Lead Opinion
Timоthy Rush appeals from a final order entered in the district court for the Eastern District of Missouri denying his post-trial motions for a new trial or default judgment in this civil rights action brought under 42 U.S.C. § 1983. For reversal, Rush argues the trial judge erred in (1) dismissing the sole African-American juror, (2) making prejudicial comments to the jury, (3) denying his motions for new trial and default judgment based on defendants’ abuse of discovery, and (4) denying his motion for new trial based on the grounds that the verdict was against the clear weight of the evidence. A panel of this court affirmed the judgment of the district court. This court subsequently granted rehearing en banc and vacated the panel’s opinion. We now reverse and remand this case to the district court for a new trial.
I. BACKGROUND
Rush, who is African-American, filed this civil rights action claiming that two police officers used excessive force against him. After an eight-day trial, running from February 22 through March 3, 1993, a jury returned a verdict for defendants, St. Louis police officers and the St. Louis Board of Police Commissioners, on Rush’s excessive force claim. Resolution of this matter required the jury to choose between twо conflicting accounts of what happened during the early morning hours of January 1, 1990. Rush claimed that around the time of the incident, 12:37 a.m., he was in his home with his grandmother and his cousin. Meanwhile, a friend, Michael Mayhorn, was in Rush’s backyard, celebrating the New Year by firing a shotgun into the air. Rush’s grandmother asked Rush to tell Mayhorn to stop firing the shotgun and to come inside. Rush approached the kitchen door, wearing only pajama bottoms, to ask Mayhorn to cease firing the shotgun. Rush testified that while standing sideways, bent over between the storm door and the wooden door, and looking into the backyard, he was shot in the abdomen by one of the police officers. Immediately after being shot, Rush made his way to a telephone in the hallway of his home and called 911 for assistance. The testimony of Rush’s grandmother and his cousin corroborated Rush’s version of the facts.
The two police officers told a different story. They were dispatched to Rush’s neighborhood in response to a report that shots had been fired. They claim that they were fired upon by a shotgun as they apрroached Rush’s backyard. They saw two men standing below the steps at the rear of the home. At trial, neither officer could identify Rush as having been one of the two men. Both officers did testify that the man firing the shotgun was wearing pants and a shirt. Officer Smith claimed that 25 to 31 shotgun blasts were fired at them and that the officers returned 13 to 16 shots before notifying the dispatcher of the situation. Smith testified that after he fired two shots, his first target slumped over, handed the shotgun to the other man, and entered the house by climbing the rear steps.
Rush was indicted in connection with this incident on state charges of first degree assault, armed criminal action, and unlawful use of a weapon. However, these charges were later dropped. Robert Craddick, an assistant circuit attorney for the city, testified that he explained to Smith that the pattern of the bullet holes made by the officers’ weapons and other physical evidence revealed inconsistencies in Smith’s version of the incident. Upon hearing this explanation of the weaknesses in the case, Smith offered to change his aсcount and even admitted that Rush could have been inside the house when shot. After the memorandum of nolle prose-qui was submitted on all charges, Smith tried to convince Craddick to reinstate the charges because he feared that he would be sued if Rush was not prosecuted.
Before trial, Rush presented defendants with a discovery request for production of documents concerning prior firearms training provided to St. Louis police officers, including defendant Smith. Defendants responded that they had no documents concerning the annual firearms qualification program as it was when Smith graduated from the police academy or concerning changes in the program since that time; that Smith had not attended any in-service firearms courses oth
Rush then presented defendants with a second discovery request for production of documents, requesting production of the ARTS report on the incident at issue, all ARTS reports prepared pursuant to the Special Order, all annual shots fired reports, and all firearms review committee reports and recommendations. Defendants objected to the requests for the ARTS reports and for the shots fired reports as burdensome.
