In Commonwealth v. Lavoie, 80 Mass. App. Ct. 546 (October 3, 2011), a divided panel of the Massachusetts Appeals Court reaffirmed that where there has been a closure of a courtroom for Sixth Amendment purposes, a defendant must personally and knowingly waive the right to a public trial and that in the absence of such a personal knowing waiver, reversal of the conviction is required unless the Court has previously made findings justifying closure as required by Waller v. Georgia, 467 U.S. 39 (1984). The Court made clear that there is no valid waiver even if defense counsel knows that the courtroom has been closed during jury selection and decides not to object for tactical reasons, but never discusses the public trial right with the defendant.
On this point the majority wrote:
"While there may be room to debate this court's extrapolation of a “knowing assent” requirement from prior case law of the Supreme Judicial Court, and while the position of the Supreme Judicial Court on this requirement may be unsettled, we will not depart from our own firmly stated, recent precedent. It is for the Supreme Judicial Court to decide whether to proceed in a different direction."
Lavoie, 80 Mass. App. Ct. at __. In a footnote explaining its assertion that there may be room to debate the Appeals Court’s “extrapolation of a ‘knowing assent’ requirement from prior case law of the Supreme Judicial Court,” the majority wrote:
"This court's first articulation of the principle that a defendant's waiver of the right to a public trial must be knowing, intelligent, and voluntary appeared in Commonwealth v. Adamides, 37 Mass. App. Ct. 339 (1994), in a footnote that was not necessary to the decision because the validity of the defendant's waiver had been conceded at oral argument. Id. at 340 n. 1. As support, the Adamides footnote cited to Commonwealth v. Williams, 379 Mass. 874, 876 (1980). In Williams, however, the Supreme Judicial Court had ordered a remand to determine, among other things, “whether the defendant properly waived his right to a public trial, through his actions or the actions of his counsel” (emphasis supplied). Williams, supra. In turn, Williams cited to three decisions from other jurisdictions, none of which went so far as to state that an effective waiver of the right of public trial required the defendant's personal, knowing assent. Furthermore, Adamides apparently overlooked the Supreme Judicial Court's own gloss on Williams—a parenthetical in Commonwealth v. Stetson, 384 Mass. 545, 549 n. 5 (1981), which described Williams as holding that “defendant, through counsel, may waive right to public trial.”
"Regardless of any weakness in its underpinnings, however, the Adamides dictum took root. See Patry, 48 Mass. App. Ct. at 475 (no valid waiver where counsel, without discussing the right to public trial with the defendant, waived the defendant's right to be present when the judge gave instructions to the jury in the deliberation room). Recent opinions of this court could not be clearer that there can be waiver of the right to a public trial only with the defendant's personal, knowing assent, although that assent need not appear upon the trial record. See Edward, 75 Mass. App. Ct. at 173–174 & n. 13; Downey, 78 Mass. App. Ct. at 230; Grant, 78 Mass. App. Ct. at 458–459."
Lavoie, 80 Mass. App. Ct. at __. In a footnote explaining its suggestion that “the position of the Supreme Judicial Court on this requirement may be unsettled”, the majority wrote,
"In Cohen, 456 Mass. at 98–100, 117–118, contemporaneous objection by counsel made it unnecessary for the court to consider whether waiver by counsel required the defendant's knowing assent. But see Cohen, supra at 118 n. 35, citing several cases discussing waiver, including Edward, but also observing that “[f]ailure of a defendant or his counsel to raise an objection when first made aware of an alleged public trial right violation is, at the very least, a strong indication of waiver” (emphasis supplied). See also Commonwealth v. Rogers, 459 Mass. 249, 264 (2011) (where counsel said “[t]hank you” when judge responded to public trial objection by ordering back door of cleared courtroom opened so that defendant's mother could observe jury selection, “the defendant may not now be heard to complain of the strategy that was adopted”). Contrast Commonwealth v. Simon, 456 Mass. 280, 305 (2010) (Botsford, J., dissenting), citing to Edward in another context for the proposition that 'waiver of right to public trial must be by defendant, not only defendant's counsel on his behalf.'"
Lavoie, 80 Mass. App. Ct. at __.
More generally, the court provided a helpful five step analysis for evaluating a claim alleging violation of the public trial right:
(1) Was there a closure?
(2) Was the closure full or partial?
(3) Did the closure satisfy the Waller factors?
(4) Did the defendant waive his right to a public trial?
(5) To what relief is the defendant entitled?
The dissenting justice (Graham, J.) argued that trial counsel should be able to waive the public trial right on behalf of the defendant without consulting with the defendant. However, in Lavoie, the majority noted that defense counsel indicated that he did “not have a specific recollection of the exclusion of the defendant’s family during the course of the jury selection process in this case.” Rather, he merely testified that “as a matter of practice, he does not object to family members and supporters being asked to leave the courtroom.” Given that the burden is on the Commonwealth to prove that a defendant has waived the public trial right, see Commonwealth v. Downey, 78 Mass. App. Ct. 224, 230 (2010), and waiver of a fundamental trial right must be “explicit”, see Commonwealth v. Peterson, 445 Mass. 782, 785-86 (2006), it is not clear how the Commonwealth could establish that counsel actually made a knowing waiver of the right in this case given that he did not recall the exclusion of the defendant’s family.
Practice Note: Whatever becomes of the Appeals Court’s holding that trial counsel may not waive the public trial right on behalf of his client in the absence of discussion about the right with the defendant, post-conviction counsel pursuing an unpreserved claim that the defendant’s right to a public trial was violated by closure of the courtroom during jury selection would be wise to develop, wherever possible, evidence that trial counsel was unaware that the defendant’s right to a public trial extended to jury selection. See e.g. Owens v. United States, 517 F. Supp. 2d 570, 575 (D. Mass. 2007) (defendant’s experienced trial counsel admitted that they were not aware that the right to a public trial extended to jury selection).