Questions Presented (from Scotusblog):
1) Did the Seventh Circuit violate this Court’s precedent on harmless error when it focused its harmless error analysis solely on the weight of the untainted evidence without considering the potential effect of the error (the erroneous admission of trial counsel’s statements that his client would lose the case and should plead guilty for their truth) on this jury at all?
2) Did the Seventh Circuit violate Mr. Vasquez’s Sixth Amendment right to a jury trial by determining that Mr. Vasquez should have been convicted without considering the effects of the district court’s error on the jury that heard the case?
Seventh Circuit opinion 635 F.3d 889 (7th Cir. No. 09-4056, 3/14/11)
Harmless error analysis by its very nature is fact-intensive, making some recitation of the facts unavoidable. Vasquez was convicted by jury of one count of conspiring to possess cocaine with intent to distribute, but acquitted of an integrally related charge of attempting to possess cocaine with intent. The charges stemmed from a transaction set up by an informant with two co-defendants who eventually pleaded guilty. Vasquez raised an innocent bystander defense, premised on the testimony of the wife of a co-defendant – she testified in effect that Vasquez coincidentally agreed to pick up her husband up, taking her car. Vasquez thus just happened to end up at the site of the planned drug deal, driving a car with $23,000 in a hidden compartment. On rebuttal, the government impeached the wife with jail recordings of conversations she had with her husband, which the trial court admitted for the truth of the matters asserted. Among other things related in the calls, the wife said that she’d talked to Vasquez’s attorney who told her he had advised Vasquez to plead guilty and that if the 3 defendant’s went to trial, “everyone is going to lose.” Admission of these recordings was error, but harmless, the lower court held (2-1; the dissent would have reversed for new trial). The majority, in a strikingly brief analysis which acknowledged “the issue is close,” stressed Vasquez’s flight from the scene, his reference to money, and a prior conviction for a similar offense. The majority made no mention of the acquittal.
It hardly bears mention that the Supreme Court isn’t an error-correcting court, and has better things to do than determine whether the lower court reached the “correct” result in a fact-bound context. But the standard for reviewing an issue on appeal is altogether different, e.g., Ornelas v. U.S., 517 U.S. 690, 695 (1996) (“We granted certiorari to resolve the conflict among the Circuits over the applicable standard of appellate review” re: probable cause to search / reasonable suspicion to stop). The cert petition indicates that the thrust is on how the harmless-error rule is to be administered, namely: the lower-court majority focused “solely on the weight of the untainted evidence without considering the potential effect of the error (the erroneous admission of trial counsel’s statements that his client would lose the case and should plead guilty for their truth).” In other words, the reviewing court must consider impact of the error on the jury, as well as strength of the prosecution’s case. The cert petition synopsizes the problem, this way:
Legal scholars and commentators have long recognized that two competing tests have emerged for determining whether an error is harmless. The first test inquires whether the error had any effect on the verdict. The second test inquires whether there was overwhelming evidence of guilt that was untainted by the error. …
The outcome might not have significant impact in Wisconsin, given that our courts are already commanded to “consider the error in the context of the entire trial, including the nature of the State’s evidence against the defendant and the nature of the defense,” State v. Hansbrough, 2011 WI App 79, ¶18. To be sure, Vasquez may be positing some conflict between, thus need to resolve, Neder v. United States, 527 U.S. 1 (1999) (focus on whether “jury verdict would have been the same absent the error”), and Chapman v. California, 386 U.S. 18 (1967) (beneficiary of error must prove “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained”). Not only are these statements rhetorically distinct, so are their points of emphasis. Indeed, the lower court majority here casually observed that an innocent bystander “‘defense’ is difficult to sell,” even more so when the defendant doesn’t testify (as Vasquez did not) – would a court consider employing such cynicism if under more explicit restraint of the Chapman wording? It is one thing to say the defense was weak on the particular facts, another to announce as a routine matter (of what? judicial notice?) that the chosen defense is intrinsically weak without regard to the particular facts, and indeed oblivious to the court’s own perception that the “issue is close.” All in all, an impressive bit of lawyering – inducing cert-review on a question of harmless error – whatever the final outcome.
Update: dismissed as improvidently granted, 4/2/12. Scotusblog analysis of dismissal, here.
Actually, this could have a substantial impact in Wisconsin, if taken seriously. In my experience (24+ years as an appellate attorney), harmless error analysis is the most misused, or at least misunderstood, principle of criminal law. Although often referencing the proper standards, the courts’ analysis regularly focuses, not on the impact of the particular error (the “effect-on-the-verdict” approach required by Chapman, Neder, and Dyess), but on the perceived strength of the state’s case (the “quilt-based” approach). In essence, the courts take on the role of “super jury” expressly prohibited by Neder.
A large part of this could be attributable to the failure of defense counsel to fully argue resulting prejudice/harmless error. Of course, that does not fully account, for instance, for the courts’ continued violation of Neder and Chapman or the Court of Appeals insistence upon a legal standard for prejudice in ineffectiveness cases (i.e., focus on whether the result is reliable) expressly rejected by the U.S. Supreme Court more than a decade ago in Williams v. Taylor, 529 U.S. 362 (2000).
Given that Neder and Williams have not succeeded in driving a stake through the heart of the “super juror”/guilt-based approach to harmless error analysis in Wisconsin, it may be wishful thinking that yet another Supreme Court pronouncement on the issue will succeed in doing so. Still, there is always hope.
Thanks for the astute comment, Rob.
Interested readers may also want to check out Professor Michael O’Hear’s post, “No Harm, No Foul — But How Do You Know If There Was Harm?.”