Reaffirming Davis: Prosecutor Bears the Burden to Rebut Serious-Effect Presumption in Forfeited Public-Trial Claims

Introduction

In People of Michigan v. Allen Michael Sherrill, the Michigan Supreme Court denied leave to appeal a published Court of Appeals decision affirming Sherrill’s convictions for involuntary manslaughter, carrying a concealed weapon, and felony-firearm. Although the Court’s order contains no majority merits analysis, Justice Bolden issued a detailed dissent arguing the Court of Appeals applied the wrong standard of review to Sherrill’s Sixth Amendment and Michigan Constitution public-trial claim. The dissent contends the appellate panel misallocated the burden under Michigan’s plain-error framework as clarified by People v. Davis (2022) for forfeited structural errors, such as unpreserved public-trial violations.

The case arises from an October 2021 jury trial conducted under pandemic-related restrictions. The courtroom was closed to in-person spectators, including at one point the defendant’s mother, with proceedings streamed live on YouTube. Sherrill did not object to the closure at trial but argued on appeal that his right to a public trial was violated. The Court of Appeals rejected that claim. Justice Bolden’s dissent maintains that the panel incorrectly required the defendant to shoulder all four prongs of Michigan’s plain-error analysis, contrary to Davis, which (1) deems the “substantial rights” prong automatically satisfied for forfeited structural errors and (2) shifts the burden to the prosecution to rebut a presumption that the error seriously affected the fairness, integrity, or public reputation of the proceedings.

Key issues:

What is the correct burden allocation under plain-error review for unpreserved public-trial claims in Michigan?
Do pandemic-related orders or livestreaming mitigate or justify courtroom closures under Waller v. Georgia and its progeny?
What are the consequences of a published Court of Appeals opinion applying the wrong standard in future cases?

Summary of the Opinion

The Michigan Supreme Court, by order dated May 16, 2025, denied Sherrill’s application for leave to appeal the Court of Appeals’ September 12, 2024 decision. The Court offered no substantive reasoning for the denial beyond concluding that review was unwarranted. Justice Bolden dissented, asserting:

The Court of Appeals committed an error of law by imposing on the defendant the full burden of plain-error review for an unpreserved public-trial claim.
Under People v. Davis (2022), a forfeited public-trial violation is a structural error, which automatically satisfies the third plain-error prong (substantial rights) and creates a rebuttable presumption satisfying the fourth prong that the prosecution must rebut.
Given this misallocation, the appellate court’s conclusion is unreliable; the Supreme Court should either grant leave or vacate and remand for proper application of Davis.
Additionally, the panel’s reliance on pandemic administrative orders—particularly Administrative Order 2020-6, rescinded months before this trial—raises questions about the completeness of the Waller analysis.

Analysis

Precedents Cited and Their Influence

People v. Davis, 509 Mich 52 (2022): This is the controlling Michigan precedent for unpreserved public-trial claims. Davis holds that when a structural error (such as unconstitutional courtroom closure) is forfeited but not waived:
- The error is reviewed for plain error, but special considerations apply.
- Structural errors, by their nature, automatically satisfy the third prong (affecting substantial rights), eliminating the need to prove outcome-determinative prejudice.
- There is a formal rebuttable presumption that the fourth prong is satisfied (that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings), thereby shifting the burden to the prosecution to rebut this presumption.
Davis was central because Sherrill’s claim was unpreserved and concerned a public-trial right—precisely the scenario Davis addresses.
People v. Vaughn, 491 Mich 642 (2012): Vaughn recognizes the public-trial right is not absolute, endorsing Waller’s framework for permissible closures: the closure must serve an overriding interest, be no broader than necessary, be supported by adequate findings, and follow consideration of reasonable alternatives. Vaughn thus supplies Michigan’s adoption of the Waller standards employed in assessing Sherrill’s trial closure.
Presley v. Georgia, 558 US 209 (2010): Presley emphasizes that trial courts must consider reasonable alternatives to closure and make on-the-record findings. It is particularly instructive on the need for case-specific justification and exploration of narrower measures. The dissent relies on Presley’s insistence on concrete, on-the-record consideration of alternatives.
Waller v. Georgia, 467 US 39 (1984): Waller is the foundational case defining the constitutional limits of courtroom closures. It provides the four-part test for closure of criminal proceedings. In Sherrill, Waller’s demands—narrow tailoring, consideration of alternatives, adequate findings—frame the legality of the trial’s pandemic-era closure.
People v. Carines, 460 Mich 750 (1999): Carines supplies Michigan’s four-prong plain-error test. Davis modifies its application for forfeited structural errors. The dissent underscores that the Court of Appeals treated Carines as if unmodified, improperly maintaining the burden on the defendant for all four prongs.
Arizona v. Fulminante, 499 US 279 (1991): Fulminante distinguishes structural from trial errors and explains why structural errors are ill-suited to traditional prejudice analysis. Davis draws from Fulminante to justify eliminating the outcome-determinative prejudice requirement for forfeited structural errors. The dissent echoes this logic.