Rush then filed a motion to compel discovery of the documents not produced by defendants, and on February 11,1993, there was a hearing on the motion. After the hearing, the trial judge ordered defendants to produce any documents showing purchases of firearms training equipment, any documents regarding firearms training proposals rejected during the previous seven years, and any information regarding the use or misuse of firearms by police officers. In addition, the trial judge ordered the Board of Police Commissioners to designate competent witnesses for deposition on this subject. Defendants produced documents regarding the purchase of a firearms simulator, but no documents concerning a 1992 firearms study, no ARTS reports, and no other documents concerning the use of firearms. The Board of Police Commissioners provided a list of potential witnesses for deposition.
On the first day of trial, February 22,1993, Rush moved for default judgment based on allegations that defendants failed to comply with discovery orders; the motion was denied. On the third day of trial, defendants provided Rush with documents constituting the underlying materials for a study concerning police use of firearms conducted by the police department in 1992. On February 25, Rush again moved for default judgment; again, the motion was denied.
On the fourth day of trial, there was a severe snowstorm in St. Louis, resulting in ten to fourteen inches of snow on the ground by morning. Dorothy Mae Bluett, the only African-American juror, advised the trial judge’s staff that she would not appear that day due to the weather. Before the trial judge’s arrival at the courthouse, Rush’s counsel asked a United States marshal to pick Bluett up in his car. The marshal agreed, and was in fact en route, when the trial judge called him back because only a “skeleton staff’ was present in the court building that day. When the trial judge arrived at court, he told Rush’s counsel that he would continue the trial with the jurors present because he had an alternate to replace Bluett and that it was too late to try to get Bluett to attend. Rush’s counsel asked the trial judge’s permission to send a taxicab for Bluett, but the trial judge denied the request. In his order denying the motion for new trial, the judge indicated that he had problems with a party providing transportation for a juror.
After the trial judge concluded that the trial would proceed without Bluett, the jury was brought into the courtroom. The trial judge then еxplained her absence to the jury as follows:
Your eyeballs will indicate that your Juror Number Two is absent and we’ve previously discussed that, so we’re going to proceed without her. Something just occurred to me, though, when I was being mildly scolded by the Plaintiffs attorneys for starting court late, that it was this Court’s insistence that we have a black juror in this case, that put the black juror to the missing juror, Dorothy Mae Bluett in the box. I told all of you and I’m going to say this in front of the jury, it doesn’t make any difference. It’s a truth and I’m not afraid of the truth, but I was sincerely afraid of striking the only two blacks that were on that jury, that the Court of Appeals wouldlook askance at anybody being able to single out a particular race and eliminating them from consideration of this jury, so I, and I’m gonna take credit for this, I’m sorry. I’ve got to, I’ve got to preserve the justice and pursuit of justice by this Court, prevailed upon the City to put at least one of those black ladies on this panel so that Mr. Rush would be at least represented ethnic-wise or race-wise. I just, I’m not a damn fool. I haven’t been around here for seventy-six yeаrs and not found out that the races have a tendency to stick together and that may be good or bad, but whatever it is, it exists.
IV Trial Tr. at 19. After the trial judge completed his remarks to the jury, counsel approached the bench:
MR. DICK [Counsel for Rush]: ... I know the Court’s intention is good, but I would just, I think what was said might give the impression that the City was the one who graciously put a black juror on.
THE COURT: I put the black juror on. I said, “I did it.” I asked the attorneys to do it. I didn’t say which one.
MR. SINGER [Counsel for Rush]: I thought the City gracious, — I thought you used the term that the City graciously agreed and maybe I’m mistaken, Judge but,—
THE COURT: Well, I’ll clear it up if I did.
MR. SINGER: Well, now Judge, I think that’ll only emphasize what was done.
THE COURT: Well, what do you want me to do?
MR. SINGER: Well, I mean, I’d like to go on and try this case. If your Honor thinks he can correct the measure without any further emphasis,—
THE COURT: Okay, let’s go.
MR. SINGER: —then I would agree to do it, but, — Okay. The first witness, we had asked the City to produce Mr. Scott.
