United States District Court, D. Massachusetts
ROBERT J. MORGANTI, JR., Petitioner,
KELLY RYAN, Respondent.
MEMORANDUM & ORDER
Talwani United States District Judge
Robert J. Morganti, Jr. has filed a Petition for Writ of
Habeas Corpus [#1]. Petitioner contends that his
conviction and incarceration for murder violate federal law
because (1) he was denied his right to a public trial under
the Sixth Amendment when his trial counsel decided not to
object to the closure of the courtroom for two days during
jury voir dire proceedings without Petitioner's knowing
assent, (2) he was denied his right to effective assistance
of counsel when his trial counsel did not object to the
courtroom closure, and (3) he was not allowed to attend a
jury view. For the following reasons, the petition is DENIED.
29, 1998, Petitioner was indicted by a Plymouth County grand
jury for the murder in the first degree of Anthony LoConte.
Supp. Answer (“S.A.”) Vol. I. 4 [#13]. A jury
trial commenced on June 3, 2003 (Giles, J., presiding), and,
on June 13, 2003, the jury found Petitioner guilty of
first-degree murder by deliberate premeditation and by
extreme atrocity and cruelty. S.A. Vol. I 6-7.
direct appeal to the Massachusetts Supreme Judicial Court
(“SJC”), Petitioner raised the following claims:
1) the trial court should have suppressed his statements to
police; 2) the trial court improperly excluded Petitioner
from the jury view; 3) the prosecutor's closing argument
was improper; 4) the trial court improperly prevented a
witness from consulting with his counsel regarding his Fifth
Amendment right against self-incrimination, rendering his
testimony unreliable; 5) the jury should have been instructed
that their verdict must be unanimous as to the factors under
Commonwealth v. Cunneen, 449 N.E.2d 658, 665 (Mass.
1983); and 6) the conviction should be vacated under G.L. c.
278, § 33E.3 (providing for vacating a verdict if the
verdict is against the weight of the evidence, because of
newly discovered evidence, or if justice so requires). S.A.
Vol. I 17-78. The SJC affirmed Petitioner's conviction on
November 25, 2009. Commonwealth v. Morganti, 917
N.E.2d 191 (Mass. 2009); S.A. Vol. I 159-171.
November 19, 2010, Petitioner filed a motion for new trial
alleging a violation of the right to a public trial. S.A.
Vol. I 8, 304-392. Following an evidentiary hearing, Judge
Giles denied the motion on December 15, 2011. S.A. Vol. I 9,
281-289. The SJC allowed Petitioner's
application for leave to appeal on August 8, 2012. S.A. Vol.
I 591-593. The SJC affirmed the denial of Petitioner's
motion for new trial on February 12, 2014. Commonwealth
v. Morganti, 4 N.E.3d 241 (Mass. 2014); S.A. Vol. I
765-771. The SJC found that Petitioner “waived his
right to a public trial where his experienced trial counsel
was aware of the [courtroom] closure and did not
object.” Id. at 243; S.A. Vol. I 767. The SJC
further found that counsel's failure to raise such an
objection did not constitute ineffective assistance of
counsel. Id. Petitioner filed the instant
Petition for Writ of Habeas Corpus [#1] on April 16,
facts are described as they were found by the SJC. The court
must accept the state court findings of fact unless
Petitioner demonstrates “by clear and convincing
evidence” that “they are in error.”
McCambridge v. Hall, 303 F.3d 24, 26 (1st Cir. 2002)
(en banc) (citing 28 U.S.C. § 2254(e)(1)); see also
Lynch v. Ficco, 438 F.3d 35, 39 (1st Cir. 2006);
Smiley v. Maloney, 422 F.3d 17, 19 n. 1 (1st Cir.
found the following facts related to the public trial and
ineffective assistance of counsel claims:
During jury empanelment, the court officers closed the court
room to all members of the public, as was the custom and
practice at the time in that court. Among those excluded were
Beverly Cocomile, Theresa Andrade, and Richard Cocomile, the
defendant's mother, sister, and stepfather, respectively.
The defendant did not object to the courtroom closure . . . .
