Lead Opinion
Opinion by Judge THOMAS; Dissent by Judge TALLMAN.
OPINION
Thе Supreme Court has instructed that preclusion of closing argument in a criminal defense trial is structural constitutional error. Herring v. New York,
I
Frost is serving a 55-year prison sentence for his convictions stemming from his involvement in five robberies that occurred over eleven days. In the first robbery, three men — Matthew Williams, Alexander Shelton, and Frost — robbed and burglarized the home of an elderly couple. Firearms were used, though Frost testified he did not carry a gun. In the second robbery, Frost acted as the driver for Shelton and Williams, who robbed a Taco Time restaurant while armed with guns. In the third robbery, Shelton, Williams, Frost, and another man participated in the robbery of an adult video store. Frost agаin acted as the driver and performed surveillance prior to the robbery by entering the store and asking about the closing time and other questions. In the fourth robbery, Frost acted as driver for Williams and Shelton, who robbed a 7/Eleven at gunpoint. During this incident, Shelton threatened two customers in the store’s parking lot with a gun. Finally, immediately following the 7/Eleven robbery, Frost drove Shelton and Williams to a store,
Frost admitted his involvement in the incidents in his trial testimony and in recorded statements to police, which were played at trial. The defense theory of the case was two-fold: there was reasonable doubt as to whether Frost’s involvement rose to the level of an accomplice and, regardless, any actions he took were under duress. Defense counsel explained both theories in his opening statement and developed both throughout the trial.
During the jury instruction conference, the trial judge responded to Frost’s proposed instruction by observing that “duress is a defense which requires the defendant to admit the elements of the crime before it can be raised.”
After some discussion about the instruction, the following colloquy occurred:
MR. WAGNILD [prosecutor]: My concern is we are going to see him get up in closing and argue, first of all, we haven’t proved accomplice liability for any of them and then saying duress.
THE COURT: If he says that[,] the duress instruction will come out of the case.
MR. STIMMEL [defense counsel]: Excuse me, your Honor?
THE COURT: You cannot argue to the jury that the state hasn’t proved accomplice liability and claim a duress defense. You must opt for one or the other. Riker is very clear on this. You must admit the elements of the offense have been proved before you can use the duress offense [sic]. Fortunately for you, your client just got on the stand and admitted everything except the assault in the second degree charge. He admitted he knew about it, he participated in every one of these events and he at least assisted by being the get away driver except for the assault in the second degree charge. I can’t believe you would disregard your chent’s testimony.
MR. STIMMEL: But am I not permitted to argue in the alternative, using duress and failure to prove in the alternative?
THE COURT: No. Duress is an affirmative defense. To quote Riker, a defense of duress admits that the defendant committed the unlawful act but pleas an excuse for doing so. You may not argue both. Riker wouldn’t stand up if that was the ability the defense has. Once the state proves its charges[,] the defense says it is proved and that is when you get an opportunity to raise this affirmative defense and prove it by a preponderance. I don’t see any other way to write it. There are pages and pages about this.
The judge concluded the discussion by again warning defense counsel not to try to argue both theories in closing. Thus, defense counsel was precluded from arguing reasonable doubt, forced to at least tacitly admit the elements of the crimes, and then put to the task of prоving the duress defense by a preponderance of the evidence.
As a result, defense counsel never argued in closing that the State had failed to meet its burden of proof. He argued only that Frost acted under duress due to threats from Williams. Counsel admitted that the duress defense would not absolve Frost of one, and possibly two, of the robberies.
In his rebuttal, the prosecutor pounced on the failure of defense counsel to argue that the State hadn’t proven the elements
Because if Mr. Stimmel had pointed you to the law and pointed to the elements of the offenses and he pointed to the firearm instruction and made his argument you would realize that his argument is phoney, his arguments don’t match up with what the law is and that is really what we are here for.
