Amicus Curiae Brief — Demarcus Donte Ivey, Petitioner v. United States

No. 22-7784

In the

Supreme Court of the United States

DEMARCUS DONTE IVEY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Fourth Circuit

BRIEF OF AMICUS CURIAE NORTH

CAROLINA ADVOCATES FOR JUSTICE

IN SUPPORT OF PETITIONER

A ndrew B. Banzhoff

Christopher J. Blake

Devereux & Banzhoff, PLLC Counsel of Record

The Jackson Building

D. Martin Warf

Nelson Mullins Riley

22 South Pack Square,

& Scarborough, LLP

Suite 1100

301 Hillsborough Street,

Asheville, NC 28801

Suite 1400

Raleigh, NC 27603

(919) 329-3800

chris.blake@nelsonmullins.com

Counsel for Amicus Curiae

322383

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

Statement of Interest of Amicus

Curiae . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of Argument . . . . . . . . . . . . . . . . . . . . 1

Reasons for Granting the Petition . . . . . 5

I.

RESOLVING THE CONFLICT AMONG

LOWER COURTS IS THE ONLY WAY

THAT THE HARMLESS ERROR TEST

WILL BE APPLIED CONSISTENTLY . . . . . . 5

A. State and Lower Federal Courts Are in

Conflict and Apply Two Distinct Variants

of the Harmless Error Doctrine . . . . . . . . . 6

1.

The Effect on the Verdict Harmless

Error Analysis . . . . . . . . . . . . . . . . . . . . . 9

2. The Guilt-Based Harmless Error

Analysis . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. On ly the Ef fect on the Verd ict

