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SJC-11494

COMMONWEALTH vs. EDMUND D. LaCHANCE, JR.

Middlesex. April 7, 2014. - October 21, 2014.

Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.

Constitutional Law, Public trial, Jury, Waiver of constitutional 

rights, Assistance of counsel. Practice, Criminal, Public 

trial, Empanelment of jury, Waiver, Assistance of counsel.

Jury and Jurors. Waiver.

Indictments found and returned in the Superior Court 

Department on December 16, 1999. 

Following review by the Appeals Court, 58 Mass. 1111 

(2003), a motion for a new trial was considered by Raymond J. 

Brassard, J.

The Supreme Judicial Court granted an application for 

direct appellate review. 

Alba Doto Baccari for the defendant.

Michael A. Kaneb, Assistant District Attorney, for the 

Commonwealth.

Richard C. Felton, pro se, amicus curiae, submitted a 

brief.

CORDY, J. This court is again faced with a defendant's 

postconviction claim of ineffective assistance of counsel 
2

predicated on the failure of trial counsel to object to a court 

room closure during jury empanelment. See Commonwealth v. 

Alebord, 467 Mass. 106, 111-114, cert. denied, 134 S. Ct. 2830 

(2014); Commonwealth v. Morganti, 467 Mass. 96, 100-105 (2014). 

This time we are required to address a question not previously

reached, that is, whether prejudice from the deficiency of trial 

counsel in this respect must be affirmatively established as 

part of the claim or is to be presumed because of the structural

nature of the underlying public trial right that trial counsel 

failed to raise.

1. Background. On April 20, 2001, a Superior Court jury 

convicted the defendant of aggravated rape, kidnapping, indecent 

assault and battery, and assault by means of a dangerous weapon. 

The defendant -- represented by new counsel -- filed a timely 

notice of appeal, and on August 5, 2003, a panel of the Appeals 

Court affirmed his conviction in an unpublished decision 

pursuant to that court's rule 1:28. Commonwealth v. LaChance, 

58 Mass. App. Ct. 1111 (2003), cert. denied, 540 U.S. 1202 

(2004). The defendant filed two motions for a new trial in 2003 

and 2004, which were denied by the trial judge in a single order 

on April 15, 2004. The defendant again timely filed a notice of 

appeal, and a panel of the Appeals Court affirmed the judge's 
3

denial of his two motions for a new trial on May 10, 2005. 

Commonwealth v. LaChance, 63 Mass. App. Ct. 1114 (2005).

1 

In September, 2011, represented by new appellate counsel, 

the defendant filed his third postaffirmance motion for a new 

trial, raising, for the first time, a claim that his right to a 

public trial pursuant to the Sixth Amendment to the United 

States Constitution was violated when his family members were 

excluded from the court room during jury empanelment, and that 

trial counsel was ineffective for failing to object to the 

closure. In support of his motion, the defendant presented his 

own affidavit and affidavits from his mother, his uncle, and his 

trial and former appellate attorneys. In her affidavit, the 

defendant's mother stated that she, her late husband, and her 

brother were in attendance in the Middlesex County Superior 

Court on April 10, 2001, the date of jury selection. At 

approximately 9:15 A.M., a court officer informed them that they 

would have to leave the court room. They left the court room, 

and waited in the lobby. According to the affidavits of the 

defendant's mother and uncle, the family members attempted to 

 

1 The defendant also filed two motions to revise and revoke

his sentence, which were denied by the trial judge and affirmed 

by a panel of the Appeals Court in an unpublished decision 

pursuant to that court's rule 1:28. Commonwealth v. LaChance, 

63 Mass. App. Ct. 1108 (2005).
4

reenter the court room at approximately 1 P.M. but were

prevented from doing so by a court officer. 

Trial counsel averred that he believed that the court room 

was closed during jury empanelment, as was the practice in the 

Middlesex County Superior Court at the time, and that he did not 

object to the alleged closure. Trial counsel further averred

that he did not discuss the matter with the defendant and was 

not aware at the time of the trial that the Sixth Amendment 

right to a public trial extended to jury empanelment. The 

defendant's former appellate counsel averred that he had no 

tactical or strategic reason not to raise the issue of court 

room closure in any of the defendant's appeals or prior motions 

for a new trial, noting that it did not occur to him that 

closure was an issue in the case. 

The motion judge, who was also the trial judge, denied the 

defendant's third motion for a new trial without a hearing, 

reasoning that because the defendant had not objected to any 

closure during jury empanelment, he had waived his public trial 

claim. The judge further determined that removal of the 

defendant's family from the court room during jury empanelment 

did not create a substantial risk of a miscarriage of justice 

entitling the defendant to a new trial.

