Commonwealth v. Lopes
Commonwealth v. Lopes
Opinion of the Court
This is the rare case in which a court room closure was ordered over the defendant’s objection during jury empanelment, subsequent to the decision of the United States Court of Appeals for the First Circuit in Owens v. United States, 483 F.3d 48 (1st Cir. 2007). That case and the subsequent cases from the Supreme Judicial Court, see, e.g., Commonwealth v. Cohen (No. 1), 456 Mass. 94 (2010), and from the United States Supreme Court, see Presley v. Georgia, 558 U.S. 209 (2010), confirm that a defendant’s right to a public trial under the Sixth Amendment to the United States Constitution includes a right to have the public present during jury empanelment.
In this case, however, the jury venire was brought into the court room and, over the defendant’s objections, the court room was closed. In this direct appeal from his conviction of voluntary manslaughter, the defendant argues that closure was error, and that he is entitled to a new trial.
The jury venire comprised ninety individuals. There were approximately eighty seats in the court room. The judge allowed in the entire venire and required ten of its members to stand. The defendant objected and asked to have his family seated but the judge, who was familiar with Owens, found that “[tjhere is no possible seating for them. For safety reasons, we really don’t want anybody to stand, but of necessity, we’re making a few of the venire people stand. And, also, we cannot have them within the venire for fear of jury contamination. But if seats become available, ... we can bring in your family members.”
The court room was closed and the defendant’s family members were excluded. They were not seated one at a time when individual seats became open. Nor were they seated as a group as soon as there was sufficient space in the court room to seat all the members of the defendant’s family, allowing some space between those spectators and the prospective jurors. Only after the intro
In denying the defendant’s second motion for a new trial,
Thus, as Cohen No. 1 and Presley make clear, the determination that closure was necessary must satisfy the four factors articulated in Waller. Those factors are “[1] the party seeking to
Although the judge did make an effort to reach a reasonable solution to the logistical problem created by the large venire, given the size of the court room in which she was sitting, the third factor was not met here. If it was not clear at the time of trial, the United States Supreme Court has made clear subsequently that the public trial right is sufficiently important that congestion alone cannot warrant closure of a court room unless the judge has examined reasonable alternatives that may be available, including dividing the jury venire in order to reduce congestion or moving to a larger court room if one is available. Presley, 558 U.S. at 214 (‘“[Tjrial courts are required to consider alternatives to closure even when they are not offered by the parties”). Indeed, the record must show that the public could not have been accommodated at trial by the use of such alternatives before a court room can be closed to the public altogether: “Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials. Nothing in the record shows that the trial court could not have accommodated the public at [the defendant’s] trial. Without knowing the precise circumstances, some possibilities include ... dividing the jury venire panel to reduce courtroom congestion.” Id. at 215. See Owens, 483 F.3d at 62 (“[T]o our knowledge, a trial closure has not yet been justified on the basis of convenience to the court. . . . Given the strong interest that courts have in providing public access to trials, the district court could have considered whether a larger courtroom was available for jury selection. If the closure ... did occur, the court was obligated to consider this alternative”). Consequently, in the absence of any showing on the record that such alternatives could not have been utilized, the closure of the court room here violated the defendant’s Sixth Amendment right to a public trial.
The claim of error in this case was preserved. Under longstanding case law court room closure is a structural error in which, because of the difficulty of showing prejudice, it is presumed as a matter of law. Cohen (No. 1), 456 Mass. at 118-119. Consequently, the judgment must be vacated.
Judgment reversed.
Verdict set aside.
The defendant raised this issue below in his second motion for a new trial (while his direct appeal was stayed), but because he raised it in his direct appeal, i.e., his first appellate opportunity, the claim was preserved. See Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001). See also, e.g., Commonwealth v. Wall, 469 Mass. 652, 673 (2014); Commonwealth v. Celester, 473 Mass. 553, 578 (2016).
Eight of the thirty-seven were seated, five were subject to peremptory challenge by the Commonwealth, and seven were subject to peremptory challenge by the defendant.
One of the three was subject to peremptory challenge by the Commonwealth.
Eight of the twenty were seated, three were subject to peremptory challenge by the Commonwealth, and two were subject to peremptory challenge by the defendant.
