USA v. Withers, 638 F.3d 1055 (9th Cir.2011)

Note: this case was filed in filed in August, 2010 and amended in January, 2011.  The case does not bear a citation in the Federal Reporter and was not designated for non publication.

Although most of the “ineffective counsel” cases arise on collateral review of state court decisions, the U.S. District Court is not immune from reversal on this ground.  In 1998 a federal court jury convicted Withers of a variety of federal crimes. The district court, on procedural and substantive grounds, denied his habeas corpus petition alleging ineffective counsel, and Withers appealed his conviction to the 9th Circuit.  In his appeal, Withers contended the trial judge closed the courtroom during voir dire thereby denying him the right to a public trial as required by the Sixth Amendment to the Constitution.

The record disclosed that the trial court requested all spectators to withdraw from the courtroom to accommodate jury selection in a case that subsequently lasted eighteen days.  Defense counsel raised no objection to courtroom closure, and on appeal from the denial of the habeas corpus petition his appellate counsel raised no objection.

After the 9th Circuit 2-1 panel skirted all objections to the procedural viability of the petition, it discussed the failure of trial and appellate counsel to raise any objection to courtroom closure.  Citing PressEnterprise Co. v. Sup.Ct., 464 U.S. 501 (1982), the court held the failure to allow the public to remain in the courtroom during voir dire qualified as a violation of the Sixth Amendment right of a defendant to a public trial. Failure of both counsel to raise the issue is “ineffective counsel;” Strickland v. Washington, 466 U.S. 668 (1984).

The dissent noted that no one, neither trial counsel  nor appellate counsel, objected to courtroom closure prior to voir dire.  Moreover, trial counsel made no objection to any error in jury selection either during voir dire or in post conviction proceedings. In any other court, this failure to object constitutes a waiver.

The reason for the 9th Circuit decision in Withers is trial inexperience of the panel majority.  If a trial judge expects a lengthy case, (eighteen days) the number of potential jurors in the courtroom must be enough to survive excusing jurors on the ground of hardship. Accordingly, the trial judge cannot assure enough space for a substantial number of potential jurors and simultaneously accommodate the public. In fact, that is exactly what the trial judge said in court. The lawyers all understand this dilemma and for that reason no one objected.  Nothing in the record supports evidence of courtroom closure after the lawyers completed jury selection.

The majority panel cites Sixth Amendment cases decided by other jurisdictions based on an entirely different sets of facts that conceivably would affect the result of improper exclusion of the public during voir dire. Press Enterprise, relied on by the majority, is unrelated to the facts in this case.

The panel remanded this 1998 case to the district court to conduct an evidentiary hearing.