A Rock and a Hard Place: Marrying the

Public Trial Right and the Waiver

Doctrine

BY: JUSTIN AMOS*

F
or a cold and snowy three months in 2015, I had the great privilege to
serve as an intern for Associate Justice Robert J. Cordy. It was
everything that one would hope an internship to be, and I could not
help but walk in an ever-present state of awe when I passed his chambers
on my way to my desk or when, on occasion, I was called to his chambers
to discuss a case. Justice Cordy was an incredible judge to intern for, and,
as luck would have it, a wonderful professor from whom I learned the
intricacies and interplay between Massachusetts and federal criminal
procedure. During my time as his intern and student, there was one
overarching theme that I plucked from his stream of legal brilliance, stories
about foreign judiciaries, and humor: what does the law require? It is easy
enough to distinguish a case or to twist a legal concept to its breaking
point. It is easy enough to proclaim what we want the law or the
Constitution to say. But what does the law require? To what conclusion
does the text of the Declaration of Rights, a statute, or the words of
countless previous justices lead? It is a question that I find myself asking
on a daily basis as a new lawyer, and it is a nugget of wisdom that one can
find embedded in Justice Cordys opinions for the court.
The news that, for decades, divisions of the Massachusetts Superior
Court (Superior Court) had been routinely closing their courtrooms during
jury voir dire, in most instances because the size of the venire exceeded the
seating capacity in the courtroom, became a relative appellate nightmare.1
With the news came an avalanche of collateral attacks on convictions that
were often decades old. And so began five years of litigation to determine

* Judicial Law Clerk to Justice Ariane D. Vuono of the Massachusetts Appeals Court (2016
2017). J.D., magna cum laude, New England Law | Boston (2016); B.F.A., Southern Methodist
University (2013).
1 See, e.g., Commonwealth v. Lavoie, 981 N.E.2d 192, 195 (Mass. 2013), cert. denied, 133 S. Ct.

2356 (2013).

100
2017 A Rock and a Hard Place 101

how this revelation could be squared with the public trial right enshrined
in the Sixth Amendment to the United States Constitution.2 At the center of
this litigation was Justice Cordy, who wrote the line of cases that clarified
the public trial right, reinvigorated waiver doctrine, and definitively
brought Massachusetts jurisprudence in line with the majority of sister-
state and federal jurisdictions.

I. The Public Trial Right

It is axiomatic that the Sixth Amendment to the United States

Constitution grants defendants a right to have the public present during
jury voir dire.3 Likewise, it is axiomatic that this right is not absolute and
may bend upon a judges weighing of the factors outlined in Waller v.
Georgia: [1] the party seeking to close the hearing must advance an
overriding interest that is likely to be prejudiced, [2] the closure must be no
broader than necessary to protect that interest, [3] the trial court must
consider reasonable alternatives to closing the proceeding, and [4] it must
make findings adequate to support the closure.4 Violation of the public
trial right is a structural error, absolving the defendant of the burden to
show that prejudice resulted from the violation. This is because structural
rights involve the types of errors that are difficult, if not impossible, to
quantify and undermine the integrity of the criminal justice system. When
a structural right has been violated, a conviction must be reversed.

II. Setting the Stage

It all began with a unanimous Massachusetts Appeals Court (Appeals

Court) decision reversing the denial of a defendants motion for a new trial
in the case of Commonwealth v. Alebord.5 Writing for the court, Judge Peter
Rubin acknowledged that the motion judge did not make findings
regarding whether the defendant had knowingly waived his right to a
public trial. Up to this point, case law in Massachusetts required that a
defendant make a knowing waiver of the public trial right rather than, as
was the case in many other jurisdictions,6 waiver being found simply
where counsel fails to raise an objection to the closure. The Appeals Court
remanded the case to the trial court to determine whether the defendant
knowingly waived his right to a public trial and whether the closure of the

2
See Waller v. Georgia, 467 U.S. 39, 46 (1984).
3
See Commonwealth v. Cohen (No. 1), 921 N.E.2d 906, 91718 (Mass. 2010).
4 Waller, 467 U.S. at 48.

5 Commonwealth v. Alebord, 953 N.E.2d 744, 751 (Mass. App. Ct. 2011), review denied, 959

N.E.2d 434 (Mass. 2011).

