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