Brecht v. Abrahamson

You have the right to remain silent. Unless you are a gay ex-con from Wisconsin. Then you’re a Bad Boy™. If you're not a 5-4 Premium member, you're not hearing every episode! To hear this and other Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support http://fivefourpod.com/support. 5-4 is presented by Prologue Projects. This episode was produced by Alli Rodgers. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Transcriptions of each episode are available at fivefourpod.com http://fivefourpod.com/ Follow the show at @fivefourpod on most platforms. On BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @aywarhiannon.bsky.social. Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

  Hey y'all. Want to make a quick note before we jump into this episode? We recorded this episode and not like 12, 15 hours later, Calais 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 Calais is coming out in two days. So stay tuned for that.

• 0:27Speaker 01

  We'll hear our argument now in number 917358, Todd A. Brecht versus Gordon A. Abrahamson.

• 0:38Speaker 02

  Hey, everyone. This is Leon from Prologue Projects. For today, Peter, Rhiannon and Michael are talking about Brecht v. Abrahamson, a case from 1993 centered around the right to remain silent 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 to the jury that 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 you in a court of law, violated his right to due process. Brecht ultimately filed a writ of habeas, and his case made it to Justice William Rehnquist's Supreme Court.

• 1:23Speaker 02

  In a 5-4 decision, the justices upheld the conviction, finding that the prosecution's conduct was, quote, "a harmless error." This is Five to Four, a podcast about how much the Supreme Court sucks.

• 1:41Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have sedated our civil rights, like my co-host sedating himself. I'm Peter. I'm here with Rhiannon.

• 1:52Speaker 00

  Hey.

• 1:53Peter Shamshiri?

  And Michael.

• 1:54Michael Liroff?

  Yeah, he's talking about me when I accidentally took my dog's anxiety meds in the morning.

• 2:01Peter Shamshiri?

  Unbelievable.

• 2:02Michael Liroff?

  Just, uh, just like try 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 like chewed on things. And I was like, can't forget to give him his meds today. So I take my morning meds. I'm like, gonna give Lambo his meds. And I just, I opened them. I'm like in fucking autopilot. It's like, you know, I had just woken up. And I like opened his meds. I just like pop them in my mouth. You know, I'm still carrying my glass of water from when I just took my meds. Take a swig, swallow one, but not the other. And it was like, what the fuck am I doing? And like spit the other out. But, um, yeah, the one I swallowed was a sleep med that is like four times the strength of like a

• 2:45Michael Liroff?

  normal human dosage sleep med. And I was, 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 hours.

• 2:57Speaker 00

  Michael was flying during our prep call.

• 2:58Peter Shamshiri?

  Yeah. The best, the best part of this was that the only reason we know about this is because Rihanna was like, just checking in. He was, she was like, how you doing, Michael? And Michael was like, I took my dog's pills.

• 3:11Michael Liroff?

  She was like, Michael, you haven't been as active in the, in the text chat. I was like, yeah, that's, that's because I've been stoned off my ass.

• 3:20Michael Liroff?

  Dog anxiety.

• 3:20Peter Shamshiri?

  Fucking lit on dog pills, dude.

• 3:25Peter Shamshiri?

  It's our boy, Michael. He, he was pitching ideas, just looped on dog pills.

• 3:33Speaker 00

  Yeah.

• 3:33Peter Shamshiri?

  He was like, what, what if we talked about this?

• 3:38Peter Shamshiri?

  There was 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.

• 3:47Speaker 00

  He doesn't know what he's talking about right now.

• 3:49Peter Shamshiri?

  Michael's fucking gone off that dog pill, dude.

• 3:54Peter Shamshiri?

  All right. This week's case, Brecht v. Abrahamson. 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.

• 4:31Speaker 00

  That's in the Constitution.

• 4:32Peter Shamshiri?

  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.

• 4:49Speaker 00

  Yeah.

• 4:49Peter Shamshiri?

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

• 5:03Speaker 00

  Right.

• 5:04Peter Shamshiri?

  This makes its way to the Supreme Court, and they say that it's just harmless error.

• 5:10Speaker 00

  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.

• 5:42Peter Shamshiri?

  Yeah, this is very good boy, bad boy theory, which is a quick reminder, since it's becoming a core part of legal thought.

