This is an interesting case (Commonwealth v. Cohen) in which the Supreme Court of Massachusetts granted the defendant a new trial because someone mistakenly placed a "Do Not Enter" sign on the courtroom door during jury empanellment. The sign deterred some, but not all, members of the general public and friends of the defendant from entering the courtroom during voir dire. As a result, the Massachusetts' Supreme Court determined that:
The defendant has thus established that the jury selection procedures used in this case violated his Sixth Amendment right to a public trial; he has also shown that he did not waive this right. Given the structural nature of this error, we do not inquire as to whether it prejudiced the defendant. See Commonwealth v. Marshall, 356 Mass. at 435. We turn, instead, to remedy. The relief for a breach of the public trial right "should be appropriate to the violation." Waller, 467 U.S. at 50. In Waller, where a judge improperly closed a suppression hearing, the Supreme Court ordered a new suppression hearing, reasoning that if that hearing led to the suppression of the same evidence, a new trial would not be necessary; it would be, rather, "a windfall for the defendant, and not in the public interest." Id. Here, however, we cannot separately order a new jury selection apart from a new trial, and releasing the transcripts of empanelment, as has been suggested, will not appropriately remedy the violation. Cf. Press-Enterprise, 464 U.S. at 513 (where judge closed court room for six weeks of juror voir dire in violation of First Amendment right of plaintiff newspaper, plaintiff entitled to transcript of voir dire proceedings as remedy). The defendant is entitled to a new trial.
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