Petitioners Brief — Greer v. Miller

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No. 85-2064 © m

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Supreme Court of the Auited serena

Ocrozern Term, 1985 ee

JAMES GREER, Warden,

Menard Correctional Center,

Petitioner,

vs.

CHARLES “CHUCK” MILLER,

Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

BRIEF FOR PETITIONER

NEIL F. HARTIGAN

Attorney General of Illinois

ROMA J. STEWART

Solicitor General of [linois

MARK L. ROTERT *

DAVID E. BINDI

Assistant, Attorneys General

100 W. Randolph St., 12th Floor

Chicago, Illinois 60601

(312) 917-2570

Attorneys for Petitioner

* Counsel of Record

SL TE EA IL, TT OE IEEE III EE TN TOT ES

Printed by Authority of the State of Illinois P.O. 33533—55—1-30-87) (

PETITION FOR CERTIORARI FILED JUNE 3, 1986 Zt)

CERTIORARI GRANTED DECEMBER 1, 1986 Yo )

QUESTIONS PRESENTED FOR REVIEW

I. Should violations of the rule of Doyle v. Ohio, 426

U.S. 610 (1976) be reviewed under a less stringent stan-

dard than that established by Chapman v. California, 386

U.S. 18 (1967) in light of the fact that Doyle is a due

process case, and claims of a denial of due process are

subject to a general requirement that actual prejudice be

shown?

II. Should Chapman v. California, 386 U.S. 18 (1967)

be applied at all in federal habeas corpus proceedings,

where the cost of strictly enforcing constitutional rights

outweighs the benefits?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...

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

OPINIONS AND JUDGMENTS BELOV .....

STATEMENT OF THE CASE ...............

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

ARGUMENT:

THE HARMLESS ERROR DOCTRINE OF

CHAPMAN v. CALIFORNIA DOES NOT APPLY

TO VIOLATIONS OF THE RULE OF DOYLE

v. OHIO BECAUSE THE RULE STEMS FROM

THE DUE PROCESS CLAUSE, AND CLAIMS

OF A DENIAL OF DUE PROCESS ARE SUB-

JECT TO A GENERAL REQUIREMENT THAT

ACTUAL PREJUDICE BE SHOWN ........

A. The Definition Of Errors Resulting In A

Denial Of Due Process Incorporates A

General Requirement That The Defendant

Show Actual Prejudice, Thus Making Chap-

man Inapplicable As A Standard Of Re-

view In Due Process Cases ..........

B. Since Doyle Does Not Involve Fifth Amend-

ment Concerns, It Should Be Treated As

A Dae Foasses Gale .cc+ecersuasneens

C. Since Violations Of Doyle Do Not Render

The Factfinding Process Inherently Un-

reliable, Respondent Should Be Required

To Show Actual Prejudice ...........

PAGE

iil

Il.

THE HARMLESS ERROR RULE OF CHAP.-

MAN v. CALIFORNIA SHOULD NOT BE AP-

PLIED IN FEDERAL HABEAS CORPUS PRO-

CEEDINGS, BECAUSE THE INTERESTS

WHICH COMPETE WITH THE POLICY OF

STRICT ENFORCEMENT OF CONSTITUTION-

AL RIGHTS ON COLLATERAL REVIEW OUT-

WEIGH THE NEED FOR STRICT ENFORCE-

REE RUBS GE Beweeseesceeseceoecesccccccs

A. The Chapman Standard Reflects A Con-

cern Not Just For The Fairness And Ac-

euracy Of The Adjudication Of Guilt Or

Innocence, But For The Broader Values

Embodied In The Constitution As Well ..

B. Since The Central Concern Of The Writ

Of Habeas Corpus Is The Fundamental

Fairness Of The Trial, And Because Col-

lateral Review Entails Significant Costs

Not Associated With Direct Review,

Chapman Is Not An Appropriate Stan-

dard To Apply In Habeas Corpus Pro-

Ill.

THE VIOLATION OF THE RULE OF DOYLE

v. OHIO IN THIS CASE DOES NOT GIVE

RISE TO A REASONABLE PROBABILITY

THAT, BUT FOR THE ERROR, THE RESULT

OF THE PROCEEDING WOULD HAVE BEEN

ESE EEEOPPETTLELELILELEL

EEE SGewesscecceccveccccccccs

TABLE OF AUTHORITIES

CASES PAGE

Adams v. United States ex rel. McCann, 317 US.

SED. duh nthe ech tetas earantemdaiaabanmnS 35

Anderson v. Charles, 447 U.S. 404 (1980) (per

PROT PET EPO Ee ey PE ee et ae 25

Bivens v. Six Unknown Named Agents, 403 U.S.

Se CE ne se Rale cei eddies cree ae sda tka. 31

Brady v. Maryland, 373 U.S. 83 (1963) ....... 20

Brown v. Allen, 344 U.S. 443 (1953) .......... 33, 35

Chambers v. Maroney, 399 U.S. 42 (1970) ..... 19

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

pee bundeskie cape ened 11, 13, 17, 29, 31, 37, 41

Coleman v. Alabama, 399 U.S. 1 (1970) ...... 19

Cupp v. Naughton, 414 U.S. 141 (1973) ....... 21

Daniels v. Williams, 106 S.Ct. 662 (1986) ..... 28

Darden v. Wainwright, 106 S.Ct. 2464 (1986) .. 21, 22, 26

Delaware v. Van Arsdall, 106 S.Ct. 1431 (1986) ..

codanéwhted ceeubaceueses eee 19, 31, 32, 36

Donnelly v. DeChristoforo, 416 U.S. 637 (1974) ..

(aecdneenesghedmee tele 21, 22, 26, 27

Doyle v. Ohio, 426 U.S. 610 (1976) ...........

evesnueviedaseesee 11, 13, 16, 17, 24, 25, 30, 37, 40

Drope v. Missouri, 420 U.S. 162 (1975) ....... 20, 27

Engle v. Isaac, 456 U.S. 107 (1982) ........... 34, 35

Estelle v. Williams, 425 U.S. 501 (1976) ...... 20, 27

Fay v. Noia, 372 U.S. 391 (1963) ............. 33

Fletcher v. Weir, 455 U.S. 603 (1982) (per curiam) . 25, 26

Francis v. Henderson, 425 U.S. 536 (1976) .... 33

Franks v. Delaware, 437 U.S. 154 (1978) ...... 32

Gerstein v. Pugh, 420 U.S. 103 (1975) ........ 19

Gideon v. Wainwright, 372 U.S. 335 (1963) .... 18

Giglio v. United States, 405 U.S. 150 (1972) ... 23

Griffin v. California, 380 U.S. 609 (1965) ..... 19

Harrington v. California, 395 U.S. 250 (1969) ... 31

Henderson v. Kibbe, 431 U.S. 145 (1977) ...... 21

Holbrook v. Flynn, 106 S.Ct. 1340 (1986) ..... 22

Jenkins v. Anderson, 447 U.S. 231 (1980) .. 24, 25, 26, 28

Kotteakos v. United States, 328 U.S. 750 (1946) . 31

Kuhlmann v. Wilson, 106 S.Ct. 2616 (1986) ... 35

Manson v. Brathwaite, 432 U.S. 98 (1977) ..... 21

Mapp v. Ohio, 367 U.S. 643 (1961) ........... 32

Milton v. Wainwright, 407 U.S. 371 (1972) .... 19

Miranda v. Arizona, 384 U.S. 436 (1966) ...... 16

Moore v. Illinois, 484 U.S. 220 (1977) ........ 19

Moran v. Burbine, 106 S.Ct. 1135 (1986) ...... 27, 28

Murray v. Carrier, 106 S.Ct. 2639 (1986) ..... 34, 35

Napue v. Illinois, 360 U.S. 264 (1959) ........ 23

Neil v. Biggers, 409 U.S. 188 (1972) .......... 21

Parratt v. Taylor, 451 U.S. 527 (1981) ........ 28

Payne v. Arkansas, 356 U.S. 560 (1958) ...... 18

Phelps v. Duckworth, 772 F.2d 1410 (7th Cir. 1985)

Oe BEE ic kxcntandddenedasnetbadstncuees« 17

Raffel v. United States, 271 U.S. 494 (1926) ... 25

Rochin v. California, 342 U.S. 165 (1952) ..... 20, 28

Rose v. Clark, 106 S.Ct. 3101 (1986) ....... 19, 21, 36

Rose v. Lundy, 455 U.S. 509 (1982) ....... 18, 33, 34

Rushen v. Spain, 464 U.S. 114 (1983) (per curiam) . 19, 22

Sandstrom v. Montana, 442 U.S. 510 (1979) ... 21

Schneble v. Florida, 405 U.S. 427 (1972) ...... 31

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) .. 34

Sheppard v. Maxwell, 384 U.S. 333 (1966) ..... 20, 27

Simmons v. United States, 390 U.S. 377 (1968) .. 21

Smith v. Murray, 106 S.Ct. 2661 (1986) .... 33, 34, 35

Smith v. Phillips, 455 U.S. 209 (1982) ........ 23, 26

South Dakota v. Neville, 459 U.S. 553 (1983) .... 25

Stanford v. Texas, 379 U.S. 476 (1965) ........ 30

Stone v. Powell, 428 U.S. 465 (1976) .......... 32

Strickland v. Washington, 466 U.S. 668 (1984) ...

panccanegdhheuceenesauaeewenes 23, 24, 30, 34, 35, 36

Sumner v. Mata, 449 U.S. 539 (1981) ......... 33

Taylor v. Kentucky, 436 U.S. 478 (1978) ...... 27

Townsend v. Sain, 372 U.S. 293 (1963) ....... 35

Tumey v. Ohio, 273 U.S. 510 (1927) .......... 18

United States v. Agurs, 427 U.S. 97 (1976) .... 21, 36

United States v. Bagley, 105 S.Ct. 3375 (1985) ... 20, 36

United States v. Frady, 456 U.S. 152 (1982) .. 35

iceman iia

vii

United States v. Goodwin, 457 U.S. 368 (1982) ... 28

United States v. Hale, 422 U.S. 171 (1975) .... 24

United States v. Hastings, 461 U.S. 499 (1983) ..

