April 19, 2017
OF CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS
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. Defense counsel neither objected to
the closure at trial nor raised the issue on direct review.
Petitioner was convicted of murder and a related charge. Five
years later, he filed a motion for a new trial in state
court, arguing, as relevant here, that his attorney had
provided ineffective assistance by failing to object to the
courtroom closure. The trial court ruled that he was not
entitled to relief. The Massachusetts Supreme Judicial Court
affirmed in relevant part. Although it recognized that the
violation of the right to public trial was a structural
error, it rejected petitioner's ineffective-assistance
claim because he had not shown prejudice.
1. In the context of a public-trial violation during jury
selection, where the error is neither preserved nor raised on
direct review but is raised later via an
ineffective-assistance-of-counsel claim, the defendant must
demonstrate prejudice to secure a new trial. Pp. 5-14.
(a) This case requires an examination of the proper
application of the doctrines of structural error and
ineffective assistance of counsel. They are intertwined,
because the reasons an error is deemed structural may
influence the proper standard used to evaluate an
ineffective-assistance claim premised on the failure to
object to that error. Pp. 5-10.
(1) Generally, a constitutional error that "did not
contribute to the verdict obtained" is deemed harmless,
which means the defend- ant is not entitled to reversal.
Chapman v. California, 386 U.S. 18, 24. However, a
structural error, which "affect[s] the framework within
which the trial proceeds, " Arizona v.
Fulminante, 499 U.S. 279, 310, defies harmless error
analysis, id., at 309. Thus, when a structural error
is objected to and then raised on direct review, the
defendant is entitled to relief without any inquiry into
There appear to be at least three broad rationales for
finding an error to be structural. One is when the right at
issue does not protect the defendant from erroneous
conviction but instead protects some other interest-like the
defendant's right to conduct his own defense-where harm
is irrelevant to the basis underlying the right. See
United States v. Gonzalez-Lopez, 548 U.S. 140, 149,
n. 4. Another is when the error's effects are simply too
hard to measure-e.g., when a defendant is denied the
right to select his or her own attorney-making it almost
impossible for the government to show that the error was
"harmless beyond a reasonable doubt, " Chapman,
supra, at 24. Finally, some errors always result in
fundamental unfairness, e.g., when an indigent
defendant is denied an attorney, see Gideon v.
Wainwright, 372 U.S. 335, 343-345. For purposes of this
case, a critical point is that an error can count as
structural even if it does not lead to fundamental unfairness
in every case. See Gonzalez-Lopez, supra, at 149, n.
4. Pp. 5-7.
(2) While a public-trial violation counts as structural
error, it does not always lead to fundamental unfairness.
This Court's opinions teach that courtroom closure is to
be avoided, but that there are some circumstances when it is
justified. See Waller v. Georgia, 467 U.S. 39;
Presley v. Georgia, 558 U.S. 209, 215-216. The fact
that the public-trial right is subject to exceptions suggests
that not every public-trial violation results in fundamental
unfairness. Indeed, the Court has said that a public-trial
violation is structural because of the "difficulty of
assessing the effect of the error." Gonzalez-Lopez,
supra, at 149, n. 4. The public-trial right also
furthers interests other than protecting the defendant
against unjust conviction, including the rights of the press
and of the public at large. See, e.g., Press-Enterprise
Co. v. Superior Court of Col., Riverside Cty., 464 U.S.
501, 508-510. Thus, an unlawful closure could take place and
yet the trial will still be fundamentally fair from the
defendant's standpoint. Pp. 7-10.
(b) The proper remedy for addressing the violation of the
right to a public trial depends on when the objection was
raised. If an objection is made at trial and the issue is
raised on direct appeal, the defendant generally is entitled
to "automatic reversal" regardless of the
error's actual "effect on the outcome."
Neder v. United States, 527 U.S. 1, 7. If, however,
the defendant does not preserve a structural error on direct
review but raises it later in the context of an
ineffective-assistance claim, the defendant generally bears
the burden to show deficient performance and that the
attorney's error "prejudiced the defense."
