# Amicus Curiae Brief — Greer v. Miller

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0131%3A8

## Record

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

## Text

a

j
|

No. 85-2064 ~~ | E [Len ,

MAR 16 987
mn Tee JOSEPH F
‘ . SPANIOL, J
Supreme Court of the United States cir
OCTOBER TERM, 1986 “7
<j
JAMES GREER, Warden,
Menard Correctional Center,
Petitioner,
—V.—
CHARLES MILLER,
Respondent.

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN

CIVIL LIBERTIES UNION FOUNDATION AND THE

ROGER BALDWIN FOUNDATION OF ACLU, INC.
IN SUPPORT OF RESPONDENT

JOHN A. POWELL LEON FRIEDMAN

VIVIAN O. BERGER Counsel of Record

DAVID B. GOLDSTEIN Hofstra Law School

American Civil Liberties Hempstead, NY 11550
Union Foundation (212) 737-0400

132 West 43rd Street
New York, New York 10036
(212) 944-9800

HARVEY GROSSMAN

Roger Baldwin Foundation
of ACLU, Inc.

220 South State Street

Chicago, IL 60604

(312) 427-7330

Ne aA ee ee ee, ee ET Ee eee we! a oe fe Tee ee

a |

TABLE OF CONTENTS

Page
_ * i. ge... - jy et: e cee 111
Beameuee Ge BRACE CUMAAE ceccecceceses ee ]

INTRODUCTION AND SUMMARY OF ARGUMENT... 2
ARGUMENT

I. DOYLE VIOLATIONS SHOULD CONTINUE
TO BE SUBJECT TO HARMLESS ERROR
ANALYSIS.....-.cee- cocccece cocccccccce 8

A. This Court Has Applied Two
Standards of Review to
COMSEEEREEOROL BEFOE.cccccccecese g

B. Under Doyle, Use of Post-Miranda
Silence Violates Due Process
Without Regard to the Trial's
OUCCOME. ccccccccsccccccces cecccccee 20

1. A Doyle Violation, Without
More, Undermines the Fair
Administration of Justice..... 20

2. Post-Miranda Silence is
"Insolubly Ambiguous"......... 23

II. NEITHER THE HABEAS CORPUS STATUTE,
NOR THE NATURE OF HABEAS CORPUS,
JUSTIFIES A REQUIREMENT OF ACTUAL
PREJUDICE, AFTER CONSTITUTIONAL
ERROR IS SHOWN... .ccccccccscccsccccee 29

A. The Court Should Interpret
the Hbeas Statute in Light of
Congressional Intent and the
Purposes of Habeas Corpus Review 26

B. The Actual Prejudice Standard f
Would Impose Significant Costs TABLE OF AUTHORITIES
on the Federal System........... 35
Cases Page
CONCLUSION ..ccccccccccscesseseseseses ooo OO
Batson v. Kentucky,
106 S. Ct. 1712 (1986).......---- 11
Beck v. Alabama,
447 U.S. 625 (1980)... ccc ccccvees 14
Blue Chip Stamps v. Manor Drug Stores,
BEE Wete FES CEPI ccccccccccecs eo 27
| Brady v. Maryland,
373 U.S. BS (1963)... cece TeTTE 15
) Crist v. Bretz,
| 437 U.S. 28 (1978)... ccc ccccscees 33
| Cuyler v. Sullivan,
Mee Bee GhPCO) co coccccccccces 33
Darden v. Wainwright,
106 S&S. Ct. 2464 (1986)... cece 11,15
) 21
Delaware v. Van Arsdall,
106 S. Ct. 1431 (1986).........4.. 8
Donnelly v. DeChristoforo,
416 U.S. 637 (1974)..... eoccccesce 15
.
Hs / Doyle v. Ohio,
| i CROPOD . wcccccccccecs passim
|
Fletcher v. Weir,
Pas WES BEPOS)o ccoccccccccccs 21
Gideon v. Wainwright,
DE Wats SSS CEPOSP ccccccccccceccs 10
iii

ii

Holbrook

v. Flynn,

106 S. Ct. 1340 (1986)...........

Hopper v.

Evans,

456 U.S. 605 (1982).......... cece

Kaufman v. United States,

394

Kuhlmann

ae See SE a bécwcneccescsce

v. Wilson,

106

Mackey v.

S. Ct. 2616 (1986)... .ccccce

United States

401

Miller v.

U.S. C67 C1971). ccccccccccces

North Carolina,

583

F.2d 701 (4th Cir. 1978).....

Miranda v. Arizona,

384

Payne v.

