Whether a harmless-error analysis that focused on the weight of admissible evidence, rather than on the erroneous evidence’s effect on the jury, constituted a Sixth Amendment violation.
The United States District Court for the Northern District of Illinois convicted Alexander Vasquez of conspiring to possess with intent to distribute more than 500 grams of cocaine. However, the district court had erroneously admitted statements made during recorded telephone conversations by Marina Perez into evidence for their truth. On appeal, the United States Court of Appeals for the Seventh Circuit held that the lower court’s error was harmless because the jury would have come to the same conclusion had there been no error. Vasquez now appeals, arguing that the Seventh Circuit misapplied the harmless-error analysis by ignoring the impact the error had on the jury. The Supreme Court will decide how courts should properly carry out harmless-error tests, as well as examine the possible constitutional questions such an error would create.
Questions as Framed for the Court by the Parties
1. Did the Seventh Circuit violate this Court's precedent on harmless error when it focused its harmless error analysis solely on the weight of the untainted evidence without considering the potential effect of the error (the erroneous admission of trial counsel's statements that his client would lose the case and should plead guilty for their truth) on this jury at all?
2. Did the Seventh Circuit violate Mr. Vasquez's Sixth Amendment right to a jury trial by determining that Mr. Vasquez should have been convicted without considering the effects of the district court's error on the jury that heard the case?
Carlos Cruz and Joel Perez planned to purchase cocaine from Alejandro Diaz at a gas station. See U.S. v. Vasquez, 635 F.3d 889, 892 (7th Cir. 2011). Upon their arrival, Diaz told them that they would be able to view and purchase the cocaine if they followed him to another location. See id. At that moment, Perez exited Cruz’s car and walked over to Perez’s Pontiac Bonneville parked in a nearby lot. See id. Perez’s cousin, Alexander Vasquez, was driving the Bonneville. See id. Perez instructed Cruz to tell Diaz that Perez would only buy at the current location. See id. Unbeknownst to Cruz, Perez and Vasquez, Diaz was actually a Drug Enforcement Administration informant. See id.
Shortly thereafter, uniformed police officers surrounded the parking lot. See Vasquez, 635 F.3d at 892. In an attempt to flee, Vasquez reversed the Bonneville, struck two police vehicles and sped out of the parking lot with Perez. See id. Moments later, the police located and arrested Perez and Vasquez. See id. The police searched the Bonneville and found $23,000 hidden inside. See id. The police also found Vasquez’s cell phone, which displayed multiple calls between Vasquez and Perez in the two days leading up to the incident. See id.
Cruz and Perez both pled guilty to the charges filed against them. See Vasquez, 635 F.3d at 895–896. A federal grand jury charged Vasquez with conspiring and attempting to possess with intent to distribute. See id. at 892–893. Vasquez denied the charges, claiming that he was an innocent bystander merely picking up his cousin. See id. at 896.
Vasquez elected not to testify. See Vasquez, 635 F.3d at 896. However, Vasquez called Perez’s wife, Marina, to attest to the innocent nature of Vasquez’s presence in Perez’s Bonneville. See id. at 896. Marina testified that Perez had requested that she pick him up at the gas station and that she had asked Vasquez to go in her place. See id.
The United States ("Government") provided evidence of a recorded telephone conversation between Marina and Perez where Marina said Vasquez’s attorney advised Vasquez to plead guilty because everyone would lose at trial. See Vasquez, 635 F.3d at 897. The Government provided the conversation to undermine Marina’s testimony, arguing that Vasquez’s attorney would not have made such a statement if Marina’s testimony about Vasquez’s innocence were truthful. See id. Additionally, the Government suggested that Marina was motivated to lie for Vasquez because Marina believed that Perez would lose at trial and that Vasquez’s attorney could help Perez receive a lesser sentence. See id. The trial judge admitted the recordings for their truth. See id. at 898.
