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Michigan Supreme Court Announces Forfeited Structural Error Automatically Satisfies Third Prong of Plain Error Standard Without a Showing of Prejudice

by Douglas Ankney

The Supreme Court of Michigan announced that a forfeited structural error automatically satisfies the third prong of the plain error standard without a showing of prejudice and creates a rebuttable presumption that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.

On the second day of Donald Wayne Davis Jr.’s trial on charges related to the murder of Devante Hanson, the trial court learned that Daundria Frye — the mother of Hanson’s child — asked one of the jurors during a break in the trial if the juror worked at Hurley Hospital. In lieu of finding Frye in contempt of court, the judge stated: “I’m going to bar everyone from this courthouse except for the mother of Devante [Hanson]. The rest of you leave. Don’t you come back.” When asked to clarify the duration of the verbal order, the judge answered “[f]or the remainder of the trial, all the way into next week. The only person allowed to watch this trial is the mother of the young man who died.”

The prosecutor asked whether the “jurors who have a complaint” regarding the interaction with Frye should be examined for prejudice. The judge responded it was unnecessary, reasoning that Frye’s interaction with a juror was only “a short comment.”

The jury found Davis guilty as charged. In his appeal to the Court of Appeals, he included a motion to remand for an evidentiary hearing on several issues. The Court of Appeals granted the motion for the sole purpose of “expand[ing] the factual record regarding [the trial court’s] decision to close the trial to all members of the public except for the victim’s mother, and to allow the defendant to file a motion for a new trial based on his claim that trial counsel was ineffective for failing to object to the court’s decision.”

On remand, several witnesses testified regarding the factual circumstances of the courtroom closure. Pertinent to this appeal, Davis’ trial attorney testified that between two and ten people had been present in the gallery on the prosecution’s side of the courtroom before the closure, but none were present on the defendant’s side. The attorney acknowledged that it was never made clear to the jury that there was a “defense side” and a “prosecution side” of the courtroom. After the closure, only the victim’s mother and an employee of the prosecutor remained in the gallery.

The defense attorney explained that his decision not to object to the judge’s closure order was because none of the observers of the trial were there to support Davis. When asked whether “it was actually better to only have the victim’s mother here as opposed to having a large group of people,” the attorney replied “absolutely.”

The trial court denied Davis’ motion for a new trial, explaining: “But I did not lock the courtroom, I did not close it to the public, I just kicked out three to ten people. And I admit I poorly worded it because I said don’t come back and I probably should have said don’t come back today. That’s my error.” The trial court also found that Davis had not suffered prejudice from this “clearing of the courtroom” because “there was no evidence that defense supporters were cleared from the courtroom or later prevented from observing the trial.”

The Court of Appeals affirmed, agreeing that the courtroom had been “cleared,” not closed. The Court of Appeals also concluded Davis had waived his right to a public trial when his counsel intentionally declined to object. But even if Davis’ argument were deemed forfeited instead of waived, he was still not entitled to relief because he could not demonstrate the alleged closure seriously affected the fairness, integrity, or public reputation of judicial proceedings, the Court of Appeals stated. In lieu of granting Davis leave to appeal, the Michigan Supreme Court heard oral argument and delivered its opinion.

The Court observed that “[w]aiver is the intentional relinquishment or abandonment of a known right, and one who waives an issue cannot later seek appellate review of that issue.” People v. Carines, 597 N.W. 2d 130 (Mich. 1999). “In order to waive a known right, a party must ‘clearly express satisfaction with a trial court’s decision….” People v. Kowalski, 803 N.W. 2d 200 (Mich. 2011). “In contrast, a party merely forfeits rather than waives an issue when that party fails to timely assert a right.” Id. The Court had previously held that in the context of the right to public trial, “mere silence in the face of a courtroom closure results in forfeiture, not waiver, of the public-trial right.” People v. Vaughn, 821 N.W. 2d 288 (Mich. 2017).

