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January 10, 2007

What can we make of Justice Scalia's take on structural/harmless errors?

New Jersey lawyer Steven Sanders, who has long been thoughtfully examining the issue of how to deal with Blakely errors, sent me this thoughtful comment about Justice Scalia's curious work yesterday in his dissent in United States v. Resendiz-Ponce:

The Apprendi line of cases has seen its share of side-switching or seemingly contradictory votes by Supreme Court justices, usually without explanation.  For example, Justice Thomas has publicly stated that Almendarez-Torres v. United States should be overruled, admitting in the process that he voted for the wrong side.  Similarly, Justice Scalia is the only justice to vote with the majority in both Apprendi and Harris v. United States.  Finally, Justice Ginsburg voted to join both majority opinions in United States v. Booker.

Yesterday, Justice Scalia dissented in United States v. Resendiz-Ponce and stated that he would deem the indictment-omission error he thinks occurred in that case structural, citing to his dissent in Neder v. United States.  In Neder, the majority said that withholding an essential element from a petit jury is not structural and is amenable to harmless-error review.  Justice Scalia disagreed, and so his pronouncement that an indictment's failure to allege an essential element is also structural error ought not to surprise us. The only problem is that in June 2006, Justice Scalia voted with the majority in Washington v. Receunco, which, relying heavily on Neder's majority opinion, concluded that a jury's failure to determine a sentence-enhancing fact, in violation of Apprendi's holding, is amenable to harmless-error review.  This would suggest that Justice Scalia distinguishes between essential crime elements and sentence-enhancing (or "Apprendi") elements for purposes of determining whether a Sixth Amendment error is amenable to harmless-error review.

One possible explanation for these seemingly inconsistent votes is that Justice Scalia's Neder dissent did note that, despite labeling the error "structural," an appellate court could vote to affirm if it were satisfied beyond a reasonable doubt that the jury had necessarily found the omitted fact in reaching its verdict.  In Recuenco, there is almost no doubt that that's what occurred. But the Court, following its usual practice in cases emanating from state courts, vacated the judgment and remanded to the Washington Supreme Court so that the state court could perform the harmless error analysis in the first instance.  Could it be that Justice Scalia agreed with the ultimate result in, but not the reasoning of, Recuenco and chose not to write a concurring opinion to make that clear?

January 10, 2007 at 04:32 PM | Permalink


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Tracked on Jan 11, 2007 5:11:45 PM


I think it's that Justice Scalia does indeed distinguish between "regular" elements and "sentencing" elements. Note that Scalia did not dissent in Cotton, which held that a failure to allege drug quantity in the indictment is subject to plain-error review.

Posted by: Appellate AFPD | Jan 10, 2007 4:49:25 PM

A hat, a broach, a pterodactyl . .

Posted by: "Airplane" fan | Jan 10, 2007 4:56:12 PM

In response to AFPD, Cotton is not a proper tool for comparison because Justice Scalia has made very clear that there are errors that, if preserved, require automatic reversal whereas the same error, if unpreserved, may not satisfy the plaint error standard. I think he debated that issue with Justice Stevens in Neder or an earlier, but related, case.

Posted by: Steve | Jan 10, 2007 5:00:45 PM

In response to "Airplane" fan, LOL!!!!

Posted by: Steve | Jan 10, 2007 5:03:24 PM

I think Doug said it best several months ago about why Justice Scalia didn't dissent in Recuenco when he said that this issue, since it practically only affects pipeline cases, just wasn't worth the fight. Stevens makes the same point, although he did dissent. Also, the facts were horrible, because Recuenco clearly knew what was in his hand and therefore notice concerns were not present.

Scalia was uncharacteristically silent during oral argument, not really getting involved until the rebuttal, with his question about the bank robbery.

Concerning Steve's and the AFPD's comment about a distinction between crime elements and sentence enhancing elements, or regular elements and sentencing elements, I don't think there is such a distinction and believe Scalia concurs. He doesn't care if something is called "Mary Jane", (concurring in Ring), if a fact increases the defendant's exposure to greater punishment than allowed by the verdict or plea alone, it is an element of a greater crime.


Posted by: bruce cunningham | Jan 11, 2007 8:04:13 AM

Then I stick by my speculation that Justice Scalia voted to reverse in Recuenco because he believed that the jury in that case had necessarily found the firearm enhancer in rendering its verdict. That harmonizes his vote in Recuenco with his dissents in Neder and Resendiz-Ponce.

Posted by: Steve | Jan 11, 2007 11:28:21 AM

I think you are right, Steve. It was almost
like watching people dance on the head of
a pin to listen to the Court debate the
difference between a firearm and a deadly
weapon. Recuenco certainly wasn't a good
vehicle in which to address the harmlessness
issue. I left feeling deprived of any real
discussion of the issue that I thought the
case was going to be about.


Posted by: bruce cunningham | Jan 11, 2007 5:03:12 PM

Steve and Bruce, I don't think you're correct. In a case where it was quite obvious that a prior conviction for burglary was for burglarizing a building, Justice Scalia joined an opinion that found the fact inadmissable for purposes of sentencing enhancement since the defendant had never actually admitted that it was a building that he burglarized when he pleaded guilty.

Posted by: Masig | Jan 12, 2007 9:38:20 AM


There is a WORLD of difference between a fact being "obvious" (because the evidence supporting it is so overwhelming) and a fact that a jury has necessarily determined in the course of rendering its verdict. Applying harmless error analysis based on the former (which Justice Scalia disfavors) requires the appellate court to speculate what the jury WOULD HAVE FOUND. The latter version simply allows the appellate court to affirm only where it is convinced based on the evidence, jury instructions and verdict that the jury ACTUALLY DID FIND the omitted fact. So I don't think we can discern anything of significance from a case where it was obvious that the building was a building, just like it did not matter in Neder that it was obvious that the omitted fact (a signficant amount of unreported income) was material to the IRS.

Posted by: Steve | Jan 12, 2007 12:32:20 PM

Also, Shepard had the potential for prospective impact, whereas Recuenco's primary effect would be focussed on retroactive application or application to only pipeline cases. As I recall, Justice Scalia made a reference to this distinction during oral argument when he said he didn't think judges would commit deliberate harmless error. In other words, a judge make a finding of an Apprendi fact, increase the defendant's exposure to punishment, and then decide that the finding was harmless.

Posted by: bruce cunningham | Jan 13, 2007 10:24:07 PM

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