Blog Essay

Redefining Strickland Prejudice after Weaver v. Massachusetts

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.

At Kentel Weaver’s murder trial, the judge closed the courtroom to the public during jury selection in violation of his Sixth Amendment right to a public trial. After his conviction, Weaver argued in a postconviction petition that his trial attorney was constitutionally ineffective for failing to object or even consult with him about the courtroom closure. To establish ineffective assistance of counsel under Strickland v. Washington, Weaver had to show that (a) his attorney’s performance was deficient given prevailing norms of practice and (b) this deficiency prejudiced his defense. The Massachusetts postconviction court concluded that Weaver’s trial attorney had performed deficiently but that he had failed to show prejudice.

Prejudice was the sole disputed question when Weaver’s case reached the U.S. Supreme Court last year. Weaver argued that prejudice should be presumed. After all, if his attorney had objected to the courtroom closure at trial and been overruled, Weaver would have been entitled to automatic reversal of his conviction on appeal. Violations of the right to a public trial are among the few constitutional errors, called “structural errors,” that require automatic reversal so long as the defendant lodges a timely objection. Most preserved constitutional claims are subject to harmless error review—which ordinarily means, practically speaking, that the prosecution can avoid reversal if it “prove[s] beyond a reasonable doubt that the error . . .  did not contribute to the verdict.” But the Supreme Court has held that structural errors “defy analysis by ‘harmless error’ standards” because they “affect[] the framework within which the trial proceeds.” Weaver argued that, because his Strickland claim was premised on his attorney’s failure to object to a public trial violation, and because public trial violations require automatic reversal when preserved for review on direct appeal, Strickland prejudice should be presumed.

The Supreme Court disagreed, holding that Weaver needed to show prejudice. But in reaching this conclusion, the Court displayed a surprising willingness to revisit criminal procedure’s dominant result-based conception of prejudice. In other words, the Court offered a new, alternative way of understanding Strickland’s prejudice requirement.

The prevailing understanding leading up to Weaver was that Strickland adopted an outcome-determinative definition of prejudice that required the defendant to show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” In Weaver, however, the Court noted that “the concept of prejudice is defined in different ways depending on the context in which it appears.” Justice Kennedy, writing for the majority, reminded readers that Strickland itself had “cautioned that the prejudice inquiry is not meant to be applied in a ‘mechanical’ fashion” and emphasized that “the ultimate inquiry must concentrate on the fundamental fairness of the proceeding’” (emphasis added). Relying on this language from Strickland, Weaver argued that “even if there is no showing of a reasonable probability of a different outcome, relief still must be granted if the convicted person shows that attorney errors rendered the trial fundamentally unfair.” In response, the Court “assume[d] that [this] interpretation of Strickland is the correct one” and restated the issue as whether Weaver could “show either a reasonable probability of a different outcome . . . or, as the Court has assumed for these purposes, . . . that the particular public-trial violation was so serious as to render his . . . trial fundamentally unfair.”

The Court held that Weaver could not make the requisite showing of prejudice. The Court explained that errors are deemed “structural” for different reasons and that these differences inform the fundamental unfairness inquiry. Some errors are structural, according to the Court, because they “always result[] in fundamental unfairness.” Others are structural because their effects “are simply too hard to measure” or because they are designed to protect some interest other than preventing erroneous convictions. The Court concluded that public trial violations are structural errors of the latter sort but that they do not always result in fundamental unfairness and, as a result, an ineffectiveness claim predicated on such a violation does not automatically establish Strickland prejudice. Nor did the Court think that Weaver had demonstrated fundamental unfairness on the particular facts of his case. There was no evidence that “any juror lied during voir dire,” that there was “misbehavior by the prosecutor, judge, or any other party,” or that “any of the participants failed to approach their duties with the neutrality and serious purpose that our system demands.” So, the Court concluded, “the violation here did not pervade the whole trial or lead to basic unfairness.”

