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March 20, 2007

Reporting and realities in Fry

Based on this argument preview from SCOTUSblog, today's case argued before the Supreme Court seemed like an interesting legal issue raising habeas and federalism concerns.  But this AP report on the argument this morning in Fly v. Pliler, headlined "Court Debates Credibility in Murder Case," makes the case sound like an interesting factual issue raising basic credibility and innocence concerns.  I suppose I will just have to read this official transcript to figure out what's really going on.

March 20, 2007 at 03:21 PM | Permalink


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The outcome may turn on how strictly the Court applies its rule against considering issues outside the questions presented in the certiorari petition, a rule reiterated in today's bankruptcy decision. The argument petitioner got the best response to was that the Ninth simply applied Brecht incorrectly to the facts of his case, but that wasn't the question he presented.

I have more on this case at C&C:

Posted by: Kent Scheidegger | Mar 20, 2007 6:28:47 PM

This doesn't look good at all...

Posted by: Gideon | Mar 21, 2007 6:45:35 PM

Kennedy, Souter, Stevens, Breyer, and Ginsberg all express antipathy to the State's arguments (and the divided 9th panel's splitting of hairs on the different standards for harmlessness).

i think the factual issues are overblown - the Court was only trying to see how the 9th could have found the error (which required a strong showing) and then found it harmless.

Posted by: rothmatisseko | Mar 21, 2007 7:30:03 PM

I argued the Fry case for the petitioner.

As Professor Berman notes in his post concerning this case, there is an interesting question presented regarding the scope of relief available in federal habeas proceedings.

In Mr. Fry's appeal in state court, the state appellate court did not acknowledge that there had been federal constitutional error when the trial court excluded evidence that someone else had confessed to the double homicide for which Mr. Fry was tried and convicted. Hence, the state appellate court did not evaluate whether that error was prejudicial under the Chapman standard. However, in federal habeas proceedings --- at the district court level and in the 9th Circuit --- it was determined that there was Chambers-type error. I argued in those courts that the question of prejudice should be assessed under Chapman, since there had been no Chapman review in the state court. But the federal courts disagreed, concluding that the applicable prejudice test was that set forth in Brecht, and, under that standard, there was no actionable prejudice. (However, even under Brecht, the fed. courts treated the prejudice issue as a close one: The district court stated that it could not rule out prejudice, and that Mr. Fry had come close to demonstrating actionable error under Brecht. A dissenting judge in the 9th concluded prejudice was present under Brecht, and even the panel majority stated that the erroneously excluded evidence would have "substantially bolstered" Mr. Fry's claim of innocence.")

If the Court reaches the question of whether Brecht or Chapman applies, then we will have a decision on the interesting issue noted in the Professor's post. Chief Justice Roberts honed in on this thorny issue in an exchange with my opposing counsel:

The Chief: Counsel, if the State court had conducted a Chapman review, erroneously, how would that be reviewed under Federal habeas? You would ask under AEDPA whether it was an unreasonable application of Chapman?

Mr. Moody: Yes, Your Honor. First you would ask if it was an unreasonable application of Chapman. If you found that it was not, then the case is over, there's no need to grant the writ. If you found that it was, you would proceed to do a Brecht analysis. And that's what we learned from ---

The Chief: That seems awfully refined, doesn't it, to do two different analyses? Is this an --- is this an unreasonable application of Chapman? And then apply the Brecht standard after determining it was an unreasonable application of Chapman?

Mr. Moody: I don't disagree. I'm merely trying to make sense of the various decisions in this, in this arena....

This exchange highlights the issue the Court could resolve in this case: When a state appellate court fails to apply Chapman (as in the Fry case) or when a state appellate court unreasonably applies Chapman (as in the Chief's hypothetical), what prejudice standard does the federal habeas court apply? I argued for Chapman. My opponent argued for Brecht. A 3-way split has developed in the lower courts on this subject, with some applying only Brecht, with some applying only Chapman (viewed through the lens of AEDPA), and with some applying both Chapman (with AEDPA deference) and Brecht. This 3-way split is discussed in Eddleman v. McKee, 471 F.3d 576 (6th Cir. 2006).

If the Court addressed this issue, I am hopeful that the Chief's point --- that my opponent's argument in favor of applying both Chapman (with AEDPA deference) and Brecht "seems awfully refined" --- is a point which the Court seizes upon in its ultimate decision. In this regard, why should a federal habeas court conduct two prejudice inquiries? If the whole point of AEDPA is to curtail the scope of the writ, why shouldn't a fed. habeas court just conduct one prejudice inquiry under the prejudice standard is most unfavorable to the petitioner? If that logic holds, and the Court agrees that just one prejudice inquiry should be conducted, then the question becomes: Which standard is most petitioner unfriendly --- Brecht or Chapman plus AEDPA deference? And, on that point, no clear answer is supplied in either the Court's cases or the cases of the lower courts.

One case that does not make much sense to me on this point is Jones v. Polk, 401 F.3d 257 (4th Cir. 2005). In that case, the court held that a state appellate court had engaged in an objectively unreasonable application of Chapman analysis, i.e., that the state appellate court unreasonably found no prejudice under Chapman. However, the court then went on to say that the effect of the state court's faulty Chapman analysis was to enable the fed. court to conduct de novo prejudice review. And, that prejudice review was conducted under Brecht, with the result being a determination that the error, which was not harmless beyond a reasonable doubt, was nevertheless not prejudicial under Brecht. Thus, under Polk, Brecht is more petitioner unfriendly then Chapman plus AEDPA deference.

The Court's decision in Mitchell v. Esparza, 540 U.S. 12 (2003) (per curiam), seems to support a different result than that reached in Polk. In Esparza, the Court analyzed whether an Ohio appellate court's Chapman analysis had been conducted in an objectively unreasonable manner. The Court concluded that it had not been, and that was therefore the end of the case. But, the Court seemed to suggest that if the state appellate court's Chapman analysis had been conducted in an objectively unreasonable manner, the petitioner would be entitled to relief. That is how Esparza was construed in Zappulla v. New York, 391 F.3d 462, 468 (2d Cir. 2004) and in the Eddleman v. McKee case.

But, then again, the Court's decision in Early v. Packer, 537 U.S. 3, 10-11 (2002) (per curiam), seems to suggest that a Brecht prejudice inquiry could be appropriate after a federal habeas court determines that a state appellate court engaged in an objectively unreasonable harmless-error analysis.

Some courts have seemingly suggested that Chapman/AEDPA is a more petitioner unfriendly standard than Brecht. This conclusion is supported by the fact that AEDPA requires a finding of objective unreasonableness or decision-making that is contrary to the Court's precedent.

So, the Court could delve into these thorny issues in the resolution of Mr. Fry's case. Or, hopefully, the Court could take the path that I urged in my briefing and argument, and determine that the particular error that occurred in Mr. Fry's trial cannot be deemed harmless under any prejudice standard.

Posted by: Victor Haltom | Mar 22, 2007 3:43:31 AM

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