Supreme Judicial Court (January 7, 2010)

The partial closure of a court room during jury empanelment implicates the defendant's Sixth Amendment right to a public trial; and therefore, a judge must consider alternatives, and make a case-specific determination that the closure is necessary and not overly broad.

The defendant, a former Stoughton police sergeant, was found guilty of various crimes. The defendant appealed, alleging multiple claims, including that his constitutional right to a public trial was violated because members of the public were excluded from the court room during the jury empanelment process.

On the fourth day of empanelment, the defense attorney stated to the judge that he noticed a sign on the court room door stating: "Jury Empanelment. Do Not Enter." The attorney further indicated that he was told that the sign was on the door from the beginning of empanelment, and that members of the public had been prohibited from entering the court room. The judge inquired about the court room closing to the court officer, and denied several motions for a mistrial.

After guilty verdicts, the defendant filed a motion for a new trial, claiming that the jury empanelment process had contravened his Sixth Amendment right to a public trial. The judge held an evidentiary hearing, made findings and ruled that the court room was never closed. "The judge reasoned that because (1) she did not order a closure, (2) some members of the public attended despite the 'Do Not Enter' sign, and (3) the judge - through court officers - made arrangements for family and the press to be present, the court room was never 'closed.'"

The SJC disagreed, determining that there was a "partial" closure of the court room, and following federal and state courts, it applied the constitutional analysis articulated in Waller v. Georgia, 467 U.S. 39 (1984). In this case, the first Waller requirement was satisfied, in that there was a "substantial reason" to justify closing the court room at times (due to a lack of space to accommodate the large number of potential jurors, and to prevent the potential tainting of the juror pool by allowing the intermingling of prospective jurors with spectators). The partial closure in this case, however, failed to satisfy the remaining Waller requirements, because 1) there was no individualized determination regarding space availability, and in fact, the court had an established policy to exclude the public; 2) reasonable alternatives to closure were not examined; and 3) the findings on the record did not support sufficiently the extensive closure that occurred.

The Court further found that the defendant did not waive his Sixth Amendment right to a public trial, and it ordered a new trial.