The Riddles of Harmless Error and Habeas Corpus
“An error occurred at trial. I have grave doubt whether this error contributed to the verdict. Therefore, no reasonable person could fail to have at least a reasonable doubt whether it contributed to the verdict.”
Does this follow, or is it a non sequitur? The U.S. Supreme Court puzzled over that question this morning in Brown v. Davenport, No. 20-826. To answer it correctly, in my view, the Court may have to disclaim a bit of dictum in Fry v. Pliler (2007).
On its facts, Fry was about the standard of harmless error that a federal court must apply when the state court does not address that question. Fry held that the standard announced by the Supreme Court in Brecht v. Abrahamson before enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) still applies. There needs to be “grave doubt” as to whether the error was harmless, a more forgiving standard than the strict “beyond a reasonable doubt” that applies on direct appeal.
That is straightforward enough, but Justice Scalia’s opinion for the Court went on to comment, “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.” This is a good illustration of why courts should stick to the case before them and not opine on side points that may have not been thought all the way through.
Actually, it makes a lot of sense, and the “subsumes” is not only not obvious, it is not correct. The logic at the top of this post is faulty because it fails to properly account for the wide range of views among reasonable jurists.
When the state court has decided a federal question of law on the merits, Congress has forbidden the lower federal courts from overturning criminal judgments on the basis of disagreement with the state court unless the decision is contrary to Supreme Court precedent or an unreasonable application of that precedent. The Supreme Court has interpreted “unreasonable” to mean “beyond any possibility for fairminded disagreement.”
That is an extremely broad range. In our disputatious profession, we very often think that the conclusions of others are clearly wrong. We have strong yet “fairminded” disagreements all the time. For one reasonable person to say there is “grave doubt” and another to say there is no “reasonable doubt” is well within the range.
In this morning’s argument, Justice Alito suggested it was time to dump the “subsumes” dictum. Justices Kagan and Sotomayor seemed to grasp it tightly.
Kym Stapleton, who wrote CJLF’s brief in the case, will have a longer post based on the transcript later today.