On April 4, 2013, following the release of our decisions in 

Commonwealth v. Lavoie, 464 Mass. 83, cert. denied, 133 S. Ct. 
5

2356 (2013), and Commonwealth v. Hardy, 464 Mass. 660, cert. 

denied, 134 S. Ct. 248 (2013), the defendant sought 

reconsideration of the denial of his motion for a new trial, 

arguing that prejudice under the second prong of the standard 

regarding ineffective assistance of counsel set forth in 

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), must be 

presumed due to the structural nature of the right to a public 

trial. In denying the defendant's motion, the judge assumed 

both that a closure during jury empanelment had occurred and 

that trial counsel's performance in failing to object to the 

closure fell below that of an ordinary fallible lawyer. 

However, the judge rejected the defendant's argument that 

prejudice must be presumed because of the structural nature of 

the underlying public trial right. Accordingly, the judge 

denied the motion, determining both that the defendant was 

unable to show prejudice resulting from the court room closure

and that there was no substantial risk of a miscarriage of 

justice. 

2. Discussion. We conclude that where the defendant has 

procedurally waived his Sixth Amendment public trial claim by 

not raising it at trial, and later raises the claim as one of 

ineffective assistance of counsel in a collateral attack on his 

conviction, the defendant is required to show prejudice from 

counsel's inadequate performance (that is, a substantial risk of 
6

a miscarriage of justice) and the presumption of prejudice that 

would otherwise apply to a preserved claim of structural error 

does not apply. See Purvis v. Crosby, 451 F.3d 734, 740-743

(11th Cir.), cert. denied sub nom. Purvis v. McDonough, 549 U.S. 

1035 (2006); Virgil v. Dretke, 446 F.3d 598, 612 (5th Cir. 

2006); Reid v. State, 690 S.E.2d 177, 180-181 (Ga. 2010); People

v. Vaughn, 821 N.W.2d 288, 297-299 (Mich. 2012) (all concluding 

that structural error alone is not sufficient to warrant 

presumption of prejudice in context of claim of ineffective 

assistance of counsel).

a. Right to a public trial. It is well settled that the 

violation of a defendant's right to a public trial is structural 

error. See United States v. Marcus, 560 U.S. 258, 263 (2010); 

Commonwealth v. Cohen (No. 1), 456 Mass. 94, 105 (2010). Where 

a defendant raises a properly preserved claim of structural 

error, this court will presume prejudice and reversal is 

automatic. See Cohen (No. 1), supra at 118-119 (properly 

preserved claim where counsel objected to court room closure at 

trial). 

Where counsel fails to lodge a timely objection to the 

closure of the court room, the defendant's claim of error is 

deemed to be procedurally waived. See Morganti, 467 Mass. at 

102; Lavoie, 464 Mass. at 87-88 & n.8. Our case law provides 

that unpreserved claims of error be reviewed to determine if a 
7

substantial risk of a miscarriage of justice occurred. See

Lavoie, 464 Mass. at 89, citing Commonwealth v. Freeman, 352 

Mass. 556, 564 (1967). While violation of the right to a public 

trial is structural error, even structural error "is subject to 

the doctrine of waiver." Morganti, supra at 101-102, quoting 

Cohen (No. 1), supra at 105-106. See Commonwealth v. Amirault, 

424 Mass. 618, 641 (1997) (stating doctrine of waiver applies 

equally to constitutional claims). This includes structural 

error arising through an improper court room closure. See 

Alebord, 467 Mass. at 113; Morganti, supra at 101-102.

To presume prejudice in this context would ignore the 

distinction, one long recognized by this court, between properly 

preserved and waived claims. See Commonwealth v. Dyer, 460 

Mass. 728, 735-737 & n.7 (2011), cert. denied, 132 S. Ct. 2693 

(2012) (applying waiver analysis in first-degree murder case to 

unobjected to closure during jury voir dire and finding 

substantial likelihood of miscarriage of justice not shown); 

Commonwealth v. Horton, 434 Mass. 823, 832 (2001) (applying 

waiver analysis, in effect, to unpreserved claim of Sixth

Amendment right to public trial). The structural nature of the 

underlying error does not automatically excuse the defendant 

from showing prejudice when advancing an unpreserved claim. See 

Francis v. Henderson, 425 U.S. 536, 542 (1976) (holding that 

showing of actual prejudice necessary to overcome procedural 
8

waiver arising from failure to object to structural error at 

trial). "The presumption of prejudice which supports the 

existence of the right is not inconsistent with a holding that 

actual prejudice must be shown in order to obtain relief from a 

statutorily provided waiver for failure to assert it in a timely 

manner." Davis v. United States, 411 U.S. 233, 245 (1973) 

