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Processing of habeas cases will be aided by a systematic approach. The first question is the exhaustion/default question. Was the issue fairly presented to the state courts, and, if not, is the time to present it past? These questions are normally addressed first. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997). However, Congress has authorized bypassing the exhaustion issue when the claim can be denied, but not granted, on the merits. See 28 U.S.C. § 2254(b)(2). This bypass is efficient for claims of doubtful exhaustion but clear meritlessness. See also Lambrix at 525 (same for procedural default).
For claims arguably barred by the rule of Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality), the Supreme Court has said that the Teague question is a "threshold question," to be resolved before the "merits." See Caspari v. Bohlen, 510 U.S. 383, 389 (1994). If the claim is Teague-barred, the habeas court does not reach the merits, because to do so would be an advisory opinion. See Teague, 489 U.S. at 316.
The same answer follows from the closest analogue of the § 2254(d)(1) rule--the doctrine of law of the case. In both law of the case and § 2254(d)(1), a court is presented with an issue previously decided by a court of competent jurisdiction, but that decision is not res judicata, not a mandate of a higher court, and not a decision of a "lower" court in the appellate sense of one whose decision is reviewed de novo. Law of the case applies to the decisions of the same court or coordinate courts, see Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 816 (1988), and state courts are coordinate in this sense. See Kline v. Burke Construction Co., 260 U.S. 226, 235 (1922); Sawyer v. Smith, 497 U.S. 227, 241 (1990) ("coequal parts of our national judicial system"). "Under [the law of the case] doctrine, a court should not reopen issues decided in earlier stages of the same litigation." Agostini v. Felton, 521 U.S. 203, 236 (1997) (emphasis added). The exception for clearly erroneous judgments does not, in most cases, require a definitive resolution of the underlying question. Once a court finds that a coordinate court's prior resolution of the question is plausible, its inquiry is finished. Christianson, 486 U.S. at 819.
This approach will advance the efficiency Congress sought with no loss to the rights of habeas petitioners. If relief is barred by § 2254(d)(1), Teague, or both, the petitioner gains nothing of substance from a resolution of the underlying question.
In the qualified immunity cases, the Supreme Court has indicated that courts should decide first whether the plaintiff has alleged a constitutional violation before proceeding to the immunity question. See Siegert v. Gilley, 500 U.S. 226, 232 (1991). However, if we look beneath the surface of the Siegert rule to its rationale, we see that the rationale points in the opposite direction when applied to § 2254(d)(1). In immunity cases, the underlying constitutional question is typically a "purely legal question," ibid., resolvable on the pleadings, while the immunity question often involves application of that law to facts. See, e.g., Anderson v. Creighton, 483 U.S. 635, 640-641 (1987). Since no court has yet adjudicated the facts, only purely legal questions can typically be decided without discovery, and the purpose of deciding them first is "expeditiously to weed out suits which fail the test," avoiding "expensive and time consuming preparation." Siegert, 500 U.S. at 232.
Cases under § 2254(d)(1) are different. By definition, they are cases already decided on the merits by another court. If factual determinations are necessary, they have already been made. There is no efficiency advantage to resolving the underlying question first. Just the opposite is true. Deciding that a question is close is far easier than deciding a close question.
Tran v. Lindsey, 212 F.3d 1143, 1154-1155 (9th Cir. 2000)(2) is contrary, but not persuasive. Tran refers to a pre-Williams case where the Supreme Court decided the merits, id. at 1155, but obviously the Court could not decide based on the § 2254(d)(1) standard at the very time it was wrestling with defining that standard. Tran also makes a superficial analogy to the qualified immunity cases, ibid., but as we have already explained, the rationale of those cases actually points the other way. Tran simply ignores the closer analogies of Teague and law of the case, even though it finds law of the case analogous for another aspect of the statute. Cf. id. at 1153 and n. 14.
Tran further claims that resolution of the underlying question is valuable to provide "guidance" to the state courts. Id. at 1155. The present case illustrates the minimal value of such "guidance." There is plenty of case law on the point already. See Part IV, infra. A precedent of this Court would simply add one more case to the list of nonbinding authority. While a well-reasoned opinion has value, amicus submits that it can and should wait for a case where the outcome actually requires resolution of the constitutional question. See Liverpool, New York and Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885). The court should decide first whether the rule petitioner seeks to apply is "clearly established Federal law, as determined by the Supreme Court of the United States." If the answer is no, the case is over.
The Michigan Court of Appeals' holding that violations of the defendant's right to testify are subject to harmless error analysis is neither contrary to Supreme Court precedent nor an unreasonable application of the high court's cases. Although there is no clear command from the Supreme Court on this issue, the relevant precedents strongly support the Michigan court's decision. This is reflected in the overwhelming support found in other jurisdictions for holding right to testify violations amenable to harmless error analysis. Finally, the state court's harmless error finding is reasonable in light of the compelling evidence of guilt.
