Brecht v. Abrahamson

We recorded this episode and not like 12, 15 hours later, Calay dropped the Supreme Court

“decision that has basically put the final nail in the coffin of the Voting Rights Act.”

So just so you know, this episode is about Brecht, but our episode about Calay is coming out in two days. So stay tuned for that. Well here are you and now, a number 91-73-58, Todd A. Brecht versus Gordon A. Abramson. Hey everyone, this is Leon from Prologue Projects.

For today, Peter, Reannon and Michael are talking about Brecht V. Abramson. In the case from 1993, centered around the right to remain silence and the concept of harmless error. Todd Brecht was charged with murder for shooting his brother-in-law. During his trial, Brecht testified that the shooting had been an accident.

An explanation that prosecutors sought to undermine by pointing out the jury, and Brecht had

never shared it during the police investigation.

Brecht was found guilty and sentenced to life in prison. On appeal, he argued that the prosecution's reference to his silence, which famously

“cannot be used against even a court of law, violated his right to do process.”

Brecht ultimately filed a rid of habeas, and his case made it to Justice William Rangquist Supreme Court. In a 5-4 decision, the Justice is upheld a conviction, finding that the prosecution's conduct was, quote, "a harmless error." This is 5-4, a podcast about how much the Supreme Court sucks. Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have sedated our

civil rights, like my co-hosts, sedating himself. I'm Peter, I'm here with Rihanna. Hey. And Michael. Yeah, he's talking about me when I actually took my dog's things-aheady meds in the morning. Just like trying to get in a better routine of giving him, so like the day before I'd

forgotten to give him his meds, and then when I went out, he chewed on things, and I was like, "Can't forget to give him his meds today." So I take my morning meds, and I'm like, "Can I give the lambo his meds?" And I just, I open them, I'm like in fucking autopilot. It's like, you know, I just woken up, and I like open his meds, and I just like pop them in my mouth.

You know, I'm still carrying my glass of water for when I just took my meds. Take a sweet swallow one, but not the other, and I was like, "What the fuck am I doing?" And like spit the other out. But yeah, the one I swallowed was a sweet med that is like four times the strength of like normal human dosage sleep med, and I was, I was fucked up for like, for several hours.

I couldn't pass a field sobriety test. I couldn't walk a straight line, like for several months. My whole fly in during our prep call. Yeah. The best part of this was that the only reason we know about this is because Rihanna

was like, "Just checking in," and she was like, "How are you doing, Michael?" And Michael was like, "I took my dogs, pills," and she was like, "Michael, you haven't been as active in the in the text chat." I was like, "Yeah, that's because I've been stoned off my ass." [laughter]

And the dog is like, "I've been lit on dog pills, too." [laughter] [laughter] So boy, Michael, he, he was pitching ideas just a little looped on the dog pills. Yeah.

Yeah. It was like, "What if we talked about this?" [laughter] There is one point, Michael, where I said something, and you were like, "That's a good point to hit."

And I was like, "For a second, I was like, "Oh, cool.

Michael likes it." And then I was like, "On the other hand." [laughter] [laughter] Isn't that what he's talking about right now? Michael's fucking gone off that dog pill, dude. [laughter]

All right, this week's case, "Break to be Abram Sin." This is a case from 1993, about what happens when your constitutional rights are violated during your criminal trial. Specifically, we're going to talk about the concept of harmless error, where the court makes a mistake in your trial, but there's no recourse because the error is deemed to be harmless. In this case, a man was accused of murder, and in the course of the investigation, he invokes

and exercises his right to remain silent. That's in the constitution. It's in the constitution, folks. But then, at trial, the prosecution tries to use his silence against him, arguing that it implied that he is guilty, which you cannot generally do.

“You can't use someone's silence against them, right?”

That's part of what makes it a protected constitutional right. But the trial court lets it happen, and this guy has found guilty of murder. Then he petitions the federal courts to challenge the legitimacy of his trial. He's like, you violated my constitutional rights during the trial, right?

This makes its way to the Supreme Court, and they say that it's just harmless error. Yeah. No harm in violating your rights. Yeah.

“The court did violate your rights, but what harm was that, right?”

