Posts Tagged ‘harmless error’

Holding that a criminal trial was tainted by the admission of prior “bad act” evidence, a split Fourth Circuit panel yesterday reversed an individual’s drug and gun convictions. In addition to addressing the admissibility of prior bad act evidence, the opinion contains an extensive discussion of the detention of a vehicle for a canine sniff. Judge Keenan wrote the opinion for the court in United States v. McBride, in which Judge Gregory joined. Judge Wilkinson wrote an opinion concurring in part and dissenting in part.

The improperly admitted evidence consisted of reliable audio and video recordings of a prior drug transaction in which the defendant sold crack cocaine to a government informant. The panel majority reasoned that the evidence surrounding this earlier transaction, which took place 18 months prior to the charged conduct, “was unrelated in time, place, pattern, or manner to the conduct” for which the defendant was indicted. The panel majority further reasoned that it could not conclude that it was “highly probable that the error did not affect the judgment.”

Judge Wilkinson’s dissent argues that the appellate court’s decision “regrettably pulls the trial process away from both the trial court and the jury, substituting its own assessment of the relevance and weight of the defendant’s criminal activity.” The dissent’s analysis begins with a comparison:

Appellant’s position overlooks simply this: that institutional relationships are to law what personal relationships are to life. And keeping the relationship of trial and appellate courts free of unwarranted encroachments is essential to the harmonious workings of our system. . . . The majority pays lip service to our deferential review of the district court’s evidentiary rulings, but fails to show any actual regard for the reasoned rulings of the trial judge in this case.

The dissent concludes by arguing that “[s]ending this case back to the district court for a second round diminishes the trial process”:

Retrials are like yesterday’s breakfast–always stale and seldom satisfying. Witnesses often try to remember what they said at the first trial rather than their actual recollections of the events in question. Everyone is farther removed from the events the trial process is designed to reconstruct. “The very act of trying stale facts may well, ironically, produce a second trial no more reliable as a matter of getting at the truth than the first.” Mackey v. United States, 401 U.S. 667, 691 (1971) (Harlan, J., concurring in part and dissenting in part).

It does more than merely inconvenience participants to put them through the process twice. Retrials can be traumatic, and criminal trials especially so, as witnesses are brought back for a second time to relive troubling events. As for the jurors here, it reduces to insignificance the time they spent in civic duty listening to evidence and argument and weighing facts whose accuracy is in no way questioned. The majority treads no ground here that was not covered at trial, reviewed by the district judge, and assessed by the jury in rendering a fair verdict. I would let the verdict stand in full. The district court applied proper legal standards, followed case law from ours and other circuits, made a sound and considered evidentiary inquiry, and admirably discharged its obligations throughout. With all respect to my fine colleagues in the majority, the trial court should be commended, not reversed.


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The Fourth Circuit’s opinion today in United States v. Summers contains a lengthy Confrontation Clause analysis stemming from the government’s introduction of the testimony and report of a DNA lab supervisor who testified and prepared his report on the basis of tests performed by others in the lab (who were not present to testify). Judge King wrote the opinion, which was joined in by Judge Shedd. Judge Floyd concurred in the judgment.

Judge King’s analysis discusses Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico, among other opinions.

Judge Floyd contends that the majority should not have reached the Confrontation Clause issues because any error was harmless. The majority agreed that the error was harmless, but only as an alternative holding after concluding that there was no error. The majority does, however, question the wisdom of the prosecution’s introduction of the DNA evidence. The point of introducing the evidence was to link a black NorthFace jacket to the defendant. The defendant was allegedly wearing the jacket before running from police. When they apprehended him, he was not wearing any jacket, but the police found a jacket (containing a handgun and lots of crack cocaine in its pockets) on the roof of a residence along the defendant’s flight path. Here’s what the majority says about the need for the DNA evidence:

[W]e cannot help but note that the government’s decision to introduce DNA evidence derived from the jacket had the unintended collateral effect of rendering a straightforward case significantly more complex. With respect to proving ownership of the jacket, the evidence introduced through Shea was scarcely more than the thin glaze on a dense cake baked to doneness by the officers’ largely unshakable testimony that: (1) Summers was wearing the jacket before he ran; (2) he was not wearing the jacket when he was caught; and (3) the jacket was found in the immediate vicinity of his flight path. Although we suppose that the jury could have been impressed that Quantico weighed in on the issue, we hardly think that the government needed to rely on the FBI’s star power to prevail in its open-and-shut case. Even had the district court’s admission of Shea’s report constituted error, it would surely be harmless beyond a reasonable doubt.

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