Rae aD Pie Tere A ee 19, 31, 32, 36, 37

United States v. Lane, 106 S.Ct. 725 (1986) ... 31, 32

United States v. Leon, 468 U.S. 897 (1984) .... 30

United States v. Martin Linen Supply Co., 430

SE Be ED ccc cGkycceedbadsencudaneeee 19

United States v. Mechanik, 106 S.Ct. 938 (1986) . 30

United States v. Valenzuela-Bernal, 458 U.S. 858

a a wie 21, 23

Vasquez v. Hillery, 106 S.Ct. 617 (1986) ...... 19, 30

Wainwright v. Greenfield, 106 S.Ct. 634 (1986) ... 25

Wainwright v. Sykes, 433 U.S. 72 (1977) ...... 33, 34

STATUTES

Pe UME, WEE ccccccccccosesecreveseecocece 31

28 U.S.C. $1983... .. eee cece eee eee eee eee 28

ADDITIONAL AUTHORITIES

Friendly, Is Innocence Irrelevant? Collateral At-

tack On Criminal Judgments, 38 U.Chi.L.Rev.

i fon ce eeaceebeebesehene thats 33, 34

Bator, Finality in Criminal Law and Federal

Habeas Corpus for State Prisoners, 76 Harv.L.

Te dudes eens bewsbmet 33, 34

In THE

Supreme Court of the United States

Ocroser Term, 1985

JAMES GREER, Warden,

Menard Correctional Center,

Petitioner,

vs.

CHARLES “CHUCK” MILLEX,

Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

BRIEF FOR PETITIONER

OPINIONS AND JUDGMENTS BELOW

Certiorari was granted to review the en banc decision

of the United States Court of Appeals for the Seventh

Circuit in United States ex rel. Miller v. Greer; 789 F.2d

438 (7th Cir. 1986) (en banc), reprinted as Appendix A

to the petition for a writ of certiorari. The panel deci-

sion, United States ex rel. Miller v. Greer, 772 F.2d 293

(7th Cir. 1985), is reprinted as Appendix B. The opinion

of the district court, United States ex rel. Miller v. Greer,

No. 83-3254 (C.D. Ill.), which is not reported, is reprinted

sidiien

as Appendix C. The opinion of the Illinois Supreme Court

is reported in People v. Miller, 96 Ill. 2d 385, 450 N.E.

2d 322 (1983) and reprinted as Appendix D. The opinion

of the Illinois Appellate Court is reported in People v.

Miller, 104 Ill. App. 3d 57, 482 N.E.2d 650 (4th Dist. 1982)

and reprinted as Appendix E.

STATEMENT OF THE CASE

A. Introduction

Early on the morning of Saturday, February 9, 1980,

Neil Gorsuch was killed by two shotgun blasts to the head

at the Markham Bottoms bridge over Mauvaisterre Creek

in rural Morgan County, Illinois. His body was discovered

later that afternoon, partially submerged in the frozen

creek. (Vol. V, 46-47) Randy Williams, a suspect in the

case, was arrested the next morning while sitting in a

borrowed car at a gas station. (Vol. IV, 28-29) Respon-

dent Miller was with him at the time. He was not then

a suspect, but he was also arrested when a pistol was

found under the front seat of the car. (Vol. IV, 35-36) He

was held for unlawful use of weapons. (Vol. IV, 51)

Once in custody, Randy Williams gave a statement im-

plicating himself, respondent, and Clarence “Butch” Arm-

strong in the murder of Neil Gorsuch. (Vol. III, 18-23;

Vol. IV, 60) All three were charged on February 11, 1980,

with murder, kidnapping, aggravated kidnapping, and armed

robbery. (C. 2-5; Vol. III, 29)

Because of antagonistic defenses, respondent’s case was

severed from the others and separate counsel were ap-

pointed. (Vol. II, 1-3) Randy Williams negotiated an agree-

ment with the prosecution whereby, in exchange for his

testimony at the trials of respondent and Armstrong, he

would plead guilty to kidnapping and the other charges

would be dropped. (J.A. 6-7) Respondent’s jury trial began

on June 2, 1980, and lx»sted five days.

B. The Facts Underlying The Conviction

Randy Williams testified that on Friday night, February

8, 1980, he and his brother Rick borrowed a car from

Rick’s girlfriend, Chris Peterson, and went with Butch

Armstrong to the Regulator, a tavern in Jacksonville, Illi-

nois. (Vol. VI, 220-221) There they encountered Neil Gorsuch,

who came to their table and spoke with them periodical-

ly. (Vol. VI, 222) Gorsuch was from Littleton, Illinois (Vol.

III, 14), and had checked into the Motel 6 in Jacksonville

earlier that day. (Vol. VIII, 47-48) At approximately 11:00

p.m., he called for a cab and was taken to the Regulator.

(Vol. VIII, 114-115) When the Regulator closed at 1:30

a.m. on the morning of February 9, 1980, Gorsuch pur-

chased a 12-pack of Busch beer from the bartender (Vol.

VIII, 74), and left with the Williams brothers and Arm-

strong. (Vol. VI, 223) One of the waitresses testified that

he was quite drunk. (Vol. VIII, 60)

Rick and Randy Williams both testified that the four

men got into the car, and Rick drove to Chris Peterson’s

heuse where he got out. (Vol. VI, 168, 224) Chris Peter-

son testified that it was approximately 1:45 a.m. when

Rick came home. (Vol. VI, 137) Randy took over behind

the wheel, with Neil Gorsuch and Butch Armstrong in

the back seat, and drove around town for a while. (Vol.

VI, 224-225) During this time, Armstrong began beating

Gorsuch. (Vol. VI, 225) Gorsuch said “he didn’t mean to

put his hand on Butch’s leg” and pleaded with Armstrong

to stop hitting him, but the beating continued. (Vol. VI,

495)

Randy drove to his house where all three got out of

the car. (Vol. VI, 226) Armstrong had placed a stocking

cap on Gorsuch’s head and pulled it down around his neck.

He led Gorsuch by the arm into the house (Vol. VI, 227),

and Randy brought in the 12-pack of Busch beer. (Vol.

VI, 234) Gorsuch had defecated in his pants (Vol. VI, 231),

so Armstrong sent him into the bathroom to clean up.

(Vol. VI, 227) While Gorsuch was in the bathroom, Arm-

strong retrieved a shotgun from the closet and propped

it up against the doorway in the dining room. He also

took some shotgun shells from a box on top of the dresser,

and a .32 pistol with one live round from the kitchen

table, and put them in his coat pocket. (Vol. VI, 228-229)

When Gorsuch came out of the bathroom, the stocking

cap was still pulled down over his face. (Vol. VI, 232)

Armstrong berated him for leaving feces on the bathroom

floor, and then struck him in the back of the head with

the butt of the shotgun. Gorsuch fell across a chair in the

kitchen and hit his head on the table. Blood from the re-

sulting wound ran onto the floor. (Vol. VI, 232-233)

All three men left Randy’s house and got into the car.

Gorsuch still had the stocking cap over his head, and Arm-

strong had him lay down on the back seat. Armstrong

got into the front passenger seat carrying the shotgun,

and Randy drove, following Armstrong’s directions. (Vol.

VI, 236-238, 241) At one point, Gorsuch sat up and asked

to be taken to Motel 6, and Armstrong fired a shot from

the .32 pistol into the back seat. (Vol. VI, 241, 496)

They eventually arrived at the Blue Ridge trailer court,

and Armstrong directed Randy to stop at the trailer owned

by Debbie Elliott. (Vol. VI, 242-243; Vol. VIII, 136) Randy

stopped and shut the engine off, and Armstrong went in.

(Vol. VI, 243) He came out a little while later, and shortly

afterward respondent came out. (Vol. VI, 244-245) Several

people who were in the trailer testified at trial that Arm-

strong arrived early on the morning of February 9, spoke

briefly with respondent, and then left with him. (Vol. VI,

7-8; Vol. VIII, 140-141, 158-159, 171) Estimates as to the

a ie ee

olin

time varied from 4:15 a.m. (Vol. VI, 8) to 6:30 a.m. (Vol.

VIII, 182-183), but Teresa McDade was the only one who

looked at a clock. (Vol. VIII, 160) She testified that it

was 5:30 a.m. (Vol. VIII, 158)

With Armstrong in the front seat and respondent in the

back with Gorsuch, Randy drove off, again following Arm-

strong’s directions. (Vol. VI, 245, 247) Respondent asked

Gorsuch if he had any money, and when Gorsuch replied

that he did, respondent hit him and began going through

his pockets. (Vol. VI, 252-253) Armstrong yelled that Gor-

such “was a dead man now’’, and said that “we was all

three goin’ to shoot this man.” (Vol. VI, 254-255)

When they crossed the Markham Bottoms bridge Arm-

strong told Randy to stop. (Vol. VI, 255) As they got out

of the car, Armstrong handed the shotgun to respondent

and then pulled Gorsuch by the arm out of the back seat

of the car. (Vol. VI, 257-259) He led Gorsuch to the rail

of the bridge and pulled off the stocking cap. (Vol. VI,

259) Respondent then shot him in the back of the head.

He fell, draped over the rail. (Vol. VI, 259-261) Respon-

dent handed the shotgun to Armstrong, who reloaded it

and fired, also hitting Gorsuch in the head. (Vol. VI, 260)

Armstrong reloaded again and handed the shotgun to Randy,

saying “Randy, you gotta’ shoot this man, too, or we’ll bury

you with him.” (Vol. VI, 261) Randy fired but missed.

He opened the barrel of the gun and the shell ejected,

hitting him in the chest and rolling under the bridge. (Vol.

VI, 263) Armstrong threatened him again, reloaded, and

handed the gun back to him. (Vol. VI, 262) He fired again,

but was not sure if he hit the body. (Vol. VI, 263-264)

Armstrong then flipped the body by the feet over the rail

. id into the creek. (Vol. VI, 264) Randy picked up three

of the shells—the one that rolled under the bridge was

left behind—and handed them to Armstrong. (Vol. VI, 264-

265) They got back into the car and headed towards town.

