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SUPREME COURT OF THE UNITED STATES
_________________
No. 16–240
_________________
KENTEL MYRONE WEAVER, PETITIONER v.
MASSACHUSETTS
on writ of certiorari to the supreme judicial
court of massachusetts
[June 22, 2017]
Justice Kennedy delivered the opinion of the
Court.
During petitioner’s trial on state criminal
charges, the courtroom was occupied by potential jurors and closed
to the public for two days of the jury selection process. Defense
counsel neither objected to the closure at trial nor raised the
issue on direct review. And the case comes to the Court on the
assumption that, in failing to object, defense counsel provided
ineffective assistance.
In the direct review context, the underlying
constitutional violation—the courtroom closure—has been treated by
this Court as a structural error, i.e., an error entitling
the defendant to automatic reversal without any inquiry into
prejudice. The question is whether invalidation of the conviction
is required here as well, or if the prejudice inquiry is altered
when the structural error is raised in the context of an
ineffective-assistance-of-counsel claim.
I
In 2003, a 15-year-old boy was shot and killed
in Boston. A witness saw a young man fleeing the scene of the crime
and saw him pull out a pistol. A baseball hat fell off of his head.
The police recovered the hat, which featured a distinctive
airbrushed Detroit Tigers logo on either side. The hat’s
distinctive markings linked it to 16-year-old Kentel Weaver. He is
the petitioner here. DNA obtained from the hat matched petitioner’s
DNA.
Two weeks after the crime, the police went to
petitioner’s house to question him. He admitted losing his hat
around the time of the shooting but denied being involved.
Petitioner’s mother was not so sure. Later, she questioned
petitioner herself. She asked whether he had been at the scene of
the shooting, and he said he had been there. But when she asked if
he was the shooter, or if he knew who the shooter was, petitioner
put his head down and said nothing. Believing his response to be an
admission of guilt, she insisted that petitioner go to the police
station to confess. He did. Petitioner was indicted in
Massachusetts state court for first-degree murder and the
unlicensed possession of a handgun. He pleaded not guilty and
proceeded to trial.
The pool of potential jury members was large,
some 60 to 100 people. The assigned courtroom could accommodate
only 50 or 60 in the courtroom seating. As a result, the trial
judge brought all potential jurors into the courtroom so that he
could introduce the case and ask certain preliminary questions of
the entire venire panel. Many of the potential jurors did not have
seats and had to stand in the courtroom. After the preliminary
questions, the potential jurors who had been standing were moved
outside the courtroom to wait during the individual questioning of
the other potential jurors. The judge acknowledged that the hallway
was not “the most comfortable place to wait” and thanked the
potential jurors for their patience. 2 Tr. II–103 (Apr. 10, 2006).
The judge noted that there was simply not space in the courtroom
for everybody.
As all of the seats in the courtroom were
occupied by the venire panel, an officer of the court excluded from
the courtroom any member of the public who was not a potential
juror. So when petitioner’s mother and her minister came to the
courtroom to observe the two days of jury selection, they were
turned away.
All this occurred before the Court’s decision in
Presley v. Georgia, 558 U. S. 209 (2010) (per
curiam). Presley made it clear that the public-trial
right extends to jury selection as well as to other portions of the
trial. Id., at 213–215. Before Presley, Massachusetts
courts would often close courtrooms to the public during jury
selection, in particular during murder trials.
In this case petitioner’s mother told defense
counsel about the closure at some point during jury selection. But
counsel “believed that a courtroom closure for [ jury
selection] was constitutional.” Crim. No. 2003–11293 (Super. Ct.
Mass., Feb. 22, 2013), App. to Pet. for Cert. 49a. As a result, he
“did not discuss the matter” with petitioner, or tell him “that his
right to a public trial included the [ jury
voir dire],” or object to the closure. Ibid.
