Amicus Curiae Brief — O'NEAL v. McAninch

No. 93-7407 |

In the Supreme Court of the Statys mee

OCTOBER TERM, 1993

CIFIC OF THE GLERK

ROBERT O’ NEAL, PETITIONER

We

FRED MCANINCH, WARDEN

On Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

BRIEF FOR TIMOTHY SCOTT SHERMAN

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

ANDREW L. FREY

Counsel of Record

Roy T. ENGLERT, JR.

JAMES G. DUNCAN

THOMAS DILENGE

Mayer, Brown & Platt

2000 Pennsylvania Avenue, N.W.

Suite 6500

Washington, D.C. 20006

(202) 778-0602

STUART J. ROBINSON

24 East Pennsylvania Avenue

Bel Air, Maryland 21014

(410) 879-5050

JUNE 2, 1994

Whether the prosecution bears the burden of showing on

collateral review that a

?

(i)

TABLE OF CONTENTS

GPUMPEEEIES EURO ge te eee (i)

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

INTEREST OF THE AMICUS CURIAE......... I

INTRODUCTION AND SUMMARY OF

ES SE SS Ee 2

SS Ee 4

I. THE HARMLESS-ERROR DOCTRINE HAS

TRADITIONALLY ALLOCATED TO THE

BENEFICIARY OF A TRIAL ERROR THE

BURDEN OF SHOWING THAT THE ERROR

DS Decco ces ce eee c eee 6

fl. THIS COURT’S DECISIONS IN KOTTEAKOS

AND CHAPMAN CONFIRM THAT THE

PROSECUTION MUST BEAR THE BURDEN

OF SHOWING THAT A CONSTITUTIONAL

ERROR WAS HARMLESS ........... 10

ll. THE BRECHT DECISION DID NOT

DISTURB THE LONGSTANDING

PRINCIPLE THAT THE STATE BEARS THE

BURDEN OF SHOWING THAT A

CONSTITUTIONAL ERROR WAS

Ee icin Sb ws 6.6 6.0 6 6-6 0 0 0 0 12

IV. REVERSING THE HISTORIC PRINCIPLE

THAT THE PROSECUTION MUST SHOW

THAT NON-TECHNICAL ERRORS WERE

HARMLESS WOULD UNDERMINE THE

RELIABILITY OF CRIMINAL

a 17

EE LLL EE 21

iv

TABLE OF AUTHORITIES

Cases: Page

Addington v. Texas, 441 U.S. 418 (1979) ........ 18

Brecht v. Abrahamson, 113 S. Ct. 1710 (1993) . passim

Bruno v. United States, 308 U.S. 287 (1939) .... 9, 13

Castillo v. Stainer, 997 F.2d 669 (9th Cir.

1993), modifying 983 F.2d 145 (9th Cir.

wb ote e Whe eho 4 Oe 4o4 Rees 16

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

Coleman v. Thompson, 501 U.S. 722 (1991) ...... 18

Crease v. Barrett, 1 C.M. & R. 919, 149 Eng.

Rep. 1353 (Bx. 1835). wc eee eee 6

Cumbie v. Singletary, 991 F.2d 715 (11th

Cir.), cert. denied, 114 S. Ct. 650

SN > on 6.60. 0.6 0004648 O EE OW ROO eek 16

Daniels v. Williams, 474 U.S. 327 (1986) ........ 5

Duncan v. Louisiana, 391 U.S. 145 (1968) ....... 13

Elder v. Holloway, 114 S. Ct. 1019 (1994) ....... 17

Gilmore v. Taylor, 113 S. Ct. 2112 (1993) ....... 18

In re Winship, 397 U.S. 358 (1970) ........... 18

Kokkonen v. Guardian Life Insurance Co. of

America, 62 U.S.L.W. 4313 (U.S. May 16,

Se ee re ee eee ee 16

Kotteakos v. United States, 328 U.S. 750 7

CE cc 4 eee ease cae eo a os 0:0 4,0 6 passim

Kyles v. Whitley, 5 F.3d 806 (Sth Cir.

1993), cert. granted, 62 U.S.L.W. 3705

(U.S. April 25, 1994) (No. 93-7927) ........ 15

Vv

TABLE OF AUTHORITIES - Continued

Page

Lowery v. Collins, 996 F.2d 770 (Sth Cir.

eg ee, ap a A ae Se a re 15

Milton v. Wainwright, 407 U.S. 371 (1972) ...... 3

O'Neal v. Morris, 3 F.3d 143 (6th Cir. 1993) ... 3, 16

Orndorff v. Lockhart, 998 F.2d 1426 (8th Cir.

1993), cert. denied, 62 U.S.L.W. 3701

Sa 12

Ortiz v. Dubois, 19 F.3d 708 (1st Cir. 1994) ...... 15

People v. St. Clair, 56 Cal. 406 (1880) ......... 7

Perry v. Leeke, 488 U.S. 272 (1989) ........... 11

Regina v. Gibson, 16 Cox Cr. Ca. 181, 18

BS rs i Se 6

Rex v. Ball, Russ. & Ry. 132, 168 Eng. Rep.

ae ee a I I 6 bo oa hes co ccceos 6

Rose v. Clark, 478 U.S. 570 (1986) ......... 3, 17

Rushen v. Spain, 464 U.S. 114 (1983) .......... 4

Sherman v. Maryland, 498 U.S. 950 (1990) ...... 2

Sherman v. Smith, 1993 WL 433317 (4th

I ek wan 1, 15

Stockton v. Virginia, 852 F.2d 740 (4th Cir.