6 Commonwealth v. Edward, 912 N.E.2d 515, 524 n.13 (Mass. App. Ct. 2009) (collecting

cases), abrogated by Lavoie, 981 N.E.2d 192.

102 New England Law Review Vol. 51: 100

courtroom was de minimis so as to not implicate the Sixth Amendment at

all. Interestingly, the Supreme Judicial Court (SJC) denied the defendants
application for further appellate review. In that denial, it noted that a
substantially similar case had already been granted further appellate
review and that the better course of action would be for the trial court to
make findings consistent with the Appeals Courts decision, after which an
aggrieved party could appeal to the Appeals Court or apply for direct
appellate review by the SJC.
While Alebord was pending in the trial court, the SJC issued a landmark
decision: Commonwealth v. Lavoie.7 Chief Justice Ireland, writing for a
unanimous court, overruled Edward and held that counsel may waive,
with or without the defendants express consent, the right to a public jury
trial . . . where the waiver is a tactical decision as part of counsels trial
strategy.8 Thus, what had previously been considered a purely structural
error was now subject to the doctrine of procedural waiver. Lavoies
holding, though a dramatic departure from prior case law, was relatively
narrow in that the waiver must be made as a matter of trial strategy. In so
holding, the SJC distinguished Owens v. United Stateswhich had
previously been the controlling case on Sixth Amendment violationson
procedural grounds alone.9 While this narrow holding may have been a
veiled attempt to bypass the larger question presented in Lavoie, the first
crack had appeared, and the flood gates were about to burst. Less than four
months after Lavoie was argued, and while the decision was pending, the
SJC granted direct appellate review of Alebord on December 20, 2012.

III. The Law Shifts

The SJC released Commonwealth v. Alebord and Commonwealth v.

Morganti on the same day. Both were written by Justice Cordy and, therein,
the law surrounding the public trial right fundamentally shifted. In
Alebord, the court held that a defendant procedurally waived his right to a
public trial where experienced trial counsel was aware that the courtroom
was routinely closed to spectators during the empanelment process and

7 981 N.E.2d 192, 198 (Mass. 2013).

8 Id.
9 See id. at 199. Owens was an appeal from a trial judge's refusal to hold an evidentiary

hearing because the defendant had failed to make the threshold showing of cause and actual
prejudice to overcome procedural default. The United States Court of Appeals for the First
Circuit reversed and remanded, holding that because public trial is a structural error for
which prejudice need not be shown, the threshold showing to obtain an evidentiary hearing
was met. Lavoie, on the other hand, was an appeal from a denial of a motion for new trial after
an evidentiary hearing and, thus, Owens was procedurally distinct. See Owens v. United
States, 483 F.3d 48, 61, 63, 66 (1st Cir. 2007).
2017 A Rock and a Hard Place 103

did not object.10 Procedural waiver occurs when a litigant fails to raise at
trial or on appeal a claim that he could have raised.11
In Alebord, the defendant argued that the closure of the courtroom for
eighty minutes could not be de minimis, as the trial judge found, and was a
structural error requiring reversal.12 While the Court agreed that eighty
minutes was not de minimis, it affirmed the conviction on other grounds,
namely that the defendants attorney was experienced and aware that the
Superior Courts closed the courtrooms during voir dire as a matter of
course.13 Throughout the opinion, Justice Cordy implicitly noted the
practical effects of applying structural error to a case that technically fits
the bill, but practically speaking was distinguishable from the purpose of
the rule.
Released on the same day as Alebord, Commonwealth v. Morganti
addressed nearly identical facts that were brought in a procedurally
distinct posture: the defendant challenged his conviction on the grounds
that his attorney gave constitutionally ineffective assistance for failing to
object to the closure of the courtroom.14 Again writing for a unanimous
court, Justice Cordy reaffirmed the budding jurisprudence on the public
trial right and the waiver doctrine. Because the defendants attorney knew
that the courtrooms were closed during jury voir dire and failed to object,
the right must be waived in the most literal of senses. Bending this rule
would, effectively, carve out an exception to the waiver doctrine for
structural errors which in turn would require the reversal of decades of
precedent and creation of a new rule not recognized in any other
jurisdiction.15 In Justice Cordys words, [t]o conclude otherwise would
tear the fabric of our well-established waiver jurisprudence that a
defendant must raise a claim of error at the first available opportunity.16
Whether counsel rendered ineffective assistance of counsel, however,
was a separate matter not yet addressed by the Court. Ineffectiveness
involves a two-prong analysis: first, a defendant must show that his
attorneys behavior f[ell] measurably below that which might be expected
from an ordinary fallible lawyer . . . .17 This analysis requires the Court to