• 5:51Peter Shamshiri?

  Good boy, bad boy theory is the theory that conservatives will treat different people differently and ascribe them different rights based on whether or not they think they are a good boy or a bad boy, especially relevant in the criminal context.

• 6:05Speaker 00

  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 is 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 Rehnquist.

• 6:40Michael Liroff?

  Should we tell our listeners that bad boy theory has officially entered the mainstream of legal discourse in the Harvard Law Review nonetheless?

• 6:48Peter Shamshiri?

  Yeah. Yeah.

• 6:50Speaker 00

  Well, are we cited?

• 6:51Peter Shamshiri?

  We are cited.

• 6:52Michael Liroff?

  We are cited multiple times. The title of this student note is, I think, Bad Boy Jurisprudence.

• 6:57Speaker 00

  Okay.

• 6:58Michael Liroff?

  Future Supreme Court Justice there.

• 6:59Peter Shamshiri?

  Yeah, they consulted with us about it last fall.

• 7:02Speaker 00

  Oh, that's right. That's right. I remember.

• 7:04Michael Liroff?

  Peter and I both gave guidance.

• 7:06Speaker 00

  Yeah, yeah.

• 7:07Peter Shamshiri?

  I did not respond to the email, which I only saw, I only saw when I, when they like, reached out being like, hey, look, we published the article today. And I was like, oh, cool. And then I was like, wait, I never actually did this, right?

• 7:22Michael Liroff?

  I talked to her. I talked to her about her ideas. Yeah.

• 7:24Peter Shamshiri?

  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-

• 7:34Speaker 00

  It's not just, it's not just they're a law student at Harvard. That's, that's not why Peter didn't respond.

• 7:39Peter Shamshiri?

  I can't explain why as of now, but I'm not mad at myself. I think it was funny.

• 7:46Speaker 00

  Yeah, so bad boy theory proliferating. It's spreading to the masses. And 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.

• 8:09Michael Liroff?

  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.

• 8:24Speaker 00

  Yeah. The goodest of good boys to the Supreme Court.

• 8:27Peter Shamshiri?

  Golden retriever.

• 8:29Speaker 00

  Yeah. And so Brecht shot and killed his district attorney brother in law. And of course, gets charged. It's 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,

• 9:12Speaker 00

  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 pre-trial 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,

• 9:57Speaker 00

  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 a mistake, this was an accident, let me 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, you know, gave a rundown 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 of this case. Now, let me, as Rhiannon, 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.

• 10:42Speaker 00

  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 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 the stand and said so. No, no, no, no, no.

• 11:05Peter Shamshiri?

  It's also something that every prosecutor on earth knows.

• 11:08Speaker 00

  They know it.

• 11:08Peter Shamshiri?

  And every judge knows, right?

• 11:10Speaker 00

  Yes.

• 11:11Peter Shamshiri?

  And like, the judge is supposed to say, hey, hey, no, no, can't say that, and then instruct the jury that they cannot take into consideration the defendant's silence, right? That's what should happen.

• 11:23Speaker 00

  Exactly. This is like so clear. Like, this is maybe, what, like, the most well-known constitutional right? Like, you have the right to remain silent? This is well, 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 and my viewpoint here, but that's how I would tell the facts. Back to the case, back to Rehnquist. Here's how Rehnquist 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 Hartmans brought petitioner home with them to Alma, Wisconsin,

• 12:05Speaker 00

  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.

• 12:22Michael Liroff?

  Not to mention.

• 12:23Speaker 00

  To make the best of the situation, though, the Hartmans 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.

• 12:40Michael Liroff?

  Cool.

• 12:41Speaker 00

  So.

• 12:42Peter Shamshiri?

  This is, yeah, no, just normal facts.

• 12:47Michael Liroff?

  Just normal.

• 12:48Peter Shamshiri?

  This is just a normal recitation of facts by the Supreme Court.

• 12:53Michael Liroff?

  By the way, he's a gay drunk.

• 12:55Speaker 00

  Right. He's gay. He's a gay criminal.

• 12:58Peter Shamshiri?

  Yeah, he's gay and a drunk, which I'm sorry, but you live in Wisconsin. Like, what?

• 13:06Peter Shamshiri?

