FINDINGS OF FACT, RULINGS OF LAW, AND ORDER ALLOWING
DEFENDANT'S MOTION FOR A NEW TRIAL
Kenneth W. Salinger, Justice of the Superior Court.
Jason Robinson was convicted of first degree murder in 2002.
He now moves for a new trial on the grounds that: (i) his
constitutional right to a public trial was violated because
the court was closed during jury empanelment; (ii) there was
insufficient evidence to support a conviction for
felony-murder; (iii) newly discovered evidence suggests that
the Commonwealth's main witness did not testify
truthfully; (iv) the Commonwealth withheld potentially
exculpatory evidence; and (v) it is unconstitutional to
sentence Robinson to life in prison with no possibility of
parole because he was nineteen years old when the victim was
killed and his brain was not yet fully developed. The Court
conducted an evidentiary hearing regarding Robinson's
public trial claims and has scheduled a further evidentiary
hearing regarding his claims about adolescent brain
Court concludes that it must ALLOW Robinson's motion for
a new trial and vacate his convictions for murder and
unlawful possession of a firearm. As explained below, the
Court finds that Robinson was denied his constitutional right
to a public trial because the public was barred from the
courtroom throughout the jury selection process. It also
finds that Robinson did not acquiesce in this courtroom
closure or waive his public trial right in any other way:
neither Robinson nor his lawyer knew that the public was not
allowed to observe the jury voir dire; defense counsel was
not aware of any general practice of barring the public from
jury selection; and this is Robinson's first motion for a
new trial and the first post-verdict opportunity Robinson has
had to raise this claim of error. There is no merit to the
Commonwealth's assertion that any failure to object at
trial to a courtroom closure waives the error, even if the
defendant and his counsel did not know and had no reason to
suspect that it was happening. The Court is therefore
required by law to vacate Robinson's convictions and
order a new trial without inquiring whether Robinson has
demonstrated that the unlawful courtroom closure created any
substantial risk or likelihood of a miscarriage of justice.
dockets for this case and the transcripts from the trial of
this matter indicate the following.
Robinson and codefendant Tanzerious Anderson were tried
together in 2002. Robinson was indicted on one charge of
murder in the first degree, two charges of armed robbery, and
one charge of unlawful possession of a firearm. The case was
tried before Judge Barbara Rouse.
of this case took place over eleven days. It began on
Tuesday, March 19, 2002. That morning the trial judge first
held a final trial conference to discuss jury empanelment and
some motions in limine with defense counsel. The conference
began at 10:10 a.m. and ended at 10:26. After a short recess
jury empanelment started at 10:44 a.m. During that recess a
venire or pool of thirty-five to forty prospective jurors was
brought into the courtroom. Jury selection continued
for the rest of the day, except for a lunch break from 1:10
p.m. to 2:25 p.m. After the first pool of prospective jurors
was exhausted, a second venire was brought into the courtroom
at 3:12 p.m. A jury of 15 jurors was empaneled by the end of
the afternoon on that first day. After some short preliminary
instructions the 15 jurors were excused for the day at 4:58
fifteen jurors were sworn in the next morning, on March 20,
2002. They were then taken on a view of certain locations in
Brighton. The jury began hearing evidence that afternoon. The
Commonwealth finished presenting evidence and rested on March
27. The trial judge then allowed Robinson's motion for a
required finding of not guilty with respect to indictment
002, which was one of the two charges of armed robbery. The
jury heard closing arguments, was instructed by the judge,
and began deliberations on March 28. It rendered its verdict
on April 3, 2002.
jury found Robinson to be guilty of first degree murder,
armed robbery, and illegal possession of a firearm. With
respect to the murder charge, the jury found that Robinson
was guilty of first degree based only on a theory of felony
murder, both as a principal and as a joint venturer, and not
on theories of acting with deliberate premeditation or with
extreme atrocity or cruelty. With respect to the armed
robbery and firearm possession charges, the jury found that
Robinson was guilty as a joint venturer but not as a
principal. The trial judge vacated the conviction
for armed robbery and dismissed that indictment. She
sentenced Robinson to life in prison without the possibility
of parole on the first degree murder conviction and to a
concurrent sentence of four to five years on the firearm
filed a timely notice of appeal, but that appeal has been
stayed pending resolution of Robinson's belated motion
for a new trial. Robinson's appeal was docketed in the
Supreme Judicial Court on May 14, 2004, two years after the
trial. In July 2007 the SJC asked defense counsel to report
on the status of the appeal. Over the next seven years
defense counsel submitted a series of twenty-eight status
letters regarding her plans to file a motion for a new trial.
