Amicus Curiae Brief — James Coddington, Petitioner v. Jim Farris, Warden

Supreme Court briefApr 2, 2021

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No. 20-7341

IN THE

Supreme Court of the United States

JAMES CODDINGTON,

Petitioner,

JAMES FARRIS, WARDEN,

OKLAHOMA STATE PENITENTIARY,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR OKLAHOMA CRIMINAL DEFENSE

LAWYERS ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

BOB WYATT, PRESIDENT,

OKLAHOMA CRIMINAL DEFENSE

LAWYERS ASSOC.

P.O. Box 2272

Oklahoma City, OK 73101

DR. MICHAEL R. WILDS

AMICUS COMMITTEE CHAIR,

OKLAHOMA CRIMINAL

DEFENSE LAWYERS ASSOC.

3100 E. New Orleans St.

Broken Arrow, OK 74014

MARK W. VYVYAN

Counsel of Record

DEVIN T. DRISCOLL

TANNER J. PEARSON

FREDRIKSON & BYRON, P.A.

200 S. 6th St, Suite 4000

Minneapolis, MN 55402

(612) 492-7000

mvyvyan@fredlaw.com

Counsel for Amicus Curiae

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... ii

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF ARGUMENT.................................... 3

THE TENTH CIRCUIT

DISREGARDED BRADY AND ITS

PROGENY. ...................................................... 3

Under Brady, Exclusion of

Material Evidence Helpful to the

Defense Cannot be Harmless

Error ...................................................... 3

Excluding Material Brady

Evidence Violates the

Compulsory Process Clause of

the Sixth Amendment .......................... 5

II.

THE CIRCUITS ARE DIVIDED ON

WHETHER AN ERROR THAT IS

MATERIAL UNDER ONE OF THIS

COURT’S MATERIALITY

STANDARDS CAN EVER BE

HARMLESS. .................................................... 8

This Court has not Explained the

Relationship Between Some of its

Materiality Standards and

Brecht. ................................................... 9

The Tenth Circuit’s Decision

Exacerbates an Important and

Entrenched Circuit Conflict. .............. 12

III.

THE TENTH CIRCUIT

DISREGARDED VALENZUELABERNAL AND KYLES. ................................ 15

Valenzuela-Bernal and Kyles

Make Clear that Excluding a

Witness’s Testimony can Never

be Both a Constitutional Error

and a Harmless Error. ........................ 15

The Tenth Circuit Held that

Even if the Exclusion of Dr.

Smith’s Testimony was a

Constitutional Error, this Error

was Harmless...................................... 19

IV.