(presumption of prejudice associated with claim of racial 

discrimination in grand jury composition not available when 

claim first raised in postconviction motion). "To conclude 

otherwise would tear the fabric of our well-established waiver 

jurisprudence that 'a defendant must raise a claim of error at 

the first available opportunity,'" Morganti, 467 Mass. at 102,

quoting Commonwealth v. Randolph, 438 Mass. 290, 294 (2002), and 

would defeat the core purposes of the waiver doctrine: to 

protect society's interest in the finality of its judicial 

decisions, and to promote judicial efficiency. Randolph, supra.

b. Right to effective assistance of counsel. If an error 

is waived due to the failure of trial counsel to object, we 

still may have occasion to review the error in the 

postconviction context of a claim of ineffective assistance of 

counsel. See Alebord, 467 Mass. at 113; Morganti, 467 Mass. at 

103. To prevail on a claim of ineffective assistance of 

counsel, however, a defendant also must show that counsel's 

deficiency resulted in prejudice, see Saferian, 366 Mass. at 96, 
9

which, in the circumstances of counsel's failure to object to an 

error at trial, is essentially the same as the substantial risk 

standard we apply to unpreserved errors. See Commonwealth v. 

Azar, 435 Mass. 675, 686-687 (2002).

Because of the structural nature of the defendant's waived 

Sixth Amendment right to a public trial, the dissent would 

presume prejudice, even in the context of a collateral attack 

based on a claim of a counsel's ineffectiveness. But a claim of 

ineffective assistance of counsel is not a public trial claim. 

As discussed above, the defendant's public trial claim has been 

procedurally waived. Presuming prejudice in this context 

ignores the distinct and well-established jurisprudence which 

governs claims of ineffective assistance of counsel.

2

With respect to claims of ineffective assistance of 

counsel, in violation of the Sixth Amendment, the United States 

Supreme Court has recognized a presumption of prejudice only in 

limited circumstances where the essential right to the 

assistance of counsel itself has been denied. See Strickland v. 

Washington, 466 U.S. 668, 692 (1984) ("Actual or constructive 

denial of the assistance of counsel altogether is legally 

presumed to result in prejudice," as is "state interference with 

 

2 Indeed, it would be anomalous if a waived claim reviewed 

on direct appeal under a substantial risk standard could be 

recast as a claim of ineffective assistance of counsel in which 

prejudice would be presumed.
10

counsel's assistance"); United States v. Cronic, 466 U.S. 648, 

659 & n.25 (1984). In Strickland, supra at 692, the United 

States Supreme Court went on to identify one additional 

circumstance where "a similar, though more limited, presumption 

of prejudice" would apply: where "counsel is burdened by an 

actual conflict of interest." "Even so, the rule is not quite 

the per se rule of prejudice that exists for the Sixth Amendment 

claims mentioned above [denial altogether and State interference 

with counsel]. Prejudice is presumed only if the defendant 

demonstrates that counsel 'actively represented conflicting 

interests' and that 'an actual conflict of interest adversely 

affected [the] lawyer's performance.'" Strickland, supra, 

quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350 (1980).

In contrast, in circumstances where ineffectiveness is 

based on "[a]n error by counsel, even if professionally 

unreasonable, [it will] not warrant setting aside the judgment 

of a criminal proceeding if the error had no effect on the 

judgment." Strickland, supra at 691. "The purpose of the Sixth 

Amendment guarantee of counsel is to ensure that a defendant has 

the assistance to justify reliance on the outcome of the 

proceeding." Id. at 691-692. While a jury empanelment closed 

to spectators (other than jurors) and the defendant's family may 

be a structural error, it will rarely have an "effect on the 
11

judgment," or undermine our "reliance on the outcome of the 

proceeding." Id. at 691, 692.

In Owens v. United States, 483 F.3d 48, 64 (1st Cir. 2007), 

the United States Court of Appeals for the First Circuit 

presumed prejudice where a defendant advanced a claim of 

ineffective assistance of counsel based on counsel's failure to 

object to a public trial structural error. The court reasoned 

that it would "not ask defendants to do what the Supreme Court 

has said is impossible." Id. at 65.3 However, to say that 

requiring a showing of prejudice forecloses the possibility of a 

remedy "ignore[s] -- at great cost to the public interest in the 

finality of verdicts -- the established rule that public trial 

rights may be waived," Dyer, 460 Mass. at 735 n.7, and that 

claims of ineffective assistance of counsel merit a new trial 

only where the error may have affected the verdict. See 

Strickland, 466 U.S. at 691. We do not agree with the reasoning 

of Owens in this context, and are more aligned with that of the 

United States Court of Appeals for the Eleventh Circuit in 

Purvis v. Crosby, 451 F.3d at 740-741, which has concluded that 

aside from the three exceptions noted in Strickland and Cronic, 

 