The jury convicted Frost of all charges except for one assault. The court sentenced him to almost 55 years in prison. The Washington Court of Appeals affirmed Frost’s convictions. State v. Frost,
The Washington Supreme Court narrowly affirmed on different grounds. State v. Frost,
By preventing defense counsel from making both of his legitimate arguments in his closing, the court unanimously held, the trial judge violated Frost’s Fourteenth Amendment right to due process and Sixth Amendment right to counsel. Id. at 365-66, 368-69. “[I]n accordance with due process, the State was required to prove the elements of accomplice liability, beyond a reasonable doubt, as to each offense.” Id. at 368 (citing In re Winship,
Nonetheless, a bare majority of the court held this error was “not so egregious as to require automatic reversal,” id. at 370, and found the error harmless, id. at 369-71. Four justices dissented, arguing that preventing defense counsel from arguing reasonable doubt was structural error under Herring. Id. at 371-72 (Sanders, J., dissenting). The Supreme Court denied certiorari. Frost v. Washington,
Frost filed a federal habeas petition, which the district court denied. Frost v. Van Boening, No. C09-725Z,
II
As the Washington Supreme Court correctly concluded, the state trial court unconstitutionally precluded defense counsel from arguing reasonable doubt, under both Herring and Winship. The only question is whether these constitutional
The Supreme Court has divided constitutional errors into two categories: trial errors, which are subject to harmless error review, and structural errors, which require automatic reversal. Arizona v. Fulminante,
In contrast, structural errors “defy analysis by harmless-error standards because they affect the framework within which the trial proceeds, and are not simply an error in the trial process itself.” Id. (internal quotation marks and alteration omitted). Structural errors include the denial of counsel of one’s choice, id. at 150,
Under 28 U.S.C. § 2254(d)(1), a federal court may “grant a state prisoner’s application for a writ of habeas corpus if the state-court adjudication pursuant to which the prisoner is held resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Howes v. Fields, — U.S. -,
A
In assessing whether the error in this case is structural, our task is easy because the Supreme Court has determined that Herring error is structural. Herring,
The Court held that “only after all the evidence is in” are the attorneys “in a position to present their respective versions of the case as a whole.” Id. at 862,
The deniаl of closing argument here was far worse than what occurred in Herring. In Herring neither the prosecution nor the defense made a closing argument. But in this ease, the judge denied Frost one of his defense theories in closing argument, while the prosecution freely argued both that it had met its burden of proof and that Frost had not established duress. Defense counsel was forced to counter this closing with “one hand tied behind his back.” Frost v. Van Boening,
Precluding defense counsel from arguing a legitimate defense theory would, by itself, constitute structural error. But there is much more to the problem in this case. As the Supreme Court recognized, the Sixth Amendment violation in Herring was intertwined with the requirement under the Due Process Clause that the prosecution prove all the elements of an offense beyond a reasonable doubt, as recognized in Winship. See Herring,
As the Court recognized in Herring, the primary purpose of a defendant’s closing is to hold the State to its burden of proof. See
Here, Frost wanted to argue that the State had not satisfied its burden of proving beyond a reasonable doubt that his actions satisfied the elements of accomplice liability. But he was deprived of the fundamental “right to demand that a jury find him guilty of all the elements of the crime.” Gaudin,
Not only did the trial court’s action deprive Frost of his right to “insist that his guilt be established beyond a reasonable doubt,” Herrera v. Collins,
Winship further teaches that a defendant cannot constitutionally be tried using a lesser burden of proof.
In sum, there is no question that the trial court violated Frost’s due process rights under a long line of clearly established Supreme Court precedent. The trial court unconstitutionally violated Frost’s right to closing argument under Herring. Frost was deprived of his right to demand that a jury find him guilty of all the elements of the crime with which he is charged under Winship and Gaudin. The trial court’s actions in forcing defense counsel to concede guilt amounted to an unconstitutional directed verdict under Sullivan and Martin Linen Supply Co. The burden of proof was unconstitutionally shifted to Frost in violation of Winship and Mullaney. These types of errors strike at the heart of the presumption of innocence and the defendant’s right to contest that the State prove its case beyond a reasonable doubt. If the presumption of innocence is missing from a trial, then there has been no jury verdict within the meaning of the Sixth Amendment. Sullivan,
B
Against this long line of Supreme Court precedent, the State still insists that precluding defense counsel from arguing reasonable doubt is a mere trial error, subject to harmless error analysis. The State relies on Herring’s unremarkable observation that trial courts have “great latitude in controlling the duration and limiting the scope of closing summations.”