THE FRY COURT LEFT OPEN THE

QUESTION PRESENTED IN THIS

CASE. ............................................................. 20

CONCLUSION ......................................................... 21

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Barrientes v. Johnson,

221 F.3d 741 (5th Cir. 2000)................................15

Brady v. Maryland,

373 U.S. 83 (1963) ........................................ passim

Caffey v. Butler,

802 F.3d 884 (7th Cir. 2015)................................13

Brecht v. Abrahamson,

507 U.S. 619 (1993) ...................................... passim

Chambers v. Mississippi,

410 U.S. 284 (1973) .................................... 7, 13, 16

Chapman v. California,

386 U.S. 18 (1967) ............................................8, 20

Coddington v. Sharp,

959 F.3d 947 (10th Cir. 2020)........................12, 19

Coddington v. State,

142 P.3d 437 (Okla. Crim. App.

2006) .......................................................................7

Douglas v. Workman,

560 F.3d 1156 (10th Cir. 2009)............................14

Fry v. Pliler,

551 U.S. 112 (2007) ...................................... passim

Giglio v. United States,

405 U.S. 150 (1972) ................................ 4, 9, 11, 14

Gilday v. Callahan,

59 F.3d 257 (1st Cir. 1995) ..................................14

Haskell v. Superintendent Greene SCI,

866 F.3d 139 (3d Cir. 2017) ...........................11, 14

Hayes v. Brown,

399 F.3d 972 (9th Cir. 2005)..........................11, 13

Kotteakos v. United States,

328 U.S. 750 (1946) ...................................... passim

Kyles v. Whitley,

5 F.3d 806 (5th Cir. 1993)....................................10

Kyles v. Whitley,

514 U.S. 419 (1995) ...................................... passim

Napue v. Illinois,

360 U.S. 265 (1959) ................................................4

Richmond v. Embry,

122 F.3d 866 (10th Cir. 1997)..............................12

Rosencrantz v. Lafler,

568 F.3d 577 (6th Cir. 2009)................................14

Smith v. Cain,

565 U.S. 73 (2012) ..................................................4

Strickland v. Washington,

466 U.S. 668 (1984) ...................................... passim

Taylor v. Illinois,

484 U.S. 400 (1988) ..............................................15

Taylor v. Singletary,

122 F.3d 1390 (11th Cir. 1997)............................14

Trepal v. Sec’y, Fla. Dep’t of Corr.,

684 F.3d 1088 (11th Cir. 2012)............................14

United States v. Agurs,

427 U.S. 97 (1976) .............................. 16, 17, 18, 19

United States v. Bagley,

473 U.S. 667 (1985) ...................................... passim

United States v. Clay,

720 F.3d 1021 (8th Cir. 2013)..............................14

United States v. Dowlin,

408 F.3d 647 (10th Cir. 2005)..............................12

United States v. Valenzuela-Bernal,

458 U.S. 858 (1982) ...................................... passim

Washington v. Texas,

388 U.S. 14 (1967) ..................................................7

Wearry v. Cain,

136 S. Ct. 1002 (2016)..................................4, 5, 17

Constitutional Provisions and Statutes

U.S. Const. amend. VI ............................................5, 6

28 U.S.C. § 2111 ..........................................................8

Other Authorities

Elizabeth Napier Dewar, Note, A Fair

Trial Remedy for Brady Violations,

115 Yale L.J. 1450 (2006) ......................................6

Peter Westen, The Compulsory Process

Clause, 73 Mich. L. Rev. 71 (1974) ........................6

INTEREST OF AMICUS CURIAE 1

The Oklahoma Criminal Defense Lawyers

Association (OCDLA) is a private, nonprofit association

that represents more than 500 criminal-defense

attorneys in the State of Oklahoma and surrounding

states. The OCDLA is dedicated to preserving the rule

of law and individual rights guaranteed by the

Oklahoma and United States Constitutions, to resisting

any efforts to curtail these rights, to furthering legaleducational programs, and to promoting justice and the

common good.

The OCDLA submits this brief because the

interpretation of “harmless error” in capital sentencing

has expanded beyond the bounds permitted by the

Constitution. The resulting application of harmlesserror review is overly broad and fails to meaningfully

distinguish the circumstances that warrant the death

penalty when an appellate court finds the error to be

“material,” thus violating the defendant’s constitutional

rights. The OCDLA has a strong interest in ensuring

that the death penalty is not implemented in an

unconstitutional manner.

Coddington explains in his Petition for a Writ of

Certiorari that once an error has been found to be

material it cannot subsequently be found harmless.

No counsel for a party authored this brief in whole or in part,

and no entity or person, other than amicus curiae, its members,

and its counsel, made a monetary contribution intended to fund

the preparation or submission of this brief. Counsel of record for

the parties received notice of amicus’ intent to file this brief at

least ten days prior to its due date and consented to the filing of

this brief.

Because Coddington directly addresses whether a

material error can ever be found harmless, the OCDLA

focuses this brief on the underlying flaws in the court’s

overly broad use of harmless-error review in death

penalty cases when the error is deemed to be material.

SUMMARY OF ARGUMENT

The trial court erred in suppressing expertwitness testimony directly relevant to Coddington’s

inability to form the requisite intent required for

malice aforethought murder under Oklahoma law.

The appellate courts that considered this case,

including the Tenth Circuit Court of Appeals,

concluded that the excluded testimony was material

and that its exclusion was a constitutional error, but

nonetheless found the error harmless. This ruling

violated the principles set forth in Brady v. Maryland

and disregarded this Court’s rulings in United States

v. Valenzuela-Bernal and Kyles v. Whitley. This Court

should now take the opportunity to answer the

question that it declined to address in Fry v. Pliler

and clarify that the exclusion of material testimony

cannot be harmless error.

THE TENTH CIRCUIT DISREGARDED

BRADY AND ITS PROGENY.

Despite the applicability in this case of the dueprocess principles underlying Brady v. Maryland,

373 U.S. 83 (1963), and those decisions of this Court

applying Brady’s reasoning in the context of other

constitutional errors, the Tenth Circuit failed to

consider any of the applicable case law when

considering Coddington’s habeas claims.

