The unanimous decision of the Supreme Court, as noted in the previous article, dealt with a limited question: Did the Ninth Circuit correctly apply the Brecht standard rather than the Chapman standard?
However, Justice Stevens wrote a part concurring, part dissenting opinion in which he argued that the Court should have also determined whether the error was indeed harmless by the Brecht standard. In other words, did the Ninth Circuit come to the correct decision when it applied Brecht? In Stevens' opinion, it did not.
Fry's first and second trials ended in deadlocked juries. In the third trial, after 11 days of deliberation, the jurors were "hopelessly deadlocked." The Judge instructed the jury to continue, and the jury foreman asked for a definition of "reasonable doubt." The jury required another 23 days of deliberation before bringing in their guilty verdict.
Justice Stevens wasn't surprised that the jury had such a hard time convicting. The only eye witness described the killer as a male, 5'7-5'8, 140 lbs., with a full head of hair. Fry is 6'2, 300 lbs., and bald.
The Defense called 7 different witnesses that linked the killings to a man named Anthony Hurtz. The State impeached the witnesses for bias, either against Hurtz or for Fry.
The witness that was not admitted by the trial court judge also implicated Hurtz. She did not testify at the first 2 trials. She informed the Judge, out of the hearing of the Jury, that she overheard Hurtz say that he had committed a double murder strikingly similar to the one witnessed by the truck driver.
Justice Stevens concludes:
Here, the jury was deprived of significant evidence of third-party guilt, and still we measure the length of deliberations by weeks, not hours. In light of the jurors’ evident uncertainty, the prospect of rebutting the near-conclusive presumption that the Chambers error did substantial harm vanishes completely.
Justice Stevens does indeed produce sound reasoning. As he noted, the trial court's exclusion of this witness for "lack of foundation was clear constitutional error." The fact that the jury was deadlocked 11 days into deliberations, and had to deliberate an additonal 23 days to come to a guilty verdict is pretty solid evidence that, had the excluded witness been allowed to testify, either the jury would have remained deadlocked, resulting in a 3rd mistrial, or they would have acquitted.
Read Stevens' Opinion