IV Trial Tr. at 20-21.
II. DISCUSSION
In order to maintain the integrity of our judicial system, as established by the Constitution, we, the members of the judiciary, must constantly subject ourselves to rigorous examination. When the conduct of a judge interferes with the fundamental fairness of a proceeding and substantially affects the rights of a party, it is our duty to eliminate, to the extent possible, the consequences of such aberrant behavior. Because we conclude that the trial judge’s remarks about racial solidarity constituted plain error, we reverse and remand the ease for a new trial.
Even the brief summary of the record we have provided clearly demonstrates the critical importance of the jury’s assessment of witness credibility in the present case. As in all cases, the trial judge in the present case had a duty to maintain an atmosphere free from prejudicial comment. A prejudicial comment from the bench is worse than all others because it has the air of official sanction. For this reason, courts have long recognized that judges must be especially careful when making comments before a jury. “A trial judge must be especially cautious and circumspect in language and conduct during a jury trial. The judge must be fair to all parties and not do or say anything that might prejudice either litigant in the eyes of the jury.” Coast-to-Coast Stores v. Womack-Bowers,
Because there is some question as to whether Rush’s counsel lodged a timely objection to the trial judge’s comments, we assume, for purposes of analysis, that a contemporaneous objection was not made. When the complaining party has failеd to object to the court’s statements at trial, our review is for plain error only. Cowens v. Siemens-Elema AB,
There is certainly a distinction to be drawn between cases of excessive judicial intervention in the questioning of witnesses, and eases in which a trial judge makes comments in the presence of the jury that appeal to bias or prejudice. There can be no doubt that the latter sort of judicial misconduct is a more potent contaminant. Aggressive questioning by the trial judge may, in some instances, actually benefit the truth-seeking function of the courts, though such active participation is not favored. Further, it is quite possible that a trial judge may be able to engage in such questioning without revealing his or her views on the merits of the case. However, when the trial judge’s role loses it impartial character and tends to emphasize and accentuate one side’s ease over another’s, a trial judge’s participation becomes prejudicial and may require reversal. See United States v. Bland,
Before addressing the impropriety of the trial judge’s comments on racial solidarity, we first note that the trial judge should not have told the jury that Rush’s attorneys “scolded” him for being late. The trial judge should have refrained from making such a reference because of the danger that such characterization might unfairly disparage Rush and his counsel in the eyes of the jury. Most importantly, the trial judge committed
While the trial judge’s improper comments were not directed at the merits of Rush’s case, our concern is that thеy might have effectively undermined the credibility of his corroborating witnesses. The potential for prejudice created by the utterance of the trial judge’s racially polarizing remark to an all-white jury hearing a civil rights case brought by an African-American most of whose corroborating witnesses were also African-American is self-evident. A similar ease was considered by a New York state appeals court over thirty years ago in People v. Burris,
In our opinion, the defendant did not receive a fair trial. Both the court and the assistant district attorney suggested to the jury that the identification of the defendant by the complaining witness should be weighed in the light of the fact that both defendant and the witness were negroes. We have firmly rejected the weighing of testimony on the basis of racial similarity or dissimilarity of witnesses. As identification here turned on the testimony of a single witness, a new trial is necessary to correct the possible effect on the jury of an argument which should be eschewed as false in its premise and divisive in its result.
Id. (citation omitted). The wisdom of that court’s decision is compelling. While the trial judge in the present case did not expressly state that Rush’s witnesses should be discredited, we believe that the danger of his implication demands a new trial as well. Even an inadvertent and indirect suggestion that Rush and his corroborating witnesses gave a consistent account of the events because of racial solidarity, and not because of their sworn duty to tell the truth, is completely intolerable. Moreover, when such suggestion is made in a civil case, it will generally prove more damaging to the plaintiff because, on most issues, he or she has the burden of proof.
