Reply Brief — Carlos Tapia, Petitioner v. New York

No. 19-159

IN THE

Supreme Court of the United States

________________

CARLOS TAPIA,

Petitioner,

v.

NEW YORK,

________________

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE NEW YORK COURT OF APPEALS

________________

REPLY BRIEF FOR PETITIONER

________________

Christina A. Swarns

David Bernstein

OFFICE OF THE

APPELLATE DEFENDER

11 Park Place

Suite 1601

New York, NY 10007

Daniel A. Rubens

Counsel of Record

Matthew R. Shahabian

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

drubens@orrick.com

Counsel for Petitioner

i

TABLE OF CONTENTS

Page

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

INTRODUCTION ..................................................... 1

I.

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

II. The Decision Below Is Wrong. ........................... 5

III. There Are No Vehicle Problems. ...................... 10

CONCLUSION ........................................................ 13

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Bullcoming v. New Mexico,

564 U.S. 647 (2011) ........................................... 12

California v. Green,

399 U.S. 149 (1970) ......................................... 6, 7

Cookson v. Schwartz,

556 F.3d 647 (7th Cir. 2009)....................... 2, 3, 4

Crawford v. Washington,

541 U.S. 36 (2004) ................................... 2, 5, 6, 7

Davis v. Alaska,

415 U.S. 308 (1974) ............................................. 5

Delaware v. Fensterer,

474 U.S. 15 (1985) ............................................... 6

Douglas v. Alabama,

380 U.S. 415 (1965) ......................................... 5, 9

Fiswick v. United States,

329 U.S. 211 (1946) ........................................... 11

Goforth v. State,

70 So. 3d 174 (Miss. 2011) ...................... 2, 4, 7, 9

McFadden v. United States,

135 S. Ct. 2298 (2015)......................................... 8

iii

In re N.C.,

105 A.3d 1199 (Pa. 2014) ............................ 2, 3, 4

Pennsylvania v. Muniz,

596 U.S. 582 (1990) ............................................. 2

People v. Leverton,

405 P.3d 402 (Colo. Ct. App. 2017) .............. 4, 11

Sibron v. New York,

392 U.S. 40 (1968) ............................................. 11

State v. Cameron M.,

55 A.3d 272 (Conn. 2012) ................................... 4

State v. Holliday,

745 N.W.2d 556 (Minn. 2008)....................... 7, 12

State v. Nyhammer,

932 A.2d 33 (N.J. App. Div. 2007) .................. 3, 4

Stuart v. Alabama,

139 S. Ct. 36 (2018) ............................................ 6

United States v. Ghilarducci,

480 F.3d 542 (7th Cir. 2007)........................... 3, 9

United States v. Owens,

484 U.S. 554 (1988) ........................2, 6, 7, 8, 9, 10

Statutes & Rules

18 U.S.C. § 1182(a)(2)(A) ....................................... 11

18 U.S.C. § 1182(a)(9)(A) ....................................... 11

INTRODUCTION

This petition raises a recurring and important

constitutional question on which the lower courts are

divided: Does it violate the Confrontation Clause to

introduce a witness’s out-of-court testimonial statement if the prosecution calls the witness to the stand

but he remembers nothing about his previous statement? A bare majority of New York’s highest court

erred in concluding that the confrontation right can

be vindicated by the witness’s mere physical presence

on the witness stand, even if intervening memory loss

deprives the defendant of any meaningful opportunity

for cross-examination. Respondent’s objections to certiorari are meritless. There is an acknowledged division of authority on the question presented, the

decision below diminishes the confrontation right to

an empty formality when a witness experiences total

memory loss, and this case offers a perfect vehicle for

the Court to resolve the question. The petition should

be granted.

I.

The Conflict Is Real.

If petitioner had been prosecuted in the State of

Mississippi, a federal district court in the Seventh

Circuit, or the Commonwealth of Pennsylvania, those

courts would not have stopped their Sixth Amendment analysis upon observing that Lieutenant Cosgrove was physically present on the witness stand.

