Reply Brief — Greer v. Miller

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No. 85-2064 (—smaxauy

a . DB

Ix Tue | APR 20 1987

Supreme Court of the Cited States.

Octoser Term, 1985

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

REPLY BRIEF FOR PETITIONER

NEIL F. HARTIGAN

Attorney General of Illinois

ROMA J. STEWART

Solicitor General of Tlinois

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

SS a a I IE I a I TE TE TT IIL

Printed by Authority of the State of Illinois (P.O. 33629—55—4-17-87)

PETITION FOR CERTIORARI FILED JUNE 3, 1986

CERTIORARI GRANTED DECEMBER 1, 1986

TABLE OF CONTENTS

PAGE(S)

TABLE OF AUTHORITIES ..........ccccess iii

ARGUMENT:

I.

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

Chapman Inapplicable As A Standard Of

Review In Due Process Cases ....... l

B. Since Doyle Does Not Involve Fifth

Amendment Concerns And Does Not

Render The Factfinding Process Inher-

ently Unreliable, Respondent Should Be

Required To Show Actual Prejudice .. 6

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 CONSTITU-

TIONAL RIGHTS ON COLLATERAL REVIEW

OUTWEIGH THE NEED FOR STRICT EN-

PUES ccc ccceseccessececcccecccccs 9

ii

A. Because Of The Significant Costs It Im-

poses, Federal Collateral Review Of State

Court Convictions Focuses On The Narrow

Question Of Fundamental Fairness And

Not The Broader Interests Served By

The Chapman Standard .............

B. Continued Application Of Chapman On

Collateral Review Is Not Essential To

Ensure Compliance With The Constitution

By State Caaste ..ccccessccausuusens

C. The Standard Of Review Proposed By

Petitioner Is Not Based On Construction

Of 28 U.S.C. § 2254, And Would Not

Undermine Congressional Intent ......

Ill.

THE VIOLATION OF THE RULE OF DOYLE

v. OHIO IN THIS CASE DCES NOT GIVE

RISE TO A REASONABLE PROBABILITY

THAT, BUT FOR THE ERROR, THE RESULT

OF THE PROCEEDING WOULD HAVE BEEN

DIFPPEERENT ..nccccccccccescssssssesedan

CONCLUGION ..ccccccctcccccccccuaseenenen

11

12

14

16

17

ill

TABLE OF AUTHORITIES

CASES PAGE(S)

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

i MICACCb ech seen heescsvecccccecces

2

Beck v. Alabama, 447 U.S. 625 (1980) ........ 3

Blackledge v. Perry, 417 U.S. 21 (1974) ....... 7

Bordenkircher v. Hayes, 434 U.S. 357 (1978) .. 7

Brown v. Allen, 344 U.S. 443 (1953) .......... 14

Chapman v. Cai ‘fornia, 386 U.S. 18 (1967) .. 1, 4, 6, 9, 10

Darden v. Wainwright, 106 S.Ct. 2464 (1986) .. 4

Donnelly v. DeChristoforo, 416 U.S. 637 (1974) .. 4

Doyle v. Ohio, 426 U.S. 610 (1976) ........... 1, 16

Engle v. Isaac, 456 U.S. 107 (1982) ........... 1]

Fay v. Noia, 372 U.S. 391 (1963) ............. 14

Fletcher v. Weir, 455 U.S. 603 (1982) (per curiam).. 2,8

Francis v. Henderson, 425 U.S. 536 (1976) .... 14

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

Hopper v. Evans, 456 U.S. 605 (1982) ........

Jenkins v. Anderson, 447 U.S. 231 (1980) ..... 2, 7,

Mabry v. Johnson, 467 U.S. 504 (1984) .......

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

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

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

North Carolina v. Pearce, 395 U.S. 711 (1969) ..