U.S. 4356 (1966)... cccccccccces

Arkansas,

356

Raley v.

U.S. 560 (1958)... cccccccccces

State of Ohio,

360

Rose v.

U.S. 423 (1959) .cccccccccccces

Clark,

106

BS. Ct. J101 (1986). ic cccccccces

Rose v. Mitchell,

443

U.S. 3545 (1979). ccc cccccccees

Sandstrom v. Montana,

442

U.S. S10 (1979) wc cccccccccceccs

Santobello v. New York,

404

Smith v.

ae See Ee 6decedanebene

Murray,

106

BS. CO. 2661 (1986). cccccee ee

iv

15

14

31

28,30

31

11

23

10,24

Stone v. Powell,

428 U.S. 465 (1976)... cccccccceee

Strickland v. Washington,

466 U.S. 668 (1984)... cee eeeees

United States v. Bagley,

105 S. Ct. 3375 (1985).......06.

Vasquez v. Hillery,

106 S. Ct. 617 (1986)..........-.

Wainwright v. Greenfield,

106 S. Ct. 634 (1986)......220e-

Waley v. Johnson,

316 U.S. 191 (1942)... ccccevces

Other Authorities

Statutes, Bills, Rules

Be @.S.6. BOOS: BAST ck 64660004 eee ees
28 C.8.6. Geet«. SOBRE) GP) o k65 00 6eees

S. 238, 99th Cong. lst Sess. (1985)...

INTEREST OF AMICI CURIAE

The American Civil Liberties Union is a
nationwide, nonpartisan organization of over
250,000 members; the Roger Baldwin Foundation of
ACLU, Inc., is its Illinois state affiliate. The
ACLU has been particularly active in preserving
and defending substantive constitutional rights
of criminal defendants. Amici have also been
active in preserving the procedural vehicle of
federal habeas corpus, which is critical for the
protection of such rights. We submit this brief

amicus curiae in the hope that it will assist

the Court's resolution of this case, which

implicates and threatens both these interests.*

—— tm S

* Letters of consent to the filing of this
brief have been lodged with the clerk of the
Court.

INTRODUCTION AND SUMMARY OF ARGUMENT
In this case, petitioner asks this Court to
ignore well-established precedents in all the
Circuits that hold that harmless error analysis

applies to a violation of Doyle v. Ohio, 426

U.S. 610 (1976) on federal habeas corpus. See

Miller v. Greer, 789 F.2d 438, 442-43 (7th Cir.

1985) (en banc). To escape these precedents (as
well as this Court's unanimous assumption to the

same effect last Term in Wainwright v.

Greenfield, [06 S. Ct. 634, 640 n.13 (1986)),

id. at 643 (Rehnquist, J., concurring),
petitioner proposes a sweeping reexamination of
two basic principles which this Court and all
other federal courts have routinely applied: (1)
Doyle violations, like other "bright-line"
constitutional violations in which fairness and
truth-seeking values are implicated, are subject
to harmless error analysis;

(2) harmless error

analysis applies to constitutional error on

federal habeas corpus in the same way and to the
same extent as on direct review.
Three years ago this Court directly

confronted the latter proposition in Strickland

v. Washington, 104 S. Ct. 2052 (1984), in which

it held that ineffectiveness of counsel claims
must be treated the same way on federal habeas
corpus, direct appeal or a motion for a new
trial. Id. at 2070. Indeed, in no case has this
Court, or any Of its members, ever even
suggested that, in addition to the other
procedural and substantive burdens facing a
habeas corpus petitioner, he must also meet a
standard more stringent than a defendant on
direct appeal and show actual prejudice after he
has proven constitutional error. In the face of
precedents that reject both parts of the
argument here, petitioner seeks to combine them
together in the hope that two rejections must

mean one acceptance or that two times zero will

as
9

yield more than zero. Such topsy-turvy
mathematics need only be stated to be rejected.

Petitioner's mechanical argument that a
Doyle violation is "only" a general due process
claim that requires a showing of actual

prejudice is wrong as a matter of analysis and

wrong as a matter of precedent. Unlike the cases

cited by petitioner, Doyle due process

violations are complete upon the state's use of

post-Miranda silence at trial. Once

constitutional error is found, this Court has
applied one of two standards of review --
automatic reversal or harmless error. To
determine which applies to a particular claim,
the Court examines the nature of the right and
how the violation of such right relates to other
values in the administration of justice, not
what label is given to the right.

