The Lawrence Eagle Tribune reports that the Massachusetts Appeals Court upheld the decision Essex Superior Court judge Howard Whitehead to reverse the conviction of a Worcester man convicted of breaking and entering and firearm offenses back in 2007. In Commonwealth v. Perez, an unpublished opinion issued on August 8, 2013 pursuant to Rule 1:28, the Appeals Court held that the defendant’s right to a public trial was violated due to the defendant’s family members being excluded from the courtroom during jury empanelment. Apparently, family members attempted to gain entrance to the Lawrence Superior Court during the second day of empanelment and were denied admission. The opinion cites to the finding of the trial judge that two court officers testified that during the time period from 2006-2008 the court officers had the public remain outside of the courtroom during jury selection. The reason for this procedure was because of alleged space restrictions and for the convenience of both the venire and the public. The Massachusetts Appeals Court held that the fact that the trial judge was unaware of this procedure did not mitigate the situation. This genre of cases is routinely referred to as “Cohen” cases. See, Commonwealth v. Cohen, (No.1) 456 Mass. 94, 105 (2010). In the event that you or a family member believes that there were family members or any members of the public excluded from the courtroom during any part of his or her trial the case should be reviewed to evaluate whether a motion for a new trial because the defendant’s Sixth Amendment constitutional rights to a public trial may have been violated.
It is well settled that the right to a public trial is not absolute. There are certain situations in which spectators may be excluded from certain parts of a trial. However, if that is going to happen the trial judge must follow a strict procedure. For example, the side seeking a closure must have an overriding interest that is likely to be prejudiced; the closure must not be too broad; the trial judge must evaluate reasonable alternatives to a closure; the trial judge must make specific findings if he or she holds that a closure is necessary and in the interests of justice. In most cases that occurred prior to 2010, it does not appear that a judge has made findings because judges were often unaware that jury empanelment must be open to the public. In fact, many experienced and qualified attorneys were unaware of this fact. In the event a motion for a new trial is filed it is imperative to include an affidavit from the trial attorney if he or she agrees that he was not aware that the right to a public trial applied to jury selection.
Because this process of excusing jurors appears to have been routinely done in superior courthouses, it is imperative for anyone who has a family member that is serving a lengthy sentence to determine whether a “Cohen” type motion should be filed. In the event that a defendant is successful and the motion is allowed, the defendant is entitled to a new trial. These types of motions have been filed in Essex, Plymouth, Middlesex and Suffolk counties.