# Reply Brief — Brecht v. Abrahamson

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0310%3A07

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 619

## Text

DMeEIoie VU, Usde
FILED

OST 13 1992

No. 91-7358 | OFMOE OF THE CLERK

In The

Supreme Court of the United States
October Term, 1992

¢

TODD A. BRECHT,

Petitioner,

GORDON A. ABRAHAMSON, SUPERINTENDENT,
DODGE CORRECTIONAL INSTITUTION,

Respondent.

S

On Writ of Certiorari
To the United States Court of Appeals
For the Seventh Circuit

.

REPLY BRIEF FOR PETITIONER

S

ALLEN E. SHOENBERGER
(Appointed by this Court)

Loyola Law School

1 E. Pearson

Chicago, Illinois 60611
(312) 915-7141

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO. (800) 225-4964
OR CALL COLLBCT (402) 42 2831

SBEST AVAILABLE COPY

Question Presented

Whether, when considering violations of Doyle v. Ohio in
federal habeas corpus proceedings, it is consistent with
constitutional due process and the Sixth Amendment
right to trial by jury to abandon the standard of review of
whether constitutional error was harmless beyond a rea-
sonable doubt and substitute the standard of whether the
error substantially affected the course of the trial.

TABLE OF CONTENTS

Page
Table of Authorities ......ssesceencsnssuenenneneee iii
Statement of the Case - a Reply..................- 1

The Limited Grant ot Certiorari: What Isn’t at Issue 6
The Question Peeesmted ...«ssosseecessneuneeee 8

A. The Practice and Experience of This Court and
Lower Federal Courts Applying the Chapman
Standard Suggest No Change is Justified .... 8

B. Statutory Interpretation Cases such as Chap-
man Should be Given Particular Deference,
Since Congress Can Overturn a Decision it
Considers Incorrect, Unlike Constitutional

DecishORs. ...ccccvccccessceessseee 12
The Harmiess Error Standiacd....ccctcscsssvneeee 14
Comcdeasle ...ccccccccvcescecsessesn eee 20

iii
TABLE OF AUTHORITIES
Page

Supreme Court Cases
Alaska S.S. Co. v. United States, 290 U.S. 256 (1933) .... 12

Anderson v. Nelson, 390 U.S. 523 (1968)............... )
Apex Hosiery Co. v. Leader, 310 U.S. 469 (1940)....... 13
Bell v. New Jersey and Pennsylvania, 461 U.S. 773

EE EEE 12
Burger v. Kemp, 483 U.S. 776 (1987) ................. 11
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393

ee Le ks ces cccccccccccceccces 14
Chambers v. Maroney, 399 U.S. 42 (1970) .............. 9
Chapman v. California, 386 U.S. 18 (1967) ........ passim
Cupp v. Naughten, 414 U.S. 141 (1973).......... caenee 4
Cuyler v. Sullivan, 446 U.S. 335 (1980)............... 10
Doyle v. Ohio, 426 U.S. 610 (1976).......... 7, 8, 17, 18
Dutton v. Evans, 400 U.S. 74 (1970)................... 9
Estelle v. McGuire, 112 S.Ct. 475, 116 L.Ed.2d 385

Ne eS c docs cbccscccccccccece. 11
Estelle v. Williams, 425 U.S. 501 (1976)................ 9
Francis v. Franklin, 471 U.S. 307 (1985) .............. 10
Francis v. Henderson, 425 U.S. 536 (1976).............. 4
Harris v. Reed, 489 U.S. 255 (1989)... 2.0.6... 11
Henderson v. Morgan, 426 U.S. 637 (1976) ............. 9

Hitchcock v. Dugger, 481 U.S. 393 (1987) ............. 11

iv

TABLE OF AUTHORITIES — Continued

Page
Hopper v. Evans, 456 U.S. 605 (1982)..............44. 10
Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977)....... 13
Jackson v. Virginia, 443 U.S. 307 (1979)............04.. 5
Kelly v. Robinson, 479 U.S. 36 (1986)..............64.. 13
Kimmelman v. Morrison, 477 U.S. 365 (1986).......... 10
Kotteakos v. United States, 328 U.S. 750 (1948)......... 8
Loper v. Beto, 405 U.S. 473 (1972)... 2.2... 66. ccc eeees 9
McKaskle v. Wiggins, 465 U.S. 168 (1984)............. 10
Manhattan Properties v. Irving Trust Co., 291 U.S.

Be Nd Oank.ncncknvaseesdbecnuussadndssouseens 12
Milton v. Wainwright, 407 U.S. 371 (1972)............. 9
Moore v. Illinois, 434 U.S. 220 (1977).................4. 9
Mullaney v. Wilber, 421 U.S. 684 (1975) ............... 9
Murray v. Carrier, 477 U.S. 478 (1986) ............... 15
Monell v. Department of Social Services, 436 U.S. 658

SEDs 2066 be ceucunnnéushedededindenadaaceiabnnns 14
N.L.R.B. v. Hendricks County Rural Elec. Membership

Cg GES GR Be GU csv cscccsccccnccsesis oo 1
New York v. United States, 326 U.S. 572 (1946) ....... 15
Parker v. Dugger, 111 S.Ct. 731, 112 L.Ed. 812 (1991) .... 11
Parker v. Randolph, 442 U.S. 62 (1979) ..7............ 10
Perry v. Leeke, 488 U.S. 272 (1989)..:............005. 11

