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SUPREME COURT OF THE UNITED STATES
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No. 91-7358
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TODD A. BRECHT, PETITIONER v. GORDON A. ____
ABRAHAMSON, SUPERINTENDENT, DODGE
CORRECTIONAL INSTITUTION
ON WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT
[April 21, 1993]
JUSTICE O'CONNOR, dissenting.
I have no dispute with the Court's observation that "collateral review is
different from direct review." Ante, at 12. Just as the federal courts may ____
decline to adjudicate certain issues of federal law on habeas because of
prudential concerns, see Withrow v. Williams, 5-- U. S. ___, ___ (1993) (slip _______ ________
op., at 4); id., at ___ (O'CONNOR, J., concurring in part and dissenting in ___
part) (slip op., at 3-4), so too may they resolve specific claims on habeas
using different and more lenient standards than those applicable on direct
review, see, e.g., Teague v. Lane, 489 U. S. 288, 299-310 (1989) (habeas claims ____ _ ______ ____
adjudicated under the law prevailing at time conviction became final and not on
the basis of intervening changes of law). But decisions concerning the Great
Writ "warrant restraint," Withrow, 5-- U. S., at ___, (O'CONNOR, J., concurring _______
in part and dissenting in part) (slip op., at 4), for we ought not take lightly
alteration of that "`fundamental safeguard against unlawful custody,' " id., at ___
___ (slip op., at 2), (quoting Fay v. Noia, 372 U. S. 391, 449 (1963) (Harlan, ___ ____
J., dissenting)).
In my view, restraint should control our decision today. The issue before us
is not whether we should remove from the cognizance of the federal courts on
habeas a discrete 91-7358 - DISSENT
2 BRECHT v. ABRAHAMSON ____
prophylactic rule unrelated to the truthfinding function of trial, as was the
case in Stone v. Powell, 428 U. S. 465, (1976), and more recently in Withrow v. _____ ______ _______
Williams, supra. Rather, we are asked to alter a standard that not only finds_______________
application in virtually every case of error but that also may be critical to
our faith in the reliability of the criminal process. Because I am not
convinced that the principles governing the exercise of our habeas powers -
federalism, finality, and fairness - counsel against applying Chapman's _______
harmless-error standard on collateral review, I would adhere to our former
practice of applying it to cases on habeas and direct review alike. See ante, ____
at 9. I therefore respectfully dissent.
The Court begins its analysis with the nature of the constitutional violation
asserted, ante, at 6-9, and appropriately so. We long have recognized that the ____
exercise of the federal courts' habeas powers is governed by equitable
principles. Fay v. Noia, supra, at 438; Withrow, supra, at ___ (O'CONNOR, J., ___ ___________ _______ _____
concurring in part and dissenting in part) (slip op., at 3-4). And the nature
of the right at issue is an important equitable consideration. When a prisoner
asserts the violation of a core constitutional privilege critical to the
reliability of the criminal process, he has a strong claim that fairness favors
review; but if the infringement concerns only a prophylactic rule, divorced from
the criminal trial's truthfinding function, the prisoner's claim to the equities
rests on far shakier ground. Thus, in Withrow v. Williams, this Court declined _______ ________
to bar relitigation of Miranda claims on habeas because Miranda is connected to _______ _______
the Fifth Amendment and the Fifth Amendment, in turn, serves the interests of
reliability. Withrow, supra, at ___ (slip op., at 10-11). I dissented because _______ _____
I believe that Miranda is a prophylactic rule that actually impedes the _______
truthseeking function of criminal trials. 5-- U. S., at 4, 6-12. See also
Stone v. Powell, 428 U. S. 465, 486, 490 (1976) (precluding review of_____ ______
exclusionary rule violations 91-7358 - DISSENT
BRECHT v. ABRAHAMSON 3 ____
in part because the rule is judicially fashioned and interferes with the
truthfinding function of trial).
Petitioner in this case alleged a violation of Doyle v. Ohio, 426 U. S. 610 _____ ____
(1976), an error the Court accurately characterizes as constitutional trial
error. Ante, at 8-9. But the Court's holding today, it turns out, has nothing ____
to do with Doyle error at all. Instead, the Court announces that the harmless- _____
error standard of Chapman v. California, 386 U. S. 18, 24 (1967), which requires _______ __________
the prosecution to prove constitutional error harmless beyond a reasonable
doubt, no longer applies to any trial error asserted on habeas, whether it is a ___
Doyle error or not. In Chapman's place, the Court substitutes the less rigorous_____ _______
standard of Kotteakos v. United States, 328 U. S. 750, 776 (1946). Ante, at 17. _________ _____________ ____
A repudiation of the application of Chapman to all trial errors asserted on _______ ___
habeas should be justified, if at all, based on the nature of the Chapman rule _______
itself. Yet, as JUSTICE WHITE observes, ante, at 2 (dissenting opinion), one ____
searches the majority opinion in vain for a discussion of the basis for
Chapman's harmless-error standard. We are left to speculate whether Chapman is_______ _______
the product of constitutional command, or a judicial construct that may
overprotect constitutional rights. More important, the majority entirely fails
to discuss the effect of the Chapman rule. If there is a unifying theme to this ______ _______
Court's habeas jurisprudence, it is that the ultimate equity on the prisoner's
side - the possibility that an error may have caused the conviction of an
actually innocent person - is sufficient by itself to permit plenary review of
the prisoner's federal claim. Withrow, supra, at ___ (slip op., at 4) _______________
(O'CONNOR, J., concurring in part and dissenting in part) (citing cases).