Because of the impracticality of determining what, if any, effect this racially-divisive remark had on the jury in the present case, to require a showing of actual prejudice would be tantamount to declaring such egregious comments unreviewable. We return therefore to the result in Burris. In that case, the court realized the importance of witness credibility and therefore determined that the “possible effect” on the jury was sufficient to merit a new trial. On the particular facts of this case, we hold that the potential for prejudice in the minds of the jurors was so great that no specific showing of actual prejudice is required.
III. CONCLUSION
Because we believe that the trial judge’s comments in this case substantially affected Rush’s right to a fair trial, we reverse and remand this case to the district court for a new trial.
Notes
. This is a troubling case on a number of fronts. Because we find the issue regarding the trial judge’s comments to the jury to be dispositive, we will not address the other issues at length. We are, however, dismayed not only by the trial judge's comments about racial solidarity, but also by the conduct of defendants during pre-trial discovery, and the way in which the trial judge removed the sole African-American juror from the jury. The defendants flouted not only our liberal discovery rules but also the district court’s order compelling production of documents. There is no excuse for such obstructionist tactics. With regard to the juror dismissal, we appreciate the trial judge's desire to move the case forward; we note, however, that a reasonable delay in the interest of the ultimate goal of justice is often the most prudent choice.
. This restatement of our approach to claims of judicial misconduct corrects the alteration of a quotation from La Barge Water Well Supply Co. v. United States,
. In United States v. Olano, - U.S. -, -,
Concurrence Opinion
concurring specially.
I agree with most all of the court’s opinion and I readily concur in its judgment. I believe that the court is correct in finding plain error, but I write separately because I do not believe a “possible effect” on the jury or “the potential for prejudice,” ante, at 922, is sufficient as a matter of current law to support a plain error reversal. As wе have very recently observed, for there “to be plain error in a civil case, [the error] must have ‘almost surely affected the outcome of the case.’ ” Champagne v. United States,
I would conclude that the trial judge’s comments here constituted plain error by finding that those comments give rise to a rebuttable presumption of prejudice. The Supreme Court specifically observed in Ola-no that there may be a category of cases where otherwise forfeited errors could be corrected regardless of their effect on the trial’s outcome, or that there exists a category of errors that are presumed prejudicial even if the defendant cannot make a specific showing of prejudice. — U.S. at -,
Our court’s opinion has thoughtfully and thoroughly explained the inherent danger of the trial judge’s remarks here given the uniquely influential role of the trial judge coupled with the racially polarizing nature of the comments made to an all-white jury in a case brought by an African-American, most of whose key witnesses also were African-American. I would further add that a critical function of a trial judge is to ensure that the very type of highly inappropriate and irrelevant racially charged commentary involved in this case gets no play before the jury. The fact that the trial court itself, by its own comments, failed in this critical function troubles me deeply.
I too believe the risk of prejudice in a case like this is unacceptably high. I would conclude that in exceptionally rare cases, like this, where the trial judge makes racially oriented comments which tend to separate the trial’s participants including the jury itself along racial lines, a rebuttable presumption of prejudice is warranted. See generally United States v. Doe,
As indicated, I would apply a rebuttable presumption of prejudice to this ease. After reviewing the record, however, I find that not one of the arguments made by the defendants is sufficient to rebut the presumption. Accordingly, like our court, I would find plain error and would exercise our remedial discretion to reverse for a new trial because the error in this case strikes at the heart of the “integrity or public reputation of judicial proceedings.” Olano, — U.S. at -,
Dissenting Opinion
with whom BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, join, dissenting.
The majority’s opinion neglects to apply plain error review as delineated by the Supreme Court, overstepping the authority of this Court. We respectfully dissent.
