No.

20-1709

IN THE
Supreme Court of the United States
DAVID MING PON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

BRIEF OF THE CATO INSTITUTE AND

FLORIDA ASSOCIATION OF CRIMINAL DEFENSE
LAWYERS AS AMICI CURIAE
SUPPORTING PETITIONER

CLARK M. NEILY III WILLIAM M. JAY

CATO INSTITUTE Counsel of Record
1000 Massachusetts Ave., NW JENNY J. ZHANG
Washington, DC 20001 GOODWIN PROCTER LLP
1900 N Street, NW
Counsel for Cato Institute Washington, DC 20036
(202) 346-4000
DIANA L. JOHNSON [email protected]
FLORIDA ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS Counsel for Amici Curiae
407 North Laura Street
Jacksonville, FL 32202

Counsel for Florida

Association of Criminal
Defense Lawyers July 12, 2021
 i
TABLE OF CONTENTS
Page

INTEREST OF THE AMICI CURIAE ...................... 1 

SUMMARY OF ARGUMENT .................................... 2 
ARGUMENT .............................................................. 5 
I.  A Minority of Circuits Have Misconstrued
this Court’s Harmless-Error Standard to
Elevate Judges’ Perceptions of Guilt. ................ 5 
II.  Error That Taints a Jury Trial Can
Warrant a New Jury Trial Even Where
the Government’s Other Evidence Would
Be Strong If Credited. ........................................ 8 
A.  The Jury Trial Safeguards More than
Accurate Fact-finding in Individual
Cases. ........................................................... 8 
B.  The Retrospective Weighing of Trial
Evidence After Conviction Raises
Concerns About Hindsight Bias. ............... 12 
III. Basing Harmless Error on Judges’
Perception of “Overwhelming Evidence”
Erodes the Institution of the Jury Trial in
Practical Ways. ................................................. 13 
CONCLUSION ......................................................... 15 
 ii

TABLE OF AUTHORITIES

Page(s)

Cases

Apprendi v. New Jersey,

530 U.S. 466 (2000) .......................................... 8, 15

Chapman v. California,
386 U.S. 18 (1967) .................................................. 5

Crawford v. Washington,
541 U.S. 36 (2004) ................................................ 15

Duncan v. Louisiana,
391 U.S. 145 (1968) ................................................ 8

Graham v. John Deere Co.,

383 U.S. 1 (1966) .................................................. 13

Kotteakos v. United States,

328 U.S. 750 (1946) ................................................ 5

United States ex rel. McCann v. Adams,

126 F.2d 774 (2d Cir. 1942) ................................. 10

Neder v. United States,

527 U.S. 1 (1999) ...................................... 2, 5, 6, 13

Ramos v. Louisiana,
140 S. Ct. 1390 (2020) .......................................... 10

Rose v. Clark,
478 U.S. 570 (1986) ................................................ 2
 iii
Satterwhite v. Texas,
486 U.S. 249 (1988) ................................................ 3

Taylor v. Louisiana,
419 U.S. 522 (1975) ................................................ 9

United States v. Baptiste,

935 F.3d 1304 (11th Cir. 2019) .............................. 6

United States v. Garcia-Lagunas,

835 F.3d 479 (4th Cir. 2016) .............................. 6, 7

United States v. Martin Linen Supply

Co.,
430 U.S. 564 (1977) ................................................ 2

United States v. Scheffer,

523 U.S. 303 (1998) ................................................ 9

Constitutional Provisions

U.S. Const. Art. III, § 2, cl. 3....................................... 8

U.S. Const. amend. VI ................................................ 8

Other Authorities

Jasmine Aguilera, Humanitarian Scott

Warren Found Not Guilty After Re-
trial for Helping Migrants at Mexi-
can Border, Time (Nov. 21, 2019),
https://time.com/5732485/scott-
warren-trial-not-guilty/........................................ 11
 iv
Stephanos Bibas, The Psychology of
Hindsight and After-the-Fact Review
of Ineffective Assistance of Counsel,
2004 Utah L. Rev. 1 ....................................... 12, 13

