Weaver v. Massachusetts, SCOTUS, No. 16-240 (June 2017). Episode 371 (Duration 14:16)
Right to public trial is a structural right, but it really matters when the issue is brought up.
Petitioner was convicted of murder.
When petitioner was tried in a Massachusetts trial court, the courtroom could not accommodate all the potential jurors. As a result, for two days of jury selection, an officer of the court excluded from the courtroom any member of the public who was not a potential juror, including petitioner’s mother and her minister.
Defense counsel neither objected to the closure at trial nor raised the issue on direct review.
Motion For New Trial
Five years later, he filed a motion for a new trial in state court, arguing, as relevant here, that his attorney had provided ineffective assistance by failing to object to the courtroom closure.
This motion was denied because he did not establish prejudice.
Given this was a structural error is reversal mandated?
There is disagreement among the Federal Courts of Appeals and some state courts of last resort about whether a defendant must demonstrate prejudice in a case like this one—in which a structural error is neither preserved nor raised on direct review but is raised later via a claim alleging ineffective assistance of counsel.
Structural Error v. Ineffectiveness
This case requires a discussion, and the proper application, of two doctrines: structural error and ineffective assistance of counsel.
The two doctrines are intertwined; for the reasons an error is deemed structural may influence the proper standard used to evaluate an ineffective assistance claim premised on the failure to object to that error.
It is axiomatic that not every constitutional error requires reversal.
The Court recognized, however, that some errors should not be deemed harmless beyond a reasonable doubt. These errors came to be known as structural errors.
The purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial. Thus, the defining feature of a structural error is that it “affect[s] the framework within which the trial proceeds,” rather than being “simply an error in the trial process itself.”
No Harmless Error For Structural Errors
For the same reason, a structural error defies analysis by harmless error standards. There appear to be at least three broad rationales.
First, an error has been deemed structural in some instances if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest.
This is true of the defendant’s right to conduct his own defense, which, when exercised, “usually increases the likelihood of a trial outcome unfavorable to the defendant.” That right is based on the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty.
Harm is irrelevant to the basis underlying the right.
Second, an error has been deemed structural if the effects of the error are simply too hard to measure.
For example, when a defendant is denied the right to select his or her own attorney, the precise “effect of the violation cannot be ascertained.”
Third, an error has been deemed structural if the error always results in fundamental unfairness.
For example, if an indigent defendant is denied an attorney or if the judge fails to give a reasonable-doubt instruction, the resulting trial is always a fundamentally unfair one.
Now then, the question is whether a public-trial violation counts as structural because it always leads to fundamental unfairness or for some other reason.
The cases teach that courtroom closure is to be avoided, but that there are some circumstances when it is justified.
The problems that may be encountered by trial courts in deciding whether some closures are necessary, or even in deciding which members of the public should be admitted when seats are scarce, are difficult ones. The fact that the public-trial right is subject to these exceptions suggests that not every public-trial violation results in fundamental unfairness.
A public-trial violation can occur simply because the trial court omits to make the proper findings before closing the courtroom, even if those findings might have been fully supported by the evidence.
Indeed, the Court has not said that a public-trial violation renders a trial fundamentally unfair in every case.
In the two cases in which the Court has discussed the reasons for classifying a public-trial violation as structural error, the Court has said that a public-trial violation is structural for a different reason: because of the “difficulty of assessing the effect of the error.”
After all, the right to an open courtroom protects the rights of the public at large, and the press, as well as the rights of the accused.
So one other factor leading to the classification of structural error is that the public-trial right furthers interests other than protecting the defendant against unjust conviction.
These precepts confirm the conclusion the Court now reaches that…
While the public-trial right is important for fundamental reasons, in some cases an unlawful closure might take place and yet the trial still will be fundamentally fair from the defendant’s standpoint.
In the case of a structural error where there is an objection at trial and the issue is raised on direct appeal, the defendant generally is entitled to “automatic reversal” regardless of the error’s actual “effect on the outcome.”
Even More Narrower Issue
The question then becomes what showing is necessary when the defendant does not preserve a structural error on direct review but raises it later in the context of an ineffective-assistance-of-counsel claim.
Back To Ineffective Assistance Analysis
To obtain relief on the basis of ineffective assistance of counsel, the defendant as a general rule bears the burden to meet two standards.
First, the defendant must show deficient performance— that the attorney’s error was “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Second, the defendant must show that the attorney’s error “prejudiced the defense.” Thus, when a defendant raises a public-trial violation via an ineffective assistance-of-counsel claim, Strickland prejudice is not shown automatically.
Instead, the burden is on the defendant to show either a reasonable probability of a different outcome in his or her case or, as the Court has assumed for these purposes to show that the particular public-trial violation was so serious as to render his or her trial fundamentally unfair.
The reason for placing the burden on the petitioner in this case, however, derives both from the nature of the error.
As explained above, when a defendant objects to a courtroom closure, the trial court can either order the courtroom opened or explain the reasons for keeping it closed.
When a defendant first raises the closure in an ineffective assistance claim, however, the trial court is deprived of the chance to cure the violation either by opening the courtroom or by explaining the reasons for closure. When an ineffective-assistance-of-counsel claim is raised in postconviction proceedings, the costs and uncertainties of a new trial are greater because more time will have elapsed in most cases.
The finality interest is more at risk.
The burden remains on the defendant to make the prejudice showing because a public-trial violation does not always lead to a fundamentally unfair trial.
The Final Question
In light of the above assumption that prejudice can be shown by a demonstration of fundamental unfairness the remaining question is whether petitioner has shown that counsel’s failure to object rendered the trial fundamentally unfair.
The Court concludes that petitioner has not made the showing.
Although petitioner’s mother and her minister were indeed excluded from the courtroom for two days during jury selection, petitioner’s trial was not conducted in secret or in a remote place.
The closure was limited to the jury voir dire; the courtroom remained open during the evidentiary phase of the trial; the closure decision apparently was made by court officers rather than the judge; there were many members of the venire who did not become jurors but who did observe the proceedings; and there was a record made of the proceedings that does not indicate any basis for concern, other than the closure itself.
There has been no showing, furthermore, that the potential harms flowing from a courtroom closure came to pass in this case.
In sum, petitioner has not shown a reasonable probability of a different outcome but for counsel’s failure to object, and he has not shown that counsel’s shortcomings led to a fundamentally unfair trial. He is not entitled to a new trial.
In the criminal justice system, the constant, indeed unending, duty of the judiciary is to seek and to find the proper balance between the necessity for fair and just trials and the importance of finality of judgments.
When a structural error is preserved and raised on direct review, the balance is in the defendant’s favor, and a new trial generally will be granted as a matter of right. When a structural error is raised in the context of an ineffective assistance claim, however, finality concerns are far more pronounced. For this reason, and in light of the other circumstances present in this case, petitioner must show prejudice in order to obtain a new trial.