January 18, 2017 (Fault Lines) — The question presented might sound boring. It’s not about abortion or affirmative action or anything that the media will bother to write “think-pieces” about. But in Weaver v. Massachusetts, the Supreme Court has granted cert on a significant issue: whether a defendant saddled with a bad lawyer has to prove he was harmed when that lawyer’s incompetence causes “structural” rather than regular error.
Typically, when a lawyer tells a higher court that a lower court made a mistake, he has to prove first the mistake, and then that the mistake could have affected the outcome of the trial. But some rights are “structural.” They go to the heart of what our justice system does. It’s hard to prove that the deprivation of the right led to a different outcome, but at the same time courts don’t always want to honor a guilty verdict that came about only through a serious breach of due process.
In this case, a sixteen-year-old was on trial for murder and a courtroom official would not allow anyone who was not a member of the court to watch. This is classic structural error—trials must be open to the public. If an attorney objects, and the trial court doesn’t have some excellent reason to close the proceedings to the public, the conviction will be reversed no matter how overwhelming the evidence. This is something that any capable attorney would be expected to know, but the lawyer in this case didn’t, suggesting “serious incompetency,” according to the Supreme Court of Massachusetts.
But, while all courts agree that an objected structural error is a guaranteed reversal for the defendant, there is a huge split among federal and state supreme courts about what happens when one deprivation of due process collides with another—what happens when your lawyer is too crappy to object?
In our system of justice, the mistakes of your lawyer are your mistakes. If your lawyer doesn’t object to something he should have objected to, that’s on you. If he doesn’t uncover important evidence of your innocence, that’s on you. If he blows a deadline because he was too busy smoking weed with another client to work on your case, you guessed it, that’s on you.
Generally, to get around this problem, the client has to argue that his lawyer was constitutionally ineffective—akin to having no lawyer at all. To do this, you have to prove that no reasonable lawyer would make the same mistake. In Weaver’s case, that’s a slam dunk—any criminal defense attorney worth his salt knows to object to a courtroom closure unless there is a clear strategic reason you’d want the public cleared out. Outside of those edge cases where you hope that a witness will recant more readily in an empty room, it’s generally deficient, and here, the lawyer testified he had no idea you couldn’t close the courtroom.
Then comes the hard part. Under the Strickland test used to establish ineffective assistance of counsel, you have to show a reasonable possibility of a different result. But for “structural error” cases, this is almost impossible. How could you possibly prove that a closed courtroom was less favorable to your client than an open one?
There’s two ways that courts handle this problem. In some jurisdictions, like Georgia and the 11th circuit, courts simply shrug their shoulders. If you can’t meet the Strickland standard, you’re boned no matter how structural the error might be. This might strike some readers as unfair, but there’s a reason. We typically don’t like to blindside courts with reversals when a problem has not been brought to their attention.
Under a rule that presumes harm, a crafty attorney might deliberately choose not to object when a court made the mistake, hoping for a free shot at an acquittal before falling on their sword and letting the case be retried. In the world of prosecutors, the fear that defense attorneys will falsely claim incompetence to acquit their clients is both common and inexplicable—it’s hard enough getting lawyers to admit to real mistakes, let alone made up ones.
Still, the Massachusetts Supreme Court took this tack, finding that there was no good reason to revisit its rule that presuming prejudice in structural error ineffectiveness cases might serve as an “appellate parachute.”
On the other hand, courts can presume harm, as many federal circuits do. There’s some good stuff to be said about that—you’ll end up with judges being very proactive about not violating those structural error rules, because it’ll be almost an automatic reversal if there’s not some good reason for the defense attorney not to object. And there is something fundamentally unfair about telling a defendant that if he had a crappy judge and a good lawyer, he’d get a second trial, but because both made a mistake, he gets no relief. After all, one reason why we decide errors are structural is because harm is “impossible to prove.”
The vast majority of people in our system of justice don’t choose their lawyer. For them, it’s a crapshoot whether they will get someone with an encyclopedic knowledge of the law ready to fight to the hilt to defend them or Lionel Hutz. Even the few people who do choose their lawyers often don’t choose the right ones. How is an ordinary person supposed to sift through the thousand “top ten criminal defense lawyers” who bought the plaque?
A betting man might think the Supreme Court is likely to resolve the split against the presumers. Finality generally wins out over fairness, particularly when there isn’t much reason to doubt the guilt of the accused. In this case, the conviction hinged almost entirely upon the confession of the defendant, and the Massachusetts Supreme Court found that confession to have been given voluntarily. Given an unsympathetic case, and a rule that some might view as a technicality, the odds are good that those suffering from structural error are just going to have to pray for adequate counsel at trial.
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