Reply Brief — Roderick White, Petitioner v. Louisiana

No. 18-8862

IN THE

SUPREME COURT OF THE UNITED STATES

Roderick White,

Petitioner,

v.

State of Louisiana,

Respondent.

On Petition for a Writ of Certiorari

to the Court of Appeal of Louisiana, First Circuit

REPLY BRIEF FOR PETITIONER

____________________________________

Jonathan D. Hacker

Samantha Goldstein

O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, DC 20006

Jeffrey L. Fisher

Counsel of Record

Brian H. Fletcher

Pamela S. Karlan

STANFORD LAW SCHOOL

SUPREME COURT LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 724-7081

jlfisher@law.stanford.edu

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................. ii

REPLY BRIEF FOR PETITIONER ...................................................................... 1

A. The Conflict Is Real .................................................................................. 1

B. This Case Is an Excellent Vehicle ............................................................ 4

C. The Decision Below Misconstrues the Confrontation Clause ................. 8

CONCLUSION..................................................................................................... 10

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TABLE OF AUTHORITIES

Page(s)

Cases

Bullcoming v. New Mexico, 564 U.S. 647 (2011) .......................................................... 8

California v. Green, 399 U.S. 149 (1970) ...................................................................... 9

Cookson v. Schwartz, 556 F.3d 647 (7th Cir. 2009) ..................................................... 2

Crawford v. Washington, 541 U.S. 36 (2004) ................................................... 3, 4, 8, 9

Davis v. Alaska, 415 U.S. 308 (1974) ........................................................................ 8, 9

Douglas v. Alabama, 380 U.S. 415 (1965)............................................................. 6, 8, 9

Goforth v. State, 70 So.3d 174 (Miss. 2011).................................................................. 2

Lee v. Illinois, 476 U.S. 530 (1986) ......................................................................... 5, 10

Lilly v. Virginia, 527 U.S. 116 (1999)...................................................................... 5, 10

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) ................................................ 8

In re N.C., 105 A.3d 1199 (Pa. 2014) ............................................................................ 3

Napue v. Illinois, 360 U.S. 264 (1959) .......................................................................... 6

Pennsylvania v. Muniz, 496 U.S. 582 (1990) ................................................................ 2

State v. Delos Santos, 238 P.3d 162 (Haw. 2010)......................................................... 4

State v. Holliday, 745 N.W.2d 556 (Minn. 2008) .......................................................... 4

State v. Price, 146 P.3d 1183 (Wash. 2006) .............................................................. 3, 4

United States v. Owens, 484 U.S. 554 (1988) ................................................... 1, 2, 3, 4

Constitutional Provision

U.S. Const., amend. VI, Confrontation Clause ....................................................passim

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REPLY BRIEF FOR PETITIONER

This case presents a crisp and straightforward question of constitutional law:

Whether the Confrontation Clause permits the prosecution to introduce an out-ofcourt testimonial statement from a witness whom it calls to the stand but who has no

memory of the events described in the statement nor of giving the statement itself.

Try as the State might, it is unable to dispel the disagreement in the lower courts

over whether mere physical presence in the courtroom in this situation satisfies the

right to confrontation. Nor does the State provide any basis for believing this case is

an unsuitable vehicle for resolving the question presented; to the contrary, this case

is a perfect vehicle and places the issue in stark relief. Finally, the State’s insistence

that United States v. Owens, 484 U.S. 554 (1988), permitted it to introduce the

videotaped police interrogation of Mr. Coleman underscores the need for this Court’s

intervention. Only this Court can decide whether Owens extends beyond its facts to

the situation where a witness does not even remember giving the incriminating

statement the prosecution seeks to introduce—and thus is unable to answer any

questions not only about the events described in the statement but also concerning

whether the statement itself was the product of coercion, improper suggestion, or any

other infirmity.

A. The Conflict Is Real.

Contrary to the State’s contentions, several other jurisdictions would have held

that petitioner’s right to confrontation was violated.