Roberts v. LaVallee, 389 U.S. 40 (1967)................. 9

v

TABLE OF AUTHORITIES - Continued

Page
Rose v. Clark, 478 U.S. 570 (1986)..................4.. 10
Rose v. Mitchell, 443 U.S. 545 (1979) ..............4.. 10
Rushen v. Spain, 464 U.S. 114 (1983)................. 10
Sandstrom v. Montana, 442 U.S. 510 (1979)........... 10
Square D. Company v. Niagara Frontier Thrift
Bureau, Inc., 476 U.S. 409 (1986) .................. 13
State of Missouri v. Ross, 299 U.S. 72 (1936).......... 13
Stone v. Powell, 428 U.S. 465 (1976)............. 7,9, 10
Stovall v. Denno, 388 U.S. 293 (1967)........ tees 9
Strickland v. Washington, 466 U.S. 668 (1984)....... 5, 10
Stringer v. Black, 112 S.Ct. 1130 (1992)............... 11
Teague v. Lane, 489 U.S. 288 (1989) .......... eeesed 7, 11

Universal Camera Corp. v. National Labor Relations
EY SI ED duds ctbccncebowactccieccs 5

Ulster County Court v. Allen, 442 U.S. 140 (1979)..... 10
United States v. Elgin, ]. & E. Ry. Co., 298 U.S. 492

PS Se ehddanstnts canunpepctckivedecokentecchuds 13
United States v. Rutherford, 442 U.S. 544 (1979)....... 13
United States v. Hale, 422 U.S. 171 (1975)............ 1
Wainwright v. Greenfield, 474 U.S. 284 (1986)......... 10
Wainwright v. Sykes, 433 U.S. 72 (1977)............... 9

Whiteley v. Warden of Wyoming Penitentiary, 401
ee Se Unico cknsnscessddeneuncuseestiessves 9

vi

TABLE OF AUTHORITIES — Continued

Withrow v. Williams, 91-1030...................45.
Wright v. West, 112 S.Ct. 2482 (1992).............

Yates v. Evatt, 111 S.Ct. 1884, 114 L.Ed.2d 432

Aa TE aa CSE RRS coer

OTHER AUTHORITIES

Grano, Prophylactic Rules in Criminal Procedure: A
Question of Article Ill Legitimacy, 30 North-

CS Es Ge Gs odccccdvccecescccees:

Levi, An Introduction to Legal Reasoning, 15

the PR 8 Ree

Report to the Attorney General on Adverse Inferences
From Silence, 22 U. Mich. J. of Law Reform 1005

REE Ee eee eee ee Se eee
Supreme Court Rule 14.1(a)...............---005-

Sutherland, Statutory Construction, Vol. 2b (5th

tt i civcdeinegeanesieherieesusseatcanees
Rules 8 (c), Rules Governing 2254 and 2255 Cases ....
28 U.S.C. sections 2254 and 2255.................
Pein DO DUP I Bec ccccccccccevcnscceses

STATEMENT OF THE CASE - A REPLY

“In this case the oniy contested issue is whether the
death resulted from an intent to kiil or a tragic accident.”
Pet. Br. 5. The dispute is about innocence not acts. Do
tainted jury determinations of intent comport with due
process? Mr. Brecht continues to maintain that he is inno-
cent of murder and challenges the accuracy of his guilt
determination.'

The theory of the State of Wisconsin is that a little
poison may be all right, but too much will kill and
therefore they should be allowed to use a restrained
quantity of it and let them be the judge of what quantity
they use. The Fifth Amendment does not state that testi-
mony obtained by means of compelled self-incrimination
or by the failure of the defendant to incriminate himself
may be used and then dispensed with at the whim or will
of the prosecution or the trial judge.

The Solicitor General asserts Doyle violations concern
“nothing more than the admission of truthful evidence
regarding the defendant's silence.” (Br. p. 17) That dis-
plays fundamental confusion about the issue at bar: Stone
v. Powell was not about truthful testimony regarding ille-
gally seized physical evidence; Stone was about admis-
sion of the physical evidence, itself. This case is about
poisoning a trial by references to post Miranda silence.
The silence and the use of that silence is at issue; truthful
testimony about silence is not the issue. “Truthful silence”
and “untruthful silence” are grotesque concepts. The use
of such silence lies at the core of the Fifth Amendment

' Relevant jury instructions are at Jt. App. 24-28.

bar on compelling a person to be a witness against him-
self.?

The statement of the case of the State of Wisconsin’s
brief and the statement of the Solicitor General's brief
obscure this single contested issue. Moreover, each
brief in its “statement” slants the factual presenta-
tion, including subtle error of fact in this Solicitor Gen-
eral’s brief.2 Each brief confuses testimony, argues

2 Statements are different from silence. Grano’s discussion
of “prophylactic” rules doesn’t mention the use of silence in his
treatment of Miranda issues for a very good reason. Grano,
Prophylactic Rules in Criminal Procedure: A Question of Article III
Legitimacy, 80 Northwestern L.Rev. 100, 106-114 (1985). By
Grano’s definition of prophylactic, the possibility of violating
the rule without violating the constitution, no rule about the use
of silence can ever be prophylactic. Since prosecutorial use of
silence compels speech, whatever questions might lie about
Miranda’s prophylactic nature or constitutional basis do not
arise in the instant case. The relevance of the Miranda warning is
the formal notice to a person that silence is his right. The core of
the Fifth Amendment guarantee against self incrimination is the
right to remain silent. Any claim that this court’s construction of
the word “compelled” in the Fifth Amendment is not “doing
constitutional law” borders on the frivolous.