Raley v. Ohio, 360 U.S. 423 (1959) ...........

aonweoeoere © OO WwW Ww

iv

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

Rose v. Clark, 106 S.Ct. 3101 (1986) .......... 3, 12

Rose v. Lundy, 455 U.S. 509 (1982) .......... 11

Rushen v. Spain, 464 U.S. 114 (1983) (per curiam) . 3

Santobello v. New York, 404 U.S. 257 (1971) .. 8

Sheppard v. Maxwell, 384 U.S. 333 (1966) ..... 3

Smith v. Phillips, 455 U.S. 209 (1982) ........ 5

Stanford v. Texas, 379 U.S. 476 (1965) ........ 12

Stone v. Powell, 428 U.S. 465 (1976) .......... 12, 15

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

véeaethseonsaeede ceammbneiaeebaseenesn 3, 5, 10, 11

Sumner v. Mata, 449 U.S. 5389 (1981) ......... 11

United States v. Agurs, 427 U.S. 97 (1976) .... 3

United States v. Goodwin, 457 U.S. 368 (1982) ... 7

United States v. Hastings, 461 U.S. 499 (1983) .. 9

United States v. Lane, 106 S.Ct. 725 (1986) ... 10

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

SED. ndevcuscdedunnesauesietebbaedesnowss 3

Wainwright v. Greenfield, 106 S.Ct. 634 (1986) ... 2

Wainwright v. Sykes, 483 U.S. 72 (1977) ...... 11, 14

STATUTES

RE eS Te ee 11, 14, 15

OTHER AUTHORITIES

Federalism And The Rise Of State Courts, 73 ABA

Semmes GD CAGES 1, BOGE) cc ccccscccctccces 13

No. 85-2064

In THE

Supreme Court of the United States

Ocroser Term, 1985

JAMES GREER, Warden,

Menard Correctional Center,

Petitioner,

vs.

CHARLES “CHUCK” MILLER,

Respondent.

Senne

On Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

REPLY BRIEF FOR PETITIONER

cities

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 Review In Due

Process Cases.

The thrust of respondent’s argument is that the harm-

less error standard of Chapman v. California, 386 U.S.

18 (1967) applies on review whenever an error to which

a constitutional label has been attached occurs; Doyle v.

Ohio, 426 U.S. 610 (1976) holds that when the prosecutor

attempts to impeach a defendant’s trial testimony with

evidence of his silence after arrest and receipt of the

warnings required by Miranda v. Arizona, 384 U.S. 436

(1966), the Due Process Clause is violated; therefore, the

Chapman standard is the proper one to be applied for

violations of the rule of Doyle. This syllogistic answer to

the question now before the Court is wrong because it

fails to take into account the constitutional significance

of the terms used.

Due process and harmless error are incompatible con-

cepts. If one were to ask a group of jurists what is

meant by the phrase “due process of law’, they would

doubtless answer that it is a guarantee of fundamental

fairness. If one were to ask them what it means to say

that an error occurred at the trial of a criminal defen-

wiiiin

dant which served to deprive him of due process, their

likely answer would be that it means the defendant was

denied a fundamentally fair trial. If one were then to ask

them what it means to say that an error occurred which

served to deprive the defendant of a fundamentally fair

trial and that the error was harmless, they would be at

a loss to explain logically the conjunction of those two

concepts. The conjunction forms a contradiction, and it

cannot be rationalized without stripping the words “funda-

mental fairness” of their meaning.

Thus, the appropriate standard of review when, as here,

the error alleged implicates only the Due Process Clause,’

is the one which comports with the meaning of due process.

If the error involves conduct on the part of government

officials which is so reprehensible that no civilized society

can tolerate it, as in Rochin v. California, 342 U.S. 165

(1952), or if it inherently undermines the process of adju-

dicating guilt or innocence so that the result cannot be

1 Respondent makes the argument that the typical Doyle scenario,

in which the post-Miranda silence of the defendant is used to im-

peach his exculpatory trial a the Fifth Amend-

ment as well as the Due Process Clause. He says that although

his decision to testify at trial concededly constitutes a waiver of

the Fifth Amendment privilege, the voluntariness of that waiver

is vitiated by the breach of the implied promise that his prior

silence would not be used against him. (Brief for Respondent at

33) There is no authority for this. By its own terms, le rests

on the Due Process Clause, not the Fifth Amendment, and this

Court has often emphasized that le is exclusively a due process

case. Wainwright v. Greenfield, 106 S.Ct. 634, and n.n. 7

and 10 (1986); Fletcher v. Weir, 455 U.S. 603, 605-606 (1982) (per

curiam); Anderson v. Charles, 447 U.S. 404, 407 (1980) (per curiam);