Harmless Error Analysis Remains

Faithful to Chapman, and the Court

Should Explicitly Reject the Guilt

Based Harmless Error Analysis . . . . . . . . 13

ii

Table of Contents

Page

II. THE FOURTH CIRCUIT’S DECISION

BELOW EMBODIES THE “UNFAIR

AND MISCHIEVIOUS” RESULT THIS

COURT WARNED OF IN CHAPMAN . . . . . 14

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Brown v. United States,

407 U.S. 371 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Bumper v. North Carolina,

391 U.S. 543 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Chapman v. California,

386 U.S. 18 (1967) . . . . . . . . . . . 2, 3, 5, 6, 7, 8, 9, 10, 12,

13, 14, 15, 18

Delaware v. Van Arsdall,

475 U.S. 673 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Fahy v. Connecticut,

375 U.S. 85 (1963) . . . . . . . . . . . . . . . . . . . . . 7, 8, 13, 14

Milton v. Wainwright,

407 U.S. 371 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Neder v. United States,

527 U.S. 1 (1999) . . . . . . . . . . . . . . . . . . . . . . . . 2, 10, 11

Rose v. Clark,

478 U.S. 570 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Satterwhite v. Texas,

486 U.S. 249 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

iv

Cited Authorities

Page

Sullivan v. Louisiana,

508 U.S. 275 (1993) . . . . . . . . . . . . . . . . . . 1, 7, 8, 10, 11

U.S. v. Arbolaez,

450 F.3d 1283 (11th Cir. 2006) . . . . . . . . . . . . . . . . . . . 9

U.S. v. Hasting,

461 U.S. 499 (1983) . . . . . . . . . . . . . . . . . . . . . . . 7, 12-13

U.S. v. Lopez,

500 F.3d 840 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . 9

United States v. Baptiste,

935 F.3d 1304 (11th Cir. 2019) . . . . . . . . . . . . . . . . . . 12

United States v. Carrasco,

540 F.3d 43 (1st Cir. 2008) . . . . . . . . . . . . . . . . . . . . . 10

United States v. Caruto,

532 F.3d 822 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . 10

United States v. Cunningham,

145 F.3d 1385 (D.C. Cir. 1998) . . . . . . . . . . . . . . . . . . 10

United States v. de Jesus-Rios,

990 F.2d 672 (1st Cir. 1993) . . . . . . . . . . . . . . . . . 15, 16

United States v. Delgado,

672 F.3d 320 (5th Cir. 2012) . . . . . . . . . . . . . . . . . . . . 17

v

Cited Authorities

Page

United States v. Elliott,

89 F.3d 1360 (8th Cir. 1996) . . . . . . . . . . . . . . . . . . . . 12

United States v. Erickson,

610 F.3d 1049 (8th Cir. 2010) . . . . . . . . . . . . . . . . . . . 12

United States v. Fields,

483 F.3d 313 (5th Cir. 2007) . . . . . . . . . . . . . . . . . . . . 17

United States v. Garcia-Lagunas,

835 F.3d 479 (4th Cir. 2015) . . . . . . . . . . . . . . . . . . . . 11

United States v. Ivey,

60 F.4th 99 (4th Cir. 2023) . . . . . . . . . . . . . . . . . . . . . 15

United States v. Makkar,

810 F.3d 1139 (10th Cir. 2015) . . . . . . . . . . . . . . . . . . 10

United States v. Martin Linen Supply Co.,

430 U.S. 564 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States v. Nash,

482 F.3d 1209 (10th Cir. 2007) . . . . . . . . . . . . . . . . . . 12

United States v. Ramos-Rodriguez,

809 F.3d 817 (5th Cir. 2016) . . . . . . . . . . . . . . . . . . . . 12

United States v. Rivera,

900 F.2d 1462 (10th Cir. 1990) . . . . . . . . . . . . . . . . . . 18

vi

Cited Authorities

Page

United States v. Staggers,

961 F.3d 745 (5th Cir. 2020) . . . . . . . . . . . . . . . . . 11, 12

Virgin Islands v. Martinez,

620 F.3d 321 (3d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . 10

Wray v. Johnson,

202 F.3d 515 (2d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . 9

Statutues and Other Authorities

U.S. Const., Amend. VI . . . . . . . . . . . . . . . . . . . . . . 1, 4, 17

B. L. Garrett, Judging Innocence, 108 Col. L.

Rev. 55 (Jan. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Daniel Epps, Harmless Errors and Substantial

Rights, 131 Harv. L. Rev. 2117 (2018) . . . . . . . . . . . . . 5

Dennis J. Devine, et al., Jury Decision Making, 45

Years of Empirical Research on Deliberating

Groups, 7 Psychology, Public Policy and Law 622

(2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Harry T. Edwards, To Err is Human, But Not

Always Harmless: When Should Legal Error

Be Tolerated, 70 N.Y.U. L. REV. 1167 (1995) . . . . 8, 11

vii

Cited Authorities

Page

Jason M. Solomon, Causing Constitutional

Ha r m : Ho w To r t L a w C a n He l p

Determine Harmless Error in Criminal

Trials, 99 NW. U. L. REV. 1053 (2005) . . . . . . . . 8, 13

Jeffrey O. Cooper, Searching for Harmlessness:

Method and Madness in the Supreme Court’s

Harmless Constitutional Error Doctrine,

50 U. Kan. L. Rev. 309 (2002) . . . . . . . . . . . . . . . . . . 13

Justin Murray, A Contextual Approach to Harmless

Error Review, 130 Harv. L. Rev. 1791 (2017) . . . . . . 5

Roger J. Traynor, The Riddle of Harmless

Error 80 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

William M. Landes & Richard A. Posner, Harmless

Error, 30 J. Legal Stud. 161 (2001) . . . . . . . . . . . . . . . 5

1

The North Carolina Advocates for Justice respectfully

submits this brief as Amicus Curiae in support of

Petitioner.1

STATEMENT OF INTEREST OF AMICUS CURIAE

The North Carolina Advocates for Justice (the

“NCAJ”) is a professional organization of more than 3,500

North Carolina lawyers. The NCAJ’s Criminal Defense

Section is composed of 360 lawyers. One of the NCAJ’s

primary purposes is to advance and protect the rights

of the vulnerable, including defendants charged with

and convicted of crimes. In furtherance of its mission,

the NCAJ regularly conducts continuing legal education

seminars and appears as amicus curiae before state and

federal courts. Protecting the rights of those charged with

and convicted of crimes in the State of North Carolina is

critical to the goals of NCAJ.

Challenging appellate decisions that deny a criminal

defendant’s right to a fair trial under the Sixth Amendment

of the Constitution is a timely and important part of the

mission of the NCAJ.

SUMMARY OF ARGUMENT

At stake in this case is the constitutional entitlement

emphasized in Sullivan v. Louisiana, 508 U.S. 275 (1993)

– that a criminal defendant has a Sixth Amendment right

1. No party or counsel for a party, and no other party other

than Amicus Curiae and its counsel, authored or contributed

monetarily to the preparation or submission of any portion of

this brief. Petitioner received sufficient notice per SCR 37.2.

Respondent did not, but does not object to the late notice.

2

to have a jury be the ultimate arbiter of guilt beyond a

reasonable doubt. A criminal defendant’s entitlement to

a trial by jury is integral to both the fairness and the

constitutional legitimacy of government-imposed criminal

punishment. The requirement of a unanimous verdict by a

jury of one’s peers, after live testimony and deliberation,

serves “as the great bulwark” of civil and political liberties

“to guard against a spirit of oppression and tyranny on

the part of rulers.” Neder v. United States, 527 U.S. 1,

19 (1999). This Court’s prior decisions have also guarded

against judges usurping the role of juries as well, making

clear that harmless-error review must not “fundamentally

undermine the purposes of the jury trial guarantee.” Id.

