Stein Center Files Amicus Brief with U.S. Supreme Court


The Stein Center for Law and Ethics filed an amicus brief earlier this month with the U.S. Supreme Court requesting a new trial for a Massachusetts inmate whose attorney showed “gross incompetence” in failing to uphold his constitutional right to a public trial.

The attorney’s failure to object to two days of closed court jury selection proceedings amounted to a “grievous breach of his fiduciary and ethical duties,” the Stein Center’s brief states in the matter of Weaver v. Massachusetts. The brief argues that the Supreme Judicial Court of Massachusetts wrongly applied a “harmless-error” analysis in a case where Kentel Weaver received a life prison sentence after a trial tainted by a structural error caused by ineffective counsel.

Weaver is about more than one inmate’s Sixth Amendment right to a public trial; at its heart, it is about “[p]reventing the degradation of the adversarial process,” the Stein Center’s brief states. Stein Center Director Bruce Green and fellow Fordham Law Professor Russell Pearce signed the brief, which also featured the signatures of legal ethics professors and centers from across the country. Lawrence J. Fox of Schoeman Updike & Kaufman LLP authored the brief.

“If the prosecutor and judge are unaware of the constitutional law, you’d expect the defense lawyer to chime in,” Green said in a recent interview. “It’s a pretty rare case where all three of them—the judge, prosecutor, and defense lawyer—are all ignorant of the constitutional requirement.”

Generally, inmates arguing they were denied their right to competent counsel at trial must show a likelihood they would have otherwise been found not guilty. That should not be true in Weaver, Green said.

“What makes this case different and unusual is that it’s impossible to show that the denial of the right to an open trial made a difference to the verdict,” Green explained, noting that “in general the right to an open trial is automatically reversible” due to the structural error involved.

In rejecting Weaver’s appeal for a new trial, the Supreme Judicial Court of Massachusetts expressed concern that defense attorneys would use an “appellate parachute”—that is, they would purposely not object in a closed court situation to have an opportunity for appeal if their client was found guilty in the first trial.

No evidence exists that defense attorneys would put their legal licenses and reputations on the line for a potential trial mulligan.

“It would be unethical for them to do that and there are strong disincentives against them acting unethically,” Green said.

Oral arguments in Weaver v. Massachusetts are scheduled for April 19, according to SCOTUSblog.


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