3 Although it may be difficult to demonstrate prejudice in 

the context of a closed jury empanelment process, we do not rule 

out that possibility, although we recognize that the possibility 

is greater with respect to trial closures after jury 

empanelment.
12

none of which is present here, the United States Supreme Court 

has instructed that prejudice must be shown in a claim for 

ineffective assistance of counsel. See People v. Vaughn, 821 

N.W.2d at 308 (rejecting reasoning of Owens and adopting 

reasoning of Purvis, further nothing that, "[w]ithout 

distinguishing a properly preserved structural error for which 

reversal is required from an error claimed as ineffective 

assistance of counsel, counsel can harbor error as an appellate 

parachute by failing to object to the closure of trial, thereby 

depriving the trial court of the opportunity to correct the 

error at the time it occurs").

3. Conclusion. For the above reasons, the order denying 

the defendant's motion for a new trial is affirmed.

So ordered.
DUFFLY, J. (dissenting, with whom Lenk, J., joins). It is, 

as the court notes, "well settled that the violation of a

defendant's right to a public trial is structural," and that the 

public trial right under the Sixth Amendment to the United 

States Constitution applies as much to jury empanelment as to 

"the actual proof at trial." Presley v. Georgia, 558 U.S. 209, 

212 (2010). Today's decision effectively forecloses vindication 

of this constitutional right on collateral review, even in cases 

where trial counsel has rendered constitutionally deficient 

performance in failing to object when the court room was closed, 

and neither the defendant nor his counsel knowingly waived his 

right to a public trial.1 See Commonwealth v. Lavoie, 464 Mass. 

83, 88-89, cert. denied, 133 S. Ct. 2356 (2013). 

Notwithstanding the absence of a waiver of the public trial 

right in this case, the court holds that the defendant is 

foreclosed from seeking relief because he procedurally waived 

his claim of error when his trial attorney failed to object, and 

his appellate counsel did not raise the claim on direct appeal. 

See id. at 87 n.8 (distinguishing between waiver of right and 

 

1 When a court room is closed but a defendant has waived his 

right to a public trial, there is no violation of the right. 

See Commonwealth v. Amirault, 424 Mass. 618, 649-650 (1997). 

The waiver of a right occurs only where a litigant intentionally 

relinquishes that right. See Commonwealth v. Lavoie, 464 Mass. 

83, 87, n.8, cert. denied, 133 S. Ct. 2356 (2013); Commonwealth

v. Deeran, 397 Mass. 136, 140-142 (1986); Commonwealth v. 

Downey, 78 Mass. App. Ct. 224, 229-230 (2010).
2

waiver of claim of error); Commonwealth v. Deeran, 397 Mass. 

136, 140-142 (1986) (noting distinction between "a procedural 

waiver of [defendant's] right to assert a constitutional claim" 

in postconviction motion, and the knowing and intelligent 

"relinquishment of the constitutional right" [emphasis in 

original]).

As the court notes, the defendant did not raise the claim 

that his public trial right was violated until his third 

postconviction motion. The court recognizes that counsel's 

failure to object was constitutionally deficient performance, 

but nonetheless affirms the denial of the defendant's claim of 

structural error by invoking concepts of finality and judicial 

efficiency to support what it describes to be "our wellestablished waiver jurisprudence that 'a defendant must raise a 

claim of error at the first available opportunity.'" 

Commonwealth v. Morganti, 467 Mass. 96, 102 (2014), quoting 

Commonwealth v. Randolph, 438 Mass. 290, 294 (2002). I 

respectfully disagree that the principles of finality and 

judicial efficiency must be invoked. Where, as here, the court 

room was closed without a determination that such closure was 

justified according to Waller v. Georgia, 467 U.S. 39, 46 (1984) 

(Waller), a defendant has not waived his constitutional right to 

a public trial, and defense counsel provided ineffective 
3

assistance by failing to object,2 I would invoke the principle 

that "every right, when withheld, must have a remedy." Marbury

v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).

