Commonwealth v. Lavoie, 464 Mass. 83

In 2003, defendant convicted of second-degree murder; conviction affirmed on an unpublished memorandum by the Massachusetts Appeals Court.
In 2007, defendant moved for a new trial arguing his public-trial right was violated when family members were excluded during jury selection and counsel did not object.
Trial court held evidentiary hearing; found jury selection in 12B was closed for two days and the exclusion violated the defendant’s Sixth Amendment rights, but defense counsel’s failure to object was a reasonable tactical decision.
Judge noted Owens v. United States suggested possible post-closure relief; would have allowed family in when questioning concluded.
Appeals Court held the public-trial right was violated and reversed, ordering a new trial; Commonwealth sought direct review.
Mass. Supreme Judicial Court held that counsel may waive the public-trial right during jury selection as a tactical decision, even without express defendant consent, and that the waiver was not ineffective assistance of counsel under the Saferian standard.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel may waive the public-trial right without defendant consent	Lavoie argues waiver requires defendant consent and explicit discussion	Commonwealth contends counsel may waive as tactical decision	Counsel may waive the right during jury selection
Whether the waiver constitutes ineffective assistance of counsel	Waiver deprived defendant of otherwise available ground of defence	Waiver was reasonable trial strategy and not ineffective	Waiver not ineffectiveness; defense strategy reasonable
Whether court-room closure during jury selection was structural error	Closure violated public-trial rights and required new trial	Closure was justified as tactical and not structural error	Not treating as structural error; outcome governed by Saferian analysis

Commonwealth v. Cohen (No. 1), 456 Mass. 94 (2010) (closure of court room; four-part Waller test; distinction when armed with objection)
Commonwealth v. Dyer, 460 Mass. 728 (2011) (right to public trial waiver principles; noncapital context)
Commonwealth v. Horton, 434 Mass. 823 (2001) (counsel’s strategic choices; waiver of public-trial right may be implied)
Owens v. United States, 483 F.3d 48 (2007) (structural-error prejudice and evidentiary hearing postdefault posture)
Commonwealth v. Williams, 379 Mass. 874 (1980) (right to public trial may be waived through defendant or defense actions)
Commonwealth v. Saferian, 366 Mass. 89 (1974) (ineffectiveness standard for unpreserved claims)