Appellate judges reviewing a criminal conviction should

not impose their own view that a defendant is guilty,

“regardless of how overwhelmingly the evidence may point

in that direction.” United States v. Martin Linen Supply

Co., 430 U.S. 564, 572-73 (1977); see also Rose v. Clark,

478 U.S. 570, 578 (1986). An error at a jury trial cannot

be harmless if it may have affected the jury’s verdict.

As a result, deciding whether a constitutional error is

harmless, therefore, must not focus on whether a panel of

appellate judges thinks the defendant was guilty despite

the constitutional error.

The harmless error standard adopted by this Court

in Chapman v. California, 386 U.S. 18, 22 (1967) provides

that in order for error to be harmless, a Court must have

a belief beyond a reasonable doubt that the error did not

contribute to the verdict obtained. Despite what seems

like a clear standard on its face, lower federal courts are

in conflict over how to conduct harmless error review.

The Fourth Circuit below, and many other courts, focus

on whether the evidence – minus whatever tainted portion

3

was wrongly admitted – supports the conviction beyond

a reasonable doubt, usually by finding that evidence

“overwhelming” (and thus that the error was harmless).

On the other hand, a larger number of federal courts focus

instead on the error, asking whether it likely affected the

verdict. This conflict in the application of the harmless

error analysis is entrenched and calls out for this Court’s

resolution. Having panels of appellate judges conclude that

there was enough evidence for conviction is not a substitute

for the right to a fair jury trial, fails to faithfully follow

the Chapman standard, and could lead to dangerous

consequences including wrongful convictions. This Court

should grant certiorari to resolve this conflict and clarify

the harmless error standards to be applied on appellate

review.

The dilution of the harmless error standard results

in a deterioration of the overall criminal justice process

that flows through the courts and down to the prosecutors

who bring the cases and the law enforcement officials

that investigate the underlying crimes. As this case

demonstrates, the dilution of the harmless error standard

has sent the message to law enforcement and prosecutors

that there are no material consequences for sloppy, or

worse, intentionally unconstitutional methods. When the

courts bend over backwards to find evidentiary errors and

constitutional rights violations “harmless”, the incentive

to use constitutional procedures disappears. The lower

courts have fallen into the trap of “guilt based” standards,

by which the appellate courts’ distant assessment of the

evidence and probability of guilt has become the driving

factor. The integrity of the entire criminal justice system

has suffered. Looking across the current landscape of

the lower federal courts, it is necessary for this Court, as

4

the ultimate guardian of the system, once again to make

absolutely plain the appropriate harmless error standard

and the mandate for the lower courts to apply it.

What distinguishes this case from others seeking

harmless error review – and why certiorari should

be granted – is that the Petitioner: (a) was first tried

on murder charges arising from the same events that

are the subject of this case in a state court trial which

resulted in a hung jury; and (b) was then tried on federal

charges in a district court trial that was tainted by the

improper admission of three critical pieces of direct

evidence tying Petitioner to the scene of the crime. Aside

from the improperly admitted evidence, there was no

direct evidence tying Defendant to the crime scene. In

concluding that the improper admission of this direct

evidence was harmless error, the Fourth Circuit placed

itself in the jury box and concluded that the remainder

of the Government’s evidence tying Petitioner to the

crime scene – all of which was circumstantial – was

enough to convict Petitioner beyond a reasonable doubt.

However, this Court’s harmless error doctrine requires

proof beyond a reasonable doubt that that the errors did

not contribute to the jury verdict obtained. The NCAJ

submits that this reasonable doubt standard could not

have been satisfied in this close case since the remainder

of the Government’s untainted evidence tying Petitioner

to the crime scene was circumstantial, and a prior trial

of the Petitioner arising from the same events resulted

in a hung jury. Could Petitioner have been convicted by a

jury solely on the Government’s untainted circumstantial

case? The Sixth Amendment requires that question to be

answered by a jury, not a panel of appellate judges.

5

The NCAJ urges the Court to clarify the meaning

and application of the current harmless error doctrine

because, while the Chapman standard exists, it is

being applied in conflicting ways by different panels in

circuit and state courts. Petitioner’s rights under the

Sixth Amendment – as well as those of countless other

defendants – are therefore being violated without remedy.

Reasons for Granting the Petition

I.

RESOLVING THE CONFLICT AMONG LOWER

COU RTS IS THE ON LY WAY TH AT THE

HARMLESS ERROR TEST WILL BE APPLIED

CONSISTENTLY.