Georges Florovsky, The Study of the

Past, in 2 Ideas of History 351, 364
(R.H. Nash ed., 1969) ........................................... 12

Steven I. Friedland, On Common Sense

and the Evaluation of Witness Cred-
ibility, 40 Case W. L. Rev. 165, 174
(1989) ...................................................................... 9

Thomas Andrew Green, Verdict Accord-

ing to Conscience: Perspectives on the
English Criminal Trial Jury, 1200-
1800 (1985),
https://repository.law.umich.edu/boo
ks/4/ ...................................................................... 10

T.B. Howell, A Complete Collection of

State Trials and Proceedings for
High Treason and Other Crimes and
Misdemeanors from the Earliest
Period to the Year 1783 (1816)............................. 10

Jay Schweikert, Cato Institute, The

Demise of the Jury Trial,
https://www.cato.org/commentary/de
mise-jury-trial (Jan. 16, 2018) ............................. 14
 INTEREST OF THE AMICI CURIAE1
The Cato Institute is a nonpartisan public policy re-
search foundation founded in 1977 and dedicated to
advancing the principles of individual liberty, free
markets, and limited government. Cato’s Project on
Criminal Justice focuses on the scope of substantive
criminal liability, the proper role of police in their
communities, the protection of constitutional safe-
guards for criminal suspects and defendants, citizen
participation in the criminal justice system, and ac-
countability for law enforcement.
The Florida Association of Criminal Defense Law-
yers (“FACDL”) is a statewide organization with more
than 1,700 members across Florida, including private
attorneys, assistant public defenders, and judges.
FACDL’s mission is, inter alia, to “be the unified voice
of an inclusive criminal defense community” and to
“promote the proper administration of criminal jus-
tice.”
Both amici oppose efforts to undermine the institu-
tion of the jury trial. They are participating in this
case out of concern that several courts of appeals are
applying a harmless-error standard that does just
that—replacing the right to a constitutionally sound
jury verdict with a post hoc judicial assessment of the
strength of the government’s evidence.