3 “[Fjound a rifle in their gun cabinet.” Solicitor General's
brief, p. 1, Jt. App. 99. The rifle is not from a gun cabinet — it was
from the bedroom closet of the room in which Todd Brecht slept.
Jt. App. 139, para. #3.

4 “Because petitioner had taken the receiver off the upstairs
telephone off the hook, the downstairs telephone was inoper-
able.” Solicitor General’s brief p. 1. This confuses which tele-
phone was off the hook. Moreover, the cause of the downstairs
telephone in the Hartman master bedroom being off the hook
(Jt. App. 140, para. 9) was disputed at trial and could have been
caused by Roger himself immediately after the shooting.

inferences,> and omits significant facts and testimony.®
Each such misstatement and inference tends to increase

° For an example of an instance of translating a possible
inference into a factual conclusion while implying a witness
made statements never made: “horizontal to slightly downward
trajectory, a path inconsistent with a claim the weapon had
discharged while petitioner was falling.” Solicitor General's
brief p. 3.

The coroner, Dr. Belau, made no “path inconsistency”
remark, although the prosecutor did argue it. Tr. 812. The basis
of this argument was an experiment conducted after the prelim-
inary hearing on Dr. Belau’s body employing a magic marker,
yardstick and carpenter’s level. (Tr. 554) The yardstick was
lined up with marks made on Dr. Belau’s own body and the
carpenter’s bubble read as “a little bit off.” Dr. Belau’s conceded
possible problems with the experiment both with posture (Tr.
554) and uncertainty in determining the exit wound. (Tr. 552)

© For example:

A) The rifle was found outside the house, “suggesting that
petitioner had tried to fire another shot.” Solicitor General’s
brief p. 4. This omits Todd Brecht’s testimony he attempted to
shoot himself, but couldn’t get the gun reloaded and threw it
down. (See Wisconsin brief at p. 6)

The suggestion is also that Todd Brecht attempted to shoot
Roger Hartman again, a suggestion made for the first time only
in the prosecutor’s final closing argument (Tr. 882-883),
although given prominence by the Seventh Circuit opinion. Jt.
App. 100. The defense could do little about this belated argu-
ment except object, which it did. (Tr. 883) The defense could not
discuss the argument’s conflict with Roger Hartman’s statement
he sneaked out of the house, nor its bizarre relationship with the
prosecution’s elaboraie conjectures on premeditation and
motive.

B) “The prosecution offered a motive for the killing: peti-
tioner’s hestility to Hartman because of the latter’s objection to
petitioner’s homosexuality.” Solicitor General brief, p. 4.

The prosecution had clearly represented prior to trial that it
would prove through Molly Hartman that her husband’s nega-

the likelihood of wrongful intent. These slanted state-
ments present the evidence as if the standard of review

tive attitude towards homosexuality had been communicated to
Todd Brecht. (Tr. 71-72) No such testimony was forthcoming,
quite the opposite. See Tr. 419-421. Molly Hartman also testified
that Roger did not condemn or put down Todd, (Tr. 421) there
were no arguments, (Tr. 422) it was a good relationship. (Tr. 422)
She also testified she knew of no reason Todd Brecht would
have wanted to hurt her husband. (Tr. 422)

C) A recitation of statements by Roger Hartman to neigh-
bors appears at p. 4, Wisconsin brief but the recitation omits the
contemporaneous statement by Roger Hartman that he didn’t
know if Todd Brecht had anything against him. (Tr. 164, 175, Pet.
Brief 42)

D) “[T]}he prosecutor impeached this testimony with let-
ters Brecht had written, with homosexual overtones, to a jail
inmate friend in Georgia. . . .” Wisconsin brief p. 7. The first of
these two letters was never mailed, Tr. (626-27) the second letter
never completed, and consisted of, “Dear Darrell, well here we
are” and a date. (Tr. 628-29) The homosexual overtones in the
other letter are far from obvious. (Tr. 621-22)

E) Officer Polus testified Brecht said the night he was
arested: “that he didn’t mean to shoot anybody and he didn’t
mean to kill anybody, and later he said he didn’t mean for
anybody to get murdered.” (Tr. 727) (Wisconsin Brief p. 7-8)

In his initial closing argument the prosecutor stated, “Now
he was then taken into Winona and they then find the 14 rounds
of ammunition on him, and Officer Polus says he hears him
talking on the phone to his step father (sic), ‘it was a mistake, it
was an accident, | didn’t murder anyone.’ Why murder - a
Freudian slip.” (Tr. 817) The lengthy quote from Tr 873, at Wis-
consin brief p. 8, responds to this argument, and was imme-
diately preceded by, “Did they give Miranda and say Mr. Brecht
would you like to make a statement, no they just gave it to him
and they left.” The quote’s last sentence is incomplete (and lacks
ellipsis) for it ends: “ . . . and | would say, ‘I didn’t murder
anybody,’ but that’s what it says on the paper that he got:
murder.” The defense attorney referent for “I would say” was to

rejected by this court in Universal Camera Corp. v. National
Labor Relations Board, 340 U.S. 474, 487-88 (1951) were the
appropriate standard: it is not, nor can it be so long as
questions of innocence remains at the core of habeas.”

what he would say to the stepfather. The Prosecutor’s referent
for “| know what I would say” is what he would say to the
police.

