February 2, 2022

Two weeks ago, the U.S. Supreme Court issued a stinging rebuke to the New York Court of Appeals in a case in which the state’s highest court had brushed aside a criminal defendant’s claim he would have been able to establish his innocence had he not been denied his constitutional right to confront a key witness. In an 8-1 decision written by Justice Sonia Sotomayor, liberal and conservative justices agreed that the Court of Appeals’ position that prosecutors were free to introduce hearsay evidence without an opportunity to cross-examine if the defense had created a “misleading impression” violated the Sixth Amendment’s Confrontation Clause.

The Supreme Court’s January 20th decision in Hemphill v. New York, No 20-637, comes on the heels of three new appointments to the seven-member Court of Appeals. The court now is heavily weighted towards the prosecution, and a rare opportunity to move the court in a more progressive direction has been lost. It also comes at a time when the court’s attention to the rights of criminal defendants has shrunk dramatically, with its criminal docket having dropped from 107 decisions in 2016 to 42 in 2020 (the court’s report for 2021 has not yet been released). Perhaps in light of Hemphill and a similar case in the pipeline to the Supreme Court, the Court of Appeals will reconsider its approach to constitutional claims by criminal defendants.

9 Millimeter or .357 Caliber?

The Hemphill case arose out of the tragic shooting death of a two-year-old girl riding in her mother’s minivan in the Bronx on Easter Sunday in 2006. The fatal bullet was fired from a 9-millimeter handgun during a street fight, with witnesses describing the shooter as wearing a blue sweater. Hours after the shooting, a police raid of a suspect’s home led to the discovery on his nightstand of a 9-millimeter cartridge and of three .357-caliber bullets. That suspect was charged with the killing, but DNA analysis of the recovered sweater undermined the prosecution. That man then pled guilty to unlawful possession of a .357-caliber gun.

Years later, Darrell Hemphill was charged with the shooting of the little girl. During his trial, Mr. Hemphill’s lawyer adduced testimony of the discovery of the 9-millimeter cartridge on the nightstand of the first man charged with the killing. That fact supported the defense’s “third-party culpability” defense, namely that it was that man who had fired the fatal shot. To counter this, the prosecution sought to introduce the transcript of the first man’s plea allocution in which he had admitted to possessing a .357-caliber gun the day of the shooting. Because that allocution made no mention of the 9-milliter shell also found on the man’s nightstand, it would substantially undermine the defense’s presentation. And the original defendant was not available to be cross-examined about the 9-millimter shell because he was out of the country.

The Sixth Amendment guarantees a criminal defendant’s right “to be confronted with the witnesses against him,” an edict that translates into the requirement that testimony against a criminal defendant be presented through in-court testimony and subject to cross-examination. Invoking the Confrontation Clause, Hemphill’s lawyer objected to introduction of the original defendant’s plea allocution through a hearsay transcript. The trial court overruled the objection, relying on Court of Appeals law holding that defendants forfeit Confrontation Clause protections when they “open the door” by creating a “misleading impression” through their defense. In Mr. Hemphill’s case, the trial court reasoned he had opened the door by adducing misleading evidence in the form of the testimony about the 9-millimeter cartridge. With the plea allocution added to the record before it, the jury found Hemphill guilty, and the court sentenced him to 25 years to life in prison.

The First Department rejected Hemphill’s Confrontation Clause objection in a single paragraph, citing People v. Reid, 19 N.Y.3d 382 (2012), the New York Court of Appeals case that created the broad exception to the Confrontation Clause for defendants who adduce exculpatory evidence that arguably might mislead the jury. In a two-paragraph memorandum opinion, the Court of Appeals affirmed with barely a mention of the issue: “Here, the trial court did not abuse its discretion by admitting evidence that the allegedly culpable third party pled guilty to possessing a firearm other than the murder weapon.”

An Emphatic Supreme Court

The Supreme Court had no trouble grasping the importance of Mr. Hemphill’s Confrontation Clause claim or finding that the Court of Appeals’ “misleading impression” rule violated the Sixth Amendment. But before reaching the constitutional question, the court addressed a threshold issue that generated the sole dissent—by Justice Clarence Thomas—and that is a good reminder to all lawyers pressing federal constitutional cases in state court with an eye towards the Supreme Court.

