Whether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel’s ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits and two state high courts.
Under Strickland v. Washington, 466 U.S. 668 (1984), to prevail on an ineffective assistance of counsel claim a defendant must show both that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the defendant. At the same time, the Court has recognized that certain errors are so “structural” in nature—for instance, denial of the right to a jury, to a public trial, to an impartial judge, or to an attorney—that their harmful or prejudicial effect can’t readily be ascertained, so the occurrence of the error is enough to require a new trial, e.g., Arizona v. Fulminante, 499 U.S. 279 (1991).
So what happens when a defendant’s ineffective assistance claim argues that trial counsel’s deficient performance resulted in a structural defect? Does the defendant still have to prove prejudice? Or is the occurrence of the structural error dispense with the need for the defendant to prove prejudice because it is presumed? In Weaver’s case, his lawyer was deficient by failing to object to a two-day closure of the courtroom to the public during jury selection, a clear structural defect; yet the Massachusetts Supreme Court held that Weaver had to show prejudice, and found he failed to do so.
As the question presented says, there’s a deep split among federal circuit courts and state high courts on the question, creating inequitable and inconsistent outcomes in otherwise similar cases. Indeed, in a few places the federal circuit court takes a different approach than the state courts within the circuit. That is the situation in Wisconsin, which holds that even if counsel’s deficient performance resulted in a structural error, the defendant must still show prejudice, State v. Pinno, 2014 WI 74, 356 Wis. 2d 106, 850 N.W.2d 207 (which, like Weaver’s case, involved a failure to object to closing the courtroom to the public during jury selection); the Seventh Circuit, on the other hand, in a federal habeas case originating in Wisconsin, held prejudice may be presumed when counsel’s deficient performance caused a structural error, Winston v. Boatright, 649 F.3d 618 (7th Cir. 2011). Clearly, then, this will be an important decision because of how it may change state law governing the litigation of ineffective claims.
A final note: WACDL, represented by Rob Henak, joined an amicus brief in support of Weaver’s petition along with some other state criminal defense associations. As the amici point out (at 6-14), resolution of the question presented in this case will also guide the question of whether prejudice may be presumed in other contexts, such as procedurally defaulted structural error claims in federal habeas proceedings and plain-error review of forfeited structural error claims. Thus, the import of the decision in this case could go beyond ineffective assistance litigation in Wisconsin courts.