Miller v. BRUNSMAN

*527 BOYCE F. MARTIN, JR., Circuit Judge,

concurring.

I concur fully in the lead opinion. My colleagues’ application of the established law regarding state regulation of a defendant’s constitutional right to present a defense, here, third-party guilt, is unassailable. I write separately, however, to comment upon the questionable foundations of that law.

As the lead opinion correctly details, the story proffered by Richard Miller’s attorney — that Scottie Guenther was the true perpetrator — relied heavily on circumstance, inference, ambiguous statements, and shaky witnesses. But, as the lead opinion also hints, ante at 526, and as a review of the record reveals is actually the case, so too was the state’s case against Miller based on circumstance, inference, ambiguous statements, and shaky witnesses. 1 One could argue that the state’s circumstantial case against Miller was comparatively stronger than Miller’s circumstantial case against Guenther, but the difference is only in shades of gray and the fact remains that both cases were highly circumstantial. So why was the state allowed to go to the trial jury with its circumstantial theory but Miller was not?

The grand jury. In a criminal prosecution, the only real filter between the state’s theory of the case and the trial jury is the grand jury. The state, in its sole prosecutorial discretion, has the opportunity to bring any evidence or testimony before the grand jury, regardless of whether it would be admissible at trial and without it being subject to cross examination or rebuttal by the accused, to try to establish that there is probable cause to believe that the accused committed the crime. Once the grand jury has found probable cause, the state’s theory is almost certainly going to the trial jury. 2 And many have observed that the modern grand jury is not exactly a robust check on prosecutorial discretion. United States v. Navarro-Vargas, 408 F.3d 1184, 1195 (9th Cir.2005) (en banc) (citing numerous commentators and courts that have suggested that the modern grand jury is but a rubber stamp for the prosecution); United States v. Budd, 496 F.3d 517 , 537 n. 9 (6th Cir.2007) (Cook, J. concurring in part and dissenting in part) (citing the adage that the grand jury “would indict a ham sandwich”).

By contrast, to get his theory of third-party guilt before the trial jury, the defendant must convince a trial judge that there is a “nexus” between the alleged third-party perpetrator and the crime and must defend his proffer from the state’s cross-examination and argument. This initial filter on the defense’s theory is significantly more restrictive than that placed on the state’s theory of the case. First and foremost, the respective gatekeepers are drastically different. The defendant must get his theory past a trial judge' — learned in the law, a veteran of the courtroom, appropriately skeptical of everything she hears, and viewing everything with an eye towards its ultimate admissibility at trial— instead of a panel of lay citizens that, by *528 most accounts, unquestioningly accepts the prosecutor’s assertions as gospel. Second, the state presents its story to the grand jury without questioning or rebuttal by the accused, whereas the defendant’s story to the trial judge is subject to cross examination and challenge by the state. The third difference between the state’s task and the defendant’s is the conceptual difference between “probable cause” and “nexus.” Any attempt to describe and compare the two concepts amounts to little more than a demonstration of the limits of the English language. However, in reading the cases, the nexus inquiry seems materially different, and more strict, than probable cause.

In sum, we have a situation in which the state, which bears the ultimate burden to prove its theory of the accused’s guilt beyond a reasonable doubt, needs only get its theory past the low hurdle of the grand jury before it can get to the trial jury. On the other hand, the defendant, whose theory needs only identify a reasonable doubt to the trial jury, faces a significantly higher burden before he may bring his theory before the trial jury. This makes no sense to me, but this the law allows.

I have no doubt that if Miller’s attorney had made his proffer before a grand jury instead of a trial judge, the grand jury would have found probable cause against Guenther and gone on about its business without a hesitation. More to the point, in all my years of dealing with these cases, I have seen no convincing constitutional justification for placing a higher threshold before a criminal defendant than that placed before the state. Most authorities justify the situation simply by noting that it has always been this way. While admirable for its clarity, this justification sheds no light on its constitutional provenance, be there any. 3

To be clear, I am not suggesting that the defense should have access to the grand jury, as that proposition would find no purchase in the text of the Constitution. I suggest only that the courts should have to find specific constitutional justification before endorsing a system in which the threshold for a defendant’s theory to go before a trial jury is higher than the threshold for the state’s theory to reach that same jury. If, as I suspect, there is no such specific constitutional justification, then we should work toward a system in which the barrier to entry is substantively the same for the defense as it is for the state.

I respectfully concur.

. This is not to say that there was insufficient evidence to convict Miller, for there most certainly was. But, based on our extremely deferential sufficiency of the evidence standard, so too would Miller's evidence against Guenther have been sufficient evidence to convict had the state decided to focus its fire on Guenther rather than Miller and had the jury convicted.

. It is true that the trial judge will rule on the admissibility of discrete pieces of evidence, but those rulings are made in light of the fact that the grand jury has already blessed the state’s theory of the case. So, as long as there is some admissible evidence to support the state’s theory, that theory will go to the trial jury.

. Indeed, the Supreme Court recently highlighted the fact that no one knows where in the Constitution a criminal defendant's right to present a defense resides, the Fourteenth Amendment’s Due Process Clause, the Sixth Amendment's Compulsory Process Clause, or the Sixth Amendment’s Confrontation Clause. Holmes v. South Carolina, 547 U.S. 319, 324 , 126 S.Ct. 1727 , 164 L.Ed.2d 503 (2006). Eveiyone just agrees that it is in there somewhere. But the question of what the state permissibly may do to regulate the right to present a defense shows that it is not enough to agree that the right exists without pinpointing where the right resides. We cannot analyze a given evidentiary regulation with any specificity without knowing what specific constitutional doctrine is at issue.