The error here was undoubtedly a Herring error despite the dissent’s contention that the “complete denial of closing argument at issue in Herring cannot be equated with the limitations on closing argument imposed in Frost’s trial.” The dissent characterizes the error as a mere limitation on the scope оf Frost’s closing argument when in fact it was an absolute preemption of one of his factually supported, legally available defense theories. Finding Herring error here does not, as the dissent argues, amount to an “expansive interpretation of Herring ” and does not “infer a broader rule from Herring.” The error here amounted to a total denial of closing argument on a legitimate defense theory and is thus squarely within the Herring rule. Likewise, finding Herring error here does not create the “sub
Indeed, the Washington Supreme Court did not leave us in doubt as to what type of error was involved in this case. It explicitly held that the error here was Herring error, not mere trial error. It unanimously rejected the State’s attempt to distinguish Herring on the basis that the trial judge was simply exercising his discretion to place legitimate and reasonable limits on closing arguments. Instead, it expressly held that the trial court’s limitation on closing argument violated Frost’s due process and Sixth Amendment rights. Frost,
In applying a hаrmless error review, the Washington Supreme Court majority held that it was “as equipped to assess whether the trial court’s mistake in limiting closing argument affected the outcome of this case as it is to conduct other harmless error analyses, such as those regarding an erroneous instruction or evidentiary decision.” Id. at 370,
Ill
The trial court infringed Frost’s Sixth and Fourteenth Amendment rights when it precluded his counsel from making a reasonable doubt argument to the jury. Frost was deprived of his right to demand that a jury find him guilty of all the elements of the crime. The trial court’s action amounted to a directed verdict of guilty. The burden of proof was unconstitutionally shiftеd. Frost’s right to present a closing argument was violated. These constitutional violations were structural and not subject to harmless error review. We therefore reverse the district court’s denial of Frost’s habeas petition and remand with instructions for the district court to conditionally grant the writ. We deny as moot all pending motions and decline to expand the certificate of appeala-bility.
REVERSED and REMANDED.
Notes
. Although our decisions do not constitute “clearly established Federal law” for the purposes of 28 U.S.C. § 2254(d)(1), "[o]ur cases may be persuasive authority for purposes of determining whether a particular state court decision is an 'unreasonable application' of Supreme Court law, and also may help us determine what law is ‘clearly established.’ ” Duhaime v. Ducharme,
. The dissent argues that "the judge presented a choice to Frost as opposed to handing down a prohibition or mandate.” This is material, according to the dissent, because “had Frost unwisely pursued his failure-of-proof argument in lieu of his duress defense, these ancillary constitutional issues ... would be dеprived of their supporting role.” If it were a choice, it was a Hobson’s choice, the result of which allowed the burden of proof to be shifted to Frost. The judge forced Frost to abandon one of his two defense theories, and that restriction resulted in structural errors beyond the Herring error, regardless of how the restriction is labeled and regardless of the fact that Frost could have chosen differently.