After an evidentiary hearing, the motion judge, who was also
the trial judge, found that the court room had been closed
for the seventy-nine minutes that it took to empanel the jury
. . . .
Pursuant to the defendant's motion for new trial, the
trial judge held an extensive evidentiary hearing in order to
determine whether the court room was closed during the jury
empanelment in this case . . . .
The defendant first presented testimony from Beverly,
Andrade, and Richard. All three testified that they were
present in the court room on the morning of June 3, 2003,
while the judge acted on the parties' motions in limine.
Unbeknownst to the judge, at 11:02A.M., before the jury
venire was brought into the court room, the three were asked
by the court officers to leave the court room during the
With the court room cleared, the prospective jurors were
brought in, where, ordinarily, they took up all the available
seats. The process of jury empanelment continued by way of
individual jury questioning at sidebar. Sixteen jurors were
empanelled and the court room was reopened seventy-nine
minutes after it was closed.
Attorney Kevin Reddington, the defendant's trial
counsel, testified that he was aware that Beverly and Andrade
were not present in the court room during the jury
empanelment process, despite the fact that they had been
present for every court hearing up until that
point. He attributed their absence to the
long-standing practice in Brockton Superior Court of closing
the court room during jury empanelment.
Reddington, an established and respected trial
attorney, went on to testify that he was aware of this
practice, as, at the time of trial, he had seen it repeatedly
during his twenty-eight years of practicing criminal law in
the Brockton Superior Court.According to Reddington,
“[t]he practice, custom and procedure on a routine
basis was that when jurors were brought into the court room,
due to the size and configuration of the court room, anyone
that was not directly connected with the case, in other
words, the defendant, obviously, and trial counsel for the
government or for the defense, were told to leave and stand
in the hallway during the jury selection process. Once the
jurors were selected, the individuals were, of course,
invited back in.”
Although Reddington was aware of this
practice, he had not objected to it at any point during his
years of trying cases in the Brockton Superior
Court. While he was similarly aware of his
clients' Sixth Amendment right to a public
trial, he had never considered that the right might extend to
jury empanelment. He understood that the court room was
small, and that all of the seating was taken by the jury
venire. Although he testified that he had no tactical reasons
not to object, he explained that in acquiescing to closing
the court room during jury empanelment, “we all, in our
efforts to have an orderly empanelment process, and due again
to the small configuration of the courtrooms, just went with
The defendant also offered testimony from two other
experienced criminal defense attorneys who practiced
extensively in the Brockton Superior Court but had never
objected to the closures: Attorney John Darrell and
Attorney Joseph Krowski. Darrell, the attorney in
charge of the Plymouth County office of the Committee for
Public Counsel Services (CPCS) during the time in question,
testified that the closure of the court room during
empanelment was a “culture, ” and that he and
other defense attorneys were a part of the
“culture.” He routinely told family members of
his clients that they could not stay in the court room during
empanelment, never objected to their exclusion in any trial,
and made no effort to change the practice.
Krowski agreed that there was an established
practice of closures during jury empanelment at the Brockton
Superior Court throughout his extensive legal
career.He reiterated that the closures were due to
the small size of the court room, and the need to fill all
available seats with prospective jurors. While he was fully
aware of the Sixth Amendment right to a public
trial, he too testified that he was not aware that the right
extended to jury empanelment until 2007, when he spoke with
counsel from the Cohen trial, at which objections to
court room closure during jury empanelment were raised. See
Cohen (No. 1), 456 Mass. at 118, 921 N.E.2d 906.
Krowski testified that he had never objected to the
closure of the court room in the Brockton Superior Court
prior to 2007, and stated, “I just thought that
[closure during empanelment] was protocol. I had seen it for
so many years, exclusion of the public from jury selection,
that it just didn't occur to me that it presented a
[The trial judge] noted that the court room was closed for
only seventy-nine minutes of a ten-day trial, that the voir
dire activity at sidebar would have been inaudible to
spectators, and that the defendant's lack of objection
suggested that he deemed the proceedings to be
Morganti, 4 N.E.3d at 242-245; S.A. Vol. I 767-768.