Anthony D. Hardnett v. Charles D. Marshall

Opinion by Judge NOONAN; Concurrences by Judges SCHROEDER and JONES.

This case involves a difficult question of whether a prosecutor’s violation of a criminal defendant’s rights under the Confrontation Clause, as applied to California by the Due Process Clause, was of a character to warrant the grant of habeas corpus. The issue is close. The ease is as follows:

In the early hours of October 7, 1989, at the Winsor Hotel, 20 Sixth Street between Market and Mission Streets, San Francisco, a block away from this Court of Appeals and two long blocks from City Hall, Vance Outlaw was stabbed to death. There is no doubt as to who stabbed him. They were David Eng and his twin sister Denise and the petitioner in this case, Anthony Hardnett. Of the three, Hardnett alone seeks habeas, alleging a violation of his right of confrontation that affected his defenses of voluntary or involuntary manslaughter.

The violation of the constitutional right is clear. Our task is to determine whether the violation was so gross that no actual prejudice analysis is necessary or, if such analysis may be made, whether the state of California has shown that Hardnett suffered no actual prejudice with the jury.…

concurring:

I concur in the judgment and with all of the majority’s opinion except the interpretation of footnote .nine of Brecht v. Abrahamson, - U.S. -, 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993). That troublesome footnote creates a special category of “deliberate and especially egregious error[s] of the trial type” for which habeas relief is available even if the error “did not substantially influence the jury verdict.” In my view, this special category of “trial error” is one for which reversal is required unless the state can show the error to have been harmless beyond a reasonable doubt. Because I conclude that the prosecutorial misconduct in this case, although serious, could not have affected the jury’s deliberation in any way, I agree with the majority that habeas relief is not warranted.

The majority opinion, however, while concluding that any error in this case was harmless, equates the new category of footnote nine error with “structural error” that requires automatic reversal or habeas relief. See Brecht, - U.S. at -, 113 S.Ct. at 1717 ; Arizona v. Fulminante, 499 U.S. 279, 290 , 111 S.Ct. 1246, 1254 , 113 L.Ed.2d 302 (1991). Structural errors have included, for…

concurring:

I join Judge Noonan’s interpretation of footnote nine of Brecht v. Abrahamson, - U.S. -, - n. 9, 113 S.Ct. 1710 , 1722 n. 9, 123 L.Ed.2d 353 (1993), and, because I share a concern for the implications of this interpretation, I write separately to set forth my analysis.

There are two main categories of constitutional violations that can occur in a criminal proceeding. A “structural error”, such as occurs when the judge is biased or the defendant is denied counsel, affects the basic elements of the trial and requires reversal; it may not be considered harmless. A “trial error” is a constitutional mistake made in the course of presentation of the case to the jury and is subject to review for harmless error.

There are also two types of harmless-error review. “Chapman ” review considers whether the error is harmless beyond a reasonable doubt. “Kotteakos” review considers whether the error resulted in actual prejudice. The Chapman standard applies in cases of direct review. The Kotteakos standard applies on collateral review — this is the holding of Brecht , arrived at in part because there is no reason for the federal courts to conduct the exact same review as the state…

25 F.3d 875 Anthony D. HARDNETT, Petitioner-Appellant, v. Charles D. MARSHALL, Respondent-Appellee. No. 93-15857. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 14, 1994. Decided June 6, 1994. As Amended Aug. 26, 1994. J. Bradley O'Connell, First Dist. Appellate Project, San Francisco, CA, for petitioner-appellant. Ronald S. Matthias, Deputy Atty. Gen., San Francisco, CA, for respondent-appellee. Appeal from the United States District Court for the Northern District of California. Before: SCHROEDER and NOONAN, Circuit Judges, and JONES * , District Judge. Opinion by Judge NOONAN; Concurrences by Judges SCHROEDER and JONES. NOONAN, Circuit Judge: 1 This case involves a difficult question of whether a prosecutor's violation of a criminal defendant's rights under the Confrontation Clause, as applied to California by the Due Process Clause, was of a character to warrant the grant of habeas corpus. The issue is close. The case is as follows: 2 In the early hours of October 7, 1989, at the Winsor Hotel, 20 Sixth Street between Market and Mission Streets, San Francisco, a block away from this Court of Appeals and two long blocks from City Hall, Vance Outlaw was…