Constellation of errors

From time to time I raise a “constellation of error” in an appellate brief. Otherwise known as the doctrine of cumulative error. See United States v. Gray , 51 M.J. 1, 61 (C.A.A.F. 1999).

We hold, therefore, that this case “falls . . . within the ambit of the doctrine of cumulative error — under which a number of errors, no one perhaps sufficient to merit reversal, in combination necessitate the disapproval of a finding.” United States v. Walters, 4 U.S.C.M.A. 617, 635, 16 C.M.R. 191, 209 (1954). This Court will not lightly find reversible error in any case; however, we have been constrained on occasion to reverse a conviction because of the effect of cumulative errors found in the record of trial. E.g., United States v. Donohew, 18 U.S.C.M.A. 149, 39 C.M.R. 149 (1969); United States v. Yerger, 1 U.S.C.M.A. 288, 3 C.M.R. 22 (1952).

United States v. Banks, 36 M.J. 150, 170–71 (C.M.A. 1992).

Well now the SCOTUS may get involved some more.

In Sutton v. Colson, a death penalty case, a petition is pending on the following Question.

Whether the prejudice arising from multiple errors committed by defense counsel should be considered cumulatively for purposes of deciding whether counsel rendered ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984).

The petition acknowledges a “deep circuit split” on this issue. The petition observes:

The cumulation question is not just important in this case; it is also critically important to the administration of justice in courts across the country. The question arises frequently, and it goes to the heart of the Strickland analysis. The courts of appeals have been unable to arrive at a consensus – and, as a result, criminal defendants in different parts of the country are subject to varying levels of Sixth Amendment protection.