Argument Preview: Fry v. Pliler on 3/20

The following argument preview was written by Erika Myers of the Stanford Supreme Court Litigation Clinic.

In the only case to be argued today, No. 06-5247, Fry v. Pliler, the Court will consider whether federal habeas proceedings should use the “harmless beyond a reasonable doubt” standard established by the Court in Chapman v. California or Brecht v. Abrahamson‘s “substantial and injurious effect” standard when there has been no harmless error analysis on direct review by state courts.

Victor S. Haltom, appointed by the Court, will argue on behalf of petitioner John Fry. Ross C. Moody, Deputy Attorney General, will argue on behalf of the State of California, while Assistant to the Solicitor General Patricia A. Millett will argue on behalf of the United States as an amicus in support of California. The parties’ briefs are available here; the brief of the United States is available here.

After two mistrials caused by jury deadlocks, John Fry was convicted in a California state court of first-degree murder and sentenced to life in prison. During this third trial for the execution-style killings of James and Cynthia Bell, the court excluded the testimony of a newly available defense witness, Pamela Maples, who claimed to have overheard “bits and pieces” of a conversation in which her cousin, Anthony Hurtz, admitted to committing a double murder matching that of the Bells. Although several other witnesses testified at the trial that Hurtz had confessed to the crime, Maples’s testimony would have been significant because she was the only unbiased witness. The judge declined to let the jury hear testimony from Maples, however, ruling that there was an insufficient basis for the jury to find that Hurtz was describing the Bell murders.

The California Court of Appeal affirmed Fry’s conviction, rejecting his claim that the exclusion of Maple’s testimony violated his Sixth and Fourteenth Amendment rights. Because the court concluded that the trial judge had not erred in excluding the testimony, it did not apply harmless error analysis. The California Supreme Court denied Fry’s petition for discretionary review.

Fry then sought federal habeas relief in the U.S. District Court for the Eastern District of California, which denied relief. Unlike the state court, the district court concluded that the exclusion of Maples’s testimony had violated Fry’s constitutional rights. It also found that, as required for habeas relief under Section 2254, the constitutional violation involved an unreasonable application of Supreme Court precedent. However, the court held, Fry had failed to meet his burden of persuasion under the Brecht harmless error standard: he had made an “insufficient showing” that the exclusion of Maples’s testimony had a “substantial and injurious effect on the jury’s verdict.” A divided panel of the Ninth Circuit affirmed the denial of habeas relief on the same grounds. Although it concluded that Maple’s testimony was reliable and “would have substantially bolstered” Fry’s defense, the Ninth Circuit held that the error was harmless under Brecht.

The Supreme Court granted certiorari to review the Ninth Circuit’s use of the Brecht harmless error standard in a federal habeas case, such as Fry’s, in which the state court did not conduct harmless error review. In Chapman v. California , the Court fashioned a general rule for determining whether constitutional errors are harmless, explaining that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” In Brecht v. Abrahamson, however, the Court ruled that Chapman does not apply in federal habeas corpus proceedings under Section 2254. Principles of federalism and comity, the Court held, require greater respect for state court rulings on constitutional errors in state trials. Brecht accordingly set out a standard easier for the states to meet: federal habeas review must hold state trial errors to be harmless unless they “had substantial and injurious effect or influence in determining the jury’s verdict.”

The circuits are currently split as to whether Brecht applies regardless of the harmless error standard used on direct review. The Eighth Circuit applies Brecht only when the state court used the Chapman standard, reasoning that the principles of federalism and comity on which Brecht depends are not in force unless the state attempts to protect federal rights by examining constitutional errors. In federal habeas cases such as Fry, however, in which the state courts did not apply the Chapman standard on direct review, the Eighth Circuit uses the Chapman standard instead. After expressing doubts as to the proper standard, the Ninth and Second Circuits joined the remaining circuits in holding that Brecht should apply on habeas review “regardless of the standard employed by the state courts.”

Fry argues that the Ninth Circuit incorrectly denied his right to have the prejudicial effect of the constitutional errors in his trial assessed under the Chapman standard. Applying the far less rigorous Brecht standard on habeas review when the error has never been assessed under Chapman does not, he contends, adequately protect defendants from erroneous convictions and infractions of their constitutional rights. Brecht was intended to prevent repetition in federal court of harmless error analysis already undertaken by the states; its reasoning does not apply when the state failed to recognize the constitutional error at all. Finally, pointing to the reliability of Maples’s testimony and the lengthy jury deliberations, Fry argues that the error in his trial was not harmless even under Brecht.

California argues that the Ninth Circuit correctly used the Brecht standard, which applies to federal habeas cases generally. Brecht’s deferential harmless error standard is in keeping with the “circumscribed and limited” nature of habeas review. While Brecht was intended to be the basic error standard for habeas cases, the rule Fry proposes would make it “a virtual nullity,” because state courts only rarely apply Chapman and find an error harmless. In any event, the Ninth Circuit correctly held that any error in Fry’s trial was harmless under Brecht. The case against Fry was substantial; several people testified that Fry had threatened to kill Cynthia Bell over drug debts, and that on the night of the murders he returned home with bloody clothes and confessed to the killings in graphic detail. Because Maples overheard only part of Hurtz’s conversation, her testimony was not reliable and would not have changed the jury’s verdict.

The United States, in support of California, argues that the reasoning in Brecht does not depend on the state court’s having conducted harmless error review, but is instead based on concerns – such as finality, state sovereignty, the historic purpose of habeas corpus, and the social costs accompanying the states’ need to retry defendants who obtain habeas relief – applicable to most federal habeas cases. Subsequent Supreme Court cases, including Penry v. Johnson, Calderon v. Coleman, and Boyde v. California have applied Brecht categorically to federal habeas cases. Finally, the rule Fry proposes would be difficult to administer, requiring federal courts to parse state court decisions and determine the specific standard applied.