Issues
Can a claim of ineffective assistance of counsel resulting in a structural error in the lower court be reviewed using the harmless error standard, or should prejudice be presumed?
This case will address the burden on the defendant who is asserting an ineffective assistance of counsel claim upon appeal. Kentel Myrone Weaver argues that proving that his counsel failed to object to a courtroom closure during the jury selection proceedings with no strategic considerations should merit a dismissal of the underlying conviction. The state of Massachusetts maintains that this was a harmless error and therefore the conviction should stand. The Supreme Court’s decision will have implications for the scope of protections for the right to effective assistance of counsel.
Questions as Framed for the Court by the Parties
Whether a defendant who demonstrates that his lawyer’s deficient performance resulted in structural error must show actual prejudice to obtain a new trial under Strickland v. Washington, 466 U.S. 668 (1984).
Facts
In 2006, sixteen-year-old Kentel Myrone Weaver was convicted of the first-degree murder of fifteen-year-old Germaine Rucker and sentenced to life imprisonment. Eyewitness accounts described a young man wearing a distinctive Detroit Tigers baseball cap fleeing the scene of the crime with a pistol matching the description of a revolver. The ballistics analysis of the victim’s wounds was consistent with wounds inflicted by a revolver. Police detectives immediately recognized the baseball cap, which was recovered near the crime scene, as belonging to Weaver and went to Weaver’s home to question him. Subsequent testing revealed that the cap had traces of Weaver’s DNA on the hatband.
After the detectives left, his mother began to question him because she was concerned that Weaver’s “soul was in jeopardy.” Weaver confessed to his mother after hours of questioning and prayer. Weaver’s mother insisted that he confess to the police in order to atone for his sin. Weaver, his mother, and others from their church went to the police station, where Weaver confessed to waiting detectives.
During the two days of voir dire proceedings for Weaver’s case, the bailiff told Weaver’s mother and his minister that the court room was “closed for jury selection.” The Judge had not ordered a closed hearing, but the courtroom was at its maximum occupancy with ninety potential jurors, and the bailiff had been instructed to not let more people in. Weaver’s mother told his lawyer that she had not been allowed into the courtroom at the end of the first day. Weaver’s counsel did not object to this because he was not aware that the public had a right to be present during the voir dire proceedings as a matter of the constitutional guarantee to a public trial. On the second day, the prosecutor mentioned to the judge that the defendant’s mother was forced to share a bench with a trial witness’ boyfriend as they waited outside the courtroom in the hallway. Upon hearing this, Weaver’s lawyer joked that he could tell the boyfriend to “pick another floor.”
In 2011, Weaver appealed his conviction, arguing that his confession had been involuntary and that his counsel had failed to provide effective assistance. The Massachusetts Supreme Judicial Court affirmed Weaver’s convictions. Among other grounds, the court reasoned that his ineffective assistance of counsel claim did not merit reopening his case because he failed to show prejudice arising from the structural error in the courtroom closure.
Analysis
RELIABILITY OF THE PROCEEDINGS
Weaver argues that the denial of the right to a public trial by excluding interested parties from the courtroom during voir dire is a structural error. Weaver asserts that there is an important distinction between trial errors and structural errors because structural errors jeopardize the reliability of the entire trial and, as opposed to trial errors, are not easily assessed or remedied. Weaver emphasizes the importance of public trials for reliability of court proceedings by pointing to the Framers’ intent to avoid secret trials. Weaver further highlights the necessity for public trials by contending that public trials deter perjury, bolster society’s confidence in the judicial system, and impart a sense of responsibility and duty to the witnesses and participants in the trial. Additionally, Weaver argues that the structural error of denying a public trial is difficult to assess or correct because such a pervasive error requires a court to create counterfactual scenarios and speculate about the error’s effect on the ultimate outcome of the trial without sufficient evidence. Weaver contends that in order to avoid this speculative remedial approach, courts should not apply the harmless error test and should instead presume prejudice to the defendant when a structural error occurs.
The Commonwealth of Massachusetts (“Massachusetts”) agrees with Weaver that the failure to provide a public trial is a structural error. However, Massachusetts asserts that lowering the standard for proving ineffective assistance of counsel by creating an exception for the right to the public trial would undermine the reliability of the proceedings because there is a strong public interest in building confidence in trial proceedings and establishing a system of criminal proceeding that functions efficiently. Massachusetts maintains that prejudice must be assessed under the “reasonable probability” standard articulated in Strickland v. Washington. Massachusetts further explains that this standard accounts for the interest in outcome reliability as well as the seriousness of the consequences of finding ineffective assistance of counsel. Massachusetts also contends that the reliability of criminal proceedings would be jeopardized by Weaver’s proposed standard because it would afford defense counsel the opportunity to strategically bypass their uses of waiver, forfeiture, and contemporaneous objections. Massachusetts maintains that assessing prejudice by focusing on the difficulty of measuring the harm of a structural error would allow convictions to be vacated even where no actual prejudice occurred.
PREJUDICE UNDER STRICKLAND
Weaver argues that the Court should not engage in a mechanical application of the two Strickland factors for determining ineffective assistance of counsel. Weaver agrees with precedent that in order to grant a new trial based on ineffective assistance of counsel, Strickland v. Washington requires that defendants show: (1) counsel’s performance was objectively deficient, and (2) this deficiency resulted in prejudice to the defendant. However, Weaver claims that the second prong of Strickland only applies where the prior proceedings were presumed to be reliable. According to Weaver, because the purpose of the Strickland factors is to determine whether the result of a particular proceeding was reliable, he has met his burden of demonstrating prejudice by showing structural error. Weaver argues that because he was able to prove that his trial counsel’s deficiency during voir dire was a structural error, the trial proceedings were unreliable and he is not required to show actual prejudice in order to fulfill the second prong of the Strickland test. Furthermore, Weaver asserts that the magnitude of the error committed at the trial level should weaken the presumption of reliability, and in the event of a structural error, the Court should presume the unreliability of the proceedings. Weaver further contends that the nature of the error defies the actual-prejudice standards under Strickland because it would require a judgment based on a counterfactual and create an insurmountable barrier to relief. Weaver supports this application of Strickland by arguing that a mechanical application of the factors would result in illogical and unjust results. Weaver claims that without the presumption of prejudice for structural errors, a defendant would be punished for his or her lawyer’s missteps, calling into question the reliability of all criminal proceedings.