During the ensuing trial, the government
presented strong evidence of petitioner’s guilt. Its case consisted
of the incriminating details outlined above, including petitioner’s
confession to the police. The jury convicted petitioner on both
counts. The court sentenced him to life in prison on the murder
charge and to about a year in prison on the gun-possession
charge.
Five years later, petitioner filed a motion for
a new trial in Massachusetts state court. As relevant here, he
argued that his attorney had provided ineffective assistance by
failing to object to the courtroom closure. After an evidentiary
hearing, the trial court recognized a violation of the right to a
public trial based on the following findings: The courtroom had
been closed; the closure was neither de minimis nor trivial;
the closure was unjustified; and the closure was full rather than
partial (meaning that all members of the public, rather than only
some of them, had been excluded from the courtroom). The trial
court further determined that defense counsel failed to object
because of “serious incompetency, inefficiency, or inattention.”
Id., at 63a (quoting Massachusetts v. Chleikh,
82 Mass. App. 718, 722, 978 N. E. 2d 96, 100 (2012)). On the
other hand, petitioner had not “offered any evidence or legal
argument establishing prejudice.” App. to Pet. for Cert. 64a. For
that reason, the court held that petitioner was not entitled to
relief.
Petitioner appealed the denial of the motion for
a new trial to the Massachusetts Supreme Judicial Court. The court
consolidated that appeal with petitioner’s direct appeal. As noted,
there had been no objection to the closure at trial; and the issue
was not raised in the direct appeal. The Supreme Judicial Court
then affirmed in relevant part. Although it recognized that “[a]
violation of the Sixth Amendment right to a public trial
constitutes structural error,” the court stated that petitioner had
“failed to show that trial counsel’s conduct caused prejudice
warranting a new trial.” 474 Mass. 787, 814, 54 N. E. 3d 495,
520 (2016). On this reasoning, the court rejected petitioner’s
claim of ineffective assistance of counsel.
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. Some courts have held that, when a defendant
shows that his attorney unreasonably failed to object to a
structural error, the defendant is entitled to a new trial without
further inquiry. See, e.g., Johnson v. Sherry,
586 F. 3d 439, 447 (CA6 2009); Owens v. United
States, 483 F. 3d 48, 64–65 (CA1 2007); Littlejohn
v. United States, 73 A. 3d 1034, 1043–1044 (D. C.
2013); State v. Lamere, 327 Mont. 115, 125, 112
P. 3d 1005, 1013 (2005). Other courts have held that the
defendant is entitled to relief only if he or she can show
prejudice. See, e.g., Purvis v. Crosby, 451
F. 3d 734, 738 (CA11 2006); United States v.
Gomez, 705 F. 3d 68, 79–80 (CA2 2013); Reid v.
State, 286 Ga. 484, 487, 690 S. E. 2d 177, 180–181
(2010). This Court granted certio-rari to resolve that
disagreement. 580 U. S. ___ (2017). The Court does so
specifically and only in the context of trial counsel’s failure to
object to the closure of the courtroom during jury selection.
II
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.
A
The concept of structural error can be
discussed first. In Chapman v. California, 386
U. S. 18 (1967) , this Court “adopted the general rule that a
constitutional error does not automatically require reversal of a
conviction.” Ari-zona v. Fulminante, 499 U. S.
279, 306 (1991) (citing Chap-man, supra). If the
government can show “beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained,” the
Court held, then the error is deemed harmless and the defendant is
not entitled to reversal. Id., at 24.
The Court recognized, however, that some errors
should not be deemed harmless beyond a reasonable doubt.
Id., at 23, n. 8. These errors came to be known as
structural errors. See Fulminante, 499 U. S., at
309–310. 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.” Id., at 310. For the
same reason, a structural error “def[ies] analysis by harmless
error standards.” Id., at 309 (internal quotation marks
omitted).
