Third Circuit: Pennsylvania State Court Rules on Use of Co-Defendant's Confession Against Defendant Violate Confrontation Clause
Zak T. Goldstein, Esquire - Criminal Defense Lawyer
The United States Court of Appeals for the Third Circuit has decided the case of Freeman v. Fayette, holding once again that Pennsylvania’s rules regarding the use of redacted statements by co-defendants against the defendant in a criminal case are unconstitutional. The Third Circuit’s decision is not technically binding on the state courts because the Third Circuit only addresses federal appeals. But because the Third Circuit eventually reviews many serious state decisions during federal habeas litigation, particularly in murder cases, the Third Circuit’s ruling could have a dramatic impact on Pennsylvania criminal procedure. In this case, the Third Circuit held once again that where a co-defendant gives a statement which implicates both the defendant and the co-defendant in the crime, redacting the co-defendant’s statement to remove the defendant’s name and replace it with “the other guy” or something similar doe snot adequately protect the defendant’s confrontation clause rights. In this case, the Court retired this point, but it did find that although the defendant’s rights had been violated, the violation amounted to harmless error because the evidence against the defendant was so strong.
The Facts of Freeman v. Fayette
The Commonwealth charged four men with robbery, kidnapping, and murder. One pleaded guilty before trial and agreed to testify against his co-conspirators. Three of the four co-defendants proceeded to trial. During the trial, the court heard testimony from various witnesses placing the four men together around the time of the crime. Finally, the Commonwealth used a statement by one of the remaining three co-defendants implicating the others. That defendant did not testify, and the statement was redacted but still referred to the other co-defendants as “the first guy" and "the second guy." The Commonwealth read the statement to the jury over the objections of the defense attorneys for those defendants. The judge instructed the jury that the statement was to be used only as evidence against the defendant who made the statement, not the co-defendants. The court also repeated this cautionary instruction at the end of the trial. A jury found all three men guilty of second-degree murder. The trial court sentenced them to the mandatory sentence of life without parole.
The Criminal Appeal
On appeal, the Pennsylvania Superior Court affirmed the defendant’s conviction, concluding that there was no Confrontation Clause or Bruton violation. After exhausting his appeals and post-conviction relief at the state level, the defendant filed a petition for a writ of habeas corpus in the federal district court. The district court concluded that the admission of the co-defendant's statement violated the defendant’s confrontation clause rights. The court also concluded that its admission was not harmless error, so the court granted the defendant’s writ of habeas corpus. The Commonwealth then appealed the decision to the Third Circuit Court of Appeals.
What is the Confrontation Clause, and what is a Bruton issue?
The Confrontation Clause, which is part of the Sixth Amendment, provides criminal defendants with the right to confront the witnesses against them. This means they have the right to cross-examine witnesses under oath at trial. In Bruton v. United States, prosecutors tried two defendants together for armed robbery. At trial, prosecutors used one of the defendant’s confessions against him, and the statement also implicated the co-defendant. The judge instructed the jury only to use the statement against the defendant, not the co-defendant. A jury convicted both men for the crimes charged. The Supreme Court ruled that the trial court violated the co-defendant’s right to confront and cross-examine despite the jury instruction because the trial court’s ruling essentially allowed the person who confessed to implicate the defendant without that person’s statement being subject to cross-examination.. Subsequent United States Supreme Court decisions have also held that redactions may not be sufficient unless they eliminate both the defendant's name and any reference to their existence. The state courts, however, have often allowed the Commonwealth to simply replace the defendant’s name with something generic like “the other guy.”
The Third Circuit’s Decision
Because the Commonwealth’s appeal challenged the district court’s ruling in habeas litigation, the Third Circuit was required to use a very deferential standard of review. Under the AEDPA, the mere fact that the state court was wrong is not enough to obtain relief. Instead, a court must first 1) determine whether there has been an error (in this case a Bruton violation), and then 2) determine whether the state court made a determination that was contrary to or an unreasonable application of clearly established federal law. A defendant must then also show prejudice. It is enough to show the trial judge was wrong; instead, the defendant must show that the trial judge was very, very wrong and that it likely affected the outcome of the proceedings.
Here, the Commonwealth argued that using "the first guy" and "the second guy" did not facially incriminate the defendant because these substitutes did not refer to him by name. The Commonwealth therefore argued that the statement did not facially incriminate the defendant and that any incrimination effect could come only inferentially. The Superior Court, however, has held that Bruton violates generally do not occur when a statement has been redacted and any incriminating effect arises inferentially.
The defendant argued that the redactions left it so obvious who the co-defendant was talking about that they offered insufficient protection, essentially making the statement directly accusatory. It named two perpetrators and left the two perpetrators unnamed, referring to them as "the first guy" and "the second guy." This made it so that the jury only needed to look up at the defense table and see the two co-defendants to identify who the statement implicated. Accordingly, the Third Circuit rejected the conclusions of the state courts that the statement did not violate Bruton. The Court had made similar rulings on numerous occasions, to the Court also found that the state courts clearly failed to apply federal law. Unfortunately, the Court also found that the evidence against the defendant was overwhelming and that he would have been convicted even without the statement, so the Court reversed the district court’s order granting the writ of habeas corpus. The defendant will therefore not receive a new trial despite the obvious violation.
Given the Third Circuit’s ruling, the case is not helpful for the individual defendant in this case. It is, however, very helpful for criminal defendants going forward as it once again sends a message to the state courts and Commonwealth that inadequate redactions do not render a co-defendant’s statement admissible against the defendant unless the defendant has a chance to cross-examine the co-defendant.
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