Jenkins v. Anderson, 447 U.S. 231, 239-240 (1980). As these deci-

sions indicate, Doyle condemns the unfairness of —— silence

at the time of arrest and then using it at trial to the defendant’s

disadvantage. It has nothing to do with unfairly inducing the defen-

dant’s trial testimony because there is no clear causal link between

the implicit assurance contained in the Miranda warnings that

silence will carry no penalty and the decision to testify at trial.

afin

relied upon as accurate, as in Sheppard v. Maxwell, 384

U.S. 333 (1966), then reversal is always required regard-

less of whether actual prejudice can be shown. In all other

cases, actual prejudice must be shown in order to estab-

lish fundamental unfairness. Holbrook v. Flynn, 106 S.Ct.

1340, 1348 (1986).?

While Chapman is clearly the appropriate standard of re-

view when the error alleged implicates certain specific pro-

visions of the Bill of Rights, this Court has never squarely

held that it also applies to allegations of error which im-

plicate only the Due Process Clause. Respondent contends

that this Court has applied Chapman to “identifiable vio-

lations of the Fourteenth Amendment,” and he cites Rose

v. Clark, 106 S.Ct. 3101 (1986), Rushen v. Spain, 464 U.S.

114 (1983) (per curiam), and Napue v. Illinois, 360 U.S.

264 (1959). (Brief for Respondent at 30-31) These cases were

distinguished in petitioner’s brief at 21-23, n.n. 3 and 4.3

2 While petitioner uses the term “actual prejudice”, respondent

calls it “outcome determinative prejudice.” (Brief for Respondent

at 25) The definition of actual ~e roposed by petitioner is

the one formulated in Strick v. Washington, U.S. 668

(1984), which borrowed its terminology from two cases in the due

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

1982) and United States v. Agurs, 427 U.S. 97 (1976). In Strick-

land, the Court was careful to point out that the test for prej-

udice is not an outcome determinative test. Jd. at 694.

% To respondent’s list of cases in which Chapman was purportedly

applied to an all violation of due process, Amici add Hopper

v. Evans, 456 U.S. 605 (1982), which they say applies Chapman

to violations of Beck v. Alabama, 447 U.S. 625 (1980). (Brief of

Amicus Curiae at 14) In Beck, the Court struck down a statute

precluding the giving of lesser included offense instructions in

capital cases, and held that due process requires such instructions

be given whenever the evidence would support a verdict of not

ty of the greater offense but guilty of the lesser included of-

ense. In Evans, the Court reviewed an alleged violation of Beck

and found that the evidence did not support the giving of the

lesser included offense instruction. 456 US. at 613. Evans then

argued that the mere existence of the preclusion statute tainted

(Footnote continued on following page)

oe

Finally, respondent argues that while the requirement

that actual prejudice be shown is appropriate in cases

where ordinarily non-constitutional error is alleged to give

rise to a due process violation, as in Darden v. Wain-

wright, 106 S.Ct. 2464 (1986) and Donnelly v. DeChristo-

foro, 416 U.S. 637 (1974), or in cases where ineffective

assistance of counsel is alleged, as in Strickland, supra,

it is inappropriate for cases like Doyle. Actual prejudice

must be shown in order to establish constitutional error,

he says, in cases where the error itself is not easily iden-

tifiable or when the prosecution is not at fault, but it need

not be shown where the error is clear and the prosecu-

tion responsible. (Brief for Respondent at 30) Amici elabo-

rate somewhat on this theme. They distinguish between

errors that are difficult to identify and whose effect can-

not be gauged without considering the totality of the cir-

cumstances, and “specific ‘bright-line’ violations such as

that involved in Doyle. . .” (Brief of Amicus Curiae at

17) In the former class of cases, actual prejudice is said

to be a necessary component of the constitutional analysis

because “‘the initial ‘error’ . . . may have so many differ-

ent ramifications that it cannot be considered constitu-

tional error until we trace it through its effects at trial.”

(Brief of Amicus Curiae at 19) (Emphasis in original).

This purported distinction, for constitutional purposes,

between “bright-line’”’ errors and those not readily iden-

tifiable, or between errors for which the prosecution is

responsible and those for which it is not, is more apparent

than real. Both respondent and Amici rely on language

3 continued

his trial. The Court answered by stating that “{tJhe preclusion

clause did not prejudice respondent in any way, and a new trial

is not warranted. See Chapman v. California, 386 U.S. 18 (1967).”