The precise reason why a particular error is not
amen-able to that kind of analysis—and thus the precise reason why
the Court has deemed it structural—varies in a significant way from
error to error. 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, “usu-ally increases the likelihood
of a trial outcome unfavorable to the defendant.” McKaskle
v. Wiggins, 465 U. S. 168 , n. 8 (1984). 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. See Faretta v. California,
422 U. S. 806, 834 (1975) . Because harm is irrelevant to the
basis underlying the right, the Court has deemed a violation of
that right structural error. See United States v.
Gonzalez-Lopez, 548 U. S. 140 , n. 4 (2006).
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.” Ibid. (quoting Vasquez v.
Hillery, 474 U. S. 254, 263 (1986) ). Because the
government will, as a result, find it almost impossible to show
that the error was “harmless beyond a reasonable doubt,”
Chapman, supra, at 24, the efficiency costs of
letting the government try to make the showing are unjustified.
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. See Gideon v.
Wainwright, 372 U. S. 335 –345 (1963) (right to an
attorney); Sullivan v. Louisiana, 508 U. S. 275
(1993) (right to a reasonable-doubt instruction). It therefore
would be futile for the government to try to show harmlessness.
These categories are not rigid. In a particular
case, more than one of these rationales may be part of the
explanation for why an error is deemed to be structural. See
e.g., id., at 280–282. For these purposes, however, one
point is critical: An error can count as structural even if the
error does not lead to fundamental unfairness in every case. See
Gonzalez-Lopez, supra, at 149, n. 4 (rejecting
as “inconsistent with the reasoning of our precedents” the idea
that structural errors “always or necessarily render a trial
fundamentally unfair and unreliable” (emphasis deleted)).
B
As noted above, a violation of the right to a
public trial is a structural error. See supra, at 1, 4. It
is relevant to determine why that is so. In particular, the
question is whether a public-trial violation counts as structural
because it always leads to fundamental unfairness or for some other
reason.
In Waller v. Georgia, 467
U. S. 39 (1984) , the state court prohibited the public from
viewing a weeklong suppression hearing out of concern for the
privacy of persons other than those on trial. See id., at
41–43. Although it recognized that there would be instances where
closure was justified, this Court noted that “such circumstances
will be rare” and that the closure in question was unjustified.
Id., at 45, 48. Still, the Court did not order a new trial.
Id., at 49–50. Instead it ordered a new suppression hearing
that was open to the public. Id., at 50. If the same
evidence was found admissible in that renewed pretrial proceeding,
the Court held, no new trial as to guilt would be neces-sary.
Ibid. This was despite the structural aspect of the
violation.
Some 25 years after the Waller decision,
the Court issued its per curiam ruling in Presley v.
Georgia. 558 U. S. 209 . In that case, as here, the
courtroom was closed to the public during jury
voir dire. Id., at 210. Unlike here, however,
there was a trial objection to the closure, and the issue was
raised on direct appeal. Id., at 210–211. On review of the
State Supreme Court’s decision allowing the closure, this Court
expressed concern that the state court’s reasoning would allow the
courtroom to be closed during jury selection “whenever the trial
judge decides, for whatever reason, that he or she would prefer to
fill the courtroom with potential jurors rather than spectators.”
Id., at 215 (internal quotation marks omitted). Although the
Court expressly noted that courtroom closure may be ordered in some
circumstances, the Court also stated that it was “still incumbent
upon” the trial court “to consider all reasonable alternatives to
closure.” Id., at 215–216.
These opinions 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. For example, there are often
preliminary instructions that a judge may want to give to the
venire as a whole, rather than repeating those instructions
(perhaps with unintentional differences) to several groups of
potential jurors. On the other hand, various constituencies of the
public—the family of the accused, the family of the victim, members
of the press, and other persons—all have their own interests in
observing the selection of jurors. How best to manage these
problems is not a topic discussed at length in any decision or
commentary the Court has found.
