decisionmaker is reasonably, conscientiously, and impartially applying the
standards that govern the decision.” Id. at 695. There was no discussion touching
on race during the trial. The trial court gave the instruction about what constitutes
evidence, and the jury is presumed to have followed that instruction. Given the
conclusive evidence produced against Bert, the district court properly found that
the inadvertent broadcast was not prejudicial.
Bert also contends that his trial counsel rendered ineffective assistance by
failing to move for a mistrial after Bert was briefly restrained by court security
personnel within view of the jury after a power outage. However, given the
fleeting nature of the encounter and the restrained response by the officers, even
under Bert’s description of the events, Bert cannot show prejudice. When this
event is viewed in the context of the trial as a whole, there is no reasonable
The parties correctly point out that Strickland governs the inquiry into
whether Bert was prejudiced by his counsel’s failure to move for a mistrial. Under
Strickland, the view is on the result of the entire proceedings, and only those errors
that could jeopardize the result are prejudicial. See Berghuis v. Thompkins, 130 S.
Ct. 2250, 2264-65 (2010); Downs v. Hoyt, 232 F.3d 1031, 1038 (9th Cir. 2000)
(stating that the question under the prejudice prong “is not whether the verdict
would more likely than not have been different, but whether the defendant received
a fair trial, understood as a trial resulting in a verdict worthy of confidence,” and
holding that even if defendant “could show deficient performance” for counsel’s
failure to move for a mistrial, defendant could not “show that she did not receive a
fair trial, understood as a trial resulting in a verdict worthy of confidence”).