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Harmless Error

Fear of a Paper Tiger: Enforcing Louisiana's Procedural and Statutory Rules in the Wake of Harmless error Analysis

64 Louisiana Law Review, 2003

James E. Boren

If you believe in the right to counsel and providing a principled defense for those accused of crime, there is a presumption that you are biased against law enforcement or enforcement of the law. Such a presumption is simply not true. On the contrary, it is the criminal defense lawyer who must be vigilant against unfair trends and practices which occur during the enforcement of law. It is the responsibility of the defense lawyer to protest these practices and to raise issues on behalf of a client who may not be the poster child for the Constitution. Criminal defense lawyers call "foul" to get the attention of the referee who either applies the rules or fashions a rule if one does not exist to govern the situation. The current trend, however, is to fashion rules which simply defeat the defendant's argument because what is de rigueur in criminal justice now is to convict the person and justify the method; or put a more blunt way - in criminal court the end justifies the means. Regrettably, the end result seems not only to be conviction of the guilty, but conviction of a few innocents, a rupture of the rules and, unfortunately, too often, getting re-elected to the bench. The rules that govern fair play, trials, and the constitution are victims of "Friendly fire" in the war on crime. Many judges justify this technique - keeping the likely guilty convicted - by the harmless error doctrine.

No article could put the legal issues more in perspective than Judge Harry T. Edwards' New York University Law Review Article on Harmless Error. Judge Edwards' scholarly and insightful writing cannot be updated or improved by this writer; rather, this article intends to deal with a more practical matter: the impact of the harmless error rule on the criminal defense practice and Louisiana's criminal justice system.

Harmless errors write out the deterrent effect of judicial systems on law enforcement; disciplining cops, prosecutors are fond of saying, is not necessary any more - they are well trained and do not violate citizens' rights. We are celebrating our victory over police corruption a little bit early. Over the last several years in New Orleans the police department has been wracked and according to prosecutors, rid and reformed of corruption in all aspects. Thank goodness, because it would not be surprising to find that a police officer who was willing to murder and deal drugs would also be willing to coerce a confession or fudge on a search warrant.

District attorneys, the chief law enforcement officers in our state wide prosecution system have been indicted and convicted for corruption in office; assistant district attorneys and judges have suffered similar fates as have the sheriffs in several parishes. Local and national newspapers are filled with reports on the shenanigans of those entrusted to enforce the law. It seems that every metropolitan area and rural parish has its share of crooks in the criminal justice system. Some even suggest that the frequency of police and prosecutorial misconduct is increasing and the number of reported illegal searches and trial violations of rights support those claims. The abuse of Louisiana's forfeiture statute, an abuse shared by police, sheriffs, and district attorneys, is well documented. (One district attorney had a salt water aquarium adorning his office which he purchased with drug forfeiture proceeds. Another uses the funds to buy booze and food in celebration of death penalty verdicts.)

But these cases are not always brought to light by courts or investigators. Indeed, when allegations of police and prosecutorial misconduct are advanced by criminal defendants, short shrift is made of them, and the lawyers who present the argument are scoffed at and ridiculed. Instead, now it is the media who is the watchdog of the judicial system, not the judicial system.

Criminal defendants have a better chance of getting justice with a public relations agent and a segment on Sixty Minutes than by presenting an argument for postconviction relief about a Brady violation to a trial or appellate court in Louisiana. And unfair and illegal tactics by cops and prosecutors are more and more often labeled "harmless" (i.e., "permissible") by Louisiana judges. Some commentators believe the harmless error doctrine is simple, consistent and fairly administered. But if it is so simple and consistent why has there never been a prosecutor who agreed that an error was harmful (let alone agreed that it was an error). The problem is simple: the harmless error doctrine, to be applied fairly, requires a referee who does not carry the bias of prosecutor. If the referee is simply another prosecutor who abhors reversing criminal cases because of error, and will use whatever means available to save the conviction, the referee job is vacated. This is the reality of the criminal justice system. A change of approach and honest recognition of the evolution of the harmless error doctrine, can restore confidence in a judiciary that is so prosecutor oriented that fairness is wanting.

The Harmless Error Doctrine

The harmless error doctrine is grounded on the assumption that there is no such thing as an error free trial. As a rule of appellate review, "harmless error" enables the courts to uphold convictions in trials peppered with statutory or constitutional violations. Consequently, reversals on appeal rarely occur merely because the judge, prosecution, jury, or defense counsel, violated some law. Rather, in order to get a case reversed on appeal, a defendant must show (1) a violation of law (2) "plus." That "plus" is that the error complained of harmed the defendant under the harmless error standard. Once it is determined that the error is subject to harmless error analysis, a court may apply the harmless error doctrine in two ways:

One approach, the "guilt-based approach," requires the reviewing court to assess the factual guilt or innocence of the defendant in light of the untainted evidence in the record. The second approach, the "effect-on-the-verdict approach," requires the reviewing court to determine whether the error at trial influenced the jury and thus contaminated its verdict.

