Weaver v. Massachusetts

(Slip Opinion) OCTOBER TERM, 2016 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
WEAVER v. MASSACHUSETTS
CERTIORARI TO THE SUPREME JUDICIAL COURT OF
MASSACHUSETTS
No. 16–240. Argued April 19, 2017—Decided June 22, 2017
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 court-
room any member of the public who was not a potential juror, includ-
ing petitioner’s mother and her minister. Defense counsel neither ob-
jected 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 rele-
vant 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 vio-
lation of the right to public trial was a structural error, it rejected pe-
titioner’s ineffective-assistance claim because he had not shown prej-
udice.
Held:
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 de-
fendant 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 struc-
tural may influence the proper standard used to evaluate an ineffec-
tive-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-
2 WEAVER v. MASSACHUSETTS
Syllabus
ant is not entitled to reversal. Chapman v. California, 386 U.S. 18,
24. However, a structural error, which “affect[s] the framework with-
in which the trial proceeds,” Arizona v. Fulminante, 499 U.S. 279,
310, defies harmless error analysis, id., at 309. Thus, when a struc-
tural error is objected to and then raised on direct review, the de-
fendant is entitled to relief without any inquiry into harm.
There appear to be at least three broad rationales for finding an er-
ror 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 de-
fense—where harm is irrelevant to the basis underlying the right.
See United States v. Gonzalez-Lopez, 548 U.S. 140, 149, n. 4. Anoth-
er 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 attor-
ney—making it almost impossible for the government to show that
the error was “harmless beyond a reasonable doubt,” Chapman, su-
pra, at 24. Finally, some errors always result in fundamental un-
fairness, 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 opin-
ions 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 pub-
lic-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 Cal., 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 objec-
tion is made at trial and the issue is raised on direct appeal, the de-
fendant 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
Cite as: 582 U. S. ____ (2017) 3
Syllabus
error on direct review but raises it later in the context of an ineffec-
tive-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 ana-
lytical 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 de-
prive 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 dif-
ferent outcome in his or her case or, as assumed here, that the par-
ticular violation was so serious as to render the trial fundamentally
unfair.
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. Louisi-
ana, 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 automat-
ic relief to defendants who prevailed on claims of race or gender dis-
crimination 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 pe-
titioner 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 inef-
fective-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 er-
ror depending on whether it is raised on direct review or in an inef-
fective-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
4 WEAVER v. MASSACHUSETTS
Syllabus
shortcomings led to a fundamentally unfair trial, he is not entitled to
a new trial. Although potential jurors might have behaved different-
ly 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 ob-
served the proceedings; and the record of the proceedings indicates no
basis for concern, other than the closure itself. There was no show-
ing, 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 un-
fairness. Pp. 14–16.
474 Mass. 787, 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.
Cite as: 582 U. S. ____ (2017) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–240
_________________
KENTEL MYRONE WEAVER, PETITIONER v.
MASSACHUSETTS
ON WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT
OF MASSACHUSETTS
[June 22, 2017]
JUSTICE KENNEDY delivered the opinion of the Court.
During 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. De-
fense 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.
In the direct review context, the underlying constitu-
tional 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 claim.
I
In 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
2 WEAVER v. MASSACHUSETTS
Opinion of the Court
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.
Two weeks after the crime, the police went to petition-
er’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 pro-
ceeded to trial.
The 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 prelim-
inary 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 for everybody.
As all 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 poten-
Cite as: 582 U. S. ____ (2017) 3
Opinion of the Court
tial 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.
All 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 particu-
lar during murder trials.
In this 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 selec-
tion] 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.
During the ensuing trial, the government presented
strong evidence of petitioner’s guilt. Its case consisted of
the incriminating details outlined above, including peti-
tioner’s confession to the police. The jury convicted peti-
tioner 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.
Five 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 eviden-
tiary 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 fur-
4 WEAVER v. MASSACHUSETTS
Opinion of the Court
ther determined that defense counsel failed to object be-
cause of “serious incompetency, inefficiency, or inatten-
tion.” 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.
Petitioner 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 clo-
sure 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 preju-
dice warranting a new trial.” 474 Mass. 787, 814, 54 N.E.
3d 495, 520 (2016). On this reasoning, the court rejected
petitioner’s claim of ineffective assistance of counsel.
