From Colin Miller at EvidenceProf Blog, via Grits for Breakfast, a spectacular example of how two words, harmless error, can be used to make all the rules designed to provide a fair trial disappear in a snap. The case comes from the Beneficent Republic of Texas, as does so many of our most interesting appellate rulings, in Aguilar v. State from the 14th Court of Appeals in Houston. I note Houston, because when things happen in Dallas, Texans respond, “Well, sure, that’s Dallas. What do you expect?”
Though a series of rather bizarre evidentiary twists and turns, the prosecution is permitted to call a witness, Mancias, who they claim heard the defendant confess and provided that information to police, but claimed at a hearing outside the presence of the jury that he had no recollection of it ever happening, for the sole purpose of impeaching him and using him to introduce hearsay evidence of the third hand confession. It was an evidentiary mess.
After sorting it out (do they know about Crawford in Texas?), and concluding that this should never have been permitted, the Court held that the State should
free Aguilar immediately, apologize to him profusely, and consider placing a statue of him outside the courthouse get a free pass for this farcical trial. Why? Well, he did confess, didn’t he?
No, it wasn’t done so overtly. Instead, the Court employed one of the two weapons it keeps hidden away in its bag of tricks to be pulled out when all else fails: Harmless error.
So, Aguilar won his appeal, right? Well, actually, the Court of Appeals found the trial court’s error to be harmless. And how did it reach this conclusion?
“At trial, Luhan testified that [Aguilar] shot him. Further, Officer David Wiese, an officer who responded to the scene of the shooting, testified that he asked Luhan who shot him and Luhan identified [Aguilar]. Therefore, the court admitted the only damaging evidence from Mancias’ statement, that appellant shot Luhan, through other sources. Because the same evidence was admitted without objection, the error is harmless.”
So there’s no confusion, as law students sometimes read these posts and demonstrate by their comments that they were not paying attention in first year evidence, the relative weight of a confession surpasses everything else at trial. There is nothing, nothing, more damning. Eyewitness identifications are hard to attack, but it can be done. Declarations to police officers are of the same caliber, if not a bit easier. But a confession is conclusive. A confession can’t be attacked, except by the testimony of the defendant himself, which means that he must give up his right not to testify, usually a very unwise choice under normal circumstances.
To compare the introduction of a confession to the victim’s account is, in real trial terms, utterly ludicrous. But with the invocation of those two most nasty and despicable words, harmless error, the appeals court can rule in Wonderland where a blink and a phrase makes everything bad go away. This wasn’t the “same evidence,” unless the judges of the court have never tried a case and exist in some theoretical world where all evidence carries the same weight and impact.
Or perhaps we can just chalk up this decision to an instance of an appellate court deciding that, although the trial deeply flawed, the defendant was guilty and needed to be put away. We don’t need no stinkin’ rules.