456 U.S. at 613-614. The nature of this citation hardly reflects a

considered determination by this Court that the stringent Chap-

man standard must perforce apply to violations of Beck.

-§—

in Strickland, in which the Court noted that the govern-

ment is not responsible for the errors of defense at-

torneys, and that such errors come in an infinite variety

and are just as likely to be harmless as they are to be

prejudicial. 466 U.S. at 693. These observations, however,

did not form the principle basis for the requirement that

actual prejudice must be shown. Rather, the decision to

adopt the two-part test for ineffective assistance claims

stems from the recognition that, like the Due Process

Clause, the primary function of the Sixth Amendment’s

Counsel Clause is to ensure the proper functioning of the

adversarial process and the fundamental fairness of the

trial. 466 U.S. at 684-685. Thus, the prejudice component

was included because “(t]he purpose of the Sixth Amend-

ment guarantee of counsel is to ensure that a defendant

has the assistance necessary to justify reliance on the out-

come of the proceeding. Accordingly, any deficiencies in

counsel’s performance must be prejudicial to the defense

in order to constitute ineffective assistance of counsel.”

466 U.S. at 691-692. The distinction between errors for

which the government is responsible and those for which

it is not may have reinforced the decision in Strickland,

but by itself it is not constitutionally significant. Where

the right at stake is the one to due process, the focus

of the reviewing court is on “the fairness of the trial, not

the culpability of the prosecutor.”” Smith v. Phillips, 455

U.S. 209, 219 (1982). Even in cases like Darden, the virulence

and extent of the prosecutor’s misconduct did not alter

the Court’s analysis.

Similarly, the characterization of Doyle as creating a

“bright-line” rule is not constitutionally significant for pur-

poses of selecting a standard of review. It would have

been just as easy to create bright-line rules for any of

the instances of misconduct found in Darden, because the

comments there would never be proper under any circum-

a

stances. The ease with which errors may be recognized

has little to do with the standard under which they are

reviewed. It is the nature of the right infringed that

determines that choice, and when that right is the one

to due process, to a fundamentally fair trial, the defen-

dant must demonstrate actual prejudice in order to show

fundamental unfairness.

B. Since Doyle Does Not Involve Fifth Amendment Con-

cerns And Does Not Render The Factfinding Process In-

herently Unreliable, Respondent Should Be Required To

Show Actual Prejudice.

Respondent imputes to petitioner the assertion that this

Court’s post-Doyle decisions effectively overturned Doyle

(Brief for Respondent at 31); that violations of the rule

ef Doyle are “insignificant infractions” (Brief for Respon-

dent at 32); and that ccmment on a defendant’s post-

Miranda warnings silence should be allowed. (Brief for

Respondent at 33) These allegations are plainly incorrect.

Petitioner does assert that the harmless error doctrine

of Chapman v. California, 386 U.S. 18 (1967) does not

apply in due process cases, and that allegations of error

which are said to result in a denial of due process are

treated in one of three ways: if the error involves con-

duct on the part of government officials which is intoler-

ably reprehensible, or if it inherently undermines the reli-

ability of the adjudication of guilt, then reversal is always

required; otherwise, the defendant must show actual prej-

udice. Petitioner has merely noted that Doyle is exclusive-

ly a due process case, and its constitutional basis lies not

in the lack of probative value of evidence of post-Miranda

warnings silence, but in the unfairness of first inducing

that silence and then later using it to the defendant’s dis-

advantage. Therefore, because Doyle is a due process case,

and since violations of Doyle do not inherently undermine

- =

the adjudication of guilt or involve intolerably reprehen-

sible conduct, actual prejudice must be shown in order

to warrant reversal of the conviction.

Respondent makes two contentions regarding the consti-

tutional underpinnings of Doyle which are untenable.

First, citing Bordenkircher v. Hayes, 434 U.S. 357 (1978),

he says that Doyle violations abridge the right to due

process in the most basic way, because by impeaching a

defendant with his prior silence, the prosecutor may be

penalizing him for exercising his constitutional rights.

