Reply Brief — Gregory Shields, Sr., Petitioner v. Kentucky

No. 22-450

IN THE

GREGORY SHIELDS,

Petitioner,

v.

COMMONWEALTH OF KENTUCKY,

Respondent.

_______________

On Petition for a Writ of Certiorari to

the Supreme Court of Kentucky

_______________

REPLY BRIEF FOR THE PETITIONER

_______________

Gregory J. DuBoff

APPELLATE JUSTICE

INITIATIVE AT

MCGUIREWOODS LLP

800 East Canal St.

Richmond, VA 23219

Aaron R. Baker

DEPARTMENT OF PUBLIC

ADVOCACY

5 Mill Creek Park

Frankfort, KY 40601

Jonathan Y. Ellis

Counsel of Record

Francis J. Aul

APPELLATE JUSTICE

INITIATIVE AT

MCGUIREWOODS LLP

888 16th St. N.W.

Suite 500

Washington, D.C. 20006

(202) 828-2887

jellis@mcguirewoods.com

i

TABLE OF CONTENTS

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

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

ARGUMENT ............................................................... 2

A.

This Case Implicates a Deep, Entrenched

Conflict Among the States. .............................. 2

B.

The Decision Below Is Wrong. ......................... 8

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

ii

TABLE OF AUTHORITIES

Cases

Barber v. Page,

390 U.S. 719 (1968) ............................................. 9

California v. Green,

399 U.S. 149 (1970) ....................................... 4, 10

Chapman v. California,

386 U.S. 18 (1967) ............................................. 10

Commonwealth v. Bazemore,

614 A.2d 684 (Pa. 1992) ................................ 5, 11

Crawford v. Washington,

541 U.S. 36 (2004) ............................................... 3

Ohio v. Roberts,

448 U.S. 56 (1980) ......................................... 4, 10

Jencks v. United States,

353 U.S. 657 (1957) ........................................... 11

People v. Fry,

92 P.3d 970 (Colo. 2004).................................. 3, 4

People v. Torres,

962 N.E.2d 919 (Ill. 2012) ................................... 5

Pointer v. Texas,

380 U.S. 400 (1965) ................................. 9, 10, 12

State v. Aaron,

218 S.W.3d 501 (Mo. Ct. App. 2007) ................... 3

iii

State v. Smogoleski,

953 N.W.2d 118, 2020 WL 6750487

(Wis. Ct. App. 2020) ............................................ 5

State v. Stuart,

695 N.W.2d 259 (Wis. 2005)............................ 4, 5

1

INTRODUCTION

The court below held that petitioner could be tried

for murder based on the testimony of an ambush witness taken at a preliminary hearing one week after

his arrest—without notice to his counsel of her appearance, without a shred of discovery, and without

any reasonable time for his counsel to prepare. The

Commonwealth defends that ruling on the ground

that, in the 90 seconds of blind questioning defense

counsel managed to conduct of this unexpected witness, the trial judge did not expressly enforce Kentucky’s limitations on testing a witness’s credibility at

a preliminary hearing. In so doing, the Commonwealth—like the court below—takes sides in a deeply

entrenched conflict on what constitutes a constitutionally adequate opportunity for cross-examination.

The Commonwealth does not dispute that the Confrontation Clause permits the admission of an unavailable witness’s prior testimony only if the defendant previously had an “adequate opportunity” for

cross-examination. Opp.11. It acknowledges that this

Court has not “define[d] what that means” and that

the States disagree. Opp.1, 11. It does not dispute

that the question is important to defendants, state

prosecutors, and courts alike, see Vanho.Amicus.Br. 911, or that many States, including those that agree

with the Commonwealth, have pleaded for guidance

on this issue, see Pet.22-23. It agrees there is no obstacle to the Court providing that guidance in this

case. Opp.24; see Friedman.Amicus.Br.5 (“This case

is an excellent vehicle for clearing up this important

area.”).

The Commonwealth nevertheless opposes certiorari because the disagreement among state courts is

2

purportedly somewhat different than petitioner has

framed it (and, in its view, petitioner should lose under either side) and, in any event, the decision below

is correct. But courts and commentators acknowledge

and describe the split as petitioner presents it—when,

if ever, a preliminary hearing can provide an adequate

opportunity for cross-examination. The Commonwealth identifies no one who describes it as limited to

the effect of later-produced discovery. And even if the

conflict were as narrow as the Commonwealth alleges,

it is implicated here. The prosecutor admittedly withheld numerous pieces of constitutionally compelled

discovery until after the relevant testimony.

