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Comments on Criminal Issues
September 6, 2007
WHEN ERROR IS HARMLESS
Federal Criminal Appeal Lawyers Struggle With “Harmful” Errors
In 1962 Ruth Elizabeth Chapman and Thomas Leroy Teale robbed, kidnapped, and murdered a bartender in the State of California. See, Chapman v. California, 386 U.S. 18, 19, 87 S.Ct. 824 (1967). They were tried and convicted together. The two defendants did not take the witness stand in their own defense. Chapman received a life sentence and Teale was sentenced to death. Id.
During its closing argument, the prosecution made repeated machine-gun like references to the defendant’s failure to testify as an indication of their guilt and the trial court instructed the jury that it could properly draw such inferences of guilt from the failure to testify. Id.
At the time of the Chapman/Teale trial the Art. 1, § 13 of the California Constitution provided that “in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury.”
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:
An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot, under Fahy, be conceived of as harmless. Certainly error, constitutional error, in illegally admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is 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. There is little, if any, difference between our statement in Fahy v. State of Connecticut about ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction’ and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. While appellate courts do not ordinarily have the original task of applying such a test, it is a familiar standard to all courts, and we believe its adoption will provide a more workable standard, although achieving the same result as that aimed at in our Fahy, case. Id., 386 U.S. at 23-24.
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.
A quarter of a century later the Supreme Court revisited the Chapman “harmless error” rule in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710 (1993). Todd A. Brecht was living with his sister and her husband, a local district attorney, in Wisconsin. While the couple was away from their residence, Brecht broke into their liquor cabinet and started drinking. He discovered a rifle upstairs and began shooting cans in the backyard when his brother-in-law returned home from work. Brecht shot him in the back, killing him. He then fled to Minnesota where he was captured. Id., 507 U.S. at 623-24.
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.
During its closing argument, the prosecution encouraged the jury to “remember that Mr. Brecht never volunteered until in this courtroom what happened in the Hartman residence…” The prosecution also commented on Brecht’s pretrial silence, saying: “He sits back here and sees all of our evidence go in and then he comes out with this crazy story …” Finally, in its closing rebuttal, the prosecution told the jury: “I know what I’d say [had I been in petitioner’s shoes], I’d say, ‘hold on, this was a mistake, this was an accident, let me tell you what happened,’ but he didn’t say that did he. No, he waited until he hears our story.” Id.
The jury convicted Brecht and he was sentenced to life imprisonment. On direct appeal the Wisconsin Court of Appeals reversed the conviction because of the prosecution’s repeated references to Brecht’s post-Miranda silence. See, State v. Brecht, 138 Wis.2d 158, 168-69, 405 N.W.2d 718, 723 (1987)[citing Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240 (1976)]. The Wisconsin Supreme Court, however, reinstated the conviction, holding that while the use of Brecht’s post-Miranda silence was error, the error was harmless beyond a reasonable doubt. See, State v. Brecht, 143 Wis.2d 297, 317, 421 N.W.2d 96, 104 (1988)[citing Chapman v. California, 386 U.S. at 24].
The Supreme Court next outlined Brecht’s post-conviction procedural odyssey into the federal courts:
Petitioner then sought a writ of habeas corpus under 28 U.S.C. § 2254, reasserting his Doyle claim. The District Court agreed that the State's use of petitioner's post- Miranda silence violated Doyle, but disagreed with the Wisconsin Supreme Court that this error was harmless beyond a reasonable doubt, and set aside the conviction. 759 F.Supp. 500 (WD Wis.1991). The District Court based its harmless-error determination on its view that the State's evidence of guilt was not “overwhelming,” and that the State's references to petitioner's post- Miranda silence, though “not extensive,” were “crucial” because petitioner's defense turned on his credibility. Id., at 508. The Court of Appeals for the Seventh Circuit reversed. It, too, concluded that the State's references to petitioner's post- Miranda silence violated Doyle, but it disagreed with both the standard that the District Court had applied**1716 in conducting its harmless-error inquiry and the result it reached. 944 F.2d 1363, 1368, 1375-1376 (1991).
