Public Trial Claims After Morganti and Alebord

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).

In Alebord, we have filed a federal habeas petition and plan to file a petition for a writ of certiorari in the United States Supreme Court in April or May. We will argue among other things that where an attorney fails to object to the closure of the courtroom during jury selection because he did not know the law (i.e. did not know that the right to a public trial applies to jury selection), then his conduct is unreasonable per se and therefore automatically satisfies the first prong of the Strickland IAC test. Because a violation of the public trial right is structural error, we say that we automatically satisfy the second prong of the Strickland IAC test, or alternatively, have established cause and prejudice for the procedurally defaulted public trial claim.

For those who have pending public trial claims in the state courts, I think there are at least two issues. First, petitioners may be able to distinguish their cases from Morganti and Alebord if they can establish that trial counsel did not know of the FACT of closure. In Morganti and Alebord, the Court asserted that defense counsel was aware of the long standing practice or "culture" of closure for jury selection in Brockton (both trial attorneys were long time Brockton trial lawyers) and therefore knew that the courtroom would be closed for jury selection. If petitioners can establish that their trial counsel did not know of the fact of closure, I think they might be able to obtain relief in state court.

The second issue turns on whether petitioners raised an ineffective assistance claim. This is crucial because after Alebord and Morganti, a waiver (at least if it is with knowledge of the fact of closure) is most likely fatal in state court. This should not be the case. In Alebord and Morganti, the Court ignored clearly established law applicable to waived claims, as explained in Commonwealth v. Randolph, 438 Mass. 290, (2002). Specifically, the Court ignored whether the defendant's "waived" public trial claim nevertheless created a substantial risk of a miscarriage of justice (SRMJ). Instead, the Court applied the intellectually dishonest waiver analysis it had previously applied in a sporadic fashion to purportedly "firmly settled" convictions. See e.g. Mains v. Commonwealth, 433 Mass. 30, 33 (2000). I think the Court chose to ignore the SRMJ analysis in our cases because it was clear that we would win under that analysis. See Commonwealth v. Edward, 75 Mass. App. Ct. 162 (2009).

In any event, if petitioners have alleged that trial counsel's failure to object to the closure was ineffective assistance (e.g. because he or she did not know the public trial right applied to jury selection), then they still have a viable chance for relief depending on what the federal courts do in Morganti and Alebord. Accordingly, I think it would be advisable for petitioners in this position to move for a stay pending the outcome of our federal habeas litigation and cert. petition.