Legal Reasoning in the Dissent

Justice Bolden’s reasoning proceeds in three main steps.

Characterization of the error and governing standard. The courtroom was closed to the public during a 2021 trial, with only YouTube livestream access provided. This implicated the Sixth Amendment right to a public trial (also protected by the Michigan Constitution). Because Sherrill did not object, the claim was forfeited, not waived, allowing plain-error review on the merits (as in Davis).
- Structural nature: Public-trial violations are structural errors, which affect the framework of the trial rather than a discrete item of evidence.
- Davis modifications: Forfeited structural errors automatically satisfy Carines prong 3 (substantial rights) and trigger a rebuttable presumption under prong 4 (serious effect on fairness/integrity/reputation), shifting the burden to the prosecution to rebut.
Misallocation of burdens by the Court of Appeals. The appellate panel recited plain-error review but required Sherrill “to prevail” only if he demonstrated all four prongs. That formulation contradicts Davis’s burden-shifting framework for forfeited structural errors. In effect, the panel placed on the defendant the burden to show substantial-rights prejudice and to establish the fourth prong, rather than recognizing the automatic satisfaction of prong 3 and the prosecution’s rebuttal burden on prong 4. According to the dissent, this error undermines confidence in the panel’s ultimate conclusion on the public-trial claim.
Questions about the Waller/Presley merits analysis. While the dissent’s principal concern is the standard of review, it also flags potential deficiencies in the panel’s merits assessment:
- The panel credited a local COVID-19 order and Administrative Order 2020-6 as grounds for closure and mitigation via YouTube streaming.
- But Waller requires case-specific, on-the-record findings, narrow tailoring, and consideration of reasonable alternatives. The dissent notes parallels to Davis, where closure was deemed overly broad, alternatives were not properly considered, and findings were inadequate.
- Moreover, AO 2020-6 had been rescinded months before the October 2021 trial, weakening reliance on that statewide directive. The dissent suggests this reliance may have eclipsed the trial court’s constitutional obligation to conduct a Waller-compliant inquiry in the specific case.
Because the panel assessed the claim under the wrong burden allocation, it is not clear that these substantive questions were properly resolved.

Impact and Implications

Although the Supreme Court denied leave, the dissent spotlights a core doctrinal point with practical consequences statewide.

Appellate practice in Michigan: Davis remains controlling for forfeited structural errors. Appellate courts must:
- Recognize that prong 3 (substantial rights) is automatically satisfied for structural errors like public-trial violations when unpreserved.
- Apply a rebuttable presumption under prong 4, placing the burden on the prosecution to show the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.
Published opinions that place the entire burden on defendants risk sowing confusion and misapplication until corrected.
Pandemic-era closures and beyond: Livestreaming may increase access, but it does not automatically satisfy Waller. Trial courts must still:
- Identify an overriding interest and explain why it is likely to be prejudiced by open proceedings.
- Tailor any closure no more broadly than necessary (e.g., limited audience seating, masking, distancing, staggered attendance).
- Consider reasonable alternatives on the record.
- Make adequate, case-specific findings supporting the closure.
Reliance on rescinded or generalized administrative orders is not a substitute for Waller-compliant, case-specific analysis.
Trial court practice and records: Judges should create a detailed record justifying any closure, including exploration of alternatives and reasons for rejecting them. Statements like “No spectators” without more are vulnerable to appellate scrutiny under Waller and Presley.
Remedial stakes: Because public-trial violations are structural, a valid finding of such an error on a preserved record generally mandates reversal without a prejudice showing. For forfeited claims, Davis’s presumption under prong 4 places a heavy burden on the prosecution to avert reversal.