The importance of a clear and consistent harmless

error doctrine cannot be overstated. The harmless error

doctrine is “almost certainly the most frequently-invoked

doctrine in all criminal appeals.” Daniel Epps, Harmless

Errors and Substantial Rights, 131 Harv. L. Rev. 2117,

2119 (2018); see also William M. Landes & Richard A.

Posner, Harmless Error, 30 J. Legal Stud. 161, 161 (2001)

(the doctrine is “probably the most cited rule in modern

criminal appeals”). Harmless error review is also “one of

the most significant tasks of an appellate court, as well as

one of the most complex.” Roger J. Traynor, The Riddle

of Harmless Error 80 (1970). Nonetheless, the harmless

error doctrine has “remain[ed] surprisingly mysterious”

and challenging for lower courts to apply consistently.

Epps, supra, at 2120. Despite this, some courts now

find constitutional errors harmless “with remarkable

frequency.” Justin Murray, A Contextual Approach to

Harmless Error Review, 130 Harv. L. Rev. 1791, 1793-94

(2017).

6

When this Court established the current harmless

error doctrine in Chapman, it warned “that harmlesserror rules can work very unfair and mischievous results

when, for example, highly important and persuasive

evidence, or argument, though legally forbidden, finds its

way into a trial in which the question of guilt or innocence

is a close one.” Chapman, 386 U.S. at 22. Today, state and

lower federal courts are applying incompatible variants

of the harmless error rule established in Chapman. The

potential for dangerous results for criminal defendants

is real – including wrongful convictions. The empirical

evidence proves the falsehood of the assumption that the

harmless error standard is being applied so as to protect

the innocent. 2

A.

State and Lower Federal Courts Are in

Conflict and Apply Two Distinct Variants of

the Harmless Error Doctrine.

The Chapman standard is simple on its face: “[b]efore

a federal constitutional error can be held harmless, the

court must be able to declare a belief that it was harmless

beyond a reasonable doubt.” Chapman, 386 U.S. at 24. To

carry this burden, the beneficiary of the error must show

that “there is [no] reasonable possibility that the evidence

complained of might have contributed to the conviction.”

2. A “central finding” of one of the definitive studies on

the issue of post-conviction process was that appellate or postconviction courts reversed only fourteen percent of the convictions

of those in the study who were ultimately exonerated and only

nine percent if capital cases are excluded, where “reversal” is, an

order upheld on appeal that resulted in the grant of a new trial

and a vacating of the conviction or convictions. See, B. L. Garrett,

Judging Innocence, 108 Col. L. Rev. 55, 99-100 (Jan. 2008).

7

Chapman, 386 U.S. at 24 (quoting Fahy v. Connecticut,

375 U.S. 85, 86-87 (1963)). While certain errors may be “so

unimportant and insignificant” that they may be deemed

harmless, this is not true where the error is “plainly

relevant” and “possibly influenced the jury.” Chapman,

386 U.S. at 22, 23. “[T]he beneficiary of a constitutional

error [is required to] prove beyond a reasonable doubt that

the error complained of did not contribute to the verdict

obtained.” Chapman, 386 U.S. at 24.

The analysis does not consider defendant’s guilt or

innocence, Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963);

whether defendant “got what he deserved,” Bumper v.

North Carolina, 391 U.S. 543, 553 (1968); or whether,

absent the error, “a guilty verdict would surely have

been rendered,” Sullivan v. Louisiana, 508 U.S. 275, 279

(1993). Even a “reasonably strong circumstantial web of

evidence” is not enough on its own. Chapman, 386 U.S.

at 23-26. Instead, the analysis must consider, through a

fact-intensive inquiry of the entire record, whether the

verdict “was surely unattributable to the error.” Sullivan

v. Louisiana, 508 U.S. 275, 279 (1993).

The principle undergirding the harmless error

doctrine is sensible. There is no perfect trial, and, in

the face of marginal errors, judicial resources must be

protected. U.S. v. Hasting, 461 U.S. 499, 508-09 (1983).

At core, the doctrine recognizes that “the central purpose

of a criminal trial is to decide the factual question of

the defendant’s guilt or innocence . . . and [the doctrine]

promotes public respect for the criminal process by

focusing on the underlying fairness of the trial rather

than on the virtually inevitable presence of immaterial

error.” Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)

(citations omitted).

8

However, the factual question of guilt or innocence

does not belong to the judiciary, but to the jury. The

judiciary must maintain the underlying fairness of the

trial process. If similarly situated defendants receive

different outcomes based on the court that hears their

appeal, the judiciary is failing to protect that underlying

fairness. If, instead of focusing on fairness, the court

focuses on the decision of guilt or innocence, an appellate

court usurps the role of the jury. The right to a jury trial is

sacrosanct, as is the necessity of having guilt or innocence

decided by jurors rather than judges.