  What are we talking about here? You know what I mean?

• 13:08Michael Liroff?

  The only guy I want to hang out with in Alma, Wisconsin around this time.

• 13:13Speaker 00

  Right.

• 13:13Peter Shamshiri?

  Yeah. Is it not hard enough? Imagine just, imagine it's like the 80s and you're just a gay dude in Wisconsin.

• 13:21Michael Liroff?

  Yeah.

• 13:21Peter Shamshiri?

  I'm sorry, but hand me a beer.

• 13:24Speaker 00

  No, it's horrible. And by the way, Rehnquist 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" of homosexual, you know, like staying away from homosexual activity. That's just thrown in there because Rehnquist wants to do bad boy theory here. He wants to make sure that you know how gross this guy is, according to Rehnquist, right?

• 13:49Peter Shamshiri?

  Presumably homosexual activity means sexual activity, but.

• 13:53Peter Shamshiri?

  It's not specified. It could be anything, right?

• 13:56Speaker 00

  Yeah, it's just that he's gay. That's what Rehnquist 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?

• 14:23Peter Shamshiri?

  Right, irrelevant to the law here.

• 14:25Speaker 00

  This case is about constitutional violations that happened at trial.

• 14:29Peter Shamshiri?

  Right.

• 14:29Speaker 00

  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 silence against him. So Brecht gets convicted. He is found guilty of first degree murder and he appeals his conviction. He says, what the fuck? This was a violation of my due process rights, my right to a fair trial because my invoking of my Fifth Amendment rights was used against me. It was used to show that I'm guilty.

• 15:11Speaker 00

  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 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 and 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.

• 15:52Peter Shamshiri?

  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, didn't impact the verdict. And so we're just gonna 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.

• 16:34Peter Shamshiri?

  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, you know, 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 and injurious?

• 17:08Speaker 00

  Yeah.

• 17:08Peter Shamshiri?

  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 gonna get a new trial unless the error was really minor.

• 17:20Speaker 00

  Super minor, yeah.

• 17:21Peter Shamshiri?

  But now, it's on you to prove that the error was substantial, right? The burden's flipped. So they apply this new standard to this case. And again, what happened here was that this guy gets on the stand at 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. Rehnquist 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 Rehnquist 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."

• 18:05Peter Shamshiri?

  Miranda warning, so whatever, right? To me, it's like.

• 18:09Michael Liroff?

  That's not, I don't find that very persuasive.

• 18:11Peter Shamshiri?

  I don't find that very persuasive.

• 18:12Speaker 00

  That's still using the fact of his silence post Miranda against him.

• 18:16Peter Shamshiri?

  Right.

• 18:16Speaker 00

  That, like, there's no other way to say that.

• 18:19Peter Shamshiri?

  Well, I, I, I mean, so first of all, I do think that if you follow this logic, Rehnquist is implying that prosecutors just don't have to respect this rule.

• 18:27Speaker 00

  Exactly.

• 18:29Peter Shamshiri?

  They can just bring up your silence and hold it against you without penalty in most situations. Right?

• 18:34Michael Liroff?

  Right.

• 18:35Peter Shamshiri?

  And that's really the whole analysis here. He's just like, I think the, I think the jury would have come out the same way. So we're good. And that's, and that's that, right? He's just eyeballing the situation and saying like, I don't think this would have changed their minds. Still guilty, right? That's it. We'll, we'll talk about that in a second. But that is like the whole analysis.

• 18:57Michael Liroff?

  Right.

• 18:57Peter Shamshiri?

  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?

• 19:21Michael Liroff?

  Right.

• 19:22Peter Shamshiri?

  It's a whole separate legal action.

• 19:23Michael Liroff?

  Right.

• 19:24Peter Shamshiri?

  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.

• 19:44Michael Liroff?

  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.

• 20:03Peter Shamshiri?

  Yeah.

• 20:04Michael Liroff?

  That they could look at it and be like, actually, they got the law wrong, but I don't get to say that. I, I say, you're still, you're still stuck with it. Like, it's, it's fucking, it's weird. It's weird. 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, uh, the old standard, judges disagreed. Look at this one case where, you know, the court came out one way, but some of the justices dissented on the same standard and we disagreed. And so still, judges have to apply their best opinion.