So although the public-trial right is
structural, it is subject to exceptions. See Simonson, The Criminal
Court Audience in a Post-Trial World, 127 Harv. L. Rev. 2173,
2219–2222 (2014) (discussing situations in which a trial court may
order a courtroom closure). Though these cases should be rare, a
judge may deprive a defendant of his right to an open courtroom by
making proper factual findings in support of the decision to do so.
See Waller, supra, at 45. 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, moreover, as
it did in Presley, 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. See
558 U. S., at 215. It would be unconvincing to deem a trial
fundamentally unfair just because a judge omitted to announce
factual findings before making an otherwise valid decision to order
the courtroom temporarily closed. As a result, it would be likewise
unconvincing if the Court had said that a public-trial violation
always leads to a fundamentally unfair trial.
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.” Gonzalez-Lopez, 548
U. S., at 149, n. 4; see also Waller,
supra, at 49, n. 9.
The public-trial right also protects some
interests that do not belong to the defendant. 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. See, e.g.,
Press-Enterprise Co. v. Superior Court of Cal., Riverside
Cty., 464 U. S. 501 –510 (1984); Richmond Newspapers,
Inc. v. Virginia, 448 U. S. 555 –573 (1980). 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.
III
The Court now turns to the proper remedy for
addressing the violation of a structural right, and in particular
the right to a public trial. Despite its name, the term “structural
error” carries with it no talismanic significance as a doctrinal
matter. It means only that the government is not entitled to
deprive the defendant of a new trial by showing that the error was
“harmless beyond a reasonable doubt.” Chapman, 386
U. S., at 24. Thus, in the case of a structural error where
there is an objection at trial and the issue is raised on direct
appeal, the defendant gener-ally is entitled to “automatic
reversal” regardless of the error’s actual “effect on the outcome.”
Neder v. United States, 527 U. S. 1, 7 (1999)
.
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. 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.” Strickland
v. Washington, 466 U. S. 668, 687 (1984) . Second, the
defendant must show that the attorney’s error “prejudiced the
defense.” Ibid.
The prejudice showing is in most cases a
necessary part of a Strickland claim. The reason is that a
defendant has a right to effective representation, not a right to
an attorney who performs his duties “mistake-free.”
Gonzalez-Lopez, 548 U. S., at 147. As a rule,
therefore, a “violation of the Sixth Amendment right to effective
representation is not ‘complete’ until the defendant is
prejudiced.” Ibid. (emphasis deleted); see also Premo
v. Moore, 562 U. S. 115, 128 (2011) ; Lockhart
v. Fretwell, 506 U. S. 364, 370 (1993) .
That said, the concept of prejudice is defined
in different ways depending on the context in which it appears. In
the ordinary Strickland case, prejudice means “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” 466
U. S., at 694. But the Strickland Court cautioned that
the prejudice inquiry is not meant to be applied in a “mechanical”
fashion. Id., at 696. For when a court is evaluating an
ineffective-assistance claim, the ultimate inquiry must concentrate
on “the fundamental fairness of the proceeding.” Ibid.
Petitioner therefore argues that under a proper interpretation of
Strickland, even if there is no showing of a reasonable
probability of a different outcome, relief still must be granted if
the convicted person shows that attorney errors rendered the trial
fundamentally unfair. For the analytical purposes of this case, the
Court will assume that petitioner’s interpretation of
Strickland is the correct one. In light of the Court’s
ultimate holding, however, the Court need not decide that question
here.
As explained above, not every public-trial
violation will in fact lead to a fundamentally unfair trial. See
supra, at 10. Nor can it be said that the failure to object
to a public-trial violation always deprives the defendant of a
reason-able probability of a different outcome. Thus, when a
de-fendant 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, see supra, at 11, to show that the particular
public-trial violation was so serious as to render his or her trial
fundamentally unfair.
Neither the reasoning nor the holding here calls
into question the Court’s precedents determining that certain
errors are deemed structural and require reversal because they
cause fundamental unfairness, either to the defendant in the
specific case or by pervasive undermining of the systemic
requirements of a fair and open judicial process. See Murray, A
Contextual Approach to Harmless Error Review, 130 Harv.