F) “It was also a condition of Brecht’s probation that he
was not to... leave the state without permission.” Wisconsin Br.
p. 4. “This suggested Brecht’s real plan was to leave Wisconsin
in violation of his probation. . . . ” Wisconsin Br. p. 7. “It’s
questionable whether the record supports the proposition that
petitioner wanted tu leave Wisconsin.” District Court opinion,
Jt. App. 93.

? Wisconsin requests for the first time in its brief to this
court application of the standard from Jackson v. Virginia 443
U.S. 307 (1979) (Wisconsin Br. 37) a standard developed to eval-
uate a jury determination untainted by error affecting the delib-
erative process. It is hard to conceive of a standard more
violative of fundamental due process, but by not raising the
argument earlier, Wisconsin has waived it. Wisconsin similarly
requests application of Strickland v. Washington 466 U.S. 668
(1984). Unlike Jackson which cannot have been incorporated by
reference in the single mention of scope of review below, a
footnote on page 30 of Wisconsin’s brief to the Seventh Circuit,
Strickland might be considered as so incorporated, even if awk-
wardly so. However, as stated in Petitioner’s Br. p. 40, none of
the policy reasons underlying a standard for testing ineffective
assistance of defense attorneys make any sense when the pros-
ecutor inserts error into the trial, for the government is respons-
ible for and can prevent such error. 466 U.S. 693. The heavy
burden placed upon habeas petitioners (as well as on direct
appeal) by Strickland is but one of many examples of how exis-
tent rules of law beiie arguments that habeas is a rerun of

appeal.

The close balance of evidence on the whole record is
one obvious reason each court has reversed the preceding
judgment, and presumably the reason that the Seventh
Circuit found it necessary to change the standard of
review.® Prosecution misstatements of fact before the jury
may ordinarily constitute categorical “harmless error”?
reflecting only vigorous representation, but such state-
ments on appeal disserve both the function of the appeal
process and the grant of certiorari in this case.

The Limited Grant of Certiorari: What Isn’t at Issue

The certiorari grant in this case was limited to one
question presented, but has become three different ones
in the Brief for Wisconsin, changed in substance by the
Solicitor General’s amicus brief, changed to completely
different issues by other amici, (Criminal Justice Legal
Foundation, and County of Wayne) and supplemented by
yet another question by amici California et al. The issues

® Only by speculation can one determine the basis of Judge
Cudahy’s concurrence below, i.e. whether Judge Cudahy con-
curred by applying the new standard he objected to or by apply-
ing the old standard (J.App.128-130), contrary to the Solicitor
General's Brief, p. 7, n.3. The district court correctly stated and
applied existent harmless error law, Jt. App. 91-92, finding, “the
state’s references to petitioner's post-Miranda silence . . .
crucial.” “The sole issue for the jury was whether the shooting
was accidental or intentional. With the defense hinging on peti-
tioner’s credibility, the state’s remarks that he simply concocted
a ‘crazy story’ at the time of trial may have been determinative.”
(Jt. App. 92)

* Checked by a combination of the caution that the attor-
neys’ remarks are not evidence (Tr. 775) and the jury’s exposure
to all the evidence.

of whether Chapman should be overturned for cases on
direct appeal, or whether violations of so-alled “pro-
phylactic” rules invoke article Ill concerns, were never
raised by the State of Wisconsin below, and thus were
waived.'° Neither is presented by the case at bar, which is
on collateral review and involves a non-prophylactic rule.
Moreover, both issues are barred from consideration by
Supreme Court Rule 14.1(a) because neither was raised
nor fairly included in the Petition for Certiorari. The
attempted presentation of a Stone v. Powell, 428 U.S. 465
(1976), question by amici California et al while not as
extravagant a claim on the grant of certiorari, is also
barred by Supreme Court Rule 14.1(a), and certainly was
neither the basis of the opinion for the Seventh Circuit
(although mentioned, see Jt. App. 116-19), nor explicitly
raised by Wisconsin below (indeed, declined at Wisconsin
Brief p. 31, n.6), hence waived as well. Should this court
decide that any of the additional amici questions are
properly included, Petitioner respectfully requests leave
to brief them at a later time."

© No scope of review issue had been raised in the district
court. Jt. App. 135. The argument that a Doyle v. Ohio, 426 U.S.
610 (1976), violation is not a constitutional violation is raised for
the first time in Wisconsin’s brief at 41 and has clearly been
waived. Moreover, such a question raises Teague v. Lane, 489 US.
288, 306-316 (1989) problems, for it seems unfair to confine an
accused to direct appeal to raise new constitutional claims, but
to permit the state to raise new constitutional claims on collat-
eral review.

"| The court's attention is directed to Respondent's brief in

Withrow v. Williams, 91-103(-for a substantive response on the
Stone v. Powell question.

The Question Presented

The question that is properly presented is whether
the Seventh Circuit determination to replace the Chapman
v. California, 386 U.S. 18 (1967), standard on federal
habeas considerations of Doyle v. Ohio violations with the
Kotteakos v. United States, 328 U.S. 750 (1948), standard
comports with due process, the Sixth Amendment, and
section 2254 as interpreted over a quarter of a century by
this and other federal courts.12

A. The Practice and Experience of This Court and
Lower Federal Courts Applying the Chapman
Standard Suggest No Change is Justified

The Solicitor General notes at Brief p. 12, fn. 7, that
the courts of appeals have uniformly held that Doyle error
is subject to harmless error analysis. Such uniformity
only increases the weight and level of justification neces-
sary to change statutory construction that has been
applied for decades without any particular indication
that the standard was not working.

