Supreme Judicial Court, January 11, 2013

Counsel may waive a defendant’s right to a public trial during jury selection without express consent from the defendant.

The defendant was convicted in 2003 of murder in the second degree.  In 2007, the defendant movpublic publied for a new trial arguing that his right to a public trial under the Sixth and Fourteenth Amendments to the United States Constitution was violated when court officers excluded his family from the courtroom during jury selection and his counsel failed to object.  The trial judge denied the defendant’s motion after an evidentiary hearing.  The defendant appealed and the Appeals Court decided that the defendant’s right to a public trial had been violated.  The Supreme Judicial Court granted the Commonwealth’s application for further appellate review.

A defendant has a constitutional right to a public trial, which includes the jury selection process. Commonwealth v. Cohen, 456 Mass. 94, 106 (2010), citing Presley v. Georgia, 130 S.Ct. 721, 723-724 (2010).  However, a judge may permit closure of a court room under certain circumstances. Waller v. Georgia, supra at 44-45, citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).

The parties do not dispute that during jury selection the court room was closed, or that defense counsel's lack of objection during jury selection was a tactical decision.  Rather, they argue whether counsel effectively waived the defendant's right to a public trial.

The defendant argues that a waiver of this right could not have occurred where he did not know he had such a right or understand that his counsel made a decision concerning that right. “The Commonwealth argues that counsel may waive the defendant's right to a public trial without the defendant's personal consent, and asserts that where a defendant has waived a right, no constitutional violation has occurred.”

The Court ruled “that counsel may waive, with or without the defendant's express consent, the right to a public trial during jury selection where the waiver is a tactical decision as part of counsel's trial strategy.”   The defendant, through his counsel, waived his right to a public trial during jury selection.  This tactical decision is in defense counsel's purview to manage the conduct of the trial.  “The issue is whether that waiver constituted ineffective assistance.”  However, in this case the Court found that “defense counsel's tactical decision not to object to the court room closure in the Superior Court was not manifestly unreasonable when made and, thus, the defendant was not deprived of effective assistance of counsel.””

Note:  This is a narrow holding, specific to the facts of this case.  The question remains in a situation where the defendant is claiming ineffective assistance of counsel; does the defendant have to prove both that counsel’s negligence deprived the defendant of his right to public jury selection and that the violation of that right may have harmed his defense?