Managing transitional moments in criminal cases.

• Author: Heytens, Toby J.

ARTICLE CONTENTS

 INTRODUCTION I. IDENTIFYING MAJOR TRANSITIONAL MOMENTS A. The Recipe for Especially Disruptive Legal Change

2. A Few Recent Examples 1. United States v. Gaudin 2. Apprendi v. New Jersey 3. Crawford v. Washington 4. Blakely v. Washington and United States v. Booker II. THE FLAWED FORFEITURE STRATEGY A. Forfeiture Rules as a Means of Controlling Legal Change B. Forfeiture Rules in the Direct Review Context

3. The Need for a Theory of Plain Error Review D. Forfeiture's Failings 1. Why Forfeiture? 2. The Problem with Plain Error a. Clearly Unfavorable to Clearly Favorable

   2. Unclear to Clearly Favorable III. A RETURN TO NONRETROACTIVITY

1. Nonretroactivity's Rise and Fall B. Nonretroactivity's (Relative) Virtues C. The Case for Selective Prospectivity

4. The Possibility of a Legislative Response CONCLUSION

   INTRODUCTION

   Imagine the following scenario: A litigant who was unsuccessful during an initial proceeding asserts that the presiding judge violated her federally protected rights and demands either judgment in her favor or a new trial as a remedy. At the time of the alleged wrong, governing precedent compelled, blessed, or did not clearly forbid what the trial judge did. By the time the dispute reaches a reviewing court, however, new decisions have either made clear or strongly suggested that the trial court's actions violated the claimant's rights. I will call these situations "transitional moments," (1) and this Article is about how federal courts are--and all courts should be--dealing with them in the particular context of criminal cases that are still on direct review.

   Transitional moments are a structural feature of the United States legal system. The common law method of legal development through adjudication means that new rules are announced and existing ones modified on a regular basis. The structure and operation of our courts create an inevitable lag between a trial judge's initial decision and the resulting controversy's final resolution by some other tribunal. (2) Those basic realities--that law is always changing and review never immediate--will inevitably combine to produce situations in which the governing legal standards shift during the life cycle of a single dispute.

   All law-changing decisions create a certain amount of disruption with respect to pending cases--in the matter in which the new rule is announced, even if nowhere else. Some new rulings, however, generate far bigger transitional problems than others. In particular, as I will explain, Supreme Court decisions that alter the constitutional law of criminal procedure in pro-defendant directions will sometimes create especially disruptive transitional moments, and may, in extreme situations, call into question the integrity of huge numbers of convictions and sentences still subject to later review. (3)

   At first blush, it may be tempting to say that anyone who has suffered what now appears to have been a legal wrong is entitled to relief. A moment's reflection reveals the difficulties with that position. Take the Supreme Court's 1966 decision in Miranda v. Arizona. (4) For one thing, truly retrospective implementation of that decision would have been impossible given the number of people who had died or completed their sentences before Miranda was handed down. In addition, maximizing the retrospective implementation of such a revolutionary decision would have imposed enormous costs on the criminal justice system, and society as a whole, by requiring release or retrials of thousands of already convicted individuals, even when there was no realistic doubt about the defendant's guilt or the passage of time would have made a retrial all but impossible. (5) Accordingly, a Court that viewed maximum retrospective operation as its only option would probably never have issued a ruling like Miranda in the first place--or, at least, would be unlikely to do so ever again. (6)

   It is thus unsurprising that courts have developed a variety of methods for limiting the disruptive effects of legal change. Under current law, no serious problems are posed by cases in which a defendant's conviction has become "final" before the law-changing decision was announced--that is, cases in which the Supreme Court has already denied a petition for a writ of certiorari or affirmed the conviction on the merits on direct review, or when the time for seeking certiorari had expired. (7) The reason is that the Court has held that the vast majority of new rules should not be applied retroactively to such cases. (8) Thus, for example, if a person whose conviction became final before June 24, 2002 seeks collateral review (9) based on Ring v. Arizona's. (10) holding that juries, not judges, must decide whether there are any aggravating circumstances that make a defendant eligible for the death penalty, the court will deny relief on the ground that the rule announced in Ring does not apply to her case. (11)

   Cases still on direct review, however, are a different story. In 1987, the Supreme Court held in Griffith v. Kentucky that all decisions regarding the conduct of criminal trials must be "applied retroactively" to all cases not yet final at the time the new ruling is announced. (12) Because finality will often not attach until long after trial and sentencing have concluded, (13) Griffith means that new decisions will often be applicable to cases in which the allegedly unconstitutional conduct long predated the rule's announcement. (14)

   Unable to declare new rulings nonretroactive with respect to cases that were still on direct review at the time a new ruling was announced, lower courts have looked for other ways to limit the disruptive effects of legal change. Some appeals that rely on post-trial developments could be rejected on the ground that no error occurred even under the new decisions, or that any error was harmless. (15) But what about the others? Will any defendant whose trial was infected with what only later appears to have been a prejudicial constitutional violation be able to obtain relief?

   In a word, no. Especially when the change in governing standards has been dramatic, the defendant will likely have forfeited her claim by failing to raise it at the time and in the manner required by the relevant jurisdiction's procedural rules. (16) Although reviewing courts are generally empowered to grant relief notwithstanding forfeiture in at least some circumstances, (17) review-restricting forfeiture rules can be, have been, and are being used to prevent many individuals from obtaining relief based on post-verdict rulings, even when a new ruling is, at least formally, fully retroactive. (18)

   Part I of this Article identifies some general prerequisites for an especially disruptive transitional moment and explains why several recent Supreme Court decisions have provided special urgency to the always present question of how best to address their effects. Part II critiques one of the primary methods by which federal courts have attempted to limit the disruptive effects of legal change: deeming claims that rely on intervening decisions to be forfeited on the ground that the defendant raised no objection at the time of trial, and then subjecting those forfeited claims to a highly constricted form of "plain error" review that virtually guarantees that appealing defendants will lose. As I will explain, the problem with this approach is that it rarely advances--and often frustrates--the only legitimate purposes justifying the use of forfeiture rules in the direct review setting. In fact, in situations in which controlling time-of-trial authority was clearly settled and clearly contrary to an argument that a defendant later wishes to present on appeal, the only additional obligation that should be imposed upon a defendant who failed to object at the time of trial is a duty to show that any error was "clear" or "obvious" according to the standards prevailing at the time of appeal. (19)

   Finally, Part III calls for a rethinking of the now well-accepted view that all new decisions must be fully retroactive with respect to cases still pending on direct review at the time the ruling is announced. As I will argue, courts may be better off using the "selective prospectivity" variation of the general nonretroactivity approach than the flawed forfeiture strategy currently being employed. Under my proposal, new rulings would always be deemed applicable to the party in whose case they are announced, but the decision whether to apply the same rule to other pending cases would be informed by a variety of considerations, including the degree of disruption that retroactive implementation of the new rule would entail; the amount of justifiable reliance on the old standards by police, prosecutors, and other actors; and the importance of the new rule to fair and accurate adjudication.

   Nonretroactivity approaches in general--and selective prospectivity in particular--are subject to a variety of objections that have been well rehearsed elsewhere. As I will explain, however, one prominent criticism can be avoided entirely once it is recalled that there is no freestanding constitutional right to a criminal appeal, much less an absolute entitlement to appellate reversal in any situation in which, according to a reviewing court's best current understanding of the law, a constitutional error occurred at the defendant's trial. Several other objections to nonretroactivity are more accurately viewed as objections to any strategy, including the use of forfeiture rules, for limiting the disruptive effects of legal change.

   In addition to being less objectionable than is often supposed, the nonretroactivity approach has a number of advantages. Nonretroactivity analysis represents an honest effort to confront directly the problems posed by legal change, as well as the real costs of efforts to limit such change's disruptive effects. Not only is this candor a virtue in and of itself...