Jury Schmury Who Needs a Jury

I spent some time on the phone this afternoon with another lawyer offering him some thoughts and experience about making arguments and convincing courts and how it is that being right isn't enough. The details and background don't matter and would, anyway, invade a conversation which while not exactly privileged was certainly private.  But part of what we discussed was the Harmless Error Rule.

I've written about it before.  18 months or so ago, I wrote this.

The nice way to put the rule is to say that because perfection isn't possible, nobody's entitled to a perfect trial. The Constitution guarantees only a fair trial. If a trial was imperfect in some minor, technical, meaninglessly mechanical way, who cares? Let it go.
And there is a certain logic to that. I mean, if it's clear that the imperfections (a nice word for "errors") didn't matter, what's the point in reversing and doing it over? Why bother? No harm, no foul.
You don't have to have a Mickens case, one where nobody can really tell if it mattered, to know why.
Because, see, here's the thing, and you can forget who has to prove harm or harmlessness or how strongly, because those are quibbles. Those details matter or they don't.
The courts are supposed to get it right. The cops are supposed to do it right. The prosecutors are supposed to do it right. The defense lawyers are supposed to do it right.
And if they can get away with not doing it right, if they can get away with it even some of the time, then three important and really bad things happen.
They have no incentive to do it right. I mean, why bother? Close enough for government work proves, really, to be close enough.
The poor guy at the end of the line is victimized. Maybe he doesn't suffer a result that wouldn't have happened anyway. Maybe he does. But he suffered because his rights were violated. Maybe they were clear constitutional rights. Maybe they were rights he had because some local law or rule wasn't followed (which actually is a constitutional claim, but a derivative one). But he was denied that to which he was entitled.
The system, this whole edifice we've built up, the one we claim to be the bestest and goodest in the world. It suffers. Because we've shown it's bullshit. The rules only matter some of the time. Which means, of course, that they don't matter. And that means it's all a sham.

Which is all true, but that's a different point than today's. That's the policy argument. You know:

The Harmless Error Rule is bad because its consequence undermines any claim to the integrity of the system.

Which, as I say, is true, but a different point.
The lawyer I was speaking with said

It's speculation.

By which he meant, and he was right, that the judges applying the rule are speculating about whether this or that error or impropriety or lie or whatever might actually have been harmful.  And that allows them to decide pretty much whatever they want because, he said, except in extraordinary cases, how can they know.  Which is certainly true and gets at the essential randomness of the Rule.

They're just making it up as they go along.

Which, as I say, is true.
But it also hints at another problem, at another way of thinking about it.  And, sadly, it's another way that won't make any difference, either.
The Sixth Amendment says that the accused has a right to, among other things,

a speedy and public trial, by an impartial jury.

Since 2000, the berobed ones who work in the grand edifice on First Street where the lowly public and the supplicant lawyers must use the servant's entrance because the front door is barred to them and hidden behind a curtain anyway have taken the curious position that three of those words matter.

1. Trial
2. By
3. Jury

And so, they said in Apprendi v. New Jersey, any fact (except a prior conviction) that enhances a sentence beyond the statutory maximum, must be either admitted by the defendant or proved, beyond a reasonable doubt, to the satisfaction of a jury. And they said, in a series of later cases (look 'em up yourself if you care), that they meant it.  It's a jury system the framers gave us, and that means the jury has to decide stuff.  It's just not good enough for the judge to decide.

Which is, of course, exactly what happens with the Harmless Error Rule.

Something went wrong?  OK, now what?  Now we, the ones wearing the robes, get to decide what facts the jury would have found to be true if only they'd known what we know (or not known what they shouldn't have been told).

The Sixth Amendment says the accused has a right to have a jury decide the facts.  The Harmless Error Rule says that the accused has the right to have a judge decide what the jury would have decided.  Which makes the Rule not just bad policy but flat out unconstitutional.

Which is what I told that lawyer on the phone.