Former police officer granted new criminal trial because public was excluded from jury selection

BOSTON – The Supreme Judicial Court of Massachusetts recently granted a new trial to a former police officer convicted of extortion and witness intimidation because the trial court violated his constitutional rights by barring the public from jury empanelment. The ruling has opened the door for other verdict challenges.

The court’s unanimous Feb. 17 decision in Commonwealth v. Cohen, which followed a hearing attended by six of the court’s seven justices, ruled that the jury selection “contravened the defendant’s right to a public trial protected by the Sixth Amendment to the United States Constitution.”

The court also ruled that there is sufficient evidence to retry David Cohen, a former Stoughton, Mass., police sergeant, on all the charges and there there was no error in the jury instruction.

The court withdrew a Jan. 7 decision with the same holding and issued its Feb. 17 opinion citing a Jan. 19 U.S. Supreme Court case, Presley v. Georgia. The Presley decision reversed and remanded a decision by the Supreme Court of Georgia that “rejected [Eric] Presley’s argument that the trial court was required to consider alternatives to closing the courtroom.” The per curiam opinion of the Court stated, “Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials.”

The case came to the Supreme Judicial Court on direct appellate review. According to the decision authored by Associate Justice Margot Botsford, Cohen’s defense lawyer noticed a “Jury empanelment: Do not enter” sign on the courtroom door on the fourth day of the jury empanelment in Norfolk County Superior Court in June 2007. The lawyer then learned that the sign had been posted since the first day and people were denied entry into the courtroom.

The trial judge denied the trial lawyer’s motions for a mistrial and rebuffed his two additional attempts to raise the issue by bringing up examples of specific people who were denied entry. At the lawyer’s motion for a new trial, two newspaper reporters testified that they were excluded from the jury empanelment.

Botsford’s ruling rejected the trial court’s reasoning that the court was technically open for three reasons: because the judge didn’t order it closed; because the judge had made arrangements for the defendant’s family and the press to attend; and because some members of the public ignored the sign.

“Closure by policy runs counter to the requirement that a court make a case-specific determination before a closure of any part of a criminal proceeding constitutionally may occur,” Botsford wrote. “Here, the ‘Do Not Enter’ sign had a preemptive and preventive effect.”

Cohen’s lawyer for the Supreme Judicial Court case, Wendy Sibbison, a Greenfield, Mass., appellate law specialist, said the case is important because it’s the first time the state’s highest court “has clearly laid out its view of federal law on the Sixth Amendment right to public trial in the context of jury selection.”

“That’s important not only because the right itself is important, but also because it’s my information that this practice of excluding the public from jury selection is fairly widespread in Massachusetts,” Sibbison said.

The case, and others like it, “stands for the proposition that the presence of the public, the watchful eye of the public, alters what happens in the courtroom,” Sibbison said. “It was the belief of the framers of the Sixth Amendment that having the public present went a long way towards improving the quality of justice that went on in the courtroom,” she said. “This is a democracy. We don’t have secret trials.”

Sibbison also said there may be a number of convictions that are subject to retrial because of the ruling.

George Jabour, a Dedham, Mass., solo practitioner who represented the state as a special assistant district attorney, said he knows of other cases with pending retrial motions based on the Supreme Judicial Court testimony of the court officers and other witnesses from the Cohen case.

“It did open what I characterize as the floodgates,” Jabour said.

Jabour also said he doesn’t believe there was a Sixth Amendment violation in this case, based on the facts. The excluded reporters, for example, didn’t identify themselves as members of the press, and “nobody knew about it until months after the conviction and sentencing,” he said.

Jabour said that he plans to file a petition for writ of certiorari with the U.S. Supreme Court. He noted a Dec. 31, 2009, District of Massachusetts joint order in Bucci v. U.S. and Jordan v. U.S. In that order, District Judge William Young denied habeas corpus petitions filed by Anthony Bucci and David Jordan to vacate their sentences in part because the trial judge closed the courtroom to most of the public during jury empanelment. Bucci and Jordan were convicted for cocaine-related and firearms offenses. Jordan, who was a police officer at the time, was also convicted for witness tampering.

Young ruled that the trial judge’s decision to clear the courtroom of most spectators was valid because there were space limitations. Young also noted that three of the defendants’ family members were allowed to remain after a person they hired to take notes for them during the trial objected. He wrote: “This court holds that in light of the public presence during jury selection and the trial judge’s power to place reasonable time, place, and manner limits on trial access, the fact that other spectators were not allowed to fill the seats of the excused jurors throughout the morning does not violate Bucci’s constitutional right to a public trial.”

Sheri Qualters can be contacted at [email protected].