Despite the majority’s reluctance to make a finding, it is quite clear that Rush’s counsel made no objection, express or implied, to the comment at issue in this case. Any implied objection by Rush’s counsel was not to this comment, but to a different statement by the court. The exchange quoted at page six of the majority’s opinion reveals that, if any objection at all was made by defense counsel, it was made in reference to the court’s char
I. PLAIN ERROR STANDARD
Because there was no objection, express or implied, to the comment regarding racial solidarity, this Cоurt must review the court’s comment for plain error. Cowens v. Siemens-Elema AB,
Federal Rule of Civil Procedure 51 is even more restrictive than Criminal Rule 52(b); indeed, [the Ninth Circuit] holds that it allows no new attacks on instructions on appeal. We thus agree with the Sixth Circuit that ‘[t]he principles and decision enunciated in Olano apply a fortiori in the civil context where courts pay less strict attention to procedural protocol.’ Olano augments this court’s long-standing rule that reversal for plain error is ‘not a run-of-the-mill remedy5 and will occur ‘only in exceptional circumstances to avoid a miscarriage of justice.’
Highlands Ins. v. National Union Fire Ins.,
Olano sets out in detail three limitations on the Courts of Appeals’ authority to correct forfeited errors. First, there must be an error. Olano, — U.S. at -,
Second, the error must be “plain,” which is “synonymous with ‘clear’ or, equivalently, ‘obvious.’ ” Id. We assume arguendo that the error in this case was plain, although the fact that counsel did not object to the comment when made is an indication that the error may not have been as plain as the majority seems to believe.
Third, the error must “affect substantial rights.” Id. at -,
The Supreme Court has recognized only two possible exceptions to the plain error requirement that specific prejudice resulted from a forfeited error: There “may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome,”
Finally, once the three threshold requirements of the plain error standard have been met, the court has discretion to correct the forfeited error. Id. The court should exercise this discretion only when “a miscarriage of justice would otherwise result.” Id. at -,
Under the Supreme Court’s plain error analysis, therefore, Rush, as the party claiming plain error, bears the burden of showing specific prejudice to meet the third prong of the plain error standard, unless he can show that the error was of the special category of forfeited errors that can be corrected regаrdless of effect on outcome, or that prejudice should be presumed.
II. ERROR THAT CAN BE CORRECTED REGARDLESS OF EFFECT ON OUTCOME
This Court has never treated improper judicial commentary during trial as error of the special category that can be corrected regardless of effect on outcome. In Goldstein v. United States,
The recent harmless error jurisprudence of the Supreme Court, involving the direct criminal appeal of admission of a forced confession, strongly suggests that we should not venture to change this long-standing rule. In Arizona v. Fulminante,
The common thread connecting thesе eases is that each involved “trial error”— error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.
Id. at 307-08,
These are structural defects in the constitution of the trial mechanism, which defy analysis by “harmless-error” standards. The entire conduct of the trial from beginning to end is obviously affected by the absence of counsel for a criminal defendant, just as it is by the presence on the bench of a judge who is not impartial. Since our decision in Chapman, other cases have added to the category of constitutional errors which are not subject to harmless error the following: unlawful exclusion of members of the dеfendant’s race from a grand jury; the right to self-representation at trial; and the right to public trial. Each of these constitutional deprivations is a similar structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.
Id. at 309-10,
In an attempt to justify its failure to apply the plain error standard, the majority’s opinion appears to draw a distinction between comments “that appeal to bias or prejudice” and “excessive judicial intervention in the questioning of witnesses,” stating that the difference between these two types of impropriety “is not one of degree, but of kind” because commentary that appeals to “bias or racial prejudice” can never serve a salutary purpose, as can intervention in questioning, and because intervention need not reveal the judge’s views on the merits of the case. Maj. op. at 922. It is not quite clear to us whether this distinction draws a line between racial
Although characterized by the majority as a comment appealing to racial bias, the comment that “races tend to stick together” does not indicate a preference for one party over another nor, for that matter, does it indicate a preference for one race over another. Made in the context of explaining to the jury the removal of the only black juror,
This distinction argued by the majority— between comments with racial content and other improper comments — bears no relation to the distinction between trial error and structural error that the Supreme Court has determined is relevant to the determination of whether a showing of prejudice is required. Racial content does not transform a comment from trial error to structural error, and cannot support the classification of improper judicial comments in the same category as such structural corruptions as violations of the right to counsel or the right to an impartial judge.