Under Brady, Exclusion of Material

Evidence Helpful to the Defense

Cannot be Harmless Error

Nearly sixty years ago, this Court held that,

“irrespective of the good faith or bad faith of the

prosecution,” it violates due process for the State to

suppress evidence favorable to a person charged with

a crime, “where the evidence is material either to guilt

or to punishment[.]” Brady v. Maryland, 373 U.S. 83,

87 (1963). “[E]vidence is material within the meaning

of Brady when there is a reasonable probability that,

had the evidence been disclosed, the result of the

proceeding would have been different.” Smith v. Cain,

565 U.S. 73, 75 (2012) (internal quotation marks

omitted). 2

Although this brief will use the “reasonable probability”

formulation of the materiality test, first articulated in United

States v. Bagley, 473 U.S. 667 (1985), it is unclear whether this

Court adopted a more lenient standard in Wearry v. Cain, when

it stated that “[e]vidence qualifies as material when there is any

reasonable likelihood it could have affected the judgment of the

jury.” Wearry, 136 S.Ct. 1002, 1006 (2016) (internal quotation

marks omitted).

In Bagley, Justice Blackmun authored an opinion

stating that the standard for the prejudice prong of a claim of

ineffective assistance of counsel announced by this Court in

Strickland v. Washington, 466 U.S. 668 (1984)—“a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different”—is the

standard by which materiality should be assessed for Brady

claims. 472 U.S. at 681 (quoting Strickland, 466 U.S. at 694).

However, Part III of Justice Blackmun’s opinion, from which

that statement is drawn, failed to secure a majority. See id. at

669. This Court has subsequently used the Bagley formulation

of “a reasonable probability” rather than the formulation first

articulated in Napue v. Illinois, 360 U.S. 264, 271 (1959), and

subsequently adopted by Giglio v. United States, 405 U.S. 150,

154 (1972), of “any reasonable likelihood.” See, e.g., Kyles v.

Whitley, 514 U.S. 419, 434–35 (1995). Then, in 2016, the Court

reverted to the latter version. Wearry, 136 S. Ct. at 1006.

To prevail on a Brady claim, the defendant

“need not show that [they] ‘more likely than not’

would have been acquitted had the new evidence been

admitted.” Wearry v. Cain, 136 S. Ct. 1002, 1006

(2016) (quoting Smith, 565 U.S. at 75). Rather, they

“must show only that the new evidence is sufficient to

‘undermine confidence’ in the verdict.” Id. (quoting

Smith, 565 U.S. at 75).

Importantly, once a habeas court has concluded

that evidence is material under Brady, “there is no

need for further harmless-error review.” Kyles v.

Whitley, 514 U.S. 419, 435 (1995). This is because a

finding of materiality under Brady necessarily meets

the standard adopted by this Court for habeas review

of Brady claims in Brecht v. Abrahamson, 507 U.S.

619 (1993), discussed in Part III.A below. Kyles,

514 U.S. at 435. Simply put, once a court concludes

that there has been a Brady error, “it cannot

subsequently be found harmless[.]” Id. at 436.

Excluding Material Brady Evidence

Violates the Compulsory Process

Clause of the Sixth Amendment

From the beginning, this Court has grounded

the Brady rule in terms of due process and the need

to ensure that defendants receive a fair trial. See

Brady, 373 U.S. at 88 (stating that the principle

underlying the Brady rule is “not punishment of

society for misdeeds of a prosecutor but avoidance of

an unfair trial to the accused”). 3 Scholars have also

See also Bagley, 473 U.S. at 678 (“[S]uch suppression of

evidence amounts to a constitutional violation only if it deprives

argued that the rule should be grounded in the Sixth

Amendment. See, e.g., Peter Westen, The Compulsory

Process Clause, 73 Mich. L. Rev. 71, 121–32 (1974);

Elizabeth Napier Dewar, Note, A Fair Trial Remedy

for Brady Violations, 115 Yale L.J. 1450, 1452 (2006).

Although this Court has not spoken directly to the

question, it has implicitly acknowledged this

connection by importing its Brady materiality

standard for assessing violations of the Compulsory

Process Clause and the Counsel Clause. See United

States v. Bagley, 473 U.S. 667, 681–82 (opinion of

Blackmun, J.) (citing United States v. ValenzuelaBernal, 458 U.S. 858 (1982) and Strickland v.

Washington, 466 U.S. 668 (1984), respectively); see

also Strickland, 466 U.S. at 684–85 (“The

Constitution guarantees a fair trial through the Due

Process Clauses, but it defines the basic elements of a

fair trial largely through the several provisions of the

Sixth Amendment[.]”) 4.

The Court has also held that “[t]he right to offer

the testimony of witnesses,” as guaranteed by the

Sixth Amendment, “is in plain terms the right to

present a defense,” and noted that the Compulsory

Process Clause is, therefore, “a fundamental element

the defendant of a fair trial.”); Kyles, 514 U.S. at 434 (noting that

the key question in assessing the effect of a Brady violation is

whether in the absence of the undisclosed evidence the

defendant “received a fair trial”).

