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October 18, 2005

Justice Scalia on Sixth Amendment errors as structural

The Court's fascinating and important decision to grant cert in Recuenco to consider whether Blakely error can be harmless (basics here, commentary here) has led me to go back and re-read Neder v. US, 527 U.S. 1 (1999) (available here) and Sullivan v. Louisiana, 508 U.S. 275 (1993) (available here), which are two critical precedents for the ultimate resolution of Recuenco.  Both cases are fascinating reads, in part because of the sparring between Chief Justice Rehnquist and Justice Scalia and because of Justice Scalia's obvious distain for harmless-error review in the context of Sixth Amendment jury trial violations.

Recuenco is especially fascinating because, with the loss of CJ Rehnquist's competing voice, Justice Scalia is the only current Justice who has written opinions on these issues.  And, for that reason and others, I cannot resist quoting some especially choice passages from Justice Scalia's dissent in Neder:   

When this Court deals with the content of [the jury trial] guarantee — the only one to appear in both the body of the Constitution and the Bill of Rights — it is operating upon the spinal column of American democracy....

Even if we allowed (as we do not) other structural errors in criminal trials to be pronounced "harmless" by judges ... it is obvious that we could not allow judges to validate this one.  The constitutionally required step that was omitted here is distinctive, in that the basis for it is precisely that, absent voluntary waiver of the jury right, the Constitution does not trust judges to make determinations of criminal guilt.  Perhaps the Court is so enamoured of judges in general, and federal judges in particular, that it forgets that they (we) are officers of the Government, and hence proper objects of that healthy suspicion of the power of government which possessed the Framers and is embodied in the Constitution.  Who knows? — 20 years of appointments of federal judges by oppressive administrations might produce judges willing to enforce oppressive criminal laws, and to interpret criminal laws oppressively — at least in the view of the citizens in some vicinages where criminal prosecutions must be brought.  And so the people reserved the function of determining criminal guilt to themselves, sitting as jurors.  It is not within the power of us Justices to cancel that reservation — neither by permitting trial judges to determine the guilt of a defendant who has not waived the jury right, nor (when a trial judge has done so anyway) by reviewing the facts ourselves and pronouncing the defendant without-a-doubt guilty. The Court's decision today is the only instance I know of (or could conceive of) in which the remedy for a constitutional violation by a trial judge (making the determination of criminal guilt reserved to the jury) is a repetition of the same constitutional violation by the appellate court (making the determination of criminal guilt reserved to the jury).

Of course, five Justices rejected these sentiments in Neder.  But, two of those five (Rehnquist and O'Connor) will not be involved in resolving Recuenco.  And another Justice in the Neder majority, Justice Thomas, seems to be a much bigger fan of jury trial rights now than he was in 1999.

October 18, 2005 at 02:37 AM | Permalink

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Though Recuenco is the case on cert, the holding is to be found in a case decided the same day, State v. Hughes, http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=741476MAJ. There, the court ruled that a Blakely error can't be harmless, as distinguished from a Neder-type error: “Like traditional harmless error analysis cases, the reviewing court could ask whether but for the omission in the jury instruction, the jury would have returned the same verdict. Where Blakely violations are at issue, however, the jury necessarily did not return a special verdict or explicit findings on the aggravating factors supporting the exceptional sentence.”

Instead, a Blakely error is more akin to a Sullivan error: “Like traditional harmless error analysis cases, the reviewing court could ask whether but for the omission in the jury instruction, the jury would have returned the same verdict. Where Blakely violations are at issue, however, the jury necessarily did not return a special verdict or explicit findings on the aggravating factors supporting the exceptional sentence.”

Viability of Neder, that is, might not be on the table; not in any broader sense anyway. Too bad, if that's the case, because Neder is hard to square with Blakely. And, sounding your theme about Justice Scalia, one court has said, State v. Freeze, 827 N.E.2d 600, 605 (Ind App 2005), http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=in&vol=app/05180503.mpb&invol=2: "We believe the validity of Neder might be short-lived, in light of the seismic shift in the Supreme Court’s Sixth Amendment jurisprudence since 1999. Specifically, Justice Scalia wrote a vigorous dissent in Neder, joined in part by Justice Stevens and fully by Justices Ginsburg and Souter – in other words, four of the five members of the Blakely majority. Justice Thomas, the fifth Blakely justice, was in the Neder majority. After Neder, and beginning at least with Apprendi, he has repudiated a narrow interpretation of the Sixth Amendment jury trial right and has joined Justice Scalia’s broad view of it. …"

