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.