An additional consideration for the Court is whether the

addition of Brecht harmless-error review after a finding of

materiality impermissibly lowers the standard of proof in a

criminal case from proof beyond a reasonable doubt to a clearand-convincing standard, in violation of due process rights.

of due process of law.” Washington v. Texas, 388 U.S.

14, 18–19 (1967). Of course, this right is not absolute;

defendants “must comply with established rules of

procedure and evidence,” as must the State, because

those rules are “designed to assure both fairness and

reliability in the ascertainment of guilt and

innocence.” Chambers v. Mississippi, 410 U.S. 284,

302 (1973). However, when a defendant complies with

the “established rules of procedure and evidence” and

the trial court then commits some Chambers trial

error, Brady materiality is the appropriate

framework for review.

In this case, it is not disputed that the

exclusion of Dr. Smith’s testimony was an error under

Oklahoma evidentiary rules—indeed, the Oklahoma

Court of Criminal Appeals explicitly concluded that

“Dr. Smith could have properly testified that, in his

opinion and based upon his specialized knowledge, he

believed Coddington would have been unable to form

the requisite deliberate intent of malice aforethought”

and therefore that the “trial court erred and abused

its discretion by sustaining the Motion in Limine and

so limiting the expert witness’ testimony.”

Coddington v. State, 142 P.3d 437, 450 (Okla. Crim.

App. 2006). Because the trial court committed a

Chambers error, the Tenth Circuit should have

analyzed Coddington’s habeas claim using the Brady

materiality framework—which it failed to do.

II.

THE CIRCUITS ARE DIVIDED ON

WHETHER

ERROR

THAT IS

MATERIAL UNDER ONE OF THIS

COURT’S MATERIALITY STANDARDS

CAN EVER BE HARMLESS.

In Brecht v. Abrahamson, 507 U.S. 619 (1993),

this Court declined to apply the harmless-error

standard from Chapman v. California, 386 U.S. 18,

24 (1967)—in which a conviction must be set aside

unless the constitutional error “was harmless beyond

a reasonable doubt”—when considering claims of trial

error in the context of a petition for a writ of habeas

corpus by a state prisoner. Brecht, 507 U.S. at 623.

Instead, it adopted the so-called Kotteakos standard,

see Kotteakos v. United States, 328 U.S. 750, 776

(1946), which is based on the federal harmless-error

statute, 28 U.S.C. § 2111. The Court reasoned that

the “less onerous” Kotteakos “substantial and

injurious effect or influence” standard should apply

because it was “better tailored to the nature and

purpose of collateral review[.]” Brecht, 507 U.S. at

637, 638.

This Court has also developed several tests for

judging whether there was a constitutional error in

the first place, and these tests already require a

showing of prejudice in the form of a materiality

standard. For example, in Bagley, this Court

explained that a prosecutor suppressing evidence that

is favorable to the accused is a constitutional error

only if the suppressed evidence is material. 473 U.S.

at 682 (opinion of Blackmun, J.); id. at 685 (White, J.,

concurring in part and concurring in the judgment).

And evidence is material “only if there is a reasonable

probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have

been different.” Id. at 682, 685. As noted above, this

Court would later explain that an error that satisfies

this materiality standard cannot be found harmless

under Brecht. See Kyles, 514 U.S. at 435.

This Court, however, has not explicitly

addressed whether errors that are material under

this Court’s other materiality standards can ever be

found harmless. The circuits are now split on the

issue. This Court should resolve the split by granting

Coddington’s Petition for Certiorari and clarifying the

relationship between Brecht and this Court’s

materiality standards.

This Court has not Explained the

Relationship Between Some of its

Materiality Standards and Brecht.

This Court has developed similar materiality

standards for evaluating whether a constitutional

error occurred in at least four different contexts.

First, in Giglio v. United States, 405 U.S. 150

(1972), this Court held that a prosecutor’s use of

perjured testimony is a constitutional error only if

there is a reasonable likelihood that the false

testimony could have affected the judgment of the

jury. 405 U.S. at 154. Second, in United States v.

Valenzuela-Bernal, 458 U.S. 858 (1982), this Court

held that depriving a defendant of a witness’s

testimony is a constitutional error “only if there is a

reasonable likelihood that the testimony could have

affected the judgment of the trier of fact.” 458 U.S. at

874. Third, in Strickland, this Court held that

ineffective assistance of counsel is a constitutional

error only if “there is a reasonable probability that,

but for counsel's unprofessional errors, the result of

the proceeding would have been different.” 466 U.S.

at 694. Fourth, the Bagley Court held that a

prosecutor suppressing evidence is a constitutional

error “only if there is a reasonable probability that,

had the evidence been disclosed to the defense, the

result of the proceeding would have been different.”