This portion of the voir dire spanned ninety-nine out of the 133 transcript pages in the relevant volume that was devoted to empanelment. The judge below found that empanelment lasted two hours and ten minutes. If one were to use the fraction of jurors questioned during the closure to estimate the fraction of the total empanelment period the court room was closed, one would estimate the closure lasted more than one hour and twenty-five minutes. Using the fraction of transcript pages to make the estimate, one would estimate the closure lasted more than one hour and thirty-six minutes.
The defendant challenges only the complete closure during the time period when his family members were excluded from the court room.
The defendant’s direct appeal was consolidated with his appeals from the orders denying his second and third motions for a new trial.
Concurring Opinion
(concurring). I write separately because although I agree that a new trial is required, the able and conscientious trial judge was needlessly placed in a difficult situation due to the tinting of the defendant’s objection. Although it is not our responsibility to write rules or standing orders for the trial court, I respectfully suggest that consideration be given to a rule or policy that imposes on counsel in all cases involving trial by jury a duty, whenever reasonably possible, to bring to the judge’s attention prior to trial any concern counsel may have regarding access to the court room by family members or friends of a party or the alleged victim, and any other members of the public, and that structures the judge’s discretion with a framework for assessing the competing interests in a manner that will satisfy Federal and State law.
When court convened, the court room was filled with prospective jurors, and the defendant was placed at the bar for trial. See Commonwealth v. Elizondo, 428 Mass. 322, 325 (1998) (“The defendant’s trial began when he was placed at the bar for trial”). At this point, defense counsel informed the judge at sidebar that the defendant’s family had been excluded from the court room and that he would like them to be present.
A short time later, a court officer informed the judge that one of the court room benches was then available. The judge responded, “For the record, the defendant’s family members are going to be seated in that bench right near the Court’s bench.” After three more prospective jurors were questioned, the judge noted, “[F]or the record, Mr. Lopes’s family has all joined us on this bench near the Court’s bench.” The transcript indicates that the empanelment continued until sixteen jurors were seated. It was 12:35 p.m. The entire empanelment took slightly longer than two hours. The record does not indicate how much time elapsed from when empanelment commenced to when the defendant’s family was admitted to the court room.
In order to justify the complete closure of a court room at any stage of the trial, the “judge must make a case-specific determination that closure is necessary.” Commonwealth v. Cohen (No. 1), 456 Mass. 94, 107 (2010). The judge’s determination that closure is necessary must satisfy the four requirements set forth in Waller v. Georgia, 467 U.S. 39, 47 (1984). See Cohen (No. 1), supra. Here, the judge acted promptly once the issue was called to her attention. The judge was mindful of the need for the safety of all concerned and the importance of not exposing prospective jurors to any extraneous influences. While the judge proceeded in a manner that showed regard for the defendant’s rights, the record
In the present case, the record does not reveal that the judge explored alternatives to a complete closure such as returning some members of the venire to the jury pool in order to free up space in the court room, or moving the proceedings to another court room. Neither of these options may have been feasible in the circumstances, but no specific findings were made by the judge during the empanelment process or in her order denying the defendant’s second motion for a new trial.
For example, under the current state of the law, there is no clear-cut rule about the minimum number of seats, if any, that must be available to members of the public during a trial to differentiate a complete closure of the court room from a partial closure. And there is no clear-cut rule about how to accommodate the interests of family members or friends of a party or an alleged victim, the
Defense counsel stated, “I know it’s a logistical nightmare, but my guy’s family was excluded from the courtroom. And I would like them present, if possible.”
Although a number of prospective jurors had been excused by this point, it appears that some members of the venue had been seated in the jury box before empanelment began, and were moved to benches in the court room so jurors who were seated could be put in the box.
The record does not permit us to determine that the closure was greater than the eighty-minute closure for the entire empanelment procedure that was deemed unjustified in Commonwealth v. Alebord, 467 Mass. 106, 111 (2014), and the seventy-nine-minute closure for the entire empanelment procedure that was deemed unjustified in Commonwealth v. Morganti, 467 Mass. 96, 101 (2014). The record before us indicates that empanelment lasted from about 10:25 a.m. until 12:35 p.m. Sixteen jurors in total were seated. The defendant’s family was seated in the court room after eight jurors had been seated and an additional thirty-two had been excused. After the family members were seated, another eight jurors were seated and an additional twelve jurors were excused.
It should be noted that the trial judge in this case did not have the benefit of the guidance set forth in Cohen (No. 1). supra at 111-116, when these events occurred.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.