III. SPECIFIC AND PRESUMED PREJUDICE
Because improper judicial commentary is nоt structural error, it cannot be error of the special category that can be corrected regardless of effect on outcome; Rush thus must show either specific prejudice or facts supporting a presumption of prejudice. In Olano, the Court stated that “[tjhere may be cases where an intrusion [into jury deliberations] should be presumed prejudicial, but a presumption of prejudice as opposed to a specific analysis does not change the ultimate inquiry: Did the intrusion affect the jury’s deliberations and thereby its verdict?” Olano, — U.S. at -,
In a criminal case, our evaluation would be governed by the case law interpreting Fed.R.Crim.P. 52(b)_ Although there is no equivalent rule in civil procedure, the Supreme Court has described plain error in a civil case as ‘obvious, or ... otherwise seriously affect[ing] the fairness, integrity or public reputation of judicial proceedings.’ Federal appellate courts have held, in addition, that for a challenged action to be plain error in a civil case, it must have “ ‘almost surely affected the outcome of the case.’ ”
Id. at 947 (quoting Angelo v. Armstrong World Indus., Inc., 11 F.3d 957, 961 (10th Cir.1993)) (internal quotations and citations omitted) (emphasis added).
In Olano, the Court analyzed the claim of plain error first for “specific prejudice” and second for “presumed prejudice,” finding that specific prejudice had not been shown, and, examining the facts of the specific case, that the presence of alternate jurors during jury deliberations, without more, does not create presumed prejudice. — U.S. at -,
The majority does not examine whether Rush has carried his burden of showing facts indicating that the comment affected the verdict: The opinion merely argues that comments with racial content are “different” from other improper judicial comments and asserts that the potential for prejudice from a “racially polarizing remark” is enough to meet the requirements of plain error review. To carry the threshold burden for presumed prejudice, however, a party must provide case specific facts that support the conclusion that the jury’s verdict was affected by the improper comment. See id. at -,
The majority characterizes the court’s comment as “racially polarizing.” In the circumstances of this case, however, the comment could not have a racially polarizing effect. Although Rush was black and the jury which remained was white, the defendants were not all white. Although the name defendant, officer Smith, was white, the defendant officer who was with him during the incident, who also fired shots at the Rush backyard, and who testified, was black. Defendant board of commissioners included several black members and several white members. Further, Rush states that all his “fact” witnesses were black: These “fact” witnesses were his grandmother and his cousin. The family relationship among Rush and his witnesses was far more likely to cause the jury to doubt their story than the fact that they were of the same race. At least one of Rush’s expert witnesses was white. Thus, there were witnesses of both races testifying for both the plaintiff and the defendants, and at least some of the defendants were black. Accordingly, a statement that “races tend to stick together” does not indicate to the jury that they should favor one version of events over the other, since there were witnesses of the jury’s own race and witnesses not of the jury’s own race telling each version of the story, and there were witnesses of each race corroborating each version of the story.
Furthermore, the comment was a single incident occurring halfway through an eight-day trial. See Hale,
In addition, this Court has held that “[t]he burden is on the appellant to show both error and prejudice, and ‘error which in a close case might call for a reversal may be disregarded as harmless where the evidence of guilt is strong.’ ” Chubet v. United States,
In our view, this was not a close case. As the majority states, this case turned on conflicting testimony, but the weight of the testimony was significantly in favor of the defendants. Rush’s version of events was supported by only one eyewitness: his first cousin, who lived in the same house as Rush. The jury discredited her testimony that Rush spent the evening, until near-midnight, upstairs in bed, talking on the telephone. One of Rush’s neighbors, Pamela Rudderforth, testified to seeing Rush running down the alley between their houses that evening at 8:45 with a shotgun. VI Trial Tr. at 32. His seventy-four year old grandmother’s testimony did not contradict Rush’s story, but it also did not support it. She testified that, at the time of the shooting, she was in the dining room watching television and could not see events taking place either in the kitchen or in the yard. I Trial Tr. at 203-08. She saw Rush pass through the dining room going toward the kitchen, but could not see whether he stayed in the kitchen, or went through the kitchen into the yard. In addition, officer George, a firearms expert who examined the area in which the incident took place, testified that he found sixty-five shell casings in the Rush backyard. VI Trial Tr. at 16.