• 20:49Michael Liroff?

  And guess what? That's going to vary anyway. And I'm just like, what the? What the fuck are you talking about, dude? What, what, what does that mean? Like, oh, this, the judges can disagree on how a standard is applied. Therefore, the standard we use doesn't matter.

• 21:08Peter Shamshiri?

  Like, right.

• 21:09Michael Liroff?

  Who the burden 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, 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?

• 21:30Speaker 00

  Like he took a dog pill?

• 21:31Peter Shamshiri?

  Yeah, like he was dog-pilled up.

• 21:33Michael Liroff?

  Dude took his dog's anxiety meds and wrote an opinion.

• 21:36Speaker 00

  So relatable. You know exactly the headspace. You can, you can really empathize with the man, Michael.

• 21:41Peter Shamshiri?

  Maybe he was drunk, perhaps even engaging in homosexual activity.

• 21:50Speaker 00

  No, this is like totally like, um, Supreme Court justice, like technical process, getting lost in the sauce brain, you know?

• 21:58Michael Liroff?

  Yes.

• 21:58Speaker 00

  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 might disagree. And it's just, wait, what, what was your point? Like, what, where did you get with this?

• 22:17Michael Liroff?

  Just nonsense.

• 22:18Peter Shamshiri?

  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. And I'll see you guys later.

• 22:33Speaker 00

  Yeah.

• 22:34Peter Shamshiri?

  They just sort of like fade away and you're like, what was that?

• 22:37Speaker 00

  Right. A thousand percent.

• 22:38Michael Liroff?

  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 harmless. And it's like, what it really comes down to is he's just like, yeah, this guy was guilty though. You know, come on.

• 22:55Peter Shamshiri?

  Yeah.

• 22:55Michael Liroff?

  Like, like.

• 22:56Speaker 00

  Yeah.

• 22:56Michael Liroff?

  I, 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, what are we doing here? And if you think about it even for one second, like, sure, maybe there was other evidence available, right? 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.

• 23:20Peter Shamshiri?

  Right.

• 23:20Michael Liroff?

  Is going to fucking matter.

• 23:21Speaker 00

  Exactly.

• 23:22Michael Liroff?

  And so impeaching that credibility is an important tool in the prosecutor's toolkit. And if they're violating the constitution in order to impeach his credibility, that's a big deal. Like that is like from a, from an actual trial perspective, that is a big deal. Like impeaching his credibility is a, 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 was other evidence. It's not harmless. It's not harmless.

• 23:53Peter Shamshiri?

  There's a ton of other evidence. Give him another trial.

• 23:55Speaker 00

  Exactly.

• 23:57Michael Liroff?

  Go, go, go get the fucking conviction cleanly. Like.

• 24:01Speaker 00

  Exactly. Exactly. And multiple of the lower courts, the appellate courts that agreed with Brecht, right? Said, this is exactly it. Brecht'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 defendant's 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? Do we believe what he's saying that this was an accident? And multiple of the courts that agreed with Brecht say the prosecutor.

• 24:38Speaker 00

  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.

• 24:55Michael Liroff?

  Right. Right, you can draw a straight line.

• 24:58Speaker 00

  Exactly.

• 25:14Speaker 00

  So there are a few dissents in this case. Justices White and O'Connor have like the substantive dissents 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 writ 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,

• 25:56Speaker 00

  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 habeas appeal. Right? And so he's talking about how the Supreme Court here is fucking with decades old, in fact, centuries old, a legal framework in all of this patchwork 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,

• 26:41Speaker 00

  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 most important purpose here, which is protecting the avenue of federal hebeas. Yeah.

• 27:17Peter Shamshiri?

  Sandra Day O'Connor also files a dissent. She makes most of it about 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 Rehnquist was like, oh, this would be better if we changed 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."

• 28:01Peter Shamshiri?

  Which is just like basic logic, but I do applaud her for getting there.

• 28:06Speaker 00

  Yeah. Apparently difficult. Stevens couldn't get there.

• 28:09Peter Shamshiri?

  Yeah.

• 28:10Speaker 00

  Yeah.

• 28:10Peter Shamshiri?

  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 Sandra Day 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 of.

• 28:33Speaker 00

  Yeah, this is a high cost versus a low cost.