Unsurprisingly, then, the Commonwealth leads

with and focuses on the merits. It is wrong there too.

But most importantly, even if it were right, that would

not provide a persuasive argument against further review. Whether the decision below is ultimately correct, the fact remains that Ms. Murrell’s testimony

would have been excluded in Colorado, Wisconsin, and

likely several other States. The constitutional right to

confront the witnesses against you should not turn on

where you live. Yet all agree that today it does, and

until this Court intervenes, it will.

ARGUMENT

A.

This Case Implicates a Deep, Entrenched

Conflict Among the States.

As the Commonwealth concedes, the States are

openly divided on what constitutes an “adequate opportunity” for cross-examination at a preliminary

hearing, such that the testimony may later be admitted without the witness at trial. Opp.21. Two States

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hold that a preliminary hearing never provides a constitutionally adequate opportunity for cross-examination; five States apply a case-by-case approach; and

four States, including the court below, now hold that

the mere opportunity for cross-examination suffices

absent express interruption by the court. Pet.13-23.

Rather than seriously contest the split, the Commonwealth argues that the conflict is “somewhat” different than petitioner describes it, and that this case

does not “require resolving it.” Opp.21. The Commonwealth is wrong on both points, and certiorari would

be warranted even if it were right.

1. a. The conflict among lower courts concerns

the foundational question of what counts as an “adequate opportunity” for cross-examination. Crawford

v. Washington, 541 U.S. 36, 57 (2004). That is the

question that Crawford left open. That is how the

States themselves understand their disagreement.

See, e.g., People v. Fry, 92 P.3d 970, 978 (Colo. 2004)

(describing the split as “whether a preliminary hearing provides an adequate opportunity for cross-examination.”); State v. Aaron, 218 S.W.3d 501, 514 (Mo.

Ct. App. 2007) (“[S]tates are split as to whether the

purpose of a preliminary hearing is so different from

the purpose of a trial as to render cross-examination

at the preliminary hearing an insufficient substitute

for cross-examination at trial.”). And that is how commentators describe the conflict. See Friedman.Amicus.Br.4 (“The lower courts are badly divided on the

question of whether, or when, a preliminary hearing

offers an adequate opportunity to cross-examine.”).

The Commonwealth does not cite a single court or

commentator framing the split as concerning solely

4

the “effect of information learned later through discovery.” Opp.24. And its own attempts to narrow the

disagreement fail.

As the Commonwealth acknowledges, Colorado

has adopted a categorical rule against ever introducing preliminary-hearing testimony from an unavailable witness. Opp.13. The Commonwealth dismisses

that approach as in “direct[] conflict[] with this

Court’s cases.” Opp.22. Even if true, that would not

eliminate the conflict. But of course, Colorado is not

simply ignoring this Court’s cases. In Colorado, as in

most States, “credibility determinations are not allowed at preliminary hearings.” Fry, 92 P.3d at 979.

And Colorado has determined that the mere opportunity to cross-examine at a hearing where the witness’s credibility was off limits is not constitutionally

adequate. None of this Court’s cases says otherwise.

Rather, this Court has only ever held preliminaryhearing testimony admissible at trial when the witness underwent “the equivalent of significant crossexamination,” a main focus of which was to “challenge

whether the declarant was sincerely telling what he

believed to be the truth.” Ohio v. Roberts, 448 U.S. 56,

70-71 (1980); see California v. Green, 399 U.S. 149,

165-66 (1970) (prior testimony given “under circumstances closely approximating those that surround the

typical trial” and cross-examination was not “significantly limited in any way”).

The Commonwealth’s effort to transform Wisconsin’s categorical rule into a case-by-case approach is

also unpersuasive. It is true that the judge in State v.

Stuart, 695 N.W.2d 259 (Wis. 2005), “limited the scope

of the cross” as to credibility. Opp.22. But the key

point was that the judge “properly did [so]” because,

5

under Wisconsin law too, “that kind of attack is off

limits in a preliminary hearing.” Stuart, 695 N.W.2d

at 266-67 (emphasis added). It was because of that

limitation that Stuart adopted a bright-line rule precluding admission of preliminary-hearing testimony

at trial. Id. at 266.*

Finally, the Commonwealth’s efforts to cabin the

disagreement in the remaining States to the relevance

of “information learned later through discovery” also

lack merit. Opp.24. To be sure, the failure to provide

discovery in advance of a preliminary hearing is an

important factor in many States’ analysis of whether

the opportunity to cross-examine a witness was adequate. See Pet.18-19. But they also expressly consider other factors like “the motive and focus of the

cross-examination,” People v. Torres, 962 N.E.2d 919,

931 (Ill. 2012), or ask more broadly whether the prior

opportunity to cross-examine was “full and fair,” Commonwealth v. Bazemore, 614 A.2d 684, 687 (Pa. 1992).