Chief Judge Edwards concluded that he was both optimistic and skeptical about the future of the harmless error doctrine: optimistic because of recent supreme court decisions that indicate a trend toward an effect-on-the-verdict, but skeptical because he was unsure whether, in practice, appellate judges can ever solve the riddle of harmless error. With a twinkle in his eye, the doctrine is described:

When an appellate court review of trial proceedings uncovers a legal error that might produce a disfavored result (such as the retrial of a defendant who appears to be guilty) the court may simply call the error "harmless", and the potential aggravation is removed. This approach seems to work like magic. Appellate judges merely apply a "drop" of harmless error, and the coerced confession, warrantless search, erroneous jury instruction, faulty exclusion of evidence, unfair restriction on cross examination, and a host of other errors simply vanish as though they had never occurred, and most important, the defendant remains in prison to suffer the punishment that he or she appears to deserve.

As matters stand now, in many criminal cases an error is harmless so long as the appellate court remains convinced of the defendant's guilt; an error warrants reversal only where it raises doubts about the defendant's culpability. It was Lewis G. Carroll in Alice in Wonderland who said "No first the verdict then the trial." A trip through Louisiana harmless error law makes one wonder if it is not observed and written by Alice.

What's Wrong with the Judge Being the Juror?

If the justice system means anything it means fairness. Our commitment to a fair system is seriously tested in reviewing the cases of those who are probably guilty. We tell jurors during voir dire that "probably" is not enough to convict; beyond a reasonable doubt is the standard due process mandates. If the juror declares, in deciding whether a person is guilty beyond a reasonable doubt, she will consider her political philosophy on crime and substitute it for the legal standard of proof beyond a reasonable doubt, she would be disqualified for cause. Should judges be permitted to substitute their political philosophy while determining whether a defendant is guilty? The principle is that all defendants are entitled to a trial by jury to hear the evidence, and decide the facts. Juries are to hear evidence that is admitted by law. We have confidence in the jury trial because the jury follows the rules and the judge is there to enforce the rules and make sure that only legally admissible evidence comes before the jury. Confidence in this system is eroded if we say that it is "okay" for this jury to have heard inadmissible evidence because the defendant is probably guilty anyway. Applying the harmless error rule, if the evidence is not admitted "by law," the judge first decides whether the defendant is guilty or innocent and then decides whether the error was harmful. Fair trials by the rules are reserved for those who are not "probably guilty." Put another way, the defendant is entitled to voir dire and challenges for cause. If a judge announces he is predisposed to allow inadmissable evidence because the defendant is "probably guilty," then she should be subject to a challenge for cause / recusal.

If the guilt based harmlessness approach is used, the impact of error depends on "how guilty" the judge perceives the defendant without the inadmissible evidence. If the defendant is probably guilty, virtually no error can stop the conviction from being upheld. "So what? He's guilty."

If the effect on the verdict approach is used, i.e., did the error influence the jury and thus contaminate the verdict, the analysis is eclipsed by the judge's conclusion that the defendant is probably guilty. The judge asks, "Regardless of this evidence, what reasonable person would think otherwise?" Essentially what the judge is saying is, "I think he is guilty, and this wouldn't have affected me because I think he is guilty in the first place." If a juror were to say that, she would be challenged for cause. When a judge says it, it is printed in law books and entitled to respect.

When determining whether the defendant is guilty without the contested evidence, what happens to multiple errors? If the judge says I believe the eye witness (vigorous cross examination notwithstanding); I believe the confession (the fact that the defendant was intoxicated, brain damaged and perhaps intimidated by smarter policemen does not make me think the confession is invalid); and I believe the physical evidence (which alone does not convict but which corroborates the confession and the eye witness which I believe), then he is guilty. Or does the judge say if I believe any of those things enough, then the rest of it doesn't matter? Well then who is the jury? The jury did not hear only legally admissible evidence. The judge is substituting himself for the jury.

In view of the place of importance that trial by jury has in our Bill of Rights, we can be sure that Congress did not intend to substitute for the jury's decision the belief of appellate judges in the guilt of an accused. Two functions have merged into one. In the process, the reviewing, impartial judge has vanished beneath the desire not to be criticized for reversing the conviction of someone who is probably guilty.