(Brief for Respondent at 32-33) This was no part of the

rationale of Doyle, and the theory was specifically rejected

in Jenkins v. Anderson, 447 U.S. 231 (1980), where the Court

held that the use of silence in the absence of Miranda

warnings for impeachment is permissible even if that silence

was explicitly based on invocation of the Fifth Amend-

ment privilege. Jd. at 235-236 and n. 2. Hayes is a deci-

sion in the line of vindictive prosecution cases, see Black-

ledge v. Perry, 417 U.S. 21 (1974) and North Carolina v.

Pearce, 395 U.S. 711 (1969), in which this Court prohibited

the practice of bringing more serious charges against a

defendant in retaliation for exercising his right to a jury

trial or his right to appellate review of his conviction. Due

Process does not permit the government to retaliate against

a person for exercising a protected statutory or constitu-

tional right. United States v. Goodwin, 457 U.S. 368, 372

(1982). However, as Jenkins makes clear, not every cost

associated with the exercise of a constitutional right amounts

to an impermissible burden on that right. 447 U.S. at 236-

238. The doctrine developed in Pierce, Perry, Hayes and

Goodwin does not insulate a defendant from all adverse

consequences which might follow from the exercise of a

protected right. It simply prohibits the government from

imposing those costs for purely retaiiatory motives. Good-

win, 457 U.S. at 376-378. That is not what occurs when

—3—

the prosecutor impeaches a defendant with his prior

silence, even though that silence is a conscious exercise

of the Fifth Amendment. Jenkins, 447 U.S. at 238.

A second misconception regarding the constitutional basis

for Doyle is the assertion made by both respondent and

Amici that Doyle prohibits the use of prior silence be-

cause it has no probative value. (Brief for Respondent at

33-34; Brief of Amicus Curiae at 23-25) Although that was

one of the premises of the decision, later cases make clear

that it is not grounded in the Due Process Clause. If it

was, then prior silence, whether pre-arrest or post-arrest

and regardless of whether Miranda warnings were given,

would always be inadmissible for impeachment purposes.

However, Jenkins and Fletcher v. Weir, 455 U.S. 603

(1982) (per curiam) permit the use of evidence of prior silence

in the absence of Miranda warnings. Indeed, Jenkins es-

tablishes that the subject of the prosecutor’s query in this

case—respondent’s failure to tell the police that he knew

Williams and Armstrong committed the murder but that

he was not involved—would have been proper if it had

focused on the 24-hour period between the time respon-

dent said he learned of the murder and the time of ar-

rest, instead of the post-arrest period.

* Amici argue that, in addition to having a negative impact on

the process of adjudication, Doyle violations also undermine the

fair administration of justice, and at the government must be

bound by the assurances it gives. They cite Santobello v. N

York, 404 U.S. 257 (1971) (state bound by promise made during

plea negotiations not to make sentence recommendation after guilty

plea entered) and Raley v. Ohio, 360 U.S. 423 (1959) (state may

not prosecute for contempt after assuring defendants they could

refuse to answer questions on grounds of self-incrimination). In

the first place, breaches of promise of the sort involved in these

cases always require reversal, and are not subject to harmless

error review even under Chapman. Santobello, 404 U.S. at 262;

Raley, 360 U.S. at 439-440. Since Amici do not urge the same

treatment for violations of Doyle, the import of their reliance on

(Footnote continued on following page)

-

Finally, respondent argues the Chapman standard should

apply on review of violations of the rule of Doyle as a

matter of policy, because it is the only effective way to

discourage prosecutorial misconduct. (Brief for Respondent

at 35-37) Discouraging prosecutorial misconduct is not the

function of either the harmless error doctrine or the Due

Process Clause. United States v. Hastings, 461 U.S. 499,

509 (1983) (disciplining prosecutors not the purpose of the

harmless error doctrine); Mabry v. Johnson, 467 U.S. at

511 (“{tJhe Due Process Clause is not a code of ethics for

prosecutors”). The selection of a standard of review must

be based on the nature of the error alleged and the right

infringed. Since Doyle is based exclusively on the Due

Process Clause, and since violations of Doyle do not in-

herently undermine the process of adjudication, respon-

dent should be required to demonstrate actual prejudice.

THE HARMLESS ERROR RULE OF CHAPMAN v. CALI-

FORNIA 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.

