Dan Epps

It is kind of wild. And then the other thing is. Turned over box eight a long time ago.

It is kind of wild. And then the other thing is. Turned over box eight a long time ago.

I guess the idea is that that's evidence of the Nipu violation. It's evidence that the prosecution was trying to help Sneed modify his testimony.

I guess the idea is that that's evidence of the Nipu violation. It's evidence that the prosecution was trying to help Sneed modify his testimony.

Did the court ever get into this? There's this old... Also dates back to when we were clicking. There used to be this maybe like 12 to 1 circuit split or something. Yeah. Are there 13 circuits on the cumulative error doctrine?

Did the court ever get into this? There's this old... Also dates back to when we were clicking. There used to be this maybe like 12 to 1 circuit split or something. Yeah. Are there 13 circuits on the cumulative error doctrine?

There was like, if you have one constitutional violation, you're not sure whether that violation is harmful, but in combination with a bunch of other stuff, maybe not independently actionable, then it becomes harmful. And it felt a little bit like that's what the court's doing here.

There was like, if you have one constitutional violation, you're not sure whether that violation is harmful, but in combination with a bunch of other stuff, maybe not independently actionable, then it becomes harmful. And it felt a little bit like that's what the court's doing here.

Well, I don't know. I mean, they say cumulative evaluation. Yeah. Sorry. At the harmless error standard, I guess the prejudice is wrong.

Well, I don't know. I mean, they say cumulative evaluation. Yeah. Sorry. At the harmless error standard, I guess the prejudice is wrong.

So the court now does this thing that I think you and I both disapprove of, where sometimes we'll decide a claim is harmless because there was a bunch of overwhelming evidence, like other evidence. Yes, we shouldn't have admitted this evidence against you, but 12 other people said you did it, so harmless. And I guess if you're going to do that, this is kind of the flip side. It's like...

So the court now does this thing that I think you and I both disapprove of, where sometimes we'll decide a claim is harmless because there was a bunch of overwhelming evidence, like other evidence. Yes, we shouldn't have admitted this evidence against you, but 12 other people said you did it, so harmless. And I guess if you're going to do that, this is kind of the flip side. It's like...

Well, a bunch of other shady stuff happened that further undermines our confidence in the verdict. So it's not an overwhelming evidence case.

Well, a bunch of other shady stuff happened that further undermines our confidence in the verdict. So it's not an overwhelming evidence case.

And then the remedy is interesting, right? So Justice Barrett and the dissent say, well, normally we should just correct their mistake. Say, you know... If there was no independent violation, you're wrong about that. And send it back to them. I take it, it goes back down to them. They could, among other things, hold an evidentiary hearing on all this stuff Paul Cassell wants to bring in.

And then the remedy is interesting, right? So Justice Barrett and the dissent say, well, normally we should just correct their mistake. Say, you know... If there was no independent violation, you're wrong about that. And send it back to them. I take it, it goes back down to them. They could, among other things, hold an evidentiary hearing on all this stuff Paul Cassell wants to bring in.

And who knows what else, right?

And who knows what else, right?

Yeah. Could they at that point resurrect a state law AISG? Could they at that point say, if we gave them a remand, ah, we see we were unclear the first time about whether our procedural violation was intertwined with federal law. Now that we got the case back, we'd like to be clear that despite the violation of federal law, we still find it procedurally barred. That would be on the table, right?

Yeah. Could they at that point resurrect a state law AISG? Could they at that point say, if we gave them a remand, ah, we see we were unclear the first time about whether our procedural violation was intertwined with federal law. Now that we got the case back, we'd like to be clear that despite the violation of federal law, we still find it procedurally barred. That would be on the table, right?