473 U.S. at 682 (opinion of Blackmun, J.).

As discussed above, the Brecht Court adopted a

standard for determining whether a constitutional

error is sufficiently prejudicial to entitle a habeas

petitioner to relief. 507 U.S. at 638. In the years

following Brecht, however, lower courts struggled to

apply the Brecht standard to errors that already

satisfied one of this Court’s materiality standards. 5

Litigants argued that the Brecht standard was

redundant, noting that that these materiality

I note here that the majority opinion

repeatedly speaks of applying the “harmless

error” rule to Kyles’ Brady claims. The majority

seems unaware that Brady’s progeny . . . have

their own built-in test of “materiality” to

determine whether any Brady violation was

“harmful” to the defendant . . . I thus see no

need to respond to the majority’s rather curious

claim that any Brady violation was harmless

under Brecht v. Abrahamson.

Kyles v. Whitley, 5 F.3d 806, 832 n.41 (5th Cir. 1993), rev’d,

514 U.S. 419 (King, J., dissenting).

standards already

component.

had

built-in

prejudice

The Kyles Court would later clarify the

relationship between some of these materiality

standards and Brecht. Regarding the Bagley

standard, this Court held that “once a reviewing court

applying Bagley has found constitutional error there

is no need for further harmless-error review.” Kyles,

514 U.S. at 435. Regarding the Strickland standard,

this Court cited to an Eighth Circuit case, which held

that it is unnecessary to conduct a separate harmlesserror analysis once a constitutional error has been

found under that standard. Id. at 436 n.9 (citing Hill

v. Lockhart, 28 F.3d 832, 839 (8th Cir. 1994)).

The Kyles Court, however, did not specifically

address whether an error that is material under one

of this Court’s other materiality standards, such as

the Valenzuela-Bernal and Giglio standards, can ever

be found harmless under Brecht. As a result, the

“[c]ircuits are split on the question.” Haskell v.

Superintendent Greene SCI, 866 F.3d 139, 150 (3d Cir.

2017). Some circuits have held that when this Court

has declared a materiality standard there is no need

to conduct a separate harmless error analysis. 6 In

these circumstances, simply finding a constitutional

violation necessarily means that the error was not

harmless. Other circuits—including the Tenth

Circuit, in Coddington’s case—have held that these

See, e.g., Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005).

types of constitutional errors can subsequently be

found harmless under Brecht.

The

Tenth

Circuit’s

Decision

Exacerbates an Important and

Entrenched Circuit Conflict.

The Tenth Circuit has consistently held that a

trial court excluding a witness’s testimony is a

constitutional error only if the excluded testimony is

material under Valenzuela-Bernal. 7 In Coddington’s

case, instead of assessing whether Dr. Smith’s

excluded testimony was material to the extent that its

exclusion amounted to a constitutional error, the

Tenth Circuit simply assumed that it was.

Coddington v. Sharp, 959 F.3d 947, 955 (10th Cir.

2020). After making this assumption, the Tenth

Circuit then proceeded to apply Brecht and ultimately

found that this constitutional error was harmless. Id.

at 958. Thus, the Tenth Circuit found that a

constitutional error under Valenzuela-Bernal can be

found harmless under Brecht.

[T]o establish constitutional error Naylor must

also show the evidence was material to the

extent its exclusion violated his right to present

a defense. . . . To determine materiality, we

examine the record as a whole and inquire “as

to whether the evidence was of such an

exculpatory nature that its exclusion affected

the trial's outcome.”

United States v. Dowlin, 408 F.3d 647, 660 (10th Cir. 2005)

(quoting Richmond v. Embry, 122 F.3d 866, 874 (10th Cir. 1997))

(emphasis added).

This holding by the Tenth Circuit is in direct

conflict with holdings of other circuits. The Ninth

Circuit has long applied the correct rule that

whenever this “Court has declared a materiality

standard, as it has for this type of constitutional error,

there is no need to conduct a separate harmless error

analysis.” Hayes v. Brown, 399 F.3d 972, 984 (9th Cir.

2005). The “required finding of materiality

necessarily compels the conclusion that the error was

not harmless.” Id. Thus, the determination that there

was a constitutional error necessarily forecloses a

Brecht harmless error analysis. Id.

Similarly, the Seventh Circuit has held that

when an excluded-testimony error is material enough

to be a constitutional error under Valenzuela-Bernal,

the error cannot be found harmless under Brecht.

