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.
The Appeals Court explained its ruling as follows:
"[In In Presley v. Georgia. __ U. S. __, 130 S.Ct. 721, 724 (2010),] the Supreme Court held that the exclusion of the public from jury selection violated the Court's "clear [Sixth Amendment] precedents." 130 S.Ct. at 722. The Supreme Court issued Presley in a summary disposition without oral argument. It stated specifically that the rule was "so well settled that the Sixth Amendmentright extends to jury voir dire that this Court may proceed by summary disposition." Id. at 723-724. See Commonwealth v. Downey, 78 Mass.App.Ct. 224, 228 n. 9 (2010). While Justice Thomas, joined by Justice Scalia, dissented from that view, Presley, supra at 725-727, in the face of the announcement by the Supreme Court majority that the question in Presley was "well settled" since 1984, we are compelled to conclude that Presley did not announce a "new rule." Rather, the Supreme Court has told us that the rule that a defendant's public right to trial under the Sixth Amendment extends to jury voir dire was, at the time the defendant's conviction became final in 2007, not merely "dictated by" Supreme Court precedent but "well settled" by it. See id. at 723-724."
Alebord, 80 Mass. App. Ct. at 437. Furthermore, in a footnote, the Court noted:
"In Owens v. United States, 483 F.3d [48,] 66[1st CIr. 2007], the First Circuit, in a collateral challenge to a 1997 Federal conviction, applied retroactively the Sixth Amendment rule that jury selection could not be closed to the public. Owens was decided in 2007, even before Presley, and Teague v. Lane controlled the question of retroactivity. Had the First Circuit concluded that the rule prohibiting closure of the courtroom during jury selection was a "new rule" within the meaning of Teague, it could not properly have applied the rule in the case before it. Indeed, the Owens court held that another of the claims of the defendant was barred by the retroactivety rule of Teague v. Lane. Id. at 70."
Alebord, 80 Mass. App. Ct. at 437, n.4.