Complex Concepts Simplified

Public-trial right: The Sixth Amendment (and Michigan Constitution) generally guarantees that criminal trials are open to the public. This protects the fairness and integrity of the process and promotes accountability. Closures are permitted only under strict conditions.
Waller test for closure: Before closing a courtroom, a judge must (1) identify an overriding interest that is likely to be harmed if the courtroom remains open, (2) ensure the closure is no broader than necessary, (3) consider reasonable alternatives to closure, and (4) make adequate findings on the record to support the closure.
Presley’s emphasis on alternatives: Courts must actually consider and discuss narrower measures (e.g., reserving seats, seating adjustments) instead of defaulting to complete closures.
Structural versus trial errors: Structural errors affect the very framework of the trial (e.g., denial of public trial), while trial errors are mistakes occurring during the presentation of the case (e.g., admitting a hearsay statement). Structural errors typically require different, often stricter, remedial rules.
Preserved vs. forfeited vs. waived: Preserved means the party objected at the right time; forfeited means the party failed to object (but did not intentionally relinquish the right); waived is an intentional relinquishment. Forfeiture allows plain-error review; waiver generally forecloses review.
Plain-error review (Carines): A four-pronged test asks: (1) Was there an error? (2) Was it plain (clear/obvious)? (3) Did it affect substantial rights (usually meaning it affected the outcome)? (4) Did it seriously affect the fairness, integrity, or public reputation of judicial proceedings (or result in conviction of an actually innocent person)?
Davis’s modification for forfeited structural errors: For structural errors raised for the first time on appeal: (a) Prong 3 is automatically satisfied; the defendant need not show outcome-determinative prejudice; and (b) there is a rebuttable presumption that prong 4 is satisfied, shifting the burden to the prosecution to defeat that presumption.

Conclusion

The Supreme Court’s order in People v. Sherrill leaves the Court of Appeals’ judgment intact. Yet Justice Bolden’s dissent forcefully underscores that Michigan law, as set out in People v. Davis, governs forfeited public-trial claims with a distinct burden-shifting framework: the third plain-error prong is automatically met for structural errors, and the prosecution bears the burden to rebut a presumption that the error seriously undermined the fairness and integrity of the proceedings.

Beyond the burden-allocation issue, the dissent questions the sufficiency of the trial court’s Waller compliance and the Court of Appeals’ reliance on rescinded pandemic administrative orders and livestreaming as surrogate justifications for closure. The dissent highlights a risk of doctrinal confusion if published decisions persist in applying the wrong plain-error framework to structural errors. The prudent path—either granting leave or vacating and remanding for proper application of Davis—would have clarified the law’s application to pandemic-era closures and future public-trial claims. For now, Davis remains the compass for Michigan courts: case-specific findings, narrow tailoring, consideration of alternatives, and the prosecution’s rebuttal burden when structural errors are forfeited.

Practical Takeaways

Defense counsel: Even if no objection was made, public-trial claims remain viable on appeal under Davis; focus briefing on the structural nature of the error and the prosecution’s burden on prong 4.
Prosecutors: Be prepared to affirmatively rebut the serious-effect presumption by pointing to a robust Waller record and concrete facts showing minimal impact on the fairness and integrity of the proceedings.
Trial judges: Make detailed, case-specific Waller findings on the record; explore alternatives to closure; document why any alternatives were insufficient; avoid blanket “no spectators” directives without justification.
Appellate courts: When reviewing unpreserved public-trial claims, apply Davis’s burden-shifting framework in full; do not require defendants to prove all four Carines prongs.