Criminal Defendants in ‘Kafkaesque’ Position, Kagan Says

Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.

By Alisa Johnson

The government is putting defendants in the “Kafkaesque” position of proving something the court has repeatedly said is unprovable, Justice Elena Kagan said during oral argument at the U.S. Supreme Court April 19 ( Weaver v. Massachusetts, U.S., No. 16-240 , argued 4/19/17 ).

Kentel Myrone Weaver seeks a new murder trial on the basis of ineffective assistance of counsel. Ordinarily this requires showing that he was prejudiced by the failure, under Strickland v. Washington.

His counsel was ineffective because he failed to object when the courtroom was closed during jury empanelment, due to the need to seat about 90 prospective jurors. Members of the public, including the defendant’s mother, were barred from the courtroom.

The state courts denied relief on Weaver’s Sixth Amendment public trial right claim, because his counsel’s failure didn’t prejudice him.

But violation of the right to a public trial constitutes “structural error,” which leads to a presumption of prejudice, Weaver said.

Minor Error?

Chief Justice John G. Roberts Jr. said the error here is hardly the most serious of errors that can occur at a trial.

And the courtroom wasn’t necessarily closed to the public because members of the jury venire can themselves qualify as members of the public, Roberts said.

But prospective jurors are compelled to show up, whereas interested members of the public were kept out, Justice Sonia Sotomayor said. The court has said “you can’t keep out interested people just because of overcrowding,” she added

New Justice Neil M. Gorsuch wondered, like Roberts, if the error in this case was too trivial to warrant relief.

Unknowable Damage

Weaver was denied his support system for his first introduction to the judge and jury, said Michael B. Kimberly, of Washington, arguing for Weaver.

That deprivation affected the defendant’s demeanor and maybe the jurors’ perception of him, Kimberly said.

“He is presented to them without the support even of his mother.” There’s no way to know the effect of this, Kimberly added.

Justice Elena Kagan agreed that the whole point of structural error, which is an error that compromises the integrity of the proceedings, is that its effect is unknowable.

“That’s really what’s at issue here, whether we should put the defendant to the burden of showing how it affected the trial, when, in fact, we’ve said over and over that you can’t do that,” Kagan said.

This case is not about the right to a public trial but the right to counsel, Justice Samuel A. Alito Jr. said. The test for a deprivation of the right to counsel has a prejudice prong, he said.

But if defendants are required to prove prejudice “there will never be relief for violations of the public trial right that happen to be coupled with the additional injury of defense counsel who don’t know to object,” Kimberly said.

On the other hand, to say that “because something is difficult to show, it must have existed, one doesn’t follow from the other,” said Randall E. Ravitz of the Massachusetts Attorney General’s office, arguing on behalf of the state.

“And it would allow for relief to be granted in a wide range of situations where, in fact, in reality there was no prejudice,” he said.

But “it just seems so Kafkaesque to me. It’s like you have to prove something, but we know you can’t prove it,” Kagan said.

Structural errors do not necessarily undermine the reliability of the trial outcomes, said Ann O’ Connell of Department of Justice, Washington, arguing for the government as amicus curiae supporting the state.

The defendant need only show a reasonable probability that counsel’s error affected the result of the trial, she said.

The prejudice showing is “not meant to be easy, but it’s meant to be possible. And what we’ve said in our structural error cases is that it’s not possible in a very, very large proportion of them,” Kagan said.

To contact the reporters on this story: Alisa Johnson in Washington at

To contact the editors responsible for this story: C. Reilly Larson at

For More Information

Full transcript at

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Litigation on Bloomberg Law