The standard of review applied by this Court on direct

appeal where errors of constitutional dimension are in-

volved is that articulated in Chapman v. California, 386

4 continued

Santobello and Raley is obscure. In the second place, not all gov-

ernmental assurances are constitutionally binding. See Moran v.

Burbine, 106 S.Ct. 1135, 1147-1148 (1986) (deliberate deception of

suspect’s lawyer by police officers concerning their intent not to

interrogate in lawyer’s absence does not violate due process);

Mabry v. Johnson, 467 U.S. 504, 509-511 (1984) (state not bound

by advantageous plea offer because defendant not induced by offer

to plead guilty).

U.S. 18 (1967), and it is “considerably more onerous” than

the standard applied to non-constitutional errors. United

States v. Lane, 106 S.Ct. 725, 730, n. 9 (1986). The reason

for this distinction is not that constitutional errors neces-

sarily have a greater impact on the truth-seeking func-

tion of the trial, but because constitutional rules serve

higher values than do other rules of evidence and pro-

cedure. When Chapman is applied, values in addition to

the need to ensure the fundamental justice of a particular

conviction are being served.

By contrast, the central concern of the writ of habeas

corpus is narrower in scope. Its purpose is to test the

fundamental fairness of an individual judgment by which

the State seeks to maintain an individual prisoner in cus-

tody. “{F)jundamental fairness*is the central concern of the

writ of habeas corpus”, Strickland v. Washington, 466

U.S. 668, 697 (1984), and where the focus of the inquiry

is on the fundamental fairness of the procedures used, it

is appropriate to require the party seeking to overturn

the result to demonstrate that he was prejudiced by the

error. See id. at 691-692 (since the purpose of the right

to counsel is “to ensure that a defendant has the assist-

ance necessary to justify reliance on the outcome of the

proceeding . . . any deficiencies in counsel’s performance

must be prejudicial” in order to warrant reversal).

Respondent presents three arguments in support of con-

tinued application of the Chapman standard in habeas

corpus cases. First, he says that the costs associated with

federal collateral review of state court judgments are

minimal, and do not warrant dispensing with a standard

of review that serves the full spectrum of constitutional

values and not just the need to ensure accurate results

fairly arrived at. Second, he says that the harmlessness

of constitutional errors is a federal question over which

federal review must be maintained in order to ensure that

<—

the state courts are in compliance with constitutional re-

quirements. Third, he says that abandonment of the Chap-

man standard would be contrary to the intent of Con-

gress_as expressed in 28 U.S.C. § 2254. For the follow-

ing reasons, none of these arguments justify the continued

application of a standard of review that was,designed to

comprehensively serve broad interests in a proceeding

whose purpose is much narrower.

A. Because Of The Significant Costs It Imposes, . -deral

Collateral Review Of State Court Convictions Focuses

On The Narrow Question Of Fundamental Fairness And

Not The Broader Interests Served By The Chapman

Standard.

Respondent’s argument that the costs associated with

federal collateral review of state court convictions are in-

sufficient to warrant dispensing with the Chapman stan-

dard in habeas cases falls on its first premise: that the

Chapman standard and the writ of habeas corpus share

the same concerns. (Brief for Respondent at 40) The cases

simply do not support this proposition. It is well-recog-

nized that collateral review of state convictions imposes

heavy costs on the criminal justice system—it detracts

from finality, frustrates deterrence and rehabilitation,

diminishes the significance of the trial as the focal point

of the criminal process, and undermines the role of the

state courts as the primary line of law enforcement. Engle

v. Isaac, 456 U.S. 107, 126-128 (1982); Rose v. Lundy, 455

U.S. 509, 518-519 (1982); Sumner v. Mata, 449 U.S. 539,

550 (1981); Wainwright v. Sykes, 433 U.S. 72, 90 (1977).

