concurring:
I see no need to decide what we would decide if the case before us were a different case. The Confrontation Clause violation was harmless beyond a reasonable doubt with respect to defendants Pryce, Thomas, and Antonio, but not with respect to defendant Gaskins. We reached that judgment by reviewing the whole record, which I believe we were obligated to do despite the government’s failure to make a harmless error argument. Whether we should follow a different course in a more complicated case, as Judge Williams suggests, is a question I would leave for another day.
*92The question does not appear to be particularly pressing. Since 1919 federal courts have been constrained to disregard trial errors not affecting substantial rights, Act of Feb. 26, 1919, ch. 48, 40 Stat. 1181, 28 U.S.C. § 391 (currently 28 U.S.C. § 2111), but our research indicates that United States v. Giovannetti, 928 F.2d 225 (7th Cir.1991), is the first reported case to discuss whether the government can “waive” a harmless error by neglecting to raise it. See also United States v. Davenport, 929 F.2d 1169, 1175 (7th Cir.1991). Yet in 72 years, Giovannetti cannot possibly be the first time the government has dropped this ball. It seems far more likely that over the years reviewing courts affirming convictions have considered it their duty to disregard trial errors of no consequence despite the government’s failure to say so. The mandatory language of current Fed.R.Crim.P. 52(a) and its statutory counterpart, as well as the Supreme Court’s formulation for constitutional errors, see Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), tend to support that viewpoint. See 28 U.S.C. § 2111; United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983).
At all events, we have decided here to consider the harmless error question in the face of the government’s silence about the subject. At least in this case we have done so because, as Judge Williams explains, the record is “short and straightforward” and because, in my view, the government’s litigating position did not relieve us of our duty to disregard harmless errors. I would let it go at that. The government already has incentive enough to raise harmless error when it reasonably can do so. The burden of persuasion is on the government; doubts about whether the error was harmless are resolved in favor of the defendant; and reversals more readily result when the government does not even try to persuade a court of appeals that the conviction was unaffected by the error.
I cannot agree with Judge Silberman that no matter what the trial error, no matter how technical the defect, no matter how petty and inconsequential the miscue, we must automatically reverse convictions whenever the government fails to utter the word “harmless.” True enough, as the court said in Giovannetti, 928 F.2d at 226, many legal rules are written in mandatory terms yet can be waived, either by intentional relinquishment of a known right (Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)), or failure to assert one’s right in a timely fashion (Wainwright v. Sykes, 433 U.S. 72, 91, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594 (1977)). But to find a “waiver” here one must assume the government possesses some “right.” The harmless error doctrine is not so framed; it instructs courts when to affirm convictions despite mistakes at trial. We would not say that because a party failed to invoke a controlling precedent the party has waived it and the court must therefore disregard stare decisis in reaching its decision. Neither would we review the evidence supporting a conviction de novo just because the government neglected to mention the standard governing review set forth in Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Nor would we automatically reverse a criminal conviction if the government confessed error on appeal. “[SJuch a confession does not relieve this Court of the performance of the judicial function.” Young v. United States, 315 U.S. 257, 258, 62 S.Ct. 510, 511, 86 L.Ed. 832 (1942). See also Rinaldi v. United States, 434 U.S. 22, 23, 98 S.Ct. 81, 82, 54 L.Ed.2d 207 (1977); Gibson v. United States, 329 U.S. 338, 344, 67 S.Ct. 301, 304, 91 L.Ed. 331 (1946); DeMarco v. United States, 415 U.S. 449, 451, 94 S.Ct. 1185, 1186, 39 L.Ed.2d 501 (1974) (Rehnquist, J., dissenting). “The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed.” 315 U.S. at 258-59, 62 S.Ct. at 511. In support of this statement, the Supreme Court in Young cited the decision of this court in Parlton v. United States, 75 F.2d 772 (D.C.Cir.1935), which has never been overruled. Parlton held that in criminal cases, the government’s confession of error does not relieve the *93court of its “responsibility to examine the whole record before setting aside a conviction for crime.” 75 F.2d at 773. See also Upshaw v. United States, 168 F.2d 167 (D.C.Cir.), rev’d on other grounds, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100 (1948).
Later decisions may have rendered the rule of Young discretionary, at least at the certiorari stage. See, e.g., Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960); Casey v. United States, 343 U.S. 808, 72 S.Ct. 999, 96 L.Ed. 1317 (1952); id. at 810, 72 S.Ct. at 1000 (Douglas, J., dissenting). In recent years the Supreme Court has sometimes accepted the government’s confession, granted certiorari, and vacated and remanded for reconsideration in light of the government’s position. See, e.g., Alvarado v. United States, — U.S. -, 110 S.Ct. 2995, 111 L.Ed.2d 439 (1990); Mariscal v. United States, 449 U.S. 405, 101 S.Ct. 909, 66 L.Ed.2d 616 (1981). The fact remains, though, that even the government’s express admission of error is not treated as some sort of Johnson v. Zerbst “waiver,” as if the government were intentionally relinquishing its “right” to have convictions affirmed. There is no way to reconcile this settled practice — and the law of this circuit under Parlton — with the notion that when the government does not confess, when it fails to say one way or the other whether it views the error as harmless, the court should deem its silence to be a waiver of the harmless error doctrine and automatically reverse the conviction.
I join Judge Silberman in his respect for the adversary process, but his tribute seems strangely out of place. In this case, neither side even briefed the issue that divides us. We of course could have called for supplemental briefing on the question of “waiver.” If we find the lack of adversariness troubling when the government has not raised harmless error, we always have the option of doing the same.