10 Commonwealth v. Alebord, 4 N.E.3d 248, 251 (Mass. 2014), cert. denied, 134 S. Ct. 2830
(2014).
11 Edward, 912 N.E.2d at 518.
12 Alebord, 4 N.E.3d at 251.

13 Id. at 256.
14 See Commonwealth v. Morganti, 4 N.E.3d 241, 24243 (Mass. 2014), cert. denied, 135 S. Ct.

356 (2014).
15 See id. at 246 (collecting cases that found procedural waiver for the public trial right).
16 Id. at 247 (quoting Commonwealth v. Randolph, 780 N.E.2d 58 (Mass. 2002)).
17 Commonwealth v. Saferian, 315 N.E.2d 878, 883 (Mass. 1974).
104 New England Law Review Vol. 51: 100

make an objective determination as to whether the failure to object to the

courtroom closure, even when counsel was aware of the closure, fell
within a range of professionally reasonable judgments based on the
professional norms as they existed at the time.18 As to this issue, the Court
drew a pragmatic line. Three established, respected, and experienced
defense attorneys testified to [the practice of not objecting to closing the
courtroom during voir dire] and the defense bars acquiescence to it.19
Thus, in the most basic of terms, an attorney could not objectively be
ineffective because the professional norms at the time, and the record of
the practice and the acquiescence in the practice that was thoroughly
established at the evidentiary hearing, the decision not to object to the
closure was well within the range of reasonable professional judgments
applicable to his conduct.20
The second prong of the Saferian analysis requires proof that counsel's
ineffectiveness prejudiced the defendant.21 In the Courts final footnote in
Morganti, it passed on the defendants argument that under Owens v.
United States, a defendant is relieved of his burden to prove prejudice
under the second prong of Saferian because the public trial right is
structural.22 The following year, the Court, through Justice Cordy,
addressed the issue head on.

IV. Collateral Attacks

The defendant in Commonwealth v. LaChance placed the issue dodged in

Morganti squarely before the Court: whether prejudice from a trial
attorneys failure to object to the closure of a courtroom has to be
affirmatively established as a part of the claim [of ineffective assistance of
counsel] or is [it] to be presumed because of the structural nature of the
underlying public trial right . . . .23 LaChance was the first public trial case
that was announced by a divided Court. But, again, Justice Cordy drew the
pragmatic line, balancing the demands of the Constitution with the
principles of finality and the need for a clear and identifiable distinction
between competing doctrines.
The majority, led by Justice Cordy, noted that presuming prejudice in
the context of ineffective assistance of counsel claims would ignore the

18 Morganti, 4 N.E.3d at 247 (citing Strickland v. Washington, 466 U.S. 668, 68788 (1984)).
19 Id. at 24748.
20 Id. at 248.
21 See Saferian, 315 N.E.2d at 883.
22 Morganti, 4 N.E.3d at 248 n.9.
23 Commonwealth v. LaChance, 17 N.E.3d 1101, 110203 (Mass. 2014), cert. denied, 136 S. Ct.
317 (2015).
2017 A Rock and a Hard Place 105