Instead, those courts would have asked whether petitioner had an “effective” opportunity to cross-examine

Cosgrove about his grand jury testimony when Cosgrove could not “‘defend or explain’” his testimony and

defense counsel could not test the credibility of his

2

prior statement. See Goforth v. State, 70 So. 3d 174,

186-87 (Miss. 2011) (quoting Crawford v. Washington,

541 U.S. 36, 59 n.9 (2004)); Cookson v. Schwartz, 556

F.3d 647, 651 (7th Cir. 2009); In re N.C., 105 A.3d

1199, 1216-17 (Pa. 2014); Pet. 10-14.

Respondent’s efforts to muddy the split fall short.

It is true that in Goforth, the Mississippi Supreme

Court framed its holding as an application of that

state’s constitution. But the court interpreted the

Mississippi Constitution as providing the “same

right” as the Sixth Amendment’s Confrontation

Clause, grounded the state right exclusively in federal

precedent (namely, Crawford and Cookson), and used

that federal precedent to distinguish both its own

prior holdings and this Court’s decision in United

States v. Owens, 484 U.S. 554 (1988). See Goforth, 70

So. 3d at 185-87. Whether Goforth can be said to rest

on an adequate and independent state ground is debatable, see Pennsylvania v. Muniz, 596 U.S. 582, 588

n.4 (1990), but ultimately beside the point. For purposes of this petition, what matters is that the Mississippi Supreme Court interpreted the federal

confrontation right differently than the New York

Court of Appeals did here. See Goforth, 70 So. 3d at

185 (rejecting the position of “many courts” that “a declarant’s appearance and subjection to cross-examination … are all that is necessary to satisfy the

Confrontation Clause”).

Respondent makes no meaningful attempt to argue that the Seventh Circuit would have decided the

question presented differently, other than to dismiss

as mere “dicta” that court’s statements that the Confrontation Clause bars the introduction of an out-of-

3

court statement where the witness can no longer recall the events or the prior statement. BIO 14 (citing

Cookson, 556 F.3d 647, and United States v. Ghilarducci, 480 F.3d 542 (7th Cir. 2007)). The Seventh Circuit found no confrontation violation on the facts

presented in those cases, where the witness “could remember the underlying events described in the hearsay statements,” Cookson, 556 F.3d at 652, or “did not

claim a total loss of memory regarding the events,”

Ghilarducci, 480 F.3d at 549. But the rule the Seventh Circuit articulated is irreconcilable with the one

the New York Court of Appeals applied here: in the

Seventh Circuit, a witness’s mere physical presence is

not dispositive. See Cookson, 556 F.3d at 651 (rejecting the categorical argument “that there is no Confrontation Clause problem” where the defendant is

“able to cross-examine [the witness] at trial”).

Nor can respondent contest that Pennsylvania

and New Jersey appellate courts have understood the

Sixth Amendment to require “an opportunity for effective cross-examination” that goes beyond the witness’s physical presence. N.C., 105 A.3d at 1209,

1216; accord State v. Nyhammer, 932 A.2d 33, 42-43

(N.J. App. Div. 2007), rev’d on other grounds, 963 A.2d

316, 334 (N.J. 2009). Respondent ignores Nyhammer

entirely, and would treat N.C. as “inapposite” because

it involved a “child witness.” BIO 16. That distinction

misses the point: When a witness is unable to testify

about her prior account for whatever reason—be it

privilege, incapacity, or memory loss—the defendant

4

is deprived of the opportunity for cross-examination

that the Sixth Amendment secures. See Pet. 17-19.1

Any way the split is sliced, there is irreconcilable

and acknowledged disagreement among federal

courts and state courts of last resort over the meaning

of this Confrontation Clause question.2 Respondent’s

brief puts the question well: “[W]hat happens if a live,

testifying witness cannot remember the facts of the

case, and his prior, out-of-court statement is introduced at trial?” BIO 1. A litigant who compared the

opinion of the New York Court of Appeals (and likeminded courts) to Goforth, Cookson, and N.C. would

see no clear answer. Unless this Court intervenes, the

validity of a conviction based on out-of-court testimony that the declarant has forgotten will depend on

where the defendant is prosecuted.

