WASHINGTON (CN) - The Supreme Court grappled Wednesday with what Justice Elena Kagan dubbed the "Kafkaesque" challenge of determining whether a minor charged with murder was prejudiced when his family was barred from entering the courtroom during jury selection.
Kentel Myrone Weaver was arrested in 2003 after killing 15-year old Germaine Rucker in Boston. The 16-year-old confessed, but during the jury selection process, he was left to sit before potential jurors alone.
Ninety jurors packed the room while lack of space forced Weaver's support network, including his mother, her boyfriend, his sister and his pastor, to wait outside.
According to court documents, Weaver's attorney never objected because he believed the closure was constitutional.
Arguing on Weaver’s behalf Wednesday, attorney Michael B. Kimberly of the D.C. firm Mayer Brown told Chief Justice John Roberts that the threat of prejudice influencing the jury could have easily been removed.
"I guess the argument is, well, they were turned away because there was no room,” Chief Justice Roberts said. “And there was no room because the courtroom was full of members of the public who were called for jury duty. In other words, there's no room in the courtroom and you say, well that's not justification for keeping people out."
Kimberly agreed.
"For instance, the members of the public who were excluded from the proceeding were the defendant's own mother, his mother's boyfriend, sister, and pastor,” Kimberly said.
“It … has an effect on how the jury perceives him,” Kimberly continued. “Because what does it say that at the first time the members, again of the jury who are going to decide this young man's guilt or innocence, if he is presented to them without the support of even his mother?"
Justice Samuel Alito pointed out that it would be impossible to determine whether or not the family's presence would have influenced the jury.
Kimberly acknowledged that there was no way to know what effect Weaver’s family's absence may have had on the jury selection results, let alone the effect it might have had on his demeanor.
But Kimberly insisted that the decision by Weaver's attorney to forgo an objection was a "straightforward case of deficient performance."
Justice Kagan chimed in, saying that the court had agreed that it was impossible to show how a structural error – an error that permeates the entire trial – such as the one suffered by Weaver could have affected the final outcome.
"That's really what's at issue here, whether we should put the defendant to the burden of showing how it affected the trial, when, in fact, we've said over and over that you can't do that," Justice Kagan said.
Justice Ruth Bader Ginsburg asked the state's attorney Randall E. Ravitz to consider a hypothetical.
"Supposing this objection had been made at the first opportunity and it’s denied by the trial judge? And then it goes up on appeal. So there was a timely objection. Wouldn't it follow, then, that the judgment has to be vacated and there has to be a retrial?" she asked.
Ravitz conceded that if the court assumed the judge's decision was improper, then yes, that would have happened in Massachusetts, where the case was originally tried.
"But that wasn't the case here,” Ravitz said. “And it’s important to recognize the distinction between those two situations. There are both doctrinal and practical considerations there. The doctrinal ones are that now we are looking at a different type of claim. We're not looking at a public trial claim. We're looking at an ineffectiveness claim. And there must be prejudice in order for that violation to be complete. "
Justice Alito countered that unless the structural error was fatal, in a hypothetical like Justice Ginsburg's yet another conundrum would crop up.
"Wouldn't it be open to you to prove that it was harmless error beyond a reasonable doubt?" Justice Alito asked.
Ravitz said that he respected the court's prior rulings on public trial errors as structural in nature, and that the court has said that the closure of jury selection is deemed a public trial error. But not all structural errors should be treated the same, he argued.
Justice Stephen Breyer pressed Ravitz further.
"Suppose that the structural error were excluding African-Americans from the jury, or women from the jury. Okay? That's the error. They select a different jury. All white men. Now, we have no way of knowing whether that made a real difference in that case. We don't know. So it's a structural error. Now, are you saying in such a circumstance, where the lawyer failed to object … therefore inadequate assistance of counsel, that that isn't the end of it? That there was an all white male jury? Isn't that the end of it, even though we don't know if there was prejudice in the sense that the jury would have decided differently? Is that your position?" Justice Breyer asked.
Ravitz answered that prejudice would need to be proven.
"You can't. All right? You can't. You can't prove that the jury would have come out differently," Justice Breyer said.
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