Moreover, this court as a whole, and indeed, virtually
every sitting justice over the last quarter of a century, has
repeatedly applied Chapman on habeas review of state

2 Indeed, the error is so central to the jury decisionmaking
process, Petitioner asserts that proper application of the Kot-
teakos standard should cause the writ to issue. (Pet. Br. 36-37,
quoting Kotteakos, 328 U.S. at 760)

convictions.'? Such consistent application by both this
court and lower federal courts (as well as state courts in

8 1960s DECISIONS: Stovall v. Denno, 388 U.S. 293, 306
(1967) (J. Black in dissent would have remanded for consider-
ation under Chapman); Roberts v. LaVallee, 389 U.S. 40, 44 (per
curiam) (1967) (Justice Harlan); Anderson v. Nelson, 390 U.S. 523,
524 (1968) (per curiam, “[W]Je agree with [the dissenting judge
in the Court of Appeals] that comment on a defendant's failure
to testify cannot be labeled harmless error in a case where such
comment is extensive, where the inference of guilt from silence
is stressed to the jury as a basis of conviction, and where there is
evidence that would have supported acquittal.”)

1970s DECISIONS: Dutton v. Evans, 400 U.S. 74, 90, 108 n.10
(1970) (concurring and dissenting opinions apply Chapman,
including Chief Justice Burger, and Justices Blackmun, Stewart,
Marshall, Black, Brennan and Douglas); Chambers v. Maroney,
399 U.S. 42 (1970) (direct review of state habeas, 7 justice opin-
ion for the court applied Chapman as did the separate opinion by
Justice Harlan); Whiteley v. Warden of Wyoming Penitentiary, 401
U.S. 560, 569 n.13 (1971) (dissent by J. Black, C.J. Burger and
Justice Blackmun applies Chapman test.); Milton v. Wainwright,
407 U.S. 371, 378, 382 (1972) (every justice applies harmless
error test); Loper v. Beto, 405 U.S. 473, 483 n.12, 485 (1972); Cupp
v. Naughten, 414 U.S. 141, 143 n.2 (1973) (harmless error test not
reached, because no error); Mullaney v. Wilber, 421 U.S. 684, 705
(1975) (Concurring opinion of Justice Rehnquist joined by C.J.
Burger.) Stone v. Powell, 428 U.S. 465, 496 (1976) (C.J. Burger for
the court, “The operation of the [exclusionary] rule is therefore
unlike that of the Fifth Amendment's protection against com-
peiled self incrimination.”); Estelle v. Williams, 425 U.S. 501,
506-507 (1976) (C.J. Burger opinion cites Chapman with
approval); Henderson v. Morgan, 426 U.S. 637, 647, 650 (1976)
(both the opinion for the court by Justice Stevens and separate
opinion by Justice White refer to the harmless error standard as
appropriate); Francis v. Henderson, 425 U.S. 536, 553 n.4 (1976);
Moore v. Illinois, 434 U.S. 220, 222, 233-234 (1977) (7 Justices
remand for application of Chapman, Justice Blackmun concurs in
Chapman remand.); Wainwright v. Sykes, 433 U.S. 72, 97-98,

10

116-117 (1977) (Justice White concurrence describes what the
court does as application of harmless error analysis, dissent by
Justices Brennan and White, prejudice in the cause and preju-
dice test “appears to bear a strong resemblance to harmless
error doctrine.”); Parker v. Randolph, 442 U.S. 62, 70-71 & n.5, 78,
81 (1979); Rose v. Mitchell, 443 U.S. 545, 552-59 (1979) (Justice
Blackmun for the court rejected Justice Jackson’s position that
racial discrimination in grand jury selection was always harm-
less error if the trial jury was untainted. The court also rejected a
Stone v. Powell argument, 443 U.S. 560-61, and pointed out that
the state judges might be too close to the grand jury system to
appreciate its defects. 443 U.S. 563. Dissent by Justice Rehn-
quist, 443 U.S. 587 n.10 “[this] has nothing to do with the guilt or
innocence of the prisoner.”); Ulster County Court v. Allen, 442
U.S. 140, 177 (1979) (dissent by Justice Powell).

1980s DECISIONS: Cuyler v. Sullivan, 446 U.S. 335, 349
(1980); Hopper v. Evans, 456 U.S. 605, 613-14 (1982); Rushen v.
Spain, 464 U.S. 114, 117 n.2, 120, 122, 128 nn.6 & 7 (1983);
Strickland v. Washington, 466 U.S. 668, 693, 711 (1984); McKaskle
v. Wiggins, 465 U.S. 168, 177 n.8, 198 n.6 (1984); Francis v. Frank-
lin, 471 U.S. 307, 325 part III (1985); Rose v. Clark, 478 U.S. 570,
582, 588 (1986) (question whether automatic reversal analysis or
Chapman analysis should apply to jury instructions that violate
Sandstrom v. Montana, 442 U.S. 510 (1979) (Justice Stevens con-
curs critical of applying harmless error if constitutional error
goes beyond reliability of the guilt or innocence determination,
but that is the value being protected in this case. Justice Black-
mun in dissent, “When a defendant contests the issue of intent a
reviewing court will rarely be capable of deciding whether the
error contributed to the verdict; it will have no way of knowing
how the jury treated the question of intent.”); Kimmelman v.
Morrison, 477 U.S. 365, 382, 395 n.2 (1986) (Stone v. Powell restric-
tions on habeas held inapplicable to 6th Amendment claims of
ineffective assistance of counsel, Justice Brennan for the court,
Justice Powell concurs joined by C.J. Burger and Justice Rehnqu-
ist); Wainwright v. Greenfield, 474 U.S. 284, 290 n.5, 291, 301

