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Tuesday, May 22, 2018

Redefining Strickland Prejudice after Weaver v. Massachusetts

At the Harvard Law Review Blog, Eve Brensike Primus and I posted a short piece about the Sixth Amendment right to effective assistance of counsel under Strickland v. Washington focusing, in particular, on some interesting things the Supreme Court had to say about Strickland's prejudice requirement last term in Weaver v. Massachusetts. I've copied the intro below. For the entire post, click here.

"Obtaining postconviction relief based on a defense attorney’s ineffective trial performance is notoriously difficult, but the U.S. Supreme Court may have just made it a little easier. In this post, we explain how the Supreme Court’s decision last term in Weaver v. Massachusetts offers a little-noticed but potentially powerful new way for criminal defendants to show they were prejudiced by their attorneys’ ineffectiveness. After Weaver, criminal defendants should argue, and courts should recognize, that an attorney’s deficient performance is prejudicial when counsel’s errors rendered the trial process fundamentally unfair—even if those errors did not have a probable effect on the trial outcome."

Posted by Justin Murray on May 22, 2018 at 12:08 PM in Constitutional thoughts, Criminal Law | Permalink


Just worth to quote , some cases ( hypothetical ) mentioned by the court , where such error to object closure of the courtroom , could lead to effective harm and a fundamentally unfair trial , here :

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…….

And more :

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.

And :

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.


Posted by: El roam | May 22, 2018 7:28:10 PM

Just clarification to my comment above :

The judges , were aware to that situation of avoidance of public trial ( partly ) here I quote :

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.


Posted by: El roam | May 22, 2018 3:19:08 PM

Interesting post and thanks for drawing our attention to that important ruling indeed . Unfortunately both posts ,don't tell us, what were the reasons for such avoidance ( at least partly ) of public trial. It seems indeed , that the reasons were not substantial , but rather I quote :

When petitioner was tried in a Massachusetts trial court , the courtroom could not accommodate all the potential jurors . As a result, for two days of jury selection, an officer of the court excluded from the courtroom any member of the public who was not a potential juror, including petitioner’s mother and her minister.

End of quotation :

Now , we shall avoid here the rational of public trial (so justice shall be not only served , but , manifestly served, to be seen publicly, that is to say , that it is the public and press rights that have been also violated ) Yet :

The court , has stated that , I quote :

Thus, a defendant raising a public-trial violation via an ineffective assistance claim must show either a reasonable probability of a different outcome in his or her case or, as assumed here, that the particular violation was so serious as to render the trial fundamentally unfair.

End of quotation :

So, one may argue , that the fact , that the judges , defaulted in clearly raising the attention of the lawyer or defendant , that his right for public trial has been violated , is sufficient for being defined as serious issue or error . For judges , are the " manager " of the procedure and frame work of the trial ( " inherent power " differentiated from strategy , rather attributed to lawyers ) . Now, when dealing with constitutional right and necessity , one can't project it only on lawyers , but also on judges . It took reasonable and warranted attention to notice it ( like hearing right for example ) and in accordance to notify the lawyer and defendant , that he could object it .

So , even without effectiveness , even without direct review , even without dealing with public trust , this bears enough seriousness , for ordering pre – trial it seems .


Posted by: El roam | May 22, 2018 2:35:47 PM

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