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Is an ex post facto violation special?

Below, Harvard Law School’s Jesenka Mrdjenovic recaps Wednesday’s oral argument in United States v. Marcus.  Jesenka’s earlier preview of the case is available here.  Check the United States v. Marcus (08-1341) SCOTUSwiki page for additional updates.

During oral argument in United States v. Marcus on Wednesday, the Court focused on whether there was anything sufficiently special about a violation of the Ex Post Facto clause that would justify deviation from the ordinary Olano standard for Rule 52(b).

On behalf of the federal government, Assistant to the Solicitor General Eric Miller opened by arguing that the Second Circuit had applied the incorrect standard under Rule 52(b) when it held that “reversal of [Marcus’s] conviction was appropriate on plain error review if there was any possibility, no matter how unlikely, that the jury’s verdict was based entirely on conduct predating the enactment of the statute.” Instead, Mr. Miller argued, Rule 52(b) imposes a much higher burden, requiring a “reasonable possibility that the error actually affected the outcome of the case.”

Justice Ginsburg began the questioning by asking whether there are any errors “that are so basic that they would call for an automatic new trial.” Mr. Miller responded that although the Court has previously reserved the question whether structural errors automatically satisfy Olano’s third prong – which requires a showing of an effect on “substantial rights” –  the error in this case was not such an error. And in any event, he continued, even structural errors would need to satisfy the fourth Olano prong – that “there was an effect on the fairness, integrity and public reputation of judicial proceedings.” Mr. Miller agreed that some constitutional violations are considered more serious than others under Rule 52(b), but he maintained that “the test that would be applied would be the same,” even if “the result of that test might be different.” All errors are subject to Rule 52(b) analysis under Johnson, even those “errors implicating fundamental constitutional rights like the Sixth Amendment.” Mr. Miller reserved the remaining sixteen minutes for rebuttal.

On behalf of the respondent, Herald Price Fahringer opened by arguing that some errors, like the one in this case, “are so basic that they require a reversal automatically.” Justice Kennedy pointed out that because the evidence at issue was necessary background information, “most trial judges would have admitted [it] with the proper instruction to the jury,” but Mr. Fahringer countered that there was a “good likelihood that [the evidence] would have been excluded” under Federal Rule of Evidence 403 because the prejudice resulting from the evidence would have outweighed its probative value. Justice Kennedy couldn’t resist a joke, as he retorted,“Well, you can be pleased that I was not the trial judge.”

Most of the Justices’ questions focused on why this particular error justified the Second Circuit’s deviation from the normal plain error review. Mr. Fahringer argued that “the possibility standard only applies to [the] ex post facto statute, the cases, and pre-enactment conduct.”  Mr. Fahringer explained that the Second Circuit’s test was justified by the “magnitude of the error here” and the need for a “bright-line rule.”

Responding to a question from Justice Alito about whether the test would be different if the jury had considered evidence of conduct that occurred just one day before the statute took effect, Mr. Fahringer argued that “that no person in this country under our Constitution should be tried for one day on conduct that did not violate a law.” Justice Breyer pointed out there were many errors under which “no person should be convicted” — including convictions based on coerced confessions, evidence gained by the use of torture and evidence that was unlawfully seized by the police — and asked how this error was “special.” Mr. Fahringer responded that this case was different because “In all of those cases, there was a law, at least giving the court jurisdiction, that was violated. There is a very serious question here whether there was jurisdiction when it came in.”

Justice Scalia pointed out that the error in question was really a due process violation rather than a violation of the Ex Post Facto Clause, which prohibits legislatures from enacting a law that “[makes an] action punishable when it occurred before the statute was enacted.” After a brief back-and-forth, Mr. Fahringer agreed that “[i]t’s through the Due Process Clause that the Ex Post Facto Clause is made — made effective in trial.”

On rebuttal, Mr. Miller made two points. First, the “the error in this case was the failure to give a limiting instruction relating to the use of pre-enactment evidence, and that’s the same sort of instructional or evidentiary error that can be considered in a case-specific analysis under prong four, and should have been considered through that analysis.” Second, Mr. Miller rebutted the suggestion that the Court lacked jurisdiction in this case as “rest[ing] on an understanding of jurisdiction that this Court rejected in Cotton.”