Four eyewitnesses, including Smith’s black partner, officer Hardison, and two of Rush’s next-door neighbors
The jury’s verdict for defendants reflects the low credibility of Rush’s version of events and the weakness of Rush’s evidence against defendants.
In sum, if the jury took any notice of the comment at all, given its brevity and timing, the comment applied to both parties, giving no particular indication that the jury should have believed one version of events over another. Further, the verdict for defendants was not affected because the evidence was strongly in favor of defendants, and the verdict in keeping with this evidence. We find that, on the facts of this case, Rush has not carried his burden of showing that we should presume that prejudice affecting the outcome of the trial resulted from the court’s comment.
We therefore dissent, and would affirm. Rush has not shown that the court’s improper comment constituted plain error because he has not shown that the comment affected substantial rights: The error was not one that we have authority to correct regardless of its effect on the outcome of the trial; and Rush has shown neither specific prejudice nor facts supporting presumed prejudice.
. In United States v. Young,
"A per se approach to plain-error review is flawed.... [F]ederal courts have consistently interpreted the plain-error doctrine as requiring an appellate court to find that the claimed error not only seriously affected 'substantial rights,' but that it had an unfair рrejudicial impact on the jury's deliberations.... To do otherwise could well lead to having appellate courts indulge in the pointless exercise of reviewing ‘harmless plain errors' — -a practice that is contrary to the draftsmen’s intentionbehind Rule 52(b), and one that courts have studiously avoided and commentators have properly criticized.”
Young,
. Confusingly, the Court has sometimes referred to such errors as ones in which a "presumption of prejudice” is applied, see Penson v. Ohio,
. There is no allegation that the judge in the instant case was actually biased or lacked impartiality.
. Incidentally, at jury selection, it was the court — at side bar — who literally importuned the prosecutor to retain this woman on the jury, ensuring that Batson was satisfied. I Trial Tr. 155-61.
. The majority cites People v. Burris,
. We note that Judge Hansen's concurrence recognizes the method of plain error review delineated in Olano, but fails then to apply this method in a manner consistent with the Supreme Court's analysis. Under the Olano analysis, there are three separate categories of error: errors for which no showing of prejudice need be made; errors for which a showing supporting a presumption of prejudice must be made; and errors for which a showing of specific prejudice must be made. See Olano, - U.S. at -, -,
In sum, respondents have not met their burden of showing prejudice under Rule 52(b). Whether the Government could have met its burden of showing the absence of prejudice, under Rule 52(a), if respondents had not forfeited their claim of error, is not at issue here. This is a plain-error case, and it is respondents who must persuade the appellate court that the deviation from Rule 24(c) was prejudicial.
- U.S. at -,
. Mr. Miller, a city mechanical inspector, and Ms. Rudderforth, a certified nurse's assistant.
. The majority makes much of the fact that the criminal charges against Rush stemming from this incident were dropped. In a criminal prosecution against Rush, the state must carry the burden of showing, beyond a reasonable doubt, that Rush committed the crimes with which he was charged. In a civil suit against police, Rush must cany the burden of showing, by a preponderance of the evidence, that the police acted in violation of his civil rights. A feeling by the prosecutor that a criminal case against Rush only had a 50% chance of success in no way translates to an indication that Rush's § 1983 suit had a significant likelihood of success.