Caffey v. Butler, 802 F.3d 884, 898 (7th Cir. 2015). In

Caffey v. Butler, the Seventh Circuit analyzed

Chambers v. Mississippi, 410 U.S. 284 (1973), where

this Court held that a state can commit constitutional

error by excluding evidence that is “critical” to the

defense. See Chambers, 410 U.S. at 302. According to

the Seventh Circuit, an “evidentiary ruling that

unconstitutionally excludes critical evidence under

Chambers is necessarily harmful under Brecht.”

Caffey, 802 F.3d at 898 n.1 (emphasis added).

Further, the “Valenzuela–Bernal standard defines

‘critical’ for purposes of Chambers analysis.” Id. at

897. It therefore follows that excluding evidence that

is material under Valenzuela-Bernal is necessarily

harmful under Brecht.

The Third Circuit has held that when a

perjured-testimony error is material enough to be a

constitutional error under Giglio, the error cannot be

found harmless under Brecht. Haskell, 866 F.3d at

152. After acknowledging that its “sister Circuits are

split on the question,” id. at 150, the Haskell court

ultimately held that “the actual-prejudice standard of

Brecht does not apply to claims on habeas that the

state has knowingly presented or knowingly failed to

correct perjured testimony. A reasonable likelihood

that the perjured testimony affected the judgment of

the jury is all that is required.” Id. at 152.

The Eleventh Circuit has held that when an

excluded-testimony error is material enough to be a

constitutional error under Valenzuela-Bernal, the

error cannot be found harmless under Brecht. Taylor

v. Singletary, 122 F.3d 1390, 1391 (11th Cir. 1997).

However, the Eleventh Circuit has also held that

when a perjured-testimony error is material enough

to be a constitutional error under Giglio, the error can

be found harmless under Brecht. Trepal v. Sec’y, Fla.

Dep’t of Corr., 684 F.3d 1088, 1113 (11th Cir. 2012).

Like the Eleventh Circuit, the First, Sixth,

Eighth, and Tenth Circuits have all held that when a

perjured-testimony error is material enough to be a

constitutional error under Giglio, the error can be

found harmless under Brecht. 8 In addition, the Fifth

Circuit has “assume[d], without deciding, that it is

See Gilday v. Callahan, 59 F.3d 257, 268 (1st Cir. 1995);

Rosencrantz v. Lafler, 568 F.3d 577, 587–90 (6th Cir. 2009);

United States v. Clay, 720 F.3d 1021, 1026–27 (8th Cir. 2013);

Douglas v. Workman, 560 F.3d 1156, 1173 n.12 (10th Cir. 2009).

appropriate to conduct a Brecht harmless-error

analysis in such a circumstance.” Barrientes v.

Johnson, 221 F.3d 741, 756 (5th Cir. 2000).

To summarize, some circuits have held that an

error that is material under one of this Court’s

constitutional materiality standards cannot be found

harmless under Brecht. Others—including the Tenth

Circuit in Coddington’s case—have held the opposite.

This Court should resolve this circuit split by

granting Coddington’s Petition for Certiorari and

clarifying the relationship between Brecht and all of

this Court’s materiality standards.

III.

THE TENTH CIRCUIT DISREGARDED

VALENZUELA-BERNAL AND KYLES.

The Tenth Circuit’s decision conflicts not only

with the decisions of its sister circuits but also with

this Court’s holdings in Valenzuela-Bernal and Kyles.

When read together, these cases show that excluding

a witness’s testimony can never be both a

constitutional error and a harmless error. Yet the

Tenth Circuit found that the exclusion of Dr. Smith’s

testimony was both.

Valenzuela-Bernal and Kyles Make

Clear that Excluding a Witness’s

Testimony can Never be Both a

Constitutional

Error

and

Harmless Error.

This Court has long recognized that “[f]ew

rights are more fundamental than that of an accused

to present witnesses in his own defense.” Taylor v.

Illinois, 484 U.S. 400, 408 (1988). Thus, a trial court’s

evidentiary ruling that deprives the defendant of a

witness’s testimony can, in some circumstances, be

severe enough to constitute a constitutional error.

Chambers, 410 U.S. at 302. This Court has sometimes

referred to this type of error as a “Chambers error.”

See, e.g., Fry, 551 U.S. 112, 124 (2007) (Stevens, J.,

concurring in part and dissenting in part).

In Valenzuela-Bernal, this Court explained

that to establish that the trial court committed

constitutional error by excluding a witness’s

testimony, a criminal defendant must show that the

testimony would have been material to his defense.

