SCOTUS Majority Approves ‘Kafkaesque’ Standard

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By Alisa Johnson

Defendants have no way out of a situation described as “Kafkaesque” by Supreme Court Justice Elena Kagan during arguments in a case that was ultimately decided June 22 ( Weaver v. Masssachusetts , 2017 BL 214300, U.S., No. 16-240, 6/22/17 ).

It’s unlikely she’d revise that remark.

Kentel Myrone Weaver sought a new murder trial alleging ineffective assistance of counsel. Ordinarily that requires showing the defendant was prejudiced by such failure under the high court’s decision in Strickland v. Washington.

He argued that his lawyer erred because he failed to object when the courtroom was closed due to overcrowding while the jury was being selected. Members of the public, including the defendant’s mother, were barred from the courtroom.

The violation of a right to public trial is normally a type of error that entitles a defendant to relief without inquiry into harm because there’s a presumption the conviction was tainted.

But because it was raised in the context of an ineffective assistance of counsel claim here, and not on direct review, the defendant must show the result was fundamentally unfair, the court held in the June 22 opinion by Justice Anthony M. Kennedy.

Injustice, or Just Deserts?

“The importance of improving defense for poor people” is the lesson to be taken from this case, Brian W. Stull of the American Civil Liberties Union, said to Bloomberg BNA in an email.

“Poor people appointed ill-prepared, over-worked, and under-funded counsel will be more likely to forfeit important constitutional rights, such as the right to a public trial at issue here. We need lawyers educated enough in the law to protect these clients’ constitutional trial rights, to prevent an unfair trial in the first instance, or to preserve an error for later review,” Stull said.

“Allowing the convicted criminal to avoid his burden of proving prejudice in this case would have opened the floodgates for others to bring and win collateral challenges to their convictions even when the asserted error did not in any way affect the outcome of the trial,” Arkansas Attorney General Leslie Carol Rutledge said in a statement sent via email to Bloomberg BNA.

Prove it

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

One reason prejudice is presumed from structural errors is that they affect the overall framework in which the trial proceeds and defy analysis for harm.

A majority of the court declined to apply this presumption in the specific circumstances here: a public-trial violation during jury selection that the defense failed to preserve or raise on direct review and raised only later via an ineffective-assistance-of-counsel claim.

"[A]although the public-trial right is structural, it is subject to exceptions,” Kennedy said. “Nor can it be said that the failure to object to a public-trial violation always deprives the defendant of a reasonable probability of a different outcome.”So if a defendant raises a such a violation via an ineffective assistance claim, as was the case here, “ Strickland prejudice is not shown automatically,” he said. Instead a defendant must show “either a reasonable probability of a different outcome in his or her case” or that the particular violation was so egregious as to render the trial “fundamentally unfair.”

Chief Justice John G. Roberts, and Justices Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor, and Neil Gorsuch joined Kennedy’s opinion.

Justices Thomas and Samuel Alito also wrote concurrences in which Justice Gorsuch joined.

The understanding that the public trial right extends to jury selection may not be “consistent with the original understanding of the right to a public trial,” said Thomas.

“I do not see how we can read Strickland as requiring defendants to prove what this Court has held cannot be proved,” Justice Stephen G. Breyer said in a dissenting opinion joined by Justice Kagan.

“I would simply say that just as structural errors are categorically insusceptible to harmless-error analysis on direct review, so too are they categorically insusceptible to actual-prejudice analysis in Strickland claims,” Breyer said.

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

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

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