Disagreement Resolved: Unpreserved Public Trial Violation Does Not Require Automatic Reversal of a Criminal ConvictionPosted: August 9, 2017
by Bethany Stevens
The Supreme Court’s decision in Weaver v. Massachusetts, (16-240, June 22, 2017), did not resolve the broad disagreement for which it granted certiorari—whether a criminal defendant must demonstrate prejudice when a structural error is not preserved at trial. The Court, however, did resolve the disagreement in the context of trial counsel’s failure to object to the closure of the courtroom in violation of a defendant’s Sixth Amendment right to a public trial. Still, while the ultimate focus of Weaver is narrow, the resolution of this limited issue is very important in Massachusetts. This is because it was a fairly common practice by court officers, prior to 2007, to close courtrooms to the public due to space constraints during jury selection in criminal trials. As such, the finality of numerous Massachusetts convictions hinged on the Supreme Court’s decision.
It has been well settled that closure of the courtroom to the public in a criminal trial violates a defendant’s Sixth Amendment right to a public trial. It has also been well settled that the violation of the public trial right is considered a “structural” error. A structural error is a constitutional violation that, in the direct review context, generally entitles a defendant to automatic reversal without any inquiry into prejudice. It was not clear, however, whether the public trial right extended to jury selection. It also was not clear whether an unpreserved violation of the public trial right required the same remedy of automatic reversal.
In April of 2007, the First Circuit concluded that the public trial right does extend to jury selection and that the structural nature of this Sixth Amendment violation, even when unpreserved, required reversal of a criminal conviction without any showing of prejudice. Owens v. United States, 483 F.3d 48, 61-66 (1st Cir. 2007). The First Circuit’s decision called into question numerous Massachusetts State court convictions, including the murder conviction of Kentel Weaver, and prompted numerous motions for a new trial. These convictions were further called into question when the Supreme Court issued its controversial per curium opinion in Presley v. Georgia, 558 U.S. 209, 213 (2010), which recognized explicitly for the first time that the Sixth Amendment right to a public trial does indeed extend to jury selection.
Weaver, who was charged with murdering a 15-year old boy, went to trial in 2006, prior to Owens and Presley. The jury was selected from jury pools of 60-100 potential jurors and the voir dire took place in a courtroom that accommodated seating for only 50-60 people.
The defendant’s mother and her minister were turned away from the courtroom by a court officer during the two days of the jury selection process in order to accommodate the large number of jurors. The defendant’s mother told trial counsel about her inability to get into the courtroom, but counsel did not bring it to the defendant’s attention or object; trial counsel believed that a courtroom closure during the jury selection process was constitutional. At trial, the jury convicted the defendant of first degree murder.
Five years later and following the First Circuit’s decision in Owens, Weaver filed a motion for a new trial seeking automatic reversal of his murder conviction because counsel failed to object to the closure of the courtroom during the jury selection process. While his motion was pending, the Supreme Judicial Court issued its decision in Commonwealth v. LaChance, 469 Mass. 854, 856 (2014), which, contrary to the First Circuit, held that a public trial violation, despite being a “structural” error, can be procedurally waived and, that an unpreserved claim of this sort will not entitle a defendant to automatic reversal; rather, a defendant is only entitled to a new trial upon a showing that trial counsel’s constitutionally deficient performance caused prejudice.
In Weaver, the Supreme Court concluded that the Supreme Judicial Court was correct. A public trial violation that is not preserved at trial and raised on direct appeal requires the defendant to establish prejudice as a result of the error. The Supreme Court broke new ground in its explanation that not all structural errors are the same. In so doing, the Court identified three broad rationales for why its decisions have deemed particular errors “structural.” The first rationale for deeming an error structural in nature is not because the constitutional right at issue protects the defendant from erroneous conviction, but instead because it protects some other important interest. For example, the denial of a defendant’s right to conduct his own defense is a structural error not because it provides a trial benefit to the defendant (in fact, it usually increases the likelihood of an unfavorable outcome), but because the Constitution requires that a defendant must be allowed to make his own choices about the proper way to protect his own liberty. A second rationale for deeming an error structural in nature is when the effects of the error are simply too hard to measure. This too can be seen in the denial of a defendant’s constitutional right to select his or her own attorney. Finally, some errors—like the denial of an attorney altogether or the failure to give a reasonable doubt instruction—are structural in nature because the error always results in fundamental unfairness to the defendant at trial. The Court concluded these different reasons for deeming an error structural require the use of a different standard when considering an ineffective assistance of counsel claim premised on the failure to object to the underlying error.
