Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.
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.
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.
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 email@example.com
To contact the editors responsible for this story: C. Reilly Larson at firstname.lastname@example.org
Full transcript at http://src.bna.com/n6e.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)