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Shortly before the Chapman/Teale trial the United States Supreme Court
held that this California constitutional provision violated the Fifth
Amendment to the United States Constitution which protects a criminal
defendant from being compelled to be a witness against himself. See, Griffin
v. State of California, 380 U.S. 609, 85 S.Ct. 1229 (1965).
Chapman/Teale raised the Griffin issue on direct appeal, and while the
California Supreme Court agreed that their federally protected right of
silence had been violated, their convictions were affirmed under a state
constitutional “harmless-error” provision which held that a criminal
conviction should be reversed only if the “error” resulted in a “miscarriage
of justice.” See, 63 Cal.2d 178, 45 Cal.Rptr. 729, 404 P.2d 209.
The U.S. Supreme Court granted certiorari to answer two questions: when
there is a violation of the Griffin rule, (1) can the error be “harmless”, and
(2) if so, was the error harmless in the Chapman/Teale case? See, Chapman
v. California, 383 U.S. 956, 957, 86 S.Ct. 1228.
At the time the Supreme Court decided to answer these two questions all 50
states had a “harmless error” rule in place which essentially held that
criminal convictions should not be reversed on “errors or defects” that did
not affect the substantial rights of the defendants. Chapman/Teale,
nonetheless, urged the Supreme Court to hold that “all federal constitutional
errors, regardless of the facts and circumstances, must always be deemed
harmful.” Id., 386 U.S. at 21.
The court declined to adopt that rule, pointing out that the federal and
states’ harmless error rules “serve a very useful purpose insofar as they
block setting aside convictions for small errors or defects that have little, if
any, likelihood of having changed the result of the trial. We conclude that
there may be some constitutional errors which in the setting of a particular
case are so unimportant and insignificant that they may, consistent with the
Federal Constitution, be deemed harmless, not requiring the automatic
reversal of the conviction.” Id., 386 U.S. at 22.
But the court did take note that harmless-error rules “can work very unfair
and mischievous results” when forbidden evidence, although often both
persuasive and important, is introduced at a trial in which “guilt or
innocence is a close one.” Id.
The court turned to its previous ruling in Fahy v. State of Connecticut for
instruction. See, 375 U.S. 85, 84 S.Ct. 229 (1963). In Fahy the court held
that “the question is whether there is a reasonable possibility that the
evidence complained of might have contributed to the conviction.” Id., 375
U.S. at 87. Adhering to this constitutional guidance, the Chapman court
fashioned the following “harmless error” rule:
Applying this rule, the court found that the Fifth Amendment violations in
the Chapman/Teale case were not “harmless” errors and the defendants were
entitled to a new trial. Id., 386 U.S. at 25-26.
Upon his return to Wisconsin where he was charged with first degree
murder, Brecht was given his Miranda warnings at his arraignment. Id. The
court then outlined the factual background that brought the case to its
attention:
…At trial in the Circuit Court for Buffalo County, he took the stand
and admitted shooting Hartman, but claimed it was an accident.
According to petitioner, when he saw Hartman pulling into the
driveway on the evening of the shooting, he ran to replace the gun in
the upstairs room where he had found it. But as he was running
toward the stairs in the downstairs hallway, he tripped, causing the
rifle to discharge the fatal shot. After the shooting, Hartman
disappeared, so petitioner drove off in Mrs. Hartman's car to find him.
Upon spotting Hartman at his neighbor's door, however, petitioner
panicked and drove away.
The State argued that petitioner's account was belied by the fact that
he had failed to get help for Hartman, fled the Hartmans' home
immediately after the shooting, and lied to the police officer who
came upon him in the ditch about having called Mrs. Hartman. In
addition, the State pointed out that petitioner had failed to mention
anything about the shooting being an accident to the officer who
found him in the ditch, the man who gave him a ride to Winona, or the
officers who eventually arrested him. Over the objections of defense
counsel, the State also asked petitioner during cross-examination
whether he had told anyone at any time before trial that the shooting
was an accident, to which petitioner replied “no,” and made several
references to petitioner's pretrial silence during closing argument.FN2
Finally, the State offered extrinsic evidence tending to contradict
petitioner's story, including the path the bullet traveled through Mr.
Hartman's body (horizontal to slightly downward) and the location
where the rifle was found after the shooting (outside), as well as
evidence of motive (petitioner's hostility toward Mr. Hartman because
of his disapproval of petitioner's sexual orientation). Id., 507 U.S. at
624-25.
The court was not persuaded by Brecht’s argument, preferring to follow the
rule it pronounced in Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct.