There is disagreement among the Federal Courts of
Appeals and some state courts of last resort about whether
a defendant must demonstrate prejudice in a case like this
one—in which a structural error is neither preserved nor
raised on direct review but is raised later via a claim
alleging ineffective assistance of counsel. Some courts
have held that, when a defendant shows that his attorney
unreasonably failed to object to a structural error, the
defendant is entitled to a new trial without further in-
quiry. See, e.g., Johnson v. Sherry, 586 F.3d 439, 447
(CA6 2009); Owens v. United States, 483 F.3d 48, 64–65
(CA1 2007); Littlejohn v. United States, 73 A.3d 1034,
1043–1044 (D. C. 2013); State v. Lamere, 327 Mont. 115,
125, 112 P.3d 1005, 1013 (2005). Other courts have held
that the defendant is entitled to relief only if he or she can
Cite as: 582 U. S. ____ (2017) 5
Opinion of the Court
show prejudice. See, e.g., Purvis v. Crosby, 451 F.3d 734,
738 (CA11 2006); United States v. Gomez, 705 F.3d 68,
79–80 (CA2 2013); Reid v. State, 286 Ga. 484, 487, 690
S.E.2d 177, 180–181 (2010). This Court granted certio-
rari to resolve that disagreement. 580 U. S. ___ (2017). The
Court does so specifically and only in the context of trial
counsel’s failure to object to the closure of the courtroom
during jury selection.
II
This case requires a discussion, and the proper applica-
tion, of two doctrines: structural error and ineffective
assistance of counsel. The two doctrines are intertwined;
for the reasons an error is deemed structural may influ-
ence the proper standard used to evaluate an ineffective-
assistance claim premised on the failure to object to that
error.
A
The concept of structural error can be discussed first. In
Chapman v. California, 386 U.S. 18 (1967), this Court
“adopted the general rule that a constitutional error does
not automatically require reversal of a conviction.” Ari-
zona v. Fulminante, 499 U.S. 279, 306 (1991) (citing Chap-
man, supra). If the government can show “beyond a rea-
sonable doubt that the error complained of did not
contribute to the verdict obtained,” the Court held, then
the error is deemed harmless and the defendant is not
entitled to reversal. Id., at 24.
The Court recognized, however, that some errors should
not be deemed harmless beyond a reasonable doubt. Id.,
at 23, n. 8. These errors came to be known as structural
errors. See Fulminante, 499 U.S., at 309–310. The pur-
pose of the structural error doctrine is to ensure insistence
on certain basic, constitutional guarantees that should
define the framework of any criminal trial. Thus, the
6 WEAVER v. MASSACHUSETTS
Opinion of the Court
defining feature of a structural error is that it “affect[s]
the framework within which the trial proceeds,” rather
than being “simply an error in the trial process itself.” Id.,
at 310. For the same reason, a structural error “def[ies]
analysis by harmless error standards.” Id., at 309 (inter-
nal quotation marks omitted).
The precise reason why a particular error is not amen-
able to that kind of analysis—and thus the precise reason
why the Court has deemed it structural—varies in a sig-
nificant way from error to error. There appear to be at
least three broad rationales.
First, an error has been deemed structural in some
instances if the right at issue is not designed to protect the
defendant from erroneous conviction but instead protects
some other interest. This is true of the defendant’s right
to conduct his own defense, which, when exercised, “usu-
ally increases the likelihood of a trial outcome unfavorable
to the defendant.” McKaskle v. Wiggins, 465 U.S. 168,
177, n. 8 (1984). That right is based on the fundamental
legal principle that a defendant must be allowed to make
his own choices about the proper way to protect his own
liberty. See Faretta v. California, 422 U.S. 806, 834
(1975). Because harm is irrelevant to the basis underlying
the right, the Court has deemed a violation of that right
structural error. See United States v. Gonzalez-Lopez, 548
U.S. 140, 149, n. 4 (2006).
Second, an error has been deemed structural if the
effects of the error are simply too hard to measure. For
example, when a defendant is denied the right to select his
or her own attorney, the precise “effect of the violation
cannot be ascertained.” Ibid. (quoting Vasquez v. Hillery,
474 U.S. 254, 263 (1986)). Because the government will,
as a result, find it almost impossible to show that the error
was “harmless beyond a reasonable doubt,” Chapman,
supra, at 24, the efficiency costs of letting the government
try to make the showing are unjustified.
Cite as: 582 U. S. ____ (2017) 7
Opinion of the Court
Third, an error has been deemed structural if the error
always results in fundamental unfairness. For example, if
an indigent defendant is denied an attorney or if the judge
fails to give a reasonable-doubt instruction, the resulting
trial is always a fundamentally unfair one. See Gideon v.
Wainwright, 372 U.S. 335, 343–345 (1963) (right to an
attorney); Sullivan v. Louisiana, 508 U.S. 275, 279
(1993) (right to a reasonable-doubt instruction). It there-
fore would be futile for the government to try to show
harmlessness.
