Death and Harmless Error: A Rhetorical Response to Judging Innocence

7 Pages Posted: 19 Nov 2011

See all articles by Colin P. Starger

Colin P. Starger

University of Baltimore - School of Law

Date Written: February 23, 2008


Professor Garrett’s impressive empirical analysis of the first 200 post conviction DNA exonerations in the United States (“Garrett Study”) has the potential to affect contemporary debates surrounding our nation’s criminal justice system. This Response explores this potential by harnessing the Study’s data in support of arguments for and against a contested doctrinal proposition — that guilt-based harmless error rules should never apply in death penalty appeals.

My analysis starts with the premise that the Study’s real world impact will necessarily depend on how jurists, politicians, and scholars extrapolate the explanatory power of the data beyond the 200 cases themselves. While critics of contemporary criminal justice policies will likely see Professor Garrett’s data as revealing the tip of an iceberg of deeper structural flaws, defenders of the status quo will predictably resist generalizations from this closed data set to any larger picture of criminal justice administration. Much therefore rides on the perceived inductive reach of these 200 cases.

Keywords: post conviction DNA exonerations, Garrett Study, criminal justice system, death penalty appeals, guilt-based harmless error rules, empirical analysis, criminal justice policies, Brandon L. Garrett, Chapman test, Strickland test, capital punishment

JEL Classification: K14, K19, K39, K49

Suggested Citation

Starger, Colin P., Death and Harmless Error: A Rhetorical Response to Judging Innocence (February 23, 2008). Columbia Law Review Sidebar, Vol. 108, p. 1, 2008, University of Baltimore School of Law Legal Studies Research Paper, Available at SSRN:

Colin P. Starger (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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