reversing conviction for new trial, describing the curative instruction ineffective because it was given a day after inadmissible evidence was presented and highlighting that the judge compounded the error because, “in making the instruction, the prejudice was highlighted and likely compounded
How later courts described this case
- reversing conviction for new trial, describing the curative instruction ineffective because it was given a day after inadmissible evidence was presented and highlighting that the judge compounded the error because, “in making the instruction, the prejudice was highlighted and likely compounded
- acknowledging that'the trial court “retains discretion ... to admit particular co-conspirafor statements conditioned on a later showing of substantial independent evidence of the three prerequisites for their admission”
- finding lay references to defendant’s drug “organization” to be equivalent of improper assertion of conclusion that it was conspiracy
- finding severance not required despite disparity in evidence because evidence against defendant was "independent and substantial"
Written by the judges who cited it.
The opinion
BAZELON, Senior Circuit Judge,
concurring:
■I agree with my brethren that the errors complained of did not contribute to conviction, see Fahy v. Connecticut, 375 U.S. 85, 86-87 , 84 S.Ct. 229, 230-231 , 11 L.Ed.2d 171 (1963), except as to appellant Watson. See pp. 307-308, supra. I write separately because I believe that the number of errors raised on appeal warrants comment.
It is not surprising that errors may occur in a trial of connected, complex cases, prosecuted zealously. Here, the prosecution played nearly inaudible tapes for the jury and had the jury read transcripts prepared by the government but never admitted into evidence. Prosecution witnesses made repeated references to “the organization,” although a major issue at trial was the existence of a conspiracy. The .prosecution also successfully proposed a conspiracy instruction directing the jury to examine “all of the evidence,” but there is no indication that the trial judge made a determination to admit the co-conspirator hearsay statements included in that evidence.
As this court’s opinion elaborates, each of these problems could have been avoided by observing settled precedents: the trial court should have considered the tapes at pretrial rather than waiting to hear them in the presence of the jury; similarly, it should have determined the accuracy of the transcripts before permitting the jury to read them; and it should not have directed the jury to consider “all the evidence” without at least first ruling explicitly on the competency and admissibility of co-eonspirator statements swept into evidence against individual defendants by' the instruction. Finally, it ought to have framed its initial reprimand with sufficient firmness to ensure that references to “the organization” were not repeated.
*259 Although we find the practices complained of are harmless here, they are not approved. Evidence of guilt must not obscure our commitment to fairness. 1
. Cf. Harrington v. California, 395 U.S. 250, 256 , 89 S.Ct. 1726, 1729 , 23 L.Ed.2d 284 (1969) (Brennan, J., dissenting) (“The focus of appellate inquiry should be on the character and quality of the tainted evidence as it relates to the untainted evidence and not just on the amount of untainted evidence.”).