These categories are not rigid. In a particular case,
more than one of these rationales may be part of the ex-
planation for why an error is deemed to be structural. See
e.g., id., at 280–282. For these purposes, however, one
point is critical: An error can count as structural even if
the error does not lead to fundamental unfairness in every
case. See Gonzalez-Lopez, supra, at 149, n. 4 (rejecting as
“inconsistent with the reasoning of our precedents” the
idea that structural errors “always or necessarily render a
trial fundamentally unfair and unreliable” (emphasis
deleted)).
B
As noted above, a violation of the right to a public trial
is a structural error. See supra, at 1, 4. It is relevant to
determine why that is so. In particular, the question is
whether a public-trial violation counts as structural be-
cause it always leads to fundamental unfairness or for
some other reason.
In Waller v. Georgia, 467 U.S. 39 (1984), the state court
prohibited the public from viewing a weeklong suppression
hearing out of concern for the privacy of persons other
than those on trial. See id., at 41–43. Although it recog-
nized that there would be instances where closure was
justified, this Court noted that “such circumstances will be
rare” and that the closure in question was unjustified. Id.,
8 WEAVER v. MASSACHUSETTS
Opinion of the Court
at 45, 48. Still, the Court did not order a new trial. Id., at
49–50. Instead it ordered a new suppression hearing that
was open to the public. Id., at 50. If the same evidence
was found admissible in that renewed pretrial proceeding,
the Court held, no new trial as to guilt would be neces-
sary. Ibid. This was despite the structural aspect of the
violation.
Some 25 years after the Waller decision, the Court
issued its per curiam ruling in Presley v. Georgia. 558
U.S. 209. In that case, as here, the courtroom was closed
to the public during jury voir dire. Id., at 210. Unlike
here, however, there was a trial objection to the closure,
and the issue was raised on direct appeal. Id., at 210–211.
On review of the State Supreme Court’s decision allowing
the closure, this Court expressed concern that the state
court’s reasoning would allow the courtroom to be closed
during jury selection “whenever the trial judge decides, for
whatever reason, that he or she would prefer to fill the
courtroom with potential jurors rather than spectators.”
Id., at 215 (internal quotation marks omitted). Although
the Court expressly noted that courtroom closure may be
ordered in some circumstances, the Court also stated that
it was “still incumbent upon” the trial court “to consider
all reasonable alternatives to closure.” Id., at 215–216.
These opinions teach that courtroom closure is to be
avoided, but that there are some circumstances when it is
justified. The problems that may be encountered by trial
courts in deciding whether some closures are necessary, or
even in deciding which members of the public should be
admitted when seats are scarce, are difficult ones. For
example, there are often preliminary instructions that a
judge may want to give to the venire as a whole, rather
than repeating those instructions (perhaps with uninten-
tional differences) to several groups of potential jurors.
On the other hand, various constituencies of the public—
the family of the accused, the family of the victim, mem-
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Opinion of the Court
bers of the press, and other persons—all have their own
interests in observing the selection of jurors. How best to
manage these problems is not a topic discussed at length
in any decision or commentary the Court has found.
So although the public-trial right is structural, it is
subject to exceptions. See Simonson, The Criminal Court
Audience in a Post-Trial World, 127 Harv. L. Rev. 2173,
2219–2222 (2014) (discussing situations in which a trial
court may order a courtroom closure). Though these cases
should be rare, a judge may deprive a defendant of his
right to an open courtroom by making proper factual
findings in support of the decision to do so. See Waller,
supra, at 45. The fact that the public-trial right is subject
to these exceptions suggests that not every public-trial
violation results in fundamental unfairness.
A public-trial violation can occur, moreover, as it did in
Presley, simply because the trial court omits to make the
proper findings before closing the courtroom, even if those
findings might have been fully supported by the evidence.
See 558 U.S., at 215. It would be unconvincing to deem a
trial fundamentally unfair just because a judge omitted to
announce factual findings before making an otherwise
valid decision to order the courtroom temporarily closed.
As a result, it would be likewise unconvincing if the Court
had said that a public-trial violation always leads to a
fundamentally unfair trial.
Indeed, the Court has not said that a public-trial viola-
tion renders a trial fundamentally unfair in every case. In
the two cases in which the Court has discussed the rea-
sons for classifying a public-trial violation as structural
error, the Court has said that a public-trial violation is
structural for a different reason: because of the “difficulty
of assessing the effect of the error.” Gonzalez-Lopez, 548
U.S., at 149, n. 4; see also Waller, supra, at 49, n. 9.
The public-trial right also protects some interests that
do not belong to the defendant. After all, the right to an
10 WEAVER v. MASSACHUSETTS
Opinion of the Court
open courtroom protects the rights of the public at large,
and the press, as well as the rights of the accused. See,
e.g., Press-Enterprise Co. v. Superior Court of Cal., River-
side Cty., 464 U.S. 501, 508–510 (1984); Richmond News-
papers, Inc. v. Virginia, 448 U.S. 555, 572–573 (1980). So
one other factor leading to the classification of structural
error is that the public-trial right furthers interests other
than protecting the defendant against unjust conviction.
