Appeals from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 93 CR 294--James H. Alesia, Judge. On Petition for Rehearing and Suggestion for Rehearing En Banc
Before CUDAHY, ESCHBACH, and FLAUM, Circuit Judges.
Decided November 21, 1997
On consideration of the petition for rehearing and suggestion for rehearing en banc filed in the above-entitled cause by plaintiff-appellee, a vote of the active members of the Court was requested, and a majority of the active members of the Court have voted to deny a rehearing en banc. All of the judges on the original panel have voted to deny the petition for rehearing. Accordingly,
IT IS ORDERED that the aforesaid petition for rehearing and suggestion for rehearing en banc be, and the same is hereby, DENIED.
Easterbrook, Circuit Judge, with whom Posner, Chief Judge, and Manion and Evans, Circuit Judges, join, dissenting from the denial of rehearing en banc.
The result of a 10-week trial should stand unless the verdict is unreliable. Yet two and a half years after this lengthy trial ended, the panel has set aside the verdicts for the sole reason that defense counsel were confused about the order in which members of the venire were to be seated, and therefore could not make the most advantageous use of their peremptory challenges. The panel did not conclude that this foul-up undermined confidence in the verdict; instead it refused to inquire whether the error was harmless. Quoting dicta in Swain v. Alabama, 380 U.S. 202, 219 (1965), that "[t]he denial or impairment of the right is reversible error without a showing of prejudice", the panel continued: "harmless error analysis is inappropriate where a defendant's statutory right to peremptory challenge has been denied or impaired". United States v. Underwood, 122 F.3d 389, 392 (7th Cir. 1997). This approach has the support of United States v. Taylor, 92 F.3d 1313, 1325 (2d Cir. 1996); Kirk v. Raymark Industries, Inc., 61 F.3d 147, 158-62 (3d Cir. 1995) (civil case); Knox v. Collins, 928 F.2d 657, 661 (5th Cir. 1991) (collateral attack on state conviction); and United States v. Annigoni, 96 F.3d 1132 (9th Cir. 1996) (en banc). But four other courts of appeals have held that an error that causes the defense to lose or waste peremptory challenges may be deemed harmless when, in the language of Fed. R. Crim. P. 52(a), the reduction in the number of available challenges does not affect "substantial rights". See McQueen v. Scroggy, 99 F.3d 1302, 1320-21 (6th Cir. 1996) (collateral attack); United States v. Horsman, 114 F.3d 822, 825 (8th Cir. 1997); Getter v. Wal-Mart Stores, Inc., 66 F.3d 1119, 1122 (10th Cir. 1995) (civil case); United States v. Farmer, 923 F.2d 1557, 1566 & n.20 (11th Cir. 1991). As the ninth circuit did in Annigoni, we should resolve this issue en banc.
Although peremptory challenges are authorized in all federal jury trials, their use is increasingly contested now that Georgia v. McCollum, 505 U.S. 42 (1992), has held that prosecutors may object to challenges exercised by the defense. Assessing challenges on the fly yields many claims of error, and other things too can go awry, as they did in the jury selection preceding the Messinos' trial. Today's case starkly presents the question whether harmless-error analysis is necessary; no factual complications or extraneous legal questions impede decision. Our panel recognized that the subject is important, one judge wrote separately to express doubts about the doctrine of automatic reversal, and the conflict among the circuits demonstrates that the problem is common elsewhere. A significant, recurring legal issue is a prime candidate for hearing by the full court. That the panel has decided the issue incorrectly makes rehearing all the more appropriate.
Perfection is elusive. Appellate courts long ago ceased to be citadels of technicality and began to ask whether a particular error implies that the judgment is unreliable. To redo a lengthy trial--to redo it 3 years after the original trial, 5 years after the indictment, 17 years after the drug conspiracy began, as the panel has directed--is to ensure that the outcome will be less reliable than it was the first time even if there are no legal errors. Memories will have faded or become distorted, witnesses will have died, evidence will have vanished. New errors are bound to occur, perhaps more serious than those in the first trial. While the Messinos' second trial occupies the courtroom, other cases will fester in the queue, and litigants innocent of any responsibility for the delay will suffer losses as a result. As usual, the quest for the perfect is the enemy of the good.
The panel approached this issue as if it had to make a decision about wise policy. Should it undertake harmless-error analysis, given the inscrutable effects of missed opportunities in jury selection, or should it insist on error-free implementation of the rules and avoid that task? As an original matter that would be an interesting question. Though I have my doubts about the panel's assessment of the competing goals--judicial review of peremptory challenges after Batson v. Kentucky, 476 U.S. 79 (1986), means that there are more errors, and a correspondingly high benefit of a harmless-error rule--the subject is not open to decision as an original matter. Rule 52(a) provides: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." It does not except errors affecting peremptory challenges. Any error that does not affect substantial rights shall be disregarded. See also 28 U.S.C. sec.2111 ("On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors which do not affect the substantial rights of the parties."); Fed. R. Civ. P. 61 ("The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.").
Occasionally courts declare that Rule 52(a) and sec.2111 just don't apply to one or another right. Fifteen years ago we held that a prosecutorial request to the jury to draw an adverse inference from the defendant's exercise of his privilege against self-incrimination could not be harmless. But the Supreme Court disagreed, holding that Rule 52(a) applies, just as it says, to any error, even one of constitutional dimension. United States v. Hasting, 461 U.S. 499 (1983). Despite Hasting, another court of appeals soon held that misjoinder never could be harmless because it is "inherently prejudicial". Again the Court reversed, holding that Rule 52(a) must be applied across the board. United States v. Lane, 474 U.S. 438 (1986). Soon a conflict among the circuits developed on the question whether a court of appeals could assert a supervisory power to reverse without a harmless-error analysis. Yet again the Supreme Court disapproved, writing that "federal courts have no more discretion to disregard the Rule's mandate than they do to disregard constitutional or statutory provisions." Bank of Nova Scotia v. United States, 487 U.S. 250, 255 (1988).
Our panel did not discuss or even cite Rule 52(a), sec.2111, Hasting, Lane, or Bank of Nova Scotia. Nor did it acknowledge any of the four recent appellate decisions employing the harmless-error rule. The panel's treatment of authority is the norm among appellate courts that refuse to use a harmless-error approach when dealing with peremptory challenges. The following table illustrates:
Discussion or citation of. . .
Case Rule 52/61 sec. 2111 Hasting Lane ...