Posted by: wm. tyroler | Oct 18, 2005 9:44:52 AM

See also Crawford v. Washington, 541 US 36, 62 (2004) ("dispensing with confrontation because testimony is obviously reliable is akin to dispensing with a jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.") (Scalian, J., writing for the majority)

Posted by: James | Oct 18, 2005 10:08:25 AM

The Illinois Appellate Court made the same observations in People v. Nitz, while questioning a prior Illinois Supreme Court decision holding that, under Neder, Apprendi errors are not structural and are amenable to Chapman-style harmless-error review:

Because Justice Scalia's view of the right to a trial by jury has prevailed ever since Neder v. United States was decided, because passages of the majority opinion in Blakely v. Washington clearly suggest that punishment in excess of the punishment that the jury's verdict would allow is a structural constitutional flaw, incapable of being considered harmless, and because those passages are completely incompatible with us making a factual finding necessary to punishment's imposition, we turn to Justice Scalia's dissent in Neder v. United States for a better understanding of the majority opinion that Scalia authored in Blakely v. Washington. If that dissent now represents the view of five members of the United States Supreme Court, which Blakely v. Washington seems to indicate, the precedent established in Neder v. United States, precedent that sanctions appellate courts to make factual determinations that juries should have made, but did not, and precedent relied upon by the Illinois Supreme Court in deciding People v. Thurow, is no longer viable.

Posted by: steve | Oct 18, 2005 10:09:32 AM

I have a more fundamental question, which I answer in a forthcoming article in the New Jersey Law Journal: why are state courts fussing over whether Apprendi errors are structural under FEDERAL precedent??? State courts do not need the permission of the SCOTUS to afford a remedy for a Sixth Amendment violation, even if the SCOTUS would not grant a remedy. Federal courts have no right to order a state court to affirm a conviction because, in its view, the Sixth Amendment error caused no prejudice. The issue of prejudice is a question of remedy (state law), NOT substantive constitutional right (federal law). This means that even were the SCOTUS in Recuenco to hold that Apprendi errors are non structural, and to remand the case to the Washington Supreme Court for further proceedings, the Washington court would NOT be obligated to apply Chapman-style harmless error analysis and to affirm if the State can meet its burden of proof. Rather, the Washington Supreme Court, on remand, could nevertheless reverse the defendant's sentence based on its own view that violations of the jury-trial guaranty are always prejudicial. Since state law creates the state courts, state law controls the question whether the violation of a substantive right -- even a federal one -- ought to result in a remedy.

Any takers?

Posted by: Steve | Oct 18, 2005 10:17:39 AM

I'm a criminal-appeals lawyer in New York. Though I wish that Steve's view were right, it seems to me that the Supremes held squarely in Chapman that the standard for harmless federal constitutional error was a federal, rather than a state-law, question. 386 U.S. at 20-21.

State courts have divided on the similar question of whether Teague v. Lane applies to state prisoners relying on subsequent Supreme Court decisions in state collateral proceedings.

Posted by: Andrew Fine | Oct 18, 2005 2:12:12 PM

In response to Andrew's post, I am aware of a recent New Mexico Supreme Court decision that gives a defendant the benefit of Crawford's new rule on collateral attack because he successfully raised the Confrontation issue 20 years earlier, only to have the SCOTUS reverse the NM Supreme Court based on the pre-Crawford understanding of the Sixth Amendment. The NM Supreme Court obviously felt that Teague did not preclude a STATE court from making a new federal constitutional rule retroactive (even if a federal court would be precluded from doing so on federal habeas), and the same holds true in the Chapman situation:

Chapman provides a base-line standard such that a state appellate court must reverse if the prosecutor can't prove the federal constitutional error harmless beyond a reasonable doubt. But the Supreme Court has NEVER said that a state appellate court must AFFIRM if a state CAN satisfy Chapman. What business does a federal court have telling a state court that it's being too generous in terms of affording a remedy?

My article addressing this issue more fully will be published in the NJ Law Journal on October 24, 2005, and the NJLJ has graciously allowed Prof. Berman to make a reprint of the article available at this site, should he wish to do so.

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