More on Harmless Error (9/17/13)

I recently blogged On Harmless Error (9/9/13), here, in which I linked to Professor Turley's blog titled   Ninth Circuit Reverses Federal Judge Who Ruled That False Statement Of Prosecutor In Closing Argument Was Harmless (Jonathan Turley Blog 9/9/13), here.  There is another nontax case I call to readers attention, United States v. Clay, 720 F.3d 1021 (8th Cir. 2013), here.  

The key parts of the Clay opinion itself  (pp. 1025-6, 1028-1029) (duplicate citations omitted):

For purposes of this analysis, we assume without deciding that the Government used perjured testimony and knew or should have known it was perjured. Clay argues that the district court misapplied the standard for assessing prejudice to the defendant from the use of false testimony. The Supreme Court has established that, for cases under direct review, "a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 1976) (footnote omitted). According to Clay, the district court incorrectly assessed "reasonable likelihood" in this case by examining the sufficiency of the evidence in light of the corrected testimony. Cf. Kyles v. Whitley, 514 U.S. 419, 435 (1995) (holding that prejudice for a general Brady withholding violation can be demonstrated "by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict," even if the evidence taken as a whole might still have  [*1026]  been sufficient to support a conviction). We agree with Clay that the Agurs standard for evaluating the materiality of the Government's knowing use of perjured testimony is less onerous to the defendant than a sufficiency of the evidence test, and less onerous even than the standard of materiality for a general Brady violation. See Rosencrantz v. Lafler, 568 F.3d 577, 587 (6th Cir. 2009) (observing that the materiality standard for false testimony is "lower," "more favorable to the defendant," and "hostile to the prosecution" as compared to the standard for a general Brady withholding violation (quoting Gilday v. Callahan, 59 F.3d 257, 267-68 (1st Cir. 1995))). 

The proper materiality standard, however, is only part of the equation. We also must consider whether harmless-error review is appropriate. On habeas review, as here, constitutional violations that are categorized as "trial error" generally are "amenable to harmless-error analysis." Brecht v. Abrahamson, 507 U.S. 619, 629 (1993). "Trial error 'occur[s] during the presentation of the case to the jury,' and . . . it 'may . . . be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial].'" Id. (quoting Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991)). In contrast to trial error, "'structural defects in the constitution of the trial mechanism' . . . —deprivation of the right to counsel, for example—require[] automatic reversal of the conviction because they infect the entire trial process." Id. at 629-30 (quoting Fulminante, 499 U.S. at 309) (footnote omitted).

We hold that a false testimony claim falls within the category of trial error, rather than structural error. "[D]espite the fundamental nature of the injury to the justice system caused by the knowing use of perjured testimony by the state, the Supreme Court has not deemed [such] errors to be structural in the sense that they affect[ ] the framework within which the trial proceeds." Rosencrantz, 568 F.3d at 589 (third alteration in original) (internal quotation marks omitted) (quoting Shih Wei Su v. Filion, 335 F.3d 119, 126 (2d Cir. 2003)). Indeed, in this case, McCuien was one of approximately forty witnesses to appear during a seven-day trial. Thus, any error arising from McCuien's testimony "may . . . be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial]." Brecht, 507 U.S. at 629 (quoting Fulminante, 499 U.S. at 308-09). n4
   n4 We note, as did the Sixth Circuit in Rosencrantz, that Brecht harmless-error analysis is unnecessary for a general Brady withholding claim because "practically speaking, the two analyses are the same." Rosencrantz, 568 F.3d at 584 n.1. More specifically, "'a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different' necessarily entails the conclusion that the suppression must have had 'a substantial and injurious effect or influence in determining the jury's verdict.'" Id. (quoting Kyles, 514 U.S. at 435 (citations omitted in original)). Because the materiality standard for a claim for the knowing use of perjured testimony is less onerous for the defendant, however, a knowing use of perjured testimony may be material under Agurs and yet still be harmless error under Brecht. See Rosencrantz, 568 F.3d at 589 (citing Gilday, 59 F.3d at 267-68). But see Hayes v. Brown, 399 F.3d 972, 984-85 (9th Cir. 2005) (en banc) (holding without further explanation that, because application of the materiality standard for general Brady withholding claims renders a Brecht harmless error analysis unnecessary, "[a]pplication of the Agurs 'any reasonable likelihood' standard necessarily forecloses a Brecht harmless error analysis" as well). 

  n4 (continued)We also note that "harmless-error review under Brecht did not 'foreclose the possibility that in an unusual case, a deliberate and especially egregious error of the trial type, or one that is combined with a pattern of prosecutorial misconduct, might so infect the integrity of the proceeding as to warrant the grant of habeas relief, even if it did not substantially influence the jury's verdict.'" Rosencrantz, 568 F.3d at 589 (quoting Brecht, 507 U.S. at 638 n. 9). However, "we do not view this case as the unusual, especially egregious instance of prosecutorial misconduct, or one that reveals any 'pattern of prosecutorial misconduct.'" Id. [fn ends and text continues after this point]

Accordingly, Clay can obtain habeas relief only if the asserted trial error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). This standard requires a showing of "actual prejudice" for habeas relief. Id. (quoting United States v. Lane, 474 U.S. 438, 449 (1986)). The Supreme Court has avoided assigning a formal burden of proof for this analysis, but it has stated that "[w]hen a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had 'substantial and injurious effect or influence in determining the jury's verdict,' that error is not harmless. And, the petitioner must win." O'Neal v. McAninch, 513 U.S. 432, 436 (1995).

[Analysis of materiality in facts of case omitted]

 Accordingly, assuming McCuien's testimony that he had no experience in real estate transactions and contracting work was false and that the Government knew or should have known of its falsity, we have no grave doubt that the challenged testimony did not produce a "substantial and injurious effect or influence in determining the jury's verdict." O'Neal, 513 U.S. at 436. We therefore affirm the denial of Clay's § 2255 motion for post-conviction relief.

I am troubled by the fact that a court would apply harmless error analysis in a case that could have involved prosecutorial misconduct by knowingly false testimony.  If the prosecutor knew the testimony was knowingly false, the prosecutor already made the decision that it is material in introducing the evidence.  Why else would he take such a risk except to get an advantage that he felt was material to the prosecution?