Insurmountable obstacles: structural errors, procedural default, and ineffective assistance.

Author:Burns, Amy Knight

INTRODUCTION I. THE REASONS FOR AUTOMATIC REVERSAL A. A Brief History of Harmlessness B. The Five Faces of Structural Error: Why Not Do Harmless Error Review? 1. Jury impossibility 2. Speculative impossibility 3. Lack of effect on verdict 4. Obviousness 5. Seriousness C. The Curious Case of Batson 1. Garden-variety jury impossibility 2. "Pay no attention to the man behind the curtain" 3. True impossibility 4. No valid verdict 5. Complications II. PROCEDURAL DEFAULT AND THE CAUSE AND PREJUDICE EXCEPTION A. Purpose and Mechanics of the Procedural Default Rule B. Ineffective Assistance as Cause III. STRUCTURAL ERRORS MEET PROCEDURAL DEFAULT: THE CONFLICT A. The Problem with Sykes Prejudice B. The Problem with Strickland Prejudice C. Counterargument: Is Habeas Different After Brecht? IV. THE MESS IN THE CASE LAW AND THE SOLUTION A. United States Supreme Court B. Courts of Appeals 1. The main split: to presume or not to presume? 2. Why collapsing Strickland and Sykes prejudice won't work 3. What do courts do when they refuse to presume? C. Possible Solutions CONCLUSION INTRODUCTION

Michael Edward Vansickel was accused of murder. (1) During jury selection, the judge allowed him only ten peremptory challenges--half the number to which he was entitled under California law. (2) His lawyer did not realize that he was entitled to the additional strikes, and when he'd used ten, a jury was seated, even though Vansickel's lawyer had more jurors in mind that he would've liked to strike. The judge's error came to light after the verdict, but the court denied Vansickel's motion for a new trial.

When Vansickel filed his federal habeas petition, the district court agreed that his due process rights had been violated. However, the court said, since he failed to object at the time the error happened, he couldn't raise a post-conviction objection on those grounds. Normally, a petitioner can raise this kind of procedurally defaulted claim if he can show that some external factor (here, his lawyer's poor performance) caused the default, and that the unraised error had prejudiced his defense. Vansickel pointed out that this very circuit had previously held that there was no conceivable way to show whether there had been prejudice in this type of jury selection error (how could he prove that different jurors would have decided differently?), and argued that prejudice must be presumed for such claims, but the court held fast despite the impossibility of its requirements. The Ninth Circuit affirmed the district court's denial of habeas despite the acknowledged due process violation because Vansickel had not met a procedural standard that the very same court, sitting en banc, had held was simply not possible for any defendant to meet. (3) As of this writing, Vansickel is still in prison at Salinas Valley. (4)

This sort of case presents a real puzzle in habeas law: courts have adopted two sets of rules in two different contexts that are incompatible when both contexts are implicated in a single case. The two rules--the structural error rule and the procedural default rule--have never been reconciled, and courts applying both without acknowledging their conflict end up with untenable results like those in the Vansickel case.

Courts and legislatures adopted harmless error rules to prevent a reversal for trivial errors where the trial's result was nonetheless accurate. But courts have always acknowledged that, logically, some errors must be exempt from this rule because it would be impossible to demonstrate whether or not they were harmless.

In a completely separate area of law, courts developed rules for federal habeas review of state convictions. One such rule is the adequate and independent state ground doctrine, which requires federal courts to reject claims that state courts rejected for procedural reasons on direct appeal or in state collateral proceedings (claims that are "procedurally defaulted"). Accepting the need to make accommodations in the interest of justice, federal courts also developed an exception to this rule of rejection, establishing in Wainwright v. Sykes (5) that a petitioner could still raise the defaulted claim if he could show cause and prejudice for failing to present the claim below. Further complicating the matter is the fact that the most common "cause" accepted in these cases is a claim of ineffective assistance of counsel--where the claim was not raised below because the petitioner's lawyer unreasonably failed to raise it. The claim of ineffective assistance of counsel itself requires a showing not only that the petitioner's lawyer performed deficiently at trial, but also that his failings influenced the outcome of the trial. Thus, some habeas petitioners must show prejudice twice before they are even allowed to raise their defaulted claims: once to satisfy the ineffective assistance inquiry invoked as cause, and a second time to satisfy the prejudice half of the "cause and prejudice" inquiry.