Along the way, respondent read aloud Gorsuch’s name and

afm

home town from his driver’s license, and then threw the

license, the billfold, and the shotgun shells out the win-

dow. (Vol. VI, 265-267)

Randy drove back to his house and put the shotgun in

the living room. Then he took Armstrong home and dropped

him off. (Vol. VI, 268) From there, he drove with respon-

dent to his mother’s restaurant, Dottie’s Cafe. (Vol. VI,

269) Mrs. Williams testified that they arrived at approxi-

mately 6:15 a.m., drank coffee, and ate breakfast. (Vol. VI,

117-118) Randy drove respondent back to Debbie Elliott’s

trailer, and then returned to his mother’s cafe. (Vol. VI,

271)

The body was discovered later that afternoon, at about

2:00 p.m. (Vol. V, 46-47) The Sheriff's Department was

called (Vol. V, 55), and the coroner and deputy coroner

arrived. (Vol. V, 62, 74-75) A Motel 6 matchbook and a

key to room 80 were found near the body, and a .12 gauge

shotgun shell was found under the bridge. (Vol. V, 66,

105, 107; Vol. VI, 18) There was a large amount of blood

on and under the bridge. (Vol. V, 63) The body was taken

to Passavant Hospital, and from there to Springfield

Memorial Hospital, where an autopsy was performed two

days later, on Monday, February 11, 1980. (Vol. V, 64,

79, 139) The time of death could not be determined be-

cause no one had taken a core temperature of the body

at the scene. (Vol. V, 139-140) The cause of death was

determined to be either of two contact or near-contact

gunshot wounds to the head. (Vol. V, 150-152)

After he left his mother’s cafe the second time, Randy

Williams went to Bahan’s, a tavern in Jacksonville. He

was joined there that afternoon by respondent and Arm-

strong. (Vol. VI, 271-272) The three of them went to

Randy’s house to straighten up and wipe the blood stain

from the dining room floor, after which they returned to

Bahan’s. (Vol. VI, 272-275) Armstrong went home a short

time later. (Vol. VI, 276)

allen

Rick Williams, his girlfriend Chris Peterson, and his

mother and father came into Bahan’s that afternoon, and

went with Randy and respondent to Andy’s, another tavern,

for supper. (Vol. VI, 138, 169-170, 276-277) On the way

over, Randy told Rick that he was “‘in big trouble’”’ and

needed to talk to him. (Vol. VI, 277) Rick, Randy, respon-

dent, and Chris Peterson left Andy’s and went to Randy’s

house. (Vol. VI, 170, 278) Rick and Randy stepped into

the bedroom, and respondent followed them in. (Vol. VI,

171, 279) Chris Peterson remained in the dining room.

(Vol. VI, 140-141) Randy told his brother that he, Arm-

strong, and respondent had killed the man they left the

Regulator with the night before. (Vol. VI, 279-280) Rick

and Randy both testified that respondent also said they

had killed the man. (Vol. VI, 173, 280) Respondent added

that Rick “better be quiet about it.” (Vol. VI, 174) Randy

suggested that if any of them were asked by the police

about the incident, they should say that they left Gor-

such at the Regulator. (Vol. VI, 173)

Respondent left with Randy Williams in Chris Peter-

son’s car, and they went to Harold’s Club, another tavern.

(Vol. VI, 280) The next morning, Sunday, February 10, 1980,

they were arrested together at the Derby gas station at

approximately 5:00 a.m. (Vol. IV, 44; Vol. VI, 281-282)

A .32 pistol was found on the floor of the car at the

time of the arrest. (Vol. VIII, 106-107) Randy Williams

made a statement within hours of his arrest implicating

himself, respondent, and Armstrong. (Vol. IV, 60-61) Based

on the information obtained from Randy, Sheriff's Deputies

recovered a spent .32 caliber slug, a blood-stained piece

of paper, and hair samples from the back seat of Chris

Peterson’s car (Vol. V, 134-135; Vol. VIII, 6-8); a blood-

stained Busch beer 12-pack container from Randy’s living

room and a .12 gauge shotgun and some live shells from

his bedroom (Vol. VI, 59; Vol. VII, 8; Vol. VIII, 6, 8-9);

and three spent .12 gauge shells and Neil Gorsuch’s driver’s

license from the roadside about two miles from the Mark-

ham Bottoms bridge. (Vol. VIII, 11, 16) The .32 slug was

found to have been fired from a gun having the same class

characteristics as the pistol taken during the arrest, and

the spent shelis recovered from under the bridge and

along the roadway were found to have been fired from

the shotgun seized in Randy’s bedroom. (Vol. VI, 70-73,

76-85) The hair sample taken from the car was determined

to be consistent with standards taken from Neil Gorsuch

(Vol. VI, 40-42), and the blood on the paper and the beer

container was the same type as Gorsuch’s, Type O. (Vol.

VI, 46-47)

Respondent testified on his own behalf, and stated that

when Butch Armstrong picked him up at Debbie Elliott’s

trailer, Neil Gorsuch was already dead. According to

respondent, Armstrong told him he was in trouble and

needed his advice. (J.A. 9) They left the trailer and got

into the car with Randy Williams, and while they were

driving around, Armstrong said that he and Randy had

killed a man they picked up at the Regulator. (J.A. 10-11)

Respondent asked why they killed him, and Armstrong

said they had beaten him up and were afraid he would

go to the police. (J.A. 13)

They drove to Randy’s house, where Randy cleaned up

the bathroom and a bloodstain on the dining room floor.

(J.A. 11-12) Respondent asked what they had used to kill

the man, and Randy Williams showed him a pair of “num-

chucks”—two wooden sticks linked at the ends with a

cord. (J.A. 13-14) Since Randy’s brother Rick was with

them when they left the Regulator, Armstrong said that

Rick should be told about the murder and warned to deny

ever being in the company of the victim. (J.A. 14)

They got in the car and drove Butch Armstrong home.

On the way, Armstrong asked respondent not to say any-

thing about the murder to anyone, and respondent prom-

ised that he would not. (J.A. 15) After dropping Arm-

-_..

strong off, Randy and respondent drove to Dottie’s Cafe

for breakfast. (J.A. 16) From there, Randy drove respon-

dent back to the trailer court. (J.A. 17)

Later that evening, respondent was with Rick and Randy

Williams, their parents, and Chris Peterson at Bahan’s,

and from there they all walked over to Andy’s. (J.A. 22-

23) Respondent left Andy’s with Rick, Randy, and Chris,

and went to Randy’s house. (J.A. 24) Rick and Randy left

respondent and Chris in the dining room, and went into

the bedroom to talk privately. Respondent joined them

a few minutes later. Randy was telling Rick about the

murder of Neil Gorsuch. Respondent said nothing. (J.A.

25) When they left the bedroom, Randy gave a demonstra-

tion of the use of numchucks. (J.A. 26) Afterwards, respon-

dent and Randy went to Harold’s Club, and from there

to a party at a friend’s house. (J.A. 26-27) They ended

up at the Derby gas station, where they were both ar-

rested. (J.A. 29)

The cross-examination of respondent began as follows:

Q. Mr. Miller, how old are you?

A. 23.

Q. Why didn’t you tell this story to anybody when

you got arrested?

Mr. LEFFERS: Objection, Your Honor. May we ap-

proach the bench?

THE Court: You may.

(Whereupon the following colloquy ensued out of the

hearing of the jury:

Mr. LEFFERS: Your Honor, I think this is an infringe-

ment of his exercise of his right to remain silent. At

this point in time, I will ask for a mistrial—

THe Court: What do you say, Mr. Parkinson?

Mr. PARKINSON: Well, he has taken the stand and

he is open to cross examination extensively. He is

entitled to be questioned by the State as to why he

otttin

didn’t talk to anybody about it at the time. It goes

to his credibility and I don’t think it’s an improper

question.

THE Court: Have you got a case that says it’s im-

proper?

Mr. LEFFERS: No, Your Honor. I didn’t think Mr.

Parkinson would ask that question, quite frankly.

THE Court: I will deny your mistrial, your motion

for mistrial, but I will sustain your objection. The

jury will be instructed.

Mr. LEFFERS: And that Mr. Parkinson desist.

THE Court: I will do some checking during the

time he is on the witness stand on Cross Examina-

tion and if I find where he can, I will let him ask

the question.)

The objection will be sustained and the jury will be

instructed to ignore that last question, for the time

being.

You may continue, Mr. Parkinson.

(J.A. 31-32) At a later sidebar conference, the trial court

indicated that it had found authority prohibiting that line

of questioning (J.A. 43), and the prosecutor did not there-

after pursue it, or argue the matter to the jury in clos-

ing. At the end of the case, the jury was instructed to

“disregard questions . . . to which objections were sus-

tained.” (J.A. 47)

The jury deliberated for six hours. (C. 12) Two hours

into their deliberations, they sent a note to the trial court

asking for the testimony of the witnesses establishing the

time of respondent’s arrival and departure from Debbie

Elliott’s trailer, and placing Armstrong at Bahan’s on the

afternoon of February 9, 1980. Counsel were consulted,

and it was agreed that these questions should not be

answered. (Vol. VII, 231) Verdicts were returned finding

respondent guilty of murder, kidnapping, aggravated kid-

napping, and robbery. (Vol. VII, 232)

= =

C. The Post-Trial Proceeding

The State sought the death penalty, and a hearing was

convened before the same jury that had determined re-

spondent’s guilt. (Vol. X, 3) At the conclusion of the hear-

ing, the jury recommended imprisonment. (Vol. X, 81)

At the hearing on the post-trial motion, respondent

argued that he was entitled to a new trial for several

reasons, one being that the prosecutor’s cross-examination

violated the rule of Doyle v. Ohio, 426 U.S. 610 (1976).

(Vol. XI, 4-6) The trial court denied the motion, ruling

on the Doyle issue that “I don’t think it was error for

the State to ask the question that was asked. The defen-

dant’s attorney immediately objected; the objection was

sustained and maybe even erroneously, now, so that will

be denied.” (Vol. XI, 15) Respondent was sentenced to

concurrent terms of eighty years for murder, thirty years

for aggravated kidnapping, and seven years for robbery.

(Vol. XI, 42) The kidnapping conviction was vacated. (Vol.

XI, 16)

D. Direct And Collateral Review

The Illinois Appellate Court reversed respondent’s con-

victions and remanded for a new trial, finding that the

prosecutor’s cross-examination violated the rule of Doyle.

Applying Chapman v. California, 386 U.S. 18 (1967), the

appellate court was unable to find the error harmless be-

yond a reasonable doubt because it characterized the trial

as “essentially a credibility contest’’ between respondent

and Randy Williams, and the reference to respondent’s

post-arrest silence ‘“‘may have irreparably prejudiced him

in the eyes of the jury.” (App. to Pet. for Cert. at E-7)

The State sought review in the Illinois Supreme Court,

which reversed the appellate court, with one judge dis-

senting. Initially, the court rejected the State’s argument

that Doyle was inapplicable because the record did not

reflect that respondent had been informed upon arrest of

~ *

his right to remain silent. It found that a police report

contained in the common law record (C. 556) showed re-

spondent was informed of his rights at the time of his

arrest on the murder charge. (App. to Pet. for Cert. at

D-8-9) On the harmless error question, the court deter-

mined that the State had satisfied its burden under Chap-

man since the error was a single, isolated incident dur-

ing a five-day trial and the evidence was sufficient to sup-

port the verdict. (App. to Pet. for Cert. at D-10-11)

Respondent then petitioned for federal habeas corpus

relief. After reviewing the record and applying the Chap-

man standard, the district court found the error harmless

beyond a reasonable doubt (App. to Pet. for Cert. at C-4),

but a panel of the Court of Appeals, in a split decision,

disagreed. It held that for an error to be harmless under

Chapman, the evidence of guilt must be overwhelming.