Of the States that disagree with the mere-opportunity

approach, none focuses exclusively on the effect of

later-produced evidence.

b. The decision below plainly implicates this

broader conflict.

The categorical rules in Colorado and Wisconsin

present an obvious conflict with the decision below.

* The unpublished decision in State v. Smogoleski, 953 N.W.2d

118 (Table), 2020 WL 6750487 (Wis. Ct. App. 2020), does not

prove otherwise. The lower court there expressly affirmed Stuart’s holding that when a preliminary-hearing witness cannot be

cross-examined on “credibility or general trustworthiness . . . . a

Confrontation Clause problem arises.” Id. at *2. But for several

unique and case-specific reasons, the preliminary hearing in

Smogoleski “was not so restricted.” Id.

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The Commonwealth does not dispute that Kentucky

imposes similar restrictions on preliminary hearings,

including a prohibition on testing a witness’s credibility. See Pet.14-15. Had petitioner’s counsel delved

into Ms. Murrell’s credibility, such questions could

have “draw[n] a justified objection and the ire of [the]

trial court.” Pet.App.49. Under the approach in Colorado and Wisconsin, Ms. Murrell’s testimony would

have been excluded.

The decision below conflicts with the case-by-case

approach too. Unlike the Pennsylvania Supreme

Court, for example, the court below declined to consider whether petitioner’s opportunity to cross-examine was “meaningful.” See Pet.App.10-12 (contrasting

a “meaningful” opportunity with its view of the “constitutional touchstone” of an “adequate opportunity”).

And unlike the Illinois Supreme Court, the court below flatly dismissed the relevance of the differences in

focus and motive for cross-examination between a preliminary hearing and trial. See Pet.App.33 (“Shields’s

argument that a defendant does not have a similar

motive in cross-examination at a preliminary hearing

. . . vis-à-vis the trial has been consistently rejected in

other jurisdictions.”). Under the case-by-case approach, then, several factors would likely also have led

these courts to exclude Ms. Murrell’s testimony.

2. In any event, even if the conflict were limited to

the relevance of later-produced evidence, that issue is

squarely presented here. The Commonwealth does

not dispute that the prosecutor failed to produce several significant pieces of evidence before Ms. Murrell

testified, including Ms. Murrell’s prior inconsistent

statement to police, in which she identified a different

7

assailant; petitioner’s own recorded statement to police; and the medical examiner’s report that determined a cause of death in tension with Ms. Murrell’s

testimony. See PH Vid. 23:15-23:40, 23:45-24:06,

27:20-27:48. The claim that no discovery “was ready”

before the preliminary hearing, Opp.5, is code for the

prosecutor’s admission that he just “did not deem it

appropriate at that stage to provide that information,”

MIL Vid. 15:57-16:12. But the Commonwealth does

not dispute that all of the evidence could have been

produced. And it does not dispute that the Constitution required its production before Ms. Murrell could

have testified at trial.

Instead, all the Commonwealth argues is that the

withheld evidence might not have helped. The petition explains why that is wrong. Pet.26-27; see pp. 1012, infra. But what matters is that the Kentucky Supreme Court ducked the question. As noted, the court

expressly refused to consider whether petitioner’s opportunity to cross-examine was “meaningful” given

the non-disclosure of Ms. Murrell’s and petitioner’s

prior statements. Pet.App.12. As for the medical report, it asked only whether the trial court “abused its

discretion” in determining that it would not have

helped petitioner to a “significant degree.”

Pet.App.31-32. And it suggested that the impact of

withheld evidence should not even be considered except in some undefined category of “extraordinary

cases.” Pet.App.32 n.15.

Even by the Commonwealth’s telling, the Kentucky Supreme Court thus squarely aligned itself with

Kansas and California. See Opp.23 (agreeing that in

Kansas and California “subsequent discovery of mate-

8

rial that might have proved useful in cross-examination is not grounds for excluding . . . prior testimony

at trial”). As the Commonwealth concedes, several

other States disagree with that approach. Opp.23. If

they are right, the decision below should be reversed

and, at a minimum, the case remanded for a proper

consideration of whether the later-produced evidence—all of it—could have made a difference for

cross-examination at trial.

