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BANKS v. COMMISSIONER OF CORRECTION—SECOND CONCURRENCE
ECKER, J., concurring in the judgment. I respectfully
disagree with the majority opinion to the extent that it
adopts and applies the harmless error analysis set forth
in Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993). See id. (new trial is
mandated if instructional error ‘‘had substantial and
injurious effect or influence in determining the jury’s
verdict’’ (internal quotation marks omitted)). For the
reasons explained in part II of Justice D’Auria’s concur-
ring opinion in this case, I would instead apply the
standard articulated in Neder v. United States, 527 U.S.
1, 18, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). See
id. (new trial is required unless it is ‘‘clear beyond a
reasonable doubt that a rational jury would have found
the defendant guilty absent the [instructional] error’’).
Accordingly, I join part II of Justice D’Auria’s concur-
ring opinion. I nevertheless concur in the judgment
because, applying the Neder standard, the state has met
its burden of establishing harmless error on this record.
See footnote 1 of Justice D’Auria’s concurring opinion.