The actual prejudice standard has been
limited to situations in which it is not clear

whether a constitutional violation has occurred

unless the effect of the-violation on the
outcome of the trial is determined. That
approach is inapplicable to Doyle violations
since Doyle creates a “bright-line" standard for
prosecutors to meet. Doyle violations are
analagous to other direct misrepresentations by
officers of government that have always been
subject to the harmless error rule. In addition
Doyle violations can seriously undermine the
fairness of any proceeding because of the
inherently ambiguous nature of a defendant's
silence. The Duyle due process violation is not
the effect of the violation on the trial's
outcome, but rather, the very use of the post-

Miranda silence.

Petitioner's second argument that all
constitutional violations must be subject to an
actual prejudice standard on habeas corpus
review would seriously ersde constitutional
protection under the great writ. Such judicial

rewriting of a statute would be improper,

especially in light of Congress' steadfast
refusal to modify the statute along the lines
urged by petitioner. It would undermine the
nature of collateral review in the federal
courts in a revolutionary manner. It would
effectively strip federal tribunals of their
assigned constitutional and statutory function
of guarding the constitutional rights of state
prisoners and providing federal oversight of
state court interpretation of the Constitution.
The argument threatens the entire scheme of
federal review of constitutional error, under
which this Court on direct review of a few cases
and the entire federal judiciary on federal
habeus corpus review are engaged in a dynamic,
On-going dialogue with state courts to define
constitutional protections in criminal cases.
Petitioner's argument sets no limit to the
constitutional errors that would be subject to
the actual prejudice standard, and thus errors

that are now subject to the most stringent

re

OR Reta swe 04 a + ret

standard -- automatic reversal -- because they
render a trial fundamentally unfair or because
of the importance of the right to other values
would be unreviewable and unreversible in the
federal courts unless actual prejudice was
shown. Such a result would almost certainly
retard the elaboration and explication of
important constitutional rights.

Adoption of petitioner's approach would
inevitably involve this Court in creating
exceptions to its own creation, thus needlessly
replicating the Court's ongoing efforts to
clarify standards of review of constitutional
error. In light of Congressional inaction, such
an endeavor does not recommend itself as a
matter of judicial administration or as a matter
of constitutional law.

Finally, petitioner puts forth this radical
proposal without any showing of need. The
State's interest in federalism and finality are

fully served by the statute's current

construction. Moreover, extremely few habeas
petitioners currently succeed; the
administrative gains to the States would be de

minimis; the costs to the federal system and the

development of constitutional law would be
enormous.

ARGUMENT

I. DOYLE VIOLATIONS SHOULD CONTINUE TO BE
SUBJECT TO HARMLESS ERROR ANALYSIS

Last term, this Court engaged in
considerable debate over shifting two
constitutional violations -- confrontation
clause and burden of proof violations -- from
the “automatic reversal" category into the
"harmless error" category. Ultimately, it
determined that these sorts of violations should -
be reviewed under the harmless error sta: iard. |

See Rose v. Clark, 106 S. Ct. 3101 (1986);

Delaware v. Van Arsdall, 106 S.Ct. 1431 (1986). |
In this case, petitioner urges a far more |

radical shift that would require a defendant to

prove "actual prejudice" before obtaining relief

after a serious constitutional due process error

has been shown. This suggestion is based on a
total misreading and distortion of this Court's
decisions dealing with the differing standards
of review once constitutional error has been
found and a fundamental misconception of the
nature of the constitutional error that results
from a Doyle violation.

A. This Court Has Applied Two Standards of Review
to Constitutional Error.

Petitioner's analysis and description of
this Court's standard of review of
constitutional error divides the standard
into rigid subcategories depending on whether
the right violated is based on "specific
constitutional provisions,” Brief of
Petitioner at 19, or the "general" provisions
of the Due Process Clause. As to the latter,

petitioner claims, "actual prejudice” must be

shown before reversal of a criminal
conviction is permitted.

In fact, this Court has never adopted an
approach based on the "label" of the
constitutional right. Rather, the Court has
always applied a functional approach
involving two separate standards that depend |
upon the nature of the constitutional error

that has been found. See Rose v. Clark, 106

S. Ct. at 3105-07; id. at 3110-12 (Stevens,
J., concurring).

First, automatic reversal is required for

ee ees

errors that render é trial fundamentally unfair,
such as cases involving a coerced confession,

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

where counsel was not furnished, Gideon v.

106 S.Ct. 617 (1986), in the disqualification of

petit jurors, Batson v. Kentucky, 106 S. Ct.

1712 (1986), or in an appeal to the jury, Miller

v. North Carolina, 583 F.2d 701, 708 (4th Cir.