Strickland v. Washington, 466 U.S. 668, 687. To
demonstrate prejudice in most cases, the defendant must show
"a reasonable probability that . . . the result of the
proceeding would have been different" but for attorney
error. Id., at 694. For the analytical purposes of
this case, the Court will assume, as petitioner has
requested, that even if there is no showing of a reasonable
probability of a different outcome, relief still must be
granted if the defendant shows that attorney errors rendered
the trial fundamentally unfair.
Not every public-trial violation will lead to a fundamentally
unfair trial. And the failure to object to that violation
does not always deprive the defendant of a reasonable
probability of a different outcome. 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
Neither this reasoning nor the holding here calls into
question the Court's precedents deeming certain errors
structural and requiring reversal because of fundamental
unfairness, see Sullivan v. Louisiana, 508 U.S., at
278-279; Tumey v. Ohio, 273 U.S. 510, 535;
Vasquez v. Hillery, 474 U.S., at 261-264, or those
granting automatic relief to defendants who prevailed on
claims of race or gender discrimination in jury selection,
e.g., Batson v. Kentucky, 476 U.S. 79, 100. The
errors in each of these cases were preserved and then raised
on direct appeal. The reason for placing the burden on the
petitioner here, however, derives both from the nature of the
error and the difference between a public-trial violation
preserved and then raised on direct review and a public-trial
violation raised as an ineffective-assistance claim.
When a defendant objects to a courtroom closure, the trial
court can either order the courtroom opened or explain the
reasons for keeping it closed, but when a defendant first
raises the closure in an ineffective-assistance claim, the
trial court has no chance to cure the violation. The costs
and uncertainties of a new trial are also greater because
more time will have elapsed in most cases. And the finality
interest is more at risk. See Strickland, supra, at
693-694. These differences justify a different standard for
evaluating a structural error depending on whether it is
raised on direct review or in an ineffective-assistance
claim. Pp. 10-14.
2. Because petitioner has not shown a reasonable probability
of a different outcome but for counsel's failure to
object or that counsel's shortcomings led to a
fundamentally unfair trial, he is not entitled to a new
trial. Although potential jurors might have behaved
differently had petitioner's family or the public been
present, petitioner has offered no evidence suggesting a
reasonable probability of a different outcome but for
counsel's failure to object. He has also failed to
demonstrate fundamental unfairness. His mother and her
minister were indeed excluded during jury selection. But his
trial was not conducted in secret or in a remote place;
closure was limited to the jury voir dire; the
courtroom remained open during the evidentiary phase of the
trial; the closure decision apparently was made by court
officers, not the judge; venire members who did not become
jurors observed the proceedings; and the record of the
proceedings indicates no basis for concern, other than the
closure itself. There was no showing, furthermore, that the
potential harms flowing from a courtroom closure came to pass
in this case, e.g., misbehavior by the prosecutor,
judge, or any other party. Thus, even though this case comes
here on the assumption that the closure was a Sixth Amendment
violation, the violation here did not pervade the whole trial
or lead to basic unfairness. Pp. 14-16.
474 Mass. 787, 54 N.E.3d 495');">54 N.E.3d 495, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which
ROBERTS, C. J., and Thomas, Ginsburg, Sotomayor, and Gorsuch,
JJ., joined. THOMAS, J., filed a concurring opinion, in which
GORSUCH, J., joined. ALITO, J., filed an opinion concurring
in the judgment, in which GOR-SUCH, J., joined. BREYER, J.,
filed a dissenting opinion, in which KAGAN, J., joined.
petitioner's trial on state criminal charges, the
courtroom was occupied by potential jurors and closed to the
public for two days of the jury selection process. Defense
counsel neither objected to the closure at trial nor raised
the issue on direct review. And the case comes to the Court
on the assumption that, in failing to object, defense counsel
provided ineffective assistance.
direct review context, the underlying constitutional
violation-the courtroom closure-has been treated by this
Court as a structural error, i.e., an error
entitling the defendant to automatic reversal without any
inquiry into prejudice. The question is whether invalidation
of the conviction is required here as well, or if the
prejudice inquiry is altered when the structural error is
raised in the context of an ineffective-assistance-of-counsel
2003, a 15-year-old boy was shot and killed in Boston. A
witness saw a young man fleeing the scene of the crime and
saw him pull out a pistol. A baseball hat fell off of his
head. The police recovered the hat, which featured a
distinctive airbrushed Detroit Tigers logo on either side.
The hat's distinctive markings linked it to 16-year-old
Kentel Weaver. He is the petitioner here. DNA obtained from
the hat matched petitioner's DNA.
weeks after the crime, the police went to petitioner's
house to question him. He admitted losing his hat around the
time of the shooting but denied being involved.
Petitioner's mother was not so sure. Later, she
questioned petitioner herself. She asked whether he had been
at the scene of the shooting, and he said he had been there.
But when she asked if he was the shooter, or if he knew who
the shooter was, petitioner put his head down and said
nothing. Believing his response to be an admission of guilt,
she insisted that petitioner go to the police station to
confess. He did. Petitioner was indicted in Massachusetts
state court for first-degree murder and the unlicensed
possession of a handgun. He pleaded not guilty and proceeded
pool of potential jury members was large, some 60 to 100
people. The assigned courtroom could accommodate only 50 or
60 in the courtroom seating. As a result, the trial judge
brought all potential jurors into the courtroom so that he
could introduce the case and ask certain preliminary
questions of the entire venire panel. Many of the potential
jurors did not have seats and had to stand in the courtroom.
After the preliminary questions, the potential jurors who had
been standing were moved outside the courtroom to wait during
the individual questioning of the other potential jurors. 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
of the seats in the courtroom were occupied by the venire
panel, an officer of the court excluded from the courtroom
any member of the public who was not a potential juror. So
when petitioner's mother and her minister came to the
courtroom to observe the two days of jury selection, they
were turned away.
this occurred before the Court's decision in Presley
v. Georgia, 558 U.S. 209 (2010) (per curiam).
Presley made it clear that the public-trial right
extends to jury selection as well as to other portions of the
trial. Id., at 213-215. Before Presley,
Massachusetts courts would often close courtrooms to the
public during jury selection, in particular during murder
case petitioner's mother told defense counsel about the
closure at some point during jury selection. But counsel
"believed that a courtroom closure for [jury selection]
was constitutional." Crim. No. 2003-11293 (Super. Ct.
Mass., Feb. 22, 2013), App. to Pet. for Cert. 49a. As a
result, he "did not discuss the matter" with
petitioner, or tell him "that his right to a public
trial included the [jury voir dire], " or
object to the closure. Ibid.
the ensuing trial, the government presented strong evidence
of petitioner's guilt. Its case consisted of the
incriminating details outlined above, including
petitioner's confession to the police. The jury convicted
petitioner on both counts. The court sentenced him to life in
prison on the murder charge and to about a year in prison on
the gun-possession charge.
years later, petitioner filed a motion for a new trial in
Massachusetts state court. As relevant here, he argued that
his attorney had provided ineffective assistance by failing
to object to the courtroom closure. After an evidentiary
hearing, the trial court recognized a violation of the right
to a public trial based on the following findings: The
courtroom had been closed; the closure was neither de
minimis nor trivial; the closure was unjustified; and
the closure was full rather than partial (meaning that all
members of the public, rather than only some of them, had
been excluded from the courtroom). The trial court further
determined that defense counsel failed to object because of
"serious incompetency, inefficiency, or
inattention." Id., at 63a (quoting
Massachusetts v. Chleikh, 82 Mass.App. 718, 722, 978
N.E.2d 96, 100 (2012)). On the other hand, petitioner had not
"offered any evidence or legal argument establishing
prejudice." App. to Pet. for Cert. 64a. For that reason,
the court held that petitioner was not entitled to relief.
appealed the denial of the motion for a new trial to the
Massachusetts Supreme Judicial Court. The court consolidated
that appeal with petitioner's direct appeal. As noted,
there had been no objection to the closure at trial; and the
issue was not raised in the direct appeal. The Supreme
Judicial Court then affirmed in relevant part. Although it
recognized that "[a] violation of the Sixth Amendment
right to a public trial constitutes structural error, "
the court stated that petitioner had "failed to show
that trial counsel's conduct caused prejudice warranting
a new trial." 474 Mass. 787, ...