Criminal Law

Justices grapple with hearsay used to close slain toddler case

WASHINGTON (CN) — The Supreme Court held its cards close to the vest Tuesday as it considered whether the government’s duty to correct a criminal defendant’s misleading testimony outweighs his Sixth Amendment right to confront an accuser.

Defendants normally would get the chance to cross-examine witnesses who deliver evidence against them, but that did not happen at the trial of Darrell Hemphill for a 2006 shooting in the Bronx that ended in the death of 2-year-old David Pacheco.

Hemphill wasn’t indicted for the shooting until 2013 after his DNA was found on a blue sweater that had been in evidence. In the intervening years, the city had stumbled through a mistrial of its initial suspect, Nicholas Morris, ultimately settling for a plea deal in which Morris pleaded guilty to possession of a .357 revolver.

At Hemphill’s trial, prosecutors introduced that allocution from Morris, without actually bringing him in to testify, to correct Hemphill’s implication that Morris owned both the .357 and a 9 mm matching the bullet that killed Pacheco.

Hemphill is now serving a 25-year sentence affirmed by the New York Court of Appeals. The Supreme Court took up his appeal in April, agreeing to resolve whether “a criminal defendant who opens the door to responsive evidence also forfeits his right to exclude evidence otherwise barred by the Confrontation Clause.”

“A defendant cannot lose his right under the confrontation clause to exclude testimonial hearsay simply by making a legitimate defense based on admissible evidence, and that is true even if the hearsay the prosecution would like to introduce would supposedly contradict that defense,” said Jeffrey Fisher, of Stanford Law School’s Supreme Court Litigation Clinic, who argued Hemphill’s case before the justices on Tuesday.

Fisher argued the state’s theory of the case did not have support in the record or within New York state law.

Gina Mignola, the deputy general counsel at the Bronx County District Attorney’s Office who argued the case for New York, meanwhile told the justices that the open-door rule protects jurors from being misled.

She noted that the court has also previously recognized that the right to be confronted with a witness is not absolute.

“The petitioner is asking for a broad and sweeping rule,” Mignola said. “He’s essentially claiming that a defendant can never open the door to the admission of evidence that would otherwise be barred by the confrontation clause. It doesn’t matter if the defendant has misled the jury, and, really, if his approach is taken to its extreme, even the traditional rule of completeness would fall.”

In lines of questions, Justice Amy Coney Barrett touched on the rule of completeness — the evidence law that says once part of writing or recorded statement is introduced in a trial, the whole thing can be introduced.

“How do we describe the rule because … what all these questions are getting at is that the rule of completeness seems like the same thing but at a more precise level of generality than the door-open rule,” Barrett said. “So … we don’t want to write an opinion just to address the facts of this case, but we would have to be careful, right, if we agreed with you, to write the opinion in a way that didn’t close the door, so to speak, on the rule of completeness problem.”

The constitutionality of the 2012 New York case People v. Reid — which is used to determine when the door-opening rule applies to evidence — was a line of questioning from the justices. Justice Clarence Thomas said Hemphill had “eleventh-hour changes” to his arguments to focus on the constitutionality of the case. Fisher responded that Reid should be limited to the rule of completeness but also contended that wasn’t the question the court was to decide in the case.

The state argued that Hemphill bypassed the New York Supreme Court’s jurisdiction because the case was presented only as unconstitutional as applied to Hemphill and not on the constitutionality of New York’s “open the door” rule.

Justice Samuel Alito read from a section of Hemphill’s petition in which his lawyer denies that their side opened the door. Alito said if he was on the New York Court of Appeals, he would understand Hemphill’s argument as a misapplication of the opening-the-door test that violated the confrontation clause.

“I’d be pretty sore, I’ll tell you if I were a judge on the New York Court of Appeals and I got back from this court a decision that said you errored in your understanding of the confrontation clause when the only thing I had before me was this sentence.”

Alito emphasized that the Supreme Court answers important legal questions and does not determine errors in particular criminal trials.

“The important legal question here is whether there can be a waiver of the confrontation clause,” Alito said.

In an email following the hearing, Smita Ghosh, appellate counsel at the Constitutional Accountability Center, said it was hard to tell how the justices would rule based on their questioning. 

“It’s often tough to tell how the justices will rule based on their questioning, and today’s argument was no exception, but it’s clear what they should do if they look to the text and history of the Sixth Amendment,” Ghosh said.

Expanding on an amicus brief that they filed for Hemphill, Ghosh called it clear from Supreme Court precedent “that the only exceptions to the Sixth Amendment should be those that existed at the Framing, and at that time, there were only two narrow exceptions to the confrontation right — neither of which supports the ‘open the door’ exception adopted by the New York court.”