“Exceptional Circumstances” in Gang-Related Murder Trial Warranted Partial Courtroom Closure, High Court Says

BOSTON, Feb. 2, 2018—The threat of gang violence and witness intimidation at a 2006 murder trial represented “exceptional circumstances” warranting the judge’s partial closure of the courtroom, the Supreme Judicial Court ruled today as it affirmed the defendant’s convictions for killing one man and leaving another paralyzed until his death years later, Suffolk County District Attorney Daniel F. Conley said.

The Supreme Judicial Court today upheld ODAIR FERNANDES’ convictions for first-degree murder, armed assault with intent to murder, and multiple firearms charges. Fernandes (D.O.B. 8/16/83) was convicted for his role in the April 28, 2003, shootings that claimed the life of Jose Daveiga, 22, in Boston’s South End and left Christopher Carvalho, then 24, paralyzed until his 2007 death at Lemuel Shattuck Hospital, where he was reliant upon machinery to provide oxygen.

“Cases like this one were the reason I pushed so hard for the Witness Protection Fund that Massachusetts has today,” Conley said. “The specter of violence against victims, witnesses, and family members was almost inescapable. Intimidation is something we still confront today, but it was near its peak during this era and there’s no question that funding to protect and relocate witnesses has helped suppress it. The trial judge made the right call in excluding a limited number of spectators known to be violent, and the SJC reached the right conclusion in affirming her decision.”

In a 37-page decision, Justice Scott Kafker wrote that proceedings were “permeated with concerns about security from the outset.” As the case approached trial in 2006, Suffolk Superior Court Judge Margaret Hinkle noted on the record that people connected with the case had been shot at, grand jury transcripts had been circulated, and the courthouse where the trial was held was short on court officers. Indeed, two critical witnesses fled the area rather than testify at trial and the case against two co-defendants – who were free on bail – had to be withdrawn.

Over the defendant’s objection, Hinkle asked the parties to submit a list of friends and family members who would be permitted to enter the courtroom as spectators, with the provision that others could be added to the list with a day’s notice to “ensure that they would not pose a safety risk in the court room” and that anyone could be removed from the courtroom after “any untoward behavior.”

As the trial went forward, three people were stricken from the courtroom list because of their involvement in “a number of violent offenses;” the defendant’s associates stared down a witness and family members in the courtroom; Carvalho, who was paralyzed, declined to take part in a videotaped deposition from his hospital bed; a prosecution witness expressed fear for his life because “the police ain’t going to be there every day for me on the streets;” and the family of another surviving victim found trial preparation material from one co-defendant’s attorney in their mailbox, causing “fairly grave concern” for the trial judge.

On appeal, Fernandes argued that the judge’s limitations on courtroom entry violated his Sixth Amendment right to a public trial. The high court disagreed, concluding that “there was no such violation in these exceptional circumstances … [T]he trial judge satisfied the necessary criteria to justify a partial closure of the court room given the extreme security concerns presented by the case.”

The SJC in 2010 adopted a four-point analysis to determine whether a partial courtroom closure violates the Sixth Amendment: “First, ‘where a closure is partial, it is necessary to show a “substantial reason” rather than an “overriding interest” to justify the closing.’  Second, the closure must be ‘no broader than necessary to protect [that] interest.’ Third, the judge must consider ‘reasonable alternatives to closing the proceeding.’ Fourth, the judge must make ‘findings adequate to support the closure.’”

The court found that the record met all four criteria. “The threat of violence was significant and the judge was properly focused on the need to protect everyone present, including the defendant and court staff,” Kafker wrote. “The list was expressly designed to minimize the risk of witness intimidation and court room disruption …. [The judge] sought meaningful alternative solutions by discussing her concerns with her chief justice and the chief court officer, neither of whom could suggest a better alternative …. Based on the substantial record of pretrial discussions, the disappearance of a key witness immediately prior to the defendant’s trial, and the events that occurred during the defendant’s trial, we are satisfied that the judge’s findings adequately supported her decision to partially close the court room using an approved attendees list.”

The high court likewise rejected the defendant’s arguments that the trial evidence was insufficient to prove his guilt and that the prosecutor’s closing argument was improper.

Assistant District Attorney Cailin Campbell argues the case before the SJC. First Assistant District Attorney Patrick Haggan prosecuted the case at trial. Kara Hayes was the DA’s assigned victim-witness advocate. Fernandes is currently serving life in prison without the possibility of parole followed by an additional 18 years.




All defendants are presumed innocent until and unless proven guilty beyond a reasonable doubt.