Valenzuela-Bernal, 458 U.S. at 867. And testimony is

material “only if there is a reasonable likelihood that

the testimony could have affected the judgment of the

trier of fact.” Id. at 874.

In Bagley, this Court would clarify that the

materiality standard it had articulated in ValenzuelaBernal is the same as the materiality standard it first

articulated in United States v. Agurs, 427 U.S. 97

(1976). 9 Bagley, 473 U.S. at 681–82 (opinion of

9 In Agurs, this Court considered the materiality standard that

applies when a prosecutor secures a conviction by knowingly

using perjured testimony and concluding that “a conviction

obtained by the knowing use of perjured testimony is

fundamentally unfair, and must be set aside if there is any

reasonable likelihood that the false testimony could have

affected the judgment of the jury.” Agurs, 427 U.S. at 103. The

Bagley Court subsequently restated the perjured-testimony rule

“as a materiality standard under which the fact that testimony

is perjured is considered material unless failure to disclose it

would be harmless beyond a reasonable doubt,” Bagley, 473 U.S.

Blackmun, J) (“The Court has relied on and

reformulated the Agurs standard for the materiality

of undisclosed evidence in two subsequent cases

arising outside the Brady context.”).

Finally, in Kyles, this Court explained that the

Agurs materiality standard recognizes constitutional

at 679, which is notable considering the Wearry Court’s use of

the “reasonable likelihood” formulation discussed above.

In addition to the perjured-testimony situation, Agurs

also considered the materiality standard that applies when

prosecutors fail to turn over evidence in response to either (i) a

specific request for particular information or (ii) a general

request for any exculpatory information. 427 U.S. 104–07. The

opinion did not articulate the appropriate standard to apply to

the former but concluded that the latter must be a higher burden

than a harmless-beyond-a-reasonable-doubt standard but less

onerous than the newly-discovered-evidence standard. Id. at

111–12; see also Bagley, 473 U.S. 680–81 (opinion of Blackmun,

J.). According to Justice Blackmun, it was this standard, which

he referred to as the “Agurs standard for the materiality of

undisclosed evidence,” that the Court had “relied on and

reformulated” when deciding Valenzuela-Bernal and Strickland.

Bagley, 473 U.S. 681.

Ultimately, Justice Blackmun concluded that all three

situations considered in Agurs should be collapsed and

considered under Strickland’s “reasonable probability”

standard. Id. at 682. Although that portion of the opinion did not

garner a majority, see id. at 669, Justice White stated in a

concurrence, in which Chief Justice Burger and Justice

Rehnquist joined, that Justice Blackmun had “correctly

observe[d]” that the Strickland standard was “sufficiently

flexible to cover all instances of prosecutorial failure to disclose

evidence favorable to the accused.” Id. at 685 (internal quotation

marks omitted). Thereafter, rather than referring to an Agurs

standard as such, the Court will usually refer to a Bagley

standard.

error only when the harm to the defendant is greater

than the harm sufficient for reversal under Brecht:

[W]e held in Brecht that the standard of

harmlessness generally to be applied in

habeas cases is the Kotteakos

formulation . . . Agurs, however, had

previously rejected Kotteakos . . .

reasoning that “the constitutional

standard of materiality must impose a

higher burden on the defendant.” Agurs

thus opted for its formulation of

materiality . . . only after expressly

noting that this standard would

recognize reversible constitutional error

only when the harm to the defendant

was greater than the harm sufficient for

reversal under Kotteakos.

Kyles, 514 U.S. at 436. If Brecht adopted the Kotteakos

formulation, and if the Agurs standard only

recognizes constitutional error when the harm to the

defendant is greater than the harm sufficient for

reversal under Kotteakos, it follows that any error

found material under the Agurs standard cannot be

found harmless under Brecht.

In sum, three rules can be distilled from these

cases. First, depriving a defendant of a witness’s

testimony can be a constitutional error only if the

testimony is material under Valenzuela-Bernal.

Second, the materiality standard articulated in

Valenzuela-Bernal is the same as the Agurs

materiality standard. Third, the Agurs materiality

standard recognizes constitutional error only when

the harm to the defendant is greater than the harm

sufficient for reversal under Kotteakos, which is the

standard adopted by Brecht.

The Tenth Circuit Held that Even if

the Exclusion of Dr. Smith’s

Testimony was a Constitutional

Error, this Error was Harmless.

In Coddington’s case, the Tenth Circuit

assumed that the exclusion of Dr. Smith’s testimony

was a constitutional error. Coddington, 959 F.3d at

955. It then incorrectly proceeded to apply Brecht and

ultimately held that this error was harmless. Id. at

958.