These precepts confirm the conclusion the Court now
reaches that, while the public-trial right is important for
fundamental reasons, in some cases an unlawful closure
might take place and yet the trial still will be fundamen-
tally fair from the defendant’s standpoint.
III
The Court now turns to the proper remedy for address-
ing the violation of a structural right, and in particular the
right to a public trial. Despite its name, the term “struc-
tural error” carries with it no talismanic significance as a
doctrinal matter. It means only that the government is
not entitled to deprive the defendant of a new trial by
showing that the error was “harmless beyond a reasonable
doubt.” Chapman, 386 U.S., at 24. Thus, in the case of a
structural error where there is an objection at trial and
the issue is raised on direct appeal, the defendant gener-
ally is entitled to “automatic reversal” regardless of the
error’s actual “effect on the outcome.” Neder v. United
States, 527 U.S. 1, 7 (1999).
The question then becomes what showing is necessary
when the defendant does not preserve a structural error
on direct review but raises it later in the context of an
ineffective-assistance-of-counsel claim. To obtain relief on
the basis of ineffective assistance of counsel, the defendant
as a general rule bears the burden to meet two standards.
First, the defendant must show deficient performance—
that the attorney’s error was “so serious that counsel was
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Opinion of the Court
not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Strickland v. Washington, 466
U.S. 668, 687 (1984). Second, the defendant must show
that the attorney’s error “prejudiced the defense.” Ibid.
The prejudice showing is in most cases a necessary part
of a Strickland claim. The reason is that a defendant has
a right to effective representation, not a right to an attor-
ney who performs his duties “mistake-free.” Gonzalez-
Lopez, 548 U.S., at 147. As a rule, therefore, a “violation
of the Sixth Amendment right to effective representation
is not ‘complete’ until the defendant is prejudiced.” Ibid.
(emphasis deleted); see also Premo v. Moore, 562 U.S. 115,
128 (2011); Lockhart v. Fretwell, 506 U.S. 364, 370 (1993).
That said, the concept of prejudice is defined in different
ways depending on the context in which it appears. In the
ordinary Strickland case, prejudice means “a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.”
466 U.S., at 694. But the Strickland Court cautioned that
the prejudice inquiry is not meant to be applied in a “me-
chanical” fashion. Id., at 696. For when a court is evalu-
ating an ineffective-assistance claim, the ultimate inquiry
must concentrate on “the fundamental fairness of the
proceeding.” Ibid. Petitioner therefore argues that under
a proper interpretation of Strickland, 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. For the analytical purposes of this case, the Court
will assume that petitioner’s interpretation of Strickland
is the correct one. In light of the Court’s ultimate holding,
however, the Court need not decide that question here.
As explained above, not every public-trial violation will
in fact lead to a fundamentally unfair trial. See supra, at
10. Nor can it be said that the failure to object to a public-
trial violation always deprives the defendant of a reason-
12 WEAVER v. MASSACHUSETTS
Opinion of the Court
able probability of a different outcome. Thus, when a de-
fendant raises a public-trial violation via an ineffective-
assistance-of-counsel claim, Strickland prejudice is not
shown automatically. Instead, the burden is on the de-
fendant to show either a reasonable probability of a differ-
ent outcome in his or her case or, as the Court has as-
sumed for these purposes, see supra, at 11, to show that
the particular public-trial violation was so serious as to
render his or her trial fundamentally unfair.
Neither the reasoning nor the holding here calls into
question the Court’s precedents determining that certain
errors are deemed structural and require reversal because
they cause fundamental unfairness, either to the defend-
ant in the specific case or by pervasive undermining of the
systemic requirements of a fair and open judicial process.
See Murray, A Contextual Approach to Harmless Error
Review, 130 Harv. L. Rev. 1791, 1813, 1822 (2017) (noting
that the “eclectic normative objectives of criminal proce-
dure” go beyond protecting a defendant from erroneous
conviction and include ensuring “ ‘that the administration
of justice should reasonably appear to be disinterested’ ”
(quoting Liljeberg v. Health Services Acquisition Corp.,
486 U.S. 847, 869–870 (1988))). Those precedents include
Sullivan v. Louisiana, 508 U.S., at 278–279 (failure to
give a reasonable-doubt instruction); Tumey v. Ohio, 273
U.S. 510, 535 (1927) (biased judge); and Vasquez v.
