Case o' The Week: Fletcher Tackles Harmless Error in Gonzalez-Flores

A defense loss still provides useful language for future cases, as Judge Betty Fletcher (left) cleans-up sloppy analysis in previous Ninth Circuit cases on harmless error -- a showing that is the government's burden. United States v. Gonzalez-Flores, __ F.3d. __, 2005 WL 1924724 (9th Cir. Aug. 12, 2005), available here.

Players: Authored by Judge Betty Fletcher.

Facts: Three witnesses in a two-day trial put Gonzalez-Flores as an alien-smuggler. Id. at *1. Over defense objection, the government introduces at trial testimony that two of the girls smuggled suffered from extreme heat stroke - one almost died. Id. at *2. On appeal, the government didn’t bother to argue that this was harmless error. Id. at *5.

Issue(s): 1. Did the admission of the heat-stroke evidence violate FRE 403? 2. Can the Court raise harmless error sua sponte? 3. If this was erroneous, was it harmless error?

Held: 1. Re: FRE 403: "[W]e conclude that the evidence should have been excluded under Rule 403, which prohibits evidence whose probative value is substantially outweighed by the danger of unfair prejudice . . ." Id. at *3.

2. Re: Sua sponte Consideration of Harmless Error: "[T]he government's failure to argue that an error is harmless does not categorically preclude our consideration of that question." Id. at *6.

3. Re: Harmless Error: "The record here does not merely provide a fair assurance of harmlessness, . . . it leads us inexorably to the conclusion that the error's harmlessness is beyond serious debate." (internal citations and quotations omitted).

Of Note: The most interesting aspect of this opinion is the harmless error discussion. Judge Fletcher goes to considerable effort to correct sloppy language in previous decisions regarding harmless error. Id. at *5 & n.3. As the decision explains, "we find in our case law a handful of stray passages reciting the harmless-error rule in an inartful fashion that reverses the presumptions delineated in Morales by conditioning reversal on a showing that the non-constitutional error more likely than not affected the verdict rather than requiring reversal unless the error more likely than not did not affect the verdict." Id. (emphasis in original). Judge Fletcher corrects that erroneous approach: "Fortunately, two fairly recent opinions, one in the criminal context and one in the civil context, have thoughtfully considered the nature of the harmless-error inquiry and confirmed that an error presumptively requires reversal and the burden is on the government to demonstrate otherwise by showing that the error was more probably than not harmless." Id.

How to Use: The downside of Gonzalez-Flores is the sua sponte consideration of harmless error - despite the government’s failure to brief that issue. Id. at *6. Despite this unwelcome new rule, the opinion is still very useful for its forceful view of the correct harmless error approach – emphasizing the burden that squarely falls on the government. Footnote 3 of the case should be a required quote in any defense appellate brief addressing harmless error.

For Further Reading: Judge Betty Fletcher has served on the Ninth Circuit since 1979. See article here. In 1995, her son Willie Fletcher was nominated to the Ninth by; he was re-nominated in 1997. Id. Controversy over the mother-son pair on the appellate court was avoided (and Willie’s confirmation was smoothed) when Betty Fletcher took senior status in the Ninth. Id.

Anyone who has argued before Judge Betty Fletcher knows that she has a distinctive voice. Listen to oral argument of Silva, here, type-in "04-99000." That voice has consistently been one of the most powerful defenders of constitutional liberties in the Ninth Circuit.

Steven Kalar, Senior Litigator N.D. Cal FPD. Website available at www.ndcalfpd.org