In evaluating the unpreserved structural error at issue in Weaver, the Court recognized that it cannot be that a public trial violation results in fundamental unfairness in every case because the courtroom can be closed over the defendant’s objection as long as the trial judge makes on the record findings pursuant to Waller v. Georgia, 467 U.S. 39, 48 (1984) to justify the closure. Rather, the violation of the public trial right is deemed structural error because it protects other important interests (namely, the public’s interest and constitutional right pursuant to the First Amendment), and because the effects of the error are simply too hard to measure. Moreover, analyzing an unpreserved error of this type differently than if the error had been preserved is justified where a contemporaneous objection would allow the trial judge to cure the violation by either opening the courtroom or explaining the reasons for the closure.
Thus, Weaver would only have been entitled to a new trial if he had been able to show that trial counsel’s failure to object to the closure of the courtroom during the jury selection process was both constitutionally deficient and that the deficiency resulted in prejudice. The Supreme Court went on to assume “that prejudice [could] be shown by a demonstration of fundamental unfairness,” but found that such fundamental unfairness was not shown in Weaver where the “trial was not conducted in a secret or remote place,” and “[t]he closure was limited to the jury voir dire; the courtroom remained open during the evidentiary phase of the trial; the closure decision apparently was made by court officers rather than the judge; there were many members of the venire who did not becomes jurors but who did observe the proceedings; and there was a record made of the proceedings that does not indicate any basis for concern, other than the closure itself.” Slip op. at 15. Additionally, there was no suggestion of any misconduct or impropriety of any of the jurors, the judge, or any other party. Finally, there was strong evidence of the defendant’s guilt and Weaver did not provide any “sense of a reasonable probability of a different outcome but for counsel’s failure to object.” Slip op. at 14. The defendant was not entitled to a new trial.
In a concurring opinion, Justice Thomas, joined by Justice Gorsuch, noted his willingness to reconsider the Supreme Court’s per curiam opinion in Presley. In a dissenting opinion, however, Justice Breyer, with whom Justice Kagan joined, expressed concern with ranking structural errors in terms of egregiousness and noted that the Court’s framework ignores the fact that the public trial right is indeed impossible to measure, which means that a defendant would never be able to meet that showing. Justice Breyer would not impose that impossible burden.
Responding in part to the dissent’s concern, in reaching its conclusion the majority opinion expressly recognized the corollary concern that “an ineffective assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, thus undermining the finality of jury verdicts. For this reason, the rules governing ineffective assistance claims must be applied with scrupulous care.” Slip op. at 14, internal quotation marks omitted. Applying these principles, Weaver concludes that an unpreserved Sixth Amendment public trial violation, in the context of jury selection procedures, does not result in automatic reversal of a defendant’s conviction. The Supreme Court’s decision thus resolves the framework that applies to the numerous Massachusetts convictions resulting from trials prior to the Owens and Presley decisions where the public had been excluded, without objection, from the jury selection process. The disagreement over this important issue has been settled.
Bethany Stevens is the Director of Legal Policy and Deputy General Counsel to the Administrative Office of the District Court, and is a member of the BBA’s Criminal Law Section Steering Committee. Previously, she served as the Deputy Chief of the Middlesex District Attorney’s Appeals Bureau where she litigated closed courtroom claims at the trial level as well as at the Appeals Court and Supreme Judicial Court.