# Reply Brief — Greer v. Miller

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0131%3A7

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1987
- **Citation:** 483 U.S. 756

## Text

4)
y
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0131%3A7. Public record. Not legal advice.