State and lower federal courts are moving in conflict

between two general, incompatible inquiries that mirror

the fairness/outcome distinction in Van Arsdall: the “effect

on the verdict” inquiry and the “guilt-based” inquiry.

Harry T. Edwards, To Err is Human, But Not Always

Harmless: When Should Legal Error Be Tolerated, 70

N.Y.U. L. REV. 1167, 1171 (1995). The choice of standard

correlates with outcome: in habeas proceedings, courts

that focus on the effect of the error on the verdict affirmed

47% of the time versus 93% of the time when focusing on

the strength of the evidence of guilt. Jason M. Solomon,

Causing Constitutional Harm: How Tort Law Can Help

Determine Harmless Error in Criminal Trials, 99 NW.

U. L. REV. 1053, 1071 (2005). The effect on the verdict

inquiry is grounded in a reading of the law consistent with

Chapman, Fahy, and Sullivan which asks how the jury

processed, experienced, and possibly weighed the error.

The guilt-based inquiry is grounded in the creation of a

hypothetical rational jury that weighs a cold record after

excising the error. While both require judges to imagine

worlds that do not exist, the effect-on-the-verdict inquiry

should be the preferred approach that remains faithful to

9

Chapman because it does not ask judges to become juries,

but to stay within their appropriate roles.

1.

The Effect on the Verdict Harmless Error

Analysis.

Courts applying an effect on the verdict inquiry focus

on the error and its contextual relationship to all other

evidence at trial. Under the effect on the verdict inquiry,

when assessing the importance of wrongly admitted

evidence, courts will investigate whether the evidence was

critical to the jury’s decision; whether the evidence was

material to establishing a critical fact; and whether the

evidence was emphasized in the prosecution’s argument.

Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2000). An

effect on the verdict inquiry requires holistic review of

an error’s impact even if the other evidence against the

defendant “standing alone, would have been sufficient

to support the conviction.” Wray, 202 F.3d at 526. For

example, the Eleventh Circuit has inquired, in relation

to erroneously admitted involuntary confessions, into

the effect of the erroneously admitted statement upon:

(1) the other trial evidence; and (2) the conduct of the

defense. U.S. v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir.

2006); see e.g., U.S. v. Lopez, 500 F.3d 840, 845-46 (9th Cir.

2007) (considering the “quantitative extent” of witness’s

testimony on post-Miranda silence, the “qualitative

extent” of the testimony, the “manner of questioning” by

the prosecution, the additional evidence presented, and

the length of jury deliberations).

These courts “‘demand[] a panoramic, case-specific

inquiry considering, among other things, the centrality

of the tainted material, its uniqueness, its prejudicial

10

impact, the uses to which it was put during the trial, the

relative strengths of the parties’ cases, and any telltales

that furnish clues to the likelihood that the error affected

the factfinder’s resolution of a material issue.’” United

States v. Carrasco, 540 F.3d 43, 55 (1st Cir. 2008) (citation

omitted); see Virgin Islands v. Martinez, 620 F.3d 321,

338-39 (3d Cir. 2010) (error harmless despite lack of

“overwhelming evidence” because jury was “unlikely to

arrive at a negative inference” from error and error was

“not a focal point” of prosecutor’s argument); United

States v. Caruto, 532 F.3d 822, 831 (9th Cir. 2008) (error

not harmless after considering extent of impermissible

argument, emphasis on impermissible argument by

the prosecution, and amount of other evidence against

defendant); United States v. Makkar, 810 F.3d 1139, 1148

(10th Cir. 2015) (error not harmless where impermissible

evidence went to “heart of the defense” (citation omitted));

United States v. Cunningham, 145 F.3d 1385, 1394 (D.C.

Cir. 1998) (error not harmless where “testimony [in error]

was central to the Government’s case”).

While courts use “overwhelming evidence” under

the effect on the verdict standard, it is not subject to

“overemphasis.” Chapman, 386 U.S. at 23. The question

is not whether there is so much evidence that, absent the

error, “a guilty verdict would surely have been rendered”

but rather whether there is so much overwhelming

evidence that the “guilty verdict actually rendered in this

trial was surely unattributable to the error.” Sullivan v.

Louisiana, 508 U.S. 275, 279 (1993).

For example, in Neder v. United States, this Court

relied upon “overwhelming evidence” only when evidence

supporting an omitted element in jury charge “was so

11

overwhelming that [defendant] did not even contest that

issue.” 527 U.S. 1, 2 (1999). “Where . . . a reviewing court

concludes beyond a reasonable doubt that the omitted

element was uncontested and supported by overwhelming

evidence, such that the jury verdict would have been

the same absent the error, the erroneous instruction is

properly found to be harmless.” Id.