No Supreme Court case governs the present controversy with the clarity that Strickland v. Washington, 466 U.S. 668 (1984) had in the underlying dispute in Terry Williams v. Taylor, 529 U.S. __, 146 L.Ed.2d 389, 120 S. Ct. 1495 (2000). The relevant cases, while not directly endorsing the state court's position, are far more favorable to the Michigan court's position than to the District Court's. Once the analysis is focused on the most relevant precedent, the law of harmless error, the strength of that decision becomes apparent.
The governing principle in harmless error cases is "that while there are some errors to which Chapman [v. California, 386 U.S. 18 (1967)] does not apply, they are the exception and not the rule." Rose v. Clark, 478 U.S. 570, 578 (1986). Therefore,
"if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis." Id. at 579 (emphasis added).
Absent a Supreme Court precedent holding that a violation of the right to testify is reversible per se, applying Chapman v. California, 386 U.S. 18 (1967) to such a violation simply is not "contrary to . . . clearly established federal law as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Michigan court only followed the Supreme Court's "strong presumption" when it applied Chapman to the right to testify. That decision should not be second-guessed on federal habeas corpus.
The nature of the right to testify provides no reason to create an exception to Chapman. The Supreme Court labels the class of errors not subject to harmless error analysis as "structural defects in the constitution of the trial mechanism . . . . " Arizona v. Fulminante, 499 U.S. 279, 309 (1991). These errors are reversible per se because "they defy analysis by 'harmless-error' standards." Ibid. They are deemed structural not because the rights are more fundamental than others, but because analyzing them for harmless error makes no sense. In the two classic examples of structural error, the complete denial of counsel and the biased judge, the odds are so heavily stacked against the defendant that the
"criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair." Rose, 478 U.S. at 577-578 (citation omitted).
Other per se reversible errors, such as excluding members of the defendant's race from the grand jury or violating the right to public trial, see Fulminante, 499 U.S. at 310, address matters outside the guilt determination. If an error has no effect on the guilt verdict, harmless error analysis is impossible.
"Each of these constitutional deprivations is a similar structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." Ibid.
The right to self-representation thus is never harmless because it is outside the guilt determination. Violations of Faretta v. California, 422 U.S. 806 (1975) must never be harmless, because any other result would eviscerate the right.
"Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to harmless error analysis. The right is either respected or denied; its deprivation cannot be harmless." McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8 (1984).
Faretta's importance relative to other rights is immaterial to this point.
In contrast to the self-inflicted harm of the Faretta right, the right to testify advances the trial's truthfinding function. "In fact, the most important witness for the defense in many criminal cases is the defendant himself." Rock v. Arkansas, 483 U.S. 44, 52 (1987). Although defendant's control over the decision to testify is an important component of the right, see ibid., it still centers on the admissibility of a piece of evidence: the defendant's testimony. Improperly omitting evidence is not an unmeasurable, "structural" defect that inevitably invalidates the entire trial. Evidence, whether improperly excluded or admitted, can be measured against the properly admitted evidence.(3) If, after the weighing is done,
"a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed." Rose, 478 U.S. at 579.
It is true that the government may have considerable difficulties in sustaining its burden under Chapman in those cases where there is no record of the defendant's proposed testimony. Cf. Luce v. United States, 469 U.S. 38, 42 (1984) ("the appellate court could not logically term 'harmless' an error that presumptively kept the defendant from testifying"). Such problems do not place the right to testify beyond harmless error analysis, however. See Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991) (applying harmless error analysis in spite of difficulties created by missing testimony).
The fact that it may be difficult for the prosecution to prove a particular error harmless does not transform it into a structural error. See Fulminante, 499 U.S. at 312. Furthermore, the missing testimony problem can be dealt with by the defendant giving an offer of proof concerning the proposed testimony. In Crane v. Kentucky, 476 U.S. 683 (1986), the defendant attempted to discredit his custodial confession at trial through testimony about the conditions under which the confession was made. See id. at 685-686. The trial court prevented the defense from introducing such evidence, but the defendant was allowed to "develop a record of the evidence he would have put before the jury were it not for the court's evidentiary ruling." Id. at 686. Even though the constitutional violation involved suppressing testimony, it was subject to harmless error analysis. See id. at 691. Since the effect of omitting testimony on the trial is measurable, it is not structural.
The District Court reasoned that, because the right to testify is somehow more fundamental than the Faretta right, it too can never be harmless. See Solomon v. Curtis, No. 98-73867, typed opn. at 5-6 (E.D. Mich. May 26, 2000). This logic is based upon a false premise. The exceptions to Chapman's general rule are not made on the basis of the right's relative importance, but on whether the right can be analyzed for harmless error. See supra pp. 17-18. Thus, even though the self-incrimination privilege "is a fundamental trial right of criminal defendants," United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990), it is subject to harmless error analysis because it deals with the improper admission of evidence, the type of trial error that is amenable to harmless error analysis. See Fulminante, 499 U.S. at 310. On the other hand, the grand jury is so far from a fundamental requirement that states may dispense with them altogether. See Hurtado v. California, 110 U.S. 516, 538 (1884). Yet race-based exclusion of grand jurors is not susceptible to harmless error analysis, see Fulminante, at 310, because the racial composition of the grand jury has no influence on the petit jury's final verdict.