• 28:37Peter Shamshiri?

  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 economics stuff.

• 28:42Speaker 00

  Yeah.

• 28:43Peter Shamshiri?

  There are a couple of other dissents, Souter and Blackman, both right dissents that are like one line each. They're like, I agree with so and so. That's like an artifact of.

• 28:50Michael Liroff?

  The times. I think we should bring that back. I think we should bring that back.

• 28:53Peter Shamshiri?

  Yeah, where you just like chime in, you're like, I agree.

• 28:55Michael Liroff?

  Yeah, plus one.

• 28:56Speaker 00

  Yeah.

• 28:57Michael Liroff?

  Plus one.

• 28:57Peter Shamshiri?

  Yeah.

• 28:57Speaker 00

  Plus one.

• 28:58Peter Shamshiri?

  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.

• 29:02Michael Liroff?

  A 100 emoji on the text message.

• 29:05Speaker 00

  Let justices have emoji reacts.

• 29:07Peter Shamshiri?

  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 that 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.

• 29:41Michael Liroff?

  Too much to expect the courts to respect your constitutional rights.

• 29:44Peter Shamshiri?

  Yeah.

• 29:45Michael Liroff?

  Come on.

• 29:45Peter Shamshiri?

  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 juries. And I just think that whole framework robs you of your right to a trial by jury. Like, we have this situation where there's been a mistake. Everyone agrees that there's likely been a constitutional violation here. We don't know how the jury would have handled it. And the court's like, okay. Let me just, let me just pretend I'm the jury for a second.

• 30:29Peter Shamshiri?

  What, what would I have done? Right?

• 30:31Michael Liroff?

  Still guilty.

• 30:32Peter Shamshiri?

  Yeah. No, it's okay. We're fine. It's 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.

• 30:43Speaker 00

  Yeah.

• 30:44Michael Liroff?

  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, is not given the right information to consider. So it's, it's sort of interfering with your jury trial rights twice over. Once by misinforming the jury and then by just having some asshole eyeball it and be like, "Well, if I was the jury."

• 31:13Peter Shamshiri?

  Right.

• 31:14Michael Liroff?

  You know?

• 31:14Peter Shamshiri?

  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, Rehnquist comes in being like, "Come on." I think, I think he would have agreed with the others. Like, what, what is preventing that from happening? Right? Nothing. It's just so obviously fucking bullshit. It's such, it's such an obvious violation of your right to a jury trial.

• 31:38Michael Liroff?

  Right.

• 31:38Speaker 00

  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?"

• 31:57Peter Shamshiri?

  Right.

• 31:57Speaker 00

  "Did 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,

• 32:37Speaker 00

  violated their 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 Rehnquist thinks should be in prison for life, if not given the death penalty. If I'm thinking like Rehnquist thinks. So, nothing, no constitutional violation for Rehnquist is going to be actually harmful. It's going to be something that like rises to the level of something that Rehnquist loses sleep over or just fucking cares about for five minutes. You know, and 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,

• 33:20Speaker 00

  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 concur, they can like say like what sections they're like agreeing with and stuff. Like this first section is fucking disgusting. It's really gross and 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.

• 34:02Speaker 00

  And it doesn't matter to them that their constitutional rights were violated along the way, you know?

• 34:08Peter Shamshiri?

  Yeah. Can you imagine being a gay dude in the eighties, in Wisconsin, forced to live with your district attorney brother-in-law? Right.

• 34:17Speaker 00

  It just lectured every single day about what you're doing and what you're not doing.

• 34:22Peter Shamshiri?

  You better not keep a gun in the house, you do that to me. You know what I mean? And then he, the brother in law gets painted like his brother, who's a district attorney.

• 34:32Michael Liroff?

  Who paid restitution for him to get him out of prison. Now, the whole thing is, look at this deviant felon drunk.

• 34:40Speaker 00

  Yeah.

• 34:40Michael Liroff?

  Who doesn't even appreciate his upstanding district attorney brother in law.

• 34:44Speaker 00

  Yeah.

• 34:44Michael Liroff?

  Who helped pay to get him out of prison and shot him.

• 34:47Speaker 00

  Yeah.

• 34:48Michael Liroff?

  Let's bury this guy under the prison, right?