11

their own proceedings) indicate the viability of the Chap-
man standard and are entitled to deference.'*

(1986) (silence of defendant used to impeach insanity plea)
(Justice Stevens’ opinion for the court quotes Justice White from
United States v. Hale, 422 U.S. 171 (1975) that due process is
offended by the use of defendant's silence at trial. Justice Rehn-
quist and C.J. Burger concur, a minute extract from the prosecu-
tion’s closing argument can be harmless error); Burger v. Kemp,
483 U.S. 776 (1987) (didn’t actually need to apply harmless
error); Hitchcock v. Dugger, 481 U.S. 393, 399 (1987); Teague v.
Lane, 489 U.S. 288 (1989) (issue not reached); Harris v. Reed, 489
U.S. 255 (1989) (implicit in remand); Perry v. Leeke, 488 U.S. 272,
278, 285 (1989) (Justice Stevens’ opinion for court, dissent by
Justice Marshall, joined by Justices Brennan and Blackmun).

1990s DECISIONS: Yates v. Evatt, 111 S.Ct. 1884, 1897, 114
L.Ed.2d 432 (1991) (on certiorari from habeas in state court,
Justice Souter opinion for the court, Justice Scalia and Justice
Blackmun concur); Estelle v. McGuire, 112 S.Ct. 475, 484, 116
L.Ed.2d 385 (1991) (Justice O’Connor and Stevens concur in
part, dissenting in part); Parker v. Dugger, 111 S.Ct. 731, 738, 112
L.Ed. 812 (1991); Stringer v. Black, 112 S.Ct. 1130, 1137-40, 1145
(1992) (Justice Souter’s dissent joined dy Justice Thomas and
Chief Justice Rehnquist discusses harmless error analysis as not
required in sentencing case when no eighth amendment viola-
tion occurred.); Wright v. West, 112 S.Ct. 2482, 2493 (1992).

4 “We must be mindful of the cannon that “the construc-
tion of a statute by those charged with its execution should be
followed unless there are compelling indications that it is
wrong.” N.L.R.B. v. Hendricks County Rural Elec. Membership
Corp., 454 U.S. 170, 177 (1981). Federal courts are charged with
executing the federal habeas Statutes.

12

B. Statutory Interpretation Cases such as Chapman
Should be Given Particular Deference, Since
Congress Can Overturn a Decision it Considers
Incorrect, Unlike Constitutional Decisions

The active consideration by Congress of the standard
of review involved in the case at bar has already been
suggested at Petitioner's Brief pp. 18-28. The weight to be
attributed to Congressional inaction regarding judicial
construction of a federal statute depends upon a large
number of factors, including the passage of time, implicit
approval and related amendments. “Of course, the view
of later Congresses does not establish definitively the
meaning of an earlier enactment, but it does have persua-
sive value.” Bell v. New Jersey and Pennsylvania, 461 U.S.
773, 784 (1983). Moreover, the nature of the expression of
view by subsequent Congresses has weight.’ However,
“Where action upon a statute or practical and contempo-
raneous interpretation has been called to the legislature's
attention, there is more reason to regard the failure of the
legislature to change the interpretation as presumptive

1S Even authorization of expenditures sometimes validates
judicial interpretation. Alaska S.S. Co. v. United States, 290 U.S.
256, 262 (1933), see also Manhattan Properties v. Irving Trust Co.,
291 U.S. 320, 334-36 (1933) (“In this situation ‘only compelling
language in the statute itself would warrant the rejection of a
construction so long and so generally accepted.’ If the rule is to
be changed, Congress should so declare.” In 1976 Congress
enacted this court’s rules governing sections 2254 and 2255
cases with certain changes, including an addition to rules 8 (c)
Pub.L. 94-426, 90 Stat. 1334. By then significant Congressional
consideration of Chapman had already taken place (See Peti-
tioner Br. pp. 19-20).

13

evidence of its correctness.” Sutherland, Statutory Con-
struction, (Sth Ed.) Section 49.10, Vol. 2b, p. 76 (1992).
Frankly, the appearance of Congressional acceptance of
the harmless error test by Congressional leaders of both
parties across the entire political spectrum is quite
impressive. (Pet. Br. 27)

Moreover, the Chapman decision of 1967 is for all
intents and purposes a contemporaneous interpretation
of the 1966 amendments to the federal habeas corpus
legislation, legislation which specifically addressed the
weight to be given to certain state court determinations.
“Long-continued contemporaneous and practical inter-
pretation of a statute by the executive officers charged
with its administration and enforcement, the courts, and
the public constitutes an invaluable aid in determining
the meaning of a doubtful statute.” Sutherland, Statutory
Construction, Sec. 49.03, Vol. 2b, p. 7." “[C]onsiderations
of stare decisis weigh heavily in the area of statutory
construction, where Congress is free to change this
court’s interpretation of its legislation.” Illinois Brick Co. v.

* Illinois, 431 U.S. 720, 736 (1977)*”

% Silence for 21 years has evidenced Congressional
approval. United States v. Elgin, ]. & E. Ry. Co., 298 U.S. 492, 500
(1936); see also, Kelly v. Robinson, 479 U.S. 36, 53 (1986).

7 See also, State of Missouri v. Ross, 299 U.S. 72, 75 (1936),
Apex Hosiery Co. v. Leader, 310 U.S. 469, 488-89 (1940), and United
States v. Rutherford, 442 U.S. 544, 554 n.10 (1979). “[T]he Con-
gress is at liberty to correct our mistakes of statutory construc-
tion, unlike our constitutional interpretation, whenever it sees
fit. The controlling principles were best stated by Mr. Justice
Brandeis: ‘Stare decisis is usually the wise policy, because in
most matters it is more important that the applicable rule of law
be settled than that it be settled right. . . . This is commonly true

14

The Harmless Error Standard

Wisconsin's brief at p. 32. n. 9, and the Solicitor
General's brief at Part A of the Argument, display confu-
sion about Petitioner’s argument. It was stated at Peti-
tioner’s brief, p. 4, “This court should continue the
harmless error standard on collateral review of state con-
victions. . . . “ Petitioner’s attorney was certainly
unaware that any argument for “automatic reversal” was
being made.

The Chapman harmless error standard already impli-
cates a threshold decision. Neither de minimus constitu-
tional error, nor constitutional error that the court judges
could have had no material impact upon the jury deter-
mination are grounds for issuing the writ. Such threshold
determination itself serves every legitimate interest in
comity asserted by Wisconsin or amici. Moreover, the

«

even where the error is a matter of serious concern, provided
correction can be had by legislation. . . .’ Burnet v. Coronado Oil
& Gas Co., 285 U.S. 393, 406-407 (1932) (dissenting opinion)
(footnotes omitted)”, Monell v. Department of Social Services, 436
U.S. 658, 714-715 (1978) (dissent by Justice Rehnquist joined by
Chief Justice Burger) (citations omitted). See also Justice Stevens’
opinion for the court in Square D. Company v. Niagara Frontier
Thrift Bureau, Inc., 476 U.S. 409, 424 (1986), which similarly cited
Justice Brandeis as well as Levi, An Introduction to Legal Reason-
ing, 15 U.Chi.L.Rev. 501, 540 (1948): “The doctrine of finality for
Prior decisions setting the course of the interpretation of a
statute is not always followed . . . Nevertheless, the doctrine
remains as more than descriptive. More than any other doctrine
in the field of precedent, it has served to limit the freedom of the
court. It marks an essential difference between statutory inter-
pretation on the one hand and case law and constitutional inter-
pretation on the other.”

15

harmless error threshold determination displays appro-
priate deference to the uncertainty attendant upon jury
determinations while recognizing that even some CON-
STITUTIONAL errors have little or no impact upon seri-
ously contested issues.

Were evidence cited of wholesale overturnings of
state convictions by application of the Chapman standard
on collateral review, the hyperbole that habeas reviews
“frustrat[e] both the States’ sovereign power to punish
offenders and their good-faith attempts to honor constitu-
tional rights,” (Solicitor General's Br. p. 13, quoting, Mur-
ray v. Carrier, 477 U.S. 478, 487 (1986)) might be more
appropriate.1* The authorities cited by Wisconsin and
amici contain neither empirical evidence refuting the psy-
chological studies discussed in Petitioner’s Brief pp.
28-36, nor empirical evidence that Chapman has not
worked. The only “empirical evidence” mentioned by any
authority is a 1938 survey by an ABA committee of the
opinions of judges in five states on permitting adverse
comment on the defendants’ failure to testify.!? That is a
pretty thin reed for overturning a quarter century of
precedent. Besides tangential remarks at Wiscwrin Br. p.
32, n. 9, the empirical studies cited by Petitioner remain
unchallenged.

18 “The process of Constitutional adjudication does not
thrive on conjuring up horrible possibilities that never happen
in the real world and devising doctrines sufficiently compre-
hensive in detail to cover the remotest contingency.” Justice
Frankfurter for the court in New York v. United States, 326 U.S.
572, 583 (1946).

Report to the Attorney General on Adverse Inferences
From Silence, 22 U. Mich. J. of Law Reform 1005, 1070 (1989).

16

The problem illustrated by such empirical studies,
and the application of the Chapman harmless error test in
the case at bar, is that once a determination is made that
- the harmless error threshold has been passed, the court
has determined that some impact may have occurred on
the jury deliberation and decision, but the court’s ability
to quantify that impact is non-existent. When determina-
tion of guilt depends on determination of intent, to sanc-
tion the little bit of poison the Wisconsin special
prosecuts; injected into the trial, virtually eliminates the
Fifth Amendment protection against self incrimination
from all criminal trials involving intent. To presume that
the limited number of cases this court takes on direct
review will effectively deter the actions of prosecutors in
thousands of cases a week begs reality. (Pet. Br. 43)
Indeed, the possibility that serious review may occur in
federal courts may be more important in ensuring that
state courts fairly apply Chapman than actual review in
federal court. Maintaining parallel standards in this
‘instance also facilitates federal court review for the state
court analysis will directly assist the federal habeas court
while strengthening direct Chapman review.

