On Point: j. Public trial right

Weaver v. Massachusetts, USSC No. 16-240, 2017 WL 2674153 (June 22, 2017); affirming Commonwealth v. Weaver, 54 N.E.3d 495 (Mass. 2016); Scotusblog page (including links to briefs and commentary)

Members of the public–specifically, Kentel Weaver’s family–were excluded from the overcrowded courtroom during jury selection for his trial. Violations of the Sixth Amendment right to public trial have been called structural errors not susceptible to harmless error analysis. But Weaver’s lawyer didn’t object, so this is an ineffective assistance claim, which of course requires him to show prejudice. But how do you show that you were prejudiced by a structural error–after all, the term refers to an error whose “effect … cannot be ascertained”? United States v. Gonzalez-Lopez, 548 U.S. 140, 149 n.4 (2006).

State v. Nancy J. Pinno & State v. Travis J. Seaton, 2014 WI 74, 7/18/14, on certification from the court of appeals, and affirming the circuit court’s orders denying postconviction relief; majority opinion by Justice Prosser; case activity: Pinno; Seaton

Deciding an issue left open by State v. Ndina, 2009 WI 21, ¶¶34-38, 315 Wis. 2d 653, 761 N.W.2d 612, the supreme court rejects the argument that the right to a public trial must be affirmatively and knowingly waived by the defendant. Instead, the court holds, “[a] defendant who fails to object to a judicial decision to close the courtroom forfeits the right to a public trial, so long as the defendant is aware that the judge excluded the public from the courtroom.” (¶7).

On review of court of appeals certification; case activity: Pinno; Seaton

Issue (from certification):

Is the failure to object to the closure of a public trial to be analyzed upon appellate review under the “forfeiture standard” or the “waiver standard”?

See our previous post for further discussion.

State v. Dhosi J. Ndina, 2009 WI 21, affirming 2007 WI App 268
For Ndina: Richard L. Kaiser

Issue/Holding: (Generally:)

¶29      Although cases sometimes use the words “forfeiture” and “waiver” interchangeably, the two words embody very different legal concepts. “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.”