Courthouse Steps Decision Webinar: Hemphill v. New York

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

Jenny Mahoney:  Welcome to The Federalist Society's webinar call. In today's Courthouse Steps Decision Webinar, we discuss Hemphill v. New York. My name is Jenny Mahoney, and I'm an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's call.

      Today we are fortunate to have with us Mike Hurst, Partner at Phelps Dunbar and former United States Attorney for the Southern District of Mississippi. I will turn this over to Mike in a second. Through the panel, if you have any questions, please submit them through the question-and-answer feature located at the bottom of your screen so that our speaker will have access to them at that of the webinar. Mike, thank you.

Mike Hurst:  Well, good morning everyone. My name is Mike Hurst, as Jenny said. I'm a partner here at Phelps Dunbar in Jackson, Mississippi. And prior to that I was United States Attorney for the Southern District of Mississippi. Today I want to talk to you about Hemphill v. New York, which was decided by the Court just this past January 20, 2022.

      And let me give you the bottom line up front in this case. An 8-1 decision, a majority of the United States Supreme Court decided that a trial court's admission of unconfronted testimonial hearsay, over the defendant's objection, violates the Confrontation Clause of the Sixth Amendment. Now that sounds pretty simple for many of us who've tried many cases. But as we all know, the devil is in the details, so let's jump right into it.

      The facts of the case are as follows. On Easter Sunday 2006, a fist fight broke out in the Bronx in New York, which unfortunately escalated into gun fire, and one stray 9-millimeter bullet killed a two-year-old child in a nearby minivan. Now during the investigation, officers identified an individual named Ron Gilliam, who was at the scene of the crime. And also Gilliam's best friend Nicholas Morris had been at the scene as well. And when the officers searched Morris's apartment, they found—and this is important—a 9-millimeter cartridge and three .357-caliber bullets. In their investigation, three witnesses identified Morris as the shooter and Morris was arrested the next day.

      When Gilliam turned himself in, he also identified his friend Morris as the shooter. However, a few days later, Gilliam recanted his story and he stated that his cousin, Darrell Hemphill, was in fact the shooter. Now for a family like that I guess we don't need enemies. Prosecutors didn't initially believe Gilliam so they charged Morris with the murder and the possession of a 9-millimeter handgun.

      Now as the State was going to trial, and actually during trial they paused it for a few days, and the State came back to Morris and offered him a plea deal: if Morris would agree to the illegal possession of a weapon, the State would dismiss the murder charges. But here's the trick, here's the issue: instead of just having Morris plead to the 9-milliemeter possession, which he would've been charged for in the indictment, the State filed a new charge alleging that Morris has possessed a .357-magnum revolver. And the State said if Morris were to plead to this, the possession of a .357-magnum revolver, the State would dismiss the other charges and agree to recommend time served for remorse.

      Now, it's interesting to note that both the State and Morris's counsel agreed that there was insufficient evidence without Morris's confession that Morris had, in fact, possessed a .357 revolver. But this offer was too good to be true so Morris, despite his counsel's advice to the contrary, Morris plead to this new charge and was sentenced to time served.

      Now let's fast forward a few years later. DNA evidence comes back to a blue sweater or a blue shirt that was found in Morris's apartment that linked the sweater or shirt to Darrell Hemphill. Now that's important because witnesses at the scene of the crime and the murder that day identified the shooter as wearing a blue shirt. So a few years later the State came back and indicted Darrell Hemphill for the murder. Now at trial, Hemphill's defense was third-party culpability. Morris was the shooter. Even in Hemphill's counsel's opening statements, he noted that the officers had recovered 9-millimeter ammunition on Morris's nightstand hours after the murder. The State did not object to the defendant's opening statement. In fact, the State argued that Hemphill's statement was misleading because officers had also found .357-magnum bullets on Morris's nightstand and Morris had ultimately plead guilty to possessing a .357-magnum handgun. But the big issue, the reason why we are talking today, the big issue in Hemphill's trial was the unavailability of Morris. Morris could not be called to testify at Hemphill's trial because he was out of the country. So this is where it gets tricky.

      During the trial, the state saw to introduce the transcript of Morris's plea allocation to suggest that he had only possessed a .357 handgun. Obviously, Hemphill's counsel objected, arguing that the plea transcript was clearly hearsay, and it deprived Hemphill of his opportunity to cross examine Morris.

