A Batson violation—racially discriminatory jury selection—is a structural error, “not amenable” to harmless error review on direct appeal. By definition, structural errors evade traditional prejudice analysis. But, when a petitioner argues on collateral review that their trial counsel provided ineffective assistance by failing to object to a Batson violation, a number of circuits require a showing of Strickland prejudice. As some of these courts recognize, they demand the impossible.
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Senior Editor, Volume 170, University of Pennsylvania Law Review; J.D. Candidate, 2022, University of Pennsylvania Law School; B.A., 2018, Swarthmore College.
Beyond Strickland Prejudice: Weaver, Batson, and Procedural Default
A Batson violation—racially discriminatory jury selection—is a structural error,
“not amenable” to harmless error review on direct appeal. By definition, structural
errors evade traditional prejudice analysis. But, when a petitioner argues on
collateral review that their trial counsel provided ineffective assistance by failing to
object to a Batson violation, a number of circuits require a showing of Strickland
prejudice. As some of these courts recognize, they demand the impossible.