No harm no foul, right? Exactly. Exactly. That's like the holding of this case is no harm no foul. Let's get into the background and like what happened here, and actually I want to frame

it up by how the Supreme Court describes what happened in this case. The description of facts here is, sorry, insane. It is pure bad boy theory. Yeah, this is very good boy bad boy theory, which is a quick reminder since it's becoming a court part of we thought, good boy bad boy theories, the theory that conservatives will

treat different people differently in a scribe of them different rights based on whether or not they think they are a good boy or a bad boy is especially relevant in the criminal context. Right. So that is good boy bad boy theory.

We've talked a lot on previous episodes that have to do with crime, the rights of criminal defendants, definitely when like somebody has hurt, somebody has died, death penalty cases at the Supreme Court, they are going to try to make out the criminal defendant. They're going to try to make that person out to be a monster. That is a bad boy who has done bad things to good people.

And that is totally, totally on display here in this majority opinion, which is written by noted segregationist Justice Rennquist. Should we tell our listeners that bad boy theory has officially entered the mainstream

“of legal discourse in the Harvard Law Review on the last?”

Yeah. Well, are we cited? We are cited. We are cited multiple times. The title of this student note is I think bad boy jurisprudence.

Okay. Future Supreme Court justice there, am I? Yeah, they consulted with us about it last fall. Yeah. Oh, that's right.

That's right. I remember. Peter and I both gave guidance. Yeah, yeah. I did not respond to the email, which I only saw when they like reached out being like,

"Hey, look, we published the article today." I was like, "Oh, cool." And then I was like, "Wait.

I never actually did this right."

I talked to her. I talked to her about her ideas. Yeah. I looked back and I had ghosted them accidentally. In my defense, I've done this to great friends of mine.

I've done this to people I really care about. This is not-- It's not just--it's not just their lawsuit and Harvard. That's not why Peter didn't respond. I can't explain why as of now, but I'm not mad at myself.

I think it was funny. Yeah. So bad boy theory proliferating. It's spreading to the masses. Right here, you see an acute example.

“So here's how I would say the facts in this case, okay?”

I would say it like this. Thomas Brecht was living with his sister and her husband when he was arrested for shooting his brother-in-law, his sister's husband. Right. And important to note here, both of the facts of the case and for good boy, bad boy theory.

This wasn't any old brother-in-law, Brecht's brother-in-law was actually a district attorney. So maybe the ultimate good boy. Yeah. The goodest of good boys to the Supreme Court. Old and retriever.

Yeah. And so Brecht shot and killed his district attorney brother-in-law and of course gets charged. First degree murder, he's arrested.

And when he's arrested during the course of the investigation, he never makes a statement

to police. He didn't tell police what happened. He didn't tell anybody a story. He didn't confess nothing. He remained silent.

Then at his trial, he did take the stand and he testified in his own defense. And when he testified, he said, this was an accident. I didn't mean to shoot my sister's husband. I didn't mean to kill him. I did not intend to do this.

But the state at the trial, the prosecutor brings up in a couple of different ways that Brecht had never spoken to police before this that he had been silent up until this point. The prosecutor asks Brecht when he's on the stand, like, well, you haven't told this story before. And Brecht says, quote, I knew what happened.

I'm just telling it the way it happened. I didn't have a chance to talk to anyone. I didn't want to call somebody from a phone and give up my rights. So I didn't want to talk about it. No, sir.

Pretty clear, invocation. I used my Fifth Amendment right to stay silent, right? But the prosecutors bringing up the fact of his pretrial silence. It happens multiple times.

He brings it up when questioning Brecht a few different times that he never spoke about this

before. He never told anyone before. He didn't tell the cops that it was an accident when he had the chance. And then during closing argument, to the jury, the prosecutor says, quote, I know what I'd say, you know, had he been in Brecht's shoes.

I'd say, hold on.

This was an accident. Tell you what happened, but he didn't say that did he? No. He waited until he hears our story.

So prosecutor implying here, right, that the fact of Brecht's silence that he never

talked to police that he never essentially gave a run down of the facts to anybody. And that he never said that it was an accident before he took the stand that that implies that he's guilty.

“That's how I would tell the facts of this case.”

Now, let me as Reannon also say that this is wildly out of line for a prosecutor to do. You cannot use the fact of someone's exercise of their right to remain silent against them. You cannot imply that they must be guilty because they were silent up until a point. You cannot imply that they were silent as part of their own defense strategy.