Although Weaver lost his claim, the majority’s willingness to entertain expansion of Strickland’s prejudice test to include a fundamental unfairness inquiry—separate from the traditional focus on whether deficient performance affected the outcome—represents an important doctrinal shift. It is a shift, moreover, that did not go unnoticed by Justices Thomas, Alito, and Gorsuch, who criticized this aspect of the majority opinion. In two separate concurring opinions, these Justices contended that the majority’s analysis of fundamental unfairness under the rubric of Strickland prejudice was dicta that lower courts could—and should—ignore.

But state and lower federal courts have already begun embracing Weaver’s dicta about fundamental unfairness as justification for enlarging Strickland’s conception of prejudice. Most of these courts have done so under the rubric of the Sixth Amendment, but one state (Maryland) has also suggested that its state constitution requires consideration of fundamental unfairness when addressing prejudice for purposes of an ineffective-assistance claim.

The largest group of cases in which courts have relied on Weaver’s fundamental fairness analysis involve ineffective assistance claims that, like Kentel Weaver’s claim, are premised on the trial attorney’s failure to object to a public trial violation. Whereas Weaver assumed, but did not decide, that this kind of attorney error is prejudicial under Strickland if it renders the trial process fundamentally unfair, numerous federal and state courts (including the Sixth Circuit; federal district courts in Washington, Puerto Rico, Massachusetts, and Texas; and state courts in Texas, Pennsylvania, Missouri, and Washington) have held or at least strongly intimated since Weaver that fundamental unfairness is a viable theory of prejudice for Strickland claims predicated on public trial errors.

Even beyond cases involving the right to a public trial, defendants with ineffective-assistance-of-counsel claims premised on other kinds of structural errors—most notably Batson violations—are also likely to benefit from Weaver. In fact, Weaver mentioned Batson as an example of those kinds of errors that are structural “because they cause fundamental unfairness, either to the defendant in the specific case or by pervasive undermining of the systemic requirements of a fair and open judicial process” (emphasis added). And several post-Weaver decisions—by the Third Circuit, the Eastern District of Pennsylvania, the Maryland Court of Appeals, and the Utah Court of Appeals—appear to embrace Weaver’s fundamental unfairness framework in connection with Strickland claims based on various structural errors unrelated to the public trial right.

These developments are remarkable given that Weaver has gone largely unnoticed by both the defense bar and academics outside the context of public-trial violations—an oversight we hope to see corrected. For Batson violations and other errors that qualify as structural on the ground that they always result in fundamental unfairness, defendants should argue based on Weaver that a finding of deficient performance stemming from a failure to object to these structural errors causes prejudice per se as a matter of federal (and possibly state) constitutional law.

Defendants should also push courts to recognize the fundamental unfairness theory of prejudice in ineffective-assistance cases not involving structural errors. The alleged attorney errors complained of in Strickland did not implicate any recognized category of structural error, nor do the vast majority of other ineffective assistance claims. Yet, as noted above, Strickland emphasized that “the ultimate focus of inquiry” for ineffective assistance “must concentrate on the fundamental fairness of the proceeding”—the very language that Weaver used to create room for the idea that fundamental unfairness can satisfy the prejudice element even when the defendant cannot show that the attorney’s poor performance had a probable effect on the outcome. And, as Justice Kennedy emphasized in his opinion for the Court in Weaver, “the term ‘structural error’ carries with it no talismanic significance as a doctrinal matter.” It is not an error’s label that matters, but whether it resulted in a fundamentally unfair process—or, of course, a reasonable probability of a different outcome.

Finally, there is no reason why the reconceptualization of prejudice suggested by Weaver has to stay confined to ineffective-assistance cases. Strickland prejudice was designed to be tougher for defendants to satisfy than the harmless error rule applicable to most other kinds of constitutional error. So to the extent Weaver evinces a willingness to relax the outcome-determinative definition of prejudice that has prevailed for decades in the ineffective-assistance context, the case for caring about procedural fairness (or, in Weaver’s terms, “fundamental fairness”) in harmless error cases would seem to follow a fortiori.