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The State does not dispute that in Goforth v. State, 70 So.3d 174 (Miss. 2011),

the Mississippi Supreme Court held on facts materially indistinguishable from this

case that the defendant’s right to confrontation was violated. The State suggests this

does not matter, because even though the court’s analysis turned entirely on Owens

and other cases interpreting the Sixth Amendment, it stated at the end of its opinion

that its holding was “based on the Mississippi Constitution.” BIO 19 (emphasis

removed). But this is not a petition seeking review of Goforth. So the critical inquiry

here is not the jurisdictional question whether the Goforth decision rested on

independent and adequate state grounds—itself a debatable question insofar as the

Mississippi Supreme Court said the state constitution affords the “same right” as the

Sixth Amendment’s Confrontation Clause, 70 So.3d at 183, and relied exclusively on

case law construing that Clause. See, e.g., Pennsylvania v. Muniz, 496 U.S. 582, 588

n.4 (1990) (finding jurisdiction in similar circumstances). Instead, the key is whether

the Mississippi Supreme Court interpreted federal law differently from the Louisiana

Court of Appeal. There can be no doubt that it did.

The Seventh Circuit likewise has concluded that Owens does not permit

introduction of an out-of-court statement where the witness does not remember the

events described in his testimonial statement or giving the statement. See Cookson

v. Schwartz, 556 F.3d 647, 651 (7th Cir. 2009). The State notes that the defendant in

that case did not obtain relief because the witness there actually “remembered

making” the statement. BIO 15-16. But that does not detract from the reality—which

the State does not contest—that the Seventh Circuit has interpreted the

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Confrontation Clause in a manner that, on the facts here, would have found a

confrontation violation.

The State’s categorical assertion that “no state court of last resort has decided

a case in a way that conflicts with the Louisiana Court of Appeal[’]s decision in

Petitioner’s case,” BIO 18, also overlooks In re N.C., 105 A.3d 1199 (Pa. 2014). In that

case, a child witness answered questions regarding things like her “birthday” and her

“family.” Id. at 1216. But she was nonresponsive about “the substantive issues” she

described in her prior testimonial statement. Id. Reasoning that the Confrontation

Clause “require[s] an opportunity for effective cross-examination,” the Pennsylvania

Supreme Court distinguished Owens and held that the defendant’s right to

confrontation was violated. Id. at 1216-17 (emphasis added). Whatever distinctions

might obtain between child witnesses and the testifying witness here, the

Pennsylvania Supreme Court’s insistence that the Confrontation Clause demands an

“effective” opportunity to cross-examine on the substance and circumstances of a prior

statement cannot be squared with the Louisiana Court of Appeal’s holding here that

mere physical presence on the stand is enough.

To be sure, several other courts share the Louisiana Court of Appeal’s

permissive reading of Owens and Crawford v. Washington, 541 U.S. 36 (2004). But

many of those decisions, too, reinforce the need for this Court’s review. In State v.

Price, 146 P.3d 1183 (Wash. 2006), three Justices on the Washington Supreme Court

took the position—contrary to the Louisiana Court of Appeal—that the Confrontation

Clause requires an opportunity for effective cross-examination and that a witness

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who “cannot remember the contents of her hearsay statements or the acts described

in those statements cannot be fully and effectively cross-examined.” Id. at 1193

(Alexander, C.J., dissenting). In State v. Delos Santos, 238 P.3d 162 (Haw. 2010), the

Hawaii Supreme Court rejected a confrontation claim like petitioner’s. But the court

conceded that “Owens is distinguishable” from this situation “because the witness in

Owens remembered making his prior identification.” Id. at 179. And in State v.

Holliday, 745 N.W.2d 556 (Minn. 2008), the Minnesota Supreme Court likewise

“acknowledge[d]” that “the witness in Owens actually remembered making his prior

statement.” Id. at 566 (citation omitted). The court also “recognize[d]” that this

Court’s explanation “that the Confrontation Clause does not bar admission of a prior

testimonial statement ‘so long as the declarant is present at trial to defend or explain

it,’ [Crawford, 541 U.S. at 59 n.9], could be interpreted to require that the declarant

actually defend or explain the statement.” Holliday, 745 N.W.2d at 565.

When even lower court opinions in accord with the decision below recognize

such limitations and cross-currents in this Court’s precedent, conflict and confusion

is sure to persist until this Court steps in. It should do so now.

B. This Case Is an Excellent Vehicle.

The Louisiana Court of Appeal explained the pertinent facts as follows:

On direct examination, . . . Mr. Coleman explained that he was getting

treatment in Florida for . . . memory issues [related to a fall he took].

When asked about January 6, 2015, the day the defendant [allegedly]

shot Mr. Robinson, Mr. Coleman stated that he did not remember

anything about that incident. Mr. Coleman further stated he did not

remember talking to the police about the shooting.