You basically cannot reference that they were silent. If he didn't testify, you couldn't say, well, if he was innocent, he would have taken a stand and said so. No, no, no, no, no. It's also something that every prosecutor on earth knows and every judge knows, right?

Yes.

And like the judge is supposed to say, hey, hey, no, no, can't say that and then construct

the jury. Yes. They cannot take into consideration the defendant's silence. Right. That's what should happen.

Exactly. This is like so clear.

“Like this is maybe what like the most well-known constitutional right?”

You have the right to remain silent. This is well-known. So this is really, really egregious, prosecutorial behavior here. That's how I would tell the facts. And then of course, I've already added my own context of my viewpoint here, but that's

how I would tell the facts. Back to the case. Back to Renquest. Here's how Renquest starts this opinion. Petitioner Todd Brecht was serving time in a Georgia prison for felony theft when his

sister and her husband, Molly and Roger Hartman paid the restitution for Petitioner's crime, and assumed temporary custody of him. The Hartman's brought Petitioner home with them to Alma, Wisconsin, where he was to reside with them before entering a halfway house. This caused some tension in the Hartman household because Roger Hartman, a local district

attorney, disapproved of Petitioner's heavy drinking habits and homosexual orientation, not to mention his previous criminal exploits to mention. To make the best of the situation, though, the Hartman's told Petitioner, on more than one occasion that he was not to drink alcohol or engage in homosexual activities in their home.

Just one week after his arrival, however, Brecht violated this house rule. Cool. So this is, yeah, no, just normal facts, just normal. This is just a normal recitation of facts by the Supreme Court. By the way, he's a gay drunk.

Right. He's a gay criminal. Yeah, he's gay and a drunk, which I'm sorry, but you live in Wisconsin, what are we talking about here? You know what I mean?

The only guy I want to hang out with in Alma, Wisconsin, around this time. Yeah. Isn't it not hard enough? Imagine it's like the 80s and you're just a gay dude in Wisconsin, but I'm sorry, but hand me a beard.

No, it's horrible and by the way, rentquist is like just one week after his arrival, Petitioner violated this house rule, it's just that he drank. He didn't violate the quote unquote house rule about homosexual, like staying away from homosexual activity. That's just thrown in there because rentquist wants to do bad boy theory here.

He wants to make sure that you know how gross this guy is, of course, to rentquist. Exactly homosexual activity means sexual activity, but it's not specified. It could be anything, right? Just that he's gay.

“That's what rentquist is talking about here.”

How is that fucking relevant? How is that relevant to anything here? He adds in that the guy who was shot had to crawl to a neighbor's house to get help. It was at the neighbor's house that he died and by the way, he had to crawl to the neighbor's house because evil gay guy, Todd Brecht, had left the upstairs phone off the receiver.

So the guy who was shot couldn't call for help from downstairs, why are these details in here? This case is about constitutional violations that happened at trial. So there's the Supreme Court's rundown of the facts. There is more in the rundown of the facts about the allegations around the shooting and

how Todd Brecht acted afterwards and how he tried to get away from police than there is treatment in the facts of what happened at trial and the prosecutor using his silenced against him. So Brecht gets convicted.

He has found guilty of first degree murder and he appeals his conviction.

He says, what the fuck? This was a violation of my due process, right? My right to affair trial because my invoking of my Fifth Amendment rights was used against

It was used to show that I'm guilty. So the appellate court in Wisconsin agrees with him, says this was a violation of his constitutional rights, that error that happened was prejudicial. The jury was like, uh, was swayed by that, but the Wisconsin Supreme Court disagreed puts Brecht's conviction back in place and so Brecht is put in a position of now taking

things to federal court. He's appealing in federal court starts at the federal district court level and the lower district court agrees with Brecht again, but the Circuit Court of Appeals disagrees. This is getting bounced up and down the state court system, the federal court system.

“And so that's how we get to the Supreme Court.”

So legally, the heart of this case is really about a procedural standard. It's about what the standard is for harmless error. And harmless error is this idea that when the trial court makes a mistake, sometimes that mistake is harmless, didn't impact the verdict. And so we're just going to let it all stand, even though we all agree, there was a constitutional

violation, right, or at least potentially. So before this case, if there was a constitutional error made during a criminal trial, the conviction would be set aside unless it could be shown beyond a reasonable doubt that the error was harmless.

