[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] Wednesday in Vasquez v. United States [transcript; JURIST report] on whether the US Court of Appeals for the Seventh Circuit violated the Supreme Court’s precedent on harmless error. Alexander Vasquez was convicted on drug-related charges on a considerable amount of untainted evidence. However, the prosecution submitted tapes, and the court held they could be heard as to the truth of the situation, where Vasquez’s wife stated that Vasquez’s attorney said Vasquez would lose the case and should plead guilty. Due to the weight of the untainted evidence, the Seventh Circuit ruled this a harmless error, while Vasquez’s attorney believes whether or not the error was prejudicial should be the first step in harmless error analysis.

Before the harmless-error analysis, the question the Court asks is, what we have to decide is whether a reasonable jury would convict him absent the error. And so the question doesn’t require any consideration of the error. And the conclusion they reach that he would be convicted without any consideration of the error also doesn’t consider the error. They do not address the error or its impact at all, despite a robust dissent which set forth the extraordinary prejudicial possible impact of this error. They don’t disagree with the dissent; they simply don’t address it at all.

Vasquez’s attorney also contended that the Seventh Circuit violated Vasquez’s Sixth Amendment right to a jury trial by determining that he should have been convicted without considering the effects of the district court’s error on the jury that heard the case. The Solicitor General argued that if the court focuses on the entirety of the evidence on its face, justice will prevail: “And the reason that I believe that the Court can use that as a benchmark to look back at the evidence is it is some indication of perhaps what the evidence should be saying to a rational jury. But the ultimate question is the rational jury.”

The court also heard arguments in Reichle v. Howards [transcript; JURIST report] on the qualified immunity [Cornell LII backgrounder] of US Secret Service [official website] agents. The agents arrested the respondent, Steven Howards, following an encounter with then-US vice president Dick Cheney. Petitioners had probable cause to arrest Howards, who in violation of 18 USC § 1001 [text], falsely denied making unsolicited physical contact with the vice president. Howards later brought a First Amendment [text] retaliatory arrest claim against petitioners. The court heard arguments on whether the existence of probable cause to make an arrest bars a First Amendment retaliatory arrest claim as well as specific matters to secret service members’ constitutional rights and responsibilities when protecting the president and vice president. The attorney for the secret service argued the fairness of the treating secret service members as second-class law enforcement agents, when: “Secret Service agents who are prepared to take a bullet for the Vice President must also be prepared to take a retaliatory arrest lawsuit, even when they have probable cause to make an arrest.” Howards’ attorney argued that the rarity of suits against secret service members makes setting a new standard a non-issue as well as contending his client did not assault the Vice-President: “I have done, not a scientific search, but I can take credit for a little bit of science involved in determining how many such cases arise. And at page 13 of our brief, we cite in footnote 8 that a search with no time limitations whatsoever going back in LEXIS with the words ‘Bivens’ or ‘1983,’ ‘retaliatory arrest,’ not limited to protective details, shows 15 reported Federal appellate cases, with no time limitations whatsoever. So we had a solution, but we really don’t have a problem. The only Secret Service case that this Court has ever heard that I’m aware of involving anything remotely like this is Hunter v. Bryant. So this is not a significant problem. This also factually is probably not the best case for them to be making their argument that we need some sort of special rules that apply to the Secret Service, given the facts of this case, where Mr. Howards by all accounts walked over to the Vice President, looked at him and said: ‘I just want you to know I think your policies in Iraq are disgusting.'”