Under the court's analysis, henceforth, in any case in 

which trial counsel fails to object to a court room closure, 

either because of a lack of experience or knowledge, or other 

"serious incompetency, inefficiency, or inattention," 

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), a defendant 

will have no meaningful opportunity to raise such a claim on 

collateral review.3 This is necessarily so because, in order to 

obtain relief, a defendant would need to show either (1) that 

his procedurally waived claim of error resulted in a substantial 

risk of a miscarriage of justice, which requires a showing of 

 

2 There is no suggestion that either the defendant or his 

counsel intended to relinquish the public trial right because 

both the defendant and his counsel were unaware that the public 

trial right applied during jury empanelment. In such 

circumstances, where it is not consistent with the prevailing 

professional norms at the time of trial, the failure to object 

may constitute deficient performance falling below what is to be 

expected of an ordinary fallible lawyer. See Commonwealth v. 

Morganti, 467 Mass. 96, 103 (2014), quoting Commonwealth v. 

Drew, 447 Mass. 635, 641 (2006), cert. denied, 550 U.S. 943 

(2007).

3 The court's decision to foreclose relief for unpreserved 

claims of error regarding the public trial right is limited to 

the context of collateral review in which this case arises. The 

decision rests on an interest in promoting finality, an interest 

which arises only after a conviction has been affirmed on direct 

appeal, see Commonwealth v. Amirault, 424 Mass. 618, 637 (1997), 

and does not address the question of possible remedies on direct 

appeal.
4

prejudice, see Commonwealth v. Randolph, 438 Mass. 290, 298 

(2002), or (2) that his counsel's representation was 

constitutionally ineffective, which also requires a showing of 

prejudice.4 But the very nature of a right to which presumptive 

prejudice attaches -– such as the right to an open court –- is 

 

4 In circumstances such as those present here, the standard 

of review for ineffective assistance claims is not "essentially 

the same" as the standard of review for claims of unpreserved 

trial error. Compare Commonwealth v. Saferian, 366 Mass. 89, 96 

(1974) (new trial where counsel's deficient performance deprives 

defendant of otherwise available substantial ground of defense), 

with Commonwealth v. Amirault, supra at 646 (new trial where 

waived claim of error results in substantial risk of miscarriage 

of justice). In most circumstances, however, because 

application of either standard will lead to the same result, we 

review under the substantial risk of a miscarriage of justice 

standard and, in so doing, obviate the need to conduct a 

separate review under the Saferian standard. See, e.g., 

Commonwealth v. Azar, 435 Mass. 675, 686-687 (2002); 

Commonwealth v. Peters, 429 Mass. 22, 31 & n.12 (1999); 

Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994). 

Here, by contrast, the circumstances are precisely those in 

which the substantial risk standard and the Saferian standard 

diverge. I agree that where a defendant raises a waived claim 

of error regarding the public trial right without asserting a 

claim of ineffective assistance of counsel, the defendant must 

establish a substantial risk of a miscarriage of justice, and 

will not be entitled to a presumption of prejudice. But I would 

hold that a defendant is entitled to a presumption of prejudice 

where a defendant raises an ineffective assistance of counsel 

claim and has established that, in failing to object to a court 

room closure, counsel's performance fell below that of an 

ordinary, fallible attorney. The distinction between preserved 

and waived claims of error is therefore maintained: a defendant 

who has preserved a claim that his public trial right was 

violated is entitled to reversal, whereas a defendant who has 

waived the claim of error is not entitled to reversal unless he 

establishes that, in failing to object, his trial counsel's 

performance fell below the standard of an ordinary, fallible 

lawyer. 
5

that a showing of prejudice is not possible. See Waller, supra

at 49 n.9, quoting United States ex rel. Bennett v. Rundle, 419 

F.2d 599, 608 (3d Cir. 1969) ("a requirement that prejudice be 

shown would 'in most cases deprive [the defendant] of the 

[public-trial] guarantee, for it would be difficult to envisage 

a case in which he would have evidence available of specific 

injury'"). It is nonsensical to impose upon a defendant the 

requirement to establish that trial counsel's failure deprived 

him of an otherwise available substantial line of defense where 

the structural nature of the public trial right makes such a 

showing impossible in practice.5

Requiring that prejudice be shown in these circumstances 

disregards the fundamental purpose of the right to a public 

trial. The violation of the public trial right is structural 

error that "require[s] automatic reversal without a showing of 

 

5 The court states that it does not rule out the possibility 

that a defendant could show prejudice resulting from violation 

of the right to a public trial, ante at n.3, but a showing of 

prejudice is inconsistent with classification of the public 

trial right as structural. Moreover, the court does not suggest 

how a defendant might show such prejudice, and the effect of its 

holding is that there will be no "occasion to review" 

unpreserved claims of error predicated on the public trial right 

on collateral review. No other court to have considered this 

issue appears to have suggested that a showing of prejudice 

resulting from a court room closure would be possible. See, 

e.g., Purvis v. Crosby, 451 F.3d 734, 741 (11th Cir.), cert. 

denied sub nom. Purvis v. McDonough, 549 U.S. 1035 (2006); Reid

v. State, 286 Ga. 484, 488 (2010); People v. Vaughn, 491 Mich. 

