Lawyers Are Not Unicorns, but a Race-Baiting Prosecutor Proves That a Failure to Object Can Be Fatal

In Henderson v. United States, the U.S. Supreme Court held that the plain error rule, which permits an appellate court to redress an error that was not preserved by timely objection, applies to errors that were plain at the time of appeal, as opposed to only those that were plain at the time of trial.

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It is official. Defense lawyers are not unicorns. They are intelligent, responsible advocates who earnestly endeavor to correct and preserve error. But they are fallible, and, in most cases, a failure to object to even the most egregious error will waive any opportunity for relief.

Within a span of five days in February, two Supreme Court opinions addressed issues related to error that are must-reads for trial lawyers. In Henderson v. United States,1 the Court held that the plain error rule, which permits an appellate court to redress an error that was not preserved by timely objection, applies to errors that were plain at the time of appeal, as opposed to only those that were plain at the time of trial. This case, which was the subject of the December 2012 Inside NACDL column,2 resolved an ambiguity in Federal Rule of Criminal Procedure 52(b). Cases had previously established that subject to stringent limitations, appeals courts could correct a forfeited error by the trial court that was plainly incorrect at the time of the ruling,3 and they could correct an error that was plainly correct, but subsequently rendered incorrect by an intervening appellate ruling.4 But, until Henderson, it was unclear whether an appeals court could correct an error where the law was unsettled at the time of the error, but plain at the time of review.

Justice Breyer delivered the opinion of the court holding that irrespective of whether the law was settled at the time of trial, if it has become settled by the time of appeal, the error may be considered by the appellate court. Seldom has an opinion so closely mirrored the colloquy at the oral argument. A principal argument in favor of limiting plain error to a time of trial rule was the concern that lawyers would not aggressively assert objections, preferring instead to purposely withhold an objection in the hope that the law would clarify by the time of appeal. During the oral argument, three justices suggested that such a lawyer is tantamount to a unicorn — something that does not really exist. And that is precisely the view that prevailed with six of the justices, and ultimately carried the day:

If there is a lawyer who would deliberately forgo objection now because he perceives some slightly expanded chance to argue for “plain error” later, we suspect that, like the unicorn, he finds his home in the imagination, not the courtroom.5 

Of course, practitioners know this to be the case. It is absurd to think that any lawyer would intentionally withhold an objection when there is a chance of prevailing at the trial level. It is precisely when the law is unsettled that a lawyer has the best chance to persuade a judge to rule in the client’s favor. And failing to make that effort, relief would only be available if there is a subsequent clarification of the law and the very stringent tests for plain error can be satisfied. That is an unrealistic scenario that no defense lawyer would pursue, although Justice Scalia advanced a palpably cynical view in a caustic dissent.6 

The sheer folly and calamitous consequences of failing to pursue aggressively an objection was underscored in an extraordinary statement issued just five days after Henderson. In Calhoun v. United States,7 Justice Sotomayor, joined by Justice Breyer, issued an exceptionally rare statement in support of the denial of a petition for a writ of certiorari in which she castigated the conduct of an Assistant U.S. Attorney.8 At issue in the case was a prosecutor’s race-baiting questions propounded to the testifying defendant and repeated in summation — neither of which was met with a timely objection. During the cross-examination of Bongani Calhoun, who denied knowledge of a drug transaction, the prosecutor asked this question to press Calhoun to explain why he did not want to be present in the hotel room where the drug deal allegedly took place:

You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you — a light bulb doesn’t go off in your head and say, this is a drug deal?”9 

Nor was this an isolated incident. In response to the defense lawyer’s criticism of the prosecutor’s question in his summation, on rebuttal the prosecutor returned to the racially charged theme:

I got accused by [defense counsel] of, I guess, racially, ethnically profiling people when I asked the question of Mr. Calhoun, Okay, you got African-American[s] and Hispanics, do you think it’s a drug deal?

But there’s one element that’s missing. The money. So what are they doing in this room with a bag full of money? What does your common sense tell you that these people are doing in a hotel room with a bag full of money, cash?10 

Justice Sotomayor observed that “[b]y suggesting that race should play a role in establishing a defendant’s criminal intent, the prosecutor here tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation.” She continued: “It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century. Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law.”

But as odious as this conduct was, it did not warrant reversal. Or even a grant of the petition for certiorari. Why not? Because, as Justice Sotomayor wrote in explaining her agreement with the denial of the petition, the case came to the Supreme Court on a plain-error review, under which the party would have to meet the high burden of demonstrating that the error affected the outcome of the proceeding. Inexplicably, Calhoun’s lawyers raised but did not brief that issue in the petition, concentrating instead on an argument that the comment should lead to an automatic reversal because it constituted structural error or plain error regardless of whether it prejudiced the outcome. But, as noted by Justice Sotomayor, those arguments were forfeited because they were not pressed on the appeal to the Fifth Circuit.

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It is possible, as Justice Scalia might suggest, that the lawyers for Calhoun were craftily holding back on timely objections and preservation of issues in the hope that some intervening decision would mandate reversal. Possible — but highly unlikely. The lesson is simple. When there is a questionable ruling of law or an improper comment by a prosecutor, lawyers must object and press their objection with complete vigor. Some small class of defendants will over time derive the benefit from the Henderson time of appeal rule for plain error. But in the overwhelming majority of cases, there is no substitute for contemporaneous vigilance.


  1. Henderson v. United States, No. 11-9307 (U.S. Feb. 20, 2013).
  2. Norman L. Reimer, Henderson v. United States and the Plain Error Rule: Metaphysics, Unicorns and Injustice, The Champion,December 2012 at 9.
  3. To obtain plain-error review, Rule 52(b) requires a defendant to satisfy four requirements: (1) there was “error”; (2) the error was “plain” — that is, it was “clear or obvious”; (3) the error affected substantial rights; and (4) failing to correct the error would seriously impact the “fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 736 (1993).
  4. Johnson v. United States, 510 U.S. 461 (1997).
  5. Henderson v. United States, No. 11-9307, slip op. at 9 (U.S. Feb. 20, 2013).
  6. Justice Scalia, who was joined by Justices Thomas and Alito, wrote, “Where a criminal case always has been, or has at trial been shown to be a sure loser with the jury, it makes entire sense to stand silent while the court makes a mistake that may be the basis for undoing the conviction. The happy-happy thought that counsel will not ‘deliberately forgo objection’ is not a delusion that this Court has hitherto indulged. …” Henderson, No. 11-9307, slip op. at 7-8 (Scalia, J., dissenting).
  7. Calhoun v. United States, No. 12-6142, (U.S. Feb. 25, 2013).
  8. While sometimes the Supreme Court will note in an opinion that it granted certiorari because of a lower court conflict on an issue of law, the Court rarely explains a denial of certiorari. David R. Stras, The Supreme Court’s Gatekeepers: The Role of Law Clerks in the Certiorari Process, 85 Tex. L. Rev. 947 n.154 (2007). In the opinion of this author, it is even rarer that the Supreme Court takes the occasion of a denial of certiorari to issue a statement to warn or chastise litigants.
  9. Calhoun, No. 12-6142, slip op. at 2.
  10. Id. at 3 (emphasis added).

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