Incriminating statement in New York shooting reaches the court for a second time


Petitions of the week
A courier drops off a package at the Supreme Court

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

The Sixth Amendment gives anyone standing trial the right “to be confronted with the witnesses against” them. In January, the justices held that a New York court violated the confrontation clause when it upheld a homicide conviction although the jury had heard an incriminating statement from a co-defendant who did not testify and could not be cross-examined. This week, we highlight cert petitions that ask the court to consider, among other things, whether the admission of that statement was nevertheless “harmless.”

In 2006, a child in New York City was killed by a stray bullet from a 9-millimeter handgun after a fight broke out on the street. Seven years later, the state charged Darrell Hemphill with firing the fatal shot.

At trial, Hemphill relied on evidence pointing to Nicholas Morris, whom New York had failed to convict for the crime years beforehand, as the shooter: eye-witness testimony identifying Morris as the shooter at the fight, and the discovery by police of 9-millimeter ammunition in Morris’ nightstand. In response, the state introduced its own evidence. It put Hemphill’s cousin on the stand, who as part of a plea deal for a reduced sentence testified that the 9-millimeter present at the scene rested in Hemphill’s hands, and that Morris was holding a .357-magnum revolver. And, over Hemphill’s objection, it introduced a prior statement from Morris admitting as part of his own plea deal that he did, in fact, have a gun at the scene: a .357-magnum.

On appeal, Hemphill argued that admitting Morris’ out-of-court statement violated his Sixth Amendment rights because Morris was stuck in Barbados and unable to return to New York in order to be cross-examined. The state appeals court disagreed. By pointing the finger at Morris, the court concluded, Hemphill had “opened the door” to evidence rebutting that claim.

By a vote of 8-1, the Supreme Court overruled that decision earlier this year. Holding that the use of an out-of-court statement by a witness unavailable for cross-examination violates the confrontation clause, the justices sent the case back to the New York appeals court to evaluate whether Morris’ statement impacted the jury’s decision.

The appeals court concluded that it did not. Because there was “other, overwhelming evidence” that Hemphill was the shooter, including the testimony from his cousin, the appeals court held that the admission of Morris’ statement was harmless and upheld the conviction.

In Hemphill v. New York, Hemphill asks the justices to overrule the New York appeals court for a second time in his case, this time on the harmless-error question. The admitted statement not only undermined his own primary strategy at trial of pointing the finger at Morris, Hemphill argues, but also supported the state’s primary strategy by corroborating the testimony of its key witness. Hemphill contends that maintaining the jury’s verdict against him would flout both the Constitution and also the justices’ prior ruling in his case.

A list of this week’s featured petitions is below:

Huffman v. Harris
Issues: (1) Whether the U.S. Court of Appeals for the 5th Circuit erred in finding that the due process clause of the 14th Amendment imposes an obligation on county sheriffs to release a dangerous schizophrenic inmate whose criminal charges remained pending and whose court proceedings were stalled, and then denying qualified immunity in the absence of clearly established law; and (2) whether the 5th Circuit erred in imposing an obligation on jailers to inquire as to the status of an inmate’s court proceedings without providing any guidance or parameters for compliance.

Moore v. United States
Issue: Whether long-term police use of a surveillance camera targeted at a person’s home and curtilage is a Fourth Amendment search.

Pierluisi v. Financial Oversight and Management Board for Puerto Rico
Issues: (1) What standard of review governs a district court’s evaluation of the Financial Oversight and Management Board for Puerto Rico’s determination that Puerto Rican legislation “would impair or defeat the purposes of” the Puerto Rico Oversight, Management, and Economic Stability Act and its review of that legislation for consistency with the fiscal plan; (2) whether this standard of review requires the Board to reasonably and contemporaneously explain its decisions without relying on post-hoc justifications; and (3) whether the court of appeals erred in affirming the Title III Court’s holding that the Board’s determinations regarding Puerto Rican Acts 47, 82, 138, and 176 were not arbitrary and capricious.

Hemphill v. New York
Issue: Whether the improper admission of the out-of-court statement by the alternative suspect in Hemphill v. New York was “so unimportant and insignificant” as to be harmless under Chapman v. California.

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