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Justices to consider error methodology

By: David Ziemer, [email protected]//February 20, 2012//

Justices to consider error methodology

By: David Ziemer, [email protected]//February 20, 2012//

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Dissenting judge found improper evidence prejudicial

Few rulings on appeal are as frustrating for a defense attorney as one that holds the defense is correct on the merits, but that the error was harmless.

Next month, the U.S. Supreme Court will consider whether the Seventh Circuit’s harmless error methodology is correct.

Defendant Alexander Vasquez was charged with federal drug offenses, along with two co-defendants. His two co-defendants pleaded guilty, but Vasquez went to trial. His defense was he was just an innocent bystander to the drug transaction at issue.

Vasquez did not testify, but called the wife of one of the co-defendants as a witness to support his version of the events.

In its rebuttal, the government then introduced a recording of a conversation between that witness and her co-defendant husband, in which the witness told her husband that Vasquez’s attorney had told her that if all three went to trial, all three would be found guilty. The jury returned a mixed verdict – finding Vasquez guilty of one count, but not guilty on the second.

All three judges who heard the case on appeal agreed the tape should not have been admitted. But the majority, over the dissent of Judge David Hamilton, held the error was harmless.

In a brief, two-paragraph, harmless-error analysis, the majority emphasized Vasquez’ attempt to evade arrest as evidence of guilt. As stated, “How else do you describe throwing the [car] into reverse, endangering officers …, hitting two police squad cars, and gunning it the wrong way into a roadway from the parking lot, ditching the car a few moments later and trying to escape by running through the kitchen and out the back door of a McDonald’s?”

Hamilton dissented, finding the improper evidence was “just about as prejudicial as one could expect to encounter in a trial.”

“The jury heard,” Hamilton wrote, “that Vasquez’s lawyer had told Vasquez that he should plead guilty and had said that if he and his codefendants went to trial, ‘everyone is going to lose.’ A juror who heard and believed that evidence would surely discount anything she heard from that lawyer.”

Before the Supreme Court, Vasquez makes two arguments: (1) that the Seventh Circuit erred in applying the rules of criminal procedure by focusing only on the weight of the admissible evidence without considering the prejudicial effect of the inadmissible evidence; and (2) that doing so violated Vasquez’s Sixth Amendment right to a jury trial.

Vasquez contends in his brief that the Seventh Circuit applied the wrong standard: “The [Supreme] Court has repeatedly warned against any form of harmless-error analysis that asks only whether the defendant would have been convicted in an error-free trial. The proper question is whether the jury’s verdict was uninfluenced by error.”

Invoking the Constitution, Vasquez added, “This court has held that the jury-trial right requires that guilt determinations be made by juries, not judges. Thus, any harmless-error analysis based on a court’s assessment of whether a hypothetical, error-free trial would yield conviction violates the Sixth Amendment.”

In brief

Case: Vasquez v. U.S., No. 11-199.

Attorneys: For Vasquez: Beau Brindley, Chicago For United States: Donald Verrilli Jr., Washington, D.C.


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