The Court of Appeals held that the Chapman harmless-error standard does not apply in reviewing Doyle error on federal habeas. Instead, because of the “prophylactic” nature of the Doyle rule, 944 F.2d, at 1370, as well as the costs attendant to reversing state convictions on collateral review, id., at 1373, the Court of Appeals held that the standard for determining whether petitioner was entitled to habeas relief was whether the Doyle violation “ ‘had substantial and injurious effect or influence in determining the jury's verdict,’ ” 944 F.2d, at 1375 (quoting Kotteakos v. United States, 328 U.S., at 776, 66 S.Ct., at 1253). Applying this standard, the Court of Appeals concluded that petitioner was not entitled to relief because, “given the many more, and entirely proper, references to [petitioner's] silence preceding arraignment,” he could not contend with a “straight face” that the State's use of his post- Miranda silence had a “substantial and injurious effect” on the jury's verdict. 944 F.2d, at 1376. Id., 507 U.S. at 625-26.
Pointing out that it was the sixth court to pass on the issue of whether the prosecution’s references to Brecht’s post-Miranda silence required reversal, the Supreme Court granted certiorari to resolve a conflict between the courts of appeal on the question “whether the Chapman harmless-error standard applies on collateral review of Doyle violations.” Id. [The Eighth Circuit in Bass v. Nix, 909 F.2d 297 (8th 1990) has held that Chapman applied on collateral review in Doyle violation cases]. Brecht urged the Supreme Court to follow the Eighth Circuit lead and apply Chapman to collateral review, saying it was necessary to prevent state courts from relaxing their review standards of Doyle violations on direct appeal. Id., 507 U.S. at 627.
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:
In Doyle v. Ohio, 426 U.S., at 619, 96 S.Ct., at 2245, we held that “the use for impeachment purposes of [a defendant's] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.” This rule “rests on ‘the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial.’ ” Wainwright v. Greenfield, 474 U.S. 284, 291, 106 S.Ct. 634, 638, 88 L.Ed.2d 623 (1986) (quoting South Dakota v. Neville, 459 U.S. 553, 565, 103 S.Ct. 916, 923, 74 L.Ed.2d 748 (1983)). The “implicit assurance” upon which we have relied in our Doyle line of cases is the right-to-remain-silent component of Miranda. Thus, the Constitution does not prohibit the use for impeachment purposes of a defendant's silence prior to arrest, Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 2129, 65 L.Ed.2d 86 (1980), or after arrest if no Miranda warnings are given, Fletcher v. Weir, 455 U.S. 603, 606-607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490 (1982) ( per curiam ). Such silence is probative and does not rest on any implied assurance by law enforcement authorities that it will carry no penalty. See 447 U.S., at 239, 100 S.Ct., at 2129. Id., 507 U.S. at 628.
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 Seventh Circuit in Brecht elected to describe Doyle as a “prophylactic rule” inasmuch as the Miranda warnings are not part of the constitution and is designed solely “protect another prophylactic rule from erosion or misused.” 944 F.2d at 1370. The Supreme Court refused to accept this reasoning. It said Doyle was not simply an extension of the “Miranda prophylactic rule” but rather was a constitutional protection “rooted in fundamental fairness and due process concerns.” Id., 507 U.S. at 629. The court added that due process is violated under Doyle whenever the prosecution uses a defendant’s post-Miranda silence for impeachment purposes and, therefore, does not bear the “hallmarks of a prophylactic rule.” Id. The court then defined exactly what a Doyle error is:
Instead, we think Doyle error fits squarely into the category of constitutional violations which we have characterized as “ ‘trial error.’ ” See Arizona v. Fulminante, 499 U.S. 279, 307, 111 S.Ct. 1246, 1263, 113 L.Ed.2d 302 (1991). Trial error “occur[s] during the presentation of the case to the jury,” and is amenable to harmless-error analysis because it “may ... be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial].” Id., at 307-308, 111 S.Ct., at 1264. At the other end of the spectrum of constitutional errors lie “structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards.” Id., at 309, 111 S.Ct., at 1265. The existence of such defects-deprivation of the right to counsel,FN4 for example-requires automatic reversal of the *630 conviction because they infect the entire trial process. See id., at 309-310, 111 S.Ct., at 1265. Since our landmark decision in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), we have applied the harmless-beyond-a-reasonable-doubt standard in reviewing claims of constitutional error of the trial type. Id., 507 U.S. at 629-30.
