Commonwealth v. Matthew G. Lavoie (October 3rd, 2011)
Docket No. 09-P-838
Massachusetts Appeals Court
Facts: In 2003, a jury found the defendant guilty of murder in the second degree; the defendant challenged the verdict but the conviction was affirmed and any further appellate review was denied. In 2007, the defendant became aware of a new Federal court decision that addressed the constitutional implications of the exclusion of a defendant’s family from the courtroom during jury selection. The defendant’s family in this case had been asked to leave the courtroom during jury selection. The court officers had asked the family to step out because there was not enough room in the courtroom for all the potential jurors; the judge was not made aware that this procedure was being used. On the first day of jury selection there were 88 potential jurors and the courtroom capacity was 80. Nothing was stated on the record regarding the exclusion of the family; neither objection or explicit waiver by the defendant. The judge ruled that although there had been an impermissible courtroom closure, the defendant was not entitle to relief because 1) the public would have made no meaningful observations of the voir dire process since it is done mainly at sidebar, and 2) the defense attorney failed to object.
Analysis: The template for analysis for a closure of the courtroom comes from Commonwealth v. Cohen 456 Mass. 94, 106-119 (2010), which held that the closure of a courtroom violated the 6th Amend. right to a public trial and the defendant had not waived that right. We also consider Waller v. Georgia, 467 U.S. 39 (1984), which sets out a four-factor test for determining whether a courtroom closure comports with constitutional requirements.
Issue #1: Was there a closure?
Yes. Both sides don’t dispute that there was some closure of the courtroom.
Issue #2: Did the closure satisfy the Waller factors?
No. Cohen suggests that insufficient space may provide a substantial reason for a partial closure during jury selection. But looking at the second Waller factor, that closure be no broader than necessary, members of the public cannot be prevented from witnessing the proceedings if space becomes available, which seems to be the case here. Also, other alternatives were not considered. Therefore, the Waller factors were not met and the closure was impermissible.
Issue #3: Did the defendant waive his right to a public trial?
No. The judge found that the defense counsel was aware of the defendant’s right to a public trial and was aware that the family had been removed from the courtroom during jury selection, but for strategic reasons he did not object. But the counsel did not discuss the removal of the family with the defendant. Therefore, the defendant did not waive his right to a public trial; defense counsel could not waive the right without discussing it first with his client.
Issue #4: What relief is the defendant entitled to?
The only adequate remedy is a new trial. The violation of the right to a public trial does not lead to an analysis under the substantial risk of a miscarriage of justice standard.
Conclusion: Motion for a new trial is granted.
Prepared by KP
