The judge-made doctrine of harmless error review is a menace to the US justice system. The harmless error doctrine is “one of the most frequently invoked doctrines in all of criminal appeals.” In State v. Vigna we changed the law, but our client did not get a new trial. Here’s how it happened.

What is Harmless Error?

Harmless error allows appellate courts to protect your conviction, even if the trial judge makes errors, as long as the appeals court thinks that it is obvious (to them) that you were guilty. Like qualified immunity for police, the harmless error doctrine was created to prevent a backlog of cases. Historically any error resulted in a reversal of the conviction.

Crowded docket space concerns are fine for property disputes but not when those concerns can result in decades in prison for the accused. Fast forward and in 1967 the Supreme Court in ruled that constitutional errors can be harmless. The Constitution is an afterthought to our incarceration addiction.

Our criminal justice system has never recovered [1]If you want to get into the weeds about Constitutional vs. non-Constitutional harmless error review you can go someplace else. If you are accused of a serious crime and are not allowed to put on the … Continue reading.

“Harmless constitutional error” is among the most insidious of legal doctrines. – Former Professor Steven H. Goldberg, Harmless Error: Constitutional Sneak Thief.

We Changed the Law, but it Didn’t Matter.

On appeal, we represented a teacher by the name of John Vigna. He was robbed of justice through the harmless error doctrine. He was accused of touching his students sexually. He vehemently denies these allegations. He served dutifully for decades as a school teacher with not one accusation of inappropriate sexual behavior before the accusations in his indictment. Right his before trial, his attorney argued that he should be able to introduce evidence of Mr. Vigna’s good sexual moral character. That request was denied and he was found guilty. We handled his appeal.

We lost at the intermediate appellate court but we knew we had a good issue. Luckily we succeeded in getting the Maryland high court to hear the case.

Prior to our appeal, there was no caselaw saying that a person accused of such a terrible crime could introduce good sexual moral character.  After briefing and our oral argument (posted below), the Maryland Court of Appeals agreed with us and found that defendants can now introduce evidence of their good sexual moral character.

John Vigna gets a new trial, right? Wrong.

The Maryland Court of Appeals said that, despite this serious mistake, the error was harmless. Vigna was not allowed to fully defend himself. Breaking the rules only matters if you are not an agent of the government. Judges can get it wrong, police can get it wrong, and in most instances their are legal doctrines that protect them from their errors — not you.

Now, a man with no criminal history, is serving a 48 year prison sentence.

Particular Evils of the Harmless Error Doctrine.

The prevalence of harmless error review is a root cause in the systemic degradation of our criminal justice system. Here are some ways that happens:

  1. Prosecutors manipulate harmless error review to their unfair ends. Prosecutors know that they can push the envelope and get a trial judge to go their way, have the judge get it wrong, and it won’t matter. The system incentivizes bad behavior. Also, trial judges who are pro-prosecutor can make prosecutor leaning decisions with very little risk to a guilty verdict.
  2. Harmless Error Legitimizes a Racist System. Our judicial system is plagued with racism. Harmless error review reinforces racist prosecutions and tactics by affirming convictions and leading people to believe that the system is just by upholding almost every conviction after trial.
  3. Harmless Error Allows Appellate Judges to Act as Jurors. When an error is made at trial that usually means a defendant was prejudiced by inappropriate evidence that was allowed, or that he was prejudiced by the trial court refusing him the ability to introduce relevant evidence in his defense. Once an appeals court determines there was an error, that is when the legal fiction begins. Since the jury didn’t hear the appropriate evidence, no one really knows what they would have decided. As a result, appellate courts play juror cosplay and decide what THEY think the jurors might have done had the trial court not made the mistake.

Harmless Error

Our Harmless Error Loss Was a Win for Others.

Mr. Vigna was cheated out of a fair trial.  That does not change the fact that we changed the law on Mr. Vigna’s appeal. And, as a result, another person was granted a new trial because of the caselaw we created.

Rudy Gonzalez went to trial on a sex offense and lost. His trial judge similarly denied him the opportunity to present relevant sexual good character evidence saying that “[o]ne’s reputation for sexual activity, of lack thereof may have no correlation to one’s reputation for moral decency[.]” The Maryland Court of Special Appeals, applying the caselaw from the Vigna appeal, disagreed! The Court was “persuaded” that the sexual propriety evidence that Mr. Gonzalez wished to present in his defense was pertinent to his defense and should have been allowed.

Of course, that is not the end of the road is it? The Court, recognizing the error, then engaged in a harmless error review. Because of their personal view of the evidence at the Gonzalez trial, playing the role of jurors, the Court believed that the exclusion of this evidence was prejudicial. On June 15, 2021, they reversed the conviction of Rudy A. Gonzalez.

Mr. Vigna was the guinea pig for new caselaw. He fought for his right to present a full defense. Was he right on the law? Absolutely. Did it matter? Absolutely not.

I’m sure Mr. Gonzalez is grateful for John Vigna’s fight. But this situation shows the cruelty of the harmless error doctrine.

In summary:

The police can get it wrong, judges can get it wrong, and prosecutors can get it wrong with no consequence.

Those accused of crimes can get it right and it is of no consequence.



1 If you want to get into the weeds about Constitutional vs. non-Constitutional harmless error review you can go someplace else. If you are accused of a serious crime and are not allowed to put on the defense, the distinction is legal clownery.
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