Brief for Professor Daniel Epps as Amicus Curiae in Support of Petitioner, Pon. v. United States

This brief on behalf of Professor Daniel Epps argues that the Supreme Court should grant the petition for certiorari in Pon v. United States as this case presents an excellent opportunity for the Court to clarify the doctrine of harmless constitutional error and provide needed guidance for lower courts. Although this Court established a rule for harmless constitutional errors in Chapman v. California, it has never answered a set of fundamental questions raised by that decision. For example, the Court has never explained what source of law generates the Chapman rule or what its relationship is to the governing federal statute, 28 U.S.C. § 2111. The leading view is that harmless error is part of the law of remedies. Others believe that it is mandated by constitutional due-process guarantees. Amicus’s own theory is that harmless error flows directly from the underlying constitutional rights at issue in an appeal. This larger debate about harmless constitutional error is of more than merely academic interest. Trying to understand harmless error’s foundations is necessary if the Court is to explain how harmless-error analysis should work in practice. If harmless constitutional error is a wholly remedial doctrine, then an approach like the Eleventh Circuit’s—which looks to “overwhelming evidence of guilt”—may well be permissible. But as opinions from jurists ranging from Justice Brennan to Justice Scalia show, powerful intuitions about harmless error contradict the Eleventh Circuit’s approach. Rather than asking about whether a jury in an alternate universe would have convicted the defendant had the error never occurred, courts instead must ask “whether the guilty verdict actually rendered in this trial was surely unattributable to the error.”