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Pet. App. 3a-4a. The court then squarely rejected petitioner’s argument that

admitting Mr. Coleman’s prior statement to the police in those circumstances violated

the Confrontation Clause, reasoning that “a declarant’s appearance and subjection to

cross examination at trial are all that [are] necessary to satisfy the right to

confrontation, even if the declarant suffers [such] memory loss.” Id. 6a. The court

offered no alternative holding, and the State has never argued that a confrontation

violation here could possibly be harmless.

Nor could it. For decades, this Court has stressed that “th[e] truthfinding

function of the Confrontation Clause is uniquely threatened when an accomplice’s

confession is sought to be introduced against a criminal defendant without the benefit

of cross-examination.” Lee v. Illinois, 476 U.S. 530, 541 (1986) (emphasis added). “Due

to his strong motivation to implicate the defendant and to exonerate himself,” an

accomplice’s statements that shift or spread blame are “inherently unreliable.” Lilly

v. Virginia, 527 U.S. 116, 131, 133 (1999) (plurality opinion) (internal quotation

marks and citation omitted). This concern is all the more pronounced where, as here,

the accomplice’s unchallengeable statement is the centerpiece of the prosecution’s

case; there is good reason even apart from blame-shifting to doubt the veracity of the

statement; and little, if any, physical evidence supports the accomplice’s key

accusations.

The State nevertheless contends for various reasons that this case is an

unsuitable vehicle for addressing the question presented. Each of the State’s

arguments is baseless.

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1. The State first suggests petitioner has “forfeited” his confrontation

argument because he did not do enough at trial to probe the truthfulness and scope

of Mr. Coleman’s memory loss. BIO 22-24. This assertion—which the State has never

made until now—is puzzling. The State itself elicited the testimony from Mr.

Coleman that his post-crime injury wiped away his memory about the events he

described to the police and giving the statement. Pet. App. 3a-4a. The State

presumably would not have elicited that testimony and allowed it to stand if it had

reason to doubt it. Cf. Napue v. Illinois, 360 U.S. 264, 269 (1959). At any rate, the

facts Mr. Coleman described, which supplied the basis for the Louisiana Court of

Appeal’s analysis, provide a complete platform for petitioner’s confrontation

argument—which he has raised at every level of the state courts, and which the

Louisiana Court of Appeal rejected on the merits.

It makes no difference whether Mr. Coleman was able to testify about other

things, such as his current “age” and “where he currently lives.” BIO 22; see also

Douglas v. Alabama, 380 U.S. 415, 416 (1965) (finding confrontation violation even

though the declarant took the stand and “gave his name and address”). Those facts

have nothing to do with his memory as it pertained to his testimonial statement. On

that score, it is undisputed Mr. Coleman was a blank slate. The question presented

is thus squarely at issue.

For the same reason, the State is wrong to suggest the Louisiana Court of

Appeal “simply made a factual determination” with which petitioner disagrees—

namely, that petitioner actually had a sufficient opportunity to cross-examine Mr.

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Coleman. BIO 27. The question whether a testifying witness’s inability to remember

either the underlying events or giving a prior testimonial statement forecloses the

prosecution from introducing the statement—no matter what other questions about

current realities the witness may be able to answer on the stand—is a pure question

of law that is important and recurring. And the Louisiana Court of Appeal’s decision

unambiguously rested on its categorical legal holding that the Confrontation Clause

“requires only that the declarant be available at trial to testify”—not on any

determination that petitioner had any opportunity for effective cross-examination.

Pet. App. 6a.

2. The State next maintains the record here is not “sufficiently developed”

to provide a basis for resolving the question presented. BIO 21 (capitalization

omitted); see also id. 24. Again: the facts the State itself elicited from its own

witness—facts that the Louisiana Court of Appeal accepted—fully and completely

raise the question presented. According to Mr. Coleman’s testimony on direct

examination, he was experiencing a medical problem that wiped out his memory of

the events he described to the police or his making the statement at issue. That is all

that is necessary to put the question presented to this Court.

3. Finally, the State argues that petitioner could have called other witnesses

or introduced extrinsic evidence to try to undermine Mr. Coleman’s testimonial

statement. BIO 24-27. This is not really a vehicle argument; instead, it is an attempt

to defend the Louisiana Court of Appeal’s holding that petitioner’s right to

confrontation was not transgressed. The attempt is a nonstarter. The ability to cross-

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examine other witnesses or introduce other evidence has never been a substitute for

the right to cross-examine a testifying witness himself. See, e.g., Bullcoming v. New

Mexico, 564 U.S. 647, 659-63 (2011) (The Confrontation Clause “does not tolerate

dispensing with confrontation simply because the court believes that questioning one

witness about another’s testimonial statements provides a fair enough opportunity

for cross-examination.”); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 319 (2009)

(similar).