• 34:51Peter Shamshiri?

  There's another district attorney we should be focusing on. The one who violated this man's constitutional rights.

• 34:57Speaker 00

  Yeah, exactly, exactly. That's like, actually, that's actually the issue here.

• 35:01Michael Liroff?

  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, the facts are always bad. Otherwise, there wouldn't be a case to deal with, right? Like, something happened, someone was involved, and there was a constitutional violation.

• 35:33Speaker 00

  It's tragic, somebody died, it's horrible, it's horrible.

• 35:36Michael Liroff?

  It's always like this, so like, 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?

• 35:49Speaker 00

  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 defendant's 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.

• 36:33Speaker 00

  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, death cases.

• 36:58Peter Shamshiri?

  The, the real problem here that all of this is meant to skirt around is that no one knows how to dole out actual justice efficiently. So they've opted for just maximum brutality, right? They've opted to sacrifice justice for efficiency.

• 37:18Speaker 00

  Yeah.

• 37:19Peter Shamshiri?

  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, ah, it's okay. Harmless error, harmless, harmless, harmless. It's just a way to skirt around the fact that they don't know how to effectively dole out justice. They don't know how to do it. There aren't enough resources put into it.

• 37:56Speaker 00

  Yeah. And just, you know, to put this in more of a historical context, right? We're talking about through the seventies, Nixon's war on crime. We're talking about the boom in death sentences in the seventies, in the eighties. And by that time, we're out of the Warren Court. Warren Court has, you know, done some landmark, very important cases to try and protect defendants' constitutional rights in criminal cases. But then you have Burger Court and you have the Rehnquist Court and they're not protecting those rights anymore, right? Instead, they are changing the consequences of unconstitutional trials, of constitutional violations.

• 38:37Speaker 00

  They're tinkering with all of that so that the mass incarceration, this death machine, it's just like full steam ahead.

• 38:44Michael Liroff?

  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 eighties and nineties is like, oh, this fucking movie wants you to feel bad for prisoners. Oh my God, fuck this movie. That was the tenor of reviews around this beloved movie.

• 39:27Michael Liroff?

  That's the culture in which to understand an opinion like this and statistics like that. It's a culture of like, fuck these people. Like, what, we're supposed to do another trial just because we violated their constitutional rights? Come on.

• 39:40Speaker 00

  For this guy? No, no way. Yeah.

• 39:43Peter Shamshiri?

  Andy Dufresne, who is gay, by the way.

• 39:50Speaker 00

  A new trial for a gay man?

• 39:52Peter Shamshiri?

  Oh, you're, you escaped to Mexico with your friend?

• 39:57Michael Liroff?

  The guy who played opera for all the prisoners? Oof, come on.

• 40:03Peter Shamshiri?

  Okay, bud. But did he kill his wife or he allegedly? He killed, was it the wife or the, or the boyfriend?

• 40:08Michael Liroff?

  Both.

• 40:09Peter Shamshiri?

  Okay, okay.

• 40:12Michael Liroff?

  But he did not kill either.

• 40:13Speaker 00

  Double homicide.

• 40:13Peter Shamshiri?

  That's how hard it was to be gay back in like the 30s or whenever it was set. You had to kill your wife and her boyfriend and then escape prison with your lover.

• 40:28Speaker 00

  So harmless error clearly has very much fucked with federal habeas. But taking a step back, we haven't even talked about how difficult it is to get to the point, 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.

• 41:10Speaker 00

  Some states have separate state habeas proceedings that you would have to go through. And by the way, every time you appeal, and in every case, you have to make sure that you don't miss. You have to bring up every violation that you're gonna bring up. Every argument you've got, you have to say it at every step.

• 41:28Peter Shamshiri?

  What that means in practice, by the way, is like if your constitutional rights are violated at your trial, and then you appeal, and you don't bring that issue up, right? It's deemed waived in most cases, right? You've just waived it. Even though your rights were violated, you can't bring it up later. You had your chance. That's it, right?

• 41:47Speaker 00

  Exactly.

• 41:47Peter Shamshiri?

  Another, another rule that's basically all about like efficiency or something.

• 41:51Speaker 00

  No, and courts will say you don't get two bites at the apple. Like this, this is the legal justification for having these rules.