Dissenting Opinion
The United States Supreme Court has never extended its holding in Herring v. New York,
I
The majority’s interpretation of Hening is not the only reasonable reading of the Court’s opinion and, therefore, is not persuasive on AEDPA review. The majority relies on Herring to conclude that the trial court’s error — restricting Frost’s closing argument to permit either a failure-of-proof argument or a duress defense (and not both) — was structural and not subject to harmless-error analysis. That argument misconstrues and unjustifiably extends this Supreme Court precedent. Herring simply held that a court’s “total denial” of closing argument constituted structural error. Id. at 858-59, 863-65,
In Herring, the defendant was denied any opportunity to make a closing argument before judgment was rendered in a criminal bench trial. Id. At the conclusion of the bench trial, Herring’s counsel asked “to be heard somewhat on the facts.” Id. at 856,
The Supreme Court vacated the conviction, holding that the utter denial of closing argument violated Herring’s right to counsel. Id. at 857-65,
In announcing its decision, however, the Court was careful to observe that there is a fundamental difference between a complete denial of closing argument and a limitation on the scope of closing argument. The Court acknowledged what every trial judge knows: that mere limitations on closing arguments do not constitute structural error because “[t]he presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations.” Id. at 862,
The complete denial of closing argument at issue in Herring cannot be equated with the limitations on closing argument imposed in Frost’s trial. Unlike in Herring, the trial judge allowed Frost’s counsel to make a closing argument. The judge re
II
A
The majority’s expansive interpretation of Herring cannot be reconciled with the Supreme Court’s instructions to only find structural error in rare instances. The Court has “repeatedly recognized that the commission of a constitutional error at trial alone does not entitle a defendant to automatic reversal. Instead, most constitutional errors can be harmless.” Washington v. Recuenco,
The Supreme Court has determined that “if the defendant had counsel and was tried by an impartial аdjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.” Id. at 218,
The Washington Supreme Court correctly concluded that “the error [committed by the trial court] [wa]s not so egregious as to require automatic reversal” and was comparable to the errors that the Supreme Court has previously found harmless. State v. Frost,
In the absence of a United States Supreme Court opinion holding that partial restrictions on closing argument amount to structural error, and in light of the Court’s precedent that most errors are subject to harmless-error review, the Washington Supreme Court’s conclusion that the error identified by Frost was harmless was not objectively unreasonable. In holding that
B
The majority concludes that we must infer a broader rule from Herring — that structural error also occurs when a trial court limits the scope of closing argument, prohibiting a defendant from arguing a defense or claim but permitting closing argument on the primary defense theory. But the Supreme Court has repeatedly admonished us not to infer extensions from the rules identified in its opinions. See, e.g., Nevada v. Jackson, — U.S. -,
The fact that a rule might be necessarily implied from a Supreme Court decision is insufficient to show that the rule is clearly established federal law under AEDPA. See, e.g., Wright v. Van Patten,
In Jackson, the Supreme Court unanimously reversed us for extending the rules announced in its opinions.
Our Jackson panel made this leap in logic, “elid[ing] the distinction between cross-examination and extrinsic evidence by characterizing the cases as recognizing a broad right to present ‘evidence bearing on [a witness’] credibility.’” Id. (second alteration in original). In reversing that opinion, the Supreme Court pointedly stated that “[b]y framing our precedents at such a high level of generality, a lower federal court could transform even the most imaginativе extension of existing case law into ‘clearly established Federal law, as determined by the Supreme Court.’ ” Id.
The majority repeats the same mistake committed by our Jackson panel. It has extended the narrow holding in Herring to find structural error where a defendant is prevented from arguing in closing one of several inconsistent defense theories. It does this despite the fact that the Court has repeatedly and expressly instructed us to exercise restraint when defining clearly established federal law — an instruction that the majority all too readily ignores. See, e.g., Richter,
AEDPA deference requires that a claim be based upon a Supreme Court decision that existed at the time of the state court adjudication. The Washington Supreme Court correctly concluded that the United States Supreme Court’s decision in Herring did not extend to restrictions on closing argument that fall short of outright prohibitiоns. We should abide by the AEDPA statutory restriction and accord Washington’s highest court the comity that Congress and the Supreme Court require.
