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What’s With All The Wallering? 

Andrew Schultz
 September 7, 2022
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Facts of Law 

In the Appalachian Mountains, where I grew up, to “waller” meant to lay around lazily and do nothing, like a pig in the mud. It’s a slang term for “wallow,” with a Southern twang. 

In North Dakota, “Waller” has taken a whole new meaning. The U.S. Supreme Court case of Waller v. Georgia, 467 U.S. 39 (1984) created a four-factor test designed to protect the right to a public trial, guaranteed in our federal Constitution. A violation of this right is considered a “structural error,” a defect that affects the very framework of the trial, rendering it fundamentally unfair because it is a deviation of how our justice system is required to function. 

Basically, a trial judge is required to discuss the Waller factors on the record before closing the courtroom to the public, or holding conferences off the record. If the judge fails to do so, and the courtroom is closed during substantive proceedings where the jury isn’t present – like a meeting in the judge’s office to talk about striking potential jurors, or ruling on motions – then a violation occurs. If the defendant is found guilty, the verdict must be vacated for a new trial, even if the prosecution, or defense, did nothing wrong in the case. 

Recently, several North Dakota cases have featured Waller violations. Here in Ward County, the 2018 murder conviction of Bradley Morales was vacated and returned to our local court for a new trial, because of multiple Waller violations during trial. Morales was later retried in 2022, but stopped his trial after a few days to change his plea to guilty. Two cases from Williams County in 2021 overturned multiple sex offenses because of Waller violations, including closing the courtroom during trial testimony; one defendant reached a plea agreement much more lenient than the original trial sentence, and one case was dismissed entirely because of the potential trauma to the victim of having to testify again, and to members of the victim’s family, among other reasons. 

In May 2022, our state Supreme Court overturned a Ransom County felony terrorizing conviction due to Waller violations for off-the-record discussions about jury selection, how objections were to be asserted, potential evidentiary stipulations, and jury instructions, and then for a request for a bench trial instead of a jury trial, a continuance, and the defendant’s fitness to even stand trial. The re-trial is scheduled to begin next month. 

Last week, the Court heard oral arguments for another Waller case, from Barnes County. In that case the Court, the prosecution, and the defense discussed questions submitted by the jury during deliberation, off the record. The Supreme Court is due to hear yet another Waller case this week, from Burleigh County, regarding unrecorded bench conferences during trial, and discussion of administrative pretrial matters before the trial started. 

The sheer number of these kinds of cases is alarming, as is the fact that they seem to keep occurring. As a society, we depend on our court system to be open to the public, because nontransparent justice is no justice at all. The public has the right to attend court, just as they have the right to attend legislative committee hearings, town council meetings, county commission meetings, and other functions of government. When this right is abrogated, we no longer have transparent, accountable government.  

It is my fervent hope that our local court systems pay close attention to these developments, because the criminal justice process isn’t just for prosecutors, defense attorneys, and those charged with offenses. It's also for the public, as part of our constitutional guarantee of fair and impartial justice in a transparent democratic society. 

In addition to being a contributing writer, Andrew Schultz is The Dakotan’s legal counsel. He owns and operates Worthington & Schultz, P.C., a law firm in Minot. Visit www.worthingtonschultz.com

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