AuthorBarnett-Mayotte, Cal

INTRODUCTION 1050 I. THE PROBLEM, AND A SOLUTION, SKETCHED 1053 II. WEAVER AND THE CASE FOR PRESUMING STRICKLAND PREJUDICE FOR BATSON ERROR 1063 A. WEAVER SHIFT 1063 B. Applying Weaver to Batson 1068 1. Batson Violations Cause Unfairness to Defendants 1070 2. Batson Violations Cause That Unfairness "In Every Case" 1072 3. Batson Violations Cause Fundamental Unfairness 1072 III. HABEAS IMPLICATIONS: EXCUSING PROCEDURAL DEFAULT 1076 A. Reading No. 1: Cause Subsumes Prejudice 1080 B. Reading No. 2: Presuming Prejudice (Again) 1082 C. Objection: Habeas Expionnalism 1087 Conclution 1091 A Batson violation--racially discriminatory jury selection--is a structural error, "not amenable" to harmless error review on direct appeal. By definition, structural errors evade traditional prejudice analysis. But, when a petitioner argues on collateral review that their trial counsel provided ineffective assistance by failing to object to a Batson violation, a number of circuits require a showing of Strickland prejudice. As some of these courts recognize, they demand the impossible.

In 2017, the Supreme Court in Weaver v. Massachusetts suggested that structural errors that "always result in fundamental unfairness" should not undergo a prejudice analysis. Instead, courts should presume that these errors cause prejudice. Though often misread, Weaver marked an important shift in Strickland doctrine. I argue that, since Batson violations always result in fundamental unfairness, they merit a presumption of Strickland prejudice.

But many ineffective assistance of counsel claims arise on federal habeas corpus review, and the Weaver Court had no occasion to apply its ruling to the habeas context. Habeas doctrine features its own prejudice standard: if a claim has procedurally defaulted in state court, a habeas court will refuse to hear it unless the petitioner demonstrates "cause" for the failure to raise the claim in state court, and "prejudice" suffered from the violation of the federal right. If it continues to demand a showing of prejudice, procedural default threatens to preclude federal review of the newly viable but procedurally defaulted Batson-IAC claims for which Weaver clears the way.

I investigate Weavers impact on one pathway around procedural default: the one carved by Martinez v. Ryan. Martinez held that ineffective assistance of initial-review postconviction counsel should provide "cause" for the failure to raise a substantial ineffective-assistance-of-trial-counsel (IATC) claim in state court. Martinez elevated procedural fairness over formal roadblocks; it insisted that a substantial IATC claim must receive at least one airing, in one court. A stubborn insistence that a Batson-IAC victim show prejudice would construct another formal roadblock at the expense of procedural fairness. Where a habeas petitioner successfully invokes Martinez to provide cause, I argue, the habeas court should presume prejudice.

The habeas court should thus reach the claim's merits: did racial discrimination infect jury selection?


An attractive but untrue mantra holds that every right has a remedy. (1) In fact, the "harmless error" doctrine permits a criminal conviction to survive appeal if the prosecution proves beyond a reasonable doubt that a guilty verdict was unattributable to the error. (2)

But some types of error evade harmless error analysis because their harm is too abstract or opaque to calculate. (3) These are "structural errors," and their victims need not demonstrate their harm in order to obtain relief: an appellate court will automatically vacate a conviction rather than demand that definitionally impossible showing. (4) Racial discrimination in jury selection-known as Batson error--is universally treated as one such error. (5)

Some courts are less understanding when the Batson error arises in the context of an ineffective assistance of counsel (IAC) claim--channeled through an argument that trial counsel provided ineffective assistance by failing to object to racially discriminatory jury selection--instead of on direct appeal. Strickland v. Washington governs IAC claims and requires the defendant to show that trial counsel performed "deficientfly]" and that the deficient performance "prejudiced" the trial's outcome. (6) Like in the harmless error context, the prejudice showing is impossible. Accordingly, some circuits waive the requirement and presume prejudice resulting from a structural error like Batson. (7) Others, despite recognizing the impossibility of the task, do not. (8)

