What sort of deep, ponderous, existential thought gets a lawprof’s juices flowing and his tenure committee all excited?  Beats me. But it doesn’t concern crimlaw prof and Marquette dean Michael O’Hear, who readily acknowledges that his  PrawfsBlawg post isn’t likely to make his fellow scholars rip off clothes and dance in the hallways.

At the risk of not being invited back, I’ll start with a post on harmless error — a terminally unsexy topic that nonetheless is much on my mind as I prepare to teach Post-Conviction Remedies next semester.

What makes this particularly noteworthy is its  direct contrast to fellow Marquette lawprof David Papke, who penned the infamous words, “We don’t want law school to be lawyer-training school.”  While I expect O’Hear to be joking about not being asked back, it’s hardly outside the realm of possibility after posting about such a “terminaly unsexy topic” as harmless error.  So what if its at the heart of so many adverse rulings? Boring-o.

The post discusses the issue framed in Vasquez v. United States, the Supremes having granted cert because it squarely lays out, finally, a possible distinction between the two ways of framing the question of how to define harmless error.  Given the unbearably nuanced rhetorical difference, it’s a rare case that would provide a solid basis for the Big Nine to decide between the two competing explanations.

Here are the (allegedly) competing standards.  On the one hand, there is the standard from  United States v. Chapman, 386 U.S. 16, 22 (1967): “[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”  On the other, there is the “overwhelming evidence of guilt” standard from  Schneble v. Florida, 405 U.S. 427, 430 (1972): “[i]n some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the [erroneously admitted evidence] is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the [evidence] was harmless error.”

While the Chapman and Schneble standards seem to be little more than opposite sides of the same coin, and in many instances offer a difference without a distinction, O’Hear tries to offer a reason why this matters:

Admittedly, it requires some effort to see a difference between the standards, but I think the formulations do indeed suggest two distinct ways of performing the analysis, at least at a conceptual level.  The first standard invites an assessment of what actually happened at trial and what the jury’s actual views of the case were.  The second standard invites more of an independent assessment by the appellate court of the strength of the government’s case.

In practice, though, I suspect that the distinction between the two standards collapses in most cases.

I suspect that O’Hear’s explanation of the distinction between the two standards is not a whole lot less obtuse than the standards themselves.  The reason is that it comports with the differences between the majority and dissent in Vasquez, with the majority going with the “overwhelming evidence of guilt” standard and the dissent arguing that the improperly admitted evidence contributed to the conviction. 

O’Hear provides a lengthy description of the case, and the respective rationales of the 7th Circuit panel, all of whom agreed that the trial judge erred in allowing rebuttal evidence of a telephone call between the defendant and his wife, discussing his lawyer’s advice to plead guilty as he would likely at trial.  That must have stung a bit as the defense lawyer stood up for summation.

Pro-tip: Prison calls are recorded. When you talk about what the lawyer said, that too is recorded. It may be accurate. It may be completely false. It doesn’t matter. It’s recorded, and everybody is going to believe that it’s accurate.  And now that you’ve talked about it, and they’ve recorded it, everybody knows about it.

After parsing the majority and dissent, with somewhat overly-detailed reliance on the particulars of the Vasquez case, O’Hear concludes:

Our normal approach is to handle jury verdicts in a highly formalistic way: a guilty verdict is a guilty verdict is a guilty verdict, and we rarely recognize the possibility that deliberations may fall short of the rational, conscientious ideal.  (The prejudice test from  Strickland is a good example, expressly removing from consideration the possibility of an idiosyncratic jury.)  The “overwhelming evidence” test seems most consistent with this jurisprudential tradition; it avoids any exploration of the “sausage-making” that takes place in the jury room, and treats juries as so uniform and predictable in their operation that an appellate panel can readily stand in for a jury without any need to consider evidence of the inclinations of the actual jury.  To be sure, though, as Vasquez points out, it is not easy to reconcile this approach with the Sixth Amendment guarantee of a jury trial.

That this analysis seems to uncritically accept the legal fiction that juries are rational, noting that we wouldn’t want to explore their “sausage-making” except that we do precisely that when we presume their minds to be cogent and their hearts to be pure. 

I might explain the distinction in a somewhat different way, that we, lawyers, judges and even the occasional lawprof, argue at great length, and with enormous vigor, the rules by which trials happen in order to obtain half a chance for a defendant to fairly defend himself.  The Schneble standard, overwhelming evidence, is best described as “no harm, no foul.”  Ignore some or all of the rules developed to provide a fair trial and, well, so what? He’s guilty, and who cares if the court blew it,  It reduces a trial to a post hoc farce, where the absence of fairness, or playing by the rules, is rendered meaningless in light of the only thing that matters: The defendant is guilty, guilty, guilty.

Many would say that’s cool with them. After all, the guilty guy loses and isn’t that what it’s all about?  Except every trial lawyer knows that the rough and tumble fight in the trial court never seems to translate well to the sanitized world of the appellate court, where a few keystrokes turns the hotly contested trial into the slam dunk appeal. 

Indeed, Vasquez is a great case for just that reason, Where the majority sees nothing to worry it’s head about, the dissent sees a case the government could well have lost, and was sufficiently troubling to make the government scramble to craft a rebuttal case because the defense case gave it angina.  Had the dissent not explained this, Vasquez would have been just another slam dunk, overwhelming evidence of guilt, footnote of history decision.  It’s the magic of appeals, that real issues at trial magically disappear when reduced to a paragraph in an appellate decision.

But the question for the purposes of this post isn’t whether O’Hear’s characterization (or mine) is a sound one, but that O’Hear risked the boredom and possible ridicule of his fellow scholars by writing about it at all.  Sure, it’s got theory, doctrine and practical application.  Sure, it may  overcomplicate the question a bit, as one would expect of any academic. But he wrote it.

His post addresses one of the perpetually perplexing problems real lawyers, and their real clients, face daily.  And he wrote it knowing that he’s not going to win sexiest lawprof of the year and become Mr. December on the lawprof hottie calendar.  Yet he used a wee bit of his scholarship to write something useful, and for that, I’m grateful.