Excluding the Public From Jury Selection (Part 4)

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.

This portion of the holding is at odds with the fact that if an attorney objects to a courtroom being closed and the judge permits the trial to proceed over the objection, then reversal of any subsequent conviction is “automatic.” Thus, the failure to object would “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 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, or those granting automatic relief to defendants who prevailed on claims of race or gender discrimination in jury selection. 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. 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.