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U.S. Supreme Court Takes Up Four Criminal Cases

The U.S. Supreme Court held its conference today and took up 16 cases, 4 of which are criminal or habeas corpus cases.

Weaver v. Massachusetts, No. 16-240:  The defendant claims his lawyer was ineffective for failing to object to a closure of the courtroom during empanelment of the jury.  Violation of the right to a public trial, when considered directly, is a "structural" error that is reversible without a showing that it actually prejudiced the defendant, but an ineffective assistance of counsel (IAC) claim requires a showing of prejudice under Strickland v. Washington.  Does IAC require a showing of prejudice when the underlying error is "structural"?  I believe Strickland is clear enough that the answer is "yes," but there is enough of a circuit split for the high court to take it up.

Maslenjak v. United States, No. 16-309, involves a question of whether revocation of naturalized citizenship in a criminal proceeding for a false statement during naturalization requires a showing of materiality.

McWilliams v. Dunn, No. 16-5294, involves a question regarding the degree of independence needed for appointed mental health experts under Ake v. Oklahoma.

Davila v. Davis, No. 16-6219, involves the continuing fallout from Martinez v. Ryan and Trevino v. Thaler.  In Coleman v. Thompson in1992, the Supreme Court limited the damage from ineffective assistance claims to prevent a never-ending spiral of every lawyer to take up a case claiming that he should be allowed to raise a new issue because the previous lawyer was ineffective in not raising it.  Coleman drew the line at direct appeal.  Ineffective assistance at trial or on direct appeal could be "cause" for raising an issue defaulted in those proceedings, but from state collateral review onward a claim would be defaulted if not raised in the proper proceeding regardless of counsel's performance.  As with other procedural default rules, a strong showing of actual innocence was an exception.
In Martinez, the Supreme Court created a "narrow" exception for ineffective assistance by state collateral review counsel in failing to raise an issue of ineffective assistance of trial counsel under the circumstances of Arizona's unusual system.  In Trevino the Court said the exception was not as narrow as it said in Martinez, and it also applied to Texas's not-unusual system.

In Davila, the petitioner seeks to expand Martinez still further to cover cases where supposedly ineffective state collateral counsel fails to raise the issue of direct appeal counsel's supposedly ineffective failure to raise an issue. 

Surprisingly, the Court took this case up despite the fact that the district court decided the merits in addition to the procedural bar issue and found that counsel was not ineffective and the underlying claim had no merit.  That should have been sufficient to deny certiorari.  As is often said, the Court reviews judgments, not opinions; if the case would come to the same result regardless of the answer to the question the Court is asked to decide, then it should not decide that question.


Regarding Weaver:

If the record establishes that structural error occurred (in this case the denial of the right to a public trial), shouldn't that resolve the case, regardless of whether that error has a nexus to deficient conduct (in this case, a failure to act/object) by defense counsel?

It seems to me that the first inquiry (did structural error occur) if answered in the affirmative, renders the IAC inquiry (under either prong of Strickland) irrelevant?

What am I missing?

Counsel failed to object to the closure during jury selection (not the trial itself), defaulting the underlying claim.

The defendant's claim is therefore one for ineffective assistance of counsel, not violation of the right to a public trial.

When the Supreme Court decided to allow defendants to attack their convictions on the basis of their own lawyer's performance, it included a requirement that the defendant make an affirmative showing that he was prejudiced by the error. This is commonly misunderstood. It is not a question of "harmless error," which is a kind of defense by the prosecution after a defendant has shown that an error occurred. The prejudice showing is an element of the defendant's claim.

The affirmative showing of prejudice is a vital element of this branch of jurisprudence. Without it, the flood that Strickland unleashed would be a tsunami.

My understanding is that the exclusion of the public from jury selection (vs. the trial itself) is not "structural error" unless the defense objected (which, in this case, they did not).

If I am correct, why is the subject of "structural error" (and the rule of automatic reversal without a showing of prejudice) even part of the discussion in this case?

It would seem to be a clear-cut IAC case requiring the defendant to satisfy both prongs of Strickland?

How could courts be split on this seemingly clear-cut issue?

Sorry, if I am missing something?

I think you are correct, but evidently there were enough courts going the other way to make it "certworthy."

Washington State's supreme court addressed this issue by holding that if the defendant on collateral attack raises IAC of appellate counsel for failing to raise a public trial issue on direct appeal, the court treats a public trial violation as "structural" error on the theory that if appellate counsel had raised the issue on direct appeal, it would have resulted in reversal. It's an end run around the requirement of showing prejudice. I'll be interested in seeing how Weaver turns out.

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