In a per curiam opinion, the Court today dismissed the petition for certiorari in Vasquez v. United States as improvidently granted. Most likely, the dismissal was due to the fact that at the oral argument on March 21, the parties had difficulty explaining the difference between their respective interpretations of the harmless error rule, and the Court concluded that the case had devolved into a fact-bound dispute over whether the Seventh Circuit had properly applied the standard to the facts of the case.
In my report on the oral argument, I noted that the Court was concerned about the apparent lack of conflict between Vasquez and the government. The only clear point of contention came from Vasquez’s argument that a reviewing court should try to determine how a trial error affected the jury that actually evaluated the trial; the government instead argued that appellate courts should review the error through the eyes of a hypothetical, objective, reasonable jury. Despite that difference in the parties’ positions, the Court dismissed the case, perhaps because it was not clear which standard the Seventh Circuit had applied (the court was not explicit either way), and it was not clear whether the result would have been different if the court below had applied Vasquez’s standard.
The dismissal is still somewhat surprising, however, because there is something to this issue. As Justice Kagan noted at oral argument, courts use varying formulations of the harmless error rule – some focus on whether the defendant is likely guilty, while others focus more on the effect that an error might have had on the deliberative process – and the different formulations correlate with different results. The courts that focus on guilt tend to find that errors are harmless, and the courts that focus on the error tend to remand for more new trials. Consequently, the Supreme Court could potentially add significant value by announcing a single formulation of the rule. That issue remains live for a future case.
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