If prejudice is impossible to show on direct appeal in certain cases, it remains impossible to show on habeas. Thus, requiring a showing of prejudice to resurrect a procedurally defaulted claim is functionally equivalent to foreclosing the claim entirely. Courts do not appear to have intended to isolate the group of so-called structural errors and render them uniquely unavailable after procedural default, while leaving less serious claims available. Yet by developing these rules independently--the structural error rule on the one hand and the procedural default requirements on the other--courts have painted themselves into a corner. They cannot strictly follow both of their own rules without yielding the absurd result of the theoretically available claim guarded by an always-insurmountable barrier.

Courts have not clearly addressed this conflict; instead, they have made a muddle of it, either requiring the impossible showing without acknowledging its impossibility, presuming prejudice without analyzing why such a route is required, or confusing and conflating the various prejudice inquiries involved. Indeed, the courts of appeals are now split as to which rule must yield. Courts created this problem; they must sort it out. They could do so either by extending the structural error exception to any context where a showing of prejudice is required, or, at the very least, by incorporating the exception into the definition of prejudice for procedural default purposes.

No scholarly work has analyzed this conflict. Two treatises have recognized that there is some disagreement among courts as to how to treat prejudice inquiries on procedural default, (6) but neither one goes on to consider the reasons for or contours of the problem, or to present any solution.

This Note will proceed by independently exploring each of the two incompatible judicial doctrines--the harmless error/structural error complex and the procedural default rules (including the role of ineffective assistance). These explorations represent Parts I and II. I pause in each context long enough to take a good look at the factors motivating each rule; an understanding of the reasons for the rules will inform a discussion of how to reconcile them. Having laid this groundwork, I then demonstrate in Part III how the conflict of the two strands of reasoning is unavoidable if the rules are applied unyieldingly; we cannot have both a robust structural error rule and a robust cause and prejudice requirement. In Part IV, I examine the welter of case law attempting to deal with such issues and suggest the two possible solutions available to courts to clean up the mess.


    To fully understand the conflict that courts have created for themselves, we first need to explore the two rules that are in conflict. The first of these is the structural error rule. Why is it that most claims require a showing of prejudice on direct review, but some do not? A survey of harmless error and the (somewhat confused) contours of the structural error rule will establish the foundation for an understanding of the true conflict between structural errors and procedural requirements imposed on habeas petitioners. This Part addresses the harmless error and structural error rules on direct appeal, the context in which they were created. After this discussion, we will examine the procedural default rule and its underpinnings. Finally, we will consider the conflict between the two doctrines.

    1. A Brief History of Harmlessness

      To understand exemptions from the harmless error rule, we must first understand why we have such a rule. The rule that a conviction should not be reversed for an error that was of no consequence to the proceedings is an old one, existing by federal statute and in all of the states since the early twentieth century. (7) The purpose of such rules is clear: they "serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial." (8) Such a rule had proven necessary because "courts of appeal became so concerned with procedural perfection that a simple misspelling of a word on an indictment was sufficient grounds for a new trial." (9)

      Harmless error analysis in its simplest form is basically a weighing test: in the basic case of evidentiary error, for example, a reviewing court will "simply review[] the remainder of the evidence against the defendant to determine whether the admission of the [improper evidence] was harmless." (10) Different standards of certainty apply in different contexts, (11) but the basic idea is the same: the analysis is an almost mathematical weighing of the strength of the case minus the challenged element.

      Prior to 1967, courts generally agreed that constitutional errors could never be harmless. (12) That is, the rule existed to prevent trivial, technical errors from requiring retrials or...

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