harmless-error’ standards.” Rogers, 2018 ND 244, ¶ 4, 919 N.W.2d 193; Puckett
v. United States, 556 U.S. 129, 141 (2009) (quoting Fulminante, 499 U.S. at 309).
Like its counterpart in the federal rules, Rule 52 distinguishes between errors that
affect substantial rights and those that do not. Those that do not affect substantial
rights are defined as harmless errors that “must be disregarded.” If an error is immune
to harmless error analysis, which is the definition of structural error, it logically
follows that the error affects substantial rights. United States v. Yamashiro, 788 F.3d
1231, 1236 (9th Cir. 2015) (holding that “a finding of structural error satisfies the
third prong of the Olano plain-error test”) (quoting United States v. Jimenez Recio,
371 F.3d 1093 (9th Cir. 2004)); United States v. David, 83 F.3d 638, 647 (4th Cir.
1996) (applying Rule 52 and concluding that because structural error can never be
harmless “it follows that such errors must affect substantial rights”); In re Taylor, 73
A.3d 85, 99 (D.C. 2013). Because the second trial closure was a structural error, it
necessarily affects substantial rights for purposes of Rule 52(b). Accordingly, this trial
closure is an obvious error.
[¶27] The third closure was initiated by the court to discuss a limiting instruction
with counsel. Neither party objected to the closure. The jury was not present when
the court announced it would close the courtroom to the public so that it could have a
“full and candid” conversation with counsel. Before closing the hearing, the

                                           12
court simply said, “I don’t view that there is an alternative to that.” After closing
the hearing, the court discussed proposed jury instructions limiting the jury’s
consideration of prior bad acts evidence to uses consistent with N.D.R.Ev. 404(b).
Because Morales did not object, the issue was forfeited and our review of the closure
is limited to obvious error. Pemberton, 2019 ND 157, ¶ 8; Watkins, 2017 ND 165,
¶ 12, 898 N.W.2d 442.
[¶28] Discussion of a limiting instruction must of course be held outside the presence
of the jury. Yet closing the proceeding to the public without pre-closure findings is
again an error that is plain under Waller. Adherence to the Waller requirements
focuses the district court’s attention on whether there is an overriding interest
requiring closure of the courtroom to the public and media that were observing the
trial. Without findings articulated on the record, we are left to speculate whether the
district court had an overriding interest in mind, considered any specific alternatives,
or considered ways to limit the scope of any necessary closure. We have said that
post-closure explanations are insufficient under Waller. Klem, 438 N.W.2d at 802.
The closed part of the trial, including several recesses, lasted from 8:39 a.m. to
approximately 1:00 p.m. The transcript for this portion of the trial reveals no further
discussion that would justify closing the proceedings. The failure to articulate pre-
closure findings is a clear deviation from the line of cases going back to Waller and
Klem. Because this public trial violation is a structural error immune to harmless error
analysis, we again conclude it necessarily affects substantial rights and thus was
obvious error.
[¶29] The fourth closure was not simply forfeited by a failure to object but instead
was expressly requested by Morales. The transcript recounts the following exchange
before the courtroom was closed:
       MR. MOTTINGER: Your Honor, Mr. Morales wishes to make a
       record. Can we close the court?
       THE COURT: Is there anything else that we have in open court to
       bring about?
       MR. MOTTINGER: No, Your Honor.


                                          13
       THE COURT: So I am going to be closing the courtroom. Before the
       Defendant presents their case. Record reflect both counsel are present,
       the Defendant is present, the courtroom has been closed. The court
       staff are present. It is my understanding that the Defendant wants to
       say something in closed court.
[¶30] The defendant’s direct request for the closure invited the error he now argues
on appeal. The invited error doctrine ordinarily does not permit a defendant to appeal
an invited error. White Bird, 2015 ND 41, ¶ 23, 858 N.W.2d 642 (“It is a cardinal rule
of appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party.”); U.S. v. Solis, 299 F.3d 420, 452 (5th Cir. 2002)
(“Under this doctrine, a defendant cannot complain on appeal of alleged errors which
he invited or induced . . . . We ‘will not reverse . . . absent manifest injustice.’”); but
see Rogers, 2018 ND 244, ¶ 9, 919 N.W.2d 193 (quoting Presley, 558 U.S. at 214
(“The public has a right to be present whether or not any party has asserted the
right.”)); Press-Enterprise Co., 464 U.S. at 503-05, 508, 513 (concluding public trial
right was violated despite both parties having sought confidentiality of transcript of
closed voir dire proceedings); Singer v. United States, 380 U.S. 24, 34-35 (1965)
(citing United States v. Kobli, 172 F.2d 919, 923-24 (3d. Cir. 1949) (concluding under
Sixth Amendment that “members of the general public should be admitted to every
criminal trial even though it might appear that, in a case such as the one before us,
most of them come only out of morbid curiosity”)). Because we have concluded that
the second and third trial closures were obvious error, we need not decide here
whether the district court’s failure to articulate Waller findings prior to closing
proceedings at the specific request of the defendant is an error that may support
reversal of a criminal judgment on appeal.
[¶31] To guide the district court regarding issues that may recur on remand, we
briefly address the other claimed public trial violations. The first closure was
prompted by a note from an individual juror. The jury was not in the courtroom at the
time. The district court stated that it saw no alternative and explained to the public
attending the trial that they would have to leave for this “bench conference.” The