Why do we not have an article in the Code of Criminal Procedure authorizing directed verdicts of guilt at the conclusion of the state's case; or summary judgment in criminal cases upon the filing of appropriate affidavits by the police officers? Because that denies the defendant the right to a trial by jury . The harmless error rule also denies the right to trial by jury. The issue is not whether a jury's verdict would have been rendered without the error or inadmissable evidence; such speculation contemplates a guilty verdict that never was in fact rendered. The actual verdict was rendered with the error. To say that the verdict would have been rendered without the evidence is to supplant the jury and violate the jury trial guarantee. It substitutes the judge's view of the defendant's guilt for that of the jury, and sanctions a judge's mystical claim of being able to be impartial while declaring someone so guilty that no amount of error can deprive him of a fair trial. That misses the point: Innocent and guilty people are entitled to a fair trial. It is for this reason that trial courts in our system are prohibited from directing verdicts of guilty against criminal defendants, no matter how weighty the evidence favoring such outcomes. Put simply, "the error in such a case is that the wrong entity judged the defendant guilty" . The Bill of Rights gives us a right to trial by jury; it does not say, a right to trial by a judge alone-it says jury.

The End Justifies the Means/Analysis

Most people close to the criminal justice process would agree that few errors are absolutely harmless. Indeed, some defense attorneys believe no error is harmless. A cynical definition of harmless error is, "He's probably guilty, so let's convict him anyway. After all, he's a bad person, and how do you expect me to get re-elected if I set him free." Such a definition reflects the belief that judges bow to the public's perception that an overturned verdict means that a guilty criminal is back on the street. But the public's almost hysterical fear of freeing hordes of guilty people is groundless. Once a case is remanded, new trials frequently achieve the same result. What most harmless error decisions fail to candidly address is the politics of the criminal justice system. Annually, Louisiana competes for the largest percentage of its citizens serving the largest sentences. Louisiana has finished in the top ten for the last several decades. Louisiana does not mollycoddle criminals. Now, Louisiana does not even provide them fair trials. Louisiana is very tough on crime. In fact, mentioning politics and anti-crime hysteria in brief or oral argument invites criticism if not sanctions. It is with some trepidation that this article is written by a still practicing lawyer.

Regardless of what courts say about the weight of the evidence, "Did he do it?" is the test every time. The public is focused on the end result, not the process of "getting there," which of course is backwards. Courts should have the independence and integrity to make the process fair. The advocates on each side are worried about the end result to the extent that they frequently blur the processes in their fervor to get to the result. It is the judge's job to make certain that the process is fair which coincidentally ensures that the end result is fair. This balance is disturbed by campaigns for judicial office, punctuated by clanging jail doors, the use of "legal technicality" as a pejorative, and promises of swifter and more severe punishments. It takes a strong person to jettison that rhetoric and be vigilant of the rights of the accused once the campaign is over and the black robes are worn; especially knowing that another campaign is six years away and plenty of crime busters are patiently waiting for their turn to demonstrate how tough they will be if given the incumbent's robes.

Harmless error causes great disrespect for the appellate courts because of the cavalier and one sided dismissal of facts, tortured analysis of what the defense really was, inconsistency, constant rule changes, and the clear and present attitude to protect the conviction, not the law or the process. But this disrespect is considered a badge of honor by those who curry favor with "the law and order crowd" and seek their approval.

"Prosecutors and D.A.'s may simply ignore the law if they choose to," is another definition of harmless error provided by most defense counsel. "The burden of proof is a joke." By saying that the defense must prove that the error impacted the trial, the practical application is that there is no error; contacting jurors and asking them if this particular piece of evidence affected them is the only way to get to the answer, and that avenue is prohibited by law. If the enforcement of the rules is often left to a judge who personally believes that the defendant is guilty, and the judge says so before examining the disputed evidence, a cynical view of this due process is inevitable.

Prosecutorial Discretion to Follow the Rules (and the Abuse of that Discretion)

Most people instinctively recognize the oddity of a rule of law that provides no sanction for its violation. Nevertheless, rules without sanction abound in Louisiana criminal law, and prosecutors cannot help but be aware of them. Indeed, Louisiana's statutory enactment of the harmless error rule, Article 921 of the Code of Criminal Procedure, specifically provides that a judgment shall not be reversed because of any error "which does not affect the substantial rights of the accused." In other words, the denial of a statutory right does not mandate reversal; a contrario, the denial of a statutory right does not mandate much— if anything. Consequently, most statutory violations escape sanction on appellate review. They are rendered merely "precatory"—expressing a wish—and not mandatory.

