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Wednesday, May 02, 2018

Prejudice Rules and Criminal Procedure Enforcement

Hello! As Howard mentioned, I’ll be contributing to the blog this month as a guest. Thanks to Howard and Richard (Re) for the opportunity.

By way of introduction, my research focuses mainly on constitutional remedies and other mechanisms for enforcing constitutional rights. As a former public defender, I’m especially interested in constitutional criminal procedure and the various regulatory systems it has produced to bring about compliance with its strictures. These regulatory systems have failed in many different domains of criminal procedure. But few have failed as spectacularly as those pertaining to prosecutors’ evidentiary disclosure obligations under Brady and the right to counsel, as recent work by Jason Kreag, Eve Primus, and others has shown. Through a series of posts over the course of the month, I will ask why these two enforcement regimes have fared so badly, how we can make them better, and what broader implications this analysis may have for constitutional law and theory.

In particular, I’d like to explore the possibility that the failure of these regimes stems in part from an anomalous legal premise that the Supreme Court has embraced in relation to Brady and the right to counsel but that courts have rejected in virtually every other area of criminal procedure. In its cases involving Brady and the right to counsel (more specifically, the right to effective assistance of counsel), the Supreme Court has held that no constitutional violation occurs unless the defendant proves that the alleged error prejudiced the defendant in the sense that it may have altered the outcome of the proceeding. Simply put, the Court has held that no harm means no foul—no matter how extensively the prosecutor suppressed exculpatory evidence or how egregiously defense counsel performed in representing the defendant—for these two rights. No other significant area of constitutional criminal procedure works this way. To be sure, appellate and postconviction courts generally can (and routinely do) consider prejudice when applying the harmless error doctrine to decide whether criminal procedure errors justify setting aside the defendant’s conviction or sentence. But the harmless error doctrine presupposes that an error occurred regardless of whether that error caused prejudice. By contrast, no prejudice means no error under the Supreme Court’s Brady and effective assistance precedents.

Is this a distinction without a difference? If the defendant is going to lose on appeal anyhow, due to her inability to show prejudice, does it really matter whether the court rejects the defendant’s claim on the theory that the lack of prejudice (1) means that no constitutional error occurred (as the Brady and effective assistance doctrines hold) or (2) disentitles the defendant to the remedy of reversal (as the harmless error doctrine holds)?

I think it matters a great deal, for reasons I’ll describe in future posts. I will also touch on some larger theoretical implications—regarding the nature of the right/remedy relationship, departmentalism, and other topics—that I hope will interest readers who do not ordinarily follow doctrinal debates in criminal procedure. Please share your initial thoughts in the comments section. And stay tuned!

(Note: this post was edited on 5/7/2018 to fix the URL for the last source cited.)

Posted by Justin Murray on May 2, 2018 at 11:54 AM in Constitutional thoughts, Criminal Law, Legal Theory | Permalink


Looking forward to your posts.

Posted by: Orin Kerr | May 2, 2018 6:07:05 PM

Thank you both for sharing your thoughts.

El roam, I'm going to give the Jae Lee case another read over the next few days. You're right that concerns about finality and judicial economy have played a major role in the Supreme Court's criminal procedure prejudice decisions, and Justice Thomas's dissent in Jae Lee is no exception. Yet considering that harmless error review offers an alternative way of addressing postconviction finality concerns--an alternative that potentially leaves other, less intrusive remedial & enforcement options on the table--I think something more is going on in the Brady and ineffective assistance cases. In future posts (and in an article I'm working on), I'll try to bring into focus what that "something more" is.

Donald, I share your interest in (and concern over) the interplay between the plain error test and ineffective assistance doctrine. In fact, you've anticipated with precision one of the topics I plan to write about this month. As you might remember, SCOTUS's decision last term in Weaver v. Massachusetts dealt with one important aspect of the plain error / IAC overlap. The QP was whether a defendant alleging IAC predicated on counsel's failure to object to an erroneous courtroom closure (which is a structural error, ordinarily immune from harmless error review) must prove prejudice. SCOTUS said "yes," but with a rather surprising caveat: according to Weaver, the defendant might be able to prove prejudice *either* in the usual way (by showing a "reasonable probability" that counsel's deficiency affected the outcome) *or* by showing that counsel's deficiency rendered the trial "fundamentally unfair" in some other (unspecified) sense. Weaver didn't garner much attention when it came out last term, but it'll be interesting to see what practitioners like yourself might be able to achieve with it.

And by the way, thanks for what you're doing with the Ohio Innocence Project. It's God's work; keep it up.

Posted by: Justin Murray | May 2, 2018 4:48:14 PM

As a clinical prof doing post-conviction work, I'm looking forward to your posts.

I've always found interesting the interplay between plain error and IAC claims (when the purported IAC occurs during a trial, such as a failure to raise an objection). Given the Strickland standard for deficient performance and prejudice, a defendant could rarely demonstrate IAC without also being able to show plain error. The high hurdle a defendant must leap nearly renders the right to effective assistance of counsel superfluous, at least as to counsel's performance during trial.

Posted by: Donald Caster | May 2, 2018 3:37:28 PM

Just clarification :

In that case presented by me above , the claim has to do with an alleged reckless advise of the attorney , concerning the immigration consequences of his plea .


Posted by: El roam | May 2, 2018 2:02:05 PM

Just a link to the ruling mentioned :



Posted by: El roam | May 2, 2018 1:56:22 PM

Well come , and good start indeed . Just worth to note the reasoning , here I quote from : jae lee v. united states (dissenting opinion of justice Thomas regarding plea bargains ) here :

In addition to undermining finality, the Court’s rule will impose significant costs on courts and prosecutors. Under the Court’s standard, a challenge to a guilty plea will be a highly fact-intensive, defendant-specific undertaking. Petitioner suggests that each claim will “at least” require a “hearing to get th[e] facts on the table.” Tr. of Oral Arg. Given that more than 90 percent of criminal convictions are the result of guilty pleas, Frye, 566 U. S., at 143, the burden of holding evidentiary hearings on these claims could be significant. In circumstances where a defendant has admitted his guilt, the evidence against him is overwhelming, and he has no bona fide defense strategy, I see no justification for imposing these costs.

And more :

The Court’s decision today will have pernicious consequences for the criminal justice system. This Court has shown special solicitude for the plea process, which brings “stability” and “certainty” to “the criminal justice system.”Premo, 562 U. S., at 132. The Court has warned that “the prospect of collateral challenges” threatens to undermine these important values. Ibid. And we have explained that “[p]rosecutors must have assurance that a plea will not be undone years later,” lest they “forgo plea bargains that would benefit defendants,” which would be “a result favorable to no one.” Id., at 125.

End of quotation :

So , that element of the cost , projecting upon finality and stability of the system , implies another harm of course , caused to the public and the judiciary. Must be considered of course according to the supreme court .


Posted by: El roam | May 2, 2018 1:51:39 PM

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