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“SCOTUS Holds Restrictions on Defendant’s Closing Argument are not Clearly Structural Error”

Appellate Lawyers Association Charles E. Harper

In Glebe v. Frost, 574 U.S. --- (2014) (per curiam), the U.S. Supreme Court held that it is not clearly established that restrictions on a defendant’s closing argument constitute structural error. At trial, Frost admitted his involvement in a series of robberies, but testified that he acted under duress. Defense counsel, however, wanted to argue in closing both that the State failed to prove its case and that Frost acted under duress. The trial court ordered that defense counsel could not present both of these alternative arguments in closing, and counsel only discussed duress. Frost was convicted of several felonies. On direct appeal, the Washington Supreme Court held that the trial court’s restriction on closing argument violated the Federal Constitution’s Assistance of Counsel Clause, but held that the error was harmless beyond a reasonable doubt.

Frost sought habeas relief under 28 U.S.C. § 2254. He argued that the Washington courts violated clearly established federal law by treating the restriction on closing argument as trial error (subject to harmless-error review) rather than structural error (which requires automatic reversal). The district court denied his petition, but the 9th Circuit, en banc, reversed.

The U.S. Supreme Court, in a brief per curiam opinion, reversed, holding that it does not violate clearly established federal law to treat a restriction on closing argument as trial error, rather than structural error. The Court rejected the 9th Circuit’s reasoning that the Washington Supreme Court contradicted Herring v. New York, 422 U.S. 853 (1975), which held that total denial of closing argument violates the Assistance of Counsel Clause. The Supreme Court reasoned that, even if Herring held that total denial of closing argument constituted structural error (and the Court seemed skeptical that it did), this case involved only a restriction on closing argument. And while the 9th Circuit had previously held that such a restriction constitutes structural error, the Court noted that “circuit precedent does not constitute clearly established Federal law, as determined by the Supreme Court” under § 2254(d)(1).

The Court also swiftly rejected the 9th Circuit’s argument that this restriction on closing argument amounted to a coerced confession or directed verdict. The Court explained that Frost was not prevented from arguing that the prosecution failed to prove its case; rather, he simply could not make that argument simultaneously with his duress defense. And at any rate, the Court explained, the introduction of an actual coerced confession is still only trial error, subject to harmless-error review, under Arizona v. Fulminante, 499 U.S. 279, 310 (1999). A “tacit” confession could not therefore be structural error.
Ultimately, the Court remanded for the lower court to determine whether it was reasonable to find the error harmless, which the 9th Circuit had not considered.

The Court did not hold outright that a restriction on closing argument is trial error, rather than structural error. Because the matter came to the Supreme Court on a petition for writ of habeas corpus, the Court only asked whether it was already clearly established that closing-argument restrictions are structural error, and held that it was not. Nonetheless, the Court gave a strong indication about how it might rule on direct review. The Court reiterated that “only the rare type of error” required automatic reversal, stressing that this is a “narrow category.” Further, by noting that introducing a coerced confession is not trial error and expressing skepticism that even total denial of closing argument is structural error, the Court seemed to signal that this kind of restriction on summation would not be structural error, if it is error at all.


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