Hedgpeth v. Pulido:
Today the Supreme Court handed down a decision in Hedgpeth v. Pulido on the standard for reviewing errors in jury instructions: Should such errors be subject to harmless error review — that is, an assessment of how serious the error was before the conviction is overturned — or are such errors "structural errors" that automatically lead to the overturning of the conviction?

  In Lara v. Ryan, 455 F.3d 1080 (9th Cir. 2006), the Ninth Circuit had taken the view that such errors were structural. In the case below, Pulido v. Chrones, the Ninth Circuit applied Lara and stated that the error was structural and therefore the conviction had to be overturned. Judge O'Scannlain of the Ninth Circuit wrote a "special concurrence" in that case that argued Ninth Circuit caselaw had gone awry and needed correction:
I agree with the majority that our recent decision in Lara v. Ryan, 455 F.3d 1080 (9th Cir.2006), compels us to affirm the district court's grant of habeas relief. I write separately, however, because I believe this circuit's instructional error jurisprudence cries out for review, preferably by our court sitting en banc, or if not, by the Supreme Court. . . . I believe that Lara should be overruled to correct our erroneous instructional error jurisprudence-if not by our court sitting en banc then, in due course, by the Supreme Court. Until that happens, I have no alternative but to concur in the opinion of the court.
  The Supreme Court granted cert, and the defendant conceded that the Ninth Circuit had applied the wrong standard: It should have been harmless error, not a structural error test. The defendant argued that the Supreme Court should affirm the Ninth Circuit anyway, because it had basically applied the harmless error standard in substance even if it had applied the wrong standard in form.

  Today the Supreme Court vacated the judgment of the Ninth Circuit by a vote of 6-3 in a short per curiam opinion, and remanded so the Ninth Circuit could apply the proper standard. It didn't look like the Ninth Circuit had applied the proper standard, so the Court called for a do-over.

  Justice Stevens dissented, joined by Justice Ginsburg and Souter, on the ground that while the Ninth Circuit had formally erred, the decision basically applied the right standard and in any event wasn't worth the Supreme Court's time:
[T]he court's misnomer was inconsequential . . . . The Court of Appeals' decision therefore did not warrant this Court's review and does not now merit a remand to require that court to repeat its analysis. In my opinion, the interest in expediting the conclusion of this protracted litigation outweighs the interest in correcting a misnomer.
. . .
Because the District Court's analysis was correct and the Court of Appeals' result was substantially the same, I think this Court's decision to remand for the purpose of obtaining a third analysis of the harmless-error issue is a misuse of scarce judicial resources. I would therefore affirm the judgment of the Court of Appeals.
  I haven't followed this case until today, and I just did a quick skim of the materials this morning. But based on my quick read of the Ninth Circuit opinion below, it seems pretty clear that the Ninth Circuit applied a structural error test. Indeed, the premise of the two concurrences in the case are that the panel was obligated by Lara to follow a structural error test. Stevens's dissent alludes to a fair point that the case was a questionable case to grant: If the outcome of the case was likely the same under either standard, why take the case and add delay before the petitioner's habeas petition is granted? Why not wait for another case? At the same time, I found the majority's reasoning persuasive that this was something for the Ninth Circuit to correct: Having agreed to take the case, the Court was right to vacate the judgment and remand. With that said, I would hope the Ninth Circuit will act on the remanded case quickly, to minimize the delay in Pulido's case.
cbyler (mail):
Is it just me, or is Stevens's position tantamount to saying that the failure to apply the harmless error test was, itself, a harmless error?

Isn't that exactly the sort of case where the SC (and other courts) deliberately refrain from reaching an issue because it doesn't affect the outcome?

I don't really understand the majority's desire to dot the i's and cross the t's if no actual change results.
12.2.2008 11:25am
Roy Englert:
Hedgpeth, not Hudspeth.
12.2.2008 11:28am

Thanks for the correction. If you want to read a very interesting recent Fourth Amendment case, United States v. Hudspeth, let me know!


Whether a change would result is speculation, it seems to me. It is certainly common for courts to vacate and remand when they are not certain how a lower court would rule.
12.2.2008 11:34am
Realist Liberal:
Prof. K~

One very minor quibble. The State didn't "concede" anything or ask to affirm the judgment. The State was trying to overturn the 9th Cir. case. The defendant was the one that conceded the 9th applied the wrong test but wanted the case affirmed.
12.2.2008 11:52am
Thanks, RL. Just an error on my part.
12.2.2008 11:55am
Kent Scheidegger (mail) (www):
I wouldn't worry too much about delay in this case. Pulido will probably get relief on remand, simply affirming the District Court on its application of Brecht to the facts. At that point, the case will probably be plea-bargained to time served, about 17 years, which is still less than he deserves. His story that he only joined the crime after the clerk was shot is not credible, given his fingerprints on the soda can inside the store. See pp. 20-21 of this brief.
12.2.2008 12:52pm
Steven's concurrence strikes me as goofy. The biggest circuit in the country applies what the parties agree is the wrong legal standard, refuses to clean up its mess en banc, but the issue isn't worth the time to fix? Just what does it take to get cert granted these days?

If the Supremes didn't fix it in Pulido, a published case, it would've taken the Ninth years to get around to it. That means countless criminals would've gone free in unpublished opinions that followed Lara before anyone took notice.
12.2.2008 12:58pm
Dave N (mail):
Interestingly, Lara v. Ryan was also a California case--but even though Lara talked about "structural error," the Ninth Circuit ultimately upheld the denial of federal habeas corpus relief.

Thus, there was no aggrieved party to quibble with the Lara "structural error" holding (the rule was to Lara's benefit even if the ultimate resolution wasn't). On the other hand, in Pulido, the state was clearly aggrieved and sought certiorari.

As a minor note of only passing interest, the today's 6-3 majority included Justice Breyer. The district judge in Lara was Charles Breyer--Stephen Breyer's brother.

This led to an odd thought. If one of District Judge Charles Breyer's cases made its way to the Supreme Court, would Supreme Court Justice Stephen Breyer be required to recuse?
12.2.2008 1:44pm
Realist Liberal:
Dave N.~

I'm not sure if he would be required to recuse. However, Justice Breyer has a blanket policy to automatically recuse himself from all cases coming from his brother.
12.2.2008 1:51pm
Dave N (mail):
Realist Liberal,

Thanks. I know when strange legal issues pop into my head as a result of a VC thread, I can usually get an answer if I ask.
12.2.2008 2:02pm

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