A rule's magical transformation from a mandate to a mere wish generally occurs through legislative or jurisprudential intervention. In its legislative form, the transformation results in schizophrenic enactments that appear to give with one hand and take with the other. For example, Article 56.1, Louisiana's recognition of Boykin v. Alabama, states that a guilty plea is not valid unless it is intelligent and voluntary. The defendant must, on the record, expressly and knowingly waive his right to trial by jury, his right to confront his accusers, and his privilege against compulsory self-incrimination. Paragraph E, however, contains the disclaimer: "Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea." Similarly, Louisiana Code of Evidence, Article 404, provides that, generally, "other crimes" evidence is not admissible to show the probability that an accused committed a specific offense because the accused is a "bad" person. Nevertheless, Article 103 renders Article 404's prohibition precatory, stating, "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected . . . ." In both of these examples, the legislature appears to be saying, we "wish" these rules will be followed in the judicial process, but if they are not, never mind.

The jurisprudence echoes the legislature's indifferent attitude. Thus, a defendant has a right under La.C.Cr.P. art. 795(B)(1) to employ backstrikes, i.e., exercise remaining peremptory challenges before a jury panel is sworn, but the erroneous denial of that right is subject to harmless error analysis. And although it is error for a trial judge not to recuse himself pursuant to La.C.Cr.P. art. 671(A)(2) from presiding over an evidentiary hearing in which he is called to testify, the violation is subject to harmless error analysis. Finally, despite the fact that La.C.Cr. P. art. 774 confines the scope of closing arguments to "evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case," prosecutors may still refer to a defendant's "smoke screen" tactics and call defense counsel "commie pinkos" ; urge "weak kneed" jurors to stare at gruesome photos in case of doubt over defendant's guilt ; and misstate the law to be applied. In short, even if the prosecutor exceeds the proper scope of closing arguments, the defendant is without remedy. There is no sanction, therefore La.C.Cr. P. art. 774, like most rules of criminal procedure, is a deceptively solid provision that is hollow at the core.

But criminal defendants should not have to guess whether any given rule means what it says. There should be no mystery as to whether a rule appeals only to the conscience of the prosecutor is mandatory. Such uncertainty affords prosecutors a whimsical, quasi-judicial power to decide which laws bind the proceedings and which do not. In the best of worlds, prosecutor's exercise discretion fairly and reasonably. Most prosecutors cut the corners square and respect their critical role in the criminal justice system. However, when corners are cut for strategic advantage, the integrity and fairness of judicial proceedings suffer.

Case in point: aggressive prosecutors know the boundaries of reversible error, and they know how to skirt the boundaries. They have studied the Code of Harmless Error (a book of this writer's imagination), which sits on every prosecutor's bookshelf. The Code of Harmless Error describes the fuzzy line between harmless and reversible error. The Code restates all the rules of law which may be safely disregarded because there is nothing to be lost by doing so. Examples from the Code of Harmless Error are readily found in the penalty phase of capital trials, where the stakes are high for both the state and the accused, and where verdicts are won or lost on the margin. When life and death are at stake, there should be no, "Oops!"

Two death-penalty prosecutions, State v. Frost and State v. Wessinger amply illustrate how the Code of Harmless Error works at the trial and appellate level. In State v. Frost, friends and neighbors of a slain hotel clerk were offered by the prosecution as victim impact witnesses. On direct appeal, the defense argued that victim impact testimony from persons other than family members was improper because La. C.Cr.P. art. 905.2(A) specifically limited the class of witnesses to "family members."

After reviewing the legislative history of Article 905, the Louisiana Supreme Court was compelled to conclude that victim impact testimony from persons other than family members of the victim was indeed improper. However, the Court went on to hold that, although erroneous, the admission of the witnesses= testimony constituted harmless error. The Court stated that the harm caused by the admission of such testimony depends on whether the testimony was within the scope of State v Bernard, not whether the testimony was proper under Louisiana statutory law. Because the testimony of the victim's friends and neighbors was within the scope of Bernard, it was harmless error, despite being contrary to 905.2(A). In this manner, a new rule, the "Frost Rule," entered the Code of Harmless Error. The Frost Rule stated that La.C.Cr.P. art. 905.2(A) was a sanctionless rule, and could be disregarded at the prosecutor's discretion where the non-family testimony offered followed Bernard.

Prosecutors wasted no time exploiting the Frost Rule six months later in State v. Wessinger. In Wessinger, as in Frost, non-family members (friends and co-workers of slain restaurant workers) were offered by the prosecution as victim impact witnesses in contravention of La.C.Cr.P. art. 905.2(A). In its brief on direct appeal, the State argued that the victim impact testimony was harmless; at the same time, the State conceded that the testimony was improperly admitted. Citing to Frost, the Court agreed with the State, once again holding that, although erroneous, non-family victim impact testimony was harmless so long as it did not exceed the scope of Bernard .