L. Rev. 1791, 1813, 1822 (2017) (noting that the “eclectic
normative objectives of criminal procedure” go beyond protecting a
defendant from erroneous conviction and include ensuring
“ ‘that the administration of justice should reasonably appear
to be disinterested’ ” (quoting Liljeberg v. Health
Services Acquisition Corp., 486 U. S. 847 –870 (1988))).
Those precedents include Sullivan v. Louisiana, 508
U. S., at 278–279 (failure to give a reasonable-doubt
instruction); Tumey v. Ohio, 273 U. S. 510, 535
(1927) (biased judge); and Vasquez v. Hillery, 474
U. S., at 261–264 (exclusion of grand jurors on the basis of
race). See Neder, supra, at 8 (describing each of
these errors as structural). This Court, in addition, has granted
automatic relief to defendants who prevailed on claims alleging
race or gender discrimination in the selection of the petit jury,
see Batson v. Kentucky, 476 U. S. 79, 100 (1986)
; J. E. B. v. Alabama ex rel. T. B., 511 U. S.
127 –146 (1994), though the Court has yet to label those errors
structural in express terms, see, e.g., Neder,
supra, at 8. The errors in those cases necessitated
automatic reversal after they were preserved and then raised on
direct appeal. And this opinion does not address whether the result
should be any different if the errors were raised instead in an
ineffective-assistance claim on collateral review.
The reason for placing the burden on the
petitioner in this case, however, derives both from the nature of
the error, see supra, at 11–12, and the difference between a
public-trial violation preserved and then raised on direct review
and a public-trial violation raised as an
ineffective-assistance-of-counsel claim. 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. See supra, at 8–9. 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.
Furthermore, when state or federal courts
adjudicate errors objected to during trial and then raised on
direct review, the systemic costs of remedying the error are
diminished to some extent. That is because, if a new trial is
ordered on direct review, there may be a reasonable chance that not
too much time will have elapsed for witness memories still to be
accurate and physical evidence not to be lost. There are also
advantages of direct judicial supervision. Reviewing courts, in the
regular course of the appellate process, can give instruction to
the trial courts in a familiar context that allows for elaboration
of the relevant principles based on review of an adequate record.
For instance, in this case, the factors and circumstances that
might justify a temporary closure are best considered in the
regular appellate process and not in the context of a later
proceeding, with its added time delays.
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,
see Strickland, 466 U. S., at 693–694 (noting the
“profound importance of finality in criminal proceedings”), and
direct review often has given at least one opportunity for an
appellate review of trial proceedings. These differences justify a
different standard for evaluating a structural error depending on
whether it is raised on direct review or raised instead in a claim
alleging ineffective assistance of counsel.
In sum, “[a]n ineffective-assistance claim can
function as a way to escape rules of waiver and forfeiture and
raise issues not presented at trial,” thus undermining the
final-ity of jury verdicts. Harrington v. Richter,
562 U. S. 86, 105 (2011) . For this reason, the rules
governing ineffective-assistance claims “must be applied with
scrupulous care.” Premo, 562 U. S., at 122.
IV
The final inquiry concerns the
ineffective-assistance claim in this case. Although the case comes
on the assumption that petitioner has shown deficient performance
by counsel, he has not shown prejudice in the ordinary sense,
i.e., a reasonable probability that the jury would not have
convicted him if his attorney had objected to the closure.
It is of course possible that potential jurors
might have behaved differently if petitioner’s family had been
present. And it is true that the presence of the public might have
had some bearing on juror reaction. But here petitioner offered no
“evidence or legal argument establishing prejudice” in the sense of
a reasonable probability of a different outcome but for counsel’s
failure to object. App. to Pet. for Cert. 64a; see
Strickland, 466 U. S., at 694.
