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 both cases, the court addressed whether a relatively short courtroom closure during jury selection was "de minimis" and therefore fell outside the protection of the Sixth Amendment. In Perez, Judge Whitehead found that a closure of about 1 hour for part of the jury selection process was NOT de minimis. In Morganti, Judge Giles found that a closure of 80 minutes for the entire jury selection process WAS de minimis.
As a preliminary matter, Judge Giles is the same judge who initially rejected a post direct appeal public trial claim in Commonwealth v. Alebord, PLCR2000-00066, on the grounds (among others) that the defendant had procedurally waived the public trial claim because he had not raised it prior to his direct appeal. In Morganti, which was virtually identical on all material points, Judge Giles illustrated that her understanding of the waiver issue has evolved dramatically. She explicitly recognized that the burden is on the Commonwealth to prove waiver and that the Commonwealth must prove not merely a procedural waiver, but that the defendant knowingly, intelligently and voluntarily waived the public trial claim. Failing such proof, the defendant is entitled to automatic reversal for a public trial violation because it is structural error.
On the de minimis issue, it is interesting to note that Judge Whitehead cited Commonwealth v. Downey, 78 Mass. App. Ct. 224 (2010), in which the Appeals Court held that closure of the courtroom during the examination of 21 potential jurors was not de minimis. Judge Whitehead took the view that Downey clearly resolved the issue in his case. Judge Giles, by contrast, did not even cite Downey, much less address its reasoning.
Practice Tip: Given these contradictory results, this is obviously a live issue and will no doubt be addressed by an appellate court at some point in the near future. In the meantime, attorneys who are aware of cases in which the courtroom was closed during some or all of the jury selection process should continue to raise the issue - even if it was not raised previously and there has already been a direct appeal - and be prepared to address whether the closure was de minimis.