The effect such rulings have on the integrity and public reputation of judicial proceedings is subtly corrosive. Having conceded that trials cannot be perfect, the courts appear to have also conceded that the system cannot strive for excellence. Indeed, La.C.Cr.P. art. 905.2(A), the rule at issue in Frost and Wessinger, was a legislative enactment, yet the court gave it the authority of a rule of etiquette. Assuming the prosecutor and trial judge in Frost and Wessinger were not ignorant of La.C.Cr.P. art. 905.2(A), did the prosecutor in Frost and Wessinger disregard 905.2(A) because it would put the state at a disadvantage? Did the prosecutor in Frost and Wessinger disregard 905.2(A) because he wanted to waste time adding superfluous testimony to an already strong case? Any seasoned defense attorney knows the answer to these questions which the appeals courts never ask. The answer is, the prosecutor disregarded the rule because, where trials are won and lost on the margin, the ability to ignore a bothersome rule provides a tempting, tactical advantage. Who cares what the rule says if it may be repeatedly disregarded like a stop sign overgrown with weeds?

After consulting the Code of Harmless Error, the prosecutor knows that the benefits to be gained by disregarding the rule— particularly the jury's exposure to prohibited testimony—far outweigh the risk of sanction. At best, the potential risk is a terse harmless error review buried in an appellate opinion somewhere between "was convicted" and "affirmed." At worst, the zealous prosecutor faces a mild reprimand that the act complained of is "close" to reversible error.

Reprimands help maintain the appearance of judicial integrity, but they are soon forgotten by the court and the offending prosecutor. In fact, many prosecutors boast of such judicial rebukes as badges of honor, the subject of toasts over steaks and wine while celebrating yet another victory. We must always keep in mind that prosecutors have a quasi-judicial responsibility to make decisions, most of which are virtually unreviewable.

The Real Impact of Inadmissible Evidence

Under "guilt based" or "impact on the verdict' 'harmless error analysis, the court must review the impact of the erroneously admitted evidence is reviewed. But the analysis is shallow and never undertaken while wearing the hat of defense lawyers, the last remaining champion of the rights of the accused. For example, how the prosecution used the evidence is never discussed; neither is how hard did the prosecutor try to get it into evidence? "Can you envision how the trial would have been different?" is not asked by appellate courts. The issue should be, was this an error; not how creative can the prosecutor be in arguing that this error (caused by me) had no impact upon the trial. An appropriate question in oral argument would be: "If this evidence was meaningless, and the case of the state so strong, then why did you break this rule we judges or the legislature have established, when you have been repeatedly told about this rule?"

Trial attorneys know what hurts and helps their case. They come prepared and they have planned their strategy from the beginning until the end. They know the law and they know what evidence is legally admissible. If there is a doubt, they have litigated the issue by a motion in limine. In a truly fair trial, both sides are given the same flat starting ground and the same rule book. Both sides know what evidence is coming in and thus the prosecution and the defense can address and present their theory of the case. The purpose of pretrial motions, discovery and motions in limine is to avoid surprise.

During jury selection, the jury is often advised of "bad facts" and asked, "Can you still be fair?" For example, if the defense is self-defense and battered woman's syndrome, the jury is asked whether they have experience with domestic violence and have formed an opinion about it. If the defendant or a witness is homosexual, the defense and prosecution want to know if that will cause a jury to look with a jaundiced eye upon testimony by or about such witnesses or defendant. Some jurors are unable to look beyond the youth of a victim and would be prone to convict anyone charged with a crime against children. An error during this portion of the process changes the ebb and flow, but it is impossible to point out whether this somehow impacted the verdict. Thus, experienced trial attorneys will frequently say cases are won or lost during voir dire; but how is not easily explained.

Harmless error is read by judges and prosecutors all too often as, "How far can we go without risking reversal." Can anyone honestly determine the impact of the violation of a law that says the attempted murder victim is not allowed to sit at counsel table with the prosecutor but sits there anyway over vigorous defense objection. How can you analyze the impact on a death penalty jury when testimony is admitted from friends and neighbors about the impact the death of the victim had on them? How can you determine whether this changed earlier strategy of the defense in not attacking a family member who testified in victim impact because "that would be the only witness" because the law clearly says that no one besides family witnesses are permitted? And why did the prosecutor put on that evidence if not in an effort to sway the jury, where one person alone voting life, means life?

