MSC Opinion: A criminal defendant can forfeit his right to a public trial by failing to object when the courtroom is closed to the public
The Sixth Amendment guarantees “the right to . . . a public trial.” In People v. Vaughn, the Michigan Supreme Court considered whether that right can be forfeited by failing to object when the courtroom is closed during jury selection. The Supreme Court held that while the denial of the right to a public trial is a constitutional error, the right can be forfeited and is subject to the Court’s four-prong plain-error review. Three justices concurred in result only, agreeing that the defendant was not entitled to a new trial under the circumstances of this case, but disagreeing with the majority’s plain-error analysis.
The case arose when, at the beginning of a criminal trial, a court officer cleared the courtroom during jury selection. The defense did not object and also conceded on appeal that the selection process resulted in a satisfactory jury. In an opinion written by Chief Justice Young and joined in full by Justices Markman, Mary Beth Kelly, and Zahra, the majority explained that even constitutional rights can be forfeited. It then applied what is often called “plain-error analysis”: when a right is forfeited, a defendant “is not entitled to relief unless he can establish (1) that the error occurred, (2) that the error was ‘plain,’ (3) that the error affected substantial rights, and (4) that the error either resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial proceedings.” While the majority agreed that the first three requirements were met (and that the error was a structural error), it concluded that the trial court’s constitutional error did not seriously affect the fairness, integrity, or public reputation of the proceedings because all parties agreed that the jury actually selected was satisfactory. The majority also stated that the presence of the people called for jury duty (the veniremembers) somewhat alleviated concerns about a closure because they remain public witnesses to the proceedings.
The majority also rejected a related claim that the defendant’s trial counsel provided ineffective assistance of counsel. Counsel’s performance was not deficient, the court reasoned, because reasonable trial counsel might conclude that potential jurors might be more forthcoming in a closed session, that there would be less outside influence, or that the selection might simply be faster. Further, even if it had been deficient, it would not have resulted in prejudice (which in this context means a reasonable probability of a different trial result) because the defendant does not claim the jury ultimately chosen was tainted in any way.
In the concurrence, Justice Cavanagh, joined by Justices Marilyn Kelly and Hathaway, argued that some structural errors may require automatic reversal because structural errors are considered to be intrinsically harmful. This case, however, provided an exception because the parties do not claim that the jury selected was tainted somehow by the voir-dire process. The concurring justices also objected to treating members of the jury selection pool as members of the public, because that will be true in every case where voir dire is improperly closed to the rest of the public, so considering them “places a heavy thumb” on the government’s side of the scale.