Ultimately, the jury acquitted Vasquez of the attempt charge but convicted Vasquez of conspiring to possess with intent to distribute. See Vasquez, 635 F.3d at 893. On appeal, Vasquez argued that the United States District Court for the Northern District of Illinois had committed reversible error by admitting the recorded conversations between Marina and Perez for their truth. See Vasquez, 635 F.3d at 891. The United States Court of Appeals for the Seventh Circuit agreed that the district judge erred in admitting the recordings for their truth. See id. at 898. However, the Seventh Circuit determined that the error was harmless because it did not affect the outcome of the case since the untainted evidence provided sufficient proof of guilt. See id.
Vasquez appealed to the Supreme Court, arguing that the Seventh Circuit misapplied the harmless-error analysis by focusing solely on the effect of the error on the outcome of the trial and ignoring the impact the error had on the jury. See Brief for Petitioner at 11–12.
The Supreme Court will determine whether the United States District Court for the Northern District of Illinois committed harmless error by admitting recorded conversations between Marina and Perez into evidence for their truth. At issue is whether the United States Court of Appeals for the Seventh Circuit’s harmless-error analysis ran contrary to Supreme Court precedent, and whether such an error violated Petitioner Alexander Vasquez’s Sixth Amendment right to a jury trial. Since the Seventh Circuit’s analysis failed to consider the potential effects of the district court’s error on the jury, and instead examined whether the same outcome would have been reached had there been no error, the Supreme Court must determine whether the correct standard was used by the appellate court and, if not, whether the error was indeed harmless.
Harmless Error vs. Overwhelming Evidence
Vasquez argues that the Seventh Circuit applied the wrong type of analysis in assessing the district court’s error. See Brief for Petitioner, Alexander Vasquez at 11–12. According to Vasquez, the correct approach is to apply a harmless-error analysis. See id. at 11. Under this analysis, a reviewing court can disregard a lower-court error when that error did not have any influence or effect on the jury. See id. at 15, 25–26. More importantly, however, Vasquez emphasizes that, consistent with the Supreme Court’s analysis in Kotteakos v. United States, such a review must involve the entire record, rather than simply assessing whether the same outcome would have occurred without the error, and must involve a subjective assessment of the specific jury that heard the case. See id. at 14–15, 17; Kotteakos v. United States, 328 U.S. 750 (1946). In supporting his position, Vasquez cites numerous Supreme Court cases applying the harmless-error test consistent with the Kotteakos analysis, in a way that assessed whether the error influenced the jury’s ultimate decision. See id. at 16–18.
In contrast, the United States (“Government”) argues that the correct analysis when assessing lower-court errors asks whether an error had an effect on the result of the trial (or, put another way, whether there was overwhelming evidence that the defendant was guilty absent the error). See Brief for Respondent, United States at 17–18. Emphasizing the highly technical nature of jury trials, which ultimately make the hope for a perfect trial unrealistic, the Government asserts that the proper role of an appellate court is to assess whether the same judgment would be reached free from error. See id. at 18–19. Although noting that when constitutional violations are involved a finding for harmless error must meet the reasonable doubt standard, the Government notes that such a standard does not require absolute certainty of harmlessness. See id. at 20. As a result, and contrary to Petitioner’s argument, the Government asserts that appellate review does not require inquiries into jurors’ minds, but rather an objective assessment concerning whether the error would affect the average jury. See id. at 20–21. Thus, relying on the Supreme Court case Harrington v. California, the Government insists that the question is not whether an error affected the specific jury’s judgment, but whether a rational jury would have come to the same conclusion had the error not occurred. See id. at 21–22; Harrington v. California, 395 U.S. 250, 254 (1969). Given that, in its view, there was overwhelming evidence working against Vasquez, the Government argues that the Seventh Circuit’s ruling should be upheld. See id. at 30.
Potential Sixth Amendment Violation
Vasquez argues that the Seventh Circuit’s analysis violated his Sixth Amendment right to a jury trial. See Brief for Petitioner at 33. Specifically, Vasquez asserts that the right to a jury trial requires a harmless-error analysis to revolve around the specific jury’s initial verdict, rather than the reviewing judge’s personal assessment of the weight of other evidence. See id. at 37. An improper harmless-error analysis, in Vasquez’s view, violates the Sixth Amendment because it hypothesizes an objective jury ruling without error, rather than focusing on the error’s actual effect on the jury at hand. See id. at 40. In this respect, Vasquez fears that permitting judges to independently assess guilt would effectively usurp the role of a jury. See id. at 34.