1988), cert. denied, 489 U.S. 1071

ee kt oie CE Ae ee OE ae ck wb 0 ole te 0% 20

Stoner v. Sowders, 997 F.2d 209 (6th Cir.

Sr, 8.646502 6 oboe ee Oud ds ke eben 15

vi

TABLE OF AUTHORITIES - Continued

Page

Tague v. Richards, 3 F.3d 1133 (7th

SR Re Pe Ee ar ea eee Pr gear 16

Tinkler’s Case, Russ. & Ry. 133

i alg Ce ee Re 6

Turner v. Louisiana, 379 U.S. 466 (1965) ....... 20

United States v. Lane, 474 U.S. 438 (1986) ... 11, 14

United States v. Olano, 113 S. Ct. 1770

ey es ee wt ea ds ee eh «4 % 0.8.00 8 14, 15

United States v. Savage, 1994 WL 121003

a ES eee ee ee ee 15

U.S. National Bank of Oregon v. Independent

Insurance Agents, 113 S. Ct. 2173

ee ee eee an al ae a ee 6 288-6 ‘8 16

Waldron v. Waldron, 156 U.S. 361 (1895) ....... 7

Weiler v. United States, 323 U.S. 606 (1944) ..... i)

Williams v. State, 27 Wis. 402 (1871) .........-., 7

Yates v. Evatt, 500 U.S. 391 (1991) ........... 3

Statutes and Rules:

Dn ok ke we oes 6 8 14, 15

6 fF aor eer rarar a 14

i oa bp teh eee eh ewe 20

-. e n 6 5 4 oe ke Ok 8 ee 8, 9, 10, 11

| eS ee ee ee ae ee 5, 8, 11, 14

ee ene 6 Oth ek 4

vil

TABLE OF AUTHORITIES - Continued

Miscellaneous: Page

Advisory Commitee’s Notes on Fed. R. Crim.

@. Saud, 16 UBL. Amp, O GT on ce cee 15

Kavanagh, Jmprovement of Administration of

Criminal Justice by Exercise of

Judicial Power, 11 A.B.A.J. 217 (1925) ...... 8

Ninth Annual Report of the Special Committee

to Suggest Remedies and Formulate ‘

Proposed Laws to Prevent Delay and

Unnecessary Cost in Litigation, 2

CR Ser re 7

Pound, The Causes of Popular Dissatisfaction

with the Administration of Justice, 29

A.B.A. BEP., Ft. i, 375 (SUG) ..... 2... 7

R. TRAYNOR, THE RIDDLE OF HARMLESS ERROR

_.. Severe ereer Leer eee Sree 6,7

Wigmore, Criminal Procedure: “Good” Reversals

and “Bad” Reversals, 4 ILL. L. REV. 352

I ee ak ec eee ee 7

1 WIGMORE ON EVIDENCE (Tillers rev. 1983) ..... 6, 7

3A C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE

Sage Se Meee ee ahd Kea 1 tera Picipragt tee, Greg en REA ge 10

In the Supreme Court of the Anited States

OCTOBER TERM, 1993

No. 93-7407

ROBERT O’NEAL, PETITIONER

Vv.

FRED MCANINCH, WARDEN

On Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

BRIEF FOR TIMOTHY SCOTT SHERMAN

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

INTEREST OF THE AMICUS CURIAE

Timothy Scott Sherman was convicted in Maryland state

court in 1988 of two counts of first-degree murder and was

sentenced to consecutive terms of life imprisonment. His

trial, however, was tainted by an error of constitutional

magnitude: during the trial, one of the jurors conducted his

own unsupervised inspection of the crime scene and of a

“key” piece of evidence in the case: a pine tree in which the

murder weapon was found. Sherman v. Smith, 1993 WL

433317, *2 (4th Cir. Oct. 27, 1993) (unpublished).

On direct appeal, the state courts failed to recognize the

constitutional dimension of the juror site visit, and thus

2

erroneously required Mr. Sherman to establish prejudice

rather than requiring the State to prove beyond a reasonable

doubt that the constitutional error was harmless. Chapman v.

California, 386 U.S. 18, 24 (1967). This Court denied a

petition for certiorari, but two Justices recorded dissents from

the denial. Sherman v. Maryland, 498 U.S. 950 (1990). Mr.

Sherman then filed a habeas corpus petition in federal district

court.

The district court denied the petition, but the Fourth

Circuit vacated and remanded, directing the district court to

determine whether the admitted constitutional violation was

structural error or trial error, and, if trial error, whether the

error could be deemed harmless. 1993 WL 433317, *4. In

doing so, the Fourth Circuit ruled that, under Brecht v.

Abrahamson, 113 S. Ct. 1710 (1993), and Kotteakos v.

United States, 328 U.S. 750 (1946), the burden is on the

State to show that the trial error was harmless. 1993 WL

433317, *4.

The disposition of Mr. Sherman’s habeas petition, which

is currently pending in the district court on remand from the

Fourth Circuit, could be affected by the Court’s ruling in this

case. Mr. Sherman therefore has an interest in preserving the

ruling of the Fourth Circuit by supporting reversal of the

contrary decision below in this case.’

INTRODUCTION AND SUMMARY OF ARGUMENT

The long history of harmless-error jurisprudence, boti in

England and in America, has seen many doctrinal shifts, but

one principle has remained clear throughout: once a party

establishes that his trial was infected with error, it is his

adversary — as the beneficiary of the error — who must bear

the burden of demonstrating that the error was harmless. The

' Letters from the parties consenting to the filing of this brief

have been filed with the Clerk of this Court.

3

sole exception to that principle has been that a party asserting

a merely “technical” error relating to the etiquette or

procedural minutiae of a trial must demonstrate that the

technical error caused harmful effects.

This Court has adhered to the traditional dichotomy

between “technical” errors and errors that, by their nature,

tend to affect substantial rights. Furthermore, this Court’s

precedents indicate that a trial error of constitutional

dimension can never be deemed a trifling “technical” error.

The rights protected by the Constitution are inextricably

intertwined not only with the most basic standards of liberty

and due process, but also with the reliability of the jury’s

determination of guilt or innocence. Judgments in cases

where constitutional protections were violated are inherently

suspect. For this reason, it has always fallen to the party

seeking to justify-such judgments to demonstrate that the

constitutional error was harmless.

The same principle has held true on both direct and

collateral review of criminal convictions. See Chapman v.

California, 386 U.S. at 24 (State bears the burden of showing

that a constitutional error was harmless on direct review);

Yates v. Evatt, 500 U.S. 391, 407-411 (1991) (State bears the

burden of showing that a constitutional error was harmless on

collateral review); Rose v. Clark, 478 U.S. 570, 583-584

(1986) (same); Milton v. Wainwright, 407 U.S. 371, 377-378

(1972) (same). The court below, however, inverted the

historic harmless-error analysis by placing on the defendant

the burden of proving not only that a constitutional error

occurred, but also that the error prejudiced or influenced the

verdict against him. O’Neal v. Morris, 3 F.3d 143, 145 (6th

Cir. 1993).

The holding below misinterprets this Court’s recent

decision in Brecht, which explicitly adopted the Kotteakos

harmless-error analysis, which in turn applied the traditional

rule that the beneficiary of a non-technical error must prove

4

that the error was harmless. The decision below also

collapses the longstanding distinction between technical and

constitutional errors. Consequently, this Court should reverse

the decision below and reaffirm the bedrock principle that the

State bears the burden of showing — even under the relaxed

harmlessness standard applicable on collateral review — that

a constitutional error was harmless.

ARGUMENT

THE STATE BEARS THE BURDEN IN HABEAS

CORPUS CASES OF SHOWING THAT A

CONSTITUTIONAL ERROR WAS HARMLESS

“Whether a conviction for crime should stand when a

State has failed to accord federal constitutionally guaranteed

rights is every bit as much of a federal question as what

particular federal constitutional provisions themselves mean.

Chapman v. California, 386 U.S. at 21; accord Rushen Vv.

Spain, 464 U.S. 114, 120 (1983) (per curiam) ( The final

decision [in a habeas case] whether the alleged constitutional

error was harmless is one of federal law.”).

Until 1993, it was generally accepted that the question of

harmlessness, because it is a question of federal law, would

be resolved under exactly the same standards in a habeas case

as in a direct appeal from a federal conviction or in a case

arising in this Court on direct review of a state conviction.

See Brecht, 113 S.Ct. at 1718 (“we have applied the

Chapman standard in a handful of federal habeas cases”).

The Court in 1993, however, decided that a different standard

was appropriate for habeas cases (and of course we do not

quarrel with that determination). But the important point for

present purposes is that, in setting a new standard, the Court

did not simply invent a new approach. Rather, it borrowed

an established approach from another context, i.e. , the review

of nonconstitutional errors on direct federal review. See

Kotteakos v. United States, supra; Brecht, 113 S. Ct. at 1722

(“The Kotteakos standard, we believe, fills the bill.”).

5

Rather than send the federal courts into uncharted territory,

the Court believed it important that, “because the Kotteakos

standard is grounded in the federal harmless-error rule (28

U.S.C. § 2111), federal courts may turn to an existing body

of case law in applying it.” 113 S. Ct. at 1722.

History, then, is the most important guidepost for this

Court in resolving the allocation-of-burden issue presented in

this case. As we will now demonstrate, the burden of

showing the harmlessness of a constitutional error has always

rested on the prosecution. Even for nonconstitutional errors,

Kotteakos itself places the burden on the prosecution. 328

U.S. at 760-761; see Brecht, 113 S. Ct. at 1723-1724 & n.1

(Stevens, J., concurring). Only by inventing a new approach

out of whole cloth for habeas cases could this Court place the

burden on a habeas petitioner to disprove harmlessness.?

* By this statement, we mean no disrespect to the Chief Justice’s

passing statement, in the opinion for the Court in Brecht, 113

S. Ct. at 1722 (emphasis added), that “habeas petitioners * * * are

not entitled to habeas relief based on trial error unless they can

establish that it resulted in ‘actual prejudice.’” We mean simply

that the allocation-of-burden issue was not before the Court in

Brecht, so the quoted statement cannot be taken as authoritative.

As Brecht itself reminds us, when the Court has “never squarely

addressed [an] issue,” but has “at most assumed the applicability”

of a particular standard, the Court in a later case is “free to address

the issue on the merits.” Jd. at 1718; accord, e.g., Daniels v.

Williams, 474 U.S. 327, 330-331 (1986) (overruling preliminary

remark in prior case while adhering to core holding of that case).

Certainly, the quoted statement in Brecht cannot be taken as an

authoritative holding when only five Justices joined the majority

opinion and one of those five Justices expressly joined on the

premise that the standard the Court was adopting “places the

burden on prosecutors to explain why * * * errors were harmless.”

113 S. Ct. at 1723 (Stevens, J., concurring).

6

I. THE HARMLESS-ERROR DOCTRINE HAS

TRADITIONALLY ALLOCATED TO THE

BENEFICIARY OF A TRIAL ERROR THE

BURDEN OF SHOWING THAT THE ERROR WAS

HARMLESS

1. Dean Wigmore has traced the application of the

harmless-error doctrine in criminal cases back to the 1700s.

| WIGMORE ON EVIDENCE § 21, at 884-885 (Tillers rev.

1983). The early cases do not clearly indicate which pany

bore the burden of showing the effect of an error. in

Tinkler’s Case, Russ. & Ry. 133, 133 n. (Cr. Cas. Res.

1781), the court upheld a conviction despite the introduction

of improper evidence on the ground that “ample ng ~

supported the verdict; see also Rex v. Ball, Russ. & y. .

168 Eng. Rep. 721 (Cr. Cas. Res. 1807) (guilty maar

be sustained despite trial error where the weight of the

evidence” left the court with “no doubt of the guilt of the

prisoner”). Those cases did suggest, however, that the courts

looked to whether the prosecution, which of course bore the

burden of proof at trial, had adduced evidence sufficient to

overcome the taint of the error.

The nature of harmless-error review changed radically in

the 1830s, when, following the lead of the Court 4

Exchequer decision in Crease v. Barrett, 1 C.M. & R.

149 Eng. Rep. 1353, 1359 (Ex. 1835), the rule in cet

came to be that virtually any error ina criminal case requ

acquittal on appeal, and any error in civil cases required a

new trial. Regina v. Gibson, 16 Cox Cr. Ca. 181, 18

Q.B.D. 537, 541 (1887) (Coleridge, C.J.). The only —.

on the appellant was to establish that an error had occu :

The rationale for this rule was that judicial weighing 0

evidence to ascertain the effect of an error on the verdict

would usurp the jury’s role as factfinder. 1 ge

supra, § 21, at 889. This Rey ag a ~ -

idespread in the Uni courts. é

sa o00. R. ee, THE RIDDLE OF HARMLESS ERROR 13

7

(1970); Ninth Annual Report of the Special Committee to

Suggest Remedies and Formulate Proposed Laws to Prevent

Delay and Unnecessary Cost in Litigation, 2 A.B.A.J. 603,

605 (1916) (Special Committee Report). Thus, this Court

stated in Waldron v. Waldron, 156 U.S. 361, 380 (1895),

that “[i]t is elementary that the admission of illegal evidence,

over objection, necessitates reversal.”

2. Although the “Exchequer rule” of harmless error

was repudiated in England by the Judicature Act of 1873 (36

& 37 Vict., c. 66, rule 6, sched. 1),’ it continued to be

applied in the United States into the 1900s. The rule came

under attack, however, as its “lamentable” results (1

WIGMORE, supra, § 21, at 891) became clear: too many

criminal convictions were being reversed for “technicalities”

that bore no relation to the defendants’ substantial rights or to

the merits of the cases. Wigmore, Criminal Procedure:

“Good” Reversals and “Bad” Reversals, 4 1LL. L. REV. 352,

354 (1909); Special Committee Report at 606; Pound, The

Causes of Popular Dissatisfaction with the Administration of

Justice, 29 A.B.A. REP., Pt. 1, 395 (1906). For example, in

People v. St. Clair, 56 Cal. 406 (1880), the court overturned

a larceny conviction on appeal because the letter “n” was

omitted in the word “larceny” in the indictment: the court

reasoned that there was no such crime as “larcey.”4

* By its terms, the Judicature Act applied only to civil actions.

But, despite that limitation, criminal courts in England also

abandoned the “Exchequer rule” in favor of an inquiry into the

Strength of the prosecution’s case against the defendant. 1

WIGMORE, supra, § 21, at 898 n.17.

* Similarly, in Williams v. State, 27 Wis. 402 (1871), the court

reversed a conviction because the indictment stated that the offense

was “against the peace of the State” instead of “against the peace

and dignity of the State” (quoted in R. TRAYNOR, Supra, at 85

n.3).

8

In response to the perception that appellate courts =

become “impregnable citadels of technicality (Kavanag .

Improvement of Administration of Criminal pet “4

Exercise of Judicial Power, 11 A.B.A.J. 217, 222 ( ),

and after “long agitation under distinguished professional

sponsorship” (Kotteakos, 328 U.S. at 758), Congress —

legislation designed to prevent reversals based yen

technical grounds. The Act of February 26, 1919, “

at the time of Kotteakos as 28 U.S.C. § 391 (now sligh y

reworded as 28 U.S.C. § 2111), provided that on appeal o

any case, civil or criminal,

the court shall give judgment after an examination of

the entire record before the court, without regard to

technical errors, defects, or exceptions which do not

affect the substantial rights of the parties.

[Emphasis added. }

The wording of the statute expressly adopts the traditional

distinction between technical errors and errors affecting

substantial nights.

Significantly, Congress did not intend to weaken the vital

role of appellate courts in protecting criminal —

whose trials were tainted by errors that implicated substan

rights. To that purpose, the legislative history rawr

authoritatively” that the party seeking to uphold a tain

verdict must bear the burden of proving that the error was

harmless unless the error complained of was merely

“technical” in nature:

The proposed legislation affects only technical

errors. If the error is of such a character that its

natural effect is to prejudice a litigant’s substantial

rights, the burden of sustaining a verdict will,

notwithstanding this legislation[,] rest upon the one

who claims under it.

9

Kotteakos, 328 U.S. at 760 (quoting H.R. Rep. No. 913,

65th Cong., 3d Sess. 1 (1919)) (emphasis added). The

legislative history also shows that the bill “went through

many revisions, largely at the instance of the Senate, because

there was fear of too easy relaxation of historic securities

thrown around the citizen charged with crime.” Kotteakos,

328 U.S. at 762 (footnote omitted). Thus, it is clear that,

under former Section 391, the burden of showing that an

error affecting the “historic securities” that safeguard criminal

defendants was harmless remained with the prosecution.

3. This Court has on several occasions confirmed that

the prosecution bears the burden of proving that non-technical

trial errors were harmless. In Bruno v. United States, 308

U.S. 287 (1939), the Court reversed a conviction for

conspiracy to violate the narcotics laws because the trial court

had erroneously refused to include a requested instruction in

the jury charge. Justice Frankfurter, writing for the Court,

ruled that the error was not “technical” because the requested

instruction — telling the jury that a defendant’s decision not

to testify does not create any presumption against him —

reflected a statutory right granted to criminal defendants by

Congress. 308 U.S. at 292-293. Although the Court

declined to provide an “abstract, inclusive definition of

‘technical errors,’” it relied on “what every student of the

history behind the Act of February 26, 1919, knows, that thar

Act was intended to prevent matters concerned with the mere

etiquette of trials and with the formalities and minutiae of

procedure from touching the merits of a verdict.” Jd. at 293-

294 (emphasis added). Similarly, in Weiler v. United States,

323 U.S. 606, 611 (1944), the Court reversed a perjury

conviction on the ground that the trial court’s refusal to

instruct the jury on a common law rule relating to perjury

was more than a “technical” error.

The crucial point of Bruno and Weiler is that violations

of a right conferred by a federal statute in the one case, and

of a common law right in the other, were held not to be

10

“technical” errors. It follows a fortiori that a right protected

by the Constitution itself also cannot be considered

“technical” and that, consequently, the burden should stay

with the prosecution to show that trial errors affecting

constitutional rights were harmless.

ll. THIS COURT’S DECISIONS IN KOTTEAKOS AND

CHAPMAN CONFIRM THAT THE PROSECUTION

MUST BEAR THE BURDEN OF SHOWING THAT

A CONSTITUTIONAL ERROR WAS HARMLESS

1. In Kotteakos v. United States, the Court provided a

searching and comprehensive interpretation of the federal

harmless-error statute. Construing the language of former

Section 391, the Court held that reversals for trial errors

should occur only if the errors “had [a] substantial and

injurious effect or influence in determining the jury’s

verdict.” 328 U.S. at 776. The Court discussed at length

which party bears the burden of proving harmlessness under

this standard. Relying on the statute’s legislative history and

the circumstances surrounding its enactment, the Court

squarely placed the burden on the prosecution to prove that

non-technical trial errors were harmless. Jd. at 765. In so

doing, the Court adhered to the historic principle of requiring

the party seeking to uphold a verdict to show that any non-

technical error was harmless, and of resolving all doubts in

favor of the party who has, by definition, already proved that

such an error infected his trial. Furthermore, the Court

suggested that errors transgressing “constitutional norm(s},

or even statutory rights, may still require reversal per se. Jd.

at 764-765.

2. In the wake of Kotteakos, it was still presumed that

constitutional errors mandated reversal per se. 3A C.

WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 855, at 325

(1982). But in Chapman v. California, this Court concluded

that “there may be some constitutional errors which in the

setting of a particular case are so unimportant and

11

insignificant that they may, consistent with the Federal

Constitution, be deemed harmless.” 386 U.S. at 22. The

Court did not, however, equate “unimportant and

insignificant” constitutional errors with the pre-existing

concept of “technical” errors.’ To the contrary, the Court

held that even “insignificant” constitutional errors warranted

placing the burden on the prosecution to prove “beyond a

reasonable doubt” that the error did not contribute to the

verdict:

Certainly error, constitutional error * * * casts on

someone other than the person prejudiced by it a

burden to show that it was harmless. It was for that

reason that the original common-law harmless-error

rule put the burden on the beneficiary of the error

either to prove that there was no injury or to suffer

a reversal of his erroneously obtained judgment.

386 U.S. at 24.

The Court’s insistence that the prosecution disprove the

harmfulness of a constitutional error is consistent with the

common law and statutory tradition it invoked, and suggests

strongly that constitutional errors are never technicalities.

Trivial errors that by their nature do not tend to compromise

substantial rights do not rise to the level of constitutional

error. See, ¢.g., Perry v. Leeke, 488 U.S. 272 (1989). But

when a defendant can show that his trial was infected by an

error of constitutional magnitude, the burden should fall on

* Chapman alludes to 28 U.S.C. § 2111, the Statutory successor

to 28 U.S.C. § 391. Although § 2111 deleted the term “technical”

from the statute, it “did not alter the substantive legal test” (United

States v. Lane, 474 U.S. 438, 454 (1986) (Brennan, J., concurring

in part and dissenting in part)) requiring the prosecution to show

that an error did not affect a defendant’s substantial rights. See

also Brecht, 113 S. Ct. at 1718 n.7.

12

the State to justify the continued imprisonment of a person

whose fundamental protections were violated.

fl. THE BRECHT DECISION DID NOT DISTURB

THE LONGSTANDING PRINCIPLE THAT THE

STATE BEARS THE BURDEN OF SHOWING

THAT A CONSTITUTIONAL ERROR WAS

HARMLESS

1. In Brecht, the Court limited use of the Chapman

“beyond a reasonable doubt” harmless-error standard to cases

arising on direct review, holding that the “less onerous

standard” articulated in Kotteakos is appropriate for collateral

review of constitutional errors. 113 S. Ct. at 1721-1722.°

Quoting Kotteakos, the Court stated that in habeas corpus

proceedings the new standard for evaluating constitutional

errors was “whether the error ‘had substantial and injurious

effect or influence in determining the jury’s verdict.’” Id. at

1722.

