Brecht V Abrahamson: Hard Justice for State Prisoners: Robin A

Boston College Law Review Volume 35 Article 3 Issue 5 Number 5 9-1-1994 Brecht v Abrahamson: Hard Justice for State Prisoners: Robin A. Colombo Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the Criminal Law Commons Recommended Citation Robin A. Colombo, Brecht v Abrahamson: Hard Justice for State Prisoners:, 35 B.C.L. Rev. 1103 (1994), http://lawdigitalcommons.bc.edu/bclr/vol35/iss5/3 This Notes is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. NOTES BRECHT V AB SON: HARD JUSTICE FOR STATE PRISONERS? On April I, 1975, the defendant, a former police officer, kid- napped a 16 year-old girl while she was waiting to pick up her school- teacher mother.' At gunpoint, he handcuffed the girl and took her to his home, with the intention of raping her.' After noticing the young girl looking around the house, as if she were trying to memorize every detail, the defendant took the young girl to a secluded spot and fatally shot her in the head with a .357 pistol." The defendant left the girl's body where it fell and drove to the outskirts of the town, where he abandoned the girl's car on the highway, hazard lights flashing, and hitchhiked to town.4 During the defendant's trial for capital murder, the State introduced expert testimony indicating that the victim had bruises on her wrists from handcuffs and that a .357 bullet killed her.' Other testimony showed that the defendant possessed handcuffs with traces of blood of the same type as the victim's.° The State also introduced testimony of witnesses that linked the defendant to the area near the abandoned car. In addition, the State introduced a witness that tes- tified that the defendant sexually assaulted her in a secluded area at gunpoint in 1975. 7 Finally, in closing arguments, the State made reference to the defendant's post-Miranda silence to impeach the defendant's testimony that he killed the victim accidentally. 'Vanderbilt v. Collins, 994 F.2d 189, 191 (5th Cir. 1993). The facts presented arc partially based on Vanderbilt Id 2 Id. 3 Id. 4 a 5 Id. 6 Vanderbilt, 994 F.2d at 191. /d. at 193. 1103 1104 BOSTON COLLEGE LAW REVIEW [Vol. 35:1103 The jury found the defendant guilty of first degree murder. On appeal, the defendant claimed that reference to his post-Miranda silence was a constitutional error requiring reversal. The appellate court set aside the conviction, holding that the State failed to prove that the error was harmless beyond a reasonable doubt. The state supreme court reversed, concluding that the error was harmless. The defendant petitioned for habeas review in the federal district court, reasserting his claim that the error required reversal of his conviction. The proper harmless error standard that the federal court should apply is a question that the United States Supreme Court only recently resolved.8 Prior to 1993, the federal court would likely have applied the same harmless error standard on habeas review as applied by the state courts on direct review' Thus, it is unpredictable how the federal court would judge the impact of the error. This partially fictional fact pattern, however, reflects real case examples and continues to arouse societal concern over judicial deference to state criminals:° This concern is particularly salient in today's high crime era." Accordingly, societal demand for finality of convictions grows stronger. 12 In contrast, legal commentators criticize the United States Supreme Court's appar- ent efforts to promote the finality of judgments and principles of federalism by limiting the availability of collateral review and broaden- ing the application of harmless error." Consistent with commentators' observations, harmless error analysis and federal habeas corpus histori- cally evolved in different directions: harmless error experienced ex- pansive application in the twentieth century: 4 while federal habeas "Brecht v. Abrahamson, 113 S. Ct. 1710, 1722 (1993). 9 See Yates v. Evett, 111 S. Ct. 1884, 1892 (1991) (Chapman harmless error applied on habeas review of constitutional error); Rose v. Clark, 478 U.S. 570, 578, 579 (1986) (Chapman harmless error applied on habeas review of constitutional error); Chapman v. California, 386 U.S. 18, '24 (1967) ("harmless beyond a reasonable doubt" harmless error standard adopted on direct review of constitutional error). 1') See Lisa S. Spickler, Casenote, Brecht v. Abrahamson: Another Step Toward Evisceration of Habeas Carpus, 27 U. RICH. L. REV. 549, 550 (1993). " FBI, Crime in the U.S., 1989 UNIFORM CRIME REPORTS 71. According to reports by the Federal Bureau of Investigation, law enforcement agencies made an estimated 14.3 million arrests in 1989 nationwide for all criminal infractions except traffic violations. Id. Over a five year period, 1985-1989, total offenses increased 14%; total violent crimes increased 34%; and property crime arrests increased 13%. Id. For the decade, 1980-1989, arrests for all offenses increased 28%; violent arrests increased 35%; and property crime arrests increased 15%. Id. 12 See Spickler, supra note 10, at 549. 