When viewed through the lens of The Reason, the guilty verdicts were somewhat more than a stretch. But when looked at empirically – that is to say, how would the system come out in almost any other case with the same facts – the verdicts are entirely proper.
What this says about us and our system at this point?
Let’s tie this in with our recent discussions about Brown v. Davenport.
To review, we noted that Judge Readler of the 6th circuit dissented from the habeas grant and that we had “some sympathy” for his position. But now that we have had the opportunity for reflection on the matter, it is quite clear to us that Judge Readler’s position is, you know, dangerously wrong. We’re not accusing him of anything: for all we know this is all a predetermined outcome about which there has been much discussion off the record among many judges. We harbor the hope – probably irrational – that the SCOTUS in taking up Brown v. Davenport is poised to actually improve the coherence of the law in this area.
For a change, we might add.
Basically, what it boils down to is this: we currently have these fluctuating (and highly theoretical, but that’s something to be discussed later) standards by which federal courts and appellate courts review criminal convictions of state courts for constitutional error. Relevant here is that there is case law establishing (very unfortunately, in our view) that the standard for overturning a conviction for constitutional error in a collateral habeas action in federal court is more stingy stringent than if the same constitutional error is reviewed on direct appeal.
This is very wrong and bound to be incoherent, but this is what the SCOTUS has ruled, primarily since 1993’s Brecht v. Abrahamson (published 28 years ago to the day!). We think, as we so often have, that Justice White’s dissent captures the point perfectly:
“Assuming that petitioner’s conviction was in fact tainted by a constitutional violation that, while not harmless beyond a reasonable doubt, did not have “substantial and injurious effect or influence in determining the jury’s verdict,” Kotteakos v. United States, 328 U.S. 750, 776 (1946), it is undisputed that he would be entitled to reversal in the state courts on appeal or in this Court on certiorari review. If, however, the state courts erroneously concluded that no violation had occurred or (as is the case here) that it was harmless beyond a reasonable doubt, and supposing further that certiorari was either not sought or not granted, the majority would foreclose relief on federal habeas review. As a result of today’s decision, in short, the fate of one in state custody turns on whether the state courts properly applied the Federal Constitution as then interpreted by decisions of this Court, and on whether we choose to review his claim on certiorari. Because neither the federal habeas corpus statute nor our own precedents can support such illogically disparate treatment, I dissent.”
Note that the essence of Justice White’s dissent is that the majority’s position is illogical. That’s The Reason in action. A breath of fresh air coming from the SCOTUS at this point, though we hasten to add that this is from 28 years ago. Whether The Reason can prevail now when it couldn’t then is a serious question.
Happily, Brecht was basically a 5-4 decision, so this bit of SCOTUS incoherence was not a really solid holding. Which is a good thing. But it’s there, so it generates mischief.
Fast forward to 2015 – a mere six year ago! – and we have another 5-4 decision out of the SCOTUS that hearkens back to Brecht, and upon which Judge Readler is basing his dissent in Davenport, and that case is Davis v. Alaya. In Davis Justice Alito engages in a painful analysis of every possible justification for dismissing a juror during voir dire where the suspected reasons is race, which would violate Batson v. Kentucky. Never mind. The point is, as it so often is with Justice Alito, that the petitioner in Davis is a really, really bad criminal.
But this is the SCOTUS, not a trial court, and Justice Alito’s concerns are misplaced. The most importanest thing ever for the SCOTUS is to be coherent, not to pull out all the stops to deny federal habeas relief to a bad guy. So the dissent – and there are four of them – wind up echoing Justice White’s dissent in Brecht, and for that reason alone we should suspect that the dissent has the better of this argument. In any event, here is what they say, in a nutshell:
If a trial error is prejudicial under Brecht‘s standard, a state court’s determination that the error was harmless beyond a reasonable doubt is necessarily unreasonable.
Just so. It cannot be otherwise, and that’s the essence of it. The law of non-contradiction, doncha know, that must be observed unless reject The Reason and you are a follower of Nietzsche. Which we have discussed before.
So we hope that the SCOTUS has a fight over this again in Brown v. Davenport and comes out on the other side and overrules or limits Brecht and puts Davis v. Alaya in its place. Which is the dustbin of history, we think.
But there’s a deeper point to be made here, too.
This entire debate is almost risible, in the sense of being absurdly academic, though it is not risible for people on the receiving end, as is also so often the case with SCOTUS goings on.* The context of the whole thing is that the “harmless error” standard is very difficult for the government – who bear the burden of proving harmlessness “beyond a reasonable doubt” – to meet, but that the Brecht standard, that requires to poor schmuck to bear the burden of proving that he was likely harmed by a constitutional error, provides the deference to convictions that holds our fragile system of federalism and finality and whatnot together.
But the theory of what harmless error is, which the SCOTUS is relying upon, and the practice of what it is – well – these are two very different things:
Years ago, during an appellate argument in the state of Washington, a judge asked a prosecutor why, in light of a rule that prohibits trial prosecutors from asking one witness whether another witness is lying, the prosecutors from his office continued to ask the prohibited question. “It’s always been found to be harmless,” he explained.
When the court published its decision, it rejected any suggestion that courts “wink at intentional and repeated unfair questioning by prosecutors under the rubric of harmless error.” But the court then affirmed the conviction, concluding that the prosecutor was “correct in relying on the doctrine of harmless error.”
Harmless Error: Explained – The Appeal
Put another way, “harmless error” is itself a joke in practice. All errors are held to be harmless so we can uphold convictions. We do not say this lightly. But it is true. And so we say it. Because that is our calling here at LoS.
Ugh.
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*We hazard a guess that the reason SCOTUS took up Brown and not Whatley is that in the former case the government is the Petitioner and in the latter case the poor schmuck on death row is. The cases present practically the same question, so even if SCOTUS didn’t want to hear argument in Whately, shouldn’t they have just held it pending the outcome of Brown? Or maybe this is a further indication of the outcome in Brown. An ominous indication, we should think.
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