In other circumstances a different result might
obtain. If, for instance, defense counsel errs in failing to object
when the government’s main witness testifies in secret, then the
defendant might be able to show prejudice with little more detail.
See ibid. Even in those circumstances, however, the burden
would remain on the defendant to make the prejudice showing,
id., at 694, 696, because a public-trial violation does not
always lead to a fundamentally unfair trial, see supra, at
10.
In light of the above assumption that prejudice
can be shown by a demonstration of fundamental unfairness, see
supra, at 11, the remaining question is whether petitioner
has shown that counsel’s failure to object rendered the trial
fundamentally unfair. See Strickland, supra, at 696.
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. Cf. In
re Oliver, 333 U. S. 257 , n. 22 (1948). 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. For example, there is no suggestion that any juror lied
during voir dire; no suggestion of misbehavior by the
prosecutor, judge, or any other party; and no suggestion that any
of the participants failed to approach their duties with the
neutrality and serious purpose that our system demands.
It is true that this case comes here on the
assumption that the closure was a Sixth Amendment violation. And it
must be recognized that open trials ensure respect for the justice
system and allow the press and the public to judge the proceedings
that occur in our Nation’s courts. Even so, the violation here did
not pervade the whole trial or lead to basic unfairness.
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. As explained above, he has not made
the required showing. The judgment of the Massachusetts Supreme
Judicial Court is affirmed.
It is so ordered.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–240
_________________
KENTEL MYRONE WEAVER, PETITIONER v.
MASSACHUSETTS
on writ of certiorari to the supreme judicial
court of massachusetts
[June 22, 2017]
Justice Alito, with whom Justice Gorsuch
joins, concurring in the judgment.
This case calls for a straightforward
application of the familiar standard for evaluating ineffective
assistance of counsel claims. Strickland v.
Washington, 466 U. S. 668, 687 (1984) . Weaver cannot
meet that standard, and therefore his claim must be rejected.
The Sixth Amendment protects a criminal
defendant’s right “to have the Assistance of Counsel for his
defence.” That right is violated when (1) “counsel’s performance
was deficient” in the relevant sense of the term and (2) “the
deficient performance prejudiced the defense.” Strickland,
supra, at 687. The prejudice requirement—which is the one at
issue in this case—“arises from the very nature” of the right to
effective representation: Counsel simply “cannot be ‘ineffective’
unless his mistakes have harmed the defense (or, at least, unless
it is reasonably likely that they have).” United States v.
Gonzalez-Lopez, 548 U. S. 140, 147 (2006) . In other
words, “a violation of the Sixth Amendment right to
effective representation is not ‘complete’ until the
defendant is prejudiced.” Ibid.
Strickland’s definition of prejudice is
based on the reli-ability of the underlying proceeding. “The
benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as
having produced a just result.” 466 U. S., at 686 (emphasis
added); see United States v. Cronic, 466 U. S.
648, 658 (1984) . This is so because “[t]he purpose of the Sixth
Amendment guarantee of counsel is to ensure that a defendant has
the assistance necessary to justify reliance on the outcome of the
proceeding.” Strickland, 466 U. S., at 691–692.
Accordingly, an attorney’s error “does not warrant setting aside
the judgment of a criminal proceeding if the error had no effect on
the judgment.” Id., at 691.
Weaver makes much of the Strickland
Court’s statement that “the ultimate focus of inquiry must be on
the fundamental fairness of the proceeding.” Id., at 696.
But the very next sentence clarifies what the Court had in mind,
namely, the reliability of the proceeding. In that sentence, the
Court explains that the proper concern—“[i]n every case”—is
“whether, despite the strong presumption of reliability, the result
of the particular proceeding is unreliable.” Ibid. In other
words, the focus on reliability is consistent throughout the
Strickland opinion.
To show that a counsel’s error rendered a legal
proceeding unreliable, a defendant ordinarily must demonstrate “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Id., at 694. In a challenge to a conviction, such as the one
in this case, this means that the defendant must show “a reasonable
probability that, absent the errors, the factfinder would have had
a reasonable doubt respecting guilt.” Id., at 695.
