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).
Superior Courts struggle to reconcile Dyer and Lavoie
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.
Beyond Lavoie: Commonwealth v. Morganti and Commonwealth v. Alebord
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.
Commonwealth v. Lavoie: counsel can waive public trial right without client's consent
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.
Felton and White: Two Superior Court Judges Grant New Trials
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.
Perez and Morganti: Conflicting Views of De Minimis Violations of the Public Trial Right
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.)
Commonwealth v. Dyer - SJC Muddles Waiver Doctrine as it Applies to Public Trial Right
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.
Commonwealth v. Lavoie - Defense Counsel May Not Waive the Public Trial Right on Behalf of His Client if He Has Not Discussed the Right With the Defendant
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.
Commonwealth v. Alebord - Application of Public Trial Right to Jury Empanelment Was Not a New Rule in February 2004
In Commonwealth v. Alebord, 80 Mass. App. Ct. 432 (September 21, 2011), the Massachusetts Appeals Court held that the rule that the Sixth Amendment right to a public trial includes jury impanelment was not new in February 2004 at the time the judgement in the defendant's case became final, and therefore the retroactivity doctrine articulated in Teague v. Lane, 489 U.S. 288, 310-311, 109 S.Ct. 1060 (1989), which bars the retroactive application of new rules, did not apply.
Waiver of the Constitutional Right to a Public Trial
In Commonwealth v. Cohen, the Supreme Judicial Court noted that "the right to a public trial, like other structural rights, can be waived." Commonwealth v. Cohen. 456 Mass. 94, 105-106 (2010).
A defendant’s waiver of his right to a public trial is effective only if it is “knowing, intelligent and voluntary”. See Commonwealth v. Williams, 379 Mass. 874, 876 (1980), citing Martineau v. Perrin, 601 F.2d 1196, 1200 (1st Cir. 1979) (waiver of public trial right must be intentional and knowing). See also Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 340 n.1 (1994) (in light of Williams, defendant’s waiver of his right to public trial is effective only if it is “knowing, intelligent and voluntary”). Such waiver must be “explicit”. See Commonwealth v. Peterson, 445 Mass. 782, 785-86 (2006). See also Commonwealth v. Edward, 75 Mass. App. Ct. 162, 173 n.13 (2009) (“a valid waiver [of the public trial right] requires the defendant’s knowing assent”). Accord United States v. Canady, 126 F.3d 352, 359 (2nd Cir. 1997) (addressing waiver of defendant’s public trial right, the court stated, “[a] waiver of a constitutional right must be voluntary, knowing and intelligent, that is, the act of waiver must be shown to have been done with awareness of its consequences”); Walton v. Briley, 361 F.3d 431, 434 (7th Cir. 2004) (like other fundamental trial rights, a right to a public trial may be relinquished only upon a showing that the defendant knowingly and voluntarily waived such a right).
"While neither a written waiver nor oral colloquy is required, and the defendant's assent to waiver need not necessarily appear on the record, the burden is on the Commonwealth to establish that the defendant knowingly waived his right to public trial either personally or through counsel." Commonwealth v. Downey. 78 Mass.App.Ct. 224, 230 (2010).
While there are many open questions about what might constitute a knowing waiver, the SJC has recognized that a defendant’s request for and the trial judge’s allowance of individual juror voir dire examinations does not implicitly constitute a waiver of the public trial right. In Cohen, the SJC explained:
Individual juror voir dire examinations in this case were conducted out of hearing of the defendant and the public, but the voir dire examination process itself took place, as it should have, in open court. Conducting such voir dire examinations in open court permits members of the public to observe the judge, as well as the prospective jurors. Even though the public cannot hear what is being said, the ability to observe itself furthers the values that the public trial right is designed to protect. The defendant had a right to have the public present during these individual juror examinations, just as he had a right during the trial to have spectators present in the court room while sidebar conferences took place out of their earshot.
Cohen, 456 Mass. at 117 (citations omitted). The SJC explained further:
Moreover, the jury selection proceedings also included voir dire questions publicly posed to the venire as a group, to which potential jurors gave substantive responses by raising their hands. The defendant had, and did not waive, the right to have the public hear the judge's questions and witness the prospective jurors' responses.
Id. (citations omitted).
The significance of the restrictive waiver doctrine in the public trial context is illustrated by Commonwealth v. Edward. In Edward, the defendant did not raise the claim that his right to a public trial had been violated until thirteen years after his direct appeal. See Edward, 75 Mass. App. Ct. at 163. Despite this delay, this Court held that “a conclusion that the defendant’s right to a public trial was violated does not lead us to the substantial risk analysis.” Id. at 173. After noting that the violation of the right to a public trial “is a structural error that relieves the defendant of the need to show prejudice in order to obtain a new trial”, id., the Appeals Court noted that in order to establish waiver, the Commonwealth had to demonstrate “the defendant’s knowing agreement” to waiver of the right. Id. Compare State v. Strode, 217 P.3d 310, 315 and n.3 (Wash. 2009) (defendant’s failure to lodge a contemporaneous objection at trial to violation of right to public trial did not effect a waiver; “the right to a public trial can be waived only in a knowing, intelligent and voluntary manner”; there was no record evidence of such a waiver). Contrast Crawford v. Minnesota, 498 F.3d 851 (8th Cir. 2007) (finding valid waiver of right to public trial where the defendant had not merely failed to object to a partial courtroom closure, but had agreed to it after the court had previously discussed the issue on the record); Hutchins v. Garrison, 724 F.2d 1425 (4th Cir. 1983) (defendant’s waiver of right to public trial was knowing and intelligent because he agreed to closed hearing to consider motion to dismiss after his counsel explained the public trial right and waiver of that right to him and the trial court advised the defendant of his right to an open hearing); Martineau v. Perrin, 601 F.2d 1196, 1200 (1st Cir. 1979) (finding waiver of right to public trial where “counsel fully explained [violation of right] to petitioner, [and his decision not to object] and then informed his client that 'at any time he wanted to' he could get up and object himself, which petitioner did not do”).
Public Trial Right Basics
Suffolk Lawyers for Justice
Chauncey Wood is a member of the Board of Directors for Suffolk Lawyers for Justice, a non-profit organization which administers the appointment of private attorneys, known as bar advocates, to indigent criminal defendants in Suffolk County. During his tenure on the board, Mr. Wood has worked aggressively to improve the quality of representation provided by bar advocates.