If the state had not felt it needed the evidence, they would not have sought to introduce it. Allowing the state to later argue, "Nevermind, it made no difference," encourages and rewards double speak hypocrisy. It is picking sides with the politically popular. The rule prohibiting this conduct recognizes a bad practice; and simply prohibits the acts. This is easier than a rule that permits its exceptions. No exceptions are permitted. Why? Because we know it is a bad prosecutor that can effect the jury with sympathy, just like the defendant cannot have his mother sit at the table and hold his hand. To say either had no impact is to pick sides and say, this time it makes no difference. How can anyone respect such a process? What appears to be a small change in the course of the trial may in fact be a large one. Appellate judges must determine from the record how events impacted the trial. The following is a "hypothetical" example. The prosecutor has been prosecuting for thirty years and is popular statewide with other similarly situated prosecutors. He/She lecturers frequently at district attorney's training programs, appears before the legislature to testify about criminal justice issues, has a leadership role in district attorney associations statewide and nationally, and is frequently called upon by judges to lecture or make presentations before the judiciary. This prosecutor is convinced that the defendant is guilty of a heinous crime and seeks the death penalty. This prosecutor makes a powerful (but improper) argument which, in the opinion of the defense attorney, was responsible for turning a very close case into a death verdict. The Louisiana Supreme Court reviews the case and decides that the argument was error but harmless. Shortly thereafter, the prosecutor uses the identical argument in another death penalty prosecution and secures another death penalty. Again the Supreme Court reviews the argument, notes that it is the same that they criticized before, but again rules that the banned argument is harmless error. This process repeats itself a third time, and the third result is the same. New prosecutor, new case: during the defense motion in limine to prohibit this thrice banned argument, the judge and the new prosecutor say, "It has been ruled harmless error three times; it is admissible Let them reverse it."

How can you determine the psychological impact of three children of the deceased standing simultaneously in the courtroom? How can you determine the impact of a policeman, who is also the attempted murder victim, sitting alongside the prosecution acting as a case agent during trial? How can you determine the impact of an inadmissable confession when the defense is insanity. How can you determine the impact of a confession if identity is the issue? And how can you do it if you start by saying, "Okay, in the case of a guilty person, can the state . . . ?" In United States v. Daniel, the Sixth Circuit decided the defendant's statement was coerced but the confession was harmless. The officers who executed a search warrant handcuffed Daniel and his companions and forced them to lie down and cover their heads with a sheet. These officers are not reminded of the importance of the privilege against self incrimination when the admission of the confession that they so extracted is deemed harmless error. Have we abandoned the notion that we expect to deter their future behavior? Do we now have such confidence in law enforcement that we may blind the eye of their judicial watchdog? Has the judicial branch declared peace with the executive branch, or have they just surrendered because law enforcement is so popular and rebuking them is so unpopular? While we have come a long way from beating with whips and leather straps used in Brown vs. Mississippi or thirty-six hours of uninterrupted questions under bright lights in Ashcraft vs. Tennessee, we have only done so because the reversal of convictions was the sure penalty for these actions. If you spend thirty minutes riding around with a police officer you will find that beatings, bright lights, and uninterrupted questions would be an acceptable method of "getting the guy to come clean," and probably more efficient than heeding pesky Miranda warnings and other rights of the guilty; but they can't do it "because the courts won't let us." Should we be thankful the word has not filtered down to every cop that "if he's guilty enough, you do what you need to do to get the evidence?"

Integrity, Politics, and the Judiciary

The old rule was simple: if you break the rules, the accused receives a new trial. The new rule is equally simple: the state may break the rules as often as it likes so long as the defendant is probably guilty. With the increasing concern over violent crime in our society and the excessive case loads in our courts, a guilt based definition of harmless error will continue to find great support. For one, the nationwide problem of drug use and drug trafficking and the often related scourge of random violence have generated intense pressure to convict defendants accused of such crimes. Many judges are influenced by the urgency of the government's war on drugs when they confront a defendant who clearly appears to be guilty of drug related crime, yet whose trial included significant legal error.

Louisiana's judiciary is conservative. Predictably, many assistant district attorneys become judges in criminal court. Almost everyone runs on a "tough on crime" campaign platform. Even former public defenders state in their campaigns, "Yeah, that was my job, defending, but now I am a judge, and I won't be fooled by those tricks."

Criminal defense lawyers always rankle the public. Few monuments are erected honoring the public defender. The most successful criminal defenders are frequently the most vilified. But even Attorney General Reno, no friend of the criminal defense bar, says a public defender is an "essential element of the criminal justice process."

But in view of a rash of reversals for Brady violations, it is indisputable that many prosecutors are not following the rules. Take, for example, Kyles v. Whitley, State v. Cousin, and State v. Knapper, 2 all murder convictions which were overturned after defense attorneys discovered that prosecutors failed to turn over Brady evidence. They were all ultimately acquitted. The reason Brady violations are troubling is because it besmirches the integrity of the system for the government to withhold evidence favorable to the defense in order to secure a conviction. Regrettably, even some Brady violations are overlooked by Louisiana courts; innocent people must look to federal courts to enforce their rights. Louisiana courts are not currently prone to enforce rights for innocent people deemed probably guilty.