1 Respondent also suggests that the Pennsylvania Supreme

Court distinguished the “nonresponsive” witness in N.C. from “a

forgetful witness … who was otherwise responsive to questioning and did not lack the capacity to offer testimony.” BIO 16-17

(citing N.C., 105 A.3d at 1216-17). That is incorrect. That court

framed the critical inquiry as whether the defendant had “an opportunity for effective cross-examination,” and noted that the

witness there failed to testify “on the substantive issues of the

case.” 105 A.3d at 1216. In distinguishing other “caselaw” cited

by the prosecution involving witnesses who “could not remember

certain details,” id. at 1217, the court was not suggesting that

the Confrontation Clause tolerates the introduction of prior testimony where memory loss prevents the witness from testifying

at all about the substance of his prior statement.

2 See, e.g., State v. Cameron M., 55 A.3d 272, 282 n.18 (Conn.

2012) (addressing Goforth and Nyhammer); People v. Leverton,

405 P.3d 402, 410 (Colo. Ct. App. 2017) (Cookson and Goforth),

cert. denied, 138 S. Ct. 1265 (2018).

5

II. The Decision Below Is Wrong.

Given the conflict over the question presented, respondent’s lengthy arguments on the merits are unresponsive to the need for certiorari review. In any

event, those arguments are misguided both in their

failure to defend the decision below and on their own

terms.

1. Respondent has remarkably little to say about

the New York Court of Appeals’ actual holding. The

court ruled categorically that the Confrontation

Clause is satisfied by a witness’s “presence at trial.”

App. 17a. The majority upheld the use of Cosgrove’s

out-of-court statements solely because of Cosgrove’s

“presence at trial as a testifying witness, where he

was subjected to cross-examination before the trier of

fact.” Id. As the petition explains (at 14-17), this

Court’s precedents demand more: the defendant must

have “an adequate opportunity to cross-examine.”

Crawford, 541 U.S. at 57 (emphasis added). And that

opportunity, in turn, requires “more than being allowed to confront the witness physically” in the courtroom. Davis v. Alaska, 415 U.S. 308, 315 (1974).

The same principles animated this Court’s holding in Douglas v. Alabama, 380 U.S. 415 (1965),

where the witness took the stand but, invoking his

privilege against self-incrimination, refused to answer questions about the alleged crime. The Court

concluded that “effective confrontation” was impossible in those circumstances, thereby “plainly den[ying]

[the defendant] the right of cross-examination secured by the Confrontation Clause.” Id. at 419-20. Respondent purports to distinguish Douglas by pointing

6

to the Court’s statement in Owens that “assertions of

privilege by the witness may undermine the process

to such a degree that meaningful cross-examination … no longer exists.” BIO 25. But the same can be

said about a witness who can no longer remember previous events or testimony at all.

For purposes of the Confrontation Clause, what

matters is that meaningful cross-examination about

the prior statement is impossible. Again, whatever

the reason the defendant is left unable to cross-examine the witness, the effect is the same: “The engine of

cross-examination [i]s left unengaged, and the Sixth

Amendment [i]s violated.” Stuart v. Alabama, 139 S.

Ct. 36, 36 (2018) (Gorsuch, J., dissenting from denial

of certiorari).

Although respondent suggests otherwise (at 1720), no prior decision of this Court supports a rule that

treats a witness’s physical presence as dispositive in

cases involving memory loss. California v. Green and

Delaware v. Fensterer both expressly reserved decision on the question whether a witness’s memory loss

“so affected [the] right to cross-examine as to make a

critical difference in the application of the Confrontation Clause.” California v. Green, 399 U.S. 149, 168

(1970); accord Delaware v. Fensterer, 474 U.S. 15, 20

(1985). And both cases emphasized the importance of

securing defendants “an effective opportunity for confrontation.” Green, 399 U.S. at 165; accord Fensterer,

474 U.S. at 20.

The Confrontation Clause’s status as a “‘procedural … guarantee,’” BIO 23 (quoting Crawford, 541

U.S. at 61), only reinforces the point. That a

7

constitutional right is procedural does not mean that

it can be reduced to an empty formality. Without some

check to ensure the opportunity for cross-examination

is “adequate” or “effective” in cases involving memory

loss, the confrontation right would hardly function as

the truth-testing “crucible” that Crawford envisioned.

541 U.S. at 61. That is why Crawford conditions the

admissibility of a prior statement on a witness who is

“present at trial to defend or explain it.” Id. at 59 n.9.

