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Alebord v. Mitchell

United States District Court, D. Massachusetts

July 11, 2017

GLEN ALEBORD, Petitioner,
v.
LISA MITCHELL, Respondent.

          MEMORANDUM & ORDER

          Indira Talwani United States District Judge

         Petitioner Glen Alebord contends in his Petition for Relief from a Conviction or Sentence by a Person in State Custody [#1] that his conviction and incarceration for second-degree murder violate his rights under the Sixth Amendment to the United States Constitution because the courtroom was closed to the public during jury empanelment for his trial.

         The Sixth Amendment to the United States Constitution guarantees that, “[i]n all criminal prosecutions, the accused shall enjoy the right to a . . . public trial.” U.S. Const. amend. VI. “[T]he [public-trial] guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.” In re Oliver, 333 U.S. 257, 270 (1948) (internal footnotes omitted). The right is intended for the benefit of the defendant, so that “the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.” Waller v. Georgia, 467 U.S. 39, 46 (1984) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979)).

         Given the magnitude of the right at stake, “[t]he presumption of openness may be overcome only by an overriding interest based on [specific, articulated] findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Waller, 467 U.S. at 45 (quoting Press-Enter. Co. v. Superior Ct. of Cal., 464 U.S. 501, 510 (1984)). In Waller, the United States Supreme Court set forth a four-pronged analysis that courts must follow in determining whether the closure of a courtroom is necessary:

[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.

467 U.S. at 48. In the absence of this analysis, a complete closure of a courtroom constitutes structural error, because the deprivation of the right to a public trial “affect[s] the framework within which the trial proceeds, rather than simply an error in the trial process itself. ” Arizona v. Fulminante, 499 U.S. 279, 310 (1991) (citing Waller, 467 U.S. at 49); see also Waller, 467 U.S. at 49 n.9; cf. Wilder v. United States, 806 F.3d 653, 661 (1st Cir. 2015).

         It was “well settled” under Waller and Press-Enterprise (which held that the First Amendment right to open trials extends to jury selection, 464 U.S. at 505) that the Sixth Amendment right to a public trial encompasses jury empanelment. Presley v. Georgia, 558 U.S. 209, 213 (2010) (per curiam).

         Nevertheless, well after the Supreme Court issued its decisions in Waller and Press-Enterprise in 1984, the prevailing practice in Brockton Superior Court and certain other Massachusetts trial courts appears to have been to close the courtrooms during jury

empanelment. In a series of recent cases before the Supreme Judicial Court (“SJC”), state prisoners have challenged their convictions based on the complete closure of courtrooms during empanelment. See, e.g., Commonwealth v. Weaver, 54 N.E.3d 495 (Mass. 2016), aff'd sub nom. Weaver v. Massachusetts, No. 16-240, 2017 WL 2674153 (U.S. June 22, 2017); Commonwealth v. LaChance, 17 N.E.3d 1101 (Mass. 2014); Commonwealth v. Alebord, 4 N.E.3d 248 (Mass. 2014); Commonwealth v. Morganti, 4 N.E.3d 241 (Mass. 2014); Commonwealth v. Lavoie, 981 N.E.2d 192 (Mass. 2013). In such cases, the closures were initiated by court security officers, without the knowledge of the trial judge; accordingly, the requisite analysis set forth in Waller was not performed. Having been denied post-conviction relief in the Massachusetts courts, many of these prisoners have filed habeas petitions in the United States District Court for the District of Massachusetts.

         With this backdrop set, the court recites the facts underlying Petitioner's claim.[1] On December 29, 2000, a Plymouth County grand jury indicted Petitioner on one count of second-degree murder in violation of Mass. Gen. Laws ch. 265, § 1. Not. Manual Filing Resp't's Suppl. Ans. 84 [#16]. Trial commenced in the Brockton Superior Court with jury empanelment on February 3, 2004. Alebord, 4 N.E.3d at 250-51. Without objection from trial counsel and in the absence of an order by the trial judge, but consistent with the aforementioned “custom and practice at the time in that court, ” court officers closed the courtroom to the public for the duration of the eighty-minute jury empanelment. Id. at 250, 253 nn.9&10. At Petitioner's request, the court conducted individual juror voir dire at sidebar. Id. at 252. On February 5, 2004, the jury found Petitioner guilty. Id. at 250.

         On December 28, 2006, in a consolidated appeal, the Massachusetts Appeals Court affirmed Petitioner's conviction and the denial of his first motion for a new trial. Commonwealth v. Alebord, 859 N.E.2d 440, 442 (Mass. App. Ct. 2006). Petitioner, who had not raised the issue of courtroom closure in his first new-trial motion or in the consolidated appeal, addressed the issue in 2008 in a second motion for a new trial. Alebord, 4 N.E.3d at 250.

         At an evidentiary hearing in the Superior Court, Petitioner presented testimony that his then-girlfriend and two family members were prevented from entering the courtroom as the jurors entered for empanelment. Id. at 250-51. Trial counsel testified that he did not know at the time that Petitioner's family and then-girlfriend had been prohibited from entering the courtroom. Id. at 251. He testified further, however, that he was aware that the public commonly was excluded from Brockton Superior Court courtrooms during jury empanelment, that in his more than three-and-a-half decades of experience trying cases in the Brockton Superior Court, trial counsel never observed the courtroom open to the public during jury empanelment, and that he had never objected to the public's exclusion. Id. at 252. He further testified that, at the time of trial, he had not been aware that the Sixth Amendment right to a public trial encompassed the jury empanelment process. Id. Petitioner also presented testimony from the attorney in charge of the Committee for Public Counsel Services in Plymouth County, who reported that, prior to 2007, court officers routinely barred the public from courtrooms in the Brockton Superior Court so as to fit the entire venire in the small courtroom. Id. He testified that he did not object to this practice because “[i]t seemed to work that way.” Id. at 252-53.

         The Superior Court judge found against Petitioner because no closure had been ordered. Commonwealth v. Alebord, No. 2000-00066, slip op. at 5 (Mass. Super. Aug. 20, 2008). On appeal, the Massachusetts Appeals Court held that the courtroom had nonetheless been closed and remanded the case for further proceedings to determine whether Petitioner knowingly waived his right to a public trial either on his own or through counsel. Commonwealth v. Alebord, 953 N.E.2d 744, 750-51 (Mass. App. Ct. 2011).

         On remand, the Superior Court judge again denied the new-trial motion. Commonwealth v. Alebord, No. 2000-00066, slip op. at 11 (Mass. Super. Apr. 13, 2012). The Superior Court judge found that, “at the time of trial, [trial counsel] was unaware that a defendant's right to a public trial extended to jury selection”; that “no one told him that any of [Petitioner's] friends or family had been barred from the courtroom”; and “that there was no evidence that either [trial counsel] or [Petitioner] affirmatively assented to the court officers' clearing of the courtroom in advance of empanelment.” Id. at 6-7. The judge concluded that the Commonwealth had failed to establish that Petitioner had knowingly and ...


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