The Commonwealth first expressed concern about the delay in
prosecuting this appeal in January 2012, when it filed a
motion asking the SJC to set a briefing schedule. It renewed
that request three more times, in January 2013, January 2015,
and August 2015. The SJC denied the last of these motions
without prejudice and ordered defense counsel to file
Robinson's motion for a new trial with the SJC rather
than in the Superior Court. Defense counsel filed
Robinson's new trial motion with the SJC on September 11,
2015. One week later the SJC ordered that the appellate
proceedings be stayed pending disposition of the new trial
motion. It remanded the case to the Suffolk Superior Court
for disposition of that motion.
Commonwealth filed its opposition to Robinson's motion
for a new trial in March 2016. By that time the trial judge
had retired. As a result, Robinson's new trial motion was
assigned to a different judge. The new trial motion was
originally assigned to Judge Frank Gaziano. After he was
appointed to serve as an Associate Justice of the Supreme
Judicial Court the motion was assigned to a different judge.
The Court held a status conference on September 1, 2016.
Court decided that it would need to hear evidence on the
courtroom closure issue raised in the motion for a new trial,
and that Robinson (and thus the Commonwealth) should be
allowed to create an evidentiary record regarding adolescent
brain development to support Robinson's anticipated
appellate advocacy to the SJC on that issue. The evidentiary
hearing had to be rescheduled several times at Robinson's
request. The Court finally was able to hear the evidence on
the courtroom closure issue on December 21, 2016. A further
evidentiary hearing on the adolescent brain development issue
is scheduled for February 16, 2017.
Facts Regarding Courtroom Closure
Court heard and received the following evidence regarding
whether the public was barred from observing the selection of
the jury in this case and, if so, regarding whether Mr.
Robinson or his attorney waived any objection to such a
Court received and considered sworn affidavits by defendant
Jason Robinson, Attorney Michael Doolin, Ms. Karen Pulido,
and Mr. Robert John Tanzerious Anderson, all of which were
submitted by counsel for Mr. Robinson. It conducted an
evidentiary hearing during which it heard oral testimony by
Mr. Doolin, Ms. Pulido, and Mr. Anderson. The Commonwealth
cross examined these witnesses, but did not seek to cross
examine Robinson. The Commonwealth chose not to present any
rebuttal evidence regarding whether the public was barred
from the courtroom during jury selection in this
case. The Commonwealth did submit copies of
sworn affidavits by Attorneys Jonathan Shapiro and Steven
Rappaport during the evidentiary hearing, and the Court has
considered them;  these two affidavits were executed in
2012 and the originals were apparently submitted in support
of a motion for a new trial filed by the defendant in
Commonwealth v. Joseph Bennett, Suffolk S.Ct.
9784CR10114, regarding a case that was tried in 1998.
Defendant did not object to the submission or consideration
of those affidavits, did not seek leave to cross examine Mr.
Shapiro or Mr. Rappaport, and did not seek leave to submit
any rebuttal evidence. Finally, the Court also reviewed and
considered the official transcript of the entire first day of
trial, including the final trial conference as well as the
Findings of Fact
Court makes the following findings based on this evidence and
on reasonable inferences it has drawn from this evidence.
Doolin represented Mr. Robinson during the trial of this case
and throughout the pretrial proceedings. Ms. Pulido is the
mother of Robinson's co-defendant, Tanzerious Anderson.
She was present for every day of this trial. Finally, Mr.
Robert Anderson is the brother of the co-defendant. He was
present for almost every day of the trial, but had to miss at
least one day to go to work.
Court finds that all three of these witnesses were credible.
It credits their testimony to the extent it is ...