Petition for Writ of Certiorari — Fernando Cabral-Varela, Petitioner v. Massachusetts

Supreme Court briefSep 3, 2019

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In the Supreme Court of the United States

_____________

FERNANDO CABRAL-VARELA,

Petitioner,

COMMONWEALTH OF MASSACHUSETTS

Respondent,

______________

On Petition for a Writ of Certiorari to the

Massachusetts Supreme Judicial Court

_____________

PETITION FOR A WRIT OF CERTIORARI

Justin Drechsler

Counsel of Record

P.O. Box 1390

Montpelier, VT 05601

617-210-7955

jdlawboston@gmail.com

Attorney for Petitioner

QUESTION PRESENTED

The trial judge barred the Petitioner’s nephew from the

courtroom for the final three days of trial due to

concerns of witness intimidation. The question is:

Where there was no risk of witness intimidation for

most, if not all, of the Commonwealth’s witnesses for

the final three days, did the judge deprive the

Petitioner of his right to a public trial under the Sixth

Amendment to the U.S. Constitution?

LIST OF PARTIES

The parties below are listed in the caption.

iii

TABLE OF CONTENTS

Page

Question Presented...........................................................i

List of Parties...................................................................ii

Table of Contents............................................................iii

Table of Authorities .........................................................v

Opinions Below ................................................................1

Statement of Jurisdiction ................................................2

Constitutional Provisions Involved ................................3

Statement of Case ............................................................4

The Courtroom Closure ........................................4

II. Prior Proceedings ..................................................6

Reasons for Granting the Petition ..................................8

This Court’s lack of jurisprudence on the

Waller standard for public trial closures

under the 6th Amendment has resulted

in inconsistent application of that

standard across Circuits .......................................8

II. This issue is important, involving a

constitutional right that triggers the rare

structural error standard, and is likely

to re-occur in similar contexts to the

facts of this case...................................................11

III. The straightforward facts and clean

presentation of this case make it an ideal

vehicle for providing much-needed guidance

from this Court ....................................................12

Conclusion ......................................................................14

APPENDIX A – Opinion of the Massachusetts

Appeals Court Affirming Petitioner’s Convictions

(March 7, 2019) ..............................................................1a

APPENDIX B – Opinion of the Massachusetts

Supreme Judicial Court Denying Further Appellate

Review (June 6, 2019) ..................................................14a

TABLE OF AUTHORITIES

Cases:

Commonwealth v. Cabral-Varela,

482 Mass. 1103, 2019 Mass. LEXIS 312

(Mass. 2019)....................................................................1, 7

Commonwealth v. Cabral-Varela,

95 Mass. App. Ct. 1102, 2019 Mass. App. Unpub.

LEXIS 168 (Mass. 2019).......................................1, 6-7, 14

Commonwealth v. Maldonado,

466 Mass. 742 (2014).........................................................4

Driggins v. Lazarus,

U.S. Dist. Ct. No. 1:14CV919

(N.D. Ohio Sept. 28, 2015)..............................................14

Guzman v. Scully,

80 F.3d. 772 (2nd Cir. 1996)........................................9-10

In re Oliver,

333 U.S. 257 (1948).........................................................11

Martin v. Bissonette,

118 F.3d 871 (1st Cir. 1997).......................................9, 14

Presley v. Georgia,

558 U.S. 209 (2010) ..........................................................8

Tucker v. Superintendent Graterford Sci,

677 Fed.Appx. 768 (3rd Cir. 2017) ................................13

United States v. Addison,

708 F.3d. 1181 (10th Cir. 2013).................................10, 14

United States v. Davila,

569 U.S. 597 (2013).........................................................11

Waller v. Georgia,

467 U.S. 39 (1984).......................................................8, 11

Woods v. Kuhlmann,

977 F.2d 74 (2nd Cir. 1992) .............................................9

Statutes and Other Authorities:

28 U.S.C. §1257(a) ...........................................................2

Sixth Amendment to the U.S. Constitution ...................3

OPINIONS BELOW

The decision of the Massachusetts Appeals Court

affirming the Petitioner’s conviction on direct appeal

appears at Appendix A and is unpublished.

Commonwealth v. Cabral-Varela, 95 Mass. App. Ct.

1102, 2019 Mass. App. Unpub. LEXIS 168 (Mass.