While inferences such as those incorporated in the
Statements of the Case for the Solicitor General and Wis-
consin might be powerful arguments to a jury, the exam-
ples discussed supra in notes 4-6 highlight the
importance of jury inferences, for only it is charged with
final power to make inferences in criminal! cases. Which
inferences are actually adopted is usually a matter of
pure speculation. To then speak of the “probative value of
silence” (Wisconsin Br. 30), is to ignore Fifth Amendment
text. Confessions extracted by rack and screw also have

17

“probative value,” but the Fifth Amendment bars their
use, even if the screw is only turned a couple of times.
The inferences that Wisconsin suggests are appropriate
on habeas (although inappropriate on direct appeal, Wis-
consin Br. 34) employ compulsion within the meaning of
the Fifth Amendment. It might be different if accidental
use of post Miranda silence by the prosecutor was all that
was involved. No appellation of “accidental use” can
possibly apply to the central theme of the special pros-
ecutor throughout the trial. Throughout trial, Brecht’s
“silence” was the keystone of the prosecution case. The
fact of the matter is that the prosecutor didn’t much care

when Brecht was silent, he was going to use his silence

for all it was worth. In the spirit of David Glasgow
Farragut, it was “Damn the torpedoes [of the law], full
speed ahead.”?° Only by ignoring the central thrust of the
special prosecutor’s closing arguments can these serious
errors of law be found harmless (or indeed, even fail the
Kottgakos test).

* Empirical psychological studies suggest difficulties
inherent in judicial review tainted by factors such as
hindsight and outcome bias, and suggest enormous diffi-
culties in making such findings as whether “error had a
substantial and injurious effect on the outcome of the

20 Wisconsin's brief p. 8, n.3 ascribes confusion to the dis-
trict court about one Doyle violation. However, the Wisconsin
Court of Appeals made no such distinction, Jt. App. 42; and
neither the Wisconsin Supreme Court, see Jt. App. 65-66, nor the
Seventh Circuit, Jt. App. 109, made any finding on the matter. If
the district court had difficulty making such a distinction, it is
patently obvious that a jury of twelve citizens would be com-
pletely unable to master any difference.

18

case” (Solicitor General brief, p. 8). This is particularly
the case when the constitutional error is the linchpin of
the prosecution’s case, as here.

The government's lever to move the jury to its view
on intent was a lever it called “total lack of credibility”
(Tr. 608, 619, 791); the lever’s fulcrum was Brecht’s failure
to label the shooting an accident prior to hearing the
government's case at trial (despite opening argument by
the defense attorney disclosing the defense in consider-
able detail), and the heaviest weight on that lever was a
congeries of inferences, surmises and theories, most
based upon Todd Brecht’s admitted homosexuality. (Jt.
App. 137) This case is all about such inferences, many
cases are not. The Wisconsin Supreme Court finding of
trial error in barring testimony of Brecht’s non assaultive,
non-violent character (Jt. App. 72-73), while beyond this
court's certiorari grant, is part of the background for the
issue before the court. A person who has never before
resorted to violence, but who has often resorted to flight,
was portrayed by the prosecution as a cool, calculating,
criminal, one who would profit from his sister's inheri-
tance. Whether that depiction is correct, is an issue a jury
should decide. We submit that a trial with serious consti-
tutional error that directly impacts upon the jury fact-
finding of intent, cannot in this case be denominated
harmless error, and represents a fundamental deprivation
of due process.

Moreover, the instant case illustrates that guilt or
innocence is in many cases directly implicated by Doyle
violations. Doyle violations can, as they did in this case,
go directly to the heart of the case. Such cases are not

19

about technical errors, or constables blundering, they are
about detention simpliciter.

Wisconsin’s suggestion that the cost of applying
Chapman would be great, and the additional protection
minimal (Wisconsin Br. 35), cites no empirical support,
and simply ignores a quarter century of federal court
practice. With all due respect, that argument has been
raised in Congress, and is now brought here because
Congress has not yet found it persuasive.

Nor do Wisconsin and amici address the conundrum
that the suggested standard may be more of a problem
than a solution. (Pet. Br. 44-45) The need to change some-
thing that has worked for so long, been ratifw 4 through
repeated and substantial Congressional consideration, by
a standard developed for direct appeal (which assumes
complete review of a trial record) is quite unclear.?!

The exaggerated claim that “habeas corpus can be a
rerun of the state appellate process” (Wisconsin Br. 30) is
absurd. The procedural complexities of habeas corpus,
the limited nature of questions that can ever be consid-
ered, and the harmless error test itself, all constitute
guarantees that such a fear cannot come to pass. More-
over, neither Wisconsin nor amici seriously attempt to
demonstrate it has come to pass. The parade of evils
Wisconsin and amici conjure up simply have not opened
many prison doors. Yet for those who are innocent, the
right to the Great Writ remains critical.

s

21 “Much time would be lost in reviewing legal and factual
issues that the state court is better suited to address expe-
ditiously.” Harris v. Reed, 489 U.S. 255, 264-265, and n.12 (1989).

20

Conclusion
Wherefore, petitioner prays for the relief stated in his
initial brief.
Respectfully submitted,

/s/ Aven E. SHOENBERCER
Court Appointed Counsel

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0310%3A07. Public record. Not legal advice.