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Georgia Criminal Law Review

Document Type

Article

Abstract

This article argues that in federal constitutional law, pervasive intentional prosecutorial misconduct always requires reversal of a criminal conviction. That is so for three reasons. First, since a trial pervaded by unfairness is an unfair trial, such a conviction violates the Donnelly fundamental-fairness rule. Second, such a due-process violation can never be found harmless under either the Kotteakos or the Chapman harmless-error test, properly interpreted. Third, pervasive intentional misconduct always or usually fits all but one of the Supreme Court’s seven descriptions of structural error. In particular, it always fits all three rationales on the Court’s most recent list.

En route to this narrow thesis about prosecutorial misconduct, I also defend a slightly novel general thesis about harmless constitutional error. Based on history, logic, and explicit Court explanations, Chapman, like Kotteakos, demands a contributing-factor, not a necessary-condition, idea of causation. Consequently, even overwhelming evidence of guilt does not prove error harmless. The question must always be whether the error is trivial by comparison to the untainted evidence. But given pervasive misconduct, no court, regardless of strength of evidence, can ever be reasonably sure that the misconduct’s contribution to the jury verdict was insignificant.

I illustrate all these issues throughout by Arizona’s most notorious recent murder case, State v. Arias. It is the first where any American appellate court has held that a trial permeated by pronounced and persistent misconduct can still be fair, and the conviction valid. I show that the court’s opinion, besides being triply preposterous, ignores settled Arizona precedent, and is a deep stain on American criminal law.

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