Should prejudice in an ineffective-assistance-of-counsel case be presumed where the deficient performance of counsel resulted in a structural-error compromising the fundamental-fairness of the proceeding, especially where proof of actual-prejudice is virtually-impossible?

QUESTION PRESENTED This is a death penalty post-conviction case. In the proceedings below, Petitioner asserted that his trial counsel rendered ineffective assistance of counsel based on their failure to request an out-of-county venire from which to empanel the jury. Itis undisputed that such a request would have been granted: Petitioner’s three State-charged co-defendants all received out-of-county venires from which to empanel their respective juries, and none of these co-defendants received the death penalty, although two of the three were convicted of first degree murder with death-eligible aggravating circumstances. In fact, the trial judge, on multiple occasions, implored Petitioner’s counsel to seek an out-of-county jury given the extensive prejudicial pretrial coverage that the case received leading up to Petitioner’s trial. At a post-conviction evidentiary hearing, Petitioner presented evidence that the local newspaper of record, the Knoxville News Sentinel, published 322 stories, including 100 front page stories, about the facts and circumstances of the case, the culpability of the defendants, the legal proceedings of the case, and the view that the defendants all deserved the death penalty. Local television stations similarly broadcast over three thousand news stories in the under-three-year period between the crime and the trial, covering the same information. Online commentaries about the case repeated racist invective, accused the national media of a racial double standard (the victims were white, and defendants are Black), and similarly forwarded the viewpoint that the defendants should receive the death penalty. White supremacists, including the Ku Klux Klan, organized rallies protesting Black-onwhite crime in downtown Knoxville, in front of the building where Petitioner would later be tried. Local polls conducted showed that over 90% of Knox County residents thought the defendants deserved the death penalty. When Petitioner was tried, all his jurors had been exposed to pretrial publicity concerning the case. Over half of the seated jurors had preformed opinions about Petitioner’s and/or his co-defendants guilt. Multiple jurors had watched trial proceedings and testimony from his co-defendant’s trial, which was aired in full on television to the local community. One juror had previously written to television commentator Nancy Grace to try to get CNN to cover the crime on national news. The trial attorneys for Petitioner received multiple death threats during the pendency of the case, resulting in an increased law enforcement presence throughout the trial. Audience members, including family members of the victims, disrupted trial proceedings with outbursts, harassed the attorneys representing Petitioner, and violated court admonitions concerning buttons containing life-in-being photographs i of the victims. A prosecutor fainted in front of the jury during the presentation of autopsy photographs and was treated by the State’s expert medical examiner before the jury was sent out of the courtroom. The members of the media, equipped with cameras, found seating wherever it was to be found. The courtroom was full every day of the trial with members of the public at times turned away due to limits in seating capacity. The trial judge, charged with assessing the credibility of jurors’ assertions of impartiality during voir dire, was procuring and ingesting illegal opioids during Mr. Davidson’s trial. The post-conviction court, and later the Tennessee Court of Criminal Appeals, found that Petitioner’s trial counsel performed deficiently. However, both courts refused to presume the prejudice prong of the ineffective assistance of counsel analysis under this Court’s precedents of Rideau v. Louisiana, Estes v. Texas, Sheppard v. Maxwell, and Skilling v. United States. Petitioner brings the following question to this Court: Should prejudice in an ineffective assistance of counsel case be presumed where the deficient performa