1978);

Second, harmless error analysis applies to

almost all other constitutional errors,
including many Due Process violations.

"Actual prejudice" is not a separate
standard of review of constitutional error in
the same sense as the two standards noted above.
This Court has used this term, or similar
uietie to describe the showing that a
defendant must make to demonstrate that certain

kinds of errors rise to a constitutional

violation at all. See United States v. Bagley,

Wainwright, 372 U.S. 335 (1963), and cases ae

important values unrelated to the truth seeking
function of the trial are implicated, such as

when racial prejudice was present in the

selection of grand jurors, Vasquez v. Hillery, |

a

1. For purposes of simplicity, amici uses
petitioner's term of "actual prejudice." In
fact, this Court has used other language in
the due process cases upon which petitioner
relies. See e.g., Darden v. Wainwright, 106
S.Ct. 2464, 2472 (1986) ("so infected the
trial with unfairness"); United States v.
Bagley, 105 S. Ct. 3375, 3383 (1985)
("reasonable probability ..[{of] undermin[ing]
confidence in the outcome.")

11

105 S. Ct. 3375, 3383 (1985); Strickland v. and Sixth Amendments and does not usually apply
Washington, 104 S. Ct. 2052, 2064 (1984). But to "general" due process violations. Rose v.
once it is determined that a constitutional Clark itself, in which a jury instruction
error has occurred in these types of cases, the shifted the burden of proof to the defendant
inquiry ends and the conviction is reversed. As contrary to Sandstrom v. Montana, 442 U.S. 510
explained below, special reasons relating to ) (1979), was a "general" due process case. But
these types of errors require a defendant to | this Court in Rose explicitly held that harmless
show probable effect on the outcome before there | error applied to that type of due process
is even a constitutional error. | violation. The Court has never suggested that
Petitioner erroneously describes this ) any standard lower than harmless error should be
"actual prejudice” category as if it were a applied to these burden of proof violations.
large, amorphous one applicable to all | See, e.g., Sandstrom, 442 U.S. at 526-27
violations of "general" due process rights, but | (remanding for a determination whether the
not to specific constitutional limitations ) instruction was harmless error).

contained in the Fourth, Fifth and Sixth Sandstrom adopted a bright line rule that

Amendments. That characterization is wrong for all jury instructions on presumptions that shift

et ee ee

at least three reasons. the burden to the defendant violate due process.
First, petitioner is wrong in his initial | Id. at 524. The fact is that many "general" due
premise that harmless error analysis applies | process violations like Doyle and Sandstrom
primarily to violations of "specific develop their own "“bright-line" definitions,
constitutional provisions" in the Fourth, Fifth becoming sub-categories of the due process

12 13

clause. The constitutional error is determined
independently of its actual effect on the
outcome of the trial. Within that area, any
violation is subject to precisely the same
harmless error test as a violation of the
specific provisions of the Fifth and Sixth
Amendments. See e.g., Bagley, 105 S. Ct. at
3382, n. 9 (standard of review of due process
violations resulting from "knowing use of

perjured testimony is equivalent to the Chapman

harmless error standard."); Beck v. Alabama, 447

U.S. 625, 633 & n. 14 (1980) (due process
violated when state fails to allow jury to
consider lesser included offense in capital case

when evidence supports such a verdict); Hopper

v. Evans, 456 U.S. 605, 613-14 (1982) (Beck

violation subject to Chapman harmless error

standard).
Second, the “general” due process
violations described by petitioner involve

errors which do not reach constitutional

14

a lll

eee

dimensions unless and until a prejudicial point
is reached, such as the prosecutorial misconduct

in Donnelly v. DeChristoforo, 416 U.S. 637

(1974) and Darden v. Wainwright, 106 S. Ct. 2464

(1986), or the use of armed guards in court, as

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

The same analysis applies with respect to

violations under Brady v. Maryland, 373 U.S. 83

(1963). We do not know whether constitutional
error has occurred unless we determine the
effect of the withheld evidence on the trial;
the definition of the right is inexorably linked

to the effect of the violation itself. Under

Brady and Bagley, supra, the prosecutor is

required to produce exculpatory material. But
there are numerous ways that evidence may be
exculpatory, and it cannot be conclusively shown
to be exculpatory unless we trace the possible
uses of the material at the trial. The purpose
of the Brady rule is to insure the proper

functioning of the adversary process at the

15

trial and to insure that justice is done. See
Bagley, 106 S. Ct. at 3380 n.6. Thus, the effect
of the prosecutor's failure to produce
exculpatory evidence reaches constitutional
error only if it undermines the proper
functioning ofthe adversary process to the
extent that a court no longer has confidence in
the outcome.

