In Commonwealth v. Felton (Essex Co.) and Commonwealth v. White (Norfolk Co.), two superior court judges granted new trials in major felony cases based on violations of the right to a public trial during jury selection. These cases appear to indicate a growing recognition among trial judges that where the defense demonstrates a violation of the right to a public trial during jury selection and the Commonwealth fails to establish a knowing waiver of the right, reversal of the conviction is required.
In Commonwealth v. Felton, Judge David Lowey granted the defendant's second new trial motion in a rape and kidnapping case. As an initial matter, he acknowledged that it had been the practice of court officers in Salem Superior Court for at least 25 years to close the courtroom to the public during jury selection. Judge Lowey found that the defendant established that the public had been excluded from the entire jury selection and that there was no evidence that the defendant had knowingly waived his right to a public trial. Judge Lowey recognized further that the defendant's failure to raise the public trial issue in his first new trial motion and his direct appeal did not constitute a waiver, even though he did not file his appellate brief until after the SJC had issued its decision in Commonwealth v. Cohen, 456 Mass. 94 (2010). This would appear to be sound reasoning given that the defendant had asked his appellate counsel to raise the public trial issue but counsel refused because he erroneously believed that the issue had been waived.
In an interesting side-note, Judge Lowey made no effort to hide his disdain for the law in this area. He began his opinion with an "Introductory Statement" in which he wrote "In a cruel irony, the public interest in this case has been thwarted in order to protect a criminal defendant's constitutional right to a public trial." This statement is curious for a number of reasons. It seems to assume that the public's only interest in a criminal case is that the defendant be convicted - at least where the evidence appears sufficient. But as Judge Lowey himself later acknowledged, the Supreme Court has made clear that the right to an open and public trial belongs to BOTH the public and the criminal defendant. See Commonwealth v. Cohen ("The First Amendment implicitly grants the public, including the press, a right of access to court trials."). Thus, the Court has explictly acknowledged a "public interest" in open trial proceedings. Moreover, Judge Lowey seems to ignore the fact that the public has a more general interest in seeing that trials are conducted in conformity with constitutional requirements, designed to insure fairness and integrity of the process.
In Commonwealth v. White, Judge Barbara Dortch-Okara granted the defendant's first new trial motion in a drug trafficking case. Judge Dortch-Okara acknowledged what had been established in Commonwealth v. Cohen - that it had long been the practice of court officers in Dedham Superior Court to close the courtroom during jury selection, ostensibly to insure enough seating for potential jurors. In this case, the practice was followed for the general voir dire of the entire jury panel. Judge Dortch-Okara recognized that the justification for closure rang hollow because the public was never informed in this case that space had in fact become available. Thus, Judge Dortch-Okara found that the defendant established that the public had been excluded from a portion of jury selection (group voir dire) and that there was no evidence that the defendant had knowingly waived his right to a public trial.
Interestingly, Judge Dortch-Okara found that this closure was not de minimis even though it was only a portion of jury selection and all she could say about its duration was that it "must have taken a few hours." This would appear to conflict with Judge Giles' decision in Commonwealth v. Morganti and Commonwealth v. Alebord that exclusion of the public from the ENTIRE jury selection process lasting approximately 80 minutes was de minimis.
Also, it should be noted that Judge Dortch-Okara conducted individual voir dire in the judge's lobby and excluded the public from that process as well. She found, however, that because defense counsel had agreed to that process, the defendant had waived his right to a public trial with regard to that portion of jury selection. While this finding seems to be consistent with the SJC's conclusion in Commonwealth v. Dyer, it seems to be inconsistent with the law that a defendant's waiver of the right to a public trial is valid only if it is both knowing (i.e. the Commonwealth proves that the defendant understood he had a right to have the public present for jury selection) and personal (i.e. the defendant, as opposed to his counsel, waived the right).