1239, 1253 (1946) that federal habeas relief should be granted only when the
error “had substantial and injurious effect or influence in determining the
jury’s verdict.” Id., 507 U.S. at 623. The Brecht court stated that “the
Kotteakos harmless-error standard is better to the nature and purpose of
collateral review than the Chapman standard, and application of a less
onerous harmless-error standard on habeas promotes the consideration
underlying our habeas jurisprudence.” Id. The court then discussed Doyle
and its application:
The Brecht case, as pointed out by the court, illustrated this point quite well.
Brecht had never claimed the accidental shooting theory until he was on the
witness stand at the trial. The prosecution, of course, assumed it had every
right to impeach that testimony by pointing out that he had never told
anyone prior to his Miranda warnings at arraignment that the shooting was
an accident. Id. Having made these observations, the Supreme Court then
observed that “on the other hand, the State’s references to petitioner’s failure
to come forward with his version of events at any time before trial …
crossed the Doyle line. For it is conceivable that, once petitioner had been
given his Miranda warnings, he decided to stand on his right to remain silent
because he believed his silence would not be used against him at trial.” Id.,
507 U.S. at at 528-29.
The Supreme Court then instructed that it had not adopted in Chapman a
“blanket rule of automatic reversal” when there is a constitutional error. Id.
The court pointed out that it had installed a caveat that before a federal court
can find a constitutional error “harmless,” it must be convinced that the error
was harmless beyond a reasonable doubt. Id.
Chapman reached the Supreme Court on direct review, and while the court
had applied its rule in several cases, none of those cases dealt with
Chapman’s applicability on collateral review. At most, the court said, those
cases “assumed” the applicability of Chapman on habeas review.
Citing Edelman v. Jordan, 415 651, 760-71, 94 S.Ct. 1347, 1359 (1974), the
court concluded that it was “free to address the issue on the merits.” Id. The
court pointed out that:
.
The federal habeas corpus statute is silent on this point. It permits
federal courts to entertain a habeas petition on behalf of a state
prisoner “only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States,” 28 U.S.C. §
2254(a), and directs simply that the court “dispose of the matter as
law and justice require,” § 2243. The statute says nothing about the
standard for harmless-error review in habeas cases. Respondent urges
us to fill this gap with the Kotteakos standard, under which an error
requires reversal only if it “had substantial and injurious effect or
influence in determining the jury's verdict.” Kotteakos v. United
States, 328 U.S., at 776, 66 S.Ct., at 1253. This standard is grounded
in the federal harmless-error statute. 28 U.S.C. § 2111 (“On the
hearing of any appeal or writ of certiorari in any case, the court shall
give judgment after an examination of the record without regard to
errors or defects which do not affect the substantial rights of the
parties”). FN7 On its face § 2111 might seem to address the situation
at hand, but to date we have limited its application to claims of
nonconstitutional error in federal criminal cases. See, e.g., United
States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986).
Id., 507 U.S. 631-32.
Against this backdrop, the Supreme Court defined the historical differences
between direct and habeas reviews. Direct review is the primary, dominant
form of review while habeas is secondary and limited, and was definitely not
intended to “relitigate state trials.” Id. The court pointed to Justice Stevens’
succinct observation in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 that
habeas corpus “is designed to guard against extreme malfunctions in the
state criminal justice system.” Id., 443 U.S. at 332, n. 5.
The court then advanced the argument that would ultimately be used by
Congress to adopt the Antiterrorism and Effective Death Penalty Act of
1996 (which severely curtailed federal habeas relief to state prisoners) and
was used to adamantly reject Brecht’s argument that Chapman should apply
on collateral review:
In the final analysis, it was the states’ interest in “finality of conviction” that
carried the constitutional day in Brecht. This was made clear by the court
when it said that “overturning final and presumptively correct convictions on
collateral review because the State cannot prove that an error was harmless
under Chapman undermines the States’ interest in finality and infringes upon
their sovereignty over criminal matters.” Id., 507 U.S. at 637. And for that
reason the court concluded that the only way a state prisoner can obtain
federal habeas relief based on a trial error under the Kotteakos rule is for
him to demonstrate “actual prejudice.” Id. See also: United States v. Lane,
474 U.S. 438, 4449, 106 S.Ct. 725, 732 (1986).
In the wake of Chapman/Brecht, the Supreme Court and the federal circuits
have defined and distinguished the difference between “trial” (subject to
harmless error analysis) and “structural” (rights so sacred not subject to
harmless error analysis) errors. The following is a list of recognized trial
errors:
• Right to counsel
• Right to an impartial judge
• Right to a public trial
• Right to self-representation at trial
• Erroneous jury instructions regarding reasonable doubt
• Racial discrimination in jury or grand jury selection
• Certain discovery violations, and
• Denial of the right to choice of counsel
This past term the Supreme Court revisited the Chapman/Brecht issue, and,
in particular, elected to decide “whether a federal habeas court must assess
the prejudicial impact of constitutional error in a state-court criminal trial
under the ‘substantial and injurious effect’ standard set forth in Brecht ….,
when the state appellate court failed to recognize the error and did not
review it for harmlessness under the ‘harmless beyond a reasonable doubt’
standard set forth in Chapman …” See, Fry v. Pliler, 127 S.Ct. 2321, 168
L.Ed.2d 16 (2007).
