top of page

Harmless Error? (Part 2 of Ponder This)

Updated: Jul 9, 2021

This post is part two of an ongoing series.

Part 1: Ponder This

Part 3: Reasons Why

When the U. S. Supreme Court first expressed that criminal defendants have the right to effective assistance of counsel, it insisted that standard should not be any different because a defendant faced the Death Penalty. The Court then went on to create deferential steps in assessing a capital trial attorney’s performance, noting that the reviewing of claims for ineffective assistance “ not to improve the quality of legal representation”. For a defendant’s claim to succeed she/he must show that counsels errors “actually had an adverse effect on the defense”. As a result to this vague approach, lower courts deny relief routinely in cases involving poor representation in Death Penalty cases.

When someone gets a Death Sentence, it is usually not because of the nature of the crime, nor is it the guilt or innocence of the defendant, but by the quality of trial counsel. There are claims of sleeping lawyers, missed deadlines, alcoholic and disoriented lawyers and lawyers who fail to vigorously defend their clients. Even Supreme Court Justice Ruth Bader Ginsburg acknowledged the problem by remarking, “I have yet to see a death case, among the dozens coming to the Supreme Court on the eve of execution petitions, in which the defendant was well represented at trial”.

The Supreme Court doctrine states that States need not provide any post-conviction proceeding in capital cases. States could end their review of criminal convictions and provide no additional means of gauging the fairness of a defendant’s trial. The Court went on to recognize that this “greater” power to deny any means for post-conviction relief allows a State to exercise the “lesser” power of denying counsel to indigent prisoners when the State chooses to establish collateral proceedings, (appeals). The result being death-sentenced prisoners cannot seek relief based on the ineffectiveness of counsel in post conviction review. In practice though, States have moved to provide counsel in proceedings such as this because it gives lower courts power to shape the record for future Federal review, (and to receive deference from Federal courts in their resolution of constitutional claims).

More importantly, over the past thirty years, the U. S. Supreme Court and Congress have imposed major barriers to all federal habeas corpus petitioners, making it almost impossible for State petitioners to vindicate their federal constitutional rights in court. Habeas Corpus is the primary means for State prisoners to have the chance for review of their convictions in Federal Court.

The example of that limited chance for review is in the Court’s approach to actual innocence, does the Constitution require courts to stop the execution? The answer to this is “no”. The U. S. Supreme court expressed scepticism about a necessity for constitutional post- conviction review of “bare innocence” claims. (“This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a court that she/he is actually innocent”. Justice Antonin Scalia ). The court went on to highlight the importance of finality in criminal adjudication by ultimately denying relief, finding that evidence of innocence alone is insufficient to overturn a conviction.

To prove a Constitutionally deficient performance, (error), the defendant must “identify the acts or omissions...that are alleged not to have been the result of reasonable professional judgment ”to” show that counsel's representation fell below an objective standard of reasonableness “and” outside the range of professionally competent assistance”.

The “highly deferential” reviewing court must “indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance, and recognize that cases warranting the grant of relief based on ineffective assistance of counsel “are few and far between”.

The definition of “error” in a law dictionary: Error: A mistake made by a judge in the proceedings used at trail, and in making legal rulings during the trial. Some errors must be objected to at the time in order to ask a higher court to review this case. If the error could have affected the outcome, it’s called reversible error.

When you are on trial for capital murder, and so subject to the death penalty, would you think your sleeping through parts of it “harmless”? If your attorneys were admittedly drunk and disoriented is it “harmless”? How about when they fail to interview a potential alibi witness, and neglect to investigate any aspect of your case while solely relying on the conclusions of the police and prosecution, is that also, in your mind “harmless”?

District, State, Circuit and the U. S. Supreme Court itself have all said those things, along with many more, were indeed harmless to cases where people were sentenced to death and that those “harmless errors” did not affect the outcome.

Perhaps the one true “error” people make when it involves having to interact with the police, prosecutors, judges and their own defense attorneys, is the given impression that any of them have a sense of what is good or bad, right or wrong or what common sense and decency even mean.

“He saw a lawyer killing a viper

And the devil smiled, for it put him in mind of Cain and his brother Abel.”

Samuel Taylor Coleridge “The Devil’s Thoughts”

37 views0 comments

Recent Posts

See All


Anchor 1
bottom of page