2.

The Guilt-Based Harmless Error Analysis.

Alternatively, Courts applying a guilt-based inquiry

focus on the likelihood that a hypothetical rational jury

would find the defendant guilty absent the error. When

courts apply a guilt-based inquiry, the outcome turns

on the court’s “judgement about the factual guilt of the

defendant.” Harry T. Edwards, To Err Is Human, But

Not Always Harmless: When Should Legal Error Be

Tolerated?, 70 N.Y.U. L. Rev. 1167, 1171 (1995). The court’s

opinion is bound up in an appeal to a fictitious “rational

jury.” In United States v. Garcia-Lagunas, 835 F.3d 479

(4th Cir. 2015), the Fourth Circuit embodied this approach

when it claimed “[w]e are satisfied beyond a reasonable

doubt that—even without the government’s [error]—a

rational jury still would have arrived at that verdict.” Id.,

at 489; see United States v. Staggers, 961 F.3d 745, 762

(5th Cir. 2020) (“Thus, the operative inquiry is whether

a reasonable jury could have found, beyond a reasonable

doubt” the defendant guilty). Instead of relying upon the

“guilty verdict actually rendered in this trial,” Sullivan

v. Louisiana, 508 U.S. 275, 279 (1993), the Fourth Circuit

hypothesizes a “rational jury” independent of the jury

that actually arrived at the verdict. Garcia-Lagunas,

835 F.3d at 489.

12

The hypothetical rational jury created by the judiciary

is often convinced by a laundry list of “overwhelming

evidence” laid out by the court. See United States v. Nash,

482 F.3d 1209, 1222 (10th Cir. 2007) (McKay, J., dissenting)

(criticizing the majority for claiming a “laundry list of

properly admitted evidence — much of it contested at

trial — [was] sufficient to establish Defendant’s guilt”);

United States v. Baptiste, 935 F.3d 1304, 1314 (11th Cir.

2019) (harmless because even if one struck the improperly

admitted evidence, still “gobs of . . . evidence” that

amounted to “overwhelming evidence of guilt”); United

States v. Elliott, 89 F.3d 1360, 1369 (8th Cir. 1996) (“if

the District Court abused its discretion in excluding this

testimony the error amounted to, at most, only harmless

error given the weight of the government’s massive case

against [defendant]”).

Courts may ask whether the “jury’s finding was

adequately supported by the evidence,” United States v.

Staggers, 961 F.3d 745, 762 (5th Cir. 2020); if alternative

explanations were “rather implausible,” United States v.

Ramos-Rodriguez, 809 F.3d 817, 824 (5th 2016); or if the

other facts “left no doubt” that defendant committed the

crime, United States v. Erickson, 610 F.3d 1049, 1054 (8th

Cir. 2010).

The use of “overwhelming evidence” in these cases has

been stretched to erase any investigation of the error’s

effect on the verdict at all. Chapman cautioned against

the “overwhelming evidence” standard applied by the

California courts. Chapman, 386 U.S. at 23. Unfortunately,

later decisions of this Court used the language of

“overwhelming evidence” without encouraging similar

caution. See United States v. Hasting, 461 U.S. 499, 510-

13

12 (1983) (harmless error because of the “overwhelming

evidence of guilt.”); Milton v. Wainwright, 407 U.S. 371,

377-78 (1972) (same); Brown v. United States, 407 U.S.

371, 372, 378 (1972) (same).

In these cases, appellate courts are improperly

usurping the role of the factfinder by imagining themselves

as the rational jury because “[h]owever rigorous the

standard is made to sound in the abstract . . . in practice

it ultimately collapses into the equivalent of a directed

verdict for the government.” Jeffrey O. Cooper, Searching

for Harmlessness: Method and Madness in the Supreme

Court’s Harmless Constitutional Error Doctrine, 50 U.

Kan. L. Rev. 309, 334 (2002).

B. Only the Effect on the Verdict Harmless Error

Analysis Remains Faithful to Chapman, and

the Court Should Explicitly Reject the Guilt

Based Harmless Error Analysis.

The way that an appellate court applies the harmless

error doctrine can determine the outcome of an appeal.

Jason M. Solomon, Causing Constitutional Harm: How

Tort Law Can Help Determine Harmless Error in

Criminal Trials, 99 NW. U. L. REV. 1053, 1071 (2005).

This Court’s decisions in Chapman and Fahy are prime

examples of this. In Fahy, the error was not harmless

even though defendants gave a “full confession” of the

crime because the error may have influenced defendants’

willingness to give the full confession in the first place.