However, when judges agree with the defense they are severely criticized on many fronts, especially if a reversal occurs. Then Chief Justice Dixon was forced to endure a race which featured advertisements of bloody dripping knives held by defendants "released on technicalities by the Chief Justice of the Louisiana Supreme Court." Incumbent Chief Justice Pascal Calogero faced campaign advertisements labeling him as soft on crime because he dissented in a writ decision and opined that the defendant's inculpatory statement was involuntary and should be suppressed under the Fifth Amendment. Anti-crime politics dominate judges' races; an explanation of the rules and of the reason for such rules is greeted by catcalls and invites histrionics by opponents. In short, honesty is not held in high regard by all people seeking to serve as judge.

The harmless error rule encourages district attorneys and judges to either get around the rules or ignore them to "get their man." There is no political down-side to this strategy -- no fifteen second spots of "child molesters released by judge on legal technicalities" -- the bane of judicial political candidates. The survey of criminal defense lawyers almost unanimously noted that judges running for public office run on the "tough on crime," "no release on technicalities"--dogma.

It is common for a judge to say in chambers, "This is a close call, and it's very close to election and the case has a lot of public attention. If I am wrong this is either harmless error or another court will fix the problem, and I won't have to take the heat." Unfortunately, there is no guarantee the appellate judge is not from the same school of thought. The real question is whether the harmless error rule is politically motivated rather than motivated by a desire for consistent, fair application of the law. Even Diogenes would have trouble finding an elected judge who would admit that political pressures effect his decision making. Nonetheless, many in private will admit what they would publicly avoid directly answering. Justice ought not depend on when the next election is scheduled and whether the person writing about justice expects opposition in her race. But justice is now too often dependant on the timing of the next election.

The new political attitude held by the public is that it is better for ten innocents to be convicted than one guilty to go free. That of course, is the attitude until a neighbor, child, or friend is accused of a crime. Then the public wonders what happened to the rules. The rules still exist, we explain, but they are only applicable to folks that judges think may be innocent.

The harmless error doctrine is a sound concept but it can be manipulated by those with an agenda greater than the particular case under review. If the agenda is personal, that spells trouble. An honest approach would be for judges to say:

We think he did it, but rules are rules. Serious rules were broken which may have made the trial unfair. We must grant a new trial even though we think the defendant is probably guilty. By the way, this doesn't happen very often, and when it does, the prosecutors sensationalize it and my political opponent will use it against me. I know that you the public and the reader of this decision are smart enough to appreciate that rules are for everyone to follow. That's what sets us apart from the bad guys; we play by the rules. If you don't play by the rules, you must do it again because we do not believe that anyone should benefit by breaking the rules. And if you keep breaking the rules you will keep getting in trouble. The more you break the rules the less likely it is that we will be convinced that you should have the job of enforcing the rules. Law enforcement must enforce all laws, not just the convenient laws.

On the other hand, some errors truly are harmless and common sense must be used. If it is impossible for the error to have injured the defendant, it should not cause the trial to be conducted again—there are legions of examples of such errors.

It is one thing to state that the harmless error analysis looks to the effect of the error on the verdict, rather than to the sufficiency of evidence to support the verdict. It is yet another, more difficult thing for appellate judges to adhere to that analytical framework when confronted with bad facts in which the defendant's guilt seems to be well established. In such circumstances it is by far the simpler and perhaps natural course to construct a jurisprudence that cares only for punishment of the guilty, and, accordingly, to discount all errors that fail to cast doubt upon the judge's own perception of culpability. Only through a determined adherence to principle can judges look beyond the weight of the evidence to the likely impact of an error.

This is particularly difficult when one has run a campaign for office touting one's belief that "people should not be released on technicalities" or "jury's verdicts in first degree murder cases should not be disturbed." Perhaps the reader has seen a political advertisement by a judge expressing a firm desire to carefully review all first degree murder cases and a pledge to reverse if the process is not fair. If such an ad exists, please send it to me.

Conclusion

Judges writing about harmless error should picture themselves in front of a law school classroom of idealistic young potential lawyers eager to learn the rules of law. Should you tell them a prosecutor may do whatever she chooses if she has a strong enough case because we, the appellate courts, will determine whether the defendant was guilty and then decide whether the failure to follow the law "really matters." Would you give your children a rule like, "Don't drink and drive," or "Be in by midnight," and then say-"But if you break the rule, do not worry, we will ignore it if you were not actually hurt because you broke the rule. We love you too much to apply the rules to you."

