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Criminal Appellate & Post-Conviction Services

Sixth Circuit Remands Michigan Habeas for Determination of Whether Counsel Improperly Denied the Defendant Right to Public Trial

The Sixth Circuit reversed a district court's denial of a writ of habeas corpus and ordered the district court to hold an evidentiary proceeding to determine whether the defendant was denied his right to a public trial and effective counsel. Johnson v Sherry, — F3d —, 2009 WL 3789995 (6th Cir Nov 13, 2009).

William Johnson was accused of second-degree murder. Two witnesses told police that he killed two men and wounded another. Two witnesses that had identified Johnson at the preliminary examination were murdered prior to trial, although no evidence was produced to show or suggest that Johnson was responsible. Another witness signed a sworn statement, but did not testify at the exam.

At trial, claiming that three witnesses were afraid to testify publicly because witnesses had been killed "under very suspicious grounds," the prosecutor asked the judge to close the courtroom for those witnesses' testimony. After some hesitation, during which the judge warned the prosecutor that he was "treading on some very dangerous ground," the request was granted after the defense counsel agreed to it.

The decision places the burden of proof on the prosecution to show there was no prejudice caused by the court's decision to close the courtroom for parts of a trial, rather than on the defendant to show that that the result would have been different without the closure. Johnson was convicted for the murders.
After his state appeals were exhausted (
People v. Johnson, No. 247227 (Mich.Ct.App. Aug.24, 2004); People v. Johnson, No. 247227 (Mich.Ct.App. Sept.30, 2004); People v. Johnson, No. 127293 (Mich. May 31, 2005)), Mr. Johnson filed a petition for writ of habeas corpus.

The State Court held that Mr. Johnson had waive his right to object to the partial closure of his trial based on his counsel’s failure to object. The Court further held that the state prosecutor had shown an “overriding interest” because three key witnesses were “justifiably” afraid to testify and two other witnesses had been killed under suspicious circumstances. (Citing Nieto v. Sullivan, 879 F.2d 743, 753 (CA 10, 1989). The Court further held that the “closure was not broader than necessary to protect these witnesses' safety, and defendant did not propose an alternative means of protecting their safety.”

On his habeas corpus, Mr. Johnson challenged the state court finding of procedural default (failure to object) in two ways. First, he argued it was a structural error which the defendant needed to personally waive. And what appears to be confused reasoning, the Sixth Circuit agreed that the error was structural while also holding that the Defendant waived the issued by failing to object:

"Johnson concedes that his attorney acquiesced to the closure, but argues that because the right to a public trial is a fundamental constitutional right and a structural guarantee, his attorney's statements were insufficient to constitute waiver. While we agree that the right to a public trial is an important structural right, it is also one that can be waived when a defendant fails to object to the closure of the courtroom, assuming the justification for closure is sufficient to overcome the public and media's First Amendment right to an open and public trial proceeding. See Freytag v. Commissioner, 501 U.S. 868, 896, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) ('[T]he Sixth Amendment right to a trial that is 'public,' provide[s] benefits to the entire society more important than many structural guarantees; but if the litigant does not assert [it] in a timely fashion, he is foreclosed.') (collecting cases); see also Peretz v. United States, 501 U.S. 923, 936-37, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991) (citing Levine v. United States, 362 U.S. 610, 619, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960)). Because Johnson failed to object to the closure, his claim is procedurally defaulted unless he can show cause and prejudice for the default. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991"

Johnson v Sherry, 2009 WL 3789995, at *4. Second, Mr. Johnson claimed that it was ineffective assistance of counsel for his counsel to not object. The Sixth Circuit remanded the matter to the U.S. District Court for further consideration on this point. The Court stated that there was some possibility that counsel new of grounds not to object which did not appear in the record.

Dissenting Judge Raymond M. Kethledge wrote:
"In defending a murder charge, it is a bad idea, I think, to leave the judge with a smoldering suspicion that your client had a role in killing two of the prosecution's key witnesses before trial. A lawyer who minimizes that danger-by consenting to, rather than fighting, closure of the courtroom during the testimony of three surviving witnesses, out of a total of 18 testifying witnesses in the case-does not thereby render constitutionally ineffective assistance of counsel. That is all the more true, in my opinion, when there is not a shred of evidence that the closure had the slightest effect on the trial's outcome." Johnson v Sherry, 2009 WL 3789995, at *7 (6th Cir Nov 13, 2009).

In her interview with Michigan Lawyer’s Weekly, Defense Attorney Elizabeth Jacobs stated that the fight is not over. While her statement is clearly true (the Attorney General’s Office has been persistently fighting every defense victory on habeas), congratulations are still in order to Ms. Jacobs for a job well done.