The Supreme Court today filed two opinions.
In People v. Grimes, the court affirmed a death penalty judgment. However, the court divided 4-3 as to affirming the penalty and the close vote makes Grimes a candidate for rehearing, even after having already been argued twice. (More about this in a later post.) The main point of contention is the majority’s conclusion that the exclusion of hearsay statements, if erroneous, was harmless, even though the Attorney General did not argue harmless error in her answer brief.
The majority, in an opinion authored by Chief Justice Tani Cantil-Sakauye, says “the Attorney General’s failure to respond to defendant’s harmless error argument does not relieve this court of its responsibility to determine whether any error was harmless.” It then finds any error harmless.
Justice Goodwin Liu, in a dissent joined by pro tem Court of Appeal Justice Laurie Zelon, believes the majority’s “approach cannot be squared with elemental notions of fair play and this court’s role as a neutral arbiter in the adversarial process. With today’s opinion, we are saying to the Office of the Attorney General, the most experienced litigant in California’s appellate courts: ‘Don’t worry if you fail to argue harmless error because we will give you a second bite at the apple.’ ” Although he agrees “that the California Constitution requires us to address harmless error, the government’s omission is not, as the court suggests, without consequence to the analysis or outcome,” and he concludes that the error was prejudicial at the penalty phase of the trial. Justice Kathryn Werdegar separately agrees with Justice Liu that the error was prejudicial at the penalty phase.
In the second opinion filed today — Hudec v. Superior Court — a unanimous court holds, in an opinion authored by Justice Werdegar, that in a proceeding to extend the civil commitment of a person found not guilty by reason of insanity, the person, like a criminal defendant, has the constitutional right to refuse to testify.