Case Summaries – U.S. Supreme Court (June 23 & 27, 2023)
In her concurring opinion in Samia v. United States, No. 22-196, 2023 WL 4139001 (U.S. June 23, 2023), Justice Barrett makes a startling admission: “[W]hy not simply say that the history is inconclusive?” Justice Barrett, remember, clerked for Justice Scalia, author of the watershed confrontation clause case, Crawford v. Washington, 541 U.S. 36 (2004), which relied heavily upon a historical analysis. See id. at 43 (“We must … turn to the historical background of the Clause to understand its meaning.”). In reciting this history, making it central to interpretation of the Sixth Amendment, Scalia rejected the view that the framers’ intent cannot be recovered from the remaining sources. Cf. California v. Green, 399 U.S. 149, 174 (1970) (Harlan, J., concurring) (“History seems to give us very little insight into the intended scope of the Sixth Amendment Confrontation Clause.”). Indeed, Justice Thomas, writing for the majority in Samia, likewise makes “historical practice” a pillar of the Court’s analysis, albeit a history Justice Barrett finds disposable. Samia, 2023 WL 4139001, at *6. This post summarizes opinions issued by the United States Supreme Court on June 23, 2023 (Samia v. United States) and June 27, 2023 (Counterman v. Colorado). These summaries, written by Joseph L. Hyde and Brittany Bromell, respectively, will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present.
The confrontation clause does not bar admission of a nontestifying codefendant’s confession when: (1) the confession has been modified to avoid directly identifying the nonconfessing defendant, and (2) the trial court offers a limiting instruction that jurors may consider the confession only with respect to the confessing defendant.
Samia v. United States, 599 U.S. __ (June 23, 2023). In the Philippines in 2012, crime lord Paul LeRoux believed a real-estate broker, Catherine Lee, had stolen money from him. LeRoux hired three men to kill her: Adam Samia, Joseph Hunter, and Carl Stillwell. Lee was later murdered, shot twice in the head. The four men were eventually arrested. LeRoux turned state’s evidence. Stillwell admitted that he was in the van when Lee was killed, but he claimed he was only the driver and that Samia had done the shooting.
Samia, Hunter, and Stillwell were charged with various offenses, including murder-for-hire and conspiracy. They were tried jointly in the Southern District of New York. Hunter and Stillwell admitted participation in the murder while Samia maintained his innocence. At trial, the trial court admitted evidence of Stillwell’s confession, redacted to omit any direct reference to Samia (“He described a time when the other person he was with pulled the trigger on that woman in a van that he and Mr. Stillwell was driving.”). The trial court instructed the jury that this testimony was admissible only as to Stillwell and should not be considered as to Samia or Hunter. All three men were convicted and Samia sentenced to life plus ten years. On appeal, the Second circuit found no error in admitting Stillwell’s confession in its modified form. The Supreme Court granted certiorari to determine whether the admission of Stillwell’s altered confession, subject to a limiting instruction, violated Samia’s confrontation clause rights.
The Sixth Amendment guarantees a criminal defendant the right to be confronted with the witnesses against him. In Crawford v. Washington, the Supreme Court held the confrontation clause bars the admission of out-of-court testimonial statements unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine him. Crawford, 541 U.S. at 53-54. Stillwell’s post-arrest confession to DEA agents was plainly testimonial. In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held a defendant’s confrontation clause rights are violated when his nontestifying codefendant’s confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant. In Richardson v. Marsh, 481 U.S. 200 (1987), however, it found no error in the use of a redacted confession, holding that the confrontation clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction, when the confession is redacted to eliminate any reference to the defendant. Finally, in Gray v. Maryland, 523 U.S. 185 (1998), the Supreme Court held that certain obviously redacted confessions might be directly accusatory and so fall within Bruton’s rule, even if they did not explicitly name the defendant.
In Samia, the Supreme Court recited the “general rule” that a witness whose testimony is introduced at a joint trial is not considered to be a witness against a defendant if the jury is instructed to consider that testimony only against a codefendant. Samia, 2023 WL 4139001, at *5 (quoting Richardson, 481 U.S. at 206). It reviewed the historical practice. Id. at *6. It discussed the doctrine that jurors are presumed to follow the trial judge’s instructions, and it acknowledged Bruton as “a narrow exception” to this rule. Id. at *6-*7. Reviewing Bruton, Richardson, and Gray, the Supreme Court found its precedents “distinguish between confessions that directly implicate a defendant and those that do so indirectly.” Id. at *9. Here, Stillwell’s confession was redacted to avoid naming Samia, “satisfying Bruton’s rule,” and it was not so obviously redacted as to resemble the confession in Gray. Id. at *10. Accordingly, the introduction of Stillwell’s confession coupled with a limiting instruction did not violate the confrontation clause. Id. at *7.
