Attorney Nathanson was recently interviewed by Massachusetts Lawyers Weekly regarding the First Circuit's troubling decision in United States v. Szypt. In that case, the First Circuit had allowed a defendant to be prosecuted a second time even though the lower court had entered a not guilty finding after the defendant won his first appeal. The First Circuit said its ruling in the first appeal was not intended to order an acquittal, even though that is what the lower court actually ordered. The MLW article quotes Attorney Nathanson:

Many people have inquired how to proceed with public trial claims after the SJC's decisions in Commonwealth v. Morganti, 467 Mass. 96 (2014), and Commonwealth v. Alebord, 467 Mass. 106 (2014).

An alarming pattern seems to have emerged over the past two months as three different superior court judges have denied new trial motions alleging violation of the Sixth Amendment right to a public trial, despite conceding that right was violated and neither the defendants nor their trial counsel knowingly waived the right. In Commonwealth v. Kenneally (SUCR2001-10462, Brassard) (Jan. 30, 2013), Commonwealth v. McNeil (PLCR2000-03965, Chin) (Feb. 21, 2013), and Commonwealth v. Weaver (SUCR2003-11293, Hines) (Feb. 22, 2013), superior court judges all adopted remarkably similar reasoning to reject these claims.

The SJC has agreed to hear two cases involving the violation of defendants' federal constitutional right to a public trial. In these cases, the SJC should address a crucial question: whether a defendant is entitled to relief for the violation of his right to a public trial where he did not raise the issue at any point prior to or during his direct appeal.

On January 11, 2013, the SJC held in Commonwealth v. Lavoie, 464 Mass. 83 (2013), that an attorney may knowingly waive his client's federal constitutional right to a public trial without the client's knowledge or consent. It would appear that Lavoie applies only in those situations where counsel (1) knows the public has been excluded from jury selection AND (2) makes a conscious decision to waive the public trial right.

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 the past week, two superior court judges issued a pair of decisions that reveal some very exciting developments concerning the Sixth Amendment right to a public trial. The cases are Commonwealth v. Perez, ESCR 2005-00947 (Whitehead, J.) and Commonwealth v. Morganti, PLCR 1998-00940 (Giles, J) (Memorandum of Decision, December 15, 2011). (More accurately, Judge Whitehead issued his Perez decision about a year ago (Memorandum of Decision and Order, December 2, 2010), but last week, he reaffirmed it after a request for reconsideration in light of recent appellate court decisions.)

In Commonwealth v. Dyer (October 13, 2011), the SJC held that a defendant convicted of murder had waived a claim that his right to a public trial had been violated because neither the defendant nor his counsel raised a contemporaneous objection when juror voir dire was held in the judge's chambers.  Moreover, the SJC held that because the defendant had waived the claim, he was not entitled to the benefit of structural error analysis, but rather was limited to the traditional standard of review for waived claims under GL Ch. 278 Section 33E - whether the error raised a substantial likelihood of a miscarriage of justice.

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.