642 (2012); State v. Butterfield, 784 P.2d 153, 157 (Utah 1989).
6

actual harm," because it "necessarily render[s] a criminal trial 

fundamentally unfair or an unreliable vehicle for determining 

guilt or innocence." Commonwealth v. Petetabella, 459 Mass. 

177, 183 (2011), quoting Commonwealth v. Hampton, 457 Mass. 152, 

163 (2010). See Commonwealth v. Cohen, 456 Mass. 94, 118-119 

(2010) (where jury selection procedure violated public trial 

right, error was structural and therefore no inquiry conducted 

"as to whether it prejudiced the defendant"); Commonwealth v. 

Marshall, 356 Mass. 432, 435 (1969) (reversing conviction based 

on violation of right to public trial, and holding "showing of 

prejudice is not necessary"). This is because the benefits of a 

public trial, while significant, are nonetheless "frequently 

intangible, difficult to prove, or a matter of chance, [but] the 

Framers plainly thought them nonetheless real." Waller, supra

at 49 n.9. See Commonwealth v. White, 85 Mass. App. Ct. 491, 

496 (2014) ("A closure during jury selection undermines the 

values of openness because the public loses the opportunity for 

assurance that those chosen to decide the defendant's guilt or 

innocence will do so fairly"); Commonwealth v. Downey, 78 Mass. 

App. Ct. 224, 229 (2010) ("Because we place such value on the 

right to public trial and because it is virtually impossible to 

demonstrate concrete harm flowing from a violation of that 

right, a violation relieves the defendant of the need to show 

prejudice in order to obtain a new trial"). 
7

As structural error, the violation of the right to a public 

trial is in a category distinct from trial errors, such as the 

improper admission of evidence, from which specific harm may be 

seen to flow. Structural errors stand apart from trial errors 

because structural errors "affect[] the framework within which 

the trial proceeds" and thereby "defy analysis by 'harmlesserror' standards," whereas trial errors "occur during the 

presentation of the case to the jury," and "may therefore be 

quantitatively assessed in the context of other evidence 

presented." Arizona v. Fulminante, 499 U.S. 279, 291, 307-308, 

309-310 (1991). Because a structural defect affects the 

framework in which a trial proceeds, looking for prejudice 

flowing from structural error is "a speculative inquiry into 

what might have occurred in an alternate universe." United 

States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006). See State

v. Lamere, 327 Mont. 115, 124 (2005) (structural defects are 

presumptively prejudicial because they "cannot be qualitatively 

or quantitatively weighed against the admissible evidence 

introduced at trial"). 

The majority decision diminishes the significance of the 

public trial right when it concludes that finality trumps a 

defendant's right to seek a postaffirmance remedy for an 

unpreserved public trial claim, a conclusion we have not reached 

for other unpreserved claims of error. Notably, we have granted 
8

a new trial on collateral review without requiring a showing of 

prejudice, twenty years after the conviction, where a defendant 

raised an unpreserved claim of error implicating a structural 

defect in jury instructions. See Commonwealth v. Pinckney, 419 

Mass. 341, 342, 349 (1995).6 And, although a defendant who 

raises an unpreserved claim of error implicating his public 

trial right is now effectively foreclosed from collateral 

review, a defendant who raises an unpreserved trial error 

retains the possibility of reversal if he can show that the 

error resulted in a substantial risk of a miscarriage of 

justice. See, e.g., Commonwealth v. Gilbert, 447 Mass. 161, 163 

(2006); Commonwealth v. Thomas, 401 Mass. 109, 119 (1987); 

Commonwealth v. Callahan, 380 Mass. 821, 826 (1980); 

Commonwealth v. Palmarin, 378 Mass. 474, 477 (1979). Permitting 

relief for unpreserved trial errors and some unpreserved 

 

6 In the context of direct appeal, we have reversed 

convictions on the basis of unpreserved claims of error where we 

have recognized that a showing of prejudice would be impossible. 