Whatever the source of the Chapman standard, the equities may favor its _______
application on habeas if it substantially promotes the central goal of the
criminal justice system - accurate determinations of guilt and innocence. See
Withrow, supra, at ___-___ (slip op., at_______ _____ 91-7358 - DISSENT
4 BRECHT v. ABRAHAMSON ____
9-11) (reasoning that, although Miranda may be a prophylactic rule, the fact _______
that it is not "divorced" from the truthfinding function of trial weighs in
favor of its application on habeas); Teague, 489 U. S., at 313 (if absence of ______
procedure seriously diminishes likelihood of accurate conviction, new rule
requiring such procedure may be retroactively applied on habeas).
In my view, the harmless-error standard often will be inextricably intertwined
with the interest of reliability. By now it goes without saying that harmless-
error review is of almost universal application; there are few errors that may
not be forgiven as harmless. Arizona v. Fulminante, 499 U. S. ___, ___ (1991) _______ __________
(slip op., at 5-6). For example, we have recognized that a defendant's right to
confront the witnesses against him is central to the truthfinding function of
the criminal trial. See, e.g., Maryland v. Craig, 497 U. S. 836, 845-847 ____ _ ________ _____
(1990); Ohio v. Roberts, 448 U. S. 56, 65 (1980); Mattox v. United States, 156 ____ _______ ______ _____________
U. S. 237, 242-243 (1895); see also 3 W. Blackstone, Commentaries 373-374
(1768). But Confrontation Clause violations are subject to harmless-error
review nonetheless. See Coy v. Iowa, 487 U. S. 1012, 1021-1022 (1988). When ___ ____
such an error is detected, the harmless-error standard is crucial to our faith
in the accuracy of the outcome: The absence of full adversary testing, for
example, cannot help but erode our confidence in a verdict; a jury easily may be
misled by such an omission. Proof of harmlessness beyond a reasonable doubt,
however, sufficiently restores confidence in the verdict's reliability that the
conviction may stand despite the potentially accuracy impairing error. Such
proof demonstrates that, even though the error had the potential to induce the _________
jury to err, in fact there is no reasonable possibility that it did. Rather, we
are confident beyond a reasonable doubt that the error had no influence on the
jury's judgment at all. Cf. In re Winship, 397 U. S. 358, 363-364 (1970) (proof _____________
of guilt 91-7358 - DISSENT
BRECHT v. ABRAHAMSON 5 ____
beyond a reasonable doubt indispensable to community's respect and confidence in
criminal process).
At least where errors bearing on accuracy are at issue, I am not persuaded
that the Kotteakos standard offers an adequate assurance of reliability. Under _________
the Court's holding today, federal courts on habeas are barred from offering
relief unless the error "`had substantial and injurious effect or influence in
determining the jury's verdict.'" Ante, at 16 (quoting Kotteakos, supra, at ____ _________ _____
776). By tolerating a greater probability that an error with the potential to
undermine verdict accuracy was harmful, the Court increases the likelihood that
a conviction will be preserved despite an error that actually affected the
reliability of the trial. Of course, the Constitution does not require that
every conceivable precaution in favor of reliability be taken; and certainly 28
U. S. C. S2254 does not impose such an obligation on its own. Indeed, I agree
with the Court that habeas relief under S2254 is reserved for those prisoners
"whom society has grievously wronged." Ante, at 16. But prisoners who may have ____
been convicted mistakenly because of constitutional trial error have suffered a ____
grievous wrong and ought not be required to bear the greater risk of uncertainty
the Court now imposes upon them. Instead, where constitutional error may have
affected the accuracy of the verdict, on habeas we should insist on such proof
as will restore our faith in the verdict's accuracy to a reasonable certainty.
Adherence to the standard enunciated in Chapman requires no more; and the _______
equities require no less.
To be sure, the harmless-error inquiry will not always bear on reliability.
