Whether a criminal defendant must show “prejudice” when an unreasonable error of his counsel leads to “structural error” in his trial is undoubtedly an important legal question on which a number of state and federal courts have split. And we must assume that when the Supreme Court grants review on such a question, the justices intend to answer it, regardless of any small irregularities in the case they choose. Still, the odd facts of Weaver v. Massachusetts lead me to wonder whether the justices will agree, after argument next Wednesday, that this case is a good vehicle for deciding the issue. If not, they have the power to dismiss the case without decision as “improvidently granted.” But the question presented needs resolution, and the justices may be determined to provide as much guidance as they can. Oral argument – with a new justice added to the mix – should provide some clues as to how much guidance that will be.
A mistaken, and un-objected to, “closing” of public jury selection
Sixteen-year-old Kentel Myrone Weaver was arrested in 2003 for the shooting murder of 15-year-old Germaine Rucker in Boston. Weaver ended up confessing and there is no dispute, at this point in the case, about his guilt.
A group of some 90 potential jurors was assembled for jury selection, and the courtroom could not accommodate them all. Some had to stand, and others had to wait outside. When Weaver’s mother and other supporters arrived, a court security officer told them they could not enter because the courtroom was “closed for jury selection.” On review, the Supreme Judicial Court of Massachusetts found that the “sole reason … was the crowded condition in the courtroom.”
The next day, Weaver’s mother and others were denied entry to the courtroom again for the same reason. Weaver’s lawyer, an experienced attorney, was informed, but he raised no objection because he “did not understand” and “belie[ved] that the closure was constitutional.” After the jury had been selected on the second day, the trial was conducted with no further closures.
Five years later, Weaver moved for a new trial, based in part on his lawyer’s failure to object to the allegedly unconstitutional closing of the courtroom during jury selection. A new trial judge (the original judge had retired) concluded after an evidentiary hearing that there had been a “full closure of the courtroom, rather than a partial closure,” and that the factors required under the 1984 decision in Waller v. Georgia to justify a courtroom closing against the Sixth Amendment right to a “public trial” had not been met. However, although denial of the constitutional public-trial right has been described by the Supreme Court as “structural error” that requires no showing of prejudice, the trial court denied Weaver’s motion because a claim of unconstitutional ineffective assistance of counsel does require a showing of prejudice, and Weaver had not offered any evidence or argument that prejudice could be shown.
The question presented needs resolution
On appeal, the Supreme Judicial Court of Massachusetts agreed that a Sixth Amendment “public-trial” violation had occurred and constituted “structural error,” which normally causes a court to “presume ‘prejudice.’” However, following one of its prior decisions, the state court ruled that when the closure is not objected to at trial but is later challenged as part of a claim of ineffective assistance of counsel, the normal prejudice requirement for ineffective assistance claims applies. Because Weaver had “not advanced any argument or demonstrated any facts” on prejudice, denial of his claim was affirmed.
A constitutional right of public access to criminal proceedings, including jury selection, is well established under the First and Sixth Amendments. Moreover, the court has deemed violations of this right to be “structural error,” a general category comprising errors so fundamental and difficult to quantify that prejudice need not be shown. This is clearly in tension with the normal rule for unconstitutional ineffective assistance of counsel, which precludes a defendant from obtaining relief unless, in addition to showing unreasonable attorney error, the defendant can also show “prejudice,” described as “a reasonable probability that, but for the attorney’s error, the outcome would have been different.”
This question of which standard should govern – the “no-prejudice” rule for structural errors or the prejudice requirement for ineffective assistance claims – when a structural error results from a lawyer’s ineffective assistance has “split” a number of state supreme and federal circuit courts. It is obviously important as a general matter for structural errors of all kinds (not just public-trial errors), because it shifts the burden of proving or disproving prejudice from one party to the other, thereby affecting the likelihood that criminal convictions will be reversed.
The parties’ and the U.S. solicitor general’s briefing
Weaver’s merits brief for the court contains soaring rhetoric singing the praises of the constitutional right to a public trial and arguing that “no criminal trial may be regarded as fundamentally fair … if it takes place behind closed doors.” The brief begins with the sympathetic picture of Weaver’s mother “praying … in the hallway … while the jury that would ultimately convict her son was selected in secret.” Weaver continues that “[t]his was a constitutional violation of the highest order,” and that the Massachusetts court’s decision is “flatly incompatible with basic principles of justice.” Weaver is supported by a number of amicus briefs, which note among other things the important values underlying the Sixth Amendment’s public trial guarantee and the additional First Amendment free-press implications of closed courtrooms.
