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People v. Whitt10/25/1990
ore that you have no right to cross-examine the Court. The ruling still stands.
"Mr. Broderick: I wasn't cross-examining the Court. I was asking for Mr. --
"The Court: You were asking for a reason --
"Mr. Broderick: No. I was asking Mr. McDowell for a reason through the Court.
"The Court: Proceed, please.
"Q (By Mr. Broderick) Why do you deserve to live ?
"Mr. McDowell: Objection, your Honor.
"The Court: State for the record, please.
"Mr. McDowell: Yes. This is irrelevant information.
"The Court: Sustained.
"Mr. McDowell: And I should say for the record self-serving.
"The Court: Still sustained.
"Mr. Broderick: I have nothing further, then.
"The Court: Cross, please.
"Mr. McDowell: I have nothing to cross, your Honor.
"The Court: Thank you. You may step down." (Italics added.)
It is manifest that by summarily sustaining the prosecutor's objections the court committed Skipper error. The majority arrive at the same conclusion. Rightly so.
Contrary to Eighth Amendment principles that were already well and clearly established at the time of trial, the court's rulings barred defendant from introducing "relevant mitigating evidence." (Eddings v. Oklahoma, supra, 455 U.S. at p. 114 [71 L.Ed.2d at p. 11].) Indeed, they precluded defendant's own testimony concerning the "aspect of" his "character or record and . . . the circumstances of the offense that" he himself wished to "proffer as a basis for a sentence less than death." (Lockett v. Ohio, supra, 438 U.S. at p. 604 [57 L.Ed.2d at p. 990] (plur. opn. by Burger, C. J.).) Defendant was effectively silenced as the jury was about to decide his fate.
On this record, the Skipper error cannot be held harmless. As explained above, under Chapman there rests on the People the burden to prove that the error was harmless beyond a reasonable doubt -- a burden that is very heavy indeed when, as here, the error occurred at the penalty phase of a capital trial. The People simply fail to carry that burden. Because of the error, we cannot know what specific answers defendant might have given or what precise force those answers might have carried. The void in the record is indeed disturbing. But it is the People that created the void. And it is the People that must bear the responsibility. Trying this case almost a decade after Lockett v. Ohio, supra, 438 U.S. 586, the prosecutor must certainly have known that no evidence was more relevant and less objectionable than the very testimony he successfully sought to preclude -- a capital defendant's own words in support of his plea for life. Accordingly, on these facts I am not "able to declare a belief that [the error] was harmless beyond a reasonable doubt." (Chapman, supra, 386 U.S. at p. 24 [17 L.Ed.2d at p. 711].)
The majority arrive at the opposite conclusion. Their analysis rests on an implied premise that the burden of proof as to prejudice rests on the person complaining of the error. But as the very words of Chapman demonstrate, that premise is radically unsound: "Certainly error, constitutional error, . . . casts on someone other than the person prejudiced by it a burden to show that it was harmless . . . . he beneficiary of a constitutional error [is required] to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (386 U.S. at p. 24 [17 L.Ed.2d at p. 710].)
The majority suggest that my reading of Chapman is unprecedented. But it is the majority's understanding that is novel. I focus on the plai
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