Accordingly, the Court has emphasized that the principle

function of habeas review is to ensure the fundamental

fairness of the conviction. Strickland, 466 U.S. at 697. At

the same time, the Court has recognized that the pur-

pose of harmless error review under Chapman is not just

te cusure the fundamental fairness of a particular convic-

—12—

tion, but to advance respect for the broader societal values

reflected in the Constitution as well. See Rose v. Clark,

106 S.Ct. 3101, 3111-3112 (1986) (STEVENS, J., concurring

in the judgment); Stanford v. Texas, 379 U.S. 476, 481-

485 (1965). It is because of these additional concerns that

Chapman establishes a more exacting standard of review

for constitutional errors as opposed to non-constitutional

errors. However, as Stone v. Powell, 428 U.S. 465 (1976)

makes clear, those concerns do not play a significant role

in habeas review. Despite the important societal values

protected by the Fourth Amendment, see Stanford, 379

U.S. at 481-482, Stone holds that the merits of Fourth

Amendment claims, once fairly litigated in state court,

may not be reviewed in habeas courts.

Respondent attempts to distinguish Stone on the ground

that it merely precludes invocation of the exclusionary

rule, a judicially created remedy, while he seeks “direct

federal habeas protection of his right to a fair trial.” (Brief

for Respondent at 42) This is not accurate. What respon-

dent seeks to avail himself of in this case is the benefit

of a judicially created standard of review, and in this re-

spect he is not unlike the habeas applicant in Stone. The

Chapman standard, like the exclusionary rule, is not man-

dated by the Constitution, or by the Habeas Corpus Act.

B. Continued Application Of Chapman On Collateral Review

Is Not Essential To Ensure Compliance With The Con-

stitution By State Courts.

As with his first argument, respondent’s second argu-

ment falls on its major premise: that unless Chapman con-

tinues to apply on collateral review, state court harmless

error determinations will be insulated from federal scrutiny

and the state courts will be free to ignore Chapman.

(Brief for Respondent at 46-47) There is simply no evi-

dence to document the supposition that state courts do

= SS

not enforce federal constitutional guarantees as conscien-

tiously as federal courts do, and considerable evidence to

the contrary.

In recent years, there has been a growing trend among

state courts to construe their own constitutions as impos-

ing more restrictive standards on police and prosecutors

than those required by this Court’s decisions construing

the federal Constitution. See, e.g., Federalism And The

Rise Of State Courts, 73 ABA Journal 60, 61-64 (April

1, 1987). Moreover, as the evidence cited by Amici con-

firms—less than 2% of the habeas petitions filed in the

1986 fiscal year ultimately resulted in relief being granted

(Brief for Amicus Curiae at 37)—state courts are in sub-

stantial, indeed nearly perfect, compliance with federal

constitutional commands. Respondent’s suggestion that

this is true only because the threat of habeas forces state

courts to comply when they might otherwise be lax (Brief

for Respondent at 47) is also undocumented, and eleven

years of experience since Stone removed Fourth Amend-

ment claims from the ken of habeas does not support the

notion.

Amici argue that the standard proposed by petitioner

would put a strain on the federal system in general and

this Court in particular because the standard proposed

does not differentiate between constitutional errors which

would be subject to review under Chapman on direct ap-

peal, and errors abridging those basic rights for which

reversal is always required. (Brief of Amicus Curiae at

35-36) This is most emphatically not true. The standard

proposed by petitioner would apply only on “collateral

review of any constitutional claim which might be found

harmless on direct review. . .” (Brief for Petitioner at 30)

(Emphasis added).

—14—

C. The Standard Of Review Proposed By Petitioner Is Not

Based On Construction Of 28 U.S.C. § 2254, And Would

Not Undermine Congressional Intent.

Both respondent and Amici entertain the mistaken belief

that the standard of review proposed by petitioner is based

on construction of the habeas statute, 28 U.S.C. § 2254,

and they argue that the proposal should be rejected be-

cause Congress has considered and rebuffed efforts to

limit the habeas jurisdiction along these lines. (Brief for

Respondent at 48; Brief of Amicus Curiae at 26-28) Since

§ 2254 is not cited in petitioner’s brief, it should be clear

that the argument is not based on donstruction of the stat-

ute, but rather on setting a standard of review which

strikes the appropriate balance between the governmen-

tal interests in comity and finality and the habeas appli-

cant’s interest in release from a fundamentally unjust in-

carceration.

Amici make the curious statement that because Con-

gress has enacted a specific statute defining habeas juris-

diction, “(i]t follows that any radical redefinition of the

scope of habeas review that would directly diminish the

substantive constitutional protections afforded by the law

should come from Congress and not from this Court.”’