C
The logical extension of the majority’s rule would be to declare structural error and require automatic reversal any time a trial judge erred in placing limits on closing argument because petitioner could argue that, as to the contested issue, the limitation resulted in a total denial of closing argument on a legitimate defense theory. This result is apparent when you look below the surface of the majority’s all-or-nothing argument, which amounts to stating, “If you don’t like your closing argument and can find any error, no matter how small, we won’t hold you to your conviction.” This logic would require convictions to be vacated and new trials granted on a number of lesser errors, which may now be deemed structural.
For example, if structural error is found in this case, how could we say that structural error does not also occur when a trial judge improperly excludes exculpatory evidence without regard to materiality and forbids defense counsel from commenting on it in closing? In both instances, the defendant is prohibited from effectively claiming innocence and from comprehensively arguing all theories that support that defense. Structural error may also be found when a trial judge improperly restricts closing argument by imposing time limitations that necessarily require the defense to choose among multiple arguments to emphasize during summation. Claims of structural error may also be made when a judge adopts any number of limitations that inhibit defense counsel from making their most effective and comprehensive arguments supporting a defendant’s innocence without regard to any evidence supporting the claim or the context from which the argument is to be made. That cannot be the law and the Supreme Court has never said anything of the sort.
There are substantial negative consequences to interpreting the Supreme Court’s decision in Herring expansively and increasing the number of errors deemed structural. Doing so eliminates any need to establish prejudice to show thаt the defendant was deprived of a fair trial. The majority’s interpretation, and its undeniable effect, cannot be reconciled with our limited role in habeas proceedings involving review of state convictions under AEDPA.
Ill
The majority cites to two Ninth Circuit cases, Conde v. Henry,
Furthermore, even if Conde or Miguel were instructive in defining clearly established federal law, both cases are distinguishable. Importantly, neither case involved a petitioner seeking habeas relief post-AEDPA, so neither case bound our court to AEDPA’s deferential review standards on appeal. On federal habeas review, we must uphold the Washington Supreme Court’s adjudication of Frost’s claim unless we conclude that its interpretation limiting the extension of Herring was objectively unreasonable, and not merely because we would have reached a contrary interpretation. See Renico,
In Conde, a pre-AEDPA habeas appeal, we concluded that structural error occurred because “the trial court improperly precluded Conde’s attorney from making closing argument explaining the defendant’s theory of the case, it refused to instruct the jury on the defendаnt’s theory, and, over the defendant’s objection, it gave jury instructions that did not require that the jury find every element of the offense.”
In Miguel, a direct appeal from a federal criminal proceeding, we held that structural error occurred when the district court precluded defense counsel from arguing during closing that someone other than the defendant shot the victim and that no evidence supported the defense theory.
Here, after he had taken the stand and admitted to participating in an eleven-day crime spree, Frost was permitted to argue during closing argument that he committed the crimes under duress — the primary defense theory in his case. Further, as the Washington Supremе Court and the district court highlighted, “[t]he record clearly shows the prosecutor argued it was the state’s burden to prove that Frost was an accomplice and to prove beyond a reasonable doubt each and every element of the charged offenses.” Frost v. Van Boening, No. C09-725-TSZ-BAT,
By relying on circuit precedent to find structural error, the majority also ignores the Supreme Court’s recent admonition in Marshall v. Rodgers, — U.S. -,
This is precisely the tactic that the majority has employed to grant Frost’s habe-as petition. Given our limited review under AEDPA, our decisions in Conde and Miguel do not establish that the Washington Supreme Court’s decision to apply harmless-error review was contrary to or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court. Absent such a showing, under AEDPA we must defer to the state court’s decision.
IV
The majority also bends the facts of the case in its favor by framing a choice as a mandate. The majority asserts that the judge “specifically prohibited counsel from arguing that the State had not met its burden of proof’ and that “defense counsel was precluded from arguing reasonable doubt.” But that is incorrect. The trial judge repeatedly indicated that Frost was free to assert that the prosecution had not proved accomplice liability. But the judge also noted, albeit in error, that such a choice would have consequences, informing Frost that “[i]f he [argued failure of proof during closing,] the duress instruction will come out of the case.” By requiring Frost to “opt for one [theory] or the other,” the judge presented a choice to Frost as opposed to handing down a prohibition or mandate. And, although the judge may have hinted at his belief that abandoning the duress defense and electing to argue that the prosecution had not satisfied its burden of proof would be unwise, the judge did not usurp Frost’s choice.