13 1d. at 549-50; see alsoJ. Thomas Sullivan, "Reforming" Federal Habeas Corpus: The Cost to Federalism; the Burden for Defense Counsel; and the Loss of Innocence, 61 UMKC L. REV. 291, 291 -92 (1992). 14 See infra notes 29-103 and accompanying text. September 1994] HARD JUSTICE 1105 corpus was progressively limited.'5 Although these doctrines are gener- ally addressed independently, the United States Supreme Court faced these doctrines simultaneously in 1993, in Brecht v. Abrahamson, when it addressed the question of which harmless error standard to apply on federal habeas review of constitutional error. 16 In Brecht, the Court held that a state prisoner must prove that a constitutional error substantially influenced the jury's verdict in order to reverse a conviction on habeas review. 17 Prior to this decision, a conviction warranted reversal if the state failed to prove that the constitutional error was harmless beyond a reasonable doubt, i.e., there was no reasonable possibility that the error contributed to the conviction.18 The Brecht Court emphasized the policies of finality and federalism underlying collateral review and adopted the more lenient "sub- stantial and injurious effect or influence" requirement for federal habeas proceedings. 19 Although commentators and members of the Court itself predict an exponential decline in the cases of federal habeas relief at the expense of upholding the "truth,"" the Brecht Court, as well as society,21 asserts the importance of finality of state judgments and the different role of federal habeas re-view.22 This Note examines the Brecht decision in light of the history and underlying policies of federal habeas review and harmless error analysis and challenges commentators' strong criticisms. Section I examines the historical development of harmless error analysis." Section II examines the history of federal habeas corpus. 24 Section III discusses two United States Supreme Court cases that address both harmless error and habeas review simultaneously." Section IV sets out a detailed analysis of Brecht v. Abrahamson. 2° Section V discusses commentators' criticisms of Brecht v. Abrahamson." Finally,.Section VI tests the merits of corn- 13 See infra notes 104-69 and accompanying text. 16 113 S. Ct. at 1713-14,1719. 17 Id. at 1714,1722. 18 Chapman v. California, 386 U.S. 18,24 (1967). 13 Brecht, 113 S. Ct. at 1721-22. "See Spickler, supra note 10, at 549-50; see also Brecht, 113 S. Ct. at 1730 (O'Connor, J., dissenting). 21 See Spickler, supra note 10, at 549. 22 Brecht, 113 S. Ct. at 1720,1721. 23 See infra notes 29-103 and accompanying text. 24 See infra notes 104-69 and accompanying text. 23 See infra notes 170-94 and accompanying text. " See infra notes 195-329 and accompanying text. 27 See infra notes 330-69 and accompanying text. 106 BOSTON COLLEGE LAW REVIEW (Vol. 35:1103 mentators' criticisms and analyzes the potential impact of the Brecht Court's decision on society and future habeas litigation." I.. THE DEVELOPMENT OF THE HARMLESS ERROR RULE: AN EXPANSION FROM NONCnNSTITUTIONAL ERROR TO CONSTITUTIONAL ERROR The harmless error rule has deep roots in American jurispru- dence." Early American courts adopted the automatic reversal rule from their English ancestors which required automatic reversal follow- ing even the most technical error at trial." This automatic reversal rule spurred societal demand for some type of harmless error review." In an attempt to discourage reversals, Congress established a harmless error rule in 1919,32 now embodied in Federal Rule of Criminal Pro- cedure 52(a)." According to commentators, the underlying rationale for the harmless error rule was to foster economies and judicial efficiency by avoiding reversal of convictions for small errors or defects that had little, if any, likelihood of changing the result of the trial." Thus, the harmless error rule allowed courts to look beyond the mere existence of a procedural error and determine whether the error had any bear- ing on the merits of the case and on the jury's verdict." By 1967, all 50 states had adopted some form of harmless error rule." Initial "See infra notes 370-403 and accompanying text 29 See Charles J. Ogletree, jr., Comment, Arizona v. Fulminante: The Ham of Applying Harmless Error to Carted Confessions, 105 HARV. L. Rev. 152, 156 (1991); see also ROBERT J.

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