See Commonwealth v. Sheehy, 412 Mass. 235, 238 (1992); 

Commonwealth v. Jones, 405 Mass. 661, 662 (1989); Commonwealth

v. Smith, 403 Mass. 489, 493, 496-497 (1988). Although the 

error in these cases -- alternate jurors sitting in on jury 

deliberations, without objection by trial counsel -- was not 

labeled as "structural," our decision in Commonwealth v. Smith, 

supra, preceded Arizona v. Fulminante, 499 U.S. 279, 291, 307-

308, 309-310 (1991), apparently the first United States Supreme 

Court case to have categorized and labeled as "structural" those 

errors which "defy harmless-error analysis." See Burns, 

Insurmountable Obstacles: Structural Errors, Procedural 

Default, and Ineffective Assistance, 64 Stan. L. Rev. 727, 732 

(2012).
9

structural errors, but not for errors implicating the public 

trial right, introduces unjustified disparity into our 

jurisprudence. See Commonwealth v. Dyer, 460 Mass. 728, 735 n.7 

(2011), cert. denied, 132 S. Ct. 2693 (2012) (rejecting option 

that "would give less protection to waived constitutional rights 

than to ordinary claims of unpreserved errors"). Cf. Burns, 

Insurmountable Obstacles: Structural Errors, Procedural 

Default, and Ineffective Assistance, 64 Stan. L. Rev. 727, 749-

750 (2012) (allowing relief for unpreserved trial errors but 

foreclosing relief for unpreserved structural errors "would be 

absurd if the Court were to come right out and say that this is 

the rule, given the general agreement . . . that most structural 

errors are quite serious"). 

The court looks to Francis v. Henderson, 425 U.S. 536, 542 

(1976)7, and Purvis v. Crosby, 451 F.3d 734, 743 (11th Cir.), 

 

7 The court relies on Francis v. Henderson, 425 U.S. 536, 

542 (1976) (Francis), to support its statement that "[t]he 

structural nature of the underlying error does not automatically 

excuse the defendant from showing prejudice when advancing an 

unpreserved claim." In Francis, supra at 537-538, 542, the 

United States Supreme Court considered a State prisoner's 

petition for Federal habeas corpus relief based on a claim of 

error for which prejudice was presumed; the Court denied relief 

because the State court had deemed the claim waived pursuant to 

its own procedural rules. The claim did not concern the public 

trial right, but, rather, concerned racial bias in the 

composition of the grand jury. The Francis opinion does not 

discuss the possibility of ineffective assistance of counsel 

(indeed the opinion predated Strickland v. Washington, 466 U.S. 

668 [1984]), nor did it grapple with the issue that for certain 

types of error, it will be impossible for a defendant to show 
10

cert. denied sub nom. Purvis v. McDonough, 549 U.S. 1035 (2006), 

for support, but these cases rely on comity concerns in the 

context of conducting Federal habeas review of a State 

conviction.8 Concerns of comity are wholly inapplicable here.9 

 

prejudice. See Francis, supra at 552 (Brennan, J., dissenting) 

(Francis Court's imposition of requirement to show actual 

prejudice "without the slightest veneer of reasoning" shields 

the obvious); Owens v. United States, 483 F.3d 48, 64 n.14 (1st 

Cir. 2007) (explaining limited persuasive value of Francis). 

8 The court also cites Virgil v. Dretke, 446 F.3d 598 (5th 

Cir. 2006), which likewise arose in the context of Federal 

habeas review of a State conviction. I disagree with the 

court's view that the United States Court of Appeals for the 

Fifth Circuit concluded in that case that structural error is 

insufficient to warrant a presumption of prejudice in the 

context of an ineffective assistance of counsel claim. The 

circuit court determined that trial counsel rendered deficient 

performance in failing to object to the seating of two jurors 

who stated they would not be fair and impartial, and that the 

seating of such jurors sufficed to establish prejudice under the 

Strickland standard. Id. at 613-614. Having determined that 

counsel's errors resulted in prejudice, the circuit court did 

not conduct a determinative analysis as to whether prejudice may 

be presumed for a claim of ineffective assistance of counsel 

predicated on structural error. The circuit court simply 

stated, "we do not hold that a structural error alone is 

sufficient to warrant a presumption of prejudice in the 

ineffective assistance of counsel context" (emphasis added). 

Id. at 607.

9 Even where comity concerns are applicable, some circuit 

courts of the United States Court of Appeals have presumed 

prejudice on a claim of ineffective assistance of counsel 

predicated on counsel's failure to raise structural error at 

trial. See Winston v. Boatwright, 649 F.3d 618, 632 (7th Cir. 

2011), cert. denied sub nom. Winston v. Tegels, 132 S. Ct. 2101 

(2012) (prejudice presumed for ineffective assistance of counsel 

claim predicated on failure to object to structural error in 

jury selection); McGurk v. Stenberg, 163 F.3d 470, 474 (8th Cir. 