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:
The reason most frequently advanced in our cases for distinguishing between direct and collateral review is the State's interest in the finality of convictions that have survived direct review within the state court system. See, e.g., Wright v. West, supra, 505 U.S., at 293, 112 S.Ct., at 1290-1291 (opinion of THOMAS, J.); McCleskey v. Zant, 499 U.S., at 491, 111 S.Ct., at 1468-1469; Wainwright v. Sykes, 433 U.S., at 90, 97 S.Ct., at 2508. We have also spoken of comity and federalism. “The States possess primary authority for defining and enforcing the criminal law. In criminal trials they also hold the initial responsibility for vindicating constitutional rights. Federal intrusions into state criminal trials frustrate both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.” Engle v. Isaac, supra, 456 U.S., at 128, 102 S.Ct., at 1572. See also Coleman v. Thompson, 501 U.S. 722, 748, 111 S.Ct. 2546, 2563-2564, 115 L.Ed.2d 640 (1991); McCleskey, supra, 499 U.S., at 491, 111 S.Ct., at 1468-1469. Finally, we have recognized that “[l]iberal allowance of the writ ... degrades the prominence of the trial itself,” Engle, supra, 456 U.S., at 127, 102 S.Ct., at 1571, and at the same time encourages habeas petitioners to relitigate their claims on collateral review, see Rose v. Lundy, 455 U.S. 509, 547, 102 S.Ct. 1198, 1218, 71 L.Ed.2d 379 (1982) (STEVENS, J., dissenting).
In light of these considerations, we must decide whether the same harmless-error standard that the state courts applied on direct review of petitioner's Doyle claim also applies in this habeas proceeding. We are the sixth court to pass on the question whether the State's use for impeachment purposes of petitioner's post- Miranda silence in this case requires reversal of his conviction. Each court that has reviewed the record has disagreed with the court before it as to whether the State's Doyle error was “harmless.” State courts are fully qualified to identify constitutional error and evaluate its prejudicial effect on the trial process under Chapman, and state courts often occupy a superior vantage point from which to evaluate the effect of trial error. See Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 456, 78 L.Ed.2d 267 (1983) ( per curiam ). For these reasons, 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. Id., 507 U.S. at 635-36.
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:
• Certain grand jury procedural violations
• Variance between the indictment and the proof
• Misjoinder of offenders and offenses
• Errors in the plea colloquy
• The admission of evidence in violation of most of a defendant’s Fourth, Fifth, or Sixth Amendment rights, including coerced confessions
• Errors in voir dire examination of prospective jurors
• Juror misconduct
• Prosecutorial misconduct
• Confrontation Clause violations
• Absence of the defendant from trial proceedings
• Improper exclusion of evidence
• Errors in jury instructions
• Failure to inquire whether a guilty plea is voluntary
• Absence of the defendant from the return of a death verdict
• Errors in sentencing, and
• Failure to determine if the defendant understands nature of charge
See, 36 Geo.L.J.Ann.Rev.Crim.Proc. 2007, p. 855-59.
The following is a list of structural 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
Id., Geo.L.J., at 859-61.
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:
But the quoted passage does little to advance petitioner's position. To say (a) that since state courts are required to evaluate constitutional error under Chapman it makes no sense to establish Chapman as the standard for federal habeas review is not at all to say (b) that whenever a state court fails in its responsibility to apply Chapman the federal habeas standard must change. It would be foolish to equate the two, in view of the other weighty reasons given in Brecht for applying a less onerous standard on collateral review-reasons having nothing to do with whether the state court actually applied Chapman.
Petitioner argues that, if Brecht applies whether or not the state appellate court conducted Chapman review, then Brecht would apply even if a State eliminated appellate review altogether. That is not necessarily so. The federal habeas review rule applied to the class of case in which state appellate review is available does not have to be the same rule applied to the class of case where it is not. We have no occasion to resolve that hypothetical (and highly unrealistic) question now. In the case before us petitioner did obtain appellate review of his constitutional claim; the state court simply found the underlying claim weak and therefore did not measure its prejudicial impact under Chapman. The attempted analogy-between (1) eliminating appellate review altogether and (2) providing appellate review but rejecting a constitutional claim without assessing its prejudicial impact under Chapman-is a false one. Id., 127 S.Ct. at 2326.
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:
We hold that in § 2254 proceedings a 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, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the “harmless beyond a reasonable doubt” standard set forth in Chapman, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Id., 127 S.Ct. at 2328.
Fry has serious constitutional implications. State appellate courts can now ignore the Chapman harmless error analysis on direct appeal forcing a state prisoner into the untenable position of having constitutional violations reviewed under the much harsher Brecht “actual prejudice” standard on federal collateral. In reality, if as the Supreme Court said in Fry that the Brecht standard of review (“actual prejudice”) has actually “subsumed” the Chapman/ADEPA standard of review (“harmless beyond a reasonable doubt”) on direct appellate review, significant constitutional violations will now only receive cursory review, if any, on state direct appeal and will inevitably be rendered “harmless” on collateral federal review under Brecht.
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