At the same time that the Court developed
the "prejudice" standard for Brady violations,

it recognized that if a prosecutor knowingly

uses perjured testimony, the actual effect of
the use becomes irrelevant and harmless error
age 8. Ge

rules will apply. See Bagley, at 3382

n. 9. That is true since, as Justice Stevens

explainec in another context in his concurrence

in Rose v. Clark, 106 S. Ct. at 3110-12, the

purpose of the rule is not only to protect the
truth seeking function of a trial, but to insure
that important values in the administration of

justice are preserved as well, including the

16

fee. enn ert tees LS al Gen ee Om eT Fr es

.

requirement that prosecutors act fairly in the

system. See also Smith v. Murray, 106 S. Ct.

2661, 2672 (1986) (Stevens, J., dissenting) ("Our
criminal justice system, and our Constitution,
protect other values in addition to the
reliability of the guilt or innocence
determination, and the statutory duty to serve
‘law and justice' should similarly serve those
values.") The constitutional error is complete
upon the knowing use of the perjured testimony.
At that point, the normal harmless error rule
comes into play.

Thus, this Court's functional approach has
consistently recognized the important difference
between specific "“bright-line" violations such
as that involved in Doyle, in which the
constitutional error is complete upon the
prosecutor's prohibited conduct, and the errors
noted above in which some kind of "effect" on

outcome must be shown before a constitutional

violation even occurs.

17

ll

Third, the division petitioner creates incompetence has had upon the trial. Only when

between "due process" violations in which both of these determinations are made, can we

prejudice must be shown and specific say that a Sixth Amendment error has occurred.

constitutional violations under the Fifth or In short, the Court's approach has been a

Sixth Amendments where harmless error applies is functional one, not the mere examination of

wrong even in terms of the cases petitioner : constitutional labels. The “actual prejudice"

cites. Thus, in Strickland -- a Sixth Amendment — standard applies when the initial “error,” such

and therefore a "specific Constitutional as failure to meet minimum standards of

provision" case, see Strickland, 104 S. Ct. at professional competence or failure to produce

2064 -- this Court noted that a "bright-line" | exculpatory material, may have so many different

automatic reversal or harmless error rule : ramifications that it cannot be considered

applies in some instances, such as when a constitutional error until we trace through its

conflict of interest or government interference effects at the trial. Thus, a defendant must

with counsel occurs, see id. at 2067. However, show actual prejudice from the error -- that it

when the court examines counsel's professional did effect his right to a fair trial, either

errors in judgment, since there are so many ways under the due process clause or the Sixth

that a lawyer may err, he is not considered Amendment -- by undermining the proper

functioning of the adversarial process. That

tle OE tl, an ty: i Se ets Se Cates, CO aI Me nm

constitutionally ineffective unless we

determine, first, how far he has performed below approach simply is irrelevant to a Doyle

violation, which is constitutionally complete

the Plimsoll line of reasonably competent

counsel, and second, what effect his when the error is made.

18 19

B. Under Doyle, Use of Post-Miranda Silence ; 634, 639 (1986). The State's use of that silence
Violates Due Process without Regard

to the Trial's Outcome. at the trial to impeach the defendant after

Doyle violations undermine the fundamental ) assuring him that he has the right to remain
fairness of the adversary process and implicate 7 silent is “fundamentally unfair," as this Court
the truth-seeking function of the criminal 7 has consistently repeated. See Fletcher v. Weir,
trial. Because of the interests protected by the | 455 U.S. 603, 606 (1982). Therefore, when the
Doyle rule, whether the use of post-Miranda prosecutor introduces the defendant's silence
silence "actually prejudiced" the defendant is ~ against him, the due process violation is
irrelevant for due process’ purposes. Since the complete.
harmless error rule typically applies to the Even if the silence were probative in some
interests protected by Doyle, it should continue | way, the State may not benefit by breaching its
to be applied in this case. promise. The State, as the sovereign, must keep

its word. It cannot convict a citizen by

1. A Doyle Violation, Without More, Undermines
the Fair Administration of Justice.

se

violating specific assurances given him at a

At a minimum, the Miranda warning is an prior time. See, e.g., Raley v. State of Ohio,
assurance that the State will not use the ; 360 U.S. 423, 438 (1959) (state may not convict a
defendant's silence against him in any way: person "for exercising a privilege which the

" . the state gives warnings to protect State clearly had told him was available to

we Aor ee Ae

constitutional rights and implicitly promises him."); cf. Santobello v. New York, 404 U.S.
that any exercise of those rights will not be | 257, 262 (1971) (state bound by its plea
penalized." Wainwright v. Greenfield, 106 S. Ct. bargains entered on the court record).

21

20 |

Thus, even if the Doyle rule had no truth-
seeking purpose, it serves important interests
in the administration of justice by requiring
the State to keep its promises. It surely is not)
appropriate to permit the State to violate its
assurances to its citizens unless the defendant
can show that he suffered actual prejudice from
such breaches.

Doyle provides prosecutors and courts with
a clear rule that can be easily followed.
Petitioner puts forth no credible reasons for
its attempt to muddy that standard. Doyle
violations are rarely inadvertent, heat-of- |
combat mistakes by prosecutors, unlike those
that can be made during argument. See, e.g.,

Darden, supra. In this case, for example, the

prosecutor deliberately began his cross- '
examination of defendant with his post-arrest
silence. Moreover, because the breach of the
State's promise to the defendant is

"fundamentally unfair," it is a due process

; |

violation. A fact-based inguiry into the effect
of the violation on the course of the trial is
irrelevant to the constitutional determination.
Petitioner's attempt to equate Doyle violations
with ineffective assistance of counsel or "fair
triai" violations simply misses the point of the
nature of the Doyle due process violation.

2. Post-Miranda Silence is "Insolubly Ambiguous."

This Court in Doyle indicated why it was
necessary to establish a clear constitutional
rule forbidding the use of a defendant's silence

to impeach him after he received Miranda

warnings:

Silence in the wake of these warnings
may be nothing more than the arrestee's
exercise of these Miranda rights. Thus,
every post-arrest silence is insolubly
ambiguous because of what the State is
required to advise the person arrested.
426 U.S. at 417.

Under these circumstances, a defendant's
silence has little, if any, probative

significance. It is both unreliable and

23

suspect, given the state's role in securing
that silence.

Furthermore, a jury is likely to give undue
weight to such silence if stressed by the
prosecutor on cross-examination and on
summation. In the same way that an alleged
confession is devastating evidence in a criminal
trial and therefore any use of an involuntary
confession requires automatic reversal, see

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

ambiguous silence before the jury has such an
undesirable impact that it is aifficult, if not
impossible, to weigh its effect. Permitting the
prosecutor to cross examine a defendant on his
silence or argue that the silence has any
significance would confuse the jury and upset
its truth seeking function in a fundamental
manner. Thus, like other errors that upset the
truth-seeking function without automatically

rendering the verdict suspect, harmless error is

24

the appropriate standard for Doyle violations.

See Rose v. Clark, 106 S. Ct. at 3105-07.

II. NEITHER THE HABEAS CORPUS STATUTE NOR
THE NATURE OF HABEAS CORPUS JUSTIFIES A
REQUIREMENT OF ACTUAL PREJUDICE AFTER
CONSTITUTIONAL ERROR IS SHOWN.

Petitioner's second point deals not with
the constitutional right asserted, but with the
stage at which the constitutional violation is
found. Petitioner starts with the proposition
that this Court has already placed upon habeas
petitioners some additional burdens that do not
apply on direct review, e.g. default and
exhaustion requirements, retroactivity
determinations, and then argues, in effect, that
for reasons of federalism and finality, this
Court should judicially amend the habeas corpus
statute and make it still more difficult for a
state prisoner to succeed on habeas corpus.

But there is nothing in the habeas corpus

statute or in this Court's decisions

interpreting it that suggests a generalized need

25

to increase the burdens that a state prisoner
must bear after he has shown constitutional
error, as if he were a high jumper who must leap
over a progressively higher bar each time he is
unsuccessful on a prior jump. The habeas corpus
statute, as interpreted by this Court, fully
accounts for the State's interests in federalism
and finality.

A. The Court Should Interpret the Habeas Statute

In Light of Congressional Intent and the
Purposes of Habeas Corpus Review.

We start with the obvious proposition that
a specific statute and specific rules passed by
Congress define the federal courts' habeas
corpus jurisdiction. It 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.

Indeed, Congress could not possibly have

intended that the habeas corpus statute should

26

be construed in the manner that petitioner
suggests. Over the past four years Congress has
had before it a number of proposals to restrict
habeas corpus jurisdiction, some of which sought
to accomplish the same goals as the petitioner.
See S. 238, 99th Cong. lst Sess. (1985) and S.
238, Habeas Corpus Reform, Hearings before the
Sen. Judiciary Comm., 99th Cong., lst Sess.
(1985). Congress refused to enact any part of
that provision or similar bills introduced
earlier and described in the hearings. Under
well-established canons of statutory
construction, this Court should not adopt a new
construction of a statute when Congress has
explicitly rejected the suggested revision. See

Blue Chip Stamps v. Manor Drug Stores, 421 U.S.

723, 733 (1975) (SEC-proposed amendment rejected
by Congress; Court refuses to interpret statute
along lines of rejected amendment).

The habeas corpus statute specifically

grants jurisdiction in the federal courts in all

27

cases in which the petitioner claims he has been
detained "in violation of the Constitution or
laws ... of the United States." 28 U.S.C. Sect.
2241(c) (3). Likewise, this Court's appellate
jurisdiction over state criminal trials is based
upon the assertion of a "right, privilege or
immunity ... specially set up or claimed under
the Constitution.” 28 U.S.C. Sect. 1257(3). On
the face of the statutes, review of substantive
constitutional rights are protected to the same
extent under both provisions.

This Court has consistently noted the dual
systems that have been established to insure
that constitutional rights in the criminal
justice system are fully protected, with the
habeas corpus statute an “additional safeguard"

in this regard. Stone v. Powell, 428 U.S. 465,

491 n.31 (1976). See also Kuhlmann v. Wilson,

106 S. Ct. 2616, 2623 (1986) (describing the
extension of federal habeas corpus jurisdiction

to include review of all constitutional errors,

28

until it became substantially coextensive with
direct review by this Court). Congress adopted
this expansion of habeas corpus review, amending
the statute to conform to this Court's

interpretation of the law. See Kuhlmann, 106 S.

Ct at 2634 (Brennan, J. dissenting).

Thus, the entire federal judiciary took on
the function and responsibility of enforcing
constitutional safeguards in the state court
criminal justice systems, with this Court
reviewing a few cases each term on direct review
and the district courts available -- in
accordance with their Statutory mandate -- to
assume jurisdiction over the thousands of cases
that this Court could not review on direct
appeal.

Under this scheme and this Court's current
interpretation of the statute, interests of
federalism and finality are fully served. For
example, the constitutional question must be

first presented to the state courts for their

29

consideration, and review must be fully
exhausted. Any fact finding made by the states
courts, including the state appellate courts,
must be accepted by the federal courts. Claims
that are procedurally defaulted in the state
courts can be brought in the federal courts only
upon ashowing of "cause" and "prejudice." Claims
that illecally seized evidence have been
improperly introduced at trial will not be heard
by the federal courts if fully litigable in the
state courts.

Once the prisoner has complied with these
requirements, the state's interests have been
fulfilled, and habeas corpus review should then
be available as a safety net to catch those few
claims "of ‘disregard of the constitutional
rights of the accused...where the writ is the
only effective means of preserving his rights.'"

Kuhlmann v. Wilson, 106 S. Ct. 2616, 2623 (1986)

(quoting Waley v. Johnson, 316 U.S. 101, 104-05

(1942)). Given the state's wholly adequate

30

Opportunity to protect a defendant's
constitutional rights, it lacks any cognizable
interest in having federal court review made
under a lesser standard than the state applied
in its initial review.

Viewed from another perspective, the
federal courts perform what Justice Harlan
called "a quasi-appellate review function,

forcing both trial and appellate courts in both

the federal and state System to toe the :

constitutional line." Mackey v. United States,

401 U.S. 667, 687 (1971) (Harlan, J.,
concurring) (emphasis added). However, the
"continued availability of a mechanism for

relief" from constitutional error, Kaufman v.

United States, 394 U.S. 217, 226 (1969), would

be seriously undermined if the standard of
review was changed in the manner Suggested by
petitioner. The on-going dialogue between the
State and federal courts on the meaning and

definition of the Bill of Rights would be

31

seriously interrupted and distorted. In effect,
state and federal courts would no longer be
speaking the same language. Federal courts
reviewing cases for constitutional error would
no longer be viewing the case from the same
perspective and under the same standards as the
state courts.

Federal courts might also find it easier to
reach the “actual prejudice” standard first
before deciding whether constitutional error had
occurred -- in effect, deciding that even if
error were found, it would not have been
prejudicial -- and thus never reach the
substantive issues. Indeed, such an approach
would also be consistent with traditional canons

of constitutional adjudication. In Strickland,

104 S. Ct. at 2069-70, this Court suggested such
an approach would be appropriate. The entire
"quasi-appellate" procedure would become
distorted in a manner that Congress could not

possibly have intended. And an important guide

32

to the state courts in constitutional
adjudication would be largely eliminated.

