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SCOTUS: Habeas court erred in treating improper restriction on defendant’s closing argument as structural error

Glebe v. Frost, USSC No. 14-95, 11/17/14 (per curiam), reversing Frost v. Van Boening, 757 F.3d 910 (9th Cir. 2014) (en banc); docket and Scotusblog page

Supreme Court precedent has not clearly established that improper restriction of a defendant’s closing argument is structural error, so the Ninth Circuit erred in granting habeas relief on that ground.

Frost wanted to defend against criminal charges by arguing both that the state failed to prove he was an accomplice and that he acted under duress, but the state trial judge ruled he couldn’t simultaneously argue both theories in closing. The state supreme court held this restriction on his closing was improper, but harmless. On habeas review the Ninth Circuit concluded that under “clearly established federal law” for purposes of 28 U.S.C. § 2254(d)(1), improper restriction of the defendant’s closing argument a structural error. The Court summarily reverses:

[The Ninth Circuit’s] decision cannot stand. Assuming for argument’s sake that the trial court violated the Constitution, it was not clearly established that its mistake ranked as structural error. Most constitutional mistakes call for reversal only if the government cannot demonstrate harmlessness. Neder v. United States, 527 U.S. 1, 8, (1999). Only the rare type of error—in general, one that “‘infect[s] the entire trial process’” and “‘necessarily render[s][it] fundamentally unfair’”—requires automatic reversal. Ibid. None of our cases clearly requires placing improper restriction of closing argument in this narrow category.

The Ninth Circuit claimed that the Washington Supreme Court contradicted Herring v. New York, 422 U.S. 853 1975). Herring held that complete denial of summation violates the Assistance of Counsel Clause. According to the Ninth Circuit, Herring further held that this denial amounts to structural error. We need not opine on the accuracy of that interpretation. For even assuming that Herring established that complete denial of summation amounts to structural error, it did not clearly establish that the restriction of summation also amounts to structural error. A court could reasonably conclude, after all, that prohibiting all argument differs from prohibiting argument in the alternative. That is all the more true because our structural-error cases “ha[ve] not been characterized by [an] ‘in for a penny, in for a pound’ approach.” Nedersupra, at 17, n. 2. (Slip op. at 2-3).

Nor did the Ninth Circuit’s reliance on circuit precedent impress the Court: “As we have repeatedly emphasized, … circuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court.’” (Slip op. at 3).

The Ninth Circuit’s additional conclusion that Frost was forced to concede guilt in order to argue duress is “no more sound” than its structural error conclusion:

The trial court, to begin, did not prohibit the defense from arguing that the prosecution failed to prove the elements of the crime. It instead precluded the defense from simultaneously contesting reasonable doubt and claiming duress. Reasonable minds could disagree whether requiring the defense to choose between alternative theories amounts to requiring the defense to concede guilt. Still more could they disagree whether it amounts to eliminating the prosecution’s burden of proof, shifting the burden to the defendant, or directing a verdict. (Slip op. at 4).

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