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Fry v. Pliler Argument

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The transcript of oral argument in Fry v. Pliler is available here. The briefs are available here.

The main question is whether the harmless error standard for habeas corpus established by Brecht v. Abrahamson, 507 U.S. 619 (1993) applies when, unlike in the Brecht case itself, the state court did not apply the more stringent rule of Chapman v. California, 368 U.S. 18 (1967) on the direct appeal. This situation would most often occur for marginal claims where the state court did not believe there was a constitutional error at all but the federal court later disagrees and somehow gets around the deference standard of 28 U.S.C. § 2254(d). The Eighth Circuit alone has held that the federal court in that situation should apply Chapman. All the others to squarely consider the question have decided that Brecht controls.

In today's argument, petitioner's counsel argued for the Eighth Circuit position but didn't seem to be getting much traction with it. He also argued that even under Brecht, petitioner should have won. This was the basis of Judge Rawlinson's dissent in the Ninth Circuit. Justice Stevens appears sympathetic to that argument on pages 14-15. Justices Souter and Ginsburg do as well on pages 30-31. However, counsel was nailed on his inept phrasing of the question presented on pages 16-18. Reconsidering the Ninth's application of Brecht to the facts of the case is not the question before the Court.

On page 28, Justice Breyer is evidently bothered by the same thing that bothered me about this case. The underlying error supposedly involved here is the rule of Chambers v. Mississippi, 410 U. S. 284 (1973). Chambers error by definition is committed only by excluding evidence that "significantly undermined the fundamental elements of the defendant’s defense." United States v. Sheffer, 523 U.S. 303, 315 (1998). Exclusion of marginal evidence that probably didn't affect the outcome is not a federal constitutional question at all; it is only a matter of state evidence law. So how can Chambers error ever be harmless under Brecht, if both standards are applied correctly? See CJLF Brief at 4-5. If the Ninth Circuit's holdings that there was error under Chambers and that it was harmless under Brecht are inconsistent, which one was wrong?

The outcome in this case may turn on how strictly the Court applies the rule of limiting its consideration to the question presented. If it is only a question of whether the Ninth applied the correct standard for harmless error, yes, it did. If they go further and consider whether the Ninth applied that standard correctly to the facts of the case, petitioner has a better shot. If they go further than that and question whether there was Chambers error here at all or whether the state court reasonably found there was not, the pendulum may swing back to the state.

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If Brecht is a necessary precondition for any habeas case, how can it not be for all habeas cases?

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