Should you start your lecture at the law school by saying, "The law will be ignored if the defendant is guilty?" Courts should not be lawless as they pursue the lawless. Courts should say, "This law makes sense, we are not ashamed of it, and if he is guilty, as we think he is, then a fair trial in a fair system with a fair prosecutor and a fair judge will convict him and he will get his just desserts." We should not fear fair trials; we should fear unfair trials. We should show such respect for the law that we will reverse criminal cases and send them back for new trials because we do not fear that the innocent will be convicted or that the guilty will escape justice in a fair trial. But never try to explain harmless error to young people who are not yet cynics as they will call malarkey on this Alice in Wonderland approach: first the verdict then the trial.


To err is human, but not always harmless: When should legal error be tolerated? Harry T. Edwards, 70 N.Y.U.L.Rev. 1167 (1995).

70 N.Y.U.L. REV. @ 1167

70 N.Y.U.L. REV. @ 1167

70 N.Y.U.L. REV. @ 1169-1170

70 N.Y.U.L. REV. @ 1186

In the words of Justice White, "[I]n the American States, as in the federal judicial system, a general grant of jury trial for serious offenses is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants." Duncan v. Louisiana, 391 U.S. 145, 157-58 (1968);

70 N.Y.U.L. Rev. @ 1192-1193

395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)

State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364.

State v. Wille, 595 So.2d 1149 (La.1992).

State v. Martin, 539 So.2d 1235, 1240 (La.1989).

State v. Copeland, 530 So.2d 526, 545 (La.1988).

State v. Hart, 96-0697 p. 13 (La.3/7/97), 691 So.2d 651, 660.

97- 1771 (La.12/1/98), 727 So.2d *21 417

The law was subsequently changed. By 1999 La. Acts, No. 783, § 3, effective January 1, 2000, the legislature amended La.C.Cr. P. art. 905.2(A) to expand the persons capable of testifying at the penalty phase to include "friends and associates" of the victim. This amendment effectively codifies the results reached in State v. Frost, 97-1771 (La.12/1/98), 727 So.2d 417 and State v. Wessinger, 98-1234 (La.5/28/99), 736 So.2d 162, and reflects the legislature's awareness of the court's discomfort at having to ignore the plain language of 905.2(A) to avoid reversal and affirm defendant's conviction and sentence of death.

Frost, 97-1771 at 10, 727 So.2d 430.

608 So. 2d 966 (La.1992)

98-1234 (La. 5/28/99), 736 So.2d 162.

736 So.2d 162

See, e.g., State v. Taylor, 669 So.2d at 375-76 (prosecutor's closing argument that any verdict other than death "would be a disgrace" "treads dangerously close to reversible error, and [the Court] caution[s] this prosecutor to refrain from such conduct in the future"). See, also, State v. Howard, 98-0064 (La. 4/23/99), --- So.2d ----, rehearing denied (May 28, 1999) (prosecutor's repeated references to defendant as a "thing" during penalty phase opening statement "were unprofessional and beneath the dignity of the forum and ... tread[ed] dangerously close to reversible error" but were nevertheless harmless).

State v. Trahan, 576 So.2d 1 (La.1990); State v. Toomer, 395 So.2d 1320 (La.1981).

See the following line of cases in which the same prosecutor has repeatedly been allowed to ignore the rule and ask victims whether they have sympathy for the defendant: State v .Taylor, 93-2201 (La. 2/28/ 96), 669 So.2d 364; State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996); State v. Williams, 96-1023 (La.1/21/98), 708 So.2d 703; State v Frost, 97-1771 (La.12/1/98), 727 So.2d 417; State v. Wessinger, 98-1234 (La.. 5/28/99), 736 So.2d 162. Young lawyers confused by this frequently lament: why bother even objecting if the judge/referee is going to allow the other side to do whatever it wants.

932 F.2d 517 (6th Cir.), cert. denied, 112 S.Ct. 252 (1991)

70 N. Y. U. L. Rev. @ 1173

70 N.Y.U.L. Rev. @ 1190

Remarks for the Attorney General, National Symposium on Indigent Defense, Mayflower Hotel, Washington, D.C., February 25, 1999.

514 U.S. 419, 434, 115 S.Ct. 1555, 1565-66, 131 L.Ed.2d 490 (1995)

96-2973 (La. 4/14/98), 710 So.2d 1065

579 So.2d 956 (La. 1991)

See, State v. Edmondson 97-2456 (La. 7/8/98), 714 So.2d 1233

70 N.Y.U.L. Rev. @ 1191-1192

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