      At first, the trial court deferred the ruling and allowed the State to go ahead and put on evidence of recovering .357 bullets at Morris's nightstand right after the murder. But during the police officer's testimony, it also came out that the police had also recovered a 9-millimeter cartridge with the .357 bullets on Morris's nightstand. So the State turned back to the trial court and said, "We want to admit Morris's transcript of his plea allocution." Again, Hemphill objected, citing Crawford v. Washington, a seminal Supreme Court case from 2004 arguing that this would deprive Hemphill of his opportunity to cross examine Morris because of his unavailability. Despite that objection, the trial court allowed the State to admit Morris's plea allocution transcript. And the trial court based its decision on the New York case People v. Reedy. It was a 2012 case from the highest court in New York, which held that a criminal defendant could open the door to evidence that would otherwise be inadmissible under the Confrontation Clause if the evidence was "reasonably necessary to correct a misleading impression made by the defendant's evidence or the defendant's arguments."

      Now during closing argument, Hemphill's counsel argued that Morris was the shooter, but the State also argued in its closing that Hemphill was the murderer, citing specifically Morris's plea allocation transcript and emphasizing that Morris had plead guilty to possession of a .357 handgun, not to the murder. The jury convicted Hemphill and he was ultimately sentenced to 25 years to life in prison.

      Now Hemphill's counsel appealed this obviously to New York's appellate division and ultimately to New York's highest court, the New York Court of Appeals. But both courts affirmed the trial court's decision. And here's how we get it to the United States Supreme Court.

      In Justice Sotomayor's majority opinion, the first thing she addresses is the state's threshold argument, which was a procedural issue. And that argument was Hemphill failed to present his claim adequately to the state court. Now, Justice Sotomayor recounted that; the Supreme Court of the United States almost never considers a federal challenge to a state court's decision if that federal claim either was not addressed by or properly presented to the state court. And although this proper presentation requirement calls for that this claim be brought to the attention of the court with fair precision and in due time, the Court here held that Hemphill had, in fact, satisfied this requirement. Because at every stage of these proceedings in the state court, Hemphill had argued that admission of Morris's plea transcript violated Hemphill's Sixth Amendment right to confrontation. So the Court quickly dispensed with this threshold argument of procedural issues.

      The Court went on to state basically give background to the reader on the Sixth Amendment's Confrontation Clause, noting that it is the better constitutional protection afforded to criminal defendants. It goes without saying but I will say it anyway, quoting the Sixth Amendment's Confrontation Clause, "In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witness against him." The Court also recounted how in 2004, its decision in Crawford actually overturned the Court's prior ruling in Ohio v. Roberts, a 1980 case, which had said that the Confrontation Clause did not bar admission of statements of unavailable witnesses so long as those statements had adequate indicia of reliability. Which means they fell into a firmly rooted hearsay exception. Or they bore particurlized guarantees of trustworthiness. But Justice Sotomayor's opinion recounted how the principal evil in which the Confrontation Clause was direction was, "civil law mode of criminal procedure," which just means the particular use of ex parte communications as evidenced against the accused.

      And I love this quote from Crawford, "The Framers would not have allowed admission of testimonial evidence of a witness who did not appear at trial unless he was unavailable to testify and the defendant had a prior opportunity for cross examination." So with all that background, the Supreme Court noted that 1) the State accepted Crawford in its holding. 2) the State did not dispute that Morris's plea allocution transcript was actually testimonial, i.e. it had implicated Hemphill's rights of the Confrontation Clause, and 3) that that State was not arguing that the open-door policy under People v. Reid was an exception to the Confrontation Clause; rather the state's primary argument here was that Reid was a procedural rule. It was a procedural rule. In other words, according to the state, the Reid rule limits only the manner of asserting the Confrontation Clause, not the substantive scope of the Confrontation Clause.

      But while the Supreme Court of the United States acknowledged that the Sixth Amendment does leave states some flexibility to adopt reasonable procedural rules governing a defendant's right to confrontation -- and the Court gave the example of a defendant can be removed from a courtroom if he insists on being disorderly or disruptive or even disrespectful, such that his trial could not be carried on with him in the room. That is a reasonable procedural rule. But the Court here said that Reid's principle, the door-opening principle of Reid, was not procedural. Rather it was a substantive principle of evidence, which dictated one material is relevant and admissible in a case.

      And the Court said if we were to accept the State's argument, then it would negate Crawford's rejection of the reliability-based approach in Ohio v. Roberts.

      And I should note that one of the most powerful statements in this opinion is the following: "If Crawford stands for anything, it is that the history, text, and purpose of the Confrontation Clause bar judges from substituting their own determinations of reliability for the method the Constitution guarantees. The Clause 'commands, not that evidence be reliable, but that reliability be assessed in a particular manner: [that is] by testing in the crucible of cross-examination.'"

      Now the State's next argument was that the Reid rule was necessary to safeguard the truth-finding function of courts because it prevents the selective and misleading introduction of evidence. But the Supreme Court majority here was quick to note that it had never in its history allowed the truth-seeking function of trial to override the rights that the Constitution confers on criminal defendants. And it basically dispensed with a case decided by the State saying that none of those exceptions had dealt with constitutional requirements, specially talking about the prophylactic exclusionary rule and how that was not something that went towards constitutional rights that criminal defendants had.