1 No counsel for a party authored any part of this brief, and no

person other than amici curiae, its members, or its counsel made a
monetary contribution intended to fund its preparation or
submission. Amici curiae timely provided notice of intent to file
this brief to all parties, and all parties have consented to the filing
of this brief.
 2
SUMMARY OF ARGUMENT
An error at a jury trial is not harmless if it may
have affected the jury’s verdict. That sounds simple,
and indeed it is. But a surprising number of lower
courts have gotten the analysis fundamentally wrong:
they think that an error is harmless if appellate judges
conclude that the defendant was probably guilty, based
on the government’s evidence. That warped conception
of appellate review is antithetical to the jury’s role in
our constitutional system. This Court should grant
certiorari to make that clear.
The requirement of a unanimous verdict by lay
members of the defendant’s community, after live tes-
timony and deliberation, serves “as the great bulwark”
of civil and political liberties “to guard against a spirit
of oppression and tyranny on the part of rulers.” Neder
v. United States, 527 U.S. 1, 19 (1999). The jury trial is
integral to both the fairness and the constitutional le-
gitimacy of government-imposed criminal punishment.
This Court has made clear that harmless-error re-
view must not “fundamentally undermine the purposes
of the jury trial guarantee.” Id. Under no circum-
stances may judges impose their own view that a de-
fendant is guilty on the jury, “regardless of how over-
whelmingly the evidence may point in that direction.”
United States v. Martin Linen Supply Co., 430 U.S.
564, 572-73 (1977); see also Rose v. Clark, 478 U.S. 570,
578 (1986). Deciding whether a constitutional error is
harmless, therefore, must focus on whether the error
may have affected the jury’s verdict, because the de-
termination of guilt or innocence is for the jury. The
question cannot be whether the trial judge or appellate
judges think the defendant was guilty despite the con-
stitutional error.
 3
A judge’s conclusion that a tainted verdict is sup-
ported by the prosecution’s evidence, even if that evi-
dence is voluminous, is not enough to find an error
harmless and deny the defendant a constitutionally
sound retrial. Satterwhite v. Texas, 486 U.S. 249, 258-
59 (1988) (“The question . . . is not whether the legally
admitted evidence was sufficient to support the [ver-
dict]”). Rather, harmlessness requires proof “beyond
reasonable doubt” that the error at issue “did not con-
tribute to the verdict obtained.” Id. The lone voice of
the accused can sow enough doubt for a jury to acquit,
even against a barrage of countervailing testimony by
his accusers. Therefore, an error can be harmless only
when there is no reasonable possibility that the error
affected the jury’s view of a contested triable issue.
Lower courts have split on that principle, and the
rift among circuits has only deepened since this Court
dismissed the writ of certiorari on this issue in Vasquez
v. United States, No. 11-199. One side of that split—
the view of harmless error applied in this case—
fundamentally undermines the protections of the jury
trial. Juries are the factfinders in our constitutional
system for good reason: they embody community val-
ues, they don’t work full-time for the government, and
they make decisions collectively, unanimously, and
largely anonymously after private deliberation. Appel-
late judges doing harmless-error review, by contrast,
sit in a very different position. Among other things,
they are vulnerable to the hindsight bias that can arise
from reviewing appeals only after conviction.
Petitioner David Ming Pon was convicted of
healthcare fraud—a crime that requires proof beyond a
reasonable doubt of specific intent to defraud—after
the court wrongly precluded Dr. Pon from offering sur-
 4
rebuttal testimony to respond to evidence of uncharged
fraud introduced by the government for the first time
during its rebuttal. Based on its view of how harmless
error works, the Eleventh Circuit held the error harm-
less without assessing whether the excluded testimony
might have created reasonable doubt in the jurors’
minds as to Dr. Pon’s intent to defraud. Indeed, it held
the error harmless without addressing the defense’s
theory of the case at all. Instead, the court of appeals
concluded that the evidence of guilt was overwhelming
by weighing the “great volume of evidence” presented as
to each charged count of fraud against the “miniscule”
discussion of the uncharged fraud to which Dr. Pon
sought to respond. Pet. App. 56a. Against this back-
drop, the majority reasoned that courts need show no
“special wariness” in upholding a tainted verdict based
on perceived overwhelming evidence of guilt. Id. at
61a.
If all that matters is the strength of the govern-
ment’s case (assessed on paper, after a conviction),
then error—even constitutional error—will routinely
go uncorrected. Over time it may even be tolerated.
That devalues the protections of the jury trial for both
individual defendants and the criminal justice system
as a whole. The Court should grant certiorari to clarify
that the relative strength of the government’s evidence
alone cannot render a constitutional trial error “harm-
less” when the affected evidence bore on a contested
issue at trial and a reasonable jury could have credited
the defendant’s evidence and acquitted.
 5
ARGUMENT
I. A Minority of Circuits Have Misconstrued
this Court’s Harmless-Error Standard to
Elevate Judges’ Perceptions of Guilt.
The well-established standard for harmless error in
criminal cases is whether there is certainty “beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained.” Chapman v. Cali-
fornia, 386 U.S. 18, 24 (1967). This Court’s precedent
makes clear that the relevant “doubt” is not over
whether the defendant is guilty in the judges’ minds,
but over whether the jury might have harbored rea-
sonable doubt at trial, and therefore acquitted, absent
the error. See Kotteakos v. United States, 328 U.S. 750,
764 (1946) (“The crucial thing is the impact of the thing
done wrong on the minds of other men, not on one’s
own, in the total setting”). If doubt about the jury’s
verdict exists, the appropriate remedy is a new jury
trial. In reviewing for harmless error, “it is not the ap-
pellate court’s function to determine guilt or innocence”
or to “speculate upon probable reconviction and decide
according to how the speculation comes out.” Id. at
763. “Those judgments are exclusively for the jury.”
Id.
Under this standard, judges’ role in assessing
harmlessness is not to reweigh the government’s evi-
dence in the absence of the error, but only to make the
threshold assessment of whether the error affected a
disputed issue that was material to the jury’s verdict.
Thus, this Court has found that the omission of an es-
