Hedgpeth v. Pulido - Oral Argument - October 15, 2008

Hedgpeth v. Pulido

Media for Hedgpeth v. Pulido

Audio Transcription for Opinion Announcement - December 02, 2008 in Hedgpeth v. Pulido

Audio Transcription for Oral Argument - October 15, 2008 in Hedgpeth v. Pulido

John G. Roberts, Jr.:

We'll hear argument next in Case 07-544, Hedgpeth versus Pulido.

Mr. Friedlander.

Jeremy Friedlander:

Mr. Chief Justice, and may it please the Court: Respondent has agreed with us that the ninth circuit was wrong when it said that the error here and the one in Stromberg were structural defects.

The remaining question is whether Respondent can salvage the Stromberg rule by making it part of a proper harmless error test as he attempted to do.

His harmless error test is wrong for several reasons, but the Stromberg part of it was wrong for basically one reason.

He makes the Stromberg rule into a rule of harmless error, and it is not even a correct rule of error.

This Court has defined "instructional error" to require not merely a mistake in instruction, but a reasonable likelihood that the jury misapplied the law.

So when Respondent says, invoking Stromberg, that to instruct the jury on valid and invalid theories is harmless error if the jury adopted a valid theory, what Respondent is saying is nothing more than that no error occurred in the first place.

Because the jury found everything it needed to find in order to convict and, therefore, did not misapply the law.

Antonin Scalia:

Do that again, will you?

Jeremy Friedlander:

We need to have a reasonable likelihood that the jury misapplied the law.

That's how we get to error.

Respondent invokes Stromberg to say if the jury is instructed a right way and a wrong way and they went the right way, we have harmless error.

No.

What we really have is no error at all.

Because there is the -- the jury did not misapply the law.

Moreover, Stromberg is not even a correct rule of error.

Because under Stromberg you have error if the jury could have misapplied the law.

John Paul Stevens:

Can I interrupt you?

You are saying no error occurred, and on page 11 of your brief you say,

"An unconstitutional instructional error occurred in this case because there was a reasonable likelihood the jury found. "

and so forth and so on.

Jeremy Friedlander:

Yes.

I agree that error occurred in this case.

What I'm trying to argue here is that Respondent is entirely off base in importing the Stromberg rule into a harmless error determination.

Stromberg is, at most, a rule of error.

The jury went the wrong way.

That is a rule of error, but it is not even a correct rule of error because under Stromberg you say, could the jury have gone the wrong way; whereas, under this Court's modern precedent you have to have a reasonable likelihood that the jury--

John Paul Stevens:

But you said that's what happened here.

That's what your brief says.