Dear Alex Watts,
Thank you very much for taking up my question.
I am trying to figure out if what happened is a "trial error" or a "structural error," From what I have read, normally trial errors include a flaw (or flaws) in the way evidence is presented to a jury. A structural error is described as a constitutional deprivation that infects the way the trial was conducted from beginning to end. From what I have seen, this is usually applied in criminal trials.But I saw a couple of Ninth Circuit Court of Appeals cases (shown by using Google scholar) wherein the Ninth Circuit used structural error in civil cases.
In my case, the exhibits excluded from the trial are relevant. This was a copyright infringement case, and the District Court Judge excluded my charted infringement documentation from evidence on a Federal Rule of Evidence 403 (this was a misapplication of Rule 403, which is only supposed to exclude probative evidence that will unfairly prejudice a jury). Also, two other exhibits were not included at trial. I do not know if the Judge or the attorneys decide on which exhibits will be admitted (maybe you could answer that question for me).
One of these documents (not on the Exhibit List and not shown at trial) was generated by opposing counsel and states that the derivative (that later went on trial) was a renamed version of the uncontested derivative that belongs to me (a derivative made from my copyrighted work)
Another exhibit is shown on the Joint Exhibit list, but was excluded from trial. It is a copy of the uncontested derivative.This was needed at trial to show that the derivative the defendants were claiming was a wholly different work that belongs to them is really a renamed copy of the uncontested derivative that belongs to me.
So, the omission of the evidence stated above infected deliberations from beginning to end, i.e., like a structural error. The omission of such vital evidence was also a constitutional deprivation in that the evidence was needed for the trial to be fair.
That is, the jury did not know that the derivative that went on trial was really a renamed version of the uncontested derivative. Even I did not know this at the time, and only learned the underlying deception when I decided to fight my own appeal and began exploring the Court Record. That is when I realized that my own attorney sold me out -- all attorneys at trial pretended that the derivative I was fighting for was really a wholly different work that I had to prove belonged to me.
For the above to make any sense, it is important for me to mention that the derivative is a ghostwritten work generated on my behalf (per contract) by my (at the time) literary agent. He withheld the finished derivative (so I could not see it), and when I accidentally learned that he was planning to contract it for himself at my expense, I filed suit.
To make matters worse, one of the Jury Instructions misleads jurists into believing that defendants have the right to produce a derivative from my unpublished, copyrighted work (this is strictly forbidden by Copyright Law and Supreme Court precedent -- and my attorney did not object to the instruction in open court). For jurists, this instruction made my effort of going to trial appear to be a waste of everyone's time. After all, why would anyone go to trial if the Copyright Act allows defendants to produce derivatives of unpublished works?
I am now writing a writ to the Supreme Court because the Ninth Circuit Court of Appeals did not hear my filings on the copyright issue: The Ninth Circuit put my case in its pro bono program, and then counted pro bono supplemental briefs as replacement briefs (even though they were clearly designated as supplemental) and used that as a mechanism to ignore my appeal brief, which is the only filed document that argues the matter of infringement.
So, that's the history behind my question, and I am trying to figure out if the District Court produced a structural error or a trial error. If it is a structural error, then it was mandatory that the verdict be reversed by the Appeals Court. I do not know if the same is true for a trial error.
Thank you again for your kind consideration of my question.