Automatic Reversal Down, Not Out

To an appellate defense attorney, the two best words in the English language are "automatic reversal." Yet over the last few decades, the number of errors that will result in an automatic reversal -- that is, reversal without any need to show actual prejudice -- has grown smaller. So this makes it all the more interesting that three recent Illinois cases show that there still are times where an error will be considered serious enough that reversal will be ordered regardless of the strength of the prosecution's case.

First, let's consider some background.

In 1967 the U.S. Supreme Court formally rejected the argument that the mere existence of a federal constitutional error must automatically result in a reversal of a conviction. Chapman v. California, 386 U.S. 18 (1967). The court held that most constitutional trial errors were subject to a "harmless error" analysis: if the state could show beyond a reasonable doubt that the error did not contribute to the conviction, then the conviction would be affirmed.

However, the Supreme Court has held that certain errors so infect the entire trial process that they will always result in a new trial. The court refers to these as "structural errors." Examples of "structural errors" are the complete denial of counsel (see Gideon v. Wainwright, 372 U.S. 335 (1963)); a biased trial judge (see Tumey v. Ohio, 273 U.S. 510 (1927)); racial discrimination in the selection of the grand jury (see Vasquez v. Hillery, 474 U.S. 254 (1986)); denial of selfrepresentation at trial (see McKaskle v. Wiggins, 465 U.S. 168 (1984)); denial of a public trial (see Waller v. Georgia, 467 U.S. 39 (1984)); and use of a defective reasonable doubt instruction (see Sullivan v. Louisiana, 508 U.S. 275 (1993)).

It is a list the court is reluctant to expand. Despite earlier case law that appeared to hold to the contrary, the Rehnquist court has held that the use of an involuntary confession is subject to harmless error analysis. Arizona v. Fulminante, 499 U.S. 279 (1991). And the court has recently emphasized that even the failure to instruct the jury on an element of an offense can be harmless error. Mitchell v. Esparza, 124 S.Ct. 7 (2003); Neder v. U.S., 527 U.S. 1 (1999).

This makes the three new Illinois cases eschewing prejudice all the more significant. The first case concerned Richard Morris, charged with the first-degree murder of Ervin Shorter arising out of a carjacking. People v. Morris, 209 Ill.2d 137 (2004) Ill.Supp.Ct., No. 87645, decided March 18. Morris made statements implicating himself in the Shorter murder as well as in the completely unrelated murder of Fred Jones.

Before trial, the judge granted a defense motion to exclude all mention of the uncharged Jones murder. Yet defense counsel somehow misunderstood the court's ruling; believing that evidence of the uncharged Jones murder could be introduced by the prosecution, she decided to preempt the prosecution by describing the Jones murder in detail during her opening statement. The prosecution later got Morris to admit his guilt to the Jones murder on cross- examination. Morris was convicted of the Shorter murder and sentenced to death.

On appeal, Morris alleged that his attorney had been constitutionally ineffective. The Illinois Supreme Court first noted that the traditional test for effectiveness of counsel provides that the court must make two findings: first, that the attorney's performance was below an objective standard of reasonableness and, second, that the attorney's deficient performance actually resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668 (1984). "Prejudice" is found when there is a reasonable probability that the verdict could have been different. In other words, the worst lawyering in the world may not affect a conviction for a murder committed before 40,000 eyewitnesses at Wrigley Field.

There is one situation where prejudice need not be shown, however. This occurs when "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing." U.S. v. Cronic, 466 U.S. 648, 659 (1984). Just recently, however, the U.S. Supreme Court emphasized that Cronic is to be sparingly applied: "the attorney's failure must be complete." Bell v. Cone, 535 U.S. 685 (2002).

Years ago the Illinois Supreme Court found Cronic error in a murder case in which the defense attorney conceded defendant's guilt at trial and argued that the only issue was whether he should be receive the death penalty. People v. Hattery, 109 Ill.2d 449 (1985). Likewise, the Morris court found counsel's errors to be both "fundamental" and "inexcusable." Relying on Cronic and Hattery, it thus reversed the conviction without even considering prejudice.

Another area in which the Illinois Supreme Court has reversed convictions without considering prejudice concerns prosecutorial misconduct. In People v. Blue, 189 Ill.2d 99 (2000), the court confronted a murder case containing pervasive prosecutorial misconduct (e.g., introduction of the victim's blood- stained police uniform) along with significant evidence of guilt. In ordering a new trial, the court found that "the evidence proving defendant's guilt is overwhelming." Nevertheless, the court held that any defendant "whether guilty or innocent" is entitled to a fair trial and reversed the convictions.

The court recently reaffirmed this in People v. Johnson, 208 Ill.2d 53 (2003), where it similarly reversed a conviction in a case of serious prosecutorial misconduct and substantial evidence of guilt. It held that the misconduct "warranted reversal irrespective of the evidence" and characterized the error as a "structural defect" that must result in a new trial.

Finally, the 3d District Appellate Court recently faced a case in which the trial judge forced a defendant to wear an electronic stun belt at trial without weighing the factors that a court must consider in determining whether such a restraint is necessary in a particular case. People v. Martinez, 2004 Ill.App.LEXIS 360 (3d Dist., decided April 2). The Appellate Court found the trial court's failure to weigh the factors was error under People v. Boose, 66 Ill.2d 261 (1977). The 3d District reversed without even considering the strength of the state's case, holding that "no matter how strong the evidence against an accused may be, a fair trial ... is a fundamental requirement."

These cases remind us that despite the ubiquity of "harmless error" analysis, there are still some errors so serious that reversal is automatic.