Respondent contends that Crawford cannot be

read as “requir[ing] ‘the declarant [to] actually defend

or explain his statement.’” BIO 21-22 (emphasis

added) (quoting State v. Holliday, 745 N.W.2d 556,

565 (Minn. 2008)). But Holliday recognized Crawford

“could be interpreted” to mean that, 745 N.W.2d at

565, and it is unclear what work the words “defend or

explain” are doing in the Crawford footnote on respondent’s proposed reading. See Green, 399 U.S. at

157 (the confrontation right is satisfied if “the witness

[i]s present at trial to repeat his story and to explain

or repudiate any conflicting prior stories before the

trier of fact”). Even if those words are best read as tolerating something short of “actually” defending or explaining the prior statement “in fact,” they at the very

least require that the witness have some “minimal

ability or capacity” to defend or explain the statement—something the witness lacks in a case of total

memory loss. Goforth, 70 So. 3d at 186.

Predictably, then, respondent rests much of its

merits discussion on Owens. That is hardly a reason

to deny certiorari, given the lower-court division on

how Owens applies on facts like these. See supra 1-4;

Pet. 10-14. Moreover, as the petition explains (at 19-

8

22), Owens did not purport to establish a categorical

rule that the confrontation right is satisfied by a witness’s in-court presence. Instead, the Court held that

there was no confrontation violation where a witness

remembered some details of the prior identification,

and where defense counsel could make use of that

memory loss to cast doubt on the credibility of the

prior identification. 484 U.S. at 559-60.

2. Instead of defending the decision below, respondent devotes the bulk of its opposition to addressing a different question: whether, if Owens indeed

requires more than a witness’s mere physical presence at trial, the Sixth Amendment was nonetheless

satisfied here because “petitioner effectively cross-examined Cosgrove” at trial. BIO 23 (emphasis added).

That question is not before the Court because the

Court of Appeals did not resolve that issue. That court

instead held that the confrontation right was categorically satisfied because Cosgrove was “presen[t] at

trial” and “subjected to cross-examination before the

trier of fact.” App. 17a. Respondent’s contention that

Cosgrove’s cross-examination was “effective” is, at

most, an issue for the Court of Appeals to consider on

remand, if this Court were to reverse. See, e.g.,

McFadden v. United States, 135 S. Ct. 2298, 2307

(2015).

Respondent’s argument is at any rate meritless.

Respondent notes that defense counsel’s cross-examination was able to “call[] into question the accuracy of

the transcription of [Cosgrove’s] grand jury testimony.” BIO 23-24. But the typographical error in the

grand jury transcript concerned an ancillary issue:

whether Cosgrove was initially sitting in a “marked”

9

or “parked” police vehicle. App. 5a; C.A. App. 369. Left

entirely unrebutted was Cosgrove’s critical identification of petitioner as the assailant.

Respondent also seeks to liken this case to Owens—and minimize the tension with decisions like Goforth and Ghilarducci—by downplaying the extent of

Cosgrove’s memory loss by the time of trial. See BIO

15-16, 28-29. But the fact that Cosgrove could remember when he retired from the police force, and that his

review of “police paperwork” allowed him to testify as

to where and when the arrest occurred, C.A. App. 35051, has nothing to do with the critical gap in his

memory: his inability to recall the attack or his identification of petitioner. Cf. Douglas, 380 U.S. at 416

(finding Confrontation Clause violation even where

witness answered preliminary questions about his

name and address). Cosgrove could not have been

clearer that he lacked “any independent recollection

of the circumstances leading to [petitioner’s] arrest[],”

even after reviewing the paperwork. C.A. App. 352.

He could not identify petitioner by name or face in the

courtroom. C.A. App. 351-52. On cross-examination,

Cosgrove could not answer defense counsel’s questions regarding the events other than to confirm repeatedly that he had no memory of them. C.A. App.

371-78. And he admitted that he could not recall his

prior testimony such that he could not attest to the

accuracy of the court reporter’s transcription. C.A.

App. 372. There can be no doubt that Cosgrove’s

memory loss here was “total” in every sense relevant

to the confrontation right.

