Further, the “pragmatic effect” of the violation is clearly NOT what you are looking at, since it is not pragmatic to only take in the smallest picture — what the felon’s position is — when determining the overall effect. It cannot get any more pragmatic than to consider whether the constitutional violation made a difference in the outcome of the trial, and decide to vacate the trial on that basis. Your argument is based entirely on principle, not pragmatism. Thus, your focus on “the defendant is a real person, not an object of laws.” While I admire such a principle, it is simply not tenable in the way you would apply it.

“You want me to be offend for defending a rapist…”

Daniel, you seem to be very confident in your ability to discern what others are thinking. Given that you are 0 for 2 in this thread, a bit less confidence is in order.

These kinds of snarky remarks do not make your argument more persuasive, but quite the opposite.

I don’t want you to be offended for defending a rapist, but i’d like you to think you are bending way too far backward, going beyond what the constitution requires. Beyond that, the Rule of Law is largely about “formalism”, so i’m not sure why you use that term disparagingly. The very constitutional defect in the defendant’s first trial that you believe merits a new trial is a procedural violation, the essence of formalism IMO.

And an important component of that is impartiality, which your proposal, dependent as it is on calibrating determinations of trial constitutionality with the severity of the sentence, unjustifiably violates. What principle can it stand on? How would you explain to Mr. Assault and Battery doing 9 months time that the constitutional defect in his trial doesn’t merit a new trial for him, but that the EXACT SAME defect in Mr. Child Rapist’s trial merits him a new trial?

Let me speculate: I think that the root reason here is that you know it would be impractical, would cause the system to grind to a halt, if the same principle were applied to all cases and trials. So you want to reserve it for the real bad criminals. But to me, ANY principle of trial constitutionality that, if applied to all trials, would cause the system to grind to a halt, is by definition a principle that isn’t actually mandated by the Constitution, since the Constitution was a document that as about practical governance.

As for the issue of outcomes, the serverity of the crime is not an outcome of the trial; it is antecedant to the trial. So I see no conflict there. If one wants to be picky, I am focused on outcomes but it is the outcome of the choice the prosecution makes in its charging decision; I am not concerned with the affect of the constitutonal violation on the outcome of the trial.

Stephen, I agree with all my heart. You want me to be offend for defending a rapist and I am not. BruceM over at the Volokh Conspiracy put it exactly right “the rule of law should be most solicitous of those defendants who are most reviled.”

“I argue that a constitutional violation is a constitutional violation and the notion that there are grades of constitutional violations is a sick legal formalism. I think the better perspective is to look at the pragmatic affect of the violation; that is, the gravity of the crime in question. A constitutional violation in a case concerning verbal assault is minor and a constitutional violation regarding child rape is major.”

What? You chide James for focusing on outcomes, but then do … exactly that, save for you, the “outcome” isn’t the severity of the constitutional violation, it’s the severity of the crime, and hence the sentence, the defendant faces. Sheesh!

As for pragmatism, here’s one practical, real-world effect of your recommended approach that no one should like: it means that the most heinous criminals, the child rapists, murderers, etc. will have more constitutional protection and will have more judicial resources spent on them then the minor criminals.

Frankly, the outcome I mentioned in my prior post — namely, whether the constitutional violation would affect the result of the trial — saves judicial resources and lessens the “gotcha” form of litigating that has become all-too-prevalent these days. Your rule would waste judicial resources through needless additional trials and endless wrangling over whether a given party has suffered enough negative “consequences” to warrant the full remedy. I agree, the defendant is a real person, but they do not stand in a vaccuum.

You write: “In other words, the remedy should be different based on whether the trial was fundamentally unfair or whether it was merely constitutionally infirm in a respect that had no material effect on the outcome.” I don’t agree. First, the issue isn’t whether the trial was unfair; that’s a loaded term that is best avoided. The issue is whether the trial successfully safe-guarded the constructional rights of all parties. To focus on the outcome of the trial in terms of its judgment entirely ignores the issue of substantive due process. If the process is constitutional then the outcome is by definition constitutional and that is as close to “fairness” as we can ever hope to get as human beings. This is why I reject a focus on outcomes. Determining whether a constitutional violation has a significant affect on the outcome is an endeavor in judicial mysticism.

I argue that a constitutional violation is a constitutional violation and the notion that there are grades of constitutional violations is a sick legal formalism. I think the better perspective is to look at the pragmatic affect of the violation; that is, the gravity of the crime in question. A constitutional violation in a case concerning verbal assault is minor and a constitutional violation regarding child rape is major. All constitutional violations harm the body politic but the harm should not be measured based upon some legal formalism but upon the real world consequences to the defendant. This is so not because there are no real world consequences to the alleged victim or even to the administration of justice as a system. It is so because it is the defendant who had his constitutional rights violated.

What really bugs Ken and Sean is that I insist on one simple fact: that the defendant is a real person too, not an object of laws. Child rape is a cruel crime but a defendant is innocent until proven guilty and that means proven guilty in a constitutionally sound trial. To hold our constitution and the fate of the defendant as a human being in the hands of the judge’s understanding of the constitution at any particular point in time should be unacceptable to all decent human beings. Some major errors are forever out of our ability to correct simply because we only recognize the error after it is beyond our power to correct, but when we have the opportunity to correct errors human decency requires that we do so. This is the concrete purpose of the appeals process. The SC has found a constitutional violation. The consequences of ignoring that violation for the defendant are huge. He deserves a new trial.

In other words, the remedy should be different based on whether the trial was fundamentally unfair or whether it was merely constitutionally infirm in a respect that had no material effect on the outcome.