Washington v. Koss (Majority)
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Anthony Koss was convicted of first degree burglary. Before jury deliberations, the judge and counsel met in chambers. Immediately afterwards, the judge stated in open court that she had given counsel the jury instructions and had made a requested change in one instruction. Koss therefore inferred, and the State agreed that it was an in-chambers instructions conference. Koss challenged that procedure for the first time on appeal. Recent controlling precedent of the Supreme Court held that he could raise this constitutional claim for the first time on appeal and that the trial court must address several factors on the record before closing a proceeding to which the constitutional right to a public trial attaches. But recent precedent also held that the constitutional right to a public trial did not extend to a preliminary instructions conference. In addition to the jury instruction conference, Koss argued that the trial judge received and answered two questions, in writing, during deliberations, in another closed court proceeding. But the transcript, clerk's papers, and docket did not reveal any such proceeding, open or closed. Recent controlling precedent reaffirmed a long-standing rule that the appellant bore the burden of providing a record showing that the supposedly unconstitutional event occurred. The Washington Supreme Court reaffirmed that recent controlling precedent.
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