The SJC has agreed to hear two cases involving the violation of defendants' federal constitutional right to a public trial. In these cases, the SJC should address a crucial question: whether a defendant is entitled to relief for the violation of his right to a public trial where he did not raise the issue at any point prior to or during his direct appeal.

In both Commonwealth v. Morganti (SJC-11281) and Commonwealth v. Alebord (SJC-11354), trial counsel have already testified that they were not aware that the public had been excluded from jury selection but also were unaware that the public trial right applied to jury selection, thus clearly distinguishing both cases from Commonwealth v. Lavoie, where trial counsel claimed to make a knowing waiver of his client's right to a public trial during jury selection. Furthermore, the trial judge has already found in both cases that the Commonwealth failed to satisfy its burden to establish waiver of the public trial right.

Instead, the trial judge concluded in both cases that the violation of defendant's public trial right was de minimis, and thus outside the protection of the 6th Amendment, notwithstanding that the public was excluded from the entire jury selection process. In support of this reasoning, the trial judge noted that jury selection in both cases was relatively short - 80 minutes long. This holding is contrary to virtually all published authority, including Supreme Court precedent. See Presley v. Georgia, 130 S.Ct. 721, 724 (2010) (intentional exclusion of defendant's uncle from jury selection, involving the questioning of 42 jurors and lasting only an afternoon, mandated reversal); United States v. Gupta, 699 F.3d 682, 685 (2nd Cir. 2012) (exclusion of public from entire jury selection process lasting a few hours was reversible error); Watters v. State, 328 Md. 38, 44, 612 A.2d 1288 (1992), cert. denied, 507 U.S. 1024 (1993) (cited approvingly in Commonwealth v. Cohen, at 108) (complete closure of courtroom during entire jury selection process lasting a morning required reversal); State v. Torres, 844 A.2d 155, 162 (R.I. 2004) (same).