C. The Decision Below Misconstrues the Confrontation Clause.

The State’s broader argument on the merits fares no better. The State stresses

that “Coleman willingly appeared at trial, willingly took the stand and answered

every question in full view of the jury, who were able to judge his demeanor and

credibility.” BIO 30. But “[c]onfrontation means more than being allowed to confront

the witness physically” in front of the jury. Davis v. Alaska, 415 U.S. 308, 315 (1974).

It includes a right to cross-examine to probe the “accuracy and truthfulness” of the

witness’s testimony. Id. at 317; see also Crawford, 541 U.S. at 57 (defendant is

entitled to “an adequate opportunity to cross-examine” (emphasis added)). That was

impossible here. And the jury’s ability to observe a witness in the courtroom gives it

no meaningful ability to judge the veracity of his out-of-court statements where, as

here, the witness has no memory of any relevant events. See Pet. 22; Amicus Br. of

Richard D. Friedman 9, 12-13.

The State is thus wrong to say this case can be “meaningfully distinguished”

from Douglas v. Alabama. BIO 30. In both cases, the witness took the stand and gave

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basic answers about his identity, but then did not answer any questions about the

content or circumstances surrounding his prior statement accusing the defendant of

committing the charged offense. The State says Douglas is different because the

witness there invoked a privilege not to testify, whereas here the witness simply could

not remember anything. Id. But the right to confrontation is the defendant’s right,

not the witness’s—and from the defendant’s standpoint, the two scenarios are

identical.

If anything, this case is worse. At least in Douglas the witness presumably

knew while on the stand whether his prior statement should be credited (and

therefore the jury could at least try to discern from the witness’s demeanor while

refusing to answer questions whether he should be trusted). Here, by contrast, even

the witness himself did not know whether his prior statement was trustworthy and

accurate. See Amicus Br. of NACDL 5-7. 1

* * *

A final word: Even if every other box regarding this Court’s certiorari criteria

were not checked, the facts here are so compelling that this is the exceptional case

where a palpable injustice should propel this Court to act. The most the State can say

Amici Fern and Charles Nesson agree that the Court should grant certiorari and

hold that the Confrontation Clause was violated here. They also suggest that the

Court use this case to reconsider the testimonial approach enunciated in Crawford.

That latter suggestion is unfounded. This Court’s confrontation jurisprudence—both

before and after Crawford—has always required an adequate opportunity for crossexamination when a witness takes the stand. See Crawford, 541 U.S. at 59 n.9 (citing

California v. Green, 399 U.S. 149, 162 (1970)); see also Davis, 415 U.S. at 315. That

longstanding doctrine is all that is necessary to interpret and apply here.

1

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for this prosecution is that the trial court “found sufficient evidence to support the

conviction.” BIO 2. But the court’s assessment focused on the very evidence at issue

here: Mr. Coleman’s statement to the police shifting blame to petitioner, which

petitioner was powerless to challenge. 2 Time and again, this Court has warned that

accomplices’ statements that “shift[] responsibility and implicate[] the defendant as

the triggerman” are “‘presumptively suspect and must be subjected to the scrutiny of

cross-examination.’” See Lilly, 527 U.S. at 131-32 (plurality opinion) (emphasis

added) (quoting Lee, 476 U.S. at 541); see also id. at 130-34 (collecting other cases).

Those teachings should not be in vain. Petitioner should not be forced to serve life in

prison at hard labor without this Court’s considering his case.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be granted.

Dated: August 28, 2019

Respectfully submitted,

Jonathan D. Hacker

Samantha Goldstein

O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, DC 20006

/s/ Jeffrey L. Fisher

Counsel of Record

Brian H. Fletcher

Pamela S. Karlan

STANFORD LAW SCHOOL

SUPREME COURT LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 724-7081

jlfisher@law.stanford.edu

The State also references a few anonymous tips that the police supposedly

received in the days following the murder, which are contained in the police file the

prosecution produced during discovery. BIO 6-8. None of these anonymous

accusations were introduced at trial or otherwise relied on by the courts below.

2

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