Justice Barrett concurred in part and in the judgment. She rejected the historical evidence described in Part II-A of the majority opinion as anachronistic (too late to inform the meaning of the confrontation clause at the time of the founding) and insubstantial (addressing hearsay rules rather than confrontation).
Justices Kagan dissented, joined by Justice Sotomayor and Justice Jackson. Justice Kagan posited that “Bruton’s application has always turned on a confession’s inculpatory impact.” Id. at *14 (Kagan, J., dissenting). She said it would have been obvious to the jury that “the other person” referenced in the redacted confession was Samia, and “[t]hat fact makes Stillwell’s confession inadmissible” under Bruton. Id. Justice Kagan accepted the majority’s dichotomy between confessions that implicate a defendant directly or indirectly, but she criticized the majority for finding Stillwell’s confession only indirectly implicated Samia. Id. at *14-*15. She accused the majority of undermining Bruton without formally overruling it: “Under this decision, prosecutors can always circumvent Bruton’s protections.” Id. at *16.
Justice Jackson dissented separately. Id. at *16 (Jackson, J., dissenting). In her view, the default position under Crawford is that Stillwell’s confession was not admissible, and in seeking to introduce the confession the Government sought an exception from the confrontation clause’s exclusion mandate. Id. But under the majority’s approach, the default rule is that a nontestifying codefendant’s incriminating confession is admissible, so long as it is accompanied by a limiting instruction, and Bruton represents a narrow exception to this default rule. Id. The majority, Justice Jackson charged, turns Bruton on its head, setting “the stage for considerable erosion of the Confrontation Clause right that Bruton protects.” Id. at *17.
The State must prove in true threats cases that the defendant had some subjective understanding of the threatening nature of his statements.
Counterman v. Colorado, 600 U.S. ___ (June 27, 2023). For about two years, Counterman, the petitioner in this case, sent hundreds of Facebook messages to a local artist. The two had never met, and the woman never responded. A number of the messages expressed anger at the artist and envisaged harm upon her. The messages put the artist in fear and upended her daily life. Counterman was charged under a Colorado stalking statute making it unlawful to “[r]epeatedly . . . make[] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.” Slip Op. at 2.
Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not “true threats” and thus could not form the basis of a criminal prosecution. In line with Colorado law, the State had to show that a reasonable person would have viewed the Facebook messages as threatening but did not have to prove that Counterman had any subjective intent to threaten. The trial court decided that Counterman’s statements rose to the level of a true threat, and the Colorado Court of Appeals Affirmed. The United States Supreme Court granted certiorari to consider (1) whether the First Amendment requires proof of a defendant’s subjective mindset in true threats cases and (2) if so, what mens rea is sufficient.
In an opinion by Justice Kagan, the Supreme Court concluded that in order to prevent a chilling effect on speech, the State must show a culpable mental state. The Court reasoned that although this requirement make prosecution of some otherwise prohibited speech more difficult, it reduces the prospect of chilling fully protected expression.
The Court further concluded that recklessness was the most appropriate mens rea in the true threats context. A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that the conduct will cause harm to another. In the threats context, it means that the speaker is aware that others could regard his statements as threatening violence and delivers them anyway. Slip Op. at 11. The Court concluded that the recklessness standard “offers enough breathing space for protected speech without sacrificing too many of the benefits of enforcing laws against true threats.” Slip Op. at 14.
The State had to show only that a reasonable person would have understood Counterman’s statements as threats but did not have to show any awareness on his part that the statements could be understood that way. The Court held that this was a violation of the First Amendment, vacated the judgment, and remanded the case for further proceedings.
Justice Sotomayor, joined partly by Justice Gorsuch, concurred in the conclusion that some subjective mens rea is required in true-threats cases and that in this particular case, a mens rea of recklessness is sufficient, but noting that she would not reach the distinct conclusion that a mens rea of recklessness is sufficient for true threats prosecutions generally and that requiring nothing more than a mens rea of recklessness is inconsistent with precedent and history.
Justice Barrett dissented in an opinion joined by Justice Thomas. The dissent reasoned that the requirement of a subjective element unjustifiably grants true threats preferential treatment as compared to other contexts involving unprotected speech, and the result may sweep much further than the opinion lets on.
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