In the instant case, defense counsel did not “clearly express satisfaction with the closure.” Further, counsel’s later assertion at a hearing where counsel no longer represented the defendant and where counsel was defending a claim of ineffective assistance against himself, counsel’s assertion about the motivation behind his lack of objection did not transform the lack of objection into an affirmative approval or become “express satisfaction” with the closure. Therefore, the Court concluded the issue of Davis’ denial of a public-trial right was forfeited, not waived.

“When preserved, the erroneous denial of a defendant’s public-trial right is considered a structural error.” Weaver v. Massachusetts, 137 S. Ct. 1899 (2017). “Because the harm rendered by these errors is extensive but intrinsic and difficult to quantify, preserved structural errors result in automatic relief to the defendant to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial.” Id.

However, “on a forfeited claim of constitutional error, a defendant must prove that (1) error occurred, (2) the error ‘was plain, i.e., clear or obvious,’ and (3) ‘the plain error affected substantial rights.’” Carines. Additionally, “[r]eversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity, or public reputation of judicial proceedings independent of the defendant’s innocence.” Id.

In the present case, the plain language of the trial court’s verbal order “rendered the courtroom closed to the public for a majority of the trial.” The Court concluded there was a “clear error” because the lower courts found the courtroom was “cleared, not closed.” People v. Kurylczyk, 505 N.W. 2d 528 (Mich. 1993). (“Clear error exists when the reviewing court is left with the definite and firm conviction that a mistake has been made.”)

“The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of responsibility and to the importance of their functions.” Gannett Co v. DePasquale, 443 U.S. 368 (1979). While the public-trial right is guaranteed by both the Fifth Amendment to the U.S. Constitution and article 1, § 20 of the Michigan Constitution, “circumstances may exist that warrant closure of a courtroom during any stage of a criminal proceeding.” Vaughn. “In order to justify a courtroom closure, there must be ‘an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” Id.

In the case at bar, the trial court closed the courtroom after Frye spoke with a juror. Since Davis had a constitutional right to be tried by an impartial jury, U.S. const. Amend. VI, preventing interference with the jury was an “overriding interest.” The trial court was justified in trying to safeguard that interest.

But closure of the courtroom was broader than necessary to protect that interest, according to the Court. Banning only Frye from the courtroom or having a deputy escort the jury would have sufficed. The trial court failed to consider any alternatives to the closure and failed to make any findings to support the closure. In fact, the trial court had stated that examination of the jurors was unnecessary based on Frye’s benign contact. In sum, “plain error occurred,” satisfying prongs (1) and (2) of the plain error standard, according to the Court.

With regard to prong (3), the Court observed that this analysis is similar to the “harmless error” analysis of Chapman v. California, 386 U.S. 18 (1967). But the U.S. Supreme Court ultimately determined that preserved structural errors involve “constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error” and held that the proper remedy is “automatic reversal.” Arizona v. Fulminante, 499 U.S. 279 (1991). Consequently, the Michigan Supreme Court joined the Courts of Appeals for the Third, Fourth, and Ninth Circuits in holding that “the existence of a forfeited structural error alone satisfies the third prong of the plain-error standard, and a defendant need not also show the occurrence of outcome-determinative prejudice.” (See opinion for supporting federal citations.)

Finally, the Court stated “[a] trial that has been rendered fundamentally unfair or had its framework affected by structural error is generally one whose fairness, integrity, or public reputation has been damaged.” Vaughn. However, the Court recognized there may be circumstances where this is not so, e.g., the trial court’s reason for closing a trial to the public may be error but the prosecutor can show from the record that other facts warranted the closure. Therefore, the Court held that a forfeited structural error creates a presumption that the fairness, integrity, or public reputation of judicial proceedings has been seriously affected, which can be rebutted by the prosecutor.

In the instant case, the prosecutor argued the closure, “reduced the perception that the gallery was pro-victim and against the defendant, and it made less glaring the fact that no one was there who supported the defendant.” This failed to rebut the presumption because the public-trial right, as stated earlier, does not serve only the defendant’s interest but also the public’s and the judiciary itself, the Court explained.

Accordingly, the Court reversed the judgment of the Court of Appeals and remanded to the trial court for a new trial. See: People v. Davis, 2022 Mich. LEXIS 493 (2022). 

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