sential element from a jury charge was harmless be-
cause the element was “uncontested” and supported by
“uncontroverted evidence.” Neder, 527 U.S. at 16-18.
The Court reasoned that upholding the tainted verdict
 6
in such a case “does not fundamentally undermine the
purpose of the jury trial guarantee” because the de-
fendant “did not, and apparently could not, bring forth
facts contesting the omitted element.” Id. at 18-19. It
made clear that the same error would not be harmless
“where the defendant contested the omitted element
and raised evidence sufficient to support a contrary
finding.” Id. at 19 (emphasis added).
Some lower courts, including the Eleventh Circuit
in this case, have substantially departed from this ju-
ry-protective standard for harmless error by upholding
tainted jury verdicts based solely on the reviewing
judges’ assessment of the government’s evidence of
guilt. Here, for example, the excluded evidence was
plainly relevant to the contested question of Dr. Pon’s
intent to defraud. The court of appeals deemed the er-
ror harmless based on the “overwhelming” weight of
the evidence supporting Dr. Pon’s guilt, without ever
asking whether the jury could have reached the oppo-
site conclusion if it had credited Dr. Pon’s case over the
government’s. This was consistent with Eleventh Cir-
cuit precedent that an error can be harmless based on
nothing more than the “weight of the other [admissi-
ble] evidence against [the defendant].” United States v.
Baptiste, 935 F.3d 1304, 1314 (11th Cir. 2019).
The Eleventh Circuit is not the only court to mis-
construe the harmless-error standard in this way. Pet.
23-25, 26. To take just one example, consider the case
of a defendant whose theory was that he was merely a
drug user, not (as charged) a dealer responsible for
more than $1 million in drug sales. United States v.
Garcia-Lagunas, 835 F.3d 479, 486 (4th Cir. 2016). He
argued that his squalid living conditions corroborated
his story, especially given the alleged co-conspirators’
 7
lavish lifestyles. Id. at 486, 504. The government chal-
lenged his defense with a rank ethnic generalization—
introducing testimony and arguing in closing that his
impoverished living conditions were consistent with
the habits of “Hispanic drug traffickers,” who (the gov-
ernment argued) generally sent their proceeds to their
native countries—even though there was no evidence
that the defendant sent any money anywhere. Id. at
486, 488. The government eventually conceded on ap-
peal that this unsupported ethnic generalization was
not only error but constitutional error. Id. at 487. And
that error bore directly on the defendant’s defense.
Yet, over a pointed dissent, id. at 501-06 (Davis, J.,
dissenting), the majority nonetheless found the gov-
ernment’s repeated use of this race-based generaliza-
tion to be harmless in light of the circumstantial evi-
dence and testimony of several convicted drug dealers
who pleaded guilty and testified for the government,
which the majority said the jury could have credited.
Indeed, crediting government testimony, the panel ma-
jority announced its own view that the evidence
“demonstrate[d] that [the defendant] was a drug deal-
er.” Id. at 490.
The Fourth Circuit majority exemplified the incor-
rect approach that is gaining purchase in some courts
of appeals: it did not address or consider the possibility
that in the absence of the tainted evidence, the jury
might have alternatively chosen not to credit the gov-
ernment’s evidence and acquitted the defendant on
that basis. The defendant got no relief from a glaring
constitutional error, based on two appellate judges’
reading of the paper record to permit crediting the gov-
ernment’s case. That is emblematic of the problems
 8
with the side of the circuit split on which Dr. Pon finds
himself.
II. Error That Taints a Jury Trial Can War-
rant a New Jury Trial Even Where the
Government’s Other Evidence Would Be
Strong If Credited.
This discrepancy between this Court’s articulated
standard for harmless error and the standard applied
by the court below (and the courts that agree with it) is
not merely semantic. The mere fact that a reviewing
judge views the properly admitted trial evidence to be
overwhelming cannot negate the harm of losing the
right to an untainted jury trial. First, a judge’s post
hoc evaluation of evidence cannot give a criminal con-
viction the same constitutional legitimacy that a pro-
cedurally sound jury trial does. Second, judges review-
ing a trial record after a conviction are likely to overes-
timate the soundness and inevitability of the guilty
verdict.
A. The Jury Trial Safeguards More than Ac-
curate Fact-finding in Individual Cases.
As one of the only protections expressly guaranteed
by both the 1787 Constitution and the Bill of Rights,
U.S. Const. Art. III, § 2, cl. 3; id. amend. VI, the crimi-
nal jury trial serves a unique role in safeguarding indi-
vidual liberty from government power. The jury “has
never been efficient, but it has always been free.” Ap-
prendi v. New Jersey, 530 U.S. 466, 498 (2000) (Scalia,
J., concurring). The “right to jury trial is granted to
criminal defendants in order to prevent oppression by
the Government” and “as a defense against arbitrary
law enforcement.” Duncan v. Louisiana, 391 U.S. 145,
156 (1968). The jury trial serves these purposes in
 9
part by “mak[ing] available the commonsense judg-
ment of the community as a hedge against the over-
zealous or mistaken prosecutor and in preference to the
professional or perhaps over conditioned or biased re-
sponse of a judge.” Taylor v. Louisiana, 419 U.S. 522,
530 (1975). These fundamental purposes of the jury
trial are reflected in the structural features of the jury
(many of them incorporated into the constitutional
guarantee).
First, juries are drawn from the same community as
the accused, and meant to represent a cross-section of
that community. This bestows legitimacy on a jury
verdict imposing criminal punishment as representa-
tive of the collective conscience of the community, cap-
turing its common-sense morals, values, and experi-
ences. Taylor, 419 U.S. at 530.
Second, juries are physically present at trial to wit-
ness the demeanor of the witnesses and the defendant
and to assess the weight and credibility of testimony
based on their common sense and practical experience.
“A fundamental premise of our criminal trial system is
that the jury is the lie detector.” United States v.
Scheffer, 523 U.S. 303, 313 (1998) (plurality opinion).
Third, the jury, for the most part, renders its deci-
sions with anonymity and secrecy: the jurors’ identities
are largely unpublicized; their deliberations and rea-
soning are shielded from public view; and a verdict of
acquittal is unreviewable. These features insulate ju-
rors from public second-guessing and reproach for their
decisions.2 They also introduce “a slack into the en-
forcement of law, tempering its rigor by the mollifying

