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SCOTUS limits practical effect of Bruton’s rule against using the confession of a non-testifying co-defendant

Samia v. United States, USSC No. 22-196, 143 S. Ct. 2004, June 23, 2023, affirming U.S. v. Hunter, et al., Nos. 18-3074-cr, 18-3489-cr, 19-790-cr (2nd Cir. Apr. 20, 2022) (not reported); Scotusblog page (with links to briefs and commentary)

A majority of the Supreme Court affirms the use of a confession of one non-testifying co-defendant against another defendant, and its rationale shows, in the words of the dissenters, that the majority thinks the rule in Bruton v. United States, 391 U.S. 123 (1968), “should go.” (Kagan dissent at 10; Jackson dissent at 1).

Samia and two co-defendants were tried together for conspiracy to murder a real estate agent in the Philippines. The co-defendants admitted that they participated in the murder, and one of them, Stillwell, gave a confession and identified Samia as the shooter. (Slip op. at 2-5).

Under Bruton, admission of a non-testifying co-defendant’s confession against another defendant violates the Confrontation Clause, even if the judge instructs the jury that it can use the confession only against the defendant who gave it. Because the confession in that case explicitly identified Bruton by name, courts and prosecutors subsequently tried to avoid the problem identified in that case by redacting the co-defendant’s confession. The Court upheld admission of a confession that completely eliminated reference to the existence of the defendant, even though the defendant’s own testimony later suggested a connection with an event described in the confession. Richardson v. Marsh, 481 U.S. 200 (1987). But it rejected a redaction that “refers directly to the ‘existence’ of the nonconfessing defendant,” even though not by name, but by, for instance, substituting blank spaces or the word “deleted” for the defendant’s name, because such a confession, like the one in Bruton, still points a finger at a co-defendant in a way the jury can “immediately” and “vivid[ly]” grasp. Gray v. Maryland, 523 U.S. 185 (1998).

To avoid the Bruton problem in Samia’s case, the trail court required the government to replace Samia’s name with “other person” and “the other person he was with.” (Slip op. at 3-5). But the government referred to Stillwell’s confession in its opening statement as its “most crucial” evidence, it questioned a witness about the “other person,” and it elicited additional details about Samia’s role in the murder. (Slip op. at 3-5; Kagan dissent at 5-6). Nonetheless, the majority holds these redactions made the confession admissible.

Viewed together, the majority says, BrutonMarsh, and Gray “distinguish between confessions that directly implicate a defendant and those that do so indirectly,” but they do not provide “license to flyspeck trial transcripts in search of evidence that could give rise to a collateral inference that the defendant had been named in an altered confession.” (Slip op. at 14-15). Stillwell’s confession, accompanied as it was by a limiting instruction,

did not run afoul of this Court’s precedents. Stillwell’s confession was redacted to avoid naming Samia, satisfying Bruton‘s rule. And, it was not obviously redacted in a manner resembling the confession in Gray; the neutral references to some “other person” were not akin to an obvious blank or the word “deleted.” In fact, the redacted confession is strikingly similar to a hypothetical modified confession we looked at in Gray, where we posited that, instead of saying “‘[m]e, deleted, deleted, and a few other guys,'” the witness could easily have said “‘[m]e and a few other guys.'” 523 U.S., at 196. Accordingly, it “fall[s] outside the narrow exception [Bruton] created.” Richardson, 481 U.S., at 208.

(Slip op. at 15). The majority also said it would not have been feasible to further modify Stillwell’s confession to make it appear, as in Richardson, that he had acted alone, given that he was charged with conspiracy and did not confess to shooting the victim. Consequently, the evidence of coordination between Stillwell and the killer (whether Samia or not) was necessary to prove an essential element of the offense. (Slip op. at 15-16).

Three justices (Kagan, Sotomayor, Jackson) dissent, emphasizing that, in light of the other evidence introduced at trial, there is not “a lick of difference” between the impact of the confession in Samia’s trial and the one introduced in Gray, because the “neutral” references are anything but when viewed against all the evidence. (Kagan dissent 5-6).

The upshot, then, seems to be that when a redacted confession includes a “neutral” reference (“other person”), but the jury can nevertheless discern that to be a co-defendant, there’s no Bruton issue, and the magic elixir of a limiting instruction to the jury about how it can use the confession retains its presumed potency. Kagan notes this elevates form over substance (dissent at 3), and Jackson says in a separate dissent, this elevates the remedy of the cautionary instruction over the Sixth Amendment right to confrontation, which is what’s at stake and should be the center of the analysis:

… a Bruton question actually raises two distinct issues: one about whether there is a Confrontation Clause problem in the first place, and a second about potential cures (like redactions and limiting instructions) for that constitutional dilemma. The majority skips over the first question today; its analysis essentially assumes that there is no Sixth Amendment problem in the first place, which then allows for an unwarranted expansion of what should be a narrow exception to the default principle of exclusion [of non-testifying co-defendant confessions that inculpate another defendant]. In other words, the Court has now turned our Bruton cases on their head in a manner that risks undermining a core Sixth Amendment right.

(Jackson dissent at 3).

As we noted in our post on the cert grant, there was a federal circuit split regarding how to assess the propriety of a redaction, between circuits that look at the statement in isolation and those, like the Seventh Circuit, that say it must be considered in context of all the evidence. United States v. Hoover, 246 F.3d 1054 (2001) (holding the substituted references to an “incarcerated leader” and an “unincarcerated leader” were “obvious stand-ins” for the codefendants that did not conceal their identities). Hoover rejected the argument that the cases “permit the use of placeholders when their incriminating nature is not apparent to persons unaware of the other evidence offered at trial” based on the sound principle that “[v]ery little evidence is incriminating when viewed in isolation” and “[t]o adopt a four-corners rule would be to undo Bruton in practical effect.” Id. at 1059. And so here we are: The Samia majority clearly adopts the narrow, view-in-isolation approach by rejecting what it calls the “flyspecking” contextual approach. And, as the Seventh Circuit predicted, and the Samia dissenters demonstrate, the practical effect of Bruton may effectively be undone.

Wisconsin cases haven’t directly addressed the isolation versus context debate. While we do have a statutory provision (§ 971.12(3)) allowing for severance of co-defendants’ trials when one of them has made a statement implicating the other(s), it it doesn’t require severance of defendants in all instances in which the state will use the codefendant’s statement ibecause it is intended only to provide a mechanism to insure compliance with Bruton. If a statement can be redacted to comply with Bruton by substituting a neutral reference and instructing the jury as to the limited purpose for which the evidence is admitted, the statement no longer “implicates another defendant” and therefore does not fall within the prohibition of the statute. State v. Raymond L. Nieves, 2017 WI 69, ¶52 n.17, 376 Wis. 2d 300, 897 N.W.2d 363, citing Pohl v. State, 96 Wis.2d 290, 301, 291 N.W.2d 554 (1980), and Cranmore v. State, 85 Wis. 2d 722, 747, 271 N.W.2d 402 (Ct. App. 1978). Thus, Samia will make it that much harder to sever co-defendants’ trials where one defendant’s confession implicates a co-defendant and the state is seeking to try them together.

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