That's a very high bar, it basically means it needed to be almost certain that the error

did not impact the outcome of the trial. But here, they changed that standard, at least for habeas cases, habeas cases is when you petition a federal court to say, hey, my constitutional rights were potentially violated here. They say that instead, even if there's an error in your case, the verdict will be upheld

unless the error had a, quote, substantial and injurious effect on the verdict. So it's not like super clear what that means, right, substantial end injurious, whatever.

“Basically, it seems like they are just flipping the burden upside down, right?”

It used to be that if there was an error in your trial, you're probably going to get a new trial unless the error was really minor, super minor, but now it's on you to prove that the error was substantial, right? The burdens flipped, so they apply this new standard to this case. And again, what happened here was that this guy gets on the standard his trial and he says

the shooting was an accident. He had not brought this up before he had remained silent. And the prosecution tries to play that against him. They try to use it to undermine his credibility.

Renquist basically rests this on like a weird little technicality.

Technically, the prosecution is allowed to bring up the fact that he remained silent before he was read his Miranda rights. But they can't bring up the fact that he remained silent after, right? And Renquist basically says, well, at the end of the day, I doubt the jury would change their mind based on this, because they already knew he remained silent before the Miranda

warning. So whatever, right, to me, that's like, that's not, I don't find that very persuasive. I don't find that very persuasive.

“That's still using the fact of his silence post Miranda against him, right?”

Right. That, right. Like, there's no other way to say that. I mean, so first of all, I do think that if you follow this logic, Renquist is implying that prosecutors just don't have to respect this rule, right?

Exactly. Exactly. They can just bring up your silence and hold it against you without penalty in most situations, right? And that's really the whole analysis here.

He's just like, I think the jury would have come out the same way. So we're good. That's right. And that's that, right? He's just eyeballing the situation and saying, like, I don't think this would have

changed their mind, still guilty, right? That's it.

We'll talk about that in a second.

But that is like the whole analysis, right? The other thing to note here is that this new standard they created, like I mentioned, only applies to habeas cases. The old standard still applies to what are called direct appeals. Direct appeals are just traditional appeals, right?

I lost this case. Now I'm appealing it up to the next court. This is habeas, which is like, hey, this court over here violated my constitutional rights. Now I'm filing a new case in federal court challenging that, right?

It's a whole separate legal action. So there's an additional problem here, which is that this creates a weird imbalance, where if you appeal directly, the standard for harmless error is one thing. And if you challenge it with a habeas action, the standard is something else, right? So your constitutional rights are basically fluctuating based on how you appeal your constitutional

rights violation. To put that another way, like even if a court believes, like a habeas court believes that, you know, your direct appeal that judge misapplied the standard, they might still find that you don't get habeas relief because they have a different standard to apply, which is pretty crazy when you think about it, that they could look at it and be like, actually,

they got the law wrong, but I don't get to say that.

You know, Stevens, Justice Stevens, liberal lion, Justice Stevens provides the fifth vote here. Good job, buddy.

And he writes this concurrence basically being like, hey, look, yeah, we're giving a different

standard here and that's true, but the difference isn't as big as you think it is. And he's like, look, sometimes even on the, the old standard judges disagree, look, at this one case where, you know, the court came out one way, but some of the just, this is dissented on the same standard and we disagreed and so still judges have to apply their best opinion and guess what, that's going to vary anyway.

“And I'm just like, what the, what the fuck are you talking about, what does that mean?”

Like, oh, the judges can disagree on how a standard is applied. Therefore, the standard we use doesn't matter, like, right, who the burning is on whether it's on the prosecution or on the aggrieved party just doesn't matter. Like, that is, that's fucking nuts.

Like, that doesn't track at all.

Like, it makes no sense. It doesn't hang together. It just feels very, it feels like he was like drunk writing this, you know? Like, I'm like, what are you, what are you talking about, dude? Like, you took a dog pill.

Yeah, like he was dog pilled up. Dude took his dog's anxiety meds in wrote in opinion. So relatable, you know exactly the headspace. You can, you can really empathize with the man Michael. Maybe he was drunk, perhaps even engaging in homosexual activity.

