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.

In each case, the trial court accepted that the defendant had satisfied his burden to prove that the courtroom was closed during the entire jury selection. In McNeil and Weaver, the trial court found credible the testimony from defense counsel that he was not aware that the Sixth Amendment right to a public trial applied to jury selection. Thus, in McNeil and Weaver, the trial court found that neither the defendant, nor his trial counsel knowingly waived the defendant's constitutional right to a public trial.

Despite this, each judge concluded that because defense counsel did not recognize the violation, the court was required to "treat the lapse as any other unpreserved error and determine if it resulted in a substantial risk of a miscarriage of justice, using the ineffective assistance of counsel standard." Commonwealth v. Weaver, Memorandum of Decision, at 18. Each court then concluded that although defense counsel's ignorance of the law was unreasonable (thereby satisfying the first prong of the Saferian ineffective assistance standard), the defendant had failed to prove prejudice stemming from the closure, and for that reason rejected the claim.

In Kenneally there was no evidence about the defendant's or defense counsel's knowledge of the defendant's right to a public trial. However, the trial court found that because the defendant was aware of the closure, he consented to it and thereby waived a public trial claim, resulting in review for SRMJ.

A careful reading of the published caselaw in this area indicates that the superior courts have erred in applying the SRMJ analysis. As I have noted in a previous post, it appears that in Commonwealth v. Dyer the SJC ignored the distinction between procedural waiver of a claim and knowing waiver of a constitutional right - and then erroneously rejected Dyer's public trial claim because he failed to raise it at trial (procedural waiver) and failed to establish SRMJ. In Commonwealth v. Lavoie, the SJC corrected this erroneous analysis, and held that a public trial claim is not waived unless there is a knowing waiver of the Sixth Amendment right to a public trial. See Lavoie, n. 8.

Indeed, in Weaver, Judge Hines first concedes that there was no waiver of the public trial claim, Decision at 18, and then applies the SRMJ standard, which is reserved for procedurally waived claims! Clearly, there was not a knowing waiver of a constitutional right. That should have been the end of the matter. Violation of Sixth Amendment right to public trial in the absence of knowing waiver = structural error = automatic reversal.

Looking at this from a different perspective, if the SJC or Massachusetts Appeals Court were to adopt the analysis advanced in Kenneally, McNeil and Weaver, it would mean that a defendant is deprived of the benefit of the structural error analysis that flows from the violation of his Sixth Amendment right to a public trial simply because he or his counsel knew that the public was excluded from jury selection but did not know that this was a violation of the defendant's right to a public trial. By contrast, if there were no evidence that the defendant or trial counsel knew the public had been excluded, then presumably the defendant would be entitled to structural error analysis and automatic reversal. This would appear to be an absurd outcome. I cannot conceive any justifiable rationale why a defendant should be deprived of the remedy for structural error simply because his counsel did not know the law.

Indeed, federal caselaw should make clear that the analysis adopted in Kenneally, McNeil and Weaver is fatally flawed. These defendants will be able to file federal habeas petitions under 28 U.S.C. Section 2254, alleging violation of their Sixth Amendment rights. Assuming the Commonwealth alleges the claims are procedurally defaulted (i.e. waived), the defendants will be able to respond that the ineffective assistance of their trial attorneys establishes "cause and prejudice" excusing any procedural default. Given the recognition that trial counsel's ignorance of the law satisfied the first prong of an IAC analysis (unreasonable performance), the defendants in each of these cases have clearly satisfied the "cause" prong. Moreover, as the First Circuit recognized in Owens v. United States, because violation of the public trial right is structural, "prejudice" is assumed in a cause and prejudice analysis. In short, based on the subsidiary findings of the trial courts in these cases, federal habeas relief is warranted. Thus, it would appear pointless for state courts to develop a waiver doctrine that produces an inconsistent result.