This decision by the Tenth Circuit cannot be

reconciled with Valenzuela-Bernal and Kyles.

Excluding Dr. Smith’s testimony could be a

constitutional error only if the testimony was

material under Valenzuela-Bernal, i.e., the Agurs

standard. And since the Agurs standard recognizes

reversible constitutional error only when the harm to

the defendant is greater than the harm sufficient for

reversal under Brecht, it is impossible for the

exclusion of Dr. Smith’s testimony to be both a

constitutional error and a harmless error.

The Tenth Circuit should have stopped its

analysis once it assumed that excluding Dr. Smith’s

testimony was a constitutional error. Any excludedtestimony error that rises to the level of a

constitutional error “is by nature prejudicial.” Fry,

551 U.S. at 124 (Stevens, J., concurring in part and

dissenting in part). Simply put, if a trial court’s

exclusion of a witness’s testimony rises to the level of

a constitutional error, which the Tenth Circuit

assumed here, then it necessarily follows that this

constitutional error was harmful under Brecht.

Cf. Kyles, 514 U.S. at 435. The Tenth Circuit’s

contrary conclusion cannot be reconciled with

Valenzuela-Bernal and Kyles.

IV.

THE FRY COURT LEFT OPEN THE

QUESTION PRESENTED IN THIS CASE.

The question presented by Coddington—

whether the exclusion of testimony that amounts to a

constitutional error can ever be harmless under the

Brecht standard—was left open by this Court in Fry

v. Pliler, 551 U.S. 112 (2007). In that case, the Ninth

Circuit assumed that the exclusion of a certain

witness’s testimony was a constitutional error but

held that this error was harmless under the Brecht

standard, rather than the Chapman v. California

harmless-error standard, and this Court granted

certiorari to determine which standard should apply.

Fry, 551 U.S. at 120.

The Fry Court determined that the Ninth

Circuit was correct in applying the Brecht standard

but declined to decide whether it had applied that

standard correctly—that is, whether the Ninth

Circuit had correctly determined that the exclusion of

the witness’s testimony in that case was harmless. Id.

at 121 (“[W]e read the question presented to avoid

these tangential and factbound questions, and limit

our review to the question whether Chapman or

Brecht provides the governing standard.”).

Although the Court did not reach this question

in Fry, four justices stated that when the exclusion of

a witness’s testimony amounts to a constitutional

error, such error can never be found harmless under

Brecht. As Justice Stevens explained, these types of

errors are “by nature prejudicial.” Id. at 124 (Stevens,

J., concurring in part and dissenting in part). This is

because a constitutional error does not occur every

time a trial court excludes a witness’s testimony.

Rather, a constitutional error occurs only when the

exclusion of the testimony “undermines fundamental

elements of the defendant’s defense.” Id. “Hence, as a

matter of law and logical inference, it is well-nigh

impossible for a reviewing court to conclude that such

error did not influence the jury, or had but very slight

effect on its verdict.” Id. (internal quotation marks

omitted). 10

Like the Ninth Circuit in Fry, the Tenth Circuit

in this case assumed that the exclusion of Dr. Smith’s

testimony was a constitutional error but that it was

harmless under Brecht. This Court should grant

Coddington’s Petition for Certiorari to answer the

question that the Court left unanswered in Fry.

CONCLUSION

The Court should hear this case to not only

remedy the Tenth Circuit’s failure to apply Brady and

its progeny, but also to resolve a split amongst the

circuits as to whether a material error can be

10 See also Fry, 551 U.S. at 126 (Breyer, J., concurring in part

and dissenting in part) (“I agree with Justice STEVENS . . . that

‘Chambers error is by nature prejudicial.’”).

harmless under this Court’s decisions. For these

reasons, the Petition for a Writ of Certiorari should be

granted.

April 5, 2020

Respectfully Submitted,

BOB WYATT

PRESIDENT, OKLAHOMA

CRIMINAL DEFENSE

LAWYERS ASSOC.

P.O. Box 2272

Oklahoma City, OK

73101

MARK W. VYVYAN

Counsel of Record

DEVIN T. DRISCOLL

TANNER J. PEARSON

FREDRIKSON & BYRON, P.A.

200 S. Sixth St., Suite 4000

Minneapolis, MN 55402

(612) 492-7000

mvyvyan@fredlaw.com

DR. MICHAEL R. WILDS

AMICUS COMMITTEE

CHAIR, OKLAHOMA

CRIMINAL DEFENSE

LAWYERS ASSOC.

3100 E. New Orleans St.

Broken Arrow, OK

74014

Counsel for Amicus Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.