Massachusetts argues that Strickland never contemplated that courts would determine whether to apply the presumption of prejudice based on the defendant’s difficulty in proving that prejudice arose. Massachusetts contends that, under the Strickland standard, the presumption of prejudice applies only in instances where there is a probability, rather than a mere possibility, that actual prejudice arose and thus tainted the proceedings. Massachusetts argues that prejudice is only presumed in cases in which ineffective assistance of counsel rises to a level that may be equated with a denial of counsel altogether. Massachusetts contends that such instances include cases where the defendant’s counsel fails to subject the government’s case to meaningful adversarial testing or where the counsel is burdened by a conflict of interests, but not cases like Weaver’s. Massachusetts also points out the Court in Strickland specifically did not adopt more lenient standards, such as merely requiring that a defendant show that structural errors had some conceivable effect on the outcome of the proceeding or somehow impaired the presentation of the defense. Massachusetts also notes that the structural error analysis is limited to harmless error review under Arizona v. Fulminante.
Discussion
PRESERVING THE SIXTH AMENDMENT RIGHT TO EFFECTIVE COUNSEL
The American Civil Liberties Union (“ACLU”), in support of Weaver, argues that shifting the burden to the defendant to prove prejudice in instances where ineffective assistance of counsel is not due to strategic considerations violates the defendant’s Sixth Amendment right to effective assistance of counsel. ACLU argues that this requirement is necessary because a defendant cannot prove that, but for a structural defect, the result in the case would have been different. The ACLU notes that this violation of the right to effective assistance of counsel is particularly egregious in instances of other structural errors, such as judge bias, denial of a jury trial, denial of the right to counsel, or racial bias in jury selection.
Massachusetts argues that a defendant’s Sixth Amendment rights are only violated where ineffective assistance of counsel results in probable prejudice as evidenced by the totality of the circumstances surrounding the trial. According to Massachusetts, the prejudice requirement distinguishes “effective” counsel from “mistake free” counsel. While the Sixth Amendment guarantees defendants in criminal proceedings effective counsel, it does not guarantee mistake free counsel. Massachusetts argues that, fundamentally, the analysis of Sixth Amendment violations must include some contemplation of the substantive nature of the error in the case. Otherwise, Massachusetts contends, courts will be forced to dismiss convictions that are not tainted by prejudice in the lower court proceedings.
PRESERVING TRUST IN THE CRIMINAL JUSTICE SYSTEM
The Reporters Committee for Freedom of the Press and Society of Professional Journalists (“RCFP”), in support of Weaver, argues that public jury selection is a central component of the criminal justice system and implicates both First and Sixth Amendment rights. The RCFP contends that presuming prejudice in instances of ineffective assistance of counsel where counsel failed to object to court closure for jury selection would encourage attorneys and courts to give adequate procedural treatment to the First Amendment rights of the public. The Stein Center for Law and Ethics (“The Stein Center”) articulates these concerns in terms of the duties imposed on attorneys through professional associations, which are integral to the adversarial nature of the criminal justice system. . The Stein Center argues that presuming prejudice in cases such as this will encourage professional associations to monitor their members’ conduct and thus preserve the Sixth Amendment rights of defendants.
Massachusetts counters that courts must consider First Amendment violations in excluding the public from criminal proceedings on a scale of the severity of the impact of such exclusions. Massachusetts further argues that the severity of the exclusion should be considered in light of the public interest in hearing the case. Massachusetts asserts that voir dire hearings are necessarily open to the public in the form of potential jurors, who are not sworn in—as in Weaver’s case. The presence of these unaffiliated persons, Massachusetts maintains, serves as a check against aggressive prosecution during these early stages of criminal proceedings, which might result in a defendant seeking a plea bargain where none is merited.
DISPARATE IMPACTS ON LOW INCOME AND INDIGENT DEFENDANTS AFFECTED BY STRUCTURAL ERRORS
The ACLU, in support of Weaver, argues that the impact of introducing prejudice and harmless error analysis into ineffective assistance of counsel claims resulting in structural defects would lead to unfair treatment of poor defendants. ACLU supports this assertion with anecdotal evidence of the prevalence of structural errors within cases with indigent defendants. Specifically, ACLU points to Justice Ginsburg’s observation that she has not seen a stay of execution petition where the defendant’s state-appointed counsel provided effective assistance. Asking these defendants to show actual prejudice, ACLU argues, would routinely leave poor defendants more prone to violations of their Constitutional rights where they stand to lose the most.
Massachusetts maintains that the Court limited structural error review is to a review for harmless error in Arizona v. Fulminante. Massachusetts concedes that current law provides little guidance in determining which structural errors necessitate a presumption of prejudice. However, Massachusetts argues that this problem would be better solved by the Supreme Court articulating a clear test for determining where structural errors rise to the level of complete denial of counsel.
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Acknowledgments
Additional Resources
- Zack Huffman, High Court to Dissect Killer Teen's Confession, Courthouse News (Jan. 18,
2017). - Chau Ngyuen, Jury Convicts Defendant, 18, in Murder of 15-Year-Old, Boston Police Department News (Apr. 26, 2006).