If the trial error being reviewed for harmlessness is not itself related to the
interest of accuracy, neither is the harmless-error standard. Accordingly, in
theory it would be neither illogical nor grudging to reserve Chapman for errors _______
related to the accuracy of the verdict, applying Kotteakos' more lenient rule __________
whenever the error is of a type that does not impair 91-7358 - DISSENT
6 BRECHT v. ABRAHAMSON ____
confidence in the trial's result. But the Court draws no such distinction. On
the contrary, it holds Kotteakos applicable to all trial errors, whether related _________ ___
to reliability or not. The Court does offer a glimmer of hope by reserving in a
footnote the possibility of an exception: Chapman may remain applicable, it _______
suggests, in some "unusual" cases. But the Court's description of those cases
suggests that its potential exception would be both exceedingly narrow and
unrelated to reliability concerns. See ante, at 17, n. 9 (reserving the ____
"possibility that in an unusual case, a deliberate and especially egregious
error of the trial type" or error "combined with a pattern of prosecutorial
misconduct, might so infect the integrity of the proceeding as to warrant the
grant of habeas relief, even it did not substantially influence the jury's
verdict").
But even if the Court's holding were limited to errors divorced from
reliability concerns, the decision nevertheless would be unwise from the
standpoint of judicial administration. Like JUSTICE WHITE, I do not believe we
should turn our habeas jurisprudence into a "patchwork" of rules and exceptions
without strong justification. Ante, at 6 (dissenting opinion). The interest of ____
efficiency, always relevant to the scope of habeas relief, see, e.g., Stone, ____ _ _____
428 U. S., at 491, n. 31; Withrow, 5-- U. S., at ___-___ (slip op., at 11-13); _______
id., at ___-___ (O'CONNOR, J., dissenting) (slip op., at 12-17), favors___
simplification of legal inquiries, not their multiplication. A rule requiring
the courts to distinguish between errors that affect accuracy and those that do
not, however, would open up a whole new frontier for litigation and decision.
In each case, the litigants would brief and federal judges would be required to
decide whether the particular error asserted relates to accuracy. Given the
number of constitutional rules we have recognized and the virtually limitless
ways in which they might be transgressed, I cannot imagine that the benefits
brought by such litigation could outweigh the costs it would impose. 91-7358 - DISSENT
BRECHT v. ABRAHAMSON 7 ____
In fact, even on its own terms the Court's decision buys the federal courts a
lot of trouble. From here on out, prisoners undoubtedly will litigate - and
judges will be forced to decide - whether each error somehow might be wedged
into the narrow potential exception the Court mentions in a footnote today.
Moreover, since the Court only mentions the possibility of an exception, all ___________
concerned must also address whether the exception exists at all. I see little
justification for imposing these novel and potentially difficult questions on
our already overburdened justice system.
Nor does the majority demonstrate that the Kotteakos standard will ease the _________
burden of conducting harmless-error review in those cases to which it does
apply. Indeed, as JUSTICE STEVENS demonstrates in his concurrence, Kotteakos is _________
unlikely to lighten the load of the federal judiciary at all. The courts still
must review the entire record in search of conceivable ways the error may have
influenced the jury; they still must conduct their review de novo; and they _______
still must decide whether they have sufficient confidence that the verdict would
have remained unchanged even if the error had not occurred. See ante, at 3-4. ____
The only thing the Court alters today is the degree of confidence that suffices.
But Kotteakos' threshold is no more precise than Chapman's; each requires an _________ _______
exercise of judicial judgment that cannot be captured by the naked words of
verbal formulae. Kotteakos, it is true, is somewhat more lenient; it will _________
permit more errors to pass uncorrected. But that simply reduces the number of
cases in which relief will be granted. It does not decrease the burden of
identifying those cases that warrant relief.
Finally, the majority considers the costs of habeas review generally. Ante, ____
at 16. Once again, I agree that those costs - the effect on finality, the
infringement on state sovereignty, and the social cost of requiring retrial,
sometimes years after trial and at a time when a new 91-7358 - DISSENT
8 BRECHT v. ABRAHAMSON ____
trial has become difficult or impossible - are appropriate considerations. See
Withrow, 5-- U. S., at ___-___ (O'CONNOR, J., concurring in part and dissenting_______
in part) (slip op., at 8-9); see also id., at ___, ___ (slip op., at 5, 13); ___
Stone, supra, at 489-491. But the Court does not explain how those costs set_____ _____
the harmless-error inquiry apart from any other question presented on habeas;
such costs are inevitable whenever relief is awarded. Unless we are to accept ________
the proposition that denying relief whenever possible is an unalloyed good, the
costs the Court identifies cannot by themselves justify the lowering of
standards announced today. The majority, of course, does not contend otherwise;
instead, it adheres to our traditional approach of distinguishing between those
claims that are worthy of habeas relief and those that, for prudential and
equitable reasons, are not. Nonetheless, it seems to me that the Court's
decision cuts too broadly and deeply to comport with the equitable and remedial
nature of the habeas writ; it is neither justified nor justifiable from the
standpoint of fairness or judicial efficiency. Because I would remand to the
Court of Appeals for application of Chapman's more demanding harmless-error _______
standard, I respectfully dissent.