1998) (presuming prejudice for ineffective assistance claim 
11

See Commonwealth v. Sylvain, 466 Mass. 422, 433 n.16 (2013) 

("Comity refers to the [United States] Supreme Court's policy 

against excessive interference by Federal habeas courts in State 

criminal convictions that had become final," and has "little 

application to collateral review by State courts themselves"). 

Where comity concerns are inapplicable, this court, the United 

States Court of Appeals for the First Circuit, and some courts 

in other jurisdictions have not required a showing of prejudice 

to reverse a conviction on collateral review based on an 

unpreserved claim of structural error. See Owens v. United 

States, 483 F.3d 48, 64 (1st Cir. 2007); Littlejohn v. United 

States, 73 A.3d 1034, 1043 (D.C. 2013);10 Commonwealth v. 

Pinckney, supra at 342, 349. 

I agree with the analysis in Owens v. United States, supra; 

Johnson v. Sherry, 586 F.3d 439, 447 (6th Cir. 2009), cert. 

denied, 131 S. Ct. 87 (2010); and Littlejohn v. United States, 

 

predicated on failure to inform defendant of right to jury 

trial).

10 With respect to consideration of other structural errors 

where comity concerns were inapplicable, courts have presumed 

prejudice on a claim of ineffective assistance of counsel 

predicated on counsel's failure to raise such error at trial. 

See Savoy v. State, 420 Md. 232, 255-256 (2011) (prejudice 

presumed for structural error in instructions concerning 

reasonable doubt where defendant did not object at trial); State

v. Lamere, 327 Mont. 115, 125 (2005) (prejudice presumed for 

ineffective assistance claim predicated on structural error in 

jury selection).
12

73 A.3d at 1043. Each of these cases rejects the proposition 

that Strickland requires that a defendant must establish 

prejudice in order to prevail on an ineffective assistance claim 

in all but the three circumstances listed in Strickland. As the 

Court of Appeals for the District of Columbia stated in 

Littlejohn v. United States, supra at 1043:

"The Supreme Court's discussion of three instances in which 

the violation of the Sixth Amendment right to counsel is 

presumptively prejudicial —- (1) actual or constructive 

denial of counsel; (2) state interference with counsel's 

assistance; and (3) counsel operating under a conflict of 

interest, Strickland, [supra at 692] -- is not necessarily 

an exclusive list of the rare occasions when prejudice may 

be presumed. Requiring [a defendant] to prove actual 

prejudice as a result of trial counsel's waiver of his 

public trial right would be inconsistent with the [United 

States] Supreme Court's holdings that prejudice is presumed 

when the constitutional error is a structural defect, one 

that 'infect[s] the entire trial process.' Brecht v. 

Abrahamson, [507 U.S. 619, 630 (1993)]; see also Gonzalez–

Lopez, [548 U.S. at 148–149]; Sullivan [v. Louisiana, 508 

U.S. 275, 281 (1993)]; Arizona v. Fulminante, [499 U.S. at 

309-310]. If it is impossible to identify the prejudice 

resulting from a structural defect, it is likewise 

impossible to determine whether counsel's waiver of such a 

'basic protection,' like the public trial guarantee, 'had 

no effect on the judgment.' Strickland, [supra at 691]." 

(Footnote omitted.)

The court also cites with approval a concern articulated by 

another State appellate court that "counsel can harbor error as 

an appellate parachute by failing to object to the closure of 

trial, thereby depriving the trial court of the opportunity to 

correct the error at the time it occurs." People v. Vaughn, 821 
13

N.W. 2d 288, 308 (Mich. 2012). I do not accept the court's 

assumption that a defendant's trial counsel, who was aware of 

the removal of the defendant's family members from the court 

room, would engage in conduct that fails to respect the duty of 

zealous representation owed to a client. See Mass. R. Prof. 

C. 1.3 & comment 1A, 426 Mass. 1313 (1998). Cf. Littlejohn v. 

United States, supra at 1046 & n.2 (Pryor, J., dissenting), 

citing D.C. R. Prof. C. 1.3 comment 1 (2007). The court's view 

rests on the assumption that appellate counsel could establish 

that trial counsel's failure to object was not a tactical 

decision. Cf. Davis v. United States, 411 U.S. 233, 250 (1973) 

(Marshall, J., dissenting) ("a prisoner would properly be held 

to have intentionally relinquished his right to raise the 

constitutional claim if he failed to raise it for tactical 

reasons"). 

For the foregoing reasons, I would conclude that prejudice 

should be presumed where there is a claim of ineffective 

assistance of counsel predicated on counsel's failure to object 

to a court room closure, and respectfully dissent.