In response, the Government contends that no Sixth Amendment violation occurred because Vasquez was indeed granted his Sixth Amendment right and convicted following a jury trial. See Brief for Respondent at 36. The Government notes that harmless-error analyses focus on whether a verdict should be set aside, an analysis that does not involve the Sixth Amendment. See id. Rather than override the initial jury verdict, which might violate the Sixth Amendment, the Government argues that the Seventh Circuit’s harmless-error analysis merely reviewed the case record, thereby avoiding any potential constitutional violations. See id. at 37. The Government notes that the Supreme Court expressly stated in Neder v. United States that an appellate court does not become a “second jury” when performing the harmless-error analysis and reviewing the whole record. See Brief for Respondent at 37; Neder v. United States, 527 U.S. 1, 19 (1999).
Was the error harmless?
Nonetheless, Vasquez argues that contrary to the Seventh Circuit’s ruling, the district court error was not harmless. See Brief for Petitioner at 44. Specifically, Vasquez contends that allowing the jury to hear his own counsel’s opinion that Vasquez was guilty and should plead as such was an “inherently prejudicial” error. See id. at 58. Vasquez argues that such remarks are akin to an erroneously-admitted confession, one that undermined the credibility of his arguments and thereby impacted the minds of his jurors. See id. at 58–59. Vasquez emphasizes the important role the error played at trial by noting the Government’s reaction to the evidence being admitted, which involved days of procedural sparring in order to hear the recordings at trial. See id. at 60–62. Lastly, Vasquez points out the jury’s actions in response to the testimony being admitted, including a specific request for the transcript of Marina and Perez’s phone conversations, to show that the error played a major role in the jury’s verdict. See id. at 62–63. Vasquez maintains that the error was not harmless. See id. at 63.
Emphasizing the fact that there was already sufficient evidence of Vasquez’s guilt (which, as mentioned earlier, is a relevant consideration in the overwhelming-evidence analysis), the Government argues that the trial error was indeed harmless. See Brief for Respondent at 37–38. First, the Government notes their strong case against Vasquez—including his aggressive flight from police officers, phone records suggesting some involvement in the conspiracy, and presence at the crime scene while possessing in cash the exact dollar value of the cocaine to be purchased—in asserting that the error had no impact on the jury’s ultimate decision. See id. at 38–43. The Government similarly emphasizes the weakness of Vasquez’s defense, which relied entirely on the credibility of Marina’s testimony, which appeared implausible when compared with events that transpired. See id. at 44–46. Lastly, and contrary to Vasquez’s assertions, the Government argues that that the prejudicial nature of the error was limited because the error did not concern the recordings being admitted, but rather that they were admitted without a limiting instruction. See id. at 46–47. As a result, the Government contends that the relevant issue is allegedly not whether a jury could consider whether the testimony was actually made, but rather whether the subject matter of the testimony could be taken as necessarily true. See id. Such an error, the Government concludes, had little to no impact on the jury, thereby creating sufficient assurance that the error was indeed harmless. See id. at 52.
The Supreme Court will determine whether the United States District Court for the Northern District of Illinois committed harmless error by admitting recorded conversations between Marina and Perez into evidence for their truth. Vasquez argues that the Seventh Circuit incorrectly applied the harmless-error analysis and violated his Sixth Amendment right to a jury trial by failing to consider the influence of the district court’s error on the jury verdict and independently assessing guilt. See Brief for Petitioner, Alexander Vasquez at 11, 34. In contrast, the United States ("Government") argues that the harmless-error analysis requires courts to consider the untainted evidence’s probative effect against the error’s probable impact on the jury verdict, because immaterial errors that do not affect the outcome do not warrant a retrial. See Brief for Respondent, United States at 17, 19.