      And finally, the State argued that the reversal of the lower court decision would leave prosecutors without any recourse to protect against abuse of confrontation rights. And the Court just simply said these concerns were overstated and that other rules, such as the hearsay rule, which kept parties from introducing unreliable, out-of-court statements, as well as other well-established rules, like the Rule of Evidence 403, which permits trial judges to exclude evidence if the probative value is outweighed by certain other factors, whether it be unfair prejudice, or confusion, or misleading the jury. These well-reasoned, well-established rules would do anything to take care of the concerns a state may have for the prosecutors to protect against abuse.

      Now the final note that the Supreme Court majority opinion made was that -- they simply stated that they were not addressing the common-law rule of completeness in this case as it applied to testimonial hearsay because the rule of completeness was not applicable to the facts of this case. And they did this because Justice Alito in his concurrence specifically addressed this. And let me just jump into Justice Alito's concurrence. So that was the decision of the eight justice majority in Hemphill.

      So the concurrence: Justice Alito writes a concurrence in which Justice Kavanaugh joins. They both agree with the Court's conclusion but they wrote this separate concurrence to discuss conditions where the defendant would be deemed to have validly waived his rights to confront that first witness. And Justice Alito talks about how the waiver of constitutional rights can be either expressed or implied and that implied waivers can be established through courses of conduct. An individual acting in a manner inconsistent with his exercise of the rights – that shows a deliberate choice by that individual to relinquish those rights. And he goes on to state how this can also mean that a defendant can impliedly waive their Sixth Amendment rights through that defendant's conduct. And he talks about how the rule of completeness fits comfortably within this concept of implied waivers. And he makes an analogy of the Fifth Amendment privilege against self-incrimination. A defendant can't take the stand, implicitly determine the areas of disclosure and inquiry, and then reasonably claim that the Fifth Amendment gives him immunity for cross examination on matters he himself put in dispute.

      Justice Alito said the Sixth Amendment is no different. And he said, "When a defendant introduces the statement of an unavailable declarant on a given subject, he commits himself to the trier of fact’s examination of what the declarant has to say on that subject. The remainder of the declarant’s statement or statements—and any other statements by the same declarant on the same subject—are fair game." Now I really don't know why Justice Alito, joined by Justice Kavanaugh, brought this up because it didn't really seems like this was -- this issue met the facts of this case. But for whatever reason, he wanted to clarify that a defendant could, in fact, impliedly waive his rights to confrontation under the Sixth Amendment just through his conduct.

      Now, finally, let's talk about Justice Thomas. He writes the lone dissent in this case. And it’s a dissent on procedural grounds. Justice Thomas states that he would've dismissed this case for lack of jurisdiction under Title 28 United States Code Section 1257 because, according to Justice Thomas, Hemphill did not raise his federal claim to the New York Court of Appeals, the state's highest court. Justice Thomas goes through a discussion of how the Supreme Court of the United States can only review final judgments or decrees from a state's highest court when a federal right is specifically set up or claimed in that state court. And according to Justice Thomas, Hemphill in this case had not sufficiently raised his Sixth Amendment claim in the New York Court of Appeals, and therefore, because of that, the Supreme Court lacked jurisdiction.

      In fact, Justice Thomas said this wasn't an issue of Hemphill arguing the unconstitutionality of the Reid rule, but rather Hemphill in this case was only challenging the misapplication of state law, only making fleeting references to the Confrontation Clause. Now Justice Thomas does undercut his argument a little bit by admitting that the Supreme Court in the past has accused this failure to properly present federal claims in underlying state courts. But the real reason, I think, Justice Thomas wrote this opinion was because that issue right there, that the Supreme Court has excused the proper presentation of the requirement in the past, I think that was the real issue Justice Thomas was trying to get at here because he said that in the past, the Supreme Court in making the decision to excuse this requirement, they had no authority to do that. And they should have never done that, and for 200 years, they had stuck by their guns, stuck by their authority specifically granted them in the 1789 Judiciary Act through new cases only that had been properly -- federal claims that had been properly presented to an underlying state court.

      So that in a nutshell is Hemphill v. New York, and I'd be happy to take any questions that anyone might have.

Jenny Mahoney:  Thanks for that, Mike. I will give just a moment or a few seconds for people to submit any questions they might have. As a reminder, if you are interested in sending a question, please submit it using the Q&A box located at the bottom of the screen. Let's see, I'll give it maybe 30 seconds and see if anybody has anything.

      Okay, well not seeing anything, thank you for that presentation today, Mike. Much appreciated. And I also want to thank the audience for joining this webinar today. We also welcome listener feedback by email at [email protected]. And always keep an eye on our website and your emails for announcements about upcoming virtual events. Thank you all for joining us today. We are adjourned.

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.