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.

Sidenote: Lavoie presents a great issue for cert.: whether the right to a public trial is in the narrow category of constitutional trial rights that can only be waived by the defendant knowingly and intelligently. There is a very good argument that Waller v. GA dictates the answer is "yes" because Waller explained that the public trial right is designed to serve as a check on all the players in the criminal justice process, including defense counsel. Waller v. Georgia, 467 U.S. 39, 46 n.4 (1984) (The right "embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses and jurors will perform their respective functions more responsibly in an open court than in secret proceedings.") (emphasis added). That is, the presence of the public is designed to insure that defense counsel, among others, is doing his job. This purpose would be eviscerated if defense counsel could waive the right for the defendant.

In at least one important respect, Lavoie seems to correct a significant doctrinal mistep, albeit implicitly. In Commonwealth v. Dyer, 460 Mass. 728 (2011), the SJC had held that a defendant who failed to object to the exclusion of the public from jury selection had waived any claim arising from this exclusion. Id. at 736-37. In so doing the SJC seemed to ignore the relevance of whether the defendant or his counsel knew he had a constitutional right to have the public present for jury selection and that the procedure adopted by the court violated that right. In short, the SJC ignored the distinction between procedural waiver of a claim (failure to present a claim at the earliest possible time), and the waiver of a constitutional right (a knowing relinquishment of a right). In Lavoie, the SJC explicitly addressed this distinction, and held that where the Commonwealth alleges that a defendant has waived a claim arising out of the violation of his right to a public trial, the Commonwealth must establish a knowing waiver of the public trial right. See Lavoie, 464 Mass. at 87, n.8 ("A waiver of a right involves the intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right.").

In Lavoie, the SJC also held that counsel's decision to waive his client's public trial right, without consulting his client, was not ineffective. It is important to note that the IAC claim in Lavoie was categorically different than the IAC claim in public trial right cases where counsel knew of the closure but didn't know that the defendant had a right to a public trial during jury selection and therefore could not possibly make a tactical decision (reasonable or otherwise) to waive the right. The SJC's analysis of the IAC claim in Lavoie focuses on the first prong of Saferian: whether counsel's decision to waive the public trial right was reasonable. This question deals with the reasons for waiving the right (desire to keep emotional family from saying something prejudicial in front of jury). The SJC explicitly stated that because it found counsel's decision to be reasonable, it would not even reach the second prong of Saferian - prejudice. See N. 13.

In the cases where defense counsel knew of the closure but did not know the right to a public trial applies to jury selection (e.g. Owens), courts have consistently held that counsel's ignorance of the law was unreasonable and therefore satisfied the first prong of Saferian or Strickland. See Owens. Furthermore, the structural nature of the right satisfies the second prong of Saferian - prejudice. As noted above, the SJC makes quite clear they are not addressing the second prong of Saferian and therefore, are not backsliding at all about the per se prejudice created by an unwaived public trial violation.

In the cases where defense counsel did not know of the closure at all (e.g. counsel was so focused on jury selection that he/she didn't notice that the public had been excluded), there is no obvious route to an IAC claim at all, either before or after the SJC's decision in Lavoie because there is no obvious basis for claiming that counsel's performance was unreasonable. That is, counsel cannot be blamed for failing to object when he or she didn't know there was anything objectionable happening.