2019). The decision of the Massachusetts Supreme

Judicial Court denying further appellate review

appears at Appendix B. Commonwealth v. CabralVarela, 482 Mass. 1103, 2019 Mass. LEXIS 312 (Mass.

2019).

STATEMENT OF JURISDICTION

The date of the opinion and judgment of the Supreme

Judicial Court of Massachusetts for which review is

sought is June 6, 2019. This petition is filed within

ninety days of that date. The jurisdiction of this Court

is invoked under 28 U.S.C. §1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States

Constitution provides, in relevant part:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury

of the State and district wherein the crime shall have

been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be confronted

with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defense.

STATEMENT OF THE CASE

The Courtroom Closure

On August 13, 2015, Robert Sparks, Jr. was shot

several times on Norton Street in Boston. He survived.

The Petitioner, Fernando Cabral-Varela, was arrested

and charged with several crimes in connection with

that shooting, and was tried over the course of six days

in December of 2016.

Prior to trial, the Commonwealth anticipated

presenting several civilian percipient witnesses and

was concerned with intimidation risks associated with

those witnesses. Accordingly, the prosecution filed two

motions in limine for additional security at trial. In

granting those motions, the judge implemented a signin procedure for any courtroom spectators consistent

with the Massachusetts Supreme Judicial Court’s

opinion in Commonwealth v. Maldonado, 466 Mass.

742 (2014).

Before the start of the fourth day of trial, the

Commonwealth informed the judge that at the

conclusion of a civilian witness’s testimony the day

prior, several police officers allegedly heard the

Petitioner’s nephew, Wilson Mendes, say words to the

effect of “he’s a rat, he’s ratting” as he walked with a

group of individuals in the hallway outside the

courtroom. The civilian witness, who left the courtroom

by a separate exit, was not present during those

statements and was not alleged to have heard them.

The witness also allegedly complained that, later

that night, a group of people had gathered on the steps

of the building next door to him and were staring at his

home, which he described as atypical. Based on those

allegations, the prosecutor asked that Mr. Mendes be

barred from attending the remainder of the trial. The

Petitioner’s counsel objected to the exclusion of Mendes

from the courtroom.

The trial judge granted the Commonwealth’s

request:

Based on that conduct and based on all of the

circumstances surrounding the trial of this case

and witnesses' expressions of fear leading up to

their testimony in this case, I'm, in the exercise

of my discretion, barring Wilson Mendes from

participating or being present in the courtroom

during the remainder of this trial.

Officers, if a Wilson Mendes appears to sign in,

please inform him that he is not permitted

entrance and should leave the eighth floor of the

courthouse.

He wrote and signed a short note to this same effect:

“Court bans Wilson Mendes from attending this trial

proceeding.”

At the time Mendes was barred from the

courtroom, the Commonwealth had presented four

witnesses and anticipated presenting several more. In

the end, the Commonwealth presented six additional

witnesses. They were, in order: 1) Erica Moody, civilian

percipient witness; 2) Alexia Miranda, civilian

percipient witness; 3) Dr. Tracey Dechert, trauma

surgeon at Boston Medical Center; 4) Detective Tyrone

Camper of the Boston Police Department; 5) John

Green, chief of Forensic A/V Image Analysis Unit at

Suffolk County DA’s Office; and 6) Detective Kevin

Doogan of the Boston Police Department. Mendes was

barred from the courtroom for all of those witnesses, in

addition to closing arguments and jury instructions.

II.

Prior Proceedings

At the close of trial, the Petitioner was convicted

of all counts and sentenced to a lengthy term in state

prison. He appealed to the Massachusetts Appeals

Court, where he argued that his 6th Amendment right

to a public trial was violated where the courtroom

closure was broader than necessary to protect the

interest served by that closure. The court denied relief

in an unpublished opinion, writing, among other

things, that “Mendes's public comments evinced a

substantial enough risk of intimidation with respect to

the nonpercipient witnesses, counsel, and the jury to

justify Mendes's exclusion for the rest of the trial[,]”

and that “the trial judge evidently concluded that

Mendes's outburst outside the court room created a

substantial risk to the orderliness of the proceedings,

and we see no error in this conclusion.” Commonwealth

v. Cabral-Varela, 95 Mass. App. Ct. 1102, 2019 Mass.

App. Unpub. LEXIS 168 (Mass. 2019) (Appendix A).

