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April 13, 2006

Recuenco and the complicated interplay of error

In this recent post, I noted that on Monday the Supreme Court will finally hear argument in Washington v. Recuenco (docket 05-83) to explore whether Blakely errors can be subject to harmless-error analysis or instead are structural errors.  I also detailed reasons why a seemingly little Blakely issue could still makes for a big case in Recuenco.  (Most Recuenco posts are assembled in this archive and highlights are linked in this post.)

A key point for the intersection of Blakely issues and error review issues in Recuenco is that the defendant preserved his jury trial claim and thus the case does not directly implicate any plain error doctrines relating to unpreserved claims.  However, a ruling in Recuenco still could impact some Blakely/Booker plain error litigation; there is a complicated interplay between harmless/structural error doctrines and plain error doctrines.

To better understand this interplay, I asked a top-shelf research assistants to try to unpack how Recuenco might impact plain error issues.  My terrific RA produced two brilliant documents: (1) a cogent memo walking though these error issues, and (2) a detailed appendix assembling Booker plain error doctrines as developed by the federal circuit courts.  Both great documents are provided for download below:

Download recuenco_blakely_errors_memorandum.doc

Download appendix_a_ summarizing booker plain error

April 13, 2006 at 12:23 AM | Permalink


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I believe your RA might have made a mistake. He argues that no implication can be drawn from Johnson about the intersection of structural error and prong four of Olano because the Court did not rule on whether the error in Johnson was structural or not, and merely assumed that the error affected substantial rights (third prong of Olano).

However, the error in this logic is that the Court could only have refused to answer the structural error question if a court can decline to notice a structural error under prong four. If structural error must always be noticed on prong four, then the only way to justify the holding of Johnson would be to say that the Court implicitly held that the error in Johnson was not structural. However, the Court expressly declined to so hold. Thus, I would argue the necessary implication of the reasoning in Johnson is that courts can decline to notice under the fourth prong at least some structural errors.

Posted by: Textualist Law Student | Apr 13, 2006 10:57:57 AM

Yikes! I tried to open Appendix A and it came up with garbled symbols. Can it be resaved? Otherwise, thank you for the excellent memo. I need to go home now because my head is full :-)

Posted by: TStaab | Apr 13, 2006 11:45:56 AM

A Booker error is first, an error, that if constitutional is plain, and the prejudice is either determinate or indeterminate, and can never be harmless.
In Neder v. United States, 527 U.S. 1 (1999), the Supreme Court pronounced the three prongs of structural error: (1) generally speaking, structural errors must at a minimum be constitutional errors, id. At 9; (2) the defendant must have had counsel and been tried by an impartial jury, Amend. 6; and the resulting unfairness, or prejudice is “necessarily unquantifiable and indeterminate”, id Sullivan, 508 U.S. @ 282.

In U.S. v. Mares, 402 F.3d 511 (5th cir. 2005), the Fifth Circuit established its “plain error” standard for Booker errors, and followed the 11th Circuit’s Rodriquez opinion that held; “if the effect of the error is uncertain so that we do not know which, if either, side it helped the defendant loses”. The Mares Court conceded that Booker meets the first two prongs, but fails the third, because the prejudice is indeterminate.

Therefore, if there is constitutional Booker error, that affected the jury’s verdict, there must have been a trial, since there is no Supreme Court recognition of extra-verdict, which would require, extra-indictment, extra-jury extra-rules, etc., the prejudice can be determined specifically or not, and if not quantifiable, the error is structural.

Posted by: Barry Ward | Apr 13, 2006 2:05:24 PM

Justice Scalia clearly believes that a structural error -- while per se reversible if preserved -- may nonetheless fail to constitute "plain error" when the defendant fails to object.

Posted by: Steve | Apr 13, 2006 4:37:37 PM

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