The Court has relieved defendants of the
obligation to make this affirmative showing in only a very narrow
set of cases in which the accused has effectively been denied
counsel altogether: These include the actual or constructive denial
of counsel, state interference with counsel’s assistance, or
counsel that labors under actual conflicts of interest. Id.,
at 692; Cronic, 466 U. S., at 658–660. Prejudice can be
presumed with respect to these errors because they are “so likely
to prejudice the accused that the cost of litigating their effect
in a particular case is unjustified.” Id., at 658; see
Strickland, supra, at 692; Mickens v.
Taylor, 535 U. S. 162, 175 (2002) .
In short, there are two ways of meeting the
Strickland prejudice requirement. A defendant must
demonstrate either that the error at issue was prejudicial or that
it belongs to the narrow class of attorney errors that are
tantamount to a denial of counsel, for which an individualized
showing of prejudice is unnecessary.
Weaver attempts to escape this framework by
stressing that the deprivation of the right to a public trial has
been described as a “structural” error, but this is irrelevant
under Strickland. The concept of “structural error” comes
into play when it is established that an error occurred at the
trial level and it must be decided whether the error was harmless.
See Neder v. United States, 527 U. S. 1, 7
(1999) ; Arizona v. Fulminante, 499 U. S. 279
–310 (1991). The prejudice prong of Strickland is entirely
different. It does not ask whether an error was harmless but
whether there was an error at all, for unless counsel’s deficient
performance prejudiced the defense, there was no Sixth Amendment
violation in the first place. See Gonzalez-Lopez,
supra, at 150 (even where an attorney’s defi-cient
performance “pervades the entire trial,” “we do not allow reversal
of a conviction for that reason without a showing of prejudice”
because “the requirement of showing prejudice in ineffectiveness
claims stems from the very definition of the right at issue”).
Weaver’s theory conflicts with Strickland because it implies
that an attorney’s error can be prejudicial even if it “had no
effect,” or only “some conceivable effect,” on the outcome of his
trial. Strickland, supra, at 691, 693. That is
precisely what Strickland rules out.
To sum up, in order to obtain relief under
Strickland, Weaver must show that the result of his trial
was unreli-able. He could do so by demonstrating a reasonable
likelihood that his counsel’s error affected the verdict.
Alternatively, he could establish that the error falls within the
very short list of errors for which prejudice is presumed. Weaver
has not attempted to make either argument, so his claim must be
rejected. I would affirm the judgment of the Supreme Judicial Court
of Massachusetts on that ground.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–240
_________________
KENTEL MYRONE WEAVER, PETITIONER v.
MASSACHUSETTS
on writ of certiorari to the supreme judicial
court of massachusetts
[June 22, 2017]
Justice Breyer, with whom Justice Kagan joins,
dissenting.
The Court notes that Strickland’s
“prejudice inquiry is not meant to be applied in a ‘mechanical’
fashion,” ante, at 11 (quoting Strickland v.
Washington, 466 U. S. 668, 696 (1984) ), and I agree.
But, in my view, it follows from this principle that a defendant
who shows that his attorney’s constitutionally deficient
performance produced a structural error should not face the
additional—and often insurmountable—Strickland hurdle of
demonstrating that the error changed the outcome of his
proceeding.
In its harmless-error cases, this Court has
“divided constitutional errors into two classes”: trial errors and
structural errors. United States v. Gonzalez-Lopez,
548 U. S. 140, 148 (2006) . Trial errors are discrete mistakes
that “occu[r] during the presentation of the case to the jury.”
Arizona v. Fulminante, 499 U. S. 279, 307 (1991)
. Structural errors, on the other hand, “affec[t] the framework
within which the trial proceeds.” Id., at 310.
