finding that the combined effect of four errors "was so prejudicial as to strike at the fundamental fairness of the trial"
How later courts described this case
- finding that the combined effect of four errors "was so prejudicial as to strike at the fundamental fairness of the trial"
- finding that four errors taken in isolation were harmless, but when considered cumulatively necessitated reversal
- finding cumulative effect of four otherwise possibly harmless errors denied defendant due process
- “Taken in isolation, these errors may be considered harmless,” but “[ajfter examining them together, ... we are left with the distinct impression that the due process [sic] was not satisfied in this case.”
Written by the judges who cited it.
The opinion
BOGGS, Circuit Judge,
concurring separately.
I agree with the court’s opinion that “inadvertent” prejudicial remarks by a law enforcement officer revealing bad information about a defendant may warrant reversal. I write separately, however, to note that I believe the court’s opinion makes far too much of two of the four items it mentions.
First, I address the fact that the government introduced as evidence tapes made by Parker while cooperating with the government after his arrest on October 9,-while the indictment technically included conduct through October 31. At oral argument, despite the court’s best efforts to elicit any information indicating that this evidence may have been used to Parker’s disadvantage by serving as proof that he was continuing to participate in the conspiracy by his government-directed áctivities, both counsel stoutly expressed astonishment at such an idea, and a perusal of the record indicates that there was no argumentation or innuendo that would have encouraged the jury to make such an inference. It certainly would have been improper sandbagging for the government to induce Parker to undertake actions as a government agent and then use those actions to convict him, but there is no indication in the record that this is what occurred.
Second, the court seems particularly dubious about the admissibility of Parker’s confession, noting that “Parker’s cooperation does not make sense on the record before us,” and emphasizes that 18 U.S.C. § 3501 requires an instruction on voluntariness where there is a genuine question of fact regarding the voluntariness of the defendant’s confession. However, Parker did not request any such instruction, nor did he make an objection at trial to the voluntariness of the confession or to its introduction. Therefore, the trial court did not err, nor require admonition, on this point. The court’s statement appears to echo Circuit Judge Edgerton in Higgins v. United States, 209 F.2d 819, 820 (D.C.Cir.1954), where he questioned whether there could ever be consent to a search that actually finds contraband. “But no sane man who denies his guilt would actually be willing that policemen search his room for contraband which is certain to be discovered.”
Our legal system does not require us to assume that all persons who are accused, or even guilty, always take the course of action best designed to prevent the legal system from making an accurate assessment of their situation. I think it is completely illegitimate to assume that because a person cooperated and made a statement detrimental to his immediate penal interest, there must have been coercion or improper conduct leading up to the giving of that statement. I find *224 nothing peculiar in the record of this case that would lead to suspicion beyond what might attach to any recorded statement.