If a defense attorney in a criminal trial permits structural error to occur without objecting, in a context such that a reasonably competent attorney would have objected, and in a context where had the attorney objected, the error, being structural error, would have been per se reversible error, is the same error per se reversible erro in the habeas setting? 

 

There is a split in the circuits on this question, with the Sixth Circuit holding that the error is automatically reversible but the Eleventh Circuit, in a case I recently argued, held that it is not.

 

See my office blog for more information http://criminalappeal.typepad.com/my_weblog/

 

The case in issue is Jessie Earl Purvis v. Crosby.  I am hopeful the Supreme Court will grant certiorari to decide the conflict.