Given the difficulty of satisfying Batson, a defendant will already struggle to show deficient performance resulting from the failure to raise a Batson objection. (9) But the circuits that demand an additional prejudice showing insulate Batson-IAC claims from review entirely, in part because of the opacity of jury deliberations and in part because of the "Batson paradox": the Court's refusal to acknowledge the impact of race on jury verdicts means that, as a formal matter, racially discriminatory jury selection error can never cause prejudice. (10)

In 2017, a Supreme Court case called Weaver v. Massachusetts considered whether courts should presume prejudice arising from a different structural error: courtroom closure during jury selection. (11) In concluding that they should not, the Court broadened the Strickland prejudice inquiry beyond its traditional bounds. The usual Strickland analysis asks merely whether competent attorney performance, absent the errors, would have led to a "reasonable probability" of a different result. (12) But in Weaver, the Court indicated that structural errors that "always result[] in fundamental unfairness" merit a presumption of Strickland prejudice, regardless of their impact on the trial's outcome. (13) I argue that Batson violations belong in this category: racially discriminatory jury selection always results in fundamental unfairness. (14)

If the Batson victim seeks to vindicate his rights on federal habeas corpus review, rather than state postconviction review, a second, distinct prejudice requirement awaits. Under the "procedural default" doctrine, a federal court will refuse to consider a claim that state courts ignored for procedural reasons unless the habeas petitioner demonstrates "cause" for the failure to raise it timely in state court and "prejudice" resulting from the alleged violation of a federal right. (15) Though this prejudice requirement is often thought identical to Strickland's, the two requirements have different origins, and therefore an argument for a presumption of prejudice in one context may not persuade--depending on the circuit in which one lives (16)--in the other. Whereas Strickland interprets constitutional mandates, procedural default doctrine simply reflects the Court's attempt to balance competing equitable interests: a petitioner's interest in a federal forum to vindicate federal rights against states' interests in finality, federalism, and comity. (17) That is, the procedural default question is not whether a federal court sitting in habeas may hear a claim that the state court refused to hear, but whether it should. (18)

In this situation, it should. Equitable principles--and a proceduralist vision of habeas corpus--in mind, I argue that my interpretation of Weaver opens a door to habeas review of Batson-IAC claims that procedural default's prejudice requirement might otherwise close. The door is cracked open by Martinez v. Ryan, an equitable decision intended to sidestep procedural default where unfairness, in the form of refusal to consider a substantial IAC claim, would otherwise result. (19) Where a petitioner invokes Martinez for "cause" to excuse the default of a substantial IAC claim--that is, where he demonstrates that his state initial-proceeding postconviction counsel was ineffective for failing to raise the Batson-IAC claim--the habeas court should presume prejudice. (20) It should not demand the impossible. (21)

Part I outlines the problem and the Weaver solution in brief. Part II mounts the argument that Weaver instructs courts to presume prejudice for Batson-IAC claims. Part III advocates extending that presumption to procedural default on habeas, in the circuits in which it is necessary, and addresses objections. A conclusion follows.


    Not all rights receive a remedy. (22) In fact, in criminal cases, even constitutional violations--which once required reversal of any conviction they tainted (23)--might be left undisturbed on appeal if deemed "harmless." The harmless error doctrine (24) permits a criminal conviction to stand if the government proves beyond a reasonable doubt that the guilty verdict was unattributable to the error. (25) Though harmless error doctrine inspires much debate, the central idea is straightforward: not all errors, even constitutional ones, demand an appellate remedy. (26)

    The doctrine exempts some types of error, however, from harmless error analysis. These errors, called "structural," require appellate reversal without a harmlessness determination. (27) Structural errors differ from "trial" errors because their harm evades calculation. A trial error, like mistakenly admitted evidence, causes practical damage that is, by hypothesis, easy enough to calculate; it has "a definite, discrete and identifiable effect on the quantum of evidence presented to the trier of fact." (28) By contrast, a structural error infects the trial from start to finish, rendering it illegitimate in full rather than in part. (29) A structural error-like a biased judge, (30) or a misleading reasonable doubt instruction (31--) undermines the entire proceeding in a way that "defiles] analysis by harmless-error standards." (32) If demanded, a specific showing of harm would be practically impossible; indeed, courts and scholars often define the category by the futility of demonstrating prejudice. (33) And...

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