(App. to Pet. for Cert. at B-7) The majority of the panel

found that the evidence did not meet this standard be-

cause Randy Williams’ testimony on the critical issue—

whether he and Armstrong picked up respondent at the

trailer court before or after Gorsuch was killed—was un-

corroborated. (App. to Pet. for Cert. at B-8-9)

En banc rehearing was granted to consider whether

Chapman is the appropriate standard of review for vio-

lations of Doyle. Eight members of the Court of Appeals

agreed that it was, and five agreed that the error in this

case was not harmless beyond a reasonable doubt. Chief

Judge Cummings, with Judges Wood and Coffey, dissented,

stating their agreement with the majority of the Illinois

Supreme Court. (App. to Pet. for Cert. at A-17-18) Judge

Easterbrook found no fault with the majority’s conclusion

that the error here was not harmless if judged by the

Chapman standard, but dissented on the ground that

Chapman should not apply to violations of Doyle, par-

ticularly on collateral review. (App. to Pet. for Cert. at

A-19-35) Petitioner Greer sought a writ of certiorari, which

this Court granted on December 1, 1986.

- =

SUMMARY OF ARGUMENT

I. Doyle v. Ohio, 426 U.S. 610 (1976) holds that when

a criminal defendant testifies on his own behalf at trial,

the prosecution may not use his silence at the time of

arrest and after receipt of Miranda warnings for impeach-

ment purposes. Violations of Doyle are universally re-

viewed by applying Chapman v. California, 386 U.S. 18

(1967), the most stringent harmless error standard, but

no court has ever explained why the Chapman standard

is necessarily the correct one. Doyle stems from the Due

Process Clause, and claims of a denial of due process are

subject to a general requirement that the defendant dem-

onstrate actual prejudice.

A. Chapman deals solely with errors affecting specific

constitutional provisions, and holds that while some errors

of this nature can never be harmless, many are not suf-

ficiently important to justify reversal in every case. In

the first category are errors affecting rights, such as the

right to trial before an impartial tribunal, which are neces-

sary to the integrity of the factfinding process. In the sec-

ond category are errors affecting rights, such as the right

to remain silent, which do not necessarily disable the fact-

finding process from achieving its goal of accurate adjudi-

cation. A third category of constitutional error, not dealt

with in Chapman, involves claims based on a fact or a

set of facts which do not implicate specific constitutional

provisions, but which are said to result in a denial of funda-

mental fairness in violation of the Due Process Clause.

Some claims of this type involve intolerably reprehensi-

ble conduct on the part of governmental officials. Others

involve circumstances which give rise to an unacceptable

risk of inaccurate adjudication. No prejudice need be

shown to justify reversal in cases of this type. In most

cases arising solely under the Due Process Clause, how-

ever, an error will not be found to rise to the level of

constitutional error unless actual prejudice is shown. Ac-

tual prejudice is incorporated into the definition of an

error which violates due process. This analysis does not

involve application of any harmless error standard of re-

view. To demonstrate prejudice, a defendant must show

that there is a reasonable probability that, absent the error,

the result of the proceeding would have been different.

B. The decision in Doyle stems from the Due Process

Clause, not the Fifth Amendment, and rests on two prem-

ises. The first is that silence at the time of arrest is not

probative of the veracity of exculpatory trial testimony.

This rationale is not of constitutional dimension, and has

been abandoned in subsequent cases. The second premise

is that Miranda warnings implicitly promise the arrestee

that silence will carry no penalty, and it is unfair to so

induce silence at the time of arrest and then use it for

impeachment purposes at trial. The Court has explicitly

held that this rationale is not grounded in the Fifth Amend-

ment.

C. Chapman does not apply to violations of Doyle be-

cause Doyle is a due process case, not a Fifth Amend-

ment case. Furthermore, respondent should be required

to show actual prejudice because Doyle does not involve

intolerably reprehensible conduct, nor does it inherently

undermine the factfinding process.

II. Chapman should not apply at all in federal habeas

corpus proceedings because in balancing the interests

which compete with the need to enforce constitutional

rights strictly, Chapman does not take into account the

unique and heavy costs associated with collateral review.

Since the sole concern of the writ of habeas corpus is the

fundamental fairness of the judgment by which the State

seeks to maintain an individual in custody, habeas corpus

applicants should be required to show actual prejudice re-

gardless of the nature of the claim.

A. The rights afforded by the Constitution serve not

only the interests in protecting the innocent against a

miscarriage of justice, but also the broader societal inter-

ests in individual autonomy and personal privacy. Chap-

man serves to protect the full spectrum of constitutional

values, as evidenced by the clear distinction between the

standard of harmless error review for constitutional errors

as opposed to nonconstitutional errors. Moreover, Chap-

man balances these values against the limited interests

which compete on direct review with strict enforcement

of constitutional rights.

B. On collateral review, not only do the interests which

always compete with strict enforcement of constitutional

rights take on greater importance, but additional interests

come into play as well. Federal habeas corpus review of

state court judgments raises important questions concern-

ing federalism, comity, and finality. When these factors

are taken into account, the only interest sufficient to out-

weigh them is the interest in protecting the innocent

against an unjust incarceration. Thus, a prerequisite for

habeas corpus relief should be a showing by the applicant

that, had the error complained of not occurred, there is

a reasonable probability that the outcome would have

been different. This standard of review for collateral at-

tacks on state court judgments precludes application of

Chapman.

III. When the appropriate standard of review is ap-

plied to respondent’s claim, it is clear that he is not en-

titled to habeas corpus relief. Crucial to his ability to show

a reasonable probability that the outcome would have

been different had the Doyle error not occurred is his

ability to show that there was a compelling reason for

the jury to disbelieve Randy Williams. Otherwise it can-

not be said that only the Doyle error accounts for the

jury’s choice. The record does not support this assertion.

Williams was never shown to have a grudge against re-

spondent, and although he negotiated a favorable plea

agreement in exchange for his testimony, his accusation

of respondent predated the agreement by more than three

months. He had no reason to falsely accuse respondent

at that time. Moreover, there was considerable corrobora-

tion for Williams’ testimony, and the trial judge’s condi-

tional curative instruction was later supplemented by a

general instruction to disregard questions to which objec-

tions were sustained. ’

ARGUMENT

THE HARMLESS ERROR DOCTRINE OF CHAPMAN v.

CALIFORNIA DOES NOT APPLY TO VIOLATIONS OF

THE RULE OF DOYLE v. OHIO BECAUSE THE RULE

STEMS FROM THE DUE PROCESS CLAUSE, AND CLAIMS

OF A DENIAL OF DUE PROCESS ARE SUBJECT TO A

GE ‘- REQUIREMENT THAT ACTUAL PREJUDICE

BE SHOWN.

The prosecutor’s second question on cross-examination

of respondent was “[wJhy didn’t you tell this story to any-

body when you got arrested?” (J.A. 31) Before respon-

dent could answer, defense counsel raised an objection and

a sidebar conference was held, after which the trial judge

informed the jury that “(the objection will be sustained

and the jury will be instructed to ignore the last ques-

tion, for the time being.” (J.A. 32) Because respondent

had been given the warnings required by Miranda ».

Arizona, 384 U.S. 436 (1966) at the time of his arrest for

the murder of Neil Gorsuch (C. 556), petitioner acknowl-

edges that this effort to impeach respondent with his prior

silence constituted an attempted violation of the rule of

Doyle v. Ohio, 426 U.S. 610 (1976).

In Doyle, this Court held that when a criminal defen-

dant testifies at his trial, the prosecution may not use his

silence at the time of arrest and after receipt of Miranda

warnings to impeach him. The use of post-Miranda warn-

ings silence for impeachment purposes, according to Doyle,

“‘violate[s] the Due Process Clause of the Fourteenth Amend-

ment.” 426 U.S. at 619. Adding that the State of Ohio

had not raised the possibility that the error was harm-

less, the Court reversed. Jd. at 619-620. Since then, every

circuit that has considered whether a violation of the rule

of Doyle requires reversal has assumed that the harmless

error doctrine applies, and has selected the most exact-

ing harmless error rule as the standard of review—that

established by Chapman v. California, 386 U.S. 18 (1967).

(See App. to Pet. for Cert. at A-7) Not one explains why

Chapman necessarily supplies the appropriate standard.

See Phelps v. Duckworth, 772 F.2d 1410, 1421 (7th Cir.

1985) (en banc) (EASTERBROOK, J., concurring).

The decision in Doyle is based on the Due Process

Clause, and, as discussed in Argument I.A, this Court’s

treatment of cases arising under the Due Process Clause

does not involve the application of harmless error stan-

dards of review. Rather, this Court looks to the nature

of the error complained of to determine whether it in-

volves conduct which is so offensive to basic notions of

fairness that it cannot be tolerated in a civilized society,

or poses such a threat to the ability of the factfinding

process to achieve reliable results that it is inherently

prejudicial. If so, the error cannot be found harmless. If

not, then the defendant must show that actual prejudice

resulted in the sense that there is a reasonable probability

that, had the error not occurred, the result of the pro-

ceeding would have been different. Arguments I.B and

C address the points that Doyle is a due process case,

and that because violations of Doyle do not involve gross

unfairness or inherent prejudice respondent should be re-

quired to demonstrate actual prejudice. The Court of Ap-

peals’ application of the stringent Chapman standard was

therefore erroneous.

~A.--The Definition Of Errors Resulting In A Denial Of Due

Process Incorporates A General Requirement That The

Defendant Show Actual Prejudice, Thus Making Chap-

man inapplicable As A Standard Of Review In Due

Process Cases.

If anything is clear from this Court’s decisions on con-

stitutional issues in criminal cases, it is that “‘claims of

constitutional error are not fungible.” Rose v. Lundy, 455

U.S. 509, 543 (1982) (STEVENS, J., concurring in the judg-

ment). The standard of review varies according to the nature

of the claim and the constitutional right which is impli-

cated. Chapman deals solely with errors affecting specific

constitutional provisions,' and it identifies two types: errors

affecting rights which are of such fundamental importance,

either to the integrity of the factfinding process or to

basic notions of fairness in a free society, that no judg-

ment can stand in any case where those rights have been

abridged; and errors affecting rights which are not suffi-

ciently important to justify reversal in every case. As ex-

amples of the first category, Chapman cites Gideon v.