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court’s brief pre-closure statements did not satisfy the requirements of Waller. In
essence, the court reasoned that this was not a closure but a bench conference that did
not require Waller analysis. The fifth and sixth closures also involved midtrial
questioning of jurors relating to potential prejudice arising from seeing the defendant
in shackles outside the courtroom. We conclude that the public trial right is not
implicated by the trial court’s private questioning of an individual juror during a trial
regarding potential misconduct. Should a similar situation occur on retrial, such
questioning may be conducted in chambers or in a closed courtroom. United States v.
Edwards, 823 F.2d 111, 116-17 (5th Cir. 1987) (reasoning that “midtrial proceedings
involving the questioning of jurors have traditionally been closed to the public”).
[¶32] The district court’s two closures of pretrial hearings were also ordered without
Waller findings justifying the closures. This is also error, although improper closure
of a pretrial hearing does not necessarily require a new trial. Rogers, 2018 ND 244,
¶ 21, 919 N.W.2d 193. Because there was no objection to the first pretrial closure, we
review it as a forfeited error subject to obvious error review. In contrast, both Morales
and the State objected to the second pretrial closure, preserving it for review on
appeal. The district court’s March 15th order restricting all participants in the trial
from making “extrajudicial comments” on penalty of contempt is clear indication of
the court’s appropriate concern that Morales receive a fair trial by an impartial jury
not tainted by media coverage. That concern, to the extent it expressed the district
court’s motivation in closing pretrial hearings in March and April, is not by itself
sufficient. The U.S. Supreme Court addressed precisely this point in Presley v.
Georgia:
               There are no doubt circumstances where a judge could conclude
       that threats of improper communications with jurors or safety concerns
       are concrete enough to warrant closing voir dire. But in those cases, the
       particular interest, and threat to that interest, must “be articulated along
       with findings specific enough that a reviewing court can determine
       whether the closure order was properly entered.”
558 U.S. at 215-16. Under Waller and Presley, the first pretrial closure is error that
is plain and thus satisfies the first two requirements for obvious error. And as a

                                           15
structural error immune to harmless error analysis, we also conclude it affects
substantial rights. Accordingly, the first closure was also obvious error.
[¶33] The second pretrial closure, which we review de novo, was also a violation of
the public trial right. At the prior hearing the district court stated that at the pretrial
evidentiary hearing it would “clear the press out . . . and deal with the 404(b). That
will be a closed hearing for obvious reasons.” On the record prior to closing the
evidentiary hearing, the court stated, “I don’t know if all the excessive details that
have been reported are going to be admissible or not.” Waller would permit a closure
even over the objection of both parties, but the court must articulate adequate findings
supporting a closure. Compare Waller, which remanded for a new hearing on a
motion to suppress, a hearing which necessarily includes discussion of evidence that
may not be admissible. Where there is a particularized risk of tainting the jury pool
by public proceedings relating to potentially inadmissible evidence, Waller tells us
that the Sixth Amendment requires both tailoring any closure to be no broader than
necessary to protect that interest and consideration of reasonable alternatives to
closure. Should similar pretrial hearings be held on remand, the district court should
make adequate findings under Waller before closing any hearing.
                                            IV
[¶34] We do not lightly reverse a criminal conviction in the absence of any apparent
prejudice to the defendant flowing from erroneous trial closures. It may appear that
reversing a conviction for a public trial violation elevates form over function. Further,
we acknowledge the trial court’s motivation to preserve the defendant’s right to a fair
trial by limiting distribution of case information that may not be admitted at trial. The
second pretrial error was preserved by objection and would require only a remand for
a new pretrial hearing and a new trial contingent on the outcome of that hearing. The
other pretrial error and the two trial closures that we conclude were forfeited obvious
error are subject to correction at our discretion. Olander, 1998 ND 50, ¶ 16, 575
N.W.2d 658. Here, we conclude that the repeated exclusion of the public without
findings articulated on the record before the closures negatively affects the fairness,

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integrity, and public reputation of our criminal justice system. Id. at ¶ 28 (exercising
discretion to notice obvious error and remanding for new trial because “an accused’s
guilt or innocence is not the determinative factor; rather, the fairness and integrity of
the proceeding is paramount”). We exercise our discretion and notice these obvious
errors. We reverse the judgment and remand for a new trial.
[¶35] We have considered Morales’s remaining issues and arguments and conclude
they are either without merit or unnecessary to our decision. We reverse the judgment
and remand for a new trial.
[¶36] Jerod E. Tufte
      Daniel J. Crothers
      Jon J. Jensen
      Lisa Fair McEvers
      Gerald W. VandeWalle, C.J.




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