2 Steven I. Friedland, On Common Sense and the Evaluation of

Witness Credibility, 40 Case W. L. Rev. 165, 174 (1989).

 10
influence of current ethical conventions.” United
States ex rel. McCann v. Adams, 126 F.2d 774, 776 (2d
Cir. 1942) (L. Hand, J.).
Fourth, jury verdicts must be unanimous. Ramos v.
Louisiana, 140 S. Ct. 1390 (2020). This serves to safe-
guard the “beyond a reasonable doubt” standard for
conviction by allowing doubt in the mind of any single
juror to preclude a guilty verdict. It also ensures that
criminal punishment deprives an individual of life or
liberty only by a consensus of community members, ra-
ther than a bare majority. Id. at 1396-97.
These structural features are critical in enabling
one of the jury’s key prerogatives: the power to acquit
even when others might consider the government evi-
dence weighty. Throughout history, this function of
the jury trial has served a critical role in protecting
both individual liberties and the separation of powers
in a constitutional democracy. For example, in the co-
lonial era, a Pennsylvania jury acquitted Quakers Wil-
liam Penn and William Mead of speaking to an unlaw-
ful assembly in violation of the Conventicle Act, which
forbade religious assemblies of more than five people
outside the auspices of the Church of England. The
acquittal stood against both the weight of the testimo-
ny supporting the charges and coercion from the trial
judge to render a guilty verdict.3 More recently, in
2019, a federal jury in Arizona acquitted Scott Warren,