Hillery, 474 U.S., at 261–264 (exclusion of grand jurors on
the basis of race). See Neder, supra, at 8 (describing each
of these errors as structural). This Court, in addition, has
granted automatic relief to defendants who prevailed on
claims alleging race or gender discrimination in the selec-
tion of the petit jury, see Batson v. Kentucky, 476 U.S. 79,
100 (1986); J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127,
145–146 (1994), though the Court has yet to label those
errors structural in express terms, see, e.g., Neder, supra,
at 8. The errors in those cases necessitated automatic
Cite as: 582 U. S. ____ (2017) 13
Opinion of the Court
reversal after they were preserved and then raised on
direct appeal. And this opinion does not address whether
the result should be any different if the errors were raised
instead in an ineffective-assistance claim on collateral
review.
The reason for placing the burden on the petitioner in
this case, however, derives both from the nature of the
error, see supra, at 11–12, 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-of-counsel claim. As explained above, 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. See supra, at 8–9. When a
defendant first raises the closure in an ineffective-
assistance claim, however, the trial court is deprived of
the chance to cure the violation either by opening the
courtroom or by explaining the reasons for closure.
Furthermore, when state or federal courts adjudicate
errors objected to during trial and then raised on direct
review, the systemic costs of remedying the error are
diminished to some extent. That is because, if a new trial
is ordered on direct review, there may be a reasonable
chance that not too much time will have elapsed for wit-
ness memories still to be accurate and physical evidence
not to be lost. There are also advantages of direct judicial
supervision. Reviewing courts, in the regular course of the
appellate process, can give instruction to the trial courts in
a familiar context that allows for elaboration of the rele-
vant principles based on review of an adequate record.
For instance, in this case, the factors and circumstances
that might justify a temporary closure are best considered
in the regular appellate process and not in the context of a
later proceeding, with its added time delays.
When an ineffective-assistance-of-counsel claim is raised
in postconviction proceedings, the costs and uncertainties
14 WEAVER v. MASSACHUSETTS
Opinion of the Court
of a new trial are greater because more time will have
elapsed in most cases. The finality interest is more at
risk, see Strickland, 466 U.S., at 693–694 (noting the
“profound importance of finality in criminal proceedings”),
and direct review often has given at least one opportunity
for an appellate review of trial proceedings. These differ-
ences justify a different standard for evaluating a struc-
tural error depending on whether it is raised on direct
review or raised instead in a claim alleging ineffective
assistance of counsel.
In sum, “[a]n ineffective-assistance claim can function
as a way to escape rules of waiver and forfeiture and raise
issues not presented at trial,” thus undermining the final-
ity of jury verdicts. Harrington v. Richter, 562 U.S. 86,
105 (2011). For this reason, the rules governing ineffec-
tive-assistance claims “must be applied with scrupulous
care.” Premo, 562 U.S., at 122.
IV
The final inquiry concerns the ineffective-assistance
claim in this case. Although the case comes on the as-
sumption that petitioner has shown deficient performance
by counsel, he has not shown prejudice in the ordinary
sense, i.e., a reasonable probability that the jury would not
have convicted him if his attorney had objected to the
closure.
It is of course possible that potential jurors might have
behaved differently if petitioner’s family had been present.
And it is true that the presence of the public might have
had some bearing on juror reaction. But here petitioner
offered no “evidence or legal argument establishing preju-
dice” in the sense of a reasonable probability of a different
outcome but for counsel’s failure to object. App. to Pet. for
Cert. 64a; see Strickland, 466 U.S., at 694.
In other circumstances a different result might obtain.
If, for instance, defense counsel errs in failing to object
Cite as: 582 U. S. ____ (2017) 15
Opinion of the Court
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 fundamen-
tally unfair trial, see supra, at 10.
In light of the above assumption that prejudice can be
shown by a demonstration of fundamental unfairness, see
supra, at 11, the remaining question is whether petitioner
has shown that counsel’s failure to object rendered the
trial fundamentally unfair. See Strickland, supra, at 696.
The Court concludes that petitioner has not made the
showing. 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. Cf. In re Oliver, 333 U.S.
257, 269, n. 22 (1948). The closure was limited to the jury
voir dire; the courtroom remained open during the eviden-
tiary phase of the trial; the closure decision apparently
was made by court officers rather than the judge; there
were many members of the venire who did not become
jurors but who did observe the proceedings; and there was
a record made of the proceedings that does not indicate
any basis for concern, other than the closure itself.
There has been no showing, furthermore, that the po-
tential 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 misbehav-
ior 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.
It is true that this case comes here on the assumption
that the closure was a Sixth Amendment violation. And it
must be recognized that open trials ensure respect for the
16 WEAVER v. MASSACHUSETTS
Opinion of the Court
justice system and allow the press and the public to judge
the proceedings that occur in our Nation’s courts. Even so,
the violation here did not pervade the whole trial or lead
to basic unfairness.