No, this is like totally like, um, Supreme Court justice, like, technical process getting lost in the sauce brain. You know, like, very, like, well, the procedure over here could be like this. And the procedure over here could be like that. And differing minds, but still reasonable minds by disagree.

And it's just, wait, what, what was your point? Like, what, where did you get the message? Just nonsense. Sometimes when, when Libs sign on to a conservative opinion, and they know it, they want to do this like subconscious justification thing.

And so they write an opinion that's basically designed to be like, well, this is all

quite complicated. Yeah, yeah, yeah.

“Yeah, no, that's it. They just sort of like fade away and you're like, what was that?”

Right. That was in percent. Right. After all that throat clearing at the end, he's like, oh, and also by the way, I agree with, you know, the chief justice about why this error was, was harmless. And it's like, what it really comes down to is he's just like, yeah, this guy was guilty, though. You know, yeah, like, like, yeah, I think that's really what's happening here.

Stevens is just kind of like, come on, we all know this guy's guilty. Like, yeah, what are we doing here? And if you think about it even for one second, like, sure, maybe there was other evidence available, right? Uh, and you can't discount that. But if this guy is hanging his entire defense on, it was an accident. His credibility in his testimony is going to fucking matter. Exactly.

And so impeaching that credibility is an important tool in the prosecutors toolkit. And if they're violating the Constitution in order to impeach his credibility, that's a big deal. Like, that is like, from an actual trial perspective, that is a big deal. Like, impeaching his credibility is a big goal here. And the way they did it was by violating the Constitution,

you can't, you can't tell me that's harmless. Like, that's just, I don't buy it. I don't care if there's other evidence. It's not harmless. It's not harmless. There's a ton of other evidence. Goodman, other trial. Exactly. Any number. Go, go, go, go get the fucking conviction cleanly. Like, exactly. Exactly. And multiple of the lower courts, the, the, the, the appellate courts that agreed with

brec, right? Said, this is exactly it. Brec's credibility on the stand is compared to the rest

“of the evidence with which other courts said it's like not overwhelming. Wasn't that much?”

The defendants credibility on the stand is like, maybe the deciding thing that to, to the jury, you know, is dispositive one way or another is he believable. Would do we believe what he's saying that this was an accident? And multiple of the courts that agreed with brec, say, the prosecutor attacked this huge piece of evidence, his credibility, by violating his constitutional rights. Of course, this was important. How could this be harmless

error? This is the harm they're saying. The constitutional violation led to the conviction. Right. Ready, can draw straight line. Right. Exactly.

descents here. White says, basically, he's got concerns around the procedure. These new standards

“that the Supreme Court is coming up with in federal habeas. White says, hey, federal habeas,”

like the rate of habeas corpus, federal statutes that are about habeas and how federal habeas should work. These have existed for a very long time. And what this jurisprudence is doing and the decision today is making all of federal habeas a really confused patchwork. He says, in which different constitutional rights are treated according to their status. Right. So he's saying the same constitutional right is treated differently depending on whether you are going up on

direct appeal or you are making a collateral or or habeas appeal. Right. And so he's he's talking about how the Supreme Court here is fucking with decades old in fact centuries old legal framework in all of this patchwork, a ad hoc process way that's demeaning the right of habeas. Right. And demeaning the importance of habeas, which is that you have a method to go to court and to say, my freedom was taken away from me on the basis of constitutional violations. And the federal

court has to hear and decide about those constitutional violations. Right. So White is saying, hey, hold up, hold up what the majority is doing here today is slamming this totally off-kilter and creating very confusing and disparate standards all over the board that do not make sense and don't

“go towards ultimately the the most important purpose here, which is protecting the avenue of federal”

habeas. Yeah. Saturday of Connor also files a descent. She makes most of it about like judicial

restraint. She's basically saying like, this is an important right. We shouldn't be changing the

standard just because we think it fits a little better. Right. She's doing this like traditional conservative thing just saying courts shouldn't be tinkering with this stuff. Unless there's like a very specific reason. And we don't really have that here. It's just that rank list was like, oh, this would be better if we change the standard. Right. And she's like, I don't think that's enough. She also just doesn't like the idea of lowering the standard. She says quote by tolerating a

greater probability that an error with the potential to undermine verdict accuracy was harmful. The court increases the likelihood that a conviction will be preserved despite an error that actually affected the reliability of the trial, which is just like basic logic, but I do applaud her for getting there. Yeah. Apparently Steven's couldn't get there. Like yeah. It's like right. If you lower the standard, then like some cases will get through where it would have impacted the outcome.

