In Henderson v. United States the court had to decide whether an error was “plain” during the appellate proceedings, but wasn’t at the time of trial – well at least was “unsettled” at the time of trial.

Breyer writes for a majority which did not include Scalia, Thomas, or Alito.

I’m not sure about this opinion.  If there is an issue and it is “unsettled” doesn’t the defense counsel know about it at the time of trial.  Therefore an effective defense counsel should raise the issue and point out the law is unsettled.  The error is preserved and the judge is given the opportunity to rule in the defense favor.

One Response to “It’s unsettled but plain in the Supremes”

  1. H Lime says:

    Finally!  I tried this one at CAAF several times, but while there were some friendly judges, others not so much.
    Bottom line, the fourth situation–unsettled then, settled now– is now sealed, and Judge Ryan’s (apparent) read is the law of the land.  In Mullins, CAAF essentially reiterated Harcrow, but didn’t resolve the issue because they additionally found that the law HAD been settled at the time of trial (as I recall).  Re contentious tests like this (see Kozinski’s infamous writings on this, 9th Cir), for CAAF that was “having the cake and eating it too.’
    I think you’re right, Phil, it’s unsettled, DC should object.  But now, it’s clearly ok if they don’t…  Now, I have to ho read the Gov’t briefs.  Can’t believe this one slipped my radar.