Massachusetts’ brief presents relatively low-key responses. It argues that the no-prejudice standard for various structural errors should not be “imported” into the settled standards for ineffective assistance of counsel; “the Court should [not] … merge these two distinct lines of doctrine.” In addition, there are different types of “structural error,” and some clearly do involve “circumstances that are inherently highly prejudicial” as well as difficult to evaluate later. But those characteristics seem far less likely to arise in the specific context presented here. Moreover, permitting reversal of convictions using a “no-prejudice” standard, when the error results from defense counsel’s silence, “disserves important interests” in finality and in requiring contemporaneous objections at a time when the structural problem might be addressed. A ruling for Weaver could encourage “sand-bagging” by lawyers who perceive impending or ongoing structural error and hope to gain “automatic reversal” later by saying nothing when the error occurs.
Massachusetts also notes a 2014 per curiam opinion of the Supreme Court, Glebe v. Frost, which suggested that the court has not ever ruled that “restriction” of a structural right, as opposed to its “complete denial,” permits reversal without a showing of prejudice. Weaver did not discuss Glebe in his opening brief, and his reply brief still does not mention it. Justices Clarence Thomas and Antonin Scalia have previously criticized a broad structural-error doctrine. Will some other justice give voice to that view next Wednesday?
On April 5, the U.S. solicitor general filed an amicus brief in support of Massachusetts, and requested leave to participate in oral argument. Although that late-breaking motion is still pending at the time of this writing, such motions are routinely, if not always, granted. The solicitor general’s brief provides a good survey of the federal courts of appeal that have weighed in on the question presented, and argues that “case-specific prejudice” can indeed be found in various structural-error contexts. My reading of the briefing in this case suggests that the court will benefit from a conversation with an advocate from the solicitor general’s office next Wednesday.
But was there even a constitutional “public trial” violation here?
I may be chasing wild geese, but the record suggests a serious question about whether there was a constitutional “public-trial” violation at all in Weaver’s case. Massachusetts’ brief quietly notes that, in fact, Weaver’s courtroom was not entirely “closed” to the public, and his jury selection was not conducted “in secret.” Rather, “the courtroom was filled with members of the public in the form of prospective jurors.” (Indeed, for all that appears in the record I have seen, other members of the public other than Weaver’s supporters could have been present.) And as Massachusetts and the solicitor general both point out, after the jury was selected, Weaver’s entire trial was open to the public, preventing various dangers that fully closed trial proceedings can present.
Weaver’s only response in his reply brief is to call Massachusetts’ position “astonishing,” and argue that it is “flatly contradicted” by a 2010 decision, Presley v. Georgia. (Weaver also again extends his rhetoric beyond the facts, decrying a defendant “tried in a windowless room behind closed doors.”) But when the court extended the Sixth Amendment “public-trial” right to jury selection in Presley, the record showed that, unlike in this case, objection had been made by Presley’s counsel, and there was space available in Presley’s courtroom but the trial judge had closed it to Presley’s relatives for other reasons. Similarly, there was ample pretrial objection in the 1984 Press-Enterprise decision that extended the related First Amendment right of access to jury voir dire, and the trial judge had closed the proceeding to media regardless of space available.
The presence of pretrial objections in prior cases might be relevant to a finding of “structural error” in the public trial context. No one suggests that if Weaver’s trial judge had been informed that Weaver’s mother had been excluded, the judge would not immediately have accommodated her presence inside. (Indeed, if Strickland requires a defendant to establish a “reasonable probability that the outcome would have been different,” the “outcome” of a closed courtroom would likely have changed had Weaver’s lawyer objected to the closure. But “outcome” after Strickland has come to mean “conviction” – an interesting point when the constitutional error has to do with courtroom access rather than adversarial rights.)
Certainly, one could argue that the finding of a “public-trial” error here was correct. But it seems surprising, particularly in light of Glebe, that no party has argued otherwise.
Finally, this case presents an additional vehicle problem: Weaver concedes (as the Massachusetts courts have noted) that since Presley, Massachusetts does not permit closed courtrooms for jury selection, so that the “circumstances of this case are … unlikely to come to pass again.”
A larger question: Is every courtroom unconstitutionally “closed” when it is too crowded to accommodate more observers?
There may be another elephant lurking in the corner of the courtroom when this case is argued. Like Weaver’s courtroom (and many others), the U. S. Supreme Court’s own chamber is often too small to accommodate all who want to observe. And unlike a number of lower courts, the Supreme Court does not stream or video its arguments so that persons not admitted to the courtroom can still watch. If Weaver’s courtroom was unconstitutionally “closed” because the doors were shut when it became too crowded, then might the same objection be made about the argument next week?
I do not mean to suggest an answer. I merely mean to point out that some thinking about whether there was a constitutional violation at all in Weaver’s case may be in order. Yet even if the unusual facts of this case don’t provide an ideal vehicle, the general and very important legal question presented deserves to be settled. Tune in next Wednesday to see whether the justices seem determined to resolve the “split” regardless of flaws that may be present in Weaver’s case.