Since a violation of the right to testify is an evidentiary, trial error whose effect on the verdict can be evaluated by a reviewing court, this right does not fit Fulminante's definition of structural error. Given the Supreme Court's presumption that constitutional errors are susceptible to harmless error analysis, the Michigan court's opinion in this case did not contradict clear United States Supreme Court precedent.
The application of the harmless error rule to violations of the right to testify in other jurisdictions strengthens the argument that the Michigan court did not contradict Supreme Court precedent. Many courts have applied harmless error analysis to violations of the right to testify. See, e.g., Wright v. Estelle, 549 F.2d 971, 974 (5th Cir. 1977); Ortega v. O'Leary, 843 F.2d 258, 262 (7th Cir. 1988); Martinez v. Ylst, 951 F.2d at 1157; United States v. Teague, 908 F.2d 752, 760 (11th Cir. 1990); LaVigne v. State, 812 P.2d 217, 222 (Alaska 1991); Tachibana v. State, 900 P.2d 1293, 1307 (Haw. 1995); People v. Johnson, 62 Cal.App.4th 608, 636, 72 Cal.Rptr.2d 805, 821 (1998); People v. Hayes, 229 Cal.App.3d 1226, 1234 n. 11, 280 Cal.Rptr. 578, 583 n. 11 (1991) (dicta); State v. Robinson, 947 P.2d 1257, 1261 n. 9 (Wash. App. 1997) (defendant must show prejudice to revoke after trial his waiver of the right to testify). Similarly, some courts have applied the prejudice standard of Strickland v. Washington, 466 U.S. 668, 694 (1984) to cases where defense counsel kept the defendant from testifying. See, e.g., United States v. Tavares, 100 F.3d 995, 998 (D.C. Cir. 1996); Commissioner of Correction v. Rodriquez, 610 A.2d 631, 636 (Conn. 1992); State v. Flynn, 527 N.W.2d 343, 353 (Wis. App. 1994). While the Strickland standard differs from Chapman in the level of proof needed to affirm the conviction, "the two inquiries are conceptually similar." Flynn, 527 N.W.2d at 352. Like the harmless error cases, these decisions demonstrate that the effect of the defendant not testifying can be measured and weighed against the evidence admitted at trial. See id. at 353 n. 10.
A handful of cases stand against this tide of authority. The cases, usually decided before Fulminante, typically involve no more analysis than a summary statement that the right is too important to be subjected to harmless error analysis. See State v. Rosillo, 281 N.W.2d 877, 879 (Minn. 1979) (dicta); Commonwealth v. Siciliano, 471 N.E.2d 1359, 1361 (Mass. App. 1984); State v. Blewett, 853 S.W.2d 455, 461 (Mo. App. 1993); People v. Harris, 191 Cal.App.3d 819, 826, 236 Cal.Rptr. 680, 684 (1987); Boyd v. United States, 586 A.2d 670, 677-678 (D.C. App. 1991). The little analytical depth on this side is provided by two district court opinions, one of which was summarily reversed by the Eleventh Circuit. See United States v. Butts, 630 F.Supp. 1145, 1148-1149 (D. Me. 1986) (applying Strickland's prejudice test); Hernandez v. Dugger, 829 F.Supp. 372, 376 (M.D. Fla. 1992), rev'd, Hernandez v. Singletary, 41 F.3d 668 (11th Cir. 1994) (Table). By contrast, many of the decisions supporting harmless error show much greater depth and more thorough reasoning. See, e.g., Tavares, 100 F.3d at 998; Martinez, 951 F.2d at 1157; LaVigne, 812 P.2d at 220-222; Johnson, 62 Cal.App.4th at 634-636, 72 Cal.Rptr.2d at 820-822; Flynn, 527 N.W.2d at 352-353.
The weight of authority should overwhelmingly favor finding the right to testify amenable to harmless error, because the Supreme Court precedents so strongly favor that position. See supra Part IV.A. Although not dispositive, the great weight of authority favoring harmless error analysis reinforces the reasonableness of the Michigan court's decision to follow the trend. See supra at 10-11. That decision therefore neither contradicts nor unreasonably extends Supreme Court precedent.
The rule of law applied by the state court, that the error in this case is governed by the Chapman standard, is not "contrary to . . . clearly established Federal law . . . . " The only remaining question is whether the state court's application of Chapman to the facts of the individual case was reasonable. This point is definitively presented in respondent's brief and requires no further argument here.
The decision of the District Court should be reversed.
September 19, 2000
Respectfully submitted,
Kent S. Scheidegger*
Charles L. Hobson
*Counsel of Record
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2. The Federal Reporter captions this case Van Tran v. Lindsey, including Tuan Van Tran's middle name. No reason for this is apparent. We don't
cite "Earl Gideon v. Wainwright."
3. In other contexts, courts routinely weigh the effect of the improper suppression of evidence. See, e.g., United States v. Bagley, 473 U.S. 667,
678 (1985).