Capital Trial Errors: "Harmless" or Not?

By Maurice L. Harris

    During my research of capital cases that were overturned, I kept coming across a common theme. Most, if not all, of these cases at one point or another were branded with Constitutional errors that were deemed harmless and/or non-prejudicial. Naturally, I pondered: How many harmless errors equal an unconstitutional trial and how is it actually possible to have a harmless error in a capital case where the results are so final?

    Although the appellate judges acquired knowledge from some of the finest learning institutions in the world, and years of actual practice, their rulings seemed to be based on mere capriciousness to me. Also, the prosecutors, who continue to make these “harmless and non-prejudicial” errors over and over, share a similar learning pedigree. This led me to the real question: How can so many bright attorneys commit these obvious errors? After all I would hope that one of the pre-requisites to passing the bar is to learn Constitutional law!

    Surprisingly, I found my answers right here in San Quentin through the case of a person who was executed after my arrival, Thomas Martin Thompson. His name should come up in all debates over the death penalty as a major example of one of the problems in an unjust system. Thompson’s Constitutional rights were so severely violated by “errors” that a full panel of 9^th Circuit judges convened to stop a possible innocent man from being executed, or at the least one that was denied a fair trial. (See Thompson v. Calderon, 120 F. 3d 1045)

    Sadly, despite the 9^th Circuit’s ruling in Thompson’s favor he was still executed. This so outraged one of the judges, Stephen Reinhardt, who had ruled in Thompson’s favor, that he gave a lecture railing, not only against the injustice Thompson received, but the decline of the justice system period. (See The Anatomy of an Execution: Fairness vs. “Process”, (74 N.Y.U. L. Rev 313)) He offered great insight into a secretive, flawed system, and didn’t hold any punches…a judicial whistle-blower!

    Now I fully understand the genesis of these so called “errors”, how they originated from the passing of AEDPA (Antiterrorism and Effective Death Penalty Act), along with a few Supreme Court rulings before it, that allowed the state court’s rights to trump ordinary citizen’s Constitutional rights, while at the same time handcuffing the Federal Appellate Court’s ability to protect citizens from the state’s misuse of their new found power.

    Judge Reinhardt puts it more eloquently: “The Court has made it easier for states to claim that their courts relied on independent state grounds…and thus avoid any federal judicial review of their unconstitutional actions. The court’s decisions have also inflated the harmless error and plain error standards beyond recognition, thereby “encouraging” future violations of Constitutional rights.” (Anatomy @ 1.318) The key here is “encouraging” for encouragement often leads to an intentional act, as Judge Reinhardt further stated: “In fact, the use of the harmless and plain error standards to frustrate the correction of Constitutional errors is the untold story behind the increasing disregard for defendants’ Constitutional and non Constitutional rights. Under Chief Justice Rose E. Bird (1977-1986). the court reversed 94% of the 71 death sentences that came before it on appeal. In contrast, the Malcolm M. Lucas court (1986-1996) reversed 15% of 212 death penalties it reviewed. While both courts often found errors in the defendant’s trial and sentencing proceedings, “the errors the Bird court justices determined were “reversible” were usually regarded as “harmless” by the Lucas court justices.” (Anatomy @ fr.23 quoting John H. Culver, The Transformation of the California Supreme Court, 1977-1997, 61 Alb.L.Rev. 1461, 1486 (1986))

    Basically, prosecutors (and trial judges) are now using these ‘errors’ as hedges against acquittals, and then having them written off as “harmless” on state appeal. These attorneys are very sharp and no way are their errors simply mistakes. When one side is encouraged to break the rules to gain a tactical advantage it’s called cheating. I don’t believe these prosecutors would resort to these tactics if they didn’t work which, in itself, makes these “errors” a determinative factor in acquiring a conviction.

    Thompson, who did not even have a criminal record, managed to accomplish the rare feat of surviving his minefield of errors with the 9^th Circuit’s ruling. However, the Supreme Court overruled their findings; not because they found him guilty beyond a doubt or even that the errors were, indeed, harmless, but because they felt (and it’s up for dispute) that the 9^th Circuit missed their deadline to make a reversal! Seriously, it’s all in the lecture. An error still cost Thompson his life, only there was a new one – an administrative one not of his doing!

    Lastly, with all this said and done, I think we should all take heed to judge Jerome Farris’ profound plea to his fellow 9^th Circuit judges in regard to Thompson’s case: “How does injustice happen? Its primary cause is that most of the strong have little concern for the rights of the weak. In such moments inaction or indifference – not failure – is the deadly sin.” (Anatomy @ 335, quoting from Farris’ internal 9^th Circuit memo, July 14, 1997)