The Petitioner sought further appellate review

with the Massachusetts Supreme Judicial Court on his

public trial claim. The Supreme Judicial Court denied

further appellate review in a one sentence opinion on

June 6, 2019. Commonwealth v. Cabral-Varela, 482

Mass. 1103, 2019 Mass. LEXIS 312 (Mass. 2019)

(Appendix B).

REASONS FOR GRANTING THE PETITION

This Court’s lack of jurisprudence on the Waller

standard for public trial closures under the 6th

Amendment has resulted in inconsistent

application of that standard across Circuits.

Thirty five years ago, this Court articulated the

standard by which courtroom closures would be

analyzed under the Sixth Amendment right to a public

trial: (1) The party seeking to close the hearing must

advance an overriding interest that is likely to be

prejudiced, (2) the closure must be no broader than

necessary to protect that interest, (3) the trial court

must consider reasonable alternatives to closing the

proceeding, and (4) it must make findings adequate to

support the closure. See Waller v. Georgia, 467 U.S. 39,

47-48 (1984).

Since then, this Court has offered little guidance

as to the contours of that standard. Indeed, aside from

Presley v. Georgia, 558 U.S. 209, 215 (2010), which

provided insight into what qualifies as an overriding

interest, albeit in dicta, this Court’s jurisprudence on

the Waller standard is bare. And while it is true that

courts are always tasked with applying broad

standards of law and often don’t have precedents

directly on point, rarely do they operate without any

guideposts at all.

In courtroom closure cases, particularly with

reference to the “no broader than necessary” prong, the

lack of any precedent from the Supreme Court has

created a situation where that standard has been

inconsistently applied across jurisdictions. Nowhere is

this clearer than in the jurisprudence surrounding

closures for witness intimidation.

At least the 1st and 2nd Circuit Courts of Appeals

have framed the “no broader than necessary” standard

in very narrow terms, and have looked favorably upon

short, witness-specific closures. In Martin v.

Bissonette, 118 F.3d 871, 875 (1st Cir. 1997), the trial

judge closed the courtroom for the testimony of a single

witness where there was evidence that the witness was

being intimidated. The defendant objected that the

closure swept too broadly because his mother, who was

not alleged to have engaged in intimidation, was

excluded. Id. The 1st Circuit rejected the defendant’s

argument and cited the brevity and specificity of the

closure: “The trial court's closure order was neither

broader nor longer than was reasonably necessary to

end this widespread reign of harassment and secure

the witness's accurate testimony.” Id.

Similarly, in Woods v. Kuhlmann, 977 F.2d 74,

77 (2nd Cir. 1992), the 2nd Circuit acknowledged the

significance of narrowly tailored closures. Where the

defendant’s family was excluded from the testimony of

just a single witness, the court wrote “the closure order

was no broader than was necessary to enable [the

witness] to testify....” Id. See also Guzman v. Scully, 80

F.3d. 772, 775-76 (2nd Cir. 1996) (holding that risk of

intimidation must be specific to the particular witness

in order for closure for that witness’s testimony to be

justified).

On the other hand, the 10th Circuit has adopted

a much broader interpretation. In United States v.

Addison, 708 F.3d. 1181, 1185-86 (10th Cir. 2013),

during the trial of three co-defendants, the judge

declared a mistrial for one of them mid-trial. That codefendant then asked to remain in the courtroom for

the remainder of the trial. Addison, 708 F.3d. 1181 at

1185-26. The judge refused her request, citing several

reasons, including the risk of witness intimidation. Id.

at 1186.

The 10th Circuit affirmed. While acknowledging

the witness-specific approaches of other Circuits, the

court upheld the exclusion for the entire trial merely

because more than one witness had complained of

being intimidated: “While the closure in these cases

was limited to the duration of the witness’s testimony,

it was proper in this case for the court to exclude St.

Clair from the entire trial because more than one

witness complained of intimidation.” Id. at 1188.

These two approaches are irreconcilable. One

involves the careful parsing of intimidation concerns as

they relate to specific individuals before banning a

spectator, and the other approves of a blanket ban of an

individual – even for portions of the trial where no

witnesses will be testifying – who has been accused of

intimidating more than one witness. This inconsistency

evinces a fundamental disagreement amongst Circuits

about the meaning of the “no broader than necessary”

language that begs to be resolved by this Court.

II.

This issue is important, involving a

constitutional right that triggers the rare

structural error standard, and is likely to reoccur in similar contexts to the facts of this case.