In sum, petitioner has not shown a reasonable probabil-
ity of a different outcome but for counsel’s failure to object,
and he has not shown that counsel’s shortcomings led to a
fundamentally unfair trial. He is not entitled to a new
trial.
* * *
In the criminal justice system, the constant, indeed
unending, duty of the judiciary is to seek and to find the
proper balance between the necessity for fair and just
trials and the importance of finality of judgments. When a
structural error is preserved and raised on direct review,
the balance is in the defendant’s favor, and a new trial
generally will be granted as a matter of right. When a
structural error is raised in the context of an ineffective-
assistance claim, however, finality concerns are far more
pronounced. For this reason, and in light of the other
circumstances present in this case, petitioner must show
prejudice in order to obtain a new trial. As explained
above, he has not made the required showing. The judg-
ment of the Massachusetts Supreme Judicial Court is
affirmed.
It is so ordered.
Cite as: 582 U. S. ____ (2017) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–240
_________________
KENTEL MYRONE WEAVER, PETITIONER v.
MASSACHUSETTS
ON WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT
OF MASSACHUSETTS
[June 22, 2017]
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,
concurring.
I write separately with two observations about the scope
of the Court’s holding. First, this case comes to us on the
parties’ “assumption[s]” that the closure of the courtroom
during jury selection “was a Sixth Amendment violation”
and that “defense counsel provided ineffective assistance”
by “failing to object” to it. Ante, at 1, 15. The Court previ-
ously held in a per curiam opinion—issued without the
benefit of merits briefing or argument—that the Sixth
Amendment right to a public trial extends to jury selec-
tion. See Presley v. Georgia, 558 U.S. 209, 213 (2010); id.,
at 216 (THOMAS, J., dissenting). I have some doubts about
whether that holding is consistent with the original un-
derstanding of the right to a public trial, and I would be
open to reconsidering it in a case in which we are asked to
do so.
Second, the Court “assume[s],” for the “analytical pur-
poses of this case,” that a defendant may establish preju-
dice under Strickland v. Washington, 466 U.S. 668 (1984),
by demonstrating that his attorney’s error led to a funda-
mentally unfair trial. Ante, at 11. According to Strick-
land, a defendant may establish prejudice by showing “a
reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have been
2 WEAVER v. MASSACHUSETTS
THOMAS, J., concurring
different”; by showing an “[a]ctual or constructive denial of
the assistance of counsel altogether”; or by showing that
counsel labored under “an actual conflict of interest.” 466
U.S., at 692–694. Strickland did not hold, as the Court
assumes, that a defendant may establish prejudice by
showing that his counsel’s errors “rendered the trial fun-
damentally unfair.” Ante, at 11. Because the Court con-
cludes that the closure during petitioner’s jury selection
did not lead to fundamental unfairness in any event, ante,
at 15–16, no part of the discussion about fundamental
unfairness, see ante, at 11–15, is necessary to its result.
In light of these observations, I do not read the opinion
of the Court to preclude the approach set forth in JUSTICE
ALITO’s opinion, which correctly applies our precedents.
Cite as: 582 U. S. ____ (2017) 1
ALITO, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–240
_________________
KENTEL MYRONE WEAVER, PETITIONER v.
MASSACHUSETTS
ON WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT
OF MASSACHUSETTS
[June 22, 2017]
JUSTICE ALITO, with whom JUSTICE GORSUCH joins,
concurring in the judgment.
This case calls for a straightforward application of the
familiar standard for evaluating ineffective assistance of
counsel claims. Strickland v. Washington, 466 U.S. 668,
687 (1984). Weaver cannot meet that standard, and there-
fore his claim must be rejected.
The Sixth Amendment protects a criminal defendant’s
right “to have the Assistance of Counsel for his defence.”
That right is violated when (1) “counsel’s performance was
deficient” in the relevant sense of the term and (2) “the
deficient performance prejudiced the defense.” Strickland,
supra, at 687. The prejudice requirement—which is the
one at issue in this case—“arises from the very nature” of
the right to effective representation: Counsel simply “can-
not be ‘ineffective’ unless his mistakes have harmed the
defense (or, at least, unless it is reasonably likely that
they have).” United States v. Gonzalez-Lopez, 548 U.S.
140, 147 (2006). In other words, “a violation of the Sixth
Amendment right to effective representation is not ‘com-
plete’ until the defendant is prejudiced.” Ibid.
Strickland’s definition of prejudice is based on the reli-
ability of the underlying proceeding. “The benchmark for
judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of
2 WEAVER v. MASSACHUSETTS
ALITO, J., concurring in judgment
the adversarial process that the trial cannot be relied on as
having produced a just result.” 466 U.S., at 686 (empha-
sis added); see United States v. Cronic, 466 U.S. 648, 658
(1984). This is so because “[t]he purpose of the Sixth
Amendment guarantee of counsel is to ensure that a de-
fendant has the assistance necessary to justify reliance on
the outcome of the proceeding.” Strickland, 466 U.S., at
691–692. Accordingly, an attorney’s error “does not war-
rant setting aside the judgment of a criminal proceeding if
the error had no effect on the judgment.” Id., at 691.