• 41:58Peter Shamshiri?

  That's a great metaphor, by the way. You get two bites at every single other apple in this world, but...

• 42:04Speaker 00

  And yeah, in what real world situation are you actually limited to one bite at the apple? That's not, that's not realistic.

• 42:10Michael Liroff?

  Our producer just put in a chat, apples are literally like 20 bites.

• 42:14Speaker 00

  Yeah, every single one of them.

• 42:15Peter Shamshiri?

  Yeah, that's just what you say to someone that you're like abusing, like you only get one bite at the apple.

• 42:24Speaker 00

  Have you guys seen those videos of, it's like straight couples?

• 42:27Peter Shamshiri?

  Say more.

• 42:28Speaker 00

  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 had 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.

• 42:56Michael Liroff?

  Oh my gosh.

• 42:56Speaker 00

  Anyways, I don't know if that's funny or not, um, but...

• 43:01Peter Shamshiri?

  It's a great, it's a great gag if you hate men.

• 43:05Speaker 00

  Um, 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 hear what are your federal constitutional claims. It is a massive burden. And then on top of that, we've 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.

• 43:50Speaker 00

  And here, 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.

• 44:12Peter Shamshiri?

  Yeah. There's a situation in Florida, like a decade ago, where like, 100 something people were going to have their sentences reevaluated. And courts just addressed that by saying that they were like, all harmless error.

• 44:27Speaker 00

  Yeah.

• 44:28Peter Shamshiri?

  Right.

• 44:28Speaker 00

  Death sentence cases, yeah.

• 44:30Peter Shamshiri?

  A lot of the problem there was that they had, um, they had a non-unanimous jury rule, right? So you could convict someone on like, a 10 to 2, 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 have a unanimous jury rule, right?

• 44:50Michael Liroff?

  Right.

• 44:50Peter Shamshiri?

  And then courts were reevaluating those and saying, well, it's harmless error. This one was 10 to 2, it needs to be unanimous, harmless error. Which I, earlier I made the joke about the missing juror, but that actually is what happened in some Florida cases.

• 45:03Speaker 00

  That's literally it.

• 45:04Michael Liroff?

  Yeah. Yeah. In 170, I think, right? Something like that?

• 45:07Speaker 00

  Yeah.

• 45:07Peter Shamshiri?

  Yeah, something like that.

• 45:08Michael Liroff?

  Insane number.

• 45:09Peter Shamshiri?

  So before we go, our producer has asked, like, what is an example of an actually harmless error?

• 45:16Speaker 00

  Yeah.

• 45:16Peter Shamshiri?

  In your 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.

• 45:25Speaker 00

  Yeah.

• 45:25Peter Shamshiri?

  You can imagine a super minor one in certain contexts, but I'm not sure that anything comes to mind. Harmless error would be like the prosecutor spills his soda on you. Something like that, right?

• 45:39Speaker 00

  Yeah.

• 45:41Peter Shamshiri?

  Maybe the 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.

• 45:52Speaker 00

  I mean, basically harmless would be like it was fixed. So there wasn't like the judge read a paragraph of

• 46:00Peter Shamshiri?

  Right.

• 46:01Speaker 00

  the wrong jury instructions, but then said, oh, it's not these instructions. I've given you the correct instruct, right? Like

• 46:08Peter Shamshiri?

  Yeah, but then I wouldn't even consider that error necessarily.

• 46:11Speaker 00

  Right.

• 46:11Peter Shamshiri?

  Like if it's corrected by the judge, it's not error. Like the prosecutor saying that is not error. The judge failing to realize it and instruct the jury is the error. Right.

• 46:29Peter Shamshiri?

  All right, folks. Next episode dropping in just a couple of days. Louisiana v. Calais about the demolition, the continued demolition of the Voting Rights Act by this court. Follow us on social media, at 54pod. Subscribe to our Patreon, patreon.com/54pod, all spelled out for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. See you in a couple of days.

• 46:54Speaker 00

  Bye, y'all.

• 46:55Peter Shamshiri?

  Bye.

• 46:57Michael Liroff?

  Five to Four is presented by Prolog Projects. This episode was produced by Alison Rogers. Leon Nafok provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blankes at Chips NY, and our theme song is by Spatial Relations.