Wainwright, 372 U.S. 335 (1963) (right to counsel), Payne

v. Arkansas, 356 U.S. 560 (1958) (use of coerced confes-

sion), and Tumey v. Ohio, 273 U.S. 510 (1927) (trial before

judge with financial interest in the outcome). 386 U.S. at

1 The specific constitutional provisions contained in the Bill of

Rights are, of course, applicable to the states only through the

Due Process Clause of the Fourteenth Amendment. By drawing

a distinction between errors implicating specific constitutional pro-

visions and those affecting only the riekt to due process, petitioner

does not ‘mean to s t that there should be an artificial distinc-

tion between the ysis of constitutional errors in state cases

as opposed to federal cases. Rather, the distinction is between

errors affecting rights which have their basis in specific constitu-

tional provisions and those which do not.

23, n. 8. To this list, Vasquez v. Hillery, 106 S.Ct. 617

(1986) (racial discrimination in selection of grand jury), and

United States v. Martin Linen Supply Co., 430 U.S. 564

(1977) (directed verdict for prosecution in a criminal jury

trial) have been added.

Chapman places the Fifth Amendment right to remain

silent in the second category. In Chapman itself, the prose-

cutor had asked the jury to infer guilt from th®Mdefen-

dant’s failure to testify and exculpate himself, in viola-

tion of the Fifth Amendment as construed in Griffin v.

California, 380 U.S. 609 (1965); this Court held that such

an error does not require revers2l if the State can prove

beyond a reasonable doubt that it was harmless. 386 US.

at 24. See also United States v. Hastings, 461 U.S. 499

(1983) (comments on defendants’ failure to testify held

harmless beyond a reasonable doubt). The harmless error

standard of Chapman has since been held to apply to a

variety of constitutional errors, all stemming from specific

constitutional provisions. Rose v. Clark, 106 S.Ct. 3101

(1986) (Sixth Amendment right to jury determination of

factual issues); Delaware v. Van Arsdall, 106 S.Ct. 1431

(1986) (Sixth Amendment right to confrontation); Rushen

v. Spain, 464 U.S. 114 (1983) (per curiam) (Sixth Amend-

ment right to be present at trial); Moore v. Illinois, 434

U.S. 220 (1977) (Sixth Amendment right to counsel at post-

indictment identification procedure); Gerstein v. Pugh, 420

U.S. 108 (1975) (arrest in violation of Fourth Amendment);

Milton v. Wainwright, 407 U.S. 371 (1972) (confession ob-

tained in violation of Sixth Amendment right to counsel);

Chambers v. Maroney, 399 U.S. 42 (1970) (evidence ob-

tained in violation of Fourth Amendment); Coleman v.

Alabama, 399 U.S. 1 (1970) (Sixth Amendment right to

counsel at preliminary hearing).

A third type of constitutional error not dealt with in

Chapman involves claims based on a fact or a set of facts

which do not implicate specific constitutional provisions,

~20—

but which are said to result in a denial of fundamental

fairness in violation of the Due Process Clause. Some

errors of this type require reversal regardless of their im-

pact on the process of adjudication because they involve

conduct on the part of government officials so reprehen-

sible that it cannot be tolerated in a civilized society.

Rochin v. California, 342 U.S. 165 (1952).2 Others require

reversal whether or not any identifiable prejudice has

resulted because they give rise to an unacceptable risk

that the adjudication of guilt or innocence was inaccurate.

Estelle v. Williams, 425 U.S. 501 (1976) (accused forced

to trial before a jury while wearing prison garb, found

inherently prejudicial because it deprived him of the pre-

sumption of innocence); Sheppard v. Maxwell, 384 U.S.

333 (1966) (accused tried in a courtroom dominated by the

media, creating a circus atmosphere); Drope v. Missouri,

420 U.S. 162 (1975) (accused tried while mentally incom-

petent).

In most cases arising solely under the Due Process

Clause, however, the defendant must show actual prej-

udice in order to obtain reversal. When errors are alleged

which do not implicate specific constitutional guarantees,

then prejudice must be shown in order to elevate them

to the level of a constitutional violation. Actual prejudice,

then, is incorporated into the definition of errors amount-

ing to a violation of due process. Thus, in United States

v. Bagley, 105 S.Ct. 3375, 3380-3381 (1985), this Court held

that a prosecutor’s breach of his duty under Brady v.

Maryland, 373 U.S. 83 (1963) to turn over discoverable

information in response to a valid request does not vio-

late due process unless the defendant can show that the

information was material in the sense that it gives rise

2 Rochin was actually a case that involved Fourth Amendment

concerns, but the Due Process Clause was invoked as the basis

for reversal because the exclusionary rule had not yet been ap-

plied to the states.

~~ =

to a reasonable probability that the outcome would have

been different. Cf. United States v. Agurs, 427 U.S. 97,

104 (1976) (“. . . implicit in the requirement of material-

ity is a concern that the suppressed evidence might have

affected the outcome of the trial.”). This degree of materi-

ality of the withheld information is an essential component

of a due process claim. The same standard was applied in

United States v. Valenzuela-Bernal, 458 U.S. 858, 874 (1982),

where the Court held that due process is violated by gov-

ernment deportation of witnesses favorable to the defen-

dant only when he can show that their testimony would

give rise to reasonable likelihood that the judgment would

have been different. Similarly, when the police use sug-

gestive identification procedures, the defendant must

show, first, that the procedure was unnecessarily sug-

gestive, Simmons v. United States, 390 U.S. 377, 389

(1968), and second, that there is a reasonable likelihood

that the procedure led to misidentification. Manson v.

Brathwaite, 432 U.S. 98, 113-114 (1977); Neil v. Biggers,

409 U.S. 188, 198-199 (1972). Actual prejudice must also

be shown when the jury has been given an erroneous in-

struction, or no instruction, on a necessary element of the

offense. Henderson v. Kibbe, 481 U.S. 145, 154 (1977);

Cupp v. Naughten, 414 U.S. 141, 146-147 (1973).* Prose-

cutorial misconduct in closing argument, even of the most

egregious sort, does not violate due process absent a

showing of actual prejudice. Darden v. Wainwright, 106

S.Ct. 2464, 2471-2473 (1986); Donnelly v. DeChristoforo,

3 An exception to this rule would be an instruction calling for

the jury to presume a fact which is an essential element of the

offense, in violation of Sandstrom v. Montana, 442 U.S. 510 (1979).

The harmless error doctrine of Chapman applies to violations of

Sandstrom. Rose v. Clark, 106 S.Ct. 3101 (1986). However, Sand-

strom has its roots not only in the due process requirement that

the prosecution prove every element of the offense beyond a rea-

sonable doubt, but also in the Sixth Amendment right to trial by

jury. Clark, 106 S.Ct. at 3113 (BLACKMUN, J., dissenting).

—22—

416 U.S. 637, 642-643 (1974). Recently, in Holbrook v.

Flynn, 106 S.Ct. 1340 (1986), a case in which armed, uni-

formed security guards were stationed behind the defen-

dant during his jury trial, this Court said that

While, in our supervisory capacity, we might express

a preference that officers providing courtroom secu-

rity not be easily identifiable by jurors as guards,

we are much more constrained when reviewing a con-

stitutional challenge to a state court proceeding. All

a federal court may do in such a situation is look at

the scene presented to jurors and determine whether

what they saw was so inherently prejudicial as to

pose an unacceptable threat to defendant’s right to

a fair trial; if the challenged practice is not found in-

herently prejudicial and if the defendant fails to show

actual prejudice, the inquiry is over. Respondent has

failed to carry his burden here.

Id. at 1348 (footnote omitted).

Thus, in the due process cases, the harmless error doc-

trine of Chapman simply does not apply: the circum-

stances either give rise to an error of such fundamental

importance that it cannot be harmless, or the definition

of the error, for constitutional purposes, incorporates a

requirement that the defendant show actual prejudice.

This sort of analysis is not harmless error review, Darden,

106 S.Ct. at 2473, n. 15, and this Court has never squarely

held that Chapman applies to errors implicating only the

Due Process Clause.*

4 The Court did invoke Chapman in Rushen v. Spain, 464 U.S.

at 120, a case involving ex parte communication between the trial

judge and a juror, but it did so without deciding “{wJhether the

error was of constitutional dimension . . .” because the petitioner

conceded that it was. Jd. at 117, n. 2. As Justice Stevens pointed

out, however, the error clearly was not of constitutional dimen-

sion and should have been analyzed as an alleged violation of due

rocess. Jd. at 123-127 (STEVENS, J., concurring in the judgment).

The knowing use of perjured testimony by the prosecution is another

(Footnote continued on following page)

~23—

Another type of constitutional claim, which does not fit

into any of the previously discussed categories, is a claim

of ineffective assistance of counsel. Although such a claim

clearly implicates the Sixth Amendment, Strickland v.

Washington, 466 U.S. 668 (1984) holds that a defendant

raising it must first overcome a “strong presumption” that

counsel’s performance was professionally competent, id.

at 689, and then show “a reasonable probability . . . suf-

ficient to undermine confidence in the outcome” that ab-

sent the errors the result of the proceeding would have

been different. Jd. at 694. This formulation of the test for

prejudice was drawn from the due process context: the

Court cited United States v. Agurs, supra, and United

States v. Valenzuela-Bernal, supra. Id. It was found to

be the appropriate test in ineffective assistance cases be-

cause the purpose of the Sixth Amendment guarantee of

effective assistance of counsel, like the purpose of the Due

Process Clause, is to ensure a fair trial resulting in a

reliable, accurate adjudication of guilt or innocence. After

noting that “(t]he Constitution guarantees a fair trial

through the Due Process Clauses, but it defines the basic

elements of a fair trial largely through the several pro-

visions of the Sixth Amendment”, the court went on to

say that “(t]he Sixth Amendment recognizes the right to

the assistance of counsel because it envisions counsel’s

playing a role that is critical to the ability of the adver-

sarial system to produce just results.” 466 U.S. at 685.

The appropriate test for actual prejudice in due process

4 continued

example of conduct implicating only the Due Process Clause, Giglio

v. United States, 405 U.S. 150 (1972); Napue v. Illinois, 360 U.S.

264 (1959), but the standard of review is unclear. In Bagley, supra,

Justice Blackmun speaking for himself and Justice O’Connor, indi-

cated that the language of Giglio and Napue parallels that of

Chapman. 105 S.Ct. at 3382, n. 9. However, in Smith v. Phillips,

455 U.S. 209 (1982), a majority of the Court placed perjury claims

in the category of due ory cases requiring the defendant to

show actual prejudice. /d. at 220, n. 10.

—24—

cases, then, is the one articulated in Strickland and taken

from the due process context. It is whether the defen-

dant can show “that there is a reasonable probability that,

but for [the errors complained of], the result of the pro-

ceeding would have been different. A reasonable probabil-

ity is a probability sufficient to undermine confidence in

the outcome.” Jd. at 694.

In analyzing claims of constitutional error, this Court

uses a graduated standard of review, and the selection

of a standard depends on the nature of the right involved.

