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Appellate procedure – Harmless Error: Public Trial – Violation as Structural Error

State v. Dhosi J. Ndina, 2009 WI 21, affirming 2007 WI App 268
For Ndina: Richard L. Kaiser


¶43      If a defendant’s right to a public trial is determined to have been violated, the defendant need not show prejudice; the doctrine of harmless error does not apply to structural errors. [15]

 [15]  See Neder v. United States, 527 U.S. 1, 8 (1999) (listing “denial of [a] public trial” among errors deemed “to be ‘structural,’ and thus subject to automatic reversal”); Johnson v. United States, 520 U.S. 461, 468-69 (1997) (same); Fulminante, 499 U.S. at 310 (same); Waller v. Georgia, 467 U.S. 39, 49-50 & n.9 (1984) (agreeing that “the defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee because such a requirement “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.”) (alterations in original; quoted source omitted).See also State v. Ford, 2007 WI 138, ¶43 and n.4, 306 Wis.   2d 1, 742 N.W.2d 61 (citing cases; characterizing the right to a public trial as a structural error subject to automatic reversal).

The question whether a constitutional error is susceptible to harmless-error analysis or rather is structural, requiring automatic reversal, should not be conflated with the question whether a constitutional right may be forfeited by timely failure to assert it or rather must be waived knowingly, voluntarily, and intelligently. The two inquiries, although related, are distinct.

The court of appeals had held that the public-trial issue had been waived and therefore was reviewable through the lens of ineffective assistance of counsel, which in turn required a defense showing of prejudice, 2007 WI App 268, ¶13. The supreme court did not distinctly overturn that holding which may as a result remain viable. Use of the term “prejudice” may be a bit confusing in this context. Indeed, Waller itself uses the term—but it’s obvious in context that what the court means is that the error is “structural,” which is to say, not subject to harmless error analysis. See Waller, at 50 n. 9. This (the “structural” nature of the error) is a point made implicitly by State v. David L. Vanness, 2007 WI App 195, and a bit more explicitly by Ndina. To be sure, this wouldn’t be the first time a court has held that “structural” error nonetheless requires a showing of “prejudice.” E.g., State v. Jesse Franklin, 2001 WI 104, ¶24 (“when not falling within one of the three presumptions enumerated in Strickland, prejudice will only result when the counsel’s errors have deprived the defendant of a fair trial whose result is reliable”), holding that violation of right to 12-person jury non-prejudicial. But at a certain level of generality a conundrum remains: How may a right be so “fundamental” as to require automatic reversible on preserved error yet nonetheless be subject to proof of prejudice when counsel fails to preserve objection? A riddle, wrapped in a mystery, inside an enigma? Or merely to be set aside as forgettable grist for the law review industry?

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