Weaver makes much of the Strickland Court’s state-
ment that “the ultimate focus of inquiry must be on the
fundamental fairness of the proceeding.” Id., at 696. But
the very next sentence clarifies what the Court had in
mind, namely, the reliability of the proceeding. In that
sentence, the Court explains that the proper concern—
“[i]n every case”—is “whether, despite the strong pre-
sumption of reliability, the result of the particular pro-
ceeding is unreliable.” Ibid. In other words, the focus on
reliability is consistent throughout the Strickland opinion.
To show that a counsel’s error rendered a legal proceed-
ing unreliable, a defendant ordinarily must demonstrate
“a reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have been
different.” Id., at 694. In a challenge to a conviction, such
as the one in this case, this means that the defendant
must show “a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt
respecting guilt.” Id., at 695.
The Court has relieved defendants of the obligation to
make this affirmative showing in only a very narrow set of
cases in which the accused has effectively been denied
counsel altogether: These include the actual or construc-
tive denial of counsel, state interference with counsel’s
assistance, or counsel that labors under actual conflicts of
interest. Id., at 692; Cronic, 466 U.S., at 658–660. Preju-
Cite as: 582 U. S. ____ (2017) 3
ALITO, J., concurring in judgment
dice can be presumed with respect to these errors because
they are “so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified.”
Id., at 658; see Strickland, supra, at 692; Mickens v. Tay-
lor, 535 U.S. 162, 175 (2002).
In short, there are two ways of meeting the Strickland
prejudice requirement. A defendant must demonstrate
either that the error at issue was prejudicial or that it
belongs to the narrow class of attorney errors that are
tantamount to a denial of counsel, for which an individual-
ized showing of prejudice is unnecessary.
Weaver attempts to escape this framework by stressing
that the deprivation of the right to a public trial has been
described as a “structural” error, but this is irrelevant
under Strickland. The concept of “structural error” comes
into play when it is established that an error occurred at
the trial level and it must be decided whether the error
was harmless. See Neder v. United States, 527 U.S. 1, 7
(1999); Arizona v. Fulminante, 499 U.S. 279, 309–310
(1991). The prejudice prong of Strickland is entirely
different. It does not ask whether an error was harmless
but whether there was an error at all, for unless counsel’s
deficient performance prejudiced the defense, there was no
Sixth Amendment violation in the first place. See Gonzalez-
Lopez, supra, at 150 (even where an attorney’s defi-
cient performance “pervades the entire trial,” “we do not
allow reversal of a conviction for that reason without a
showing of prejudice” because “the requirement of showing
prejudice in ineffectiveness claims stems from the very
definition of the right at issue”). Weaver’s theory conflicts
with Strickland because it implies that an attorney’s error
can be prejudicial even if it “had no effect,” or only “some
conceivable effect,” on the outcome of his trial. Strickland,
supra, at 691, 693. That is precisely what Strickland rules
out.
To sum up, in order to obtain relief under Strickland,
4 WEAVER v. MASSACHUSETTS
ALITO, J., concurring in judgment
Weaver must show that the result of his trial was unreli-
able. He could do so by demonstrating a reasonable likeli-
hood that his counsel’s error affected the verdict. Alterna-
tively, he could establish that the error falls within the
very short list of errors for which prejudice is presumed.
Weaver has not attempted to make either argument, so
his claim must be rejected. I would affirm the judgment of
the Supreme Judicial Court of Massachusetts on that
ground.
Cite as: 582 U. S. ____ (2017) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–240
_________________
KENTEL MYRONE WEAVER, PETITIONER v.
MASSACHUSETTS
ON WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT
OF MASSACHUSETTS
[June 22, 2017]
JUSTICE BREYER, with whom JUSTICE KAGAN joins,
dissenting.
The Court notes that Strickland’s “prejudice inquiry is
not meant to be applied in a ‘mechanical’ fashion,” ante, at
11 (quoting Strickland v. Washington, 466 U.S. 668, 696
(1984)), and I agree. But, in my view, it follows from this
principle that a defendant who shows that his attorney’s
constitutionally deficient performance produced a struc-
tural error should not face the additional—and often
insurmountable—Strickland hurdle of demonstrating that
the error changed the outcome of his proceeding.
In its harmless-error cases, this Court has “divided
constitutional errors into two classes”: trial errors and
structural errors. United States v. Gonzalez-Lopez, 548
U.S. 140, 148 (2006). Trial errors are discrete mistakes
that “occu[r] during the presentation of the case to the
jury.” Arizona v. Fulminante, 499 U.S. 279, 307 (1991).