Right. More cases will get through where it would have impacted the outcome. Yeah. It's just, it's very, it's very standard A.O. Connor. She had a phase where the way she talked was like everything was like an economic analysis. She's like, this will lower the probability. Yeah. This is a high cost versus yeah. Yeah. There was like seven years there where every opinion she wrote had a lot of this. I don't know what the fuck was going on. Some law and economic

stuff. Yeah. There are a couple other dissents, suitor and black men both right dissents that are like

“one line each. They're like, I agree with so and so. That's like an artifact of sort of time. I think we're”

going to bring that back. I think we should bring that back. Yeah. Where you just like chime in,

you're like, I agree. Yeah. Plus one. Yeah. Plus one. Yeah. Plus one. You don't always do it. It's like an

extra agree. It's like, you know, it's just like a little bit of emphasis. Oh 100 emoji on the text message. Let justice is have emoji react. Yes. I want to say a couple of things big picture about this harmless error idea. Like the whole concept is that sometimes the trial court will make a mistake. The violates your constitutional rights and then another court will analyze the mistake and try to determine whether it impacted the verdict, right? Try to determine whether it was harmless or not.

And the point of this is really just efficiency, right? They want to avoid having another trial every time there's an error, right? That would just be too much for the system to bear too much to expect the courts to respect your constitutional rights. Yeah. Come on. I'm just like I'm just not sure that the court doing this should even be considered constitutional because you have a constitutional right to trial by jury, right? And now you have the court essentially acting as the

jury, right? They're like trying to guess what the jury would have done in a different situation, right? Which means they're really just like pretending to be the jury and substituting their own judgment for the jury's. And I just think that whole framework robs you of your right to a trial by jury. Like we have the situation where there's been a mistake, everyone agrees that there's

And the court's like, okay, let me just pretend I'm the jury for a second. What would I have

done? Right? Like still guilty. Yeah. No, it's okay. We're fine. Like call me a stickler, but I don't think that should be allowed. That doesn't sound like you're actually getting a fair jury trial. Yeah. It interferes with the jury process both in the way you're describing and in the fact

“that like in the case of this instance on these facts, the jury is given improper instruction, right?”

The jury is not given the right information to consider. So it's sort of interfering with your jury trial rights twice over once by mis informing the jury. And then by just having some asshole eyeball it and be like, well, if I was the jury, right, you know, what's the difference between this and like they accidentally are like one juror short and no one notices until after the verdict, right? And like renquis comes in being like, come on. I think I think you would have

agreed with the others. Like what is preventing that from happening, right? And I think it's just so obviously fucking bullshit. It's such an obvious violation of your right to a jury trial. Right. Yeah. There's so many problems with this. I think and it brings up so many things that we've talked about before, especially about criminal cases at the Supreme Court. Like I'm really like still stuck on like the guy's gay. Did you know he's gay? Do you know he's gay and he shot

somebody? He's gay and they told him not to be gay. But he was like it's such a tell where their politics are and how they feel about people that they believe are less than them. People that they believe are gross or monsters or inherently violent and who should be locked up. This whole case just reeks of that is dripping with that that it's going to be so results oriented. We're going to create a standard where we're talking about something like where we're deciding that a constitutional

violation did not harm this person did not prevent them from getting a fair trial, violated the constitutional rights multiple times in different ways because we hate this person. We believe

“the law should be weaponized against them. We're going to use our power to do that, right?”

Todd Brecht, that Rennquist thinks should be in prison for life if not given the death penalty of thinking like Rennquist thinks. So nothing, no constitutional violation for a Rennquist is going to be actually harmful. It's going to be something that like rises to the level of something that Rennquist loses sleep over or just fucking cares about for five minutes. You know and that it's just like all up and down this case through and through whether it's the way

they're talking about this person in the beginning when they're running down the facts which fuck you Stevens and anybody else like Stevens joins the opinion, right? And like whatever that's like the most evil thing but when justices can occur they can like say like what sections they're

like agreeing with and stuff like this first section is fucking disgusting. It's it's really gross

“and like a homophobic and just nasty and Stevens like this lib is signing on to this and so yeah”

it's just such a tell on how they feel about people who they think are like deserving of ostracization or deserving of isolation or deserving of the might the full power of state violence being used against them and it doesn't matter to them that their constitutional rights were violated along the way you know yeah imagine being a gay dude in the A's in Wisconsin forced to live with your district attorney brother-in-law right it just lectured every single day

about what you're doing and what you're not doing you better not keep a gun in the house you do that to me you know and then the brother-in-law gets painted like his brother who's a district attorney but who paid restitution for him to get him out of prison now the whole thing is look at this deviant felon drunk yeah who doesn't even appreciate his upstanding district attorney brother-in-law helped pay to get him out of prison in shot-up yes that's that's Barry this guy under the prison right

there's another district attorney we should be focusing on the one who violated this man's constitutional rights yeah exactly exactly that's like actually that's actually the issue here also I want to I do want to say we talk about this all the time like your constitutional rights to the extent they are protected by case law it is usually by people who have done something bad or at least likely done something bad who have been alleged to have done something very bad right

like that is these cases always have facts like this like that's always that's yeah

like something happened someone was involved and there was a constant by somebody died it's horrible

“it's always like this so yeah so fuck off right like that's it doesn't matter like what matters”

is was whether the constitution that protects all of us protected this guy as well here right yeah and we would be remiss if we didn't talk about the way that harmless error affects and is a huge part of death penalty cases particularly when on habeas review justices are looking at the constitutional violations that are alleged to have happened in a defendants case and that person was sentenced to death and in habeas review over and over and over again all of the time

judges are saying those constitutional violations were harmless and this death sentence still stands

there was a study reported on in the appeal a few years ago a study of death penalty appeals in the state of California that study found that during a 10 year period roughly 90% of death sentences that were imposed by trial courts were upheld on appeal even though nearly 75% were infected by constitutional error there was constitutional violations in 75% of the cases that were upheld on appeal death cases the real problem here that all of this is meant to skirt around

is that no one knows how to go out actual justice efficiently so they've opted for just

“maximum brutality right they opted to sacrifice justice for efficiency yeah and that's what gets us”

here right they don't know how to conduct a full trial and and grant someone their constitutional

rights effectively they don't know how to do it they can't do it at scale that is like running under a huge amount of jurisprudence at the Supreme Court especially in these cases and that's why they come up with this doctrine like that it's okay harmless error harmless harmless it's just a way to skirt around the fact that they don't know how to effectively do allow justice they don't know how to do it there aren't enough resources put into it yeah and just

you know to put this in more of a historical context right we're talking about through the 70s Nixon's war on crime we're talking about the boom in death sentences in the 70s in the 80s and by that time we're out of the war in court war in court has you know done some land mark very important cases to try and protect defendants uh constitutional rights in criminal cases but then you have burger court and you have the renquist court and they're not protecting those

rights anymore right instead they are changing the consequences of unconstitutional trials of constitutional violations they're tinkering with all of that so that the mass incarceration is death machine it's just like full steam ahead you know i i recently watched the Shawshank Redemption which is a phenomenal movie beloved movie so beloved it's been the number one rated movie on IMDB for like over a decade straight like this is americans love this fucking movie

people love this movie it was panned when it came out in the in the early 90s critics fucking hated it and it did really poorly and do you know why you can read the reviews because it humanized prisoners that was that was that was the culture in the 80s and 90s is like oh this fucking movie was you to feel bad for prisoners oh my god fuck this movie that was the tenor of reviews around this beloved movie that's the culture in which to understand

in opinion like this and statistics like that it's the culture of like fuck these people like well we're supposed to do another trial just because we violated the constitutional rights come up for this guy no no way yeah handy to friend who is gay the one a new trial for a gay man oh you escape to Mexico with your friend the guy who played opera for all the prisoners oh come on okay but but did he kill his wife or he allegedly he killed those at the wife or the

“or the boyfriend it both okay okay but he did not kill either double homicide that's how hard”

it was to be gay back in like the 30s or whenever it was said you had to kill your wife and her boyfriend and then escape prison with your lover so harmless error clearly has

difficult it is to get to the point that the procedural posture in a case where you're even in federal court on your habeas case there are so many burdens to even getting here so to get into federal court on a criminal appeal you're you're trying to get your conviction

“overturned if you were convicted if you were prosecuted in state court first you have to go”

through all of the appeals in state court first you have to exhaust all of your appeals so you

would go through direct appeal in state court some states have separate state habeas proceedings that you would have to go through and by the way every time you appeal in an every case you have to make sure that you don't miss you have to bring up every violation that you're going to bring up every argument you've got you have to say at every step what that means in practice by the way is like if you were constitutional rights are violated at your trial and then you

appeal and you don't bring that issue up right it's deemed waved in most cases right you've just waved it even though your rights are violated you can't bring it up later you had your chance

that's it exactly another another rule that's basically all about like efficiency or something

no and courts will say you don't get to buy to the apple like this this is the legal justification for having these rules that's a great metaphor by the way you get to buy to every single other apple in this world but yeah in what real world situation are you actually limited to one bite at the apple that's not that's not realistic are producer just put in the chat apples are literally like twenty bites yeah every single one of them yeah that's just what you say to someone

that you're like abusing like you only get one bite at the apple because you those videos of it's like straight couples same more they will be having dinner at the at the like woman's

family's house and the woman will like turn to her partner her boyfriend or her husband or whatever

and be like are you happy like I didn't eat a lot I I only had I only have two bites you're proud of me right like just like as a prank you're like right can I can I have seconds like as a prank like in front of her family she's acting like her partner doesn't let her eat oh like anyways I don't know if that's funny or not um but she's great she's a great gag if you hate men

“anyways so you have to have exhausted every opportunity you have to challenge your conviction”

on every possible grounds that you might have in order to even knock on the door of federal habeas court in order to file that writ of habeas corpus and have a federal court here what are your federal constitutional claims it is a massive burden and then on top of that we talked about federal habeas a bunch of times on this podcast all of the various mechanisms procedural burdens procedural techniques tactics to get thrown out of court that the Supreme Court has invented

and imposed on federal habeas and here you you just have a huge one you have a huge one it's really hard to like describe how harmless error review permeates through all of criminal law all criminal defendants and especially I think you just see how acute how acutely unjust it is on death penalty cases yeah there's a situation in Florida like a decade ago where like 100 something uh people were going to have their sentences reevaluated and courts just addressed that

by saying that they were like all harmless error yeah dead sentence cases yeah a lot of the problem there was that they had um they had a non-unitemous jury rule right so you could convict someone on like a ten to two right you didn't need every juror and so and so the concern was well do we actually need in order to protect their rights to to have a unanimous jury rule right and then courts reevaluating those and saying well it's harmless error this one was ten to two it needs

to be unanimous harmless error which I earlier I made the joke about the missing juror but that

“actually is what happened that's literally yeah yeah yeah in 170 I think right something like that”

yeah yeah something like that same number so before we go our our producer has asked like what is an example of an actually harmless error in opinion I think at the end of the day if it's a constitutional violation it's hard for me to imagine that it could be harmless right you can imagine a super minor one in certain context but I'm not sure that anything comes to mind harmless error

prosecutor accidentally says hi to you in the hallway not realizing that you're the defendant

“right maybe that could be a harmless error something like that those are my examples I mean”

basically harmless would be like it was fixed so there wasn't like like the judge read a paragraph

of right the wrong jury instructions but then said oh it's not these instructions I've

“given you the correct instruction right like yeah but then I wouldn't even consider that error”

necessarily right because it's not sponsored by the judge it's not exactly like the prosecutor saying

that uh is not error the judge failing to uh realize it and instruct the jury is the error right

“folks next episode dropping in just a couple of days Louisiana be Calay about the demolition”

the continued demolition of the voting rights act by this court call us on social media add five four pod subscribe to our patreon patreon dot com slash five four pod all spelled out for access to premium and add free episodes special events are slack all sorts of shit seeing a couple days by y'all five to four is presented by pro log projects this episode was produced by Alison Rogers the on nafoc provides editorial support our website was designed by

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