Jerry and Patricia A. Dixon, et al - Page 137




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               unlawful exclusion of members of the defendant's race                  
               from a grand jury, Vasquez v. Hillery, 474 U.S. 254                    
               (1986); the right to self-representation at trial,                     
               McKaskle v. Wiggins, 465 U.S. 168, 177-178 n.8 (1984);                 
               and the right to public trial, Waller v. Georgia, 467                  
               U.S. 39, 49, n.9 (1984).  Each of these constitutional                 
               deprivations is a similar structural defect affecting                  
               the framework within which the trial proceeds, rather                  
               than simply an error in the trial process itself.                      
               "Without these basic protections, a criminal trial                     
               cannot reliably serve its function as a vehicle for                    
               determination of guilt or innocence, and no criminal                   
               punishment may be regarded as fundamentally fair."                     
               Rose v. Clark, 478 U.S., at 577-578 (citation omitted).                
          Id. at 306-310.                                                             
               The Court of Appeals for the Ninth Circuit recently relied             
          upon the Supreme Court's opinion in Arizona v. Fulminante, supra,           
          to support its holding that a defendant's absence from the                  
          courtroom when the jury returned the death sentence did not                 
          result in a structural defect in the proceedings.  See Rice v.              
          Wood, 77 F.3d 1138, 1144 (9th Cir. 1996).  The Court of Appeals             
          further concluded that the error was harmless because the                   
          defendant's absence from the courtroom did not have a                       
          "substantial and injurious effect or influence" in determining              
          the jury's verdict.  Id. at 1144 (citing Brecht v. Abrahamson,              
          507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328           
          U.S. 750, 776 (1946))).                                                     
          B.   Arguments                                                              
               Messrs. Izen and Jones argue that the Government misconduct            
          in these cases resulted in a structural defect on the ground                
          that their clients, both test case and nontest case petitioners,            
          were deprived of a fair trial.  Messrs. Izen and Jones argue that           


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