John Francis Fry was convicted by a California jury of a 1992 double-
murder following two mistrials. During the trial Fry attempted to attribute
the murders to another person. He called several witnesses who linked the
murders to one Anthony Hurtz. The trial court excluded the testimony of an
additional witness, Pamela Maples, who was prepared to testify that she
heard Hurtz discussing double murders similar to the ones for which Fry was
being tried. The trial court excluded Maples testimony because Fry’s
attorney had offered insufficient evidence to link the murders described by
Hurtz to Maples to the murders for which Fry was being prosecuted.
On appeal, the state appeals court did not explicitly address the Chambers
issue, finding only that the trial court had not abused its discretion under the
state’s evidentiary rules by excluding Maples testimony and that “no
possible prejudice” could have resulted from that trial court decision. Id.,
127 S.Ct. 2324.
Fry then applied for federal habeas relief pursuant to 28 U.S.C. § 2254
raising the Chambers and other issues. The U.S. District Court held that
while the state appeals court’s failure to recognize error under Chambers
was an “unreasonable application of clearly established law as set forth by
the Supreme Court,” and disagreed with its “no possible prejudice” finding,
the federal court found that there had been an “insufficient showing that the
improper exclusion of the testimony of Ms. Maples had a substantial and
injurious effect on the jury’s verdict” under Brecht. Id. A divided Ninth
Circuit Court of Appeals upheld the district court’s findings and conclusion
of law. Id.
The Supreme Court at the outset rejected Fry’s position that once a state
appellate court refuses to apply Chapman on direct appeal, the Brecht
standard of review in federal habeas proceedings must change:
Fry also argued that with the advent of AEDPA and its attendant rule that
federal habeas relief cannot be granted unless the state court’s adjudication
“resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1),the more
liberal AEDPA/Chapman standard of review should now be the required
standard of review in collateral federal habeas cases.
Citing Mitchell v. Esparza, 540 U.S. 12, 124 S.Ct. 7 (2003), the Supreme
Court rejected that argument:
…In Mitchell v. Esparza, 540 U.S. 12, 124 S.Ct. 7, 157 L.Ed.2d 263
(2003) (per curiam), we held that, when a state court determines that a
constitutional violation is harmless, a federal court may not award
habeas relief under § 2254 unless the harmlessness determination
itself was unreasonable. Petitioner contends that § 2254(d)(1), as
interpreted in Esparza, eliminates the requirement that a petitioner
also satisfy Brecht's standard. We think not. That conclusion is not
suggested by Esparza, which had no reason to decide the point. Nor is
it suggested by the text of AEDPA, which sets forth a precondition to
the grant of habeas relief (“a writ of habeas corpus ... shall not be
granted” unless the conditions of § 2254(d) are met), not an
entitlement to it. Given our frequent recognition that AEDPA
limited rather than expanded the availability of habeas relief, see,
e.g., Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146
L.Ed.2d 389 (2000), it is implausible that, without saying so,
AEDPA replaced the Brecht standard of “ ‘actual prejudice,’ ”
507 U.S., at 637, 113 S.Ct. 1710 (quoting United States v. Lane, 474
U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986)), with the more
liberal AEDPA/ Chapman standard which requires only that the
state court's harmless-beyond-a-reasonable-doubt determination
be unreasonable. That said, it certainly makes no sense to require
formal application of both tests (AEDPA/ Chapman and Brecht) when
the latter obviously subsumes the former. Accordingly, the Ninth
Circuit was correct to apply the Brecht standard of review in
assessing the prejudicial impact of federal constitutional error in
a state-court criminal trial. Id., 127 S.Ct. at 2326-27. [Emphasis
added]
The Supreme Court was also not persuaded by Fry’s argument that the
“finality of conviction” doctrine so worshipped by the states and which
formed the basis of the Brecht ruling has effectively been alleviated by
AEDPA which sets strict time limitations on federal habeas and prohibits
second/successive petitions. The court noted that even under AEDPA states
cases seeking collateral relief can span a decade, pointing out that Fry’s case
had spanned twelve years from conviction to issuance of the court’s 2007
decision. Id.,, 127 S.Ct. at 2327, n. 2.
Finally, Fry argued that his conviction should be reversed even under Brecht
“because the exclusion of Maples’ testimony substantially and injuriously
affected the jury’s verdict in his case.” Id. The Supreme Court declined to
address that issue, pointing out that it had granted certiorari only to decide a
question which had produced a conflict between the circuits. The court then
answered the conflict-question as follows: