Harmlessness Flashcards
But you’re not claiming that your client’s interests should have compelled a different result, are you?
The Supreme Court has squarely held, however, that harmless error review does not apply to errors in entering ends-of-justice exclusions. Zedner, 547 U.S. at 506–09. Consequently, this Court must reverse even if “the ends-of-justice balance in fact supported” an exclusion. Id. at 506. That is why Engstrom, Jordan, and Ramirez- Cortez refused to consider other record evidence after invalidating the court’s actual ends-of-justice findings. See supra, Section I.B.
• Isn’t Zedner narrower than you’re saying? In Zedner, the court did not grant an ends of justice exclusion at all, and it made no supporting findings of any kind. But here, the court did grant an ends of justice exclusion, and it made at least some supporting findings.
Yes, that is Zedner’s factual set up, but no, Zedner’s reasoning is not limited to that factual situation. First, Zedner reasoned that “[t]he strategy of § 3161(h)(8),”–writ large–“is to counteract substantive openendedness with procedural strictness.” That insight applies to any procedural error, including a district court’s failure to make sufficient findings. Second, Zedner pointed to the statute’s unequivocal language, including its detailing of “factors that a judge must consider in making those findings.” And third, then it concludes that “excusing the failure to make these findings as harmless error would be inconsistent with the strategy embodied in § 3161(h). Such an approach would almost always lead to a finding of harmless error.” These observations apply equally to a failure to make appropriate findings.
The Second Circuit recently applied Zender’s “no harmless error” rule in a case where the district court excluded time, but made either no findings or insufficient findings. “Harmless error review does not apply to violations of the Speedy Trial Act.” United States v. Pikus, 39 F.4th 39, 53 (2d Cir. 2022)
• If you’re right about how to interpret Zedner, how did we reverse in Olsen?
Olsen does not explain how this move is consistent with Zedner, but I think the best way to square the two is to appreciate the difference in procedural posture. In Zedner, as here, the district court did exclude time but did not make appropriate findings. In that circumstance, the Supreme Court ruled that a reviewing court is stuck with those findings; the court can’t go back in, review the record, and determine whether additional findings could salvage the exclusion. In Olsen, however, the district court refused to exclude time, but it made a legally erroneous finding and made no findings on a bunch of other important facts. If the reviewing court were stuck with the district court’s findings in that circumstance–if the court couldn’t go to the record and say, “Wait a minute, you missed all these important facts that should have caused a time exclusion”–then that decision would be effectively unreviewable. You might also say that in that situation, the appellate court isn’t really conducting a harmless error review, but is instead showing why the district court’s errors were so harmful. So, there is some justification for treating those scenarios differently.
Shouldn’t we just dismiss without prejudice?
Normally remand (Clymer), but if you do decide, (1) length of the delay, (2) client’s minimal contribution to delay, (3) fact that he was detained.
