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Name: Frost v. Boening
Case #: 11-35114
Court: US Court of Appeals
District 9 Cir
Opinion Date: 04/24/2014

Trial court’s preclusion of inconsistent defenses during closing argument is structural constitutional error requiring reversal. Frost was convicted of five different robberies and given a 55-year prison term. He offered two defenses during opening argument: The prosecution failed to prove his involvement rose to the level of an accomplice and, in any event, his actions were the result of duress. The trial court stated that duress could be raised only after the defendant admitted the elements of the crimes had been proved. It warned the defense not to argue both reasonable doubt and duress in closing. As a result, the defense did not argue the State had failed to meet its burden of proof; this was exploited by the prosecution in closing. The state appellate courts affirmed, although a majority of the Washington Supreme Court found harmless constitutional error. The district court denied Frost’s federal habeas petition and he appealed. Held: Reversed after grant of rehearing. The state trial court unconstitutionally precluded defense counsel from arguing reasonable doubt. (Herring v. New York (1975) 422 U.S. 853; In re Winship (1970) 397 U.S. 358.) The Washington Supreme Court unreasonably applied clearly established federal when it subjected this error to a harmless error analysis. In Herring, the trial court refused to allow either side to present closing arguments in a bench trial. The U.S. Supreme Court held that this denied the defendant his Sixth Amendment right to counsel by not allowing him to participate in the adversarial process. While most constitutional errors are subject to harmless error review, the Court in Herring determined that the error was structural, which requires automatic reversal. Here, the constitutional violation under Herring was worse—the defense was denied the right to argue reasonable doubt while the prosecution was free to argue that it met its burden. This amounted to a directed verdict and lessened the burden of proof.