Respondent defies common sense by claiming that

defense counsel was nonetheless able to use

10

Cosgrove’s memory loss at trial as a “‘means of impugning’” his prior testimony. BIO 28. Cosgrove credibly testified that he did not remember the events in

question, which took place nearly four years prior. His

lack of recollection about a late-night bar fight that

understandably did not stand out in his mind provided no reason for the jury to disbelieve his prior testimony. Thus, in this case, unlike in Owens, the

witness’s credible and complete inability to recall his

prior statement caused the engine of cross-examination to grind to a halt. Cf. 484 U.S. at 560 (explaining

that defense counsel was able to use witness’s

memory loss to “argue[] that his identification … was

the result of the suggestions of people who visited him

in the hospital”).

III. There Are No Vehicle Problems.

Respondent cannot dispute that petitioner preserved his Sixth Amendment objection at every level

and that the trial court, Appellate Division, and New

York Court of Appeals all addressed the question presented on the merits. Respondent nonetheless raises

several “vehicle” concerns, BIO 30-34, but none is an

impediment to this Court’s review.

1. Respondent contends that petitioner’s trial

counsel engaged in “gamesmanship” and invited any

error by requesting that the court give the jury a missing witness instruction if Cosgrove did not testify.

This is not a vehicle problem; it has nothing to do with

the Court of Appeals’ constitutional holding, which

turned entirely on Cosgrove’s presence at trial and

participation in cross-examination. App. 17a. Moreover, respondent never explains why it was impossible

11

for the prosecution to call Cosgrove as a witness but

limit his testimony to his lack of present recall, without eliciting the constitutionally infirm prior statements. Respondent’s dissatisfaction with petitioner’s

decision to stand on his constitutional and procedural

rights is no reason for this Court to deny certiorari.

2. Respondent next argues that the Court should

not hear petitioner’s case because federal authorities

deported petitioner after he served his term of imprisonment, while his direct appeal was still pending. But

respondent concedes that this case is not moot, and

rightly so. The continuing collateral consequences of

his conviction could preclude petitioner from ever returning to the United States. 18 U.S.C.

§ 1182(a)(2)(A), (9)(A); see Sibron v. New York, 392

U.S. 40, 57-58 (1968); Fiswick v. United States, 329

U.S. 211, 221-22 (1946). Moreover, as respondent

acknowledges (at 11 n.5), it made a similar argument

to the Court of Appeals in moving to dismiss petitioner’s then-pending appeal on discretionary state

law grounds—a motion the Court of Appeals summarily denied. App. 7a n.3.

3. Respondent fares no better in pointing to prior

certiorari denials on related questions, as those petitions had vehicle problems not present here. In

Leverton, Colorado’s intermediate appellate court rejected the defendant’s argument because the witnesses remembered “some of the events underlying

their statements” and concluded that the defendant

was able to effectively cross-examine those witnesses.

405 P.3d at 411. And in the 11-year-old Holliday decision, the Minnesota Supreme Court expressly held

that any error was harmless, as the trial court in that

12

bench trial stated that the challenged out-of-court testimony did not affect its verdict. 745 N.W.2d at 568.

4. Finally, respondent argues that any error in admitting Cosgrove’s testimony was harmless. Again,

this cannot be a vehicle problem because, as respondent admits (at 33), the Court of Appeals did not address it. Harmless error is at most an issue for

remand. See, e.g., Bullcoming v. New Mexico, 564 U.S.

647, 668 n.11 (2011).

In any event, respondent’s contention that Cosgrove’s testimony was “cumulative,” BIO 33, adds

nothing to the facts recounted by the Court of Appeals

majority. If the majority believed that any error was

harmless, it presumably would have said so, given

that the Appellate Division majority so concluded,

and that the dissenting Court of Appeals judges maintained that the error “cannot be said to be harmless.”

App. 39a-40a (emphasis added). The majority’s silence—and its decision to instead address the merits

of petitioner’s Confrontation Clause objection—

speaks volumes.

13

CONCLUSION

The petition should be granted.

Respectfully submitted,

Christina A. Swarns

David Bernstein

OFFICE OF THE APPELLATE

DEFENDER

11 Park Place

Suite 1601

New York, NY 10007

Dated: November 15, 2019

Daniel A. Rubens

Counsel of Record

Matthew R. Shahabian

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

drubens@orrick.com