Structural errors, on the other hand, “affec[t] the frame-
work within which the trial proceeds.” Id., at 310.
The Court has recognized that structural errors’ distinc-
tive attributes make them “defy analysis by ‘harmless-
error’ standards.” Id., at 309. It has therefore categorically
exempted structural errors from the case-by-case harm-
lessness review to which trial errors are subjected. Our
precedent does not try to parse which structural errors are
2 WEAVER v. MASSACHUSETTS
BREYER, J., dissenting
the truly egregious ones. It simply views all structural
errors as “intrinsically harmful” and holds that any struc-
tural error warrants “automatic reversal” on direct appeal
“without regard to [its] effect on the outcome” of a trial.
Neder v. United States, 527 U.S. 1, 7 (1999).
The majority here does not take this approach. It as-
sumes that some structural errors—those that “lead to
fundamental unfairness”—but not others, can warrant
relief without a showing of actual prejudice under Strick-
land. Ante, at 7, 11–12. While I agree that a showing of
fundamental unfairness is sufficient to satisfy Strickland,
I would not try to draw this distinction.
Even if some structural errors do not create fundamen-
tal unfairness, all structural errors nonetheless have
features that make them “defy analysis by ‘harmless-error’
standards.” Fulminante, supra, at 309. This is why all
structural errors—not just the “fundamental unfairness”
ones—are exempt from harmlessness inquiry and warrant
automatic reversal on direct review. Those same features
mean that all structural errors defy an actual-prejudice
analysis under Strickland.
For instance, the majority concludes that some errors—
such as the public-trial error at issue in this case—have
been labeled “structural” because they have effects that
“are simply too hard to measure.” Ante, at 6; see, e.g.,
Sullivan v. Louisiana, 508 U.S. 275, 281–282 (1993)
(explaining that structural errors have “consequences that
are necessarily unquantifiable and indeterminate”). But
how could any error whose effects are inherently indeter-
minate prove susceptible to actual-prejudice analysis
under Strickland? Just as the “difficulty of assessing the
effect” of such an error would turn harmless-error analysis
into “a speculative inquiry into what might have occurred
in an alternate universe,” Gonzalez-Lopez, supra, at 149,
n. 4, 150, so too would it undermine a defendant’s ability
to make an actual-prejudice showing to establish an
Cite as: 582 U. S. ____ (2017) 3
BREYER, J., dissenting
ineffective-assistance claim.
The problem is evident with regard to public-trial viola-
tions. This Court has recognized that “the benefits of a
public trial are frequently intangible, difficult to prove, or
a matter of chance.” Waller v. Georgia, 467 U.S. 39, 49,
n. 9 (1984). As a result, “a requirement that prejudice be
shown ‘would in most cases deprive [the defendant] of the
[public-trial] guarantee, for it would be difficult to envis-
age a case in which he would have evidence available of
specific injury.’ ” Ibid. (quoting United States ex rel. Ben-
nett v. Rundle, 419 F.2d 599, 608 (CA3 1969) (en banc))
(alteration in original). In order to establish actual preju-
dice from an attorney’s failure to object to a public-trial
violation, a defendant would face the nearly impossible
burden of establishing how his trial might have gone
differently had it been open to the public. See ibid.
(“ ‘[D]emonstration of prejudice in this kind of case is a
practical impossibility . . .’ ” (quoting State v. Sheppard,
182 Conn. 412, 418, 438 A.2d 125, 128 (1980))).
I do not see how we can read Strickland as requiring
defendants to prove what this Court has held cannot be
proved. If courts do not presume prejudice when counsel’s
deficient performance leads to a structural error, then
defendants may well be unable to obtain relief for incom-
petence that deprived them “of basic protections without
which a criminal trial cannot reliably serve its function as
a vehicle for determination of guilt or innocence.” Neder,
supra, at 8–9 (internal quotation marks omitted). This
would be precisely the sort of “mechanical” application
that Strickland tells us to avoid.
In my view, we should not require defendants to take on
a task that is normally impossible to perform. Nor would I
give lower courts the unenviably complex job of decipher-
ing which structural errors really undermine fundamental
fairness and which do not—that game is not worth the
candle. I would simply say that just as structural errors
4 WEAVER v. MASSACHUSETTS
BREYER, J., dissenting
are categorically insusceptible to harmless-error analysis
on direct review, so too are they categorically insusceptible
to actual-prejudice analysis in Strickland claims. A show-
ing that an attorney’s constitutionally deficient perfor-
mance produced a structural error should consequently be
enough to entitle a defendant to relief. I respectfully
dissent.