3 Thomas Andrew Green, Verdict According to Conscience: Per-

spectives on the English Criminal Trial Jury, 1200-1800, at

236-49 (1985), https://repository.law.umich.edu/books/4/ (dis-
cussing Bushell’s Case, 124 Eng. Rep. 1006 (C.P. 1670)); 6 T.B.
Howell, A Complete Collection of State Trials and Proceedings
for High Treason and Other Crimes and Misdemeanors from the
Earliest Period to the Year 1783, at 951 (1816).
 11
a member of the humanitarian group, “No More
Deaths,” on two counts of harboring unauthorized mi-
grants. At his trial, the two federal agents who arrest-
ed Warren testified that they saw him talking to the
migrants and gesturing toward areas of the desert
where they were less likely to be arrested by Border
Patrol.4
The constitutional significance of jury acquittals in
the face of strong government evidence is not limited to
instances of so-called “jury nullification,” where the
verdict reflects moral disagreement with the law im-
posed. Even in cases involving mundane charges, ac-
quittals can serve to defend core constitutional protec-
tions when the jury chooses to credit a defendant’s nar-
rative over that of the government, or to express mis-
trust toward the institutions and processes underlying
the prosecution’s case.
Appellate review by judges, however unbiased and
empirically reliable, cannot provide the safeguards of a
jury trial. Judges are not ordinary members of the de-
fendant’s community. They do not hear live testimony
and need not render their decisions shortly after con-
fronting both the defendant and his accusers. Their
decisions are not anonymous, secret, or free from re-
view: their reasoning must be articulated, and their
determinations are subject to scrutiny by both other
judges and the public. They need not reach a unani-
mous decision after deliberation: the certainty of two
judges can overcome the doubt of the third, as it did in
Dr. Pon’s case.
4 Jasmine Aguilera, Humanitarian Scott Warren Found Not

Guilty After Retrial for Helping Migrants at Mexican Border,

Time (Nov. 21, 2019), https://time.com/5732485/scott-warren-
trial-not-guilty/.
 12
B. The Retrospective Weighing of Trial Evi-
dence After Conviction Raises Concerns
About Hindsight Bias.
Judges reviewing a trial error for harmlessness or
prejudice have in front of them a trial record that ends
in a conviction. In that context, as now-Judge Bibas
has explained, tendencies toward hindsight bias may
skew perceptions in favor of the existing verdict.
Stephanos Bibas, The Psychology of Hindsight and Af-
ter-the-Fact Review of Ineffective Assistance of Counsel,
2004 Utah L. Rev. 1, 2-3 & n.7.
These tendencies, which appear across a wide range
of contexts, include “inevitability bias,” which makes it
hard for those looking back after a final result to imag-
ine a different outcome, and “confirmatory bias,” which
leads people to interpret new evidence as confirming
their initial judgments and to discount contrary evi-
dence and inferences. Id. at 2-3. For example, in stud-
ies where clinicians were asked to rate the probability
of various diagnoses in deceased patients who exhibit-
ed various symptoms, those who were given the pa-
tient’s autopsy reports rated the autopsy diagnoses as
more probable than those who did not see the reports.
Id. at 2 & n.7 (collecting studies). Historians have sim-
ilarly recognized a tendency towards determinism,
which causes those studying events in retrospect to
“perceive the logic of the events, which unfold them-
selves in a regular order, according to a recognizable
pattern, with an alleged inner necessity, so that we get
the impression that it really could not have happened
otherwise.”5 In patent law, courts have acknowledged