This is material to the analysis because the majority finds support for its structural-error conclusion based on Frost’s actions instead of the judge’s. The majority concludes that by “depriv[ing] Frost of his right to ‘insist that his guilt be established
V
AEDPA mandates that “a state prisoner seeking a writ of habeas corpus from a federal court ‘must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’ ” Bobby v. Dixon, — U.S. -,
AEDPA does not permit us to reject a state court’s interpretation of Supreme Court precedent simply because we disagree. See, e.g., Lockyer v. Andrade,
It is not enough that a federal habeas court, in its “independent review of the legal question,” is left with a “firm conviction” that the state court was “erroneous.” We have held precisely the opposite: “Under § 2254(d)(l)’s ‘unreasonable application’ clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Williams v. Taylor,529 U.S. 362 , 411 []120 S.Ct. 1495 ,146 L.Ed.2d 389 (2000). Rather, that application must be objectively unreasonable. Id. at 409 [120 S.Ct. 1495 ]; Bell v. Cone,535 U.S. 685 , 699 [122 S.Ct. 1843 ,152 L.Ed.2d 914 ] (2002); Woodford v. Visciotti,537 U.S. 19 , 27 [123 S.Ct. 357 ,154 L.Ed.2d 279 ] (2002) (per curiam).
Id. at 75-76,
Because the Supreme Court has never addressed a claim, such as the one presently before us, concerning a restriction on the scope of closing argument, the Washington Supreme Court’s determination that the error was not structural does not require automatic reversal. See Richter,
The Supreme Court’s decision in Herring did not “establish a legal principle that dearly extends” to limitations imposed on closing arguments, as opposed to the complete denial of argument. Moses v. Payne,
VI
The Washington Supreme Court properly concluded that the trial court’s error was harmless. On habeas review, to determine whether Frost is entitled to relief, our analysis is focused on whether the trial court’s restriction on Frost’s closing argument “had [a] substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson,
Under this standard, Frost is “not entitled to habeas relief based on trial error unless [he] can establish that it resulted in ‘actual prejudice.’ ” Id. (quoting United States v. Lane,
First, the evidence of Frost’s guilt at trial was overwhelming. Frost gave three taped confessions, all of which were entered into evidence at trial. Further, Frost testified in detail about his involvement in the crimes for which he was charged as an accomplice, admitting that: (1) he drove Williams to the Gapp residence on the night of the robbery, that he entered the residence, and removed money and guns from Gapp’s safe; (2) he drove the codefendants to the Taco Time restaurant, T and A video store, the 7-Eleven convenience store, and Ronnie’s Market on the night that each of those robberies took place; (3) he was aware that Williams carried a bag containing such items as a ski mask and gloves that were routinely used to commit the crimes; and (4) he was aware of his co-defendant’s use of firearms. Finally, Detective Broggi’s testimony regarding the loaded guns, cash register, bank bags, safe, and ski masks that were found at Frost’s home further corroborated Frost’s active role in the crimes.
Second, Frost conceded guilt as to some of these crimes when he testified in his own defense before the trial court erroneously restricted Frost’s closing argument. During opening statements, Frost’s counsel admitted that Frost committed at least one of the robberies, stating, “You will find from the evidence ... that Joshua Frost is guilty of the robbery of [the elderly couple].” Consistent with his counsel’s statements, Frost told the jury that he participated in the charged crimes but claimed that he did so under duress.
