In Commonwealth v. Dyer (October 13, 2011), the SJC held that a defendant convicted of murder had waived a claim that his right to a public trial had been violated because neither the defendant nor his counsel raised a contemporaneous objection when juror voir dire was held in the judge's chambers. Moreover, the SJC held that because the defendant had waived the claim, he was not entitled to the benefit of structural error analysis, but rather was limited to the traditional standard of review for waived claims under GL Ch. 278 Section 33E - whether the error raised a substantial likelihood of a miscarriage of justice.

Practice Note: While there is much that could (and will) be written about this perplexing decision, for the moment it is crucial that practitioners pursuing procedurally waived claims based on alleged public trial right violations attempt to establish whether trial counsel was aware of the right to a public trial, and if so, whether it applied to jury selection. If not, then counsel should make sure to raise an argument that trial counsel provided ineffective assistance in failing to object to the violation of the defendant's right to a public trial. Such an argument resulted in reversal of a federal murder conviction in Owens v. United States, 517 F.Supp.2d 570 (D. Mass. 2007), where the federal district court held that trial counsel's ignorance of the law on this point created both cause and prejudice excusing counsel's failure to raise the issue at trial and the resulting procedural default, which in turn led her to treat the violation as structural error. Indeed, it is not clear how the SJC's decision in Dyer can be squared with the federal constitutional analysis advanced in Owens unless the SJC draws a distinction between those situations where defense counsel or the defendant knew that they were waiving the defendant's right to a public trial (constitutional waiver) and those situations where they did not (procedural waiver).

Another point to consider: If the consequence of Dyer is that waived public trial claims must be presented to a federal habeas court to obtain relief, counsel should immediately consider the one year and 90 day statute of limitations under AEDPA. That is, if a practitioner has a case where the direct appeal has been decided within the last one year and 90 days and counsel is considering filing a new trial motion raising a waived public trial claim for the first time, counsel should make every effort to do so immediately so as to toll the AEDPA statute of limitations. At the very least, this will eliminate one potential defense to a federal habeas claim.