As Justice Thomas noted, since the Judicial Act of 1789 the Supreme Court has had authority to review federal claims in decisions from state courts so long as the party seeking Supreme Court review had fairly presented the federal claim to the state courts. Under the current statute governing Supreme Court review of state-court rulings, the court may review “[f]inal judgments or decrees rendered by the highest court of a State” so long as the federal claim “is specially set up or claimed.” The Supreme Court long had held that this so-called “proper presentation” requirement created a jurisdictional bar but in more recent decades has construed it to create more of a prudential consideration that could be set aside.

Turning to Mr. Hemphill’s case, Justice Thomas argued that Hemphill had not properly presented the Confrontation Clause argument to the Court of Appeals, contending that his argument to that court focused on whether the state-court rule applied to his situation, not on whether the rule itself violated the Sixth Amendment. While the briefing before the Court of Appeals was imprecise on this point, the other eight Supreme Court justices had no problem concluding that Mr. Hemphill had fairly presented the issue. Encouraging as this resolution is for those positioning state-court cases for Supreme Court review of federal claims, the important point here is that one must be careful to present those claims clearly and all the way up to the state’s highest court, no matter how clear and adverse state law may be.

As for the merits of Mr. Hemphill’s Confrontation Clause claim, the court readily dismissed the efforts by the Bronx District Attorney’s Office to defend the New York “misleading impression” rule. Justice Sotomayor noted that as recently as 1980 the court had endorsed a relatively relaxed approach to the Confrontation Clause, permitting the introduction of statements of witnesses unavailable for cross-examination in circumstances in which those statements had an “adequate indicia of reliability.” But in 2004 in Crawford v. Washington, the court announced a much more aggressive view, explaining that the only exceptions would be those recognized at the time of the Sixth Amendment’s adoption. And those were extremely narrow: “[T]he Framers would not have allowed admission of testimonial statements 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.”

To skirt this clear and recent law, the state attempted to argue that the misleading-impression rule was simply a procedural one that allowed trial judges to manage possibly misleading evidence. The court rejected this as violating the core principle of Crawford that it was not for judges to assess the credibility of evidence and instead that it was through the Sixth Amendment’s confrontation process that evidence would be assessed:

The trial court here violated this principle by admitting unconfronted, testimonial hearsay against Hemphill simply because the judge deemed his presentation to have created a misleading impression that the testimonial hearsay was reasonably necessary to correct. For Confrontation Clause purposes, it was not for the judge to determine whether Hemphill’s theory that [the other man] was the shooter was unreliable, incredible, or otherwise misleading in light of the State’s proffered, unconfronted plea evidence. Nor, under the Clause, was it the judge’s role to decide that this evidence was reasonably necessary to correct that misleading impression. Such inquiries are antithetical to the Confrontation Clause.

Looking Forward

As concerns about violent crime grow and as pressure for aggressive policing and prosecutions mounts, the constitutional rights of criminal defendants become even more important. Ironically, otherwise-conservative members of the Supreme Court often have aggressive views about constitutional trial and privacy rights that result in strong decisions favoring people charged with crimes.

The prospects in the New York Court of Appeals, however, are less encouraging. While it would be naïve to suggest that a single Supreme Court decision like Hemphill would prompt the court to rethink its approach to defendant constitutional rights, one can hope that Hemphill will prod the court to recognize a need to pay more attention to those rights.

That prod may be reinforced by another criminal case from the Court of Appeals headed for possible Supreme Court review on an important and unresolved Fourth Amendment issue. People v. Ibarguen, 37 N.Y.3d 1107 (2021), arose out of the prosecution and conviction of a man arrested in the apartment of a friend. At trial, he sought to suppress evidence found in the apartment on the grounds the search violated the Fourth Amendment, but the lower courts barred that on the grounds he lacked standing to assert the constitutional claim because he was only a social guest at the apartment. As in Hemphill, the Court of Appeals rejected Mr. Ibarguen’s appeal in a two-paragraph memorandum opinion, with a single oblique sentence addressing his social-guest Fourth Amendment claim. In contrast to Hemphill, however, that disposition drew an impassioned dissent, with Judge Rowan Wilson observing that “[t]he privacy interest of social guests is an unsettled and evolving area of Fourth Amendment law.” What the Supreme Court does with Ibarguen will bear close watching.

This column was originally published in the New York Law Journal