(Brief of Amicus Curiae at 26) The recent history of

habeas corpus refutes this. This Court’s construction of

the jurisdiction conferred by the habeas statute, starting

with Brown v. Allen, 344 U.S. 443 (1953) and culminating

in Fay v. Noia, 372 U.S. 391 (1963), teaches that the scope

of that jurisdiction is the broadest possible. It extends

to all constitutional claims and even encompasses those

which have not been exhausted or have been procedural-

ly defaulted. While the Court has never retreated from

this interpretation of the scope of the jurisdiction con-

ferred, see Wainwright v. Sykes, 433 U.S. at 84; Francis

v. Henderson, 425 U.S. 536, 538-539 (1976), it has never,

~~

not even in Fay, chosen to exercise that jurisdiction to

the fullest extent, and every additional limitation imposed

since Fay has been imposed for equitable reasons, not

because Congress amended the statute. Thus, it makes

no difference for purposes of the present analysis that

Congress has rejected efforts to limit habeas jurisdiction

to claims which, if proven, would result in a loss of con-

fidence in the reliability of the result. It is for this Court

to decide if that is the appropriate standard, given the

costs associated with collateral review and its narrow pur-

pose.

Finally, respondent argues tha‘ § 2254 is an expression

of Congressional intent to provide a federal forum for the

vindication of federal rights, and that since the question

of harmless error is a federal one, the habeas court is

the proper forum to consider it. (Brief for Respondent at

48) This is the same argument that failed to carry the

day in Stone v. Powell. It “‘stem[s] from a basic mistrust

of the state courts as fair and competent forums for the

adjudication of federal constitutional rights”, which lacked

empirical support when Stone was decided and has gained

no currency since. /d. at 494, n. 35.

Because the proper focus of federal habeas corpus re-

view is on the justice of the finding of guilt, the appropri-

ate standard of review for errors which might be found

harmless on direct appeal is the one which is tailored to

the purpose of the proceedings. Accordingly, respondent

should be required to demonstrate actual prejudice before

habeas relief may be granted.

==

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.

In order for. respondent to establish that, had the at-

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

not occurred, there is a reasonable probability that the

outcome would have been different, he must demonstrate

that there was some compelling reason for the jury to

disbelieve Randy Williams. Otherwise, it cannot be said

that the Doyle violation was the decisive factor. The

timing of the error and the ambiguity of the instruction

that immediately followed it, while not wholly irrelevant,

are of considerably diminished importance when the appro-

priate standard of review is applied.

Randy Williams confessed his own involvement in the

murder, and in so doing implicated respondent and Butch

Armstrong as well, within seven hours of his arrest. At

that time, he had no reason at all to falsely accuse re-

spondent. Nevertheless, respondent argues that accomplice

testimony is inherently unreliable because it is often moti-

vated by malice toward the accused and promises of leni-

ency. However, while he mentions the undisputed fact

that Williams testified pursuant to a plea agreement, he

does not deny that the agreement was not reached until

three months after the initial accusation and could not

possibly have provided a motive for it. As for malice

toward the accused, respondent argues that he was a

threat to Williams’ freedom because Williams had earlier

confessed his involvement to respondent. (Brief for Respon-

dent at 21) Respondent’s lawyer cross-examined Williams

for an entire day, but did not explore this possible motive.

Moreover, as a speculative theory, it does not wash. Re-

alton

spondent could not have been more of a threat to Williams’

freedom than Williams’ own confession. Respondent also

argues that by implicating him, Williams exculpated his

brother Rick. (Brief for Respondent at 21) It is difficult

to see how this could be so. No one has ever disputed

that Rick Williams was dropped off at his girlfriend’s

house before anything was done to the victim, so Randy

Williams did not need to exculpate his brother. Further-

more, nothing about Randy Williams’ accusation of respon-

dent makes it less likely that Rick Williams was involved.

For these reasons, the judgment of the Court of Ap-

peals awarding respondent a writ of habeas corpus should

be reversed.

CONCLUSION

For all the foregoing reasons, and for the reasons set

forth in petitioner’s brief, petitioner requests that this

Court reverse the judgment of the United States Court

of Appeals for the Seventh Circuit.

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 West Randolph St., 12th Floor

Chicago, Illinois 60601

(312) 917-2570

Attorneys for Petitioner

April 20, 1987 * Counsel of Record