3. Finally, even accepting the Commonwealth’s

view of the conflict and its assertion that a court could

find no prejudice under either standard, certiorari

would still be warranted.

The Commonwealth

acknowledges that the possibility of an affirmance on

remand poses no obstacle to this Court deciding the

question presented and providing the lower courts

needed guidance on the proper standard. Opp.24. Its

further assertion that the Court could nevertheless

“in good conscience” ignore the current confusion in

the lower courts cannot be credited. Id. There is an

admitted conflict in the lower courts on the scope of a

bedrock constitutional right that is deeply entrenched, that has been comprehensively explored by

the lower courts, that frequently recurs, and that is

squarely presented here with no barrier to this

Court’s review. The Court exists to review and resolve

such questions.

B.

The Decision Below Is Wrong.

Perhaps because of the acknowledged conflict on

the question presented, the Commonwealth leads and

focuses on the merits. Opp.8-21. As the petition explained, even if the decision below were correct, the

confusion in the lower courts would alone justify review in this case. Pet.24. At this stage, it is enough

9

to observe that the Commonwealth’s merits defense is

notably tepid. And its misguided and fact-bound argument that the withheld discovery would not have

helped petitioner provides no basis to ignore the

purely legal question presented.

1. Most notable is what the Commonwealth does

not say about the merits. Across many pages of discussion, it cannot bring itself to argue that the decision below is dictated by this Court’s precedents. The

most the Commonwealth claims is that the decision

below “does not conflict with any of this Court’s decisions.” Opp.25; see Opp.11 (acknowledging that Crawford does not define “adequate”). But the Commonwealth does not dispute that this Court has never held

that anything resembling the proceedings in this case

provided an “adequate opportunity” for cross-examination. Thus, even the Commonwealth’s analysis confirms that, were the Court to grant review and affirm,

it would be establishing a new floor for what counts as

“substantial compliance with the purposes behind the

confrontation requirement.” Barber v. Page, 390 U.S.

719, 722 (1968).

The Commonwealth’s proposed standard for “adequate opportunity” reveals this need to break new

ground. The Commonwealth suggests an opportunity

is inadequate only if the trial court “limit[s] the scope

or nature of the questioning”—presumably by express

interruptions or restrictions. Opp.15. But this Court

has never applied “adequate opportunity” so narrowly. The inquiry has been whether the earlier testimony was “taken at a time and under circumstances

affording petitioner . . . an adequate opportunity to

cross-examine.” Pointer v. Texas, 380 U.S. 400, 407

10

(1965). And when the Court has admitted preliminary-hearing testimony, it has carefully discussed the

nature, scope, and circumstances of the examinations.

See Green, 399 U.S. at 150; Roberts, 448 U.S. at 58,

70. If explicit restrictions were all that mattered,

those decisions could have been much shorter.

The Commonwealth’s argument thus betrays that

the decision below can be defended only by adopting a

substance-free definition of “adequate opportunity.”

Unless the trial court’s failure to interrupt Ms. Murrell’s cross-examination is dispositive, there is no

credible argument that petitioner enjoyed an “adequate opportunity.” And having not disputed that petitioner’s counsel rightly believed that “broad crossexamination would not be permitted” at the preliminary hearing, Pet.25, the Commonwealth effectively

embraces the dissenters’ lament below that “a defendant’s Confrontation Clause right [will] hinge on

whether his attorney asks improper questions and

whether the trial court prohibits those improper questions.” Pet.App.49-50. Nothing in the Court’s precedents supports that position.

2. The Commonwealth’s argument that the withheld evidence would not have helped petitioner’s

cross-examination of Ms. Murrell likewise provides no

basis to deny review. Opp.18-21. The most remarkable part of this argument is how little it resembles the

reasoning of the Court below. See p. 7, supra. If the

Commonwealth wants to argue that any constitutional violation was harmless beyond a reasonable

doubt in this case, it can do so. See Chapman v. California, 386 U.S. 18, 24 (1967). But some court should

apply the proper standard to determine whether there

11

was a violation, before deciding whether any error was

harmless.

In any event, the Commonwealth also fails to refute that petitioner’s lack of an “adequate opportunity” to cross-examine Ms. Murrell mattered. The

Commonwealth completely ignores the prosecutor’s

failure to produce petitioner’s recorded statement to

police. Without that statement, however, defense

counsel—with only days on the case and with no notice that Ms. Murrell would testify until she was

called—would have been foolