# Amicus Curiae Brief — O'NEAL v. McAninch

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 432

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0535%3A11. Public record. Not legal advice.