Lawyer’s failure to notice a deliberating juror had missed a day of trial was not presumed prejudice for ineffective assistance challenge

In Castillo v. State of Florida, the defendant filed a collateral challenge to her Florida state court conviction of attempted robbery that took place on Miami Beach. Castillo claimed she received ineffective assistance of counsel and was deprived of her Sixth Amendment right to counsel. In this three-day trial, one of the jurors was absent from the second day of trial, but the juror was not replaced by an alternate. Instead the juror returned the third day to participate in the deliberations and voted with the other jurors to convict Castillo. Castillo’s counsel did not object. While the parties agreed that counsel’s failure to notice and object to the juror’s deliberating after being absent during one trial day was deficient performance, the issue was whether the deficient performance by counsel was prejudicial under of Strickland v. Washington.

The 11th Circuit found no actual prejudice resulted from counsel’s failure to object because all of the testimony presented during the second day, the day the juror missed, was evidence of guilt. Nothing the juror missed would have helped the defendant because the testimony was evidence of guilt. All the evidence presented on all three days was incriminating. Finding that there was no reasonable probability of an acquittal if all 6 jurors heard all testimony presented on the second day, rather than just 5 of them. The Defendant argued however that prejudice should be presumed pursuant to the standard laid out in the Supreme Court’s decision in U. S. v. Cronic. The 11th Circuit found that none of the three Cronic factors applied. First, the court found that the defendant’s counsel was present throughout every moment of the trial and there is no suggestion he did not assist the defendant at any critical stage. Second, the court found the record showed defendant’s counsel did subject the prosecution’s case to a meaningful adversarial testing throughout the trial.

The court rejected the trial court’s finding that the defendant’s attorney’s failure to object to a constitutional or otherwise important error can warrant a presumption of prejudice and therefore result in a reversal regardless of whether there is real prejudice. The Eleventh Circuit rejected this “big error” exception to the actual prejudice requirement. Here, the attorney was present throughout the trial and contested the prosecution’s case. Any errors the attorney committed must be judged under the Strickland standard, which requires a showing of actual prejudice. The district court incorrectly relied on language in the 11th Circuit’s decision in Harding, where the defendant was effectively left with no representation during trial because of a disagreement with his court-appointed lawyer. The district court seized on language in Harding that “silence of counsel may constitute denial of counsel at a critical stage of trial and thus constitute error even without a showing of prejudice.” The district court understood this language to support the defendant’s position in that an attorney’s failure to object to a single error, if the error is big enough, can constitute an extraordinary circumstance justifying a presumption under Cronic. While the language was applicable to the facts in Harding, where the defense counsel stood by silently while the trail judge directed a verdict against his client in a criminal case. Here the failure to object to a juror deliberating, who missed hearing some of the prosecution’s evidence, pales in comparison to the facts of Harding.