Fahy, 375 U.S. at 90. Although the defendant in Fahy did

not dispute he had committed the acts in question, the

“evidence complained of might have contributed to the

conviction” because of the possibility that learning of the

14

illegally obtained evidence could have changed defendant’s

behavior. Fahy, 375 U.S. at 86, 90. If the court had applied

a guilt-based inquiry, instead of an investigation into the

role that the illegal acts played, the appeal would likely

have been affirmed.

In Chapman, a prosecutor’s unconstitutional

commentary on the petitioners’ silence in a murder trial

was held not harmless despite there being “overwhelming”

evidence as noted by the California Courts. Chapman,

386 U.S. at 23. In dissent, Justice Harlan lists no less

than twelve independent facts including that petitioners

were seen leaving the crime scene, were the last ones

at the crime scene, that a defendant had purchased a

weapon similar to the murder weapon five days before

the crime, that blood matching victim was on the floormat

of defendants’ car, and one defendant made admissions

“amounting almost to a full confession.” Chapman, 386

U.S. at 54-55 (Harlan, J., dissenting). Nonetheless, this

overwhelming evidence, laundry list approach was deemed

insufficient to the majority’s harmless error analysis.

Today, cases with these same facts and evidence would

surely come out differently in many state and lower federal

courts utilizing the guilt based harmless error analysis,

just as happened at the Fourth Circuit in this case.

II. T H E F O U R T H C I R C U I T ’ S D E C I S I O N

BELOW EMBODIES THE “U NFA IR A N D

MISCHI EV IOUS” RESU LT T HIS COU RT

WARNED OF IN CHAPMAN.

In Chapman, this Court recognized “that harmlesserror rules can work very unfair and mischievous results

15

when, for example, highly important and persuasive

evidence, or argument, though legally forbidden, finds its

way into a trial in which the question of guilt or innocence

is a close one.” Chapman, 386 U.S. at 22.

In this case, without the tainted evidence, the

question of Petitioner’s guilt or innocence is a close one.

The Petitioner’s first trial in state court arising from the

same events ended in a hung jury. Petitioner’s Brief, p.

4. Moreover, the evidence admitted in error in this case

was “highly important and persuasive” because it included

the only direct evidence placing defendant at the scene

of the crime. Id., pp 4-5. Thus, without the erroneously

admitted evidence, the circumstantial evidence of guilt

was extremely tenuous.

In finding the constitutionally erroneous admission of

this evidence to be harmless, the Fourth Circuit concluded

that the “error complained of did not contribute to the

verdict obtained” because the Government provided

“overwhelming evidence of Appellant’s involvement in the

incident at Club Nikki’s.” United States v. Ivey, 60 F.4th 99,

111 (4th Cir. 2023). The question, however, is not whether

petitioner was involved in the incident, but whether

the tainted and inadmissible evidence contributed to

the verdict obtained. This is best illustrated by the

unconstitutional showup identifications that the jury was

allowed to hear at Petitioner’s trial.

In United States v. de Jesus-Rios, 990 F.2d 672 (1st Cir.

1993), defendant Eva Rios was convicted of drug-related

charges based on a “highly suggestive, prejudicial, and

unlawful showup procedure.” de Jesus-Rios, 990 F.2d

at 676. One other witness connected her to the criminal

16

activity based on a series of conversations he claimed

to have had with her. de Jesus-Rios, 990 F.2d at 678.

After determining that the showup violated Rios’s due

process rights, the First Circuit reviewed the error for

harmlessness. de Jesus-Rios, 990 F.2d at 678. The showup

was not harmless because first, “there is no way for us

to discern the role that [witness’s] identification played in

the jury’s deliberation.” de Jesus-Rios, 990 F.2d at 679.

It might have been the additional witness that persuaded

the jury to convict. de Jesus-Rios, 990 F.2d at 679. In fact,

“[i]t is also possible that the jury relied solely upon the

testimony of [the witness] in reaching its conclusion.” de

Jesus-Rios, 990 F.2d at 679.

Unlike the First Circuit in de Jesus-Rios, the Fourth

Circuit here does not ground its analysis first and foremost

on the effect of the impermissible showup identification of

Petitioner on the jury. As in de Jesus-Rios, it is possible:

(a) that this evidence – the only evidence identifying

Petitioner as the perpetrator – was what the jury relied

on to convict Petitioner; or (b) that without the improper

showup identification, the jury would have concluded

that the remaining circumstantial evidence against the

Petitioner was not enough to convict. 3 With no way to

discern the role the improper showup identification had

on the jury’s deliberations at trial, the Fourth Circuit

misapplied the harmless error doctrine, and deprived

Petitioner of his constitutional right to a fair jury trial.