The remedy must be tailored to the injury suffered. Thus,

it becomes important to identify the nature of the right

protected by the rule of Doyle.

B. Since Doyle Does Not Involve Fifth Amendment Con-

cerns, It Should Be Treated As A Due Process Case.

The decision in Doyle rests on two premises. The first

is that silence at the time of arrest is not necessarily in-

consistent with exculpatory testimony at trial, so the use

of silence for impeachment purposes has dubious probative

value. Silence is “insolubly ambiguous.” 426 U.S. at 617.

This reasoning comes from United States v. Hale, 422

U.S. 171 (1975), decided the year before Doyle, which

holds that post-arrest silence may not be used for im-

peachment purposes. However, Hale was decided in the

exercise of this Court’s supervisory powers over the lower

federal courts, not on constitutional grounds, and the fact

that Miranda warnings were given at the time of arrest

was cited as only one of the factors contributing to the

conclusion that silence is too ambiguous to be probative.

422 U.S. at 177, 181. Moreover, subsequent cases abandon

this strand of Doyle’s rationale. In Jenkins v. Anderson,

447 U.S. 231 (1980), the Court held that the use of pre-

arrest silence for impeachment purposes was permissible

because it was probative of the veracity of the defendant’s

trial testimony, and it did not violate Doyle because there

- =

had been no Miranda warnings. 447 U.S. at 238-240. The

holding in Fletcher v. Weir, 455 U.S. 603 (1982) (per

curiam), that use of post-arrest silence is permissible when

there have been no Miranda warnings, follows from

Jenkins and similarly abandons the first premise of Doyle.

The second premise underlying Doyle is that by inform-

ing the arrestee that anything he says can be used against

him, the Miranda warnings implicitly assure him that

“silence will carry no penalty”, and thus it would be un-

fair to so induce silence at the time of arrest and then

use it to impeach the testimony given at trial. 426 U.S.

at 618. In the first place, as the post-Doyle cases make

clear, this rationale is not rooted in the Fifth Amendment.

Jenkins reaffirms the principle of Raffel v. United States,

271 U.S. 494 (1926) that “the Fifth Amendment is not vio-

lated when a defendant who testifies in his own defense

is impeached with his prior silence” 447 U.S. at 235, even

if the prior silence was explicitly based on invocation of

the privilege. Jd. at 236, n. 2. Fletcher extends that prin-

ciple to the use of post-arrest silence. Anderson v.

Charles, 447 U.S. 404 (1980) (per curiam) holds that volun-

tary inconsistent post-arrest statements made after receipt

of Miranda warnings may be used because the defendant

had not been induced to remain silent. South Dakota v.

Neville, 459 U.S. 553 (1983) holds that post-arrest refusal

to submit to a blood-alcohol test, after receipt of Miranda

warnings, may be used against the defendant because the

implicit assurance that silence (or, in this case, inaction)

will carry no penalty was explicitly retracted, suggesting

that the rule of Doyle would cease to operate if the

Miranda warnings were changed. Finally, in Wainwright

v. Greenfield, 106 S.Ct. 634 (1986), while holding that post-

Miranda warning silence may not be used as substantive

evidence on the issue of sanity, the Court nevertheless

emphasized that Doyle is a due process case with no Fifth

Amendment lineage. Jd. at 638-639 and n. 7, 640 and n. 10.

—26—

Further, the unfairness condemned in Doyle has less to

do with misleading the jury to the prejudice of the defen-

dant than it does with misconduct by State officials. While

this Court has expressed the belief, in Hale and Doyle,

that prior silence is not necessarily inconsistent with ex-

culpatory testimony, and hence not probative of veracity,

it has recognized that the states are free to reach a dif-

ferent conclusion. Fletcher, 455 U.S. at 605-607; Jenkins,

447 U.S. at 239, n.5. Thus, Doyle bars the use of what

may well be probative evidence concerning the veracity

of a defendant’s testimony, and it does so only because

the sense of fair play is offended when the prosecutor

reneges in the courtroom on a promise implicitly made

at the station house. However, prosecutorial misconduct

which does not implicate specific provisions of the Bill of

Rights is generally regarded as a violation of due process

only when the defendant demonstrates actual prejudice.

‘(T]he touchstone of due process analysis in cases of al-

leged prosecutorial misconduct is the fairness of the trial,

not the culpability of the prosecutor.” Smith v. Phillips,

455 U.S. 209, 219 (1982). Thus, in Donnelly v. DeChristo-

foro, supra, this Court said that

[wJhen specific guarantees of the Bill of Rights are

involved, this Court has taken special care to assure

that prosecutorial misconduct in no way impermissibly

infringes them. But here the claim is only that a prose-

cutor’s remark about respondent’s expectations at

trial by itself so infected the trial with unfairness

as to make the resulting conviction a denial of due

process. We do not believe that examination of the

entire proceedings in this case supports that conten-

tion.

416 U.S. at 643. Even in cases where the misconduct was

egregious in the extreme, the same analysis applies.

Darden v. Wainwright, 106 S.Ct. at 2471-2473.

The failure to abide by a sense of fair play does not

violate the Due Process Clause unless the conduct results

~27—

in actual prejudice, Donnelly v. DeChristoforo; or is in-

herently prejudicial, Estelle v. Williams; or is so outrage-

ous that it “shocks the sensibilities of civilized society.”

Moran v. Burbine, 106 S.Ct. 1135, 1148 (1986). The ques-

tion thus becomes, into which of these categories does

Doyle fit.

C. Since Violations Of Doyle Do Not Render The Factfind-

ing Process Inherently Unreliable, Respondent Should

Be Required To Show Actual Prejudice.

Under the rubric of the Due Process Clause, this Court

has declared that certain practices are so inherently prej-

udicial to the fairness of a trial that a search for identifi-

able prejudice on a case-by-case basis is not required in

order to justify reversal. It has done so because those

practices disable the adversarial system from performing

its function of achieving reliable adjudications of guilt or

innocence to such a degree that the record produced can-

not be trusted as presenting an accurate reflection of the

true facts. Thus, actual prejudice need not be shown where

the jury convicts a defendant who has been stripped of

the presumption of innocence, because the verdict cannot

be counted on as resulting from consideration of the evi-

dence adduced at trial, as opposed to official suspicion or

other irrelevant matter. In such cases, appellate review

is not an adequate remedy. Taylor v. Kentucky, 436 U.S.

478, 485 (1978); Estelle v. Williams, 425 U.S. at 504-505.

The same is true of a verdict following a trial dominated

by a mob. Sheppard v. Maxwell, supra. Similarly, no

reliance can be placed on a verdict following a trial at

which the defendant was mentally incompetent because

under such circumstances he is unable to participate in

the process, depriving it of its adversarial character.

Drope v. Missouri, 420 U.S. at 171-172. In the sense that

these cases speak of due process, it is an innocence-pro-

tecting rule of procedure. The breakdown in the system

gives rise to an unacceptable risk that the adjudication

—28—

of guilt or innocence is not accurate. Doyle clearly does

not belong in this class because it has nothing to do with

the process of adjudicating guilt or innocence and oper-

ates, as Fletcher and Jenkins establish, to exclude what

the states would be free to say, had there been no Miranda

warnings, is probative evidence of guilt.

This Court has also invoked the Due Process Clause

substantively, to prohibit practices which, although not

undermining the process of adjudication, are inimical to

the most basic concepts of fairness. Rochin v. California,

supra. In this regard, the Court has condemned vindic-

tive prosecution and sentencing in retaliation for the exer-

cise of statutory or constitutional rights. United States

v. Goodwin, 457 U.S. 368, 372-374 (1982). The unfairness

condemned in Doyle, however, does not concern punish-

ing a defendant for exercising his right to remain silent.

Jenkins, 447 U.S. at 236-238. Moreover, the substantive

use of the Due Process Clause has its limits, as the Court

recognized in Rochin. 342 U.S. at 170-172. | or example,

Justice Powell, concurring in the result in Parratt v.

Taylor, 451 U.S. 527 (1981), criticized the majority’s rul-

ing that negligent conduct by state officials was action-

able under 28 U.S.C. §1983 as a violation of due process,

stating his view that the substantive reach of the Due

Process Clause does not go beyond “intentional and mali-

cious” behavior. Jd. at 552-553. This became the view of

the majority in Daniels v. Williams, 106 S.Ct. 662, 664-665

(1986), which partially overruled Parratt.

In no sense can a violation of Doyle be considered the

sort of malicious conduct which is so reprehensible that

no civilized society can tolerate it. Indeed, every circuit,

by applying a harmless error standard of review to Doyle

violations, has said as much. While a broken promise may

be cause for concern, it does not necessarily follow that

fundamental fairness has been denied. Moran v. Burbine,

106 S.Ct. at 1147-1148 (holding that deliberate police de-

—~29—

ception of a suspect’s lawyer as to whether they would

interrogate her client in her absence did not violate due

process).

Accordingly, the appropriate standard of review for

violations of the rule of Doyle is that used by this Court

in the majority of cases arising under the Due Process

Clause. Since the rule of Doyle is not aimed at unacceptably

reprehensible behavior and does not protect the innocent,

respondent should be required to show actual prejudice.

THE HARMLESS ERROR RULE OF CHAPMAN vo. CAL-

IFORNIA SHOULD NOT BE APPLIED IN FEDERAL

HABEAS CORPUS PROCEEDINGS, BECAUSE THE IN-

TERESTS WHICH COMPETE WITH THE POLICY OF

STRICT ENFORCEMENT OF CONSTITUTIONAL RIGHTS

ON COLLATERAL REVIEW OUTWEIGH THE NEED

FOR STRICT ENFORCEMENT.

By its holding in Chapman v. California, 386 U.S. 18

(1967) that even some constitutional errors may be harm-

less, this Court acknowledged that constitutional rights

must sometimes give way to competing interests. The

strict standard of review established in Chapman serves

the dual purpose of accommodating those interests without

diluting the importance to society of constitutional pro-

tections. However, since Chapman was decided on direct

review, it does not take into account the unique problems

associated with collateral attacks in federal court on state

court convictions. When those problems are added to the

balance, a recalibration of the competing interests is

required.

The central concern of the writ of habeas corpus is the

fundamental fairness of an individual judgment by which

the State seeks to maintain an individual prisoner in cus-

tody, and not the full spectrum of societal values embodied

in the Constitution and served by the Chapman standard.

—30—

See Strickland v. Washington, 466 U.S. 668, 697 (1984).

