For the Defense - Volume 3, Issue 1 - 2018 - 35

claim - namely, that trial counsel failed to protect
her right to a public trial during the jury selection
phase of her murder trial.
At the outset, the Weaver Court explained that
the appropriate remedy for public trial violations
depends on when the objection is raised. Generally
speaking, public trial violations are considered
to be structural errors because they affect the
framework within which the trial proceeds, and,
thus, aren't simply an error that occurred in the
trial process itself. When a structural error occurs,
and the issue is properly raised on direct review,
a new trial is in order, and there is no need for
a prejudice/harmless error analysis. When a
defendant raises the issue in the context of an
ineffective-assistance-of-counsel claim, however,
a Stickland analysis must ensue, meaning that
the defendant must show trial counsel's deficient
performance resulted in prejudice. Turning to
Weaver's case, the Court held that Weaver failed to
establish that he was prejudiced by trial counsel's
failure to object to the courtroom closure.

Third Circuit Court of Appeals
McKernan v. Superintendent Smithfield SCI, 849
F.3d 557 (3d Cir. 2017). Counsel was ineffective
for failing to seek recusal of judge in bench trial
whose bias materialized in chambers during
conversation with murder victim's family members.
McKernan successfully argued trial counsel's
failure to recognize a judge's impartiality and
failure to seek recusal deprived him of the
effective assistance of counsel. On the second
day of McKernan's bench trial for homicide,
the trial judge called the victim's mother and
brother into chambers (along with the ADA and
trial counsel). The meeting was transcribed by a
court reporter. The judge noted her concern after
finding a website that had been created by the
victim's family criticizing the judge's reputation
for being soft on crime. The judge described this
allegation as "vicious and unfair" and objected
to the "dreadful, slanderous things" the family
had written about her. The judge further stated
that she did not want to continue to hear the
case if the victim's mother was unhappy with her.
The judge then sought the family's approval of
her handling of the trial, stating that she "just

want[ed] to make sure that you folks are happy
with me." The trial court also repeatedly assured
the family that she was not incapable of issuing
harsh decisions. In response, the victim's family
assured the judge that they were satisfied with
her continuing to preside over the trial.
Trial counsel never objected to the meeting
or moved for recusal. Instead, trial counsel left
the meeting, which continued in his absence, to
apprise McKernan of what was happening. Trial
counsel returned and suggested that the trial
court speak with McKernan, as she had with the
victim's family. During that conversation, the trial
judge assured McKernan that her conversation
with the victim's family would not influence
her decision-making in his case, and that she
would "try and pray to God that [she] be fair"
to McKernan. In the end, the trial court found
McKernan guilty of first-degree murder.
The McKernan Court held that trial counsel's
failure to move for recusal fell far below minimal
standards of competence such that McKernan
was denied effective assistance of counsel. The
McKernan court reasoned that, "[c]onsidering
the myriad procedural safeguards in place to
avoid the seating of even one biased juror, out
of twelve, it is inconceivable that, during a bench
trial when the judge is the sole factfinder, a trial
may proceed when that judge is biased. To do
so is to conduct a trial before an unfair tribunal,
violating the fundamental requirement for an
acceptable trial. We therefore hold today that
the right to an impartial trial extends to a bench
trial, and that such right cannot be waived by a
defendant."
Bey v. Superintendent Greene SCI, 856 F.3d
230 (3d Cir. 2017). Counsel was ineffective for
failing to ensure accuracy of jury instruction
on eyewitness identification the defense itself
requested.
Bey's trial counsel appropriately requested
a special jury instruction on the subject of
eyewitness testimony under Commonwealth
v. Kloiber. But, Bey claimed, trial counsel was
ineffective for failing to ensure that the correct
instruction was given. Indeed, while the trial
court agreed to give a Kloiber instruction, the
actual instruction it gave misstated the law. A

Vol. 3, Issue 1

l

For The Defense

35



Table of Contents for the Digital Edition of For the Defense - Volume 3, Issue 1 - 2018

Contents
For the Defense - Volume 3, Issue 1 - 2018 - 1
For the Defense - Volume 3, Issue 1 - 2018 - 2
For the Defense - Volume 3, Issue 1 - 2018 - Contents
For the Defense - Volume 3, Issue 1 - 2018 - 4
For the Defense - Volume 3, Issue 1 - 2018 - 5
For the Defense - Volume 3, Issue 1 - 2018 - 6
For the Defense - Volume 3, Issue 1 - 2018 - 7
For the Defense - Volume 3, Issue 1 - 2018 - 8
For the Defense - Volume 3, Issue 1 - 2018 - 9
For the Defense - Volume 3, Issue 1 - 2018 - 10
For the Defense - Volume 3, Issue 1 - 2018 - 11
For the Defense - Volume 3, Issue 1 - 2018 - 12
For the Defense - Volume 3, Issue 1 - 2018 - 13
For the Defense - Volume 3, Issue 1 - 2018 - 14
For the Defense - Volume 3, Issue 1 - 2018 - 15
For the Defense - Volume 3, Issue 1 - 2018 - 16
For the Defense - Volume 3, Issue 1 - 2018 - 17
For the Defense - Volume 3, Issue 1 - 2018 - 18
For the Defense - Volume 3, Issue 1 - 2018 - 19
For the Defense - Volume 3, Issue 1 - 2018 - 20
For the Defense - Volume 3, Issue 1 - 2018 - 21
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