distinction, one long recognized by [the C]ourt, between properly

preserved and waived claims.24 To this end, the United States Supreme
Court had already laid the foundation; in Francis v. Henderson25 and Davis v.
United States26 the Supreme Court ruled that a showing of actual prejudice
was required to overcome procedural waiver arising from a failure to
object to a structural error at trial. While this, at first blush, seems overly
formulaic, the beauty is in the simplicity; a claim of ineffective assistance
of counsel is not a public trial claim. [In this case,] the defendants public
trial claim has been procedurally waived. Presuming prejudice in this
context ignores the distinct and well-established jurisprudence which
governs claims of ineffective assistance of counsel.27 Ignoring this
distinction may very well lead, as Justice Cordy noted, to the illogical and
anomalous situation where a waived claim reviewed on direct appeal
under a substantial risk [of a miscarriage of justice] standard could be
recast as a claim of ineffective assistance of counsel in which prejudice
would be presumed.28 Established precedent requires that ineffectiveness
based on counsels error, even if unreasonable, is grounds for vacating the
judgment only if it had an effect on the judgment, i.e. prejudice.29 With this
in mind, Justice Cordyever the pragmatistlooked no further than the
purpose and the requirements of the Sixth Amendment, noting that the
guarantee of counsel is to ensure that a defendant has the assistance to
justify [the Courts and publics] reliance on the outcome of the
proceeding.30 Based on this logic, he concluded that it is rare that a
courtroom closure will affect the judgment at trial or undermine the
defendants representation to the point that the Court could not rely on the
outcome of the proceeding. This position was strongly supported by both
federal and state courts that have taken up the issue.31

24 Id. at 1105.
25 425 U.S. 536, 542 (1976).
26 411 U.S. 233, 245 (1973).

27 Id.

28 Id. at 1105 n.2.

29 Id. at 1106 (quoting Strickland v. Washington, 466 U.S. 668, 692 (1984)).
30 Id. (quoting Strickland, 466 U.S. at 69192).

31 The SJCs interpretation of the public trial right has now been affirmed by the United

States Supreme Court. On January 13, 2017, the Supreme Court of the United States granted a
petition for a writ of certiorari to the SJC in the case of Commonwealth v. Weaver, 54 N.E.3d
495 (Mass. 2016), which was also authored by Justice Cordy. See Weaver v. Massachusetts, 196
L.Ed.2d 595 (2017). In Weaver, also authored by Justice Cordy for a unanimous court, the SJC
declined to "revise the LaChance rule" and rejected the defendants argument that prejudice
from a trial attorneys failure to object to the closure of a courtroom is presumed due to the
structural nature of the underlying public trial right. See Weaver, 54 N.E.3d at 520. The United
States Supreme Court affirmed, concluding that even in the context of a claim of ineffective
106 New England Law Review Vol. 51: 100

Justice Fernande R.V. Duffly, joined by Justice Barbara A. Lenk, noted

in her dissent that the courts opinion effectively forecloses vindication of
this constitutional right on collateral review because the very nature
of . . . the right to an open court [] is that a showing of prejudice is not
possible.32
But, at the end of the day, the majority disagreed and the United States
Supreme Court denied the defendants petition for a writ of certiorari,
leaving LaChance the controlling law in Massachusetts.33

CONCLUSION

Ultimately, the breadth and contours of the public trial right, with all
of its interlocking and overlapping parts, is now settled law (at least until
an intelligent and creative defense attorney finds a wrinkle). And the
strength of the doctrine, and perhaps why the Supreme Court has
repeatedly denied to issue certiorari, is thanks to the comprehensive,
logical, and commonsensible way that Justice Cordy approached the cases.
His prose, his sharp questions at oral argument, andperhaps most
importantlyhis good humor will be greatly missed on the Court.

assistance of counsel predicated on the violation of a structural right, a defendant "must show
prejudice in order to obtain a new trial. Weaver v. Massachusetts, 137 S. Ct. 1899, 1913 (2017).
32 LaChance, 17 N.E.3d at 110709 (Duffly, J., dissenting).
33 This may not be so for long. On January 13, 2017, the U.S. Supreme Court granted a
petition for a writ of certiorari to the SJC in Commonwealth v. Weaver, 54 N.E.3d 495 (Mass.
2016). See Weaver v. Massachusetts, 196 L.Ed.2d 595 (2017). In Weaver, also written by Justice
Cordy for a unanimous court, the defendant urged the SJC to revise the LaChance rule and
instead hold that a defendant who raises an ineffective assistance of counsel claim . . . is
entitled to a presumption of prejudice if he has established that, in failing to object to a court
room closure, counsels performance fell below that of an ordinary fallible attorney . . . .
Weaver, 54 N.E.3d at 520. The SJC declined to so hold. Id. It remains to be seen whether the
Supreme Court will affirm the SJCs interpretation of the Sixth Amendment public trial right.