Third, as to the remaining offenses, the state’s burden of proof did not go untested because defense counsel was barred from raising reasonable doubt as to accomplice liability. Although Frost’s counsel admitted during closing argument that Frost
I think you can find Joshua Frost guilty of the Gapp robbery because that is just so overpowering, and he did go into the house. I think you can find Joshua Frost guilty of the T and A robbery not because he went in to do the robbery but because he actually entered the store. And the only reason I think you could find him guilty of that is that it is kind of just too much to ask for somebody who is willing to take the step to let him off. And I know that is what you are thinking, some of you. But as to the cases in which he didn’t go in anywhere and was just told to stay put, we are аsking you to find him not guilty, and even if you find him guilty he is not guilty of the guns. You can find him guilty of displaying the gun as an accomplice, I suppose, which is one of the things you have to find to make a robbery in the first degree. But that doesn’t require you to find the special verdict firearm allegation in addition. You don’t have to do that. And we hope you don’t. And we think that the basis for not doing that is that the guns were out of his control.
Accordingly, as the district court acknowledged, “contrary to Frost’s contention, the record shows defense counsel was able to and did argue the state had failed to prove Frost was an accomplice.”
Fourth, the jury was fully informed of the state’s burden to prove each element of the crime beyond a reasonable doubt, including accomplice liability. For example, the prosecutor in closing argument stated:
Now I have divided my closing argument into two different parts. The reason for that, ladies and gentlemen, is there really are two parts in some ways you look at this. The first part has to do with the charges and the evidence and has the state proven all of the elements and all of the crimes beyond a reasonable doubt. And then the second part has to do with the defense of duress, and this is important because the first part, again, the state has the burden. To get to duress you really have to find the state proves its case beyond a reasonable doubt....
Additionally, the jury in Frost’s trial was properly instructed as to the state’s burden of proof by the judge prior to opening statements, by the prosecution in closing, and in the formal jury instructions read before the jury rendered its verdict.
Finally, Frost voluntarily elected to concede his involvement in the robberies when he decided to pursue the inconsistent defense of duress. Under Washington law, a defendant must admit that he “participated in the crime” in order to argue duress. Wash. Rev.Code § 9A.16.060(l)(a). As the Washington Supreme Court explained, “a defense of duress admits that the defendant committed the unlawful act, but pleads an excuse for doing so ... [and] a duress defense necessarily allows for no doubt that the defendant did the acts charged.” State v. Riker,
Therefore, although thе Washington Supreme Court found that the trial court erred when it required Frost to concede guilt or criminal liability, by electing to raise a duress argument, Frost necessarily had to admit that he committed the unlawful acts, and he consequently knew that any argument he made regarding the state’s failure to prove guilt was significantly weakened. Although the trial judge indisputably erred in prohibiting defense counsel from arguing innocence, the magnitude of that error is certainly lessened by the fact that Frost voluntarily admitted
Thus, in light of our review of the record, we should hold that the trial court’s limitation on defense counsel’s closing argument did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht,
VII
The Washington Supreme Court’s decision that the trial court’s restriction on closing argument did not constitute structural error was neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. In light of the Supreme Court’s express instructions to exercise restraint in defining clearly established federal law, to grant deference to state courts under AEDPA, and to find structural error only in rare instances, the Washington Supreme Court’s decision to apply harmless-error analysis should have been respected.
The Washington Supreme Court properly concluded that the trial court’s error was harmless. Reviewing the record as a whole, the trial court’s restriction on Frost’s closing argument did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht,
I respectfully dissent.
. The majority asserts that any choice Frost had “was a Hobson’s choice, the result of which allowed the burden of proof to be shifted to Frost.” But a Hobson’s choice, which requires selection between something or nothing, is only present here if we view Frost as being forced to choose between pursuing an affirmative duress defense or mounting no defense at all. This may be true given that Frost had already thrice confessed and then testified to participating in the crimes, but if so, any Hobson’s choice was of his own making. As opposed to a Hobson’s choice, Frost’s predicament is more akin to "Morton’s Fork.” Burroughs v. Metro Goldwyn-Mayer, Inc.,