That approach would entail heavy
constitutional costs. This Court can take
judicial notice of the fact that some serious
constitutional violations are not caught on
their first review through the state court
System or on direct review. The alternate route
of habeas corpus is statutorily required to
catch such cases the second time around.
Certainly, petitioner's approach does nothing to
encourage more careful state court consideration
of constitutional claims.

Furthermore, it should be noted that cases
establishing some of the most important
constitutional rights over the past decades have
found their way to this Court through federal

habeas. See e.g., Cuyler v. Sullivan, 446 U.S.

335 (1980); Rose v. Mitchell, 443 U.S. 545

(1979); Crist v. Bretz, 437 U.S. 28 (1978). If

federal courts routinely reviewed cases for

33

actual prejudice prior to an examination of
constitutional claims, establishment of
important constitutional rights could be
delayed, if not indefintely postponed. See e.g.,

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

It would surely be a significant strain
on this Court and a loss to our federal
system if additional substantive burdens were
placed on habeas petitioners in a manner that
would jeopardize plenary review of their
claims in federal court. Petitioner's "actual
prejudice" standard is a significant shift
away from the purpose of habeas corpus as
defined both by Congress and by this Court
-- determining whether a prisoner's
constitutional rights have been violated. It
is a giant step toward reserving the writ
only for those who can show factual innocence
-- a step this Court and Congress has

consistently rejected.

34

B. The Actual Prejudice Standard Would Impose
Significant Costs on the Federal System.

The petitioner's standard would place
substantial costs on the current structure of
criminal justice review. But the State presents
no countervailing interests that would justify
this radical change.

The proposal proffers no limitations as to
the type of constitutional right to which the
"actual prejudice” standard would apply. It
would apply to rights where automatic reversal
would now be required. Even blatant violations
of the most basic and fundamental rights --
right to counsel, right to an unbiased judge,
right against use of coerced confessions, right
against racial discrimination in the selection
of grand and petit juries -- would not result in
reversal on habeas corpus unless actual
prejudice were shown. In other words, the
proposal treats all rights, including those that

are fundamental to a fair trial or to our

35

notions of justice, the same way, at the least
rigorous end of the review spectrum.

If the Courc, after adopting the "actual
prejudice" standard felt compelled to create
exceptions for some fundamental rights on habeas
corpus, it would turn the habeas corpus statute
on its head. In the face of the Congressional
command to insure that no person be imprisoned
"in violation of the Constitution,” this Court
would be forced to start a new process of
weighing different rights in the habeas context,
under standardsof its own creation.

Petitioner makes absolutely no showing of
any need for its proposal. Petitioner appears to
be motivated by a generalized desire to make it
more difficult for a state prisoner to succeed
in a habeas proceeding. In view of the
substantial accommodation to the State's
interest already required prior to habeas review
-- exhaustion, procedural default, preclusion of

claims of use of illegally seized evidence,

36

presumption of correctness to state fact
finding, colorable innocence for resubmitted
claims -- those prisoners whose constitutional
rights have in fact been violated should not be
denied relief under the currently applicable
standards of review. These standards impose no
significant burdens on the States. Less than 2%
of the submitted petitions are successful (in
only 1.95% of the petitions determined in fiscal
year 1986 was judgment rendered for the
prisoner, according to figures supplied by the
Administrative Office of the U.S. Courts).
Before the Court acts to radically alter the
nature of habeas corpus review, the Petitioner
should be required to demonstrate the necessity

of such a change, See e.g., Stone v. Powell, 428

U.S. at 492. Given the current minimal success
rates of habeas petitioners, the actual

prejudice requirement is totally unnecessary.

37

CONCLUSION
For the reasons stated above, the judgment

below should be affirmed.

Lees, vse lly submitted,
ON FRI

Counsel i _
Hofstra Law School
Hempstead, N.Y. 11550
(212) 737-0400

JOHN A. POWELL

VIVIAN O. BERGER

DAVID B. GOLDSTEIN

American Civil Liberties
Union Foundation

132 West 43d Street

New York, N.Y. 10036

(212) 944-9800

HARVEY GROSSMAN

Roger Baldwin Foundation
of ACLU, Inc.

220 South State Street

Chicago, IL. 60604

(312) 427-7330

Attorneys for Amici
Dated: New York, N.Y.
March 16, 1987

38

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0131%3A8. Public record. Not legal advice.