The Court in Brechr*fully incorporated the Kotteakos

doctrine for collateral review of constitutional errors, and

acknowledged that Kotteakos “is grounded in the federal

harmless-error [statute] (28 U.S.C. § 2111).” 113 S. Ct. at

* A principal justification for employing a lower standard on

collateral review is that the state courts will already have applied

the Chapman test on direct review, requiring the State to

demonstrate beyond a reasonable doubt that the constitutional error

did not contribute to the verdict. Brecht, 113 S. Ct. at 1721 (“it

scarcely seems logical to require federal habeas courts to engage in

the identical approach to harmless-error review that Chapman

requires state courts to engage in on direct review”). But when the

state courts have failed to use the Chapman test, federal habeas

courts must use the Chapman standard rather than the Kotteakos

standard to assure adequate protection to a criminal defendant’s

constitutional rights. Orndorff v. Lockhart, 998 F.2d 1426, 1430

(8th Cir. 1993), cert. denied, 62 U.S.L.W. 3701 (U.S. April 25,

1994) (No. 93-1012).

13

1722. Indeed, as the Court explicitly stated, a principal

benefit of adopting the Kotteakos analysis in habeas

proceedings is that “federal courts may tum to an existing

body of case law in applying it.” Jbid. Consequently, the

logic of the Court’s decision imports into harmless-error

analysis on collateral review not only the legislative purposes

reflected in that case law, but also the prosecution’s burden

of showing that an error was harmless.

Foremost among the policies governing fe. eral harmless-

error review is the need to preserve the “hisiuric securities”

that protect persons accused of crimes. Kotteakos, 328 U.S.

at 762. Thus, under Kotteakos, the only time a defendant

must bear the burden of showing that an error was harmful is

when the asserted error was a mere “technicality,” that is, if

it “concerned * * * the mere etiquette of trials [or] the

f. malities and minutiae of procedure.” Bruno, 308 U.S. at

294. In all other cases, when the nature of the error

implicates substantial rights, the State must prove that a

conviction should stand despite the presence of error.

The vast majority of the errors cognizable in habeas

corpus proceedings are federal constitutional errors, which

implicate issues that transcend trial “etiquette” or procedural

minutiae. Indeed, the protections guaranteed by the

Constitution represent “a profound judgment about the way

in which law should be enforced and justice administered. ”

Duncan v. Louisiana, 391 U.S. 145, 155 (1968). Violations

of constitutional norms naturally tend to affect a defendant’s

substantial rights. Kotteakos, 328 U.S. at 764-765. It is for

this reason that Justice Stevens observed correctly that “[a]

constitutional violation, of course, would never fall into the

‘technical’ category” under Kotteakos (Brecht, 113 S. Ct. at

1723-1724 (concurring opinion)), and thus could never justify

forcing the aggrieved party to demonstrate the harm. Thus,

the Kotteakos standard as adopted in Brecht still “places the

burden on prosecutors to explain why [constitutional] errors

14

were harmless” (id. at 1723) and accords with the historic

harmless-error doctrine.

2. An opinion handed down only days after Brecht

confirms that the beneficiary of an error generally bears the

burden of disproving harm. In United States v. Olano, 113

S. Ct. 1770 (1993), the Court discussed the difference

between “harmless error” under Fed. R. Crim. P. 52(a) and

“plain error” under Fed. R. Crim. P. 52(b). Although both

provisions consider the impact of an error on “substantial

rights,” the difference arises with regard to the burden of

persuasion. Thus, the prosecution “bears the burden of

persuasion with respect to prejudice” under the harmless-error

rule, but the burden shifts to the defendant when an objection

was not properly preserved at trial and the asserted error is

therefore reviewed for plain error under Rule 52(b) (113

S. Ct. at 1778):

This burden-shifting is dictated by a subtle but

important difference in language between the two

parts of Rule 52: while Rule 52(a) precludes error-

correction only if the error “does nor affect

substantial rights” (emphasis added), Rule 52(b)

authorizes no remedy unless the error does “affec[t]

substantial rights.”

The decision in Olano is particularly instructive in the

present context because the Court tied the burden of

persuasion to the language of Rule 52(a), which is identical

to the language in the federal harmless-error statute construed

in Kotteakos. This Court has noted the similarities in history

and language between Rule 52(a) and 28 U.S.C. § 2111, and

has “[i]nvok[{ed] the Kotteakos test” in holding that Rule 52(a)

requires reversal when an error “had substantial and injurious

effect or influence in determining the jury’s verdict.” United

States v. Lane, 474 U.S. at 449 (quoting Kotteakos, 328 U.S.

15

at 776).’ By stating clearly that the prosecution bears the

burden of showing that an error did not affect substantial

rights, this Court reaffirmed the traditional harmless-error

analysis and burden allocation. Thus, Olano confirms the

correctness of Justice Stevens’ statement in his Brecht

concurrence that Brecht did not invert the burden of

persuasion under Kotteakos when it adopted that test for

collateral review.

3. Despite the clear rule under Kotteakos that the

prosecution must demonstrate the harmlessness of all but

technical errors, the courts of appeals are divided — even

among panels within the same circuit — over which party

bears the burden of persuasion with respect to constitutional

errors under Brecht-Kotteakos. Significantly, many courts

(including panels that have delved beneath the surface of

Brecht and have grappled with the holding of Kortteakos itself)

have concluded that the burden of persuasion still lies with

the prosecution to show that constitutional error was

harmless. United States v. Savage, 1994 WL 121003, *5 n.3

(4th Cir. April 11, 1994); Ortiz v. Dubois, 19 F.3d 708 (1st

Cir. 1994); Stoner v. Sowders, 997 F.2d 209, 213 (6th Cir.

1993); Lowery v. Collins, 996 F.2d 770, 772 (Sth Cir. 1993);

Sherman v. Smith, 1993 WL 433317, *4.

By contrast, those decisions that have reversed the burden

of persuasion contain no analysis of Kotteakos and give no

consideration to the historic principie that the prosecution

bears the burden of persuasion with respect to all but

technical” errors. Instead, they simply recite a dictum from

the Brecht opinion (113 S. Ct. at 1722) to the effect that

| ” See also Lane, 474 U.S. at 454-455 (Brennan, J., concurring

in part and dissenting in part) (the federal harmless-error statute

was incorporated” into Rule 52(a)); Advisory Committee’s Notes

on Fed. R. Crim. P. 52(a), 18 U.S.C. App., p. 657 (Rule 52(a) is

a “restatement of existing law,” citing the harmless-error Statute).

16

habeas petitioners are not entitled to relief unless “they can

establish” that the constitutional error was harmful. See,

e.g., Kyles v. Whitley, 5 F.3d 806, 818 (Sth Cir. 1993)

(dictum), cert. granted, 62 U.S.L.W. 3705 (U.S. April 25,

1994) (No. 93-7927); Tague v. Richards, 3 F.3d 1133, 1140

(7th Cir. 1993); O’Neal v. Morris, 3 F.3d at 145; Castillo v.

Stainer, 997 F.2d 669, 669 (9th Cir. 1993), modifying 983

F.2d 145 (9th Cir. 1992); Cumbie v. Singletary, 991 F.2d

715, 724 (11th Cir.), cert. denied, 114 S. Ct. 650 (1993).

That one phrase, which does not appear to be a considered

decision of the question or to affect the actual holding in

Brecht that the error was harmless, should not be read to alter

sub silentio a central ingredient of the Kotteakos analysis that

the Court affirmatively adopted, nor should it be interpreted

to annul the long tradition of allocating the burden of

persuasion in accordance with the distinction between

technical errors and errors (such as constitutional errors) that

tend to affect substantial rights. See Kokkonen v. Guardian

Life Insurance Co. of America, 62 U.S.L.W. 4313, 4315

(U.S. May 16; 4994) (“It is to the holdings of our cases,

rather than their dicta, that we must attend.”); U.S. National

Bank of Oregon v. Independent Insurance Agents, 113 S. Ct.

2173, 2186 n.11 (1993) (remark in prior opinion was

“obviously not controlling, coming as it did in an opinion that

did not present” the issue addressed by the remark); see also

note 2, supra.

A more plausible construction is that the phrase “they can

establish that it resulted in ‘actual prejudice’” does not refer

to a burden of persuasion; rather, it merely indicates that' the

reviewing court must find that the verdict could have been

affected by the constitutional error. The application of the

Kotteakos standard in Brecht supports this reading. The

Court’s factual analysis mirrored the traditional Chapman

approach of inquiring whether the prosecution’s evidence

against the defendant was sufficiently “overwhelming” to

sustain the tainted conviction, but the Court applied the “less

17

onerous” Kotteakos standard in making that determination.

113 S. Ct. at 1722-1723 (“the State’s evidence of guilt was,

if not overwhelming, certainly weighty”). The Court

concluded as a matter of federal law that the Doyle error was

harmless (ibid.), but its analysis did not reflect that it had

followed its own dictum by assigning the burden of

persuasion to the petitioner. See Elder v. Holloway, 114 S.

Ct. 1019, 1023 (1994) (remark in prior opinion that a -

defendant must “show” violation of clearly established federal

right did not impose a burden on defendant to cite dispositive

vase law; whether federal right was clearly established is for

reviewing Courts to determine as a matter of law).

IV. REVERSING THE HISTORIC PRINCIPLE THAT

THE PROSECUTION MUST SHOW THAT NON-

TECHNICAL ERRORS WERE HARMLESS

WOULD UNDERMINE THE RELIABILITY OF

CRIMINAL JUDGMENTS

1. The integrity of the judicial system requires courts to

be especially sensitive to the danger that a criminal defendant

may have been prejudiced by an error at trial. That principle

holds added force when there is “the possibility that a[ ]

[constitutional] error may have caused the conviction of an

*™*™* innocent person.” Brecht, 113 S. Ct. at 1729

(O’Connor, J., dissenting). In a criminal trial, far more is at

stake than money or property rights; the defendant’s freedom

— and sometimes his life itself — is on the line. Therefore

it 1s a particularly serious matter when constitutional error

clouds a criminal trial. Rights such as a defendant’s ability

to confront all the witnesses against him or her, a public trial .

by an impartial jury, and due process of law go to the heart

of the criminal justice system and simply cannot be equated

with “technical” errors such as misspelled words in an

indictment. Without an “appropriately demanding” showing

by the party benefiting from the error that the error did not

have an injurious effect or influence on the verdict (Brecht

113 S. Ct. at 1723 (Stevens, J., concurring)), one cannot be

18

confident that the trial nevertheless yielded a just verdict.

Rose v. Clark, 478 U.S. at 577-578 (“Without [constitutional]

protections, a criminal trial cannot reliably serve its function

as a vehicle for determination of guilt or innocence, and no

criminal punishment may be regarded as fundamentally fair. ”)

(citation omitted).

In cases in which the burden of persuasion actually

matters, the courts are by definition in some doubt about

whether a proven constitutional error had a substantial and

injurious impact or influence on the trial. This Court has

historically been loath to allow such doubts to be resolved in

the State’s favor. See, e.g., In re Winship, 397 U.S. 358,

363, 364 (1970) (the interests at stake in a criminal case are

of “immense importance” and “transcending value,” so that

it is “critical that the moral force of the criminal law not be

diluted by a standard of proof that leaves people in doubt

whether innocent men are being condemned”); Addington v.

Texas, 441 U.S. 418, 423 (1979) (discussing necessity to

“exclude as nearly as possible the likelihood of an erroneous

judgment” in criminal cases because of the liberty interests at

stake). To be sure, respect for and confidence in the

judiciaries of the various States led this Court in Brecht to

lower the standard by which one determines an error to be

harmless. But it simply makes no sense for the prosecution

to prevail and a conviction to stand when, even under that

lowered standard, the proof is in equipoise as to whether the

proven error did affect the defendant’s substantial rights.

Habeas review is the last opportunity for a defendant to

contest a wrongful conviction that stemmed from

constitutional error. A habeas proceeding will be affected by

the holding in this case only if it is already established

(1) that the defendant preserved a federal constitutional claim

in state court (see Coleman v. Thompson, 501 U.S. 722

(1991)); (2) that the constitutional claim was meritorious;

(3) that precedent in existence at the time the defendant’s

conviction became final dictated a holding in the defendant's

19

favor on the federal constitutional issue (see Gilmore v.

Taylor, 113 S. Ct. 2112, 2116 (1993)), and (4) that the

question of prejudice from the constitutional error is

sufficiently grave that the allocation of the burden of

persuasion may make a difference. In those circumstances,

there is no reason to tum tradition on its head by forcing the

defendant — already the victim of constitutional error — to

demonstrate further harm.

2. The situation presented in amicus Timothy Sherman’ s

case illustrates the need to maintain the tradition of placing

the burden on the prosecution to demonstrate that a

constitutional error was harmless. Despite the complete

absence of evidence of motive or direct evide.ice that he was

the killer, Timothy Sherman was convicted of murdering his

parents in their sleep with a shotgun. As the Fourth Circuit’s

opinion indicates, the case against him was entirely

circumstantial and suffered many weaknesses. 1993 WL

433317, *2. Certain “key evidence” against Mr. Sherman

was the discovery of the murder weapon in a neighborhood

pine tree. That evidence, however, was equivocal at best,

because there was considerable evidence — described in the

Fourth Circuit’s opinion (ibid.) — that tended to contradict

the premise that Mr. Sherman would have been physically

able to lodge the gun in the tree in the condition in which it

was found. For this reason, both the prosecution and the

defense presented extensive evidence about the physical

characteristics of the pine tree and of the crime scene.

Unbeknownst to the trial court or the parties, one

member of the jury decided that he needed to obtain more

evidence about the tree and the neighborhood than had been

presented at trial. To gain that additional evidence, the juror

went “to the Sherman house and then * * * drove back the

streets from the Sherman house * * * looking for a tree that

was so involved in the case.” 1993 WL 433317, *2. The

juror visually inspected both the house and the pine tree, and

other jurors have provided affidavits indicating that Miller

20

shared the information he learned with them. The Fourth

Circuit properly recognized that the juror’s escapade violated

Mr. Sherman’s constitutional rights. Jd. at *3; see, e.g.,

Turner v. Louisiana, 379 U.S. 466, 472-473 (1965).

The site visit in Mr. Sherman’s case posed particularly

grave dangers because the object of the juror’s investigations

was a central piece of evidence in the case, whose physical

characteristics were hotly contested at trial. But the record

cannot reflect what impressions the juror gained from his

unsupervised inspection, because Maryland courts, like

federal courts (see Fed. R. Evid. 606(b)), will not allow a

juror’s thought processes to be examined. See 1993 WL

433317, *2.

It is entirely possible in Mr. Sherman’s case that the ill-

gotten evidence influenced the jury’s determination. Yet the

rules of evidence severely hamstring his ability to prove that

point, if it is he who must bear the burden. Thus, although

we are arguing that Mr. Sherman should prevail under any

standard, a court might construe the impenetrable uncertainty

surrounding the impact of the site visit on the juror’s

deliberations to cause a failure in carrying the burden of

persuasion. The risk of error is high. The proper approach

to these issues dictates that the State — not the

constitutionally..wronged-defendant — bear that risk. See

Stockton v. Virginia, 852 F.2d 740, 743-744 (4th Cir. 1988)

(Wilkinson, J.), cert. denied, 489 U.S. 1071 (1989).

JUNE 2, 1994

21

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

ANDREW L. FREY

Counsel of Record

Roy T. ENGLERT, JR.

JAMES G. DUNCAN*

THOMAS DILENGE*

Mayer, Brown & Platt

2000 Pennsylvania Avenue, N. W.

Suite 6500

Washington, D.C. 20006

(202) 778-0602

STUART J. ROBINSON

24 East Pennsylvania Avenue

Bel Air, Maryland 21014

(410) 879-SOS50

*Attomeys to be admitted

to the D.C. Bar on 6/3/94