Vasquez argues that the Supreme Court should limit the harmless-error analysis to the influence of the error on the jury verdict because allowing appellate courts to independently assess guilt can subject defendants to arbitrary judicial decisions. See Brief for Petitioner at 34. Jeffrey Skilling, former president and COO of Enron, concurs, contending that the jury trial right is designed to function as a societal safeguard against oppressive and tyrannical rulers. See Brief of Amicus Curiae Jeffrey K. Skilling in Support of Petitioner at 5. Vasquez points out that, much like society controls arbitrary or abusive legislative and executive branch leaders through voting, society ultimately controls arbitrary judicial power through the jury trial right. See Brief for Petitioner at 35. Therefore, Vasquez argues that permitting judges to independently assess guilt effectively eliminates the jury function and hinders society’s check on judicial power. See id. at 34. Vasquez asserts that appellate judges might exacerbate the threat of improper convictions if allowed to independently assess guilt because district courts shield juries, but not appellate courts, from prejudicial evidence and appellate judges are not present during the trial to see witnesses’ tones or behaviors. See id. at 42– 43. Vasquez contends that, historically, appellate judges have improperly confirmed the convictions of many defendants. See id. Vasquez points out that appellate courts found harmless error in 32% of cases where the defendant was later exonerated by DNA evidence after an appellate judge had affirmed their conviction. See id. Vasquez argues that in almost a third of those affirmed convictions, the appellate judges believed there was “overwhelming” evidence against a factually innocent defendant. See id. The National Association of Criminal Defense Lawyers also contends that a harmless-error analysis that looks to the error’s effect on the jury verdict properly balances the Sixth Amendment absolute jury trial right with the nation’s interests in avoiding the societal costs of freeing an individual already convicted by a jury and preventing unnecessary expenditures on retrials. See Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner at 4–5.
In contrast, the Government argues that the harmless-error analysis should focus on the effect of the error on the trial’s outcome because immaterial errors that do not affect the outcome do not warrant the social costs of a retrial. See Brief for Respondent, United States at 19. The Government contends that reversing a criminal verdict is extremely expensive and that district courts must expend substantial resources adjudicating an issue that has already been tried on the merits. See id. at 17. The Government also points out that retrials significantly burden crime victims by subjecting them once again to the rigors of trial. See id. Additionally, the Government contends that witnesses may be unable to testify or may not remember events as clearly as they once did if a substantial amount of time has passed since the alleged crime occurred. See id. The Government asserts that human beings are, by their very nature, imperfect and will inevitably make mistakes at trial, requiring appellate courts to focus on the trial’s underlying fairness instead of the presence of inescapable immaterial errors. See id. at 18–19. Thus, the Government contends that the harmless-error analysis requires appellate courts to consider the untainted evidence’s probative effect against the error’s probable impact on the jury verdict, because immaterial errors that do not affect the outcome do not warrant the unjustified expenditure of additional resources. See id. at 17, 19. The Government argues that the Seventh Circuit did not violate Vasquez’s Sixth Amendment right to a jury trial because Vasquez was indeed granted his Sixth Amendment right and convicted following a jury trial. See id. at 36. Moreover, the Government argues that the Seventh Circuit did consider the error’s influence on the jury verdict when it concluded that there was sufficient untainted evidence to demonstrate the error would not have altered the verdict. See id. at 35–36.
In this case, the Supreme Court will determine the proper standard for carrying out a harmless-error analysis, as well as whether failure to do so constitutes a Sixth Amendment violation. Vasquez argues that a reviewing court must assess whether the error had an impact on the jury at issue, while the Government maintains that courts should examine whether a reasonable jury would have come to the same verdict had there been no error. The Supreme Court’s decision will determine how courts should properly carry out harmless-error tests and whether appellate judges will be able to act as de facto juries and independently assess a defendant’s guilt on appeal.
Life Sentences Blog, No Harm, No Foul- But How Do You Know If There Was Harm? (Nov. 29, 2011).
AllBusiness.com, U.S. Supreme Court to Evaluate Harmless Error Analysis (Nov. 28, 2011).