The 6th amendment right to a public trial is the

most sacred in our criminal justice system. It is this

trial right that ensures the guarantee of all others:

“The knowledge that every criminal trial is subject to

contemporaneous review in the forum of public opinion

is an effective restraint on possible abuse of judicial

power.” In re Oliver, 333 U.S. 257, 270 (1948).

Encumbrances of that right should be “rare...and the

balance of interests must be struck with special care.”

Waller, 47 U.S. at 45.

So critical is the public trial right that

infringements are considered structural errors.

Structural errors are a “highly exceptional category” of

constitutional violations that “undermine the fairness

of a criminal proceeding as a whole.” United States v.

Davila, 569 U.S. 597, 611 (2013). Accordingly,

courtroom closures are of crucial importance in every

case in which they arise.

And such closures regularly occur in contexts

similar to the facts of this case. Indeed, a simple

Westlaw search reveals well over 100 published cases

from various jurisdictions dealing with courtroom

closures related to witness intimidation. The courts are

constantly navigating the delicate balance between a

defendant’s right to a public trial and the prosecution’s

right to present its witnesses without disruption, and

this Court would serve them well by providing clear

direction about where that balance is struck.

III.

The straightforward facts and clean presentation

of this case make it an ideal vehicle for providing

much-needed guidance from this Court.

This case presents a perfect opportunity for the

Court to resolve the aforementioned inconsistency

amongst Circuits and provide direction for future

courts in cases involving witness intimidation.

To start, the record is clear. Witness

intimidation concerns were at the forefront of this case,

and the prosecution thoroughly documented the nature

and extent of that intimidation for the judge. This issue

was litigated pretrial and during trial, the transcript

contains multiple lengthy discussions between counsel

and the court, and the judge clearly articulated his

reasoning on the record when he banned Mendes.

Likewise, there was no ambiguity regarding the

breadth of Mendes’s ban, and no party has disputed

that he was banned for the entirety of the final three

days of trial.

Second, the sequence of the Commonwealth’s

trial witnesses simplifies this Court’s analysis of the

public trial claim. At trial, there was a clean break

between civilian percipient witnesses to the crime, who

were at risk being intimidated, and non-percipient

witnesses, who were not. None of the Commonwealth’s

final four trial witnesses were flagged as being at risk

for intimidation, yet the Petitioner’s nephew was

barred from their testimony anyway.

Were that not the case, and had testifying

civilians been interspersed with testifying police

officers, the logistical difficulties faced by the trial

judge would have complicated his decision. Would

Mendes be permitted to enter and leave the

courtroom/courthouse depending on the witness? Who

would be tasked with keeping Mendes informed of

when he was permitted back inside? How would the

judge prevent intimidation of witnesses in the hallway

who were waiting to testify? All of these concerns and

others vanished where there was a well-defined point

in the trial where the testimony from civilian

percipient witnesses was complete. Cf. Tucker v.

Superintendent Graterford Sci, 677 Fed.Appx. 768,

777-778 (3rd Cir. 2017) (approving complete closure of

courtroom where it was impossible to know who was in

the gallery because multiple individuals had provided

false identities).

Third, this case presents a well-defined contrast

between the interpretations of different courts, and

gives this Court an opportunity to provide clear

guidance for future cases. Here, the Massachusetts

Appeals Court eschewed precedent from its own

jurisdiction, Martin, supra, in favor of the 10th Circuit’s

expansive interpretation of the “no broader than

necessary” standard in Addison, supra .1 See CabralVarela, 95 Mass. App. Ct. 1102, 2019 Mass. App.

Unpub. LEXIS 168, at *6-7. Had the court adopted the

witness-specific approach espoused by at least the 1st

and 2nd Circuits, this case would have been decided

differently, given the complete dearth of evidence

regarding intimidation of the final four trial witnesses.

Because of the clarity with which this question

comes before the Court, by granting the petition, this

Court can, in one swoop, effectively opine on the correct

interpretation of the “no broader than necessary”

standard while still issuing a narrow opinion limited to

the facts of this case.

CONCLUSION

For all of the reasons stated above, the

Petitioner respectfully requests that his petition be

granted.

[SIGNATURE ON FOLLOWING PAGE]

1 The court also cited favorably a magistrate-judge’s analysis in

Driggins v. Lazarus, U.S. Dist. Ct., No. 1:14CV919 (N.D. Ohio

Sept. 28, 2015).

Respectfully submitted,

/s/ Justin Drechsler

______________________