The appropriate standard for collateral review of any con-

stitutional claim which might be found harmless on direct

review, then, is whether the habeas applicant can show

a reasonable likelihood that, had the error not occurred,

the jury would have entertained a reasonable doubt as

to his guilt. Strickland, 466 U.S. at 689. This standard

properly balances the governmental interests in finality

of judgments and harmonious federal-state relations with

the applicant’s interest in release from a fundamentally

unjust incarceration. Thus, even assuming that a viola-

tion of the rule of Doyle v. Ohio, 426 U.S. 610 (1976) is

a constitutional error which would be subject to harmless

error review under Chapman on direct appeal, respon-

dent should be required in this habeas corpus proceed-

ing to show actual prejudice sufficient to undermine con-

fidence in the outcome.

A. The Chapman Standard Reflects A Concern Not Just For

The Fairness And Accuracy Of The Adjudication Of

Guilt Or Innocence, But For The Broader Values Em-

bodied In The Constitution As Well.

The rights afforded by the Constitution to those accused

of crimes serve values that go beyond protecting the in-

nocent against a miscarriage of justice. They also serve

the broader societal interests in a humane system of crim-

inal justice, and in individual autonomy and personal

privacy. Vasquez v. Hillery, 106 S.Ct. 617, 622 (1986);

Stanford v. Texas, 379 U.S. 476, 481-485 (1965). Vindica-

tion of those values, however, does not come without a

price. The guilty may escape punishment, probative evi-

dence may be kept from the trier of fact, and the reversal

of convictions requires expenditure of the limited resources

of the criminal justice system on affording retrials when

they might be better spent on affording first trials to

others. United States v. Mechanik, 106 S.Ct. 938, 942

(1986); United States v. Leon, 468 U.S. 897, 907-908 (1984);

-_ =

Bivens v. Six Unknown Named Agents, 403 U.S. 388,

411-424 (1971) (BurGER, C.J., dissenting). The remedy for

a constitutional violation is frequently a windfall for the

defendant which is disproportionate to the harm done to

him, but because of the surpassing importance of the

values reflected by certain rights, they are strictly en-

forced. This policy finds its expression in Chapman, which

requires the prosecution, as the beneficiary of a constitu-

tional error, to prove it harmless beyond a reasonable

doubt in order to preserve the conviction on direct re-

view.

That this standard was fashioned to serve the full spec-

trum of constitutional values, and not just the accuracy

of the determination of guilt, can be seen in the differ-

ence between harmless error review for constitutional

errors on the one hand and nonconstitutional errors on

the other. Errors of constitutional dimension are harmless

only if the prosecution can prove them harmless beyond

a reasonable doubt. Chapman, 386 U.S. at 24. The burden

of persuasion is on the beneficiary of the error, and the

proper focus of the inquiry is on whether there is any

possibility that the error contributed to the verdict. Jd.;

Schneble v. Florida, 405 U.S. 427, 432 (1972); Harrington

v. California, 395 U.S. 250, 254 (1969). Overwhelming evi-

dence of guilt, untainted by the error, is the minimum

requirement to prove harmlessness. Delaware v. Van

Arsdall, 106 S.Ct. 1431, 1488 (1986); United States v. Hast-

ings, 461 U.S. 499, 510-511 (1983). This burden is “con-

siderably more onerous than the standard for nonconstitu-

tional errors adopted in Kotteakos v. United States, 328

U.S. 750 (1946).” United States v. Lane, 106 S.Ct. 725,

730, n.9 (1986). The rule of Kotteakos, codified in 28

U.S.C. §2111, is that judgments may not be reversed

based on errors which do not affect the substantial rights

of the parties. 328 U.S. at 765. Reversal is not warranted

unless “actual prejudice” is shown. Lane, 106 S.Ct. at 732.

—32—

The difference between these two standards cannot be

explained in terms of the prejudicial effect on the deter-

mination of guilt caused by constitutional errors as op-

posed to nonconstitutional errors. Indeed, almost 20 years

after Chapman was decided, six circuits were applying

a per se rule of reversal for the nonconstitutional error

of misjoinder because misjoinder was deemed inherently

prejudicial. Lane, 106 S.Ct. at 727, n. 1. Thus, the only

consideration which distinguishes Chapman from Kotteakos

is heightened sensitivity where the broader societal values

embodied in the Constitution are concerned.

B. Since The Central Concern Of The Writ Of Habeas

Corpus Is The Fundamental Fairness Of The Trial, And

Because Collateral Review Entails Significant Costs Not

Associated With Direct Review, Chapman Is Not An Ap-

propriate Standard To Apply In Habeas Corpus Pro-

ceedings.

The balance struck by the Court in Chapman in formu-

lating the standard for harmless error review of constitu-

tional claims takes account of the competing interests

present on direct review. Delaware v. Van Arsdall, 106

S.Ct. at 1436-1437; United States v. Hastings, 461 U.S.

at 508-509. Collateral review, however, is another matter.

Once the process of trial and direct appeal has run its

course, the interests which compete with constitutional

values take on greater importance. For example, the Fourth

Amendment is enforced at trial by application of the ex-

clusionary rule, Mapp v. Ohio, 367 U.S. 643 (1961), and

on direct appeal by application of Chapman. Franks v.

Delaware, 437 U.S. 154, 162 (1978). It is not enferced on

collateral review because the beneficial effects of enforce-

ment at that stage are marginal, and the costs too high.

Stone v. Powell, 428 U.S. 465, 489-496 (1976). On collateral

review, the only concern sufficient to outweigh the costs

of enforcing the Fourth Amendment is the concern for

an adequate corrective process in the state courts for the

litigation of Fourth Amendment claims. /d. at 494.

= Ss

In addition, significant interests come into play on col-

lateral review which are not present on direct review. At

least since Brown v. Allen, 344 U.S. 443 (1953), the Habeas

Corpus Act has been construed as conferring federal juris-

diction to review the final judgment of a state court of

competent jurisdiction which has determined the merits

of a constitutional claim after a full and fair hearing. This

power exists even with respect to claims that were pro-

cedurally defaulted in state court, or for which state court

remedies are still available. Fay v. Noia, 372 U.S. 391,

417-420, 424-427 (1963). However, the power of a single

federal judge to void a conviction entered in state court,

after rigorous scrutiny at every level of the state judi-

ciary, raises important questions concerning federalism,

comity, and finality. Rose v. Lundy, 455 U.S. 509, 518-520

(1982); Sumner v. Mata, 449 U.S. 589, 543-546, 550 (1981);

Wainwright v. Sykes, 433 U.S. 72 (1977). See also Friendly,

Is Innocence Irrelevant? Collateral Attack On Criminal

Judgments, 38 U.Chi.L.Rev. 142, 146-151 (1970); Bator,

Finality in Criminal Law and Federal Habeas Corpus

for State Prisoners, 76 Harv.L.Rev. 441, 444-462 (1963).

Addressing these concerns has been a process of balanc-

ing competing interests. For instance, while this Court

has never retreated from the pronouncement in Fay that

habeas jurisdiction extends to all constitutional claims

regardless of exhaustion or procedural default problems,

Francis v. Henderson, 425 U.S. 536, 538-539 (1976), it has

reassessed the considerations which restrain the exercise

of that jurisdiction. Thus, in Rose v. Lundy, supra, the

Court held that even claims for which state remedies have

been exhausted could not be considered if presented in

a petition that also contained unexhausted claims, and in

Francis v. Henderson and Wainwright v. Sykes it replaced

the deliberate bypass test of Fay for procedurally de-

faulted claims with the cause and prejudice test. It has

done so in the interest of comity and finality. Smith v.

allie

Murray, 106 S.Ct. 2661, 2665-2666 (1986); Murray v. Carrier,

106 S.Ct. 2639, 2645 (1986); Engle v. Isaac, 456 U.S. 107,

126-128 (1982); Rose v. Lundy, 455 U.S. at 518.

It must be remembered, though, that the costs in terms

of comity and finality inhere in any habeas case, whether

or not it involves questions of exhaustion or procedural

default. Those problems serve only to elevate the costs.

Engle, 456 U.S. at 128. Intrusive collateral review of state

court convictions frustrates deterrence and rehabilitation

because it detracts from finality; it diminishes the sig-

nificance of the trial as the focal point of the criminal

process; and it undermines the morale of state court

judges, who are sworn to uphold the Constitution just as

federal judges are. Jd. at 127-128; Wainwright v. Sykes,

433 U.S. at 90; Schneckloth v. Bustamonte, 412 U.S. 218,

262 (1973) (POWELL, J., concurring). See also Friendly, at

145-146; Bator, at 451-452. Liberal allowance of the writ

results in costly retrials, and often allows the guilty to

escape just punishment because the evidence has grown

stale over the lapse of time. Engle, 456 U.S. at 127-128.

All of these considerations suggest that Chapman, which

did not take them into account, is not the appropriate

standard of review on collateral attack. Unlike direct

review, where the full spectrum of constitutional values

must be considered if they are ever to be considered,

“fundamental fairness is the central concern of the writ

of habeas corpus.” Strickland v. Washington, 466 U.S. at

697. A trial, though not perfect, is fund»mentally fair if

“evidence subject to adversarial testing .s presented to

an impartial tribunal for resolution of issues defined in

advance of the proceeding”’; if the accused has competent

counsel to assist him; and if the verdict results from con-

sideration of properly admitted evidence and not improper

influences. Jd. at 685, 689. Moreover, in habeas corpus

proceedings, “the burden of showing essential unfairness

[must] be sustained by him who claims such injustice and

—35—

seeks to have the result set aside, and . . . it [must] be

sustained not as a matter of speculation but as a demon-

strable reality.”” Adams v. United States ex rel. McCann,

317 U.S. 269, 281 (1942). Cf Townsend v. Sain, 372 US.

293, 312 (1963) (‘State prisoners are entitled to relief on

federal habeas corpus only upon proving that their deten-

tion violates the fundamental liberties of the person, safe-

guarded against state action by the Federal Constitu-

tion”); Brown v. Allen, 344 U.S. at 458, n. 6 (“the burden

of overturning the conviction rests on the applicant. . .’’).5

That Strickland v. Washington, supra, supplies the ap-

proprate standard of review follows from the near-identity

of interests protected by the Habeas Corpus Act and the

Sixth Amendment guarantee of effective assistance of

counsel.

In a long line of cases . . . this Court has recog-

nized that the Sixth Amendment right to counsel exists,

and is needed, in order to protect the fundamental

right to a fair trial. 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 Amend-

ment, including the Counsel Clause .. .

Strickland, 466 U.S. at 684-685 (citations omitted).

