Failure of Defense Counsel to Submit Written Closing Argument Following Bench Trial Is Not Structural Error

State v. Dalbec, Minn.S.Ct., 7/27/2011.  This is the bench trial where defense counsel did not submit a written closing argument after asking to do so and then being unsuccessfully hounded by the clerk’s office about whether he really meant it.  I wrote about this here.  The court of appeals had concluded that this was both ineffective assistance of counsel and structural error:  automatic reversal and a new trial. 

Justice Page, writing for a unanimous court, disagrees.  Justice Page reviews what is considered “structural error.” In the context of effective assistance of counsel there are three kinds of structural error:

(1) when “the accused is denied counsel at a critical stage of his trial,” (2) when “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” and (3) when circumstances show that the probability that a fully competent lawyer “could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.”

United States v. Cronic, 466 U.S. 648, 658 (1984).  Mr. Dalbec thought that he could fit through door number two.  However, not submitting a final written argument following a bench trial is no different than waiving closing argument, which the U.S. Supreme Court did not find to be structural error in Bell v. Cone, 535 U.S. 685, 696-97 (2002).  In the Bell case, counsel had waived closing argument in the penalty phase of a capital case.  The Supreme Court said that counsel had not “entirely” failed” in his representation and so structural error analysis did not apply.  The court here comes to the same conclusion in this bench trial.