In the case, the Supreme Court set forth two holdings favorable to criminal defendants: (1) a defendant's sixth amendment right to a public trial extends to jury selection; (2) trial courts are required to consider alternatives to closure even when not offered by the parties.
The second holding will seem to have a big effect in NY, as both the state Court of Appeals and the Second Circuit have held thata defendant was required to propose alternatives and the court was not obligated to consider the issue sua sponte. See People v. Ramos, 90 NY2d 490 (1997); Ayala v. Speckard, 131 F3d 62 (1997).
So the case will definitely have an impact on those cases still in the direct appeal pipeline.
But what about cases that have already become final, for example, any pending habeas petitions? Here is where we find some intersection between the 2254(d) standard and Teague v. Lane (the case that sets forth the rules on retroactivity in habeasland, which I have discussed here). If Presley is a "new rule," then a petitioner cannot get any retroactive benefit of this case. That also would mean that prior to Presley the two holdings were not clearly established law under 2254(d).
On the other hand, if Presley is not a "new rule," but simply an application or an explanation of a "clearly established" principle, then it would apply to cases that have already become final.
I think a strong argument can be made that this was not a "new rule" but simply an explanation of a clearly established rule. First, this was a summary disposition. No formal briefing or oral argument was ordered. It was vacated solely based on the cert. petition. This was because the Court felt that it was such an obvious decision: "The Supreme Court of Georgia's affirmance contravened this Court's clear precedents." (My emphasis). Kind of answers the question all by itself, doesn't it?
But there's more. When discussing the Sixth Amendment issue, the Court states that the law is "well settled" that the Sixth Amendment extends to jury selection. The Court then discusses the two cases that show that the rule has already been established.
Then, when addressing the alternatives to closure issue, the Court stated that the answer was "clear" from its precedents and that the rule had been set forth in "explicit statements."
That's a lot of clarity and well-settledness. Provides much ammunition for cases that have already become final.
On the other hand, there is the dissent. In his dissent, Thomas (joined by Scalia) states that it was improper to summarily dispose of the case because these were two previously "unanswered" questions. He then explains why the prior precedent did not show that the questions were "well-settled" or "clear." He believes that these were extensions of the prior precedent.
When asking whether a decision is a "new rule," the fact that there was a dissent and the substance of the dissent are things to consider. At the same time, it was only a two-person dissent, while seven of the judges felt that this was just an explanation of a well settled principle. And that's something, too.
I'll be curious to see if this argument gets any play in the federal courts.
Final Note: It's been a long time, but I had to add a new category. I hope that fact doesn't get used against habeas petitioners when trying to show that this was not a "new rule."
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