Commonwealth v. Lang, 473 Mass. 1

Background

In 2006 Francis Lang was convicted of first‑degree murder (extreme atrocity or cruelty) for stabbing a bar patron; conviction affirmed after trial and posttrial proceedings.
During jury empanelment the defendant’s family was asked to leave because seats were reserved for prospective jurors; no contemporaneous objection by trial counsel.
Trial counsel pursued a self‑defense theory; he did not investigate the defendant’s psychiatric history or consult a mental‑health expert, although predecessor counsel had sought screening funds and the defendant disclosed a psychiatric history.
Postconviction, the defendant moved for a new trial alleging (1) violation of the public‑trial right during jury selection and (2) ineffective assistance for failing to investigate/present a lack‑of‑criminal‑responsibility defense; both claims were litigated in evidentiary hearings and denied.
Two separate concurring opinions explained the Court’s unanimous affirmance: all Justices reject the public‑trial and jury‑instruction challenges; Justices Hines and Duffly find no prejudice from counsel’s failure to investigate (strategy not manifestly unreasonable); Justices Lenk, Gants, and Cordy find no prejudice because defendant would not have agreed to an insanity defense and the defense likely would not have changed the outcome.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Public‑trial closure during jury empanelment	Courtroom was effectively closed when family was excluded; violated Sixth Amendment right to public trial	Exclusion was routine, de minimis, and waived by experienced trial counsel’s failure to object	Waiver/no constitutional error; exclusion was trivial and counsel’s failure to object amounted to waiver under controlling precedent
Jury instruction on malice (extreme atrocity/cruelty)	Third‑prong malice is indistinguishable from involuntary manslaughter mens rea; should be abrogated	Existing three‑prong common‑law definition is correct and distinct	Instruction upheld; three prongs valid and third prong requires higher risk (plain and strong likelihood of death) than involuntary manslaughter
Ineffective assistance — failure to investigate psychiatric history	Counsel failed to investigate known psychiatric history, triggering duty to screen for lack of criminal responsibility	Counsel reasonably prioritized self‑defense as viable strategy and lawfully declined an insanity defense as tactical choice	No relief: court finds counsel’s failure to investigate problematic but, on these facts, strategic choice to pursue self‑defense was not manifestly unreasonable (Hines/Duffly); alternative concurrence relies on lack of evidence defendant would have chosen insanity defense and lack of prejudice (Lenk/Gants/Cordy)
Prejudice / §33E review (whether error likely changed outcome)	Failure to investigate/present insanity defense likely affected verdict	Evidence against defendant strong; self‑defense was viable; defendant would not have chosen insanity defense	No substantial likelihood of miscarriage of justice; §33E review affirms conviction and denial of new trial

Key Cases Cited

Waller v. Georgia, 467 U.S. 39 (1984) (four‑part test for closure of proceedings)
Commonwealth v. Morganti, 467 Mass. 96 (2014) (public‑trial right includes jury selection; waiver implications)
Commonwealth v. Alebord, 467 Mass. 106 (2014) (waiver of public‑trial right by counsel who does not object to routine empanelment exclusions)
Commonwealth v. Riley, 467 Mass. 799 (2014) (definition and prongs of malice for extreme atrocity/cruelty)
Commonwealth v. Saferian, 366 Mass. 89 (1974) (standard for assessing counsel performance and prejudice)
Strickland v. Washington, 466 U.S. 668 (1984) (effective assistance framework; reasonableness and prejudice)
Commonwealth v. Wright, 411 Mass. 678 (1992) (§33E standard for reviewing ineffective‑assistance claims in first‑degree murder convictions)
Commonwealth v. Federici, 427 Mass. 740 (1998) (defendant’s right to forgo insanity instruction)