3. The impact of the improper showup identification on the

jury at trial cannot be understated. Numerous studies have shown

that a corroborating eyewitness identification of a defendant has

a substantial impact in jury verdicts, with significant increases

in the rates of conviction. Dennis J. Devine, et al., Jury Decision

Making, 45 Years of Empirical Research on Deliberating Groups,

7 Psychology, Public Policy and Law, 622, 685 (2001).

17

By relying on the “overwhelming evidence” in its

guilt based harmless error analysis, the Fourth Circuit

essentially usurped the function of the jury, effectively

making the Fourth Circuit – based only on its review

of a cold record – the ultimate arbiter of Petitioner’s

guilt in this case instead of a jury at trial. An appellate

panel’s conclusion that a verdict substantially tainted

by inadmissible evidence is nonetheless supported by

the prosecution’s other evidence is not enough to find an

error harmless and deny the Petitioner a constitutionally

sound retrial. Satterwhite v. Texas, 486 U.S. 249, 25859 (1988) (“The question . . . is not whether the legally

admitted evidence was sufficient to support the [verdict].”).

Depriving criminal defendants of their Sixth Amendment

right to a fair jury trial will lead to wrongful convictions

and other improper and unfair results.

Finally, the risk of unfair and mischievous results

is exacerbated where, as in this case, there are multiple

evidentiary errors. Here, the Fourth Circuit failed to

consider the aggregate effect of the three evidentiary

errors under the cumulative error doctrine, which is

a paradigm of the failure of the lower federal courts

forthrightly to address the analysis of multiple errors

in the context of a harmless error standard. The circuit

courts are in conflict over the application of the harmless

error standard when multiple errors infect the outcome.

Some courts apply the so-called “fundamental fairness”

approach and consider whether the errors in combination

“‘so fatally infect the trial that they violated the trial’s

fundamental fairness.’” United States v. Delgado, 672 F.3d

320, 344 (5th Cir. 2012) (en banc) (quoting United States

v. Fields, 483 F.3d 313, 360 (5th Cir. 2007)).

18

Some appellate courts follow the alternative aggregate

error approach which aggregates all the errors that

individually were found to be harmless and analyzes

whether their cumulative effect on the outcome of the trial

is such that collectively they can no longer be determined

to be harmless. United States v. Rivera, 900 F.2d 1462,

1470 (10th Cir. 1990). In this approach, having already

determined each error in isolation to be harmless,

unsurprisingly, these appellate courts uniformly find the

cumulative impact of harmless errors to be harmless. In

truth, when the jury begins deliberations, the cumulative

impact of multiple errors is already fully matured. A

cumulative error analysis that pretends the impact of

multiple errors can be analyzed seriatim, and with that

comforting conclusion of harmlessness, does little to

ensure the fairness of the trial.

This Court should grant certiorari and take the

opportunity to clarify the cumulative error standard for

multiple evidentiary errors committed at trial. The Fourth

Circuit professed to apply the “fundamental fairness”

standard and in doing so failed to place the burden on

the government – where it belongs – to prove beyond a

reasonable doubt that the totality of the errors did not

contribute to the verdict obtained in contravention of this

Court’s harmless error standard. See Chapman, 386 U.S.

at 24. The Fourth Circuit never considered the aggregate

effect of the three errors and instead evaluated each item

of tainted evidence in isolation. All three of the errors —

which connected Petitioner to the crime scene, the victim,

or the vehicle — were errors that, if corrected, would

have left the government without a firsthand witness,

without any way to connect Petitioner to the victim, and

without a personal admission from Petitioner. To conclude

that these three errors did not have a cumulative effect

19

on the verdict beyond a reasonable doubt ignores what a

jury might have concluded in the absence of this evidence,

and whether the inclusion of the evidence violated the

fundamental fairness of Petitioner’s trial. Establishing

a clear standard for application of the cumulative error

doctrine is a matter of intense interest for those like the

NCAJ who are heavily invested in the fair and proper

administration of the criminal justice system.

Conclusion

For the foregoing reasons and the reasons stated in

Petitioner’s brief, the Court should grant the petition for

a writ of certiorari to review the judgment of the Fourth

Circuit Court of Appeals.

Respectfully submitted, this the 12 day of July, 2023.

Christopher J. Blake

Counsel of Record

D. Martin Warf

Nelson Mullins Riley

& Scarborough, LLP

301 Hillsborough Street, Suite 1400

Raleigh, NC 27603

(919) 329-3800

chris.blake@nelsonmullins.com

A ndrew B. Banzhoff

Devereux & Banzhoff, PLLC

The Jackson Building

22 South Pack Square, Suite 1100

Asheville, NC 28801

Counsel for Amicus Curiae