5Georges Florovsky, The Study of the Past, in 2 Ideas of History

351, 364 (R.H. Nash ed., 1969).
 13
the need to avoid hindsight bias that may lead judges
to view patented inventions as obvious based on the
perceived inevitability of the way in which the inventor
arrived at her solution to a problem in the prior art.6
These biases make it particularly difficult to per-
suade judges that certain errors in a criminal trial end-
ing in conviction could have changed its outcome, par-
ticularly if—contrary to this Court’s precedent and
consistent with Eleventh Circuit law—the judge’s
harmless-error inquiry extends beyond merely as-
sessing the error for pertinence to contested issues, and
involves substantive evaluation of the strength of evi-
dence.
III. Basing Harmless Error on Judges’ Percep-
tion of “Overwhelming Evidence” Erodes
the Institution of the Jury Trial in Practi-
cal Ways.
Part of the systemic function of judicial review
should be to deter errors in future cases by ensuring
justice in particular cases. As Judge Bibas has sug-
gested in another context, reversals teach judges and
counsel what not to do and prompt them to do better in
the future.7 But a liberal “overwhelming evidence”
standard for harmless error undermines both of the
mechanisms by which judicial review deters future er-
rors. And because nearly every error is subject to re-
view for harmlessness, Neder, 527 U.S. at 8, this ero-
sion of judicial review threatens to become pervasive.
When the strength of the government’s evidence
can be sufficient to render virtually any error harm-
less, prosecutors and trial judges have less incentive to

6 Graham v. John Deere Co., 383 U.S. 1, 36 (1966).

7 Bibas, supra, at 6.
 14
avoid error and misconduct when their case is other-
wise strong. They may never even learn after the fact
that the error was an error: This harmless-error stand-
ard also encourages appellate courts to avoid deciding
the merits of close or difficult issues involving trial er-
rors in favor of affirming the conviction based solely on
the strength of the government’s other evidence, de-
priving trial courts, prosecutors, and defense attorneys
of future guidance.
Finally, an ultimate result of the liberal standard
for harmless error is the further dilution of the value of
a jury trial for criminal defendants in a system where
such trials are already a rare occurrence. Today, fewer
than five percent of convictions are obtained following
a jury trial as a result of a confluence of factors pres-
suring defendants to plead guilty.8 An “overwhelming
evidence” standard for harmless error contributes to
these pressures by depriving defendants of the basic
protections of a procedurally sound trial when the evi-
dence against them is sufficiently strong. The result-
ing practical extinction of jury trials undermines the
critical role of citizen participation in the health and
legitimacy of a criminal justice system in a functioning
democracy.
*****
As Justice Scalia wrote for the Court in another
Sixth Amendment context, “[d]ispensing with confron-
tation because testimony is obviously reliable is akin to
dispensing with jury trial because a defendant is obvi-
ously guilty.” Crawford v. Washington, 541 U.S. 36, 62

8Jay Schweikert, Cato Institute, The Demise of the Jury Trial,

https://www.cato.org/commentary/demise-jury-trial (Jan. 16,
2018).
 15
(2004). The comparison was intended to highlight the
absurdity of dispensing with jury trials. But the rule
applied by the Eleventh Circuit, and the courts that
agree with it, goes most of the way down just that ab-
surd path. It dispenses with a new jury trial, one justi-
fied by constitutional error at the first one, because the
appellate judges think the defendant obviously guilty.
In our constitutional system, guilt is determined by the
jury. Those who suffered constitutional error at their
first trial are no less entitled to that protection.

CONCLUSION
The petition for a writ of certiorari should be grant-
ed.
Respectfully submitted.

CLARK M. NEILY III WILLIAM M. JAY

CATO INSTITUTE Counsel of Record
1000 Massachusetts Ave., NW JENNY J. ZHANG
Washington, DC 20001 GOODWIN PROCTER LLP
1900 N Street, NW
Counsel for Cato Institute Washington, DC 20036
(202) 346-4000
DIANA L. JOHNSON [email protected]
FLORIDA ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS Counsel for Amici Curiae
407 North Laura Street
Jacksonville, FL 32202

Counsel for Florida

Association of Criminal
Defense Lawyers July 12, 2021