The Court has recognized that structural errors’
distinctive attributes make them “defy analysis by ‘harmless-error’
standards.” Id., at 309. It has therefore
categorically exempted structural errors from the
case-by-case harmlessness review to which trial errors are
subjected. Our precedent does not try to parse which structural
errors are the truly egregious ones. It simply views all
structural errors as “intrinsically harmful” and holds that
any structural error warrants “automatic reversal” on direct
appeal “without regard to [its] effect on the outcome” of a trial.
Neder v. United States, 527 U. S. 1, 7 (1999)
.
The majority here does not take this approach.
It assumes that some structural errors—those that “lead to
fundamental unfairness”—but not others, can warrant relief without
a showing of actual prejudice under Strickland. Ante,
at 7, 11–12. While I agree that a showing of fundamental unfairness
is sufficient to satisfy Strickland, I would not try to draw
this distinction.
Even if some structural errors do not create
fundamental unfairness, all structural errors nonetheless
have features that make them “defy analysis by ‘harmless-error’
standards.” Fulminante, supra, at 309. This is why
all structural errors—not just the “fundamental unfairness”
ones—are exempt from harmlessness inquiry and warrant automatic
reversal on direct review. Those same features mean that all
structural errors defy an actual-prejudice analysis under
Strickland.
For instance, the majority concludes that some
errors—such as the public-trial error at issue in this case—have
been labeled “structural” because they have effects that “are
simply too hard to measure.” Ante, at 6; see, e.g.,
Sullivan v. Louisiana, 508 U. S. 275 –282 (1993)
(explaining that structural errors have “consequences that are
necessarily unquantifiable and indeterminate”). But how could any
error whose effects are inherently indeterminate prove susceptible
to actual-prejudice analysis under Strickland? Just as the
“difficulty of assessing the effect” of such an error would turn
harmless-error analysis into “a speculative inquiry into what might
have occurred in an alternate universe,” Gonzalez-Lopez,
supra, at 149, n. 4, 150, so too would it undermine a
defendant’s ability to make an actual-prejudice showing to
establish an ineffective-assistance claim.
The problem is evident with regard to
public-trial violations. This Court has recognized that “the
benefits of a public trial are frequently intangible, difficult to
prove, or a matter of chance.” Waller v. Georgia, 467
U. S. 39 , n. 9 (1984). As a result, “a requirement that
prejudice be shown ‘would in most cases deprive [the defendant] of
the [public-trial] guarantee, for it would be difficult to envisage
a case in which he would have evidence available of specific
injury.’ ” Ibid. (quoting United States ex rel.
Bennett v. Rundle, 419 F. 2d 599, 608 (CA3 1969)
(en banc)) (alteration in original). In order to establish actual
prejudice from an attorney’s failure to object to a public-trial
violation, a defendant would face the nearly impossible burden of
establishing how his trial might have gone differently had it been
open to the public. See ibid. (“ ‘[D]emonstration of
prejudice in this kind of case is a practical impossibility
. . .’ ” (quoting State v. Sheppard,
182 Conn. 412, 418, 438 A. 2d 125, 128 (1980))).
I do not see how we can read Strickland
as requiring defendants to prove what this Court has held cannot be
proved. If courts do not presume prejudice when counsel’s deficient
performance leads to a structural error, then defendants may well
be unable to obtain relief for incompetence that deprived them “of
basic protections without which a criminal trial cannot reliably
serve its function as a vehicle for determination of guilt or
innocence.” Neder, supra, at 8–9 (internal quotation
marks omitted). This would be precisely the sort of “mechanical”
application that Strickland tells us to avoid.
In my view, we should not require defendants to
take on a task that is normally impossible to perform. Nor would I
give lower courts the unenviably complex job of deciphering which
structural errors really undermine fundamental fairness and which
do not—that game is not worth the candle. 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. A showing that an attorney’s
constitutionally deficient performance produced a structural error
should consequently be enough to entitle a defendant to relief. I
respectfully dissent.