The principles governing ineffective assistance claims

should apply in federal collateral proceedings as they

do on direct appeal or in motions for a new trial. As

> This Court’s decisions make clear that Chapman has never been

considered sacrosanct on collateral review. Regardless of the

nature of a constitutional claim that has been procedurally de-

faulted in state court, a habeas applicant, even if he can show

cause for the default, must also show “actual prejudice.” Engle,

456 U.S. at 129; United States v. Frady, 456 U.S. 152, 170 (1982).

If he cannot show cause, or if he presents his claim in a successive

petition, he must show more than actual prejudice. He must show

a colorable claim of factual innocence. Smith v. Murray, 106 S.Ct.

at 2668; Murray v. Carrier, 106 S.Ct. at 2650; Kuhlmann v.

Wilson, 106 S.Ct. 2616, 2627 (1986) (plurality opinion).

-™=

indicated by the “cause and prejudice’’ test for over-

coming procedural waivers of claims of error, the pre-

sumption that a criminal judgment is final is at its

strongest in collateral attacks on that judgment. .. .

An ineffective assistance claim, however, as our artic-

ulation of the standards that govern decision of such

claims makes clear, is an attack on the fundamental

fairness of the proceeding whose result is challenged.

Since fundamental fairness is the central concern of

the writ of habeas corpus . . . no special standards

ought to apply to ineffectiveness claims made in

habeas proceedings.

Id. at 697-698 (citations omitted). Where the “overriding

concern [is] with the justice of the finding of guilt”, United

States v. Agurs, 427 U.S. 97, 112 (1976), the Strickland

standard is “sufficiently flexible”, United States v. Bagley,

105 S.Ct. 3375, 3384 (1985) to provide the proper balance

between the governmental interests in comity and final-

ity and the habeas applicant’s interest in release from an

unjust incarceration. Accordingly, respondent should be

required to show a reasonable likelihood, sufficient to

undermine confidence in the result, that the prosecutor’s

violation of the rule of Doyle affected the outcome of the

trial.

THE VIOLATION OF THE RULE OF DOYLE v. OHIO

IN THIS CASE DOES NOT GIVE RISE TO A REASON-

ABLE PROBABILITY THAT, BUT FOR THE ERROR,

THE RESULT OF THE PROCEEDING WOULD HAVE

BEEN DIFFERENT.

While this Court does not ordinarily undertake its own

review of the record to determine the presence or absence

of prejudice, see Rose v. Clark, 106 S.Ct. 3101, 3109

(1986); Delaware v. Van Arsdall, 106 S.Ct. 1431, 1438

(1986), the task is facilitated in this case by the analyses

contained in five prior opinions, setting forth the essen-

tially undisputed facts relevant to the inquiry. Cf. United

—37—

States v. Hastings, 461 U.S. 499, 510 (1983). The major-

ity of the Court of Appeals found that “[tJhe crux of this

trial was whether the jury believed the Williamses or be-

lieved Miller” on the one critical point of departure in

their testimony—did Randy Williams and Butch Arm-

strong pick respondent up at the trailer court before or

after Neil Gorsuch was murdered. (App. to Pet. for Cert.

at A-14) This was also the view of the case expressed by

the prosecutor and the trial judge. (J.A. 46, 49) Since

there was little in the way of corroboration for Randy

Williams’ testimony on this point, and none for respon-

dent’s,* the Court of Appeals, applying Chapman v. Cali-

fornia, 386 U.S. 18 (1967), saw the question before it as

whether it could find “beyond a reasonable doubt that the

prosecutor’s comment had no effect on the jury’s assess-

ment of Miller’s credibility, and hence on the jury’s ver-

dict.” (App. to Pet. for Cert. at A-14) However, when the

appropriate standard of review is applied, the question

becomes not only whether respondent’s credibility was

damaged, but also whether he can show that the jury

probably would have believed him instead of Williams had

he not incurred that damage. Unless the record reveals

some compelling reason for the jury to disbelieve Randy

Williams, it cannot be said that, to a reasonable proba-

bility, the prosecutor’s attempted violation of the rule of

Doyle v. Ohio, 426 U.S. 610 (1976) accounts for their

choice.

The Court of Appeals viewed Williams’ testimony as “‘in-

herently unreliable” because he was an accomplice, and

§ Rick Williams did corroborate his brother’s testimony when he

testified that respondent admitted participating in the murder.

(Vol. VI, 173-174) The Court of Appeals characterized this as ‘“‘in-

direct evidence” of respondent’s involvement. (App. to Pet. for

Cert. at A-13, n. 6) Regardless of the characterization, however,

it is at least noteworthy that there was some corroboration for

Williams’ testimony concerning who participated in the murder

while there was none for respondent’s denial of involvement.

—38—

accomplice testimony is “often motivated by factors such

as malice toward the accused and a promise of leniency

or immunity.” (App. to Pet. for Cert. at A-14) However,

juries can only judge the credibility of witnesses based

on the information they are provided. If Williams’ testi-

mony was vulnerable to attack on grounds of malice or

self-interest, it was still necessary to bring those grounds

out on cross-examination in order for the jury to give

them any weight. In the entire day-long cross-examination

of Williams, no testimony was elicited to establish that

he harbored any kind of grudge against respondent. He

was cross-examined concerning his plea agreement with

the prosecutor (J.A. 6-7), but it would require a consider-

able stretch of the imagination to conclude that the agree-

ment provided a motive for him to falsely accuse respon-

dent, because he accused respondent more than three

months before the agreement was reached. Williams and

respondent were arrested at 5:00 a.m. on Sunday, Feb-

ruary 10, 1980, and Williams made a statement implicating

himself, respondent, and Butch Armstrong shortly after

noon the same day. (Vol. VI, 44, 60-61) He was charged

with murder, aggravated kidnapping, kidnapping, and armed

robbery. (J.A. 6) He did not plead guilty to the kidnapping

charge until May 24, 1980 (C. 276), and he was still listed

as a defendant in this case along with respondent and

Armstrong on the caption of pleadings filed a few days

earlier. (C. 195) From this, it is evident that no agree-

ment was discussed at the time of the February 10 state-

ment. Thus, to believe that the agreement which was

eventually reached provided a motive to falsely accuse

respondent attributes to Williams the extraordinary presci-

ence to foresee, seven hours after his arrest, that a state-

ment implicating himself as well as respondent ih a

murder would ultimately work to his advantage. This is,

to say the least, an unreasonable belief. Moreover, if

respondent was telling the truth—if the murder was com-

mitted by Williams and Armstrong—Williams could have

~39~—

negotiated an agreement based on his testimony against

Armstrong alone. He could not possibly have believed that

there was anything to be gained by introducing into his

account a totally extraneous third culprit whom he knew

to be innocent. In short, Williams had no reason at the

time of his arrest to lie about respondent’s involvement

in the murder.

Furthermore, under the appropriate standard of review,

the other matters considered by the Court of Appeals are

cast in a different light. While it is true that the balance

of the State’s case provided no direct corroboration for

Williams’ testimony that respondent participated in the

murder, it is also true, as the Illinois Supreme Court

found (App. to Pet. for Cert. at D-5-6), that the evidence

corroborated Williams in virtually every other respect.

There was nothing about Williams’ testimony which was

at odds with the verifiable facts, and thus no reason for

the jury to disbelieve him based on the evidence pre-

sented. The trial court’s curative instruction—that the

jurors were to “ignore that last question, for the time

being” (J.A. 32)—although ambiguous, was clarified at the

end of the case by the general instruction that the jury

“should disregard questions . . . to which objections were

sustained.” (J.A. 47)’ Finally, the Court of Appeals ex-

pressed concern for the damaging effects of the error re-

sulting not only from its occurrence but from its timing.

(App. to Pet. for Cert. at A-12-13) However, the jury

7 That the initial instruction was conditional was due to the fact

that neither the attorneys nor the trial judge appeared to be aware

of Doyle. The judge stated that he would sustain the objection,

but check for authority during the cross-examination and i the

— to be asked if he could determine that it was proper.

(J.A. 32) He later determined that it was not, and so informed

counsel at a sidebar conference. (J.A. 43) Defense counsel did not

ask for a more definite instruction at that time. Respondent testi-

fied on the morning of June 9, 1980, the general instructions were

given that afternoon, and the verdicts returned that evening.

—40~—

might not have necessarily viewed respondent’s post-

arrest silence as impeaching, because respondent testified

on direct examination that although he knew about the

murder from Williams and Armstrong, he had agreed not

to tell anyone about it:

I asked ’em if Rick knew about it, and Randy said

no, and “Butch”, then, he said he thought they

oughtta’ tell Rick about it, ‘cause “Butch” said if the

police came, he was gonna deny ever bein’ with the

dude and he said Randy should do the same thing

and they oughtta’ teil Rick so he would say the guy

wasn’t with ’em.

x * *

“Butch” just told me to make sure I don’t say nothin’

to nobody about and I told him I wouldn't.

(J.A. 14-15)

Randy Williams’ testiiaony was plausible and consistent

with the other evidence. He had no reason to lie about

respondent’s involvement, especially since he could just

as easily have negotiated a plea agreement based on his

testimony against Armstrong alone if respondent was not

actually involved. Under these circumstances, the jury had

no compelling reason to disbelieve Williams. Therefore,

it cannot be said that the Doyle violation was their only

reason not to believe respondent. Accordingly, the judg-

ment of the Court of Appeals awarding respondent a writ

of habeas corpus should be reversed.

CONCLUSION

Doyle v. Ohio, 426 U.S. 610 (1976) is based solely on

the Due Process Clause, and attaches a constitutional label

to a set of facts that does not otherwise implicate con-

stitutional rights. In such cases, the harmless error doc-

~~ =

trine of Chapman v. California, 386 U.S. 18 (1967) does

not apply, because the defendant must show that the

error resulted in actual prejudice in order to support a

claim that it violated due process. Alternatively, even if

the stringent Chapman standard is the appropriate one

to apply on direct appeal for violations of Doyle, the cost

of such strict enforcement on collateral review outweighs

the benefits. The principle concern of the writ of habeas

corpus is the fundamental fairness of the judgment by which

the State seeks to maintain an individual in custody. Re-

gardless of the nature of the claim, the habeas applicant

must demonstrate actual prejudice in order to show that

his incarceration is fundamentally unfair. For these

reasons, the Court of Appeals erred in applying Chapman

in this case.

Finally, because the record does not support the asser-

tion that, absent the Doyle violation, the jury would have

entertained a reasonable doubt as to respondent’s guilt,

he is not entitled to habeas corpus relief. The judgment

of the Court of Appeals should therefore be reversed.

Respectfully submitted,

NEIL F. HARTIGAN

Attorney General of Illinois

ROMA J. STEWART

Solicitor General of Illinois

MARK L. ROTERT *

DAVID E. BINDI

Assistant Attorneys General

100 W. Randolph St., 12th Floor

Chicago, Illinois 60601

(312) 917-2570

Attorneys for Petitioner

January 30, 1987 * Counsel of Record

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.