Whether a court reviewing a cold record in a capital case may determine that the effect of an erroneously admitted confession and other improper aggravating evidence was harmless as to the penalty by characterizing the evidence as cumulative without evaluating objective factors showing an effect on the jury deciding the case

QUESTION PRESENTED In Arizona v. Fulminante, 499 U.S. 279 (1991), this Court held that an error in admitting a defendant’s confession in a capital case was not harmless, rejecting a claim that the evidence was cumulative because another confession was properly admitted. Fulminante emphasized that appellate judges must exercise “extreme caution” before finding harmless error in this context. /d. at 296. The lower courts have since issued conflicting and divided opinions when applying harmless-error analysis to erroneously admitted confessions. The Ninth Circuit’s decision in this capital case was also sharply divided, with a majority finding that the erroneous admission of a confession and other improper aggravating evidence was harmless as to the death-penalty determination, while a dissent concluded that the effect of the errors “more than” met the standard for relief. The question presented is: Whether a court reviewing a cold record in a capital case may determine that the effect of an erroneously admitted confession and other improper aggravating evidence was harmless as to the penalty by characterizing the evidence as cumulative without evaluating objective factors showing an effect on the jury deciding the case, including jury communications focusing on the confession, the prosecutor’s statements about the importance of the evidence, and lengthy jury deliberations. i STATEMENT OF RELATED CASES . People v. Kurt Michaels, No. CRN 14859, Superior Court of the State of California for the County of San Diego. Judgment entered July 31, 1990. . People v. Kurt Michaels, No. 8016924, Supreme Court of California. Judgment entered July 18, 2002, rehearing denied September 18, 2002. . Michaels v. California, No. 02-8767, Supreme Court of the United States. Petition for writ of certiorari denied May 27, 2003. . In re Kurt Michaels on Habeas Corpus, No. 8071265, Supreme Court of California. Judgment entered December 23, 2003. . In re Kurt Michaels on Habeas Corpus, No. 8147647, Supreme Court of California. Judgment entered August 19, 2009. . Michaels v. Davis, No. 044CV00122-JAH, U.S. District Court for the Southern District of California. Judgment entered February 11, 2015, and motion to alter or set aside the judgment denied on March 12, 2015. . Michaels v. Davis, No. 15-99005, U.S. Court of Appeals for the Ninth Circuit. Judgment entered October 18, 2022, rehearing and rehearing en banc denied February 1, 2023. . Michaels v. Davis, No. 22A872, Supreme Court of the United States. Order entered on April 6, 2023 extending time to file petition for a writ of certiorari to July 1, 2023. ii