We can all name certain rights that we have: the right to counsel, the privilege against self-incrimination, the right to be free from unreasonable searches and seizures, the right to say whatever the hell you want, the right to have the arms of a bear, etc. But do we think that these are all the rights we have? Especially in the criminal context, there are various other rights that each person has that we may not necessarily be aware of. The right to a trial by jury, for example, is well known, but it is actually the right to a public trial by jury. [TL;DR at end of the post.]
Well sure, that seems obvious enough: you can’t have a trial in a closed courtroom, or in a judge’s chamber somewhere. According to Presley v. Georgia [PDF], the Constitution guarantees it. But did you know that a courtroom, while seemingly open, might be “closed” to the public? And did you know that, even if you didn’t know that, your lawyer may make the decision to say that’s okay without telling you?
That’s what the Massachusetts Supreme Judicial Court concluded in Commonwealth v. Lavoie last month. In Lavoie, they were conducting public voir dire, which last two days. Apparently because there were so many prospective jurors, the court sheriffs asked family members of the defendant to leave the courtroom and told them they couldn’t be present because there was no room for them. The lawyer didn’t notice; the judge didn’t notice. The defendant did know it and he was annoyed, but didn’t say anything, because, you know, he’s a defendant in a criminal trial and he’s not exactly in charge of much.
So he got convicted and some years later filed a motion for new trial arguing that his Constitutional right to a public trial was violated. The State naturally objected, claiming almost preposterously that he had implicitly waived the right because he didn’t say anything to anyone and neither did his lawyer. Lavoie responded, rather logically:
there was no explicit waiver by the defendant or his attorney, and … defense counsel could not waive his client’s rights without ever discussing the issue of his right to a public trial with him. The defendant further states that a waiver of this right could not have occurred where he did not know he had such a right or understand that his counsel made a decision concerning that right.
In other words: how the hell do I waive something I don’t know I had the right to? Quite simply, says the Court, because your lawyer made a tactical decision to do so. And there, kids, is how the courts get away with almost anything: by couching everything in terms of a decision of tactics, the courts shift the power of enforcement from the defendant to his lawyer. Even when his lawyer doesn’t remember consciously making that tactical decision. Like, oh, I don’t know, Lavoie’s lawyer:
Defense counsel stated that it was not his usual practice to object when court officers cleared the court for jury selection because he was aware that space was often insufficient, and he did not want to interfere with “court officers who he perceived engaged in a difficult job” or to have family members sitting near potential jurors. Defense counsel also expressed his belief that family members could present a distraction and, specific to this case, stated his concern that the defendant’s mother “was an emotional individual [who would] be a distraction.”
Although defense counsel had no specific recollection of court officers excluding the defendant’s family during jury selection and did not discuss this issue with the defendant, “he had consciously decided prior to this trial not to object to the removal of family members or supporters during the jury selection process in courtroom 12B.”
The emphasis is all mine just to highlight the bullshit. I’ll bet you a box of Krispy Kreme donuts this attorney, when seeing a copy of the motion raising this claim, thought: “oh crap, I never even thought of that!” And if you’ve practiced criminal law for longer than a second, you’ve already run into some CYA lawyer who’s told you to claim it was a tactical decision, no matter what. Courts are all too happy to oblige, because really, he was guilty, right? And that’s all that matters?
[Because really that's what the value of your rights are. Are you guilty enough? That's the justification for repeated violations of Constitutional rights: harmless beyond a reasonable doubt. "Well yes, this confession was obtained illegally, but he was really guilty, so it doesn't matter" and on and on.
The legal gymnastics really are a sight to behold: 1. The defendant has a lawyer, so the lawyer's word is as good as the defendant's. 2. Except when the lawyer speaking doesn't mean anything [State v. Johnson, PDF] if the defendant doesn’t speak. 3. Even if either and or both speak, it’s not sufficient because they didn’t explain their objection properly. 4. Even if they objected, they didn’t list all the possible grounds for objection so it’s waived. 5. If they said the rights words, they didn’t object a second time and that was essential. 6. If they objected a second time and properly preserved the issue, it doesn’t matter because he’s guilty anyway.
And yet we puzzle why this happens over and over again and why judges and prosecutors and cops don’t learn: because there’s no punishment for doing it wrong. It’s like having a cat that constantly eats your birds but you don’t do anything because, well, you don’t give it enough food, so it’s justified.
So our rights will always be infringed upon because there’s no corresponding punishment for violating them: and you and I and the rest of us “non-criminals” are just as implicit in this erosion as the judicial system. We cry and moan about “guilty” people getting off on “technicalities”. The Constitution isn’t a technicality. It shouldn’t matter how guilty you think someone is; a violation of fundamental rights should have appropriate remedies. Because guess who decides if someone is guilty enough for the error to be harmless? Judges and courts and the legal system. It’s a system that feeds itself. And we will become fodder.]
The right to an open court in criminal proceedings is “an effective restraint on possible abuse of judicial power,” In re Oliver, 333 U.S. 257, 270 (1948), which functions for “the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned.” Waller v. Georgia, 467 U.S. 39, 46 (1984). Yet, it is okay for a lawyer to implicitly do away with this right on behalf of his client without ever consulting or mentioning it to him?
It seems that the courtroom of justice has long been closed.
TL;DR because apparently everyone is stupid now and has no attention spans: your lawyer can waive rights on your behalf that you never knew you had because justice.