Category Archives: Confrontation Clause

State v. Henson – Murder conviction reversed because of Confrontation Clause violation

In State v. Henson, decided January 22, 2014, the S.C. Supreme Court reversed convictions for murder and other charges because of a violation of the Confrontation Clause. The trial court’s admission of the codefendant’s confession was a Bruton violation.

I have blogged about Bruton before.

Anyway, this case involved four defendants. Two took deals and testified for the state. The third gave a confession implicating the fourth defendant – Henson.

Prior to trial, Henson moved for a severance. The trial court denied the motion because it thought that the state’s redacted copy would satisfy the Bruton issue. What the state had done was to simply take Henson’s name out and put in “the guy,” “he,” and “him.”

I don’t think that fooled anyone and the Supreme Court didn’t think so either.

The jury likely would infer that Henson—a male, seated before them as a defendant, and the only defendant not named in the confession—was the fourth individual and the shooter referenced in Reid’s confession. The jury also could presume the solicitor would not both assert that Henson was the fourth conspirator and offer the confession into evidence if the solicitor believed the confession referred to anyone other than Henson.

Harmless Error

A Confrontation Clause violation is subject to harmless error analysis. The Court could have easily declared this error harmless given the fact that two co-defendants testified Henson did it. In refusing to do so, the Court took the opportunity to point out something that I have been saying for years – snitches can’t be trusted. Of course, the Supreme Court said it in a nicer way than I did.

The only evidence other than Reid’s confession actually identifying Henson as a conspirator was the testimony of Ervin and Newman. However, Ervin and Newman both faced charges for their participation in the crimes and thus, had an incentive to downplay their involvement and shift blame onto others. Therefore, we conclude the error was not harmless.

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Bruton is alive and well

In 1968, the U.S. Supreme Court decided Bruton v. United States. It stands for the proposition that codefendant statements can’t be used at trial unless the codefendant testifies. The following is a good explanation:

When two defendants, A and B are tried jointly, and defendant A makes a confession that inculpates defendant B. If defendant A does not testify, then A’s statement against B is inadmissible because B will be unable to exercise his right under the Confrontation Clause to cross-examine A.

In fact, that hypothetical was taken directly from State v. King, a 2006 South Carolina Court of Appeals opinion.

I believe the proper way to make a motion under Bruton is to do it before the jury is sworn. I say this because I believe the proper remedy is to sever the trials or to suppress the statements. Once a jury is sworn, a severance is no longer available.

I tried a case recently in Marion County. Better said, I tried part of a case. There were two codefendants. Each had given statements implicating the other. I made a pretrial motion under Bruton. The trial judge took the motion under advisement, the jury was sworn and we proceeded with the trial.

I’ve never had it happen like that before. Usually the judge rules right away. As a result of the judge’s delay in ruling, one of the remedies (severance) was now gone. Jeopardy has attached and the statements will be admitted, or not. I do get the judge to agree with me that the prosecutor should not mention the statements until the judge has ruled.

I believe the reason for the delayed ruling was in part because of very compelling argument by the prosecutor that Bruton didn’t apply. He cited Lee v. Illinois and Cruz v. New York, two U.S. Supreme Court cases decided in 1986 and 1987 respectively. According to the prosecutor, if the statements contain sufficient interlocking facts, they become reliable and are therefore, admissible.

The problem with that logic is that codefendant’s statements are notoriously unreliable and are absolutely hearsay. Oh yeah, and you can’t cross-examine them. Ultimately, the judge ruled in our favor and the statements were suppressed.

I am now preparing for another trial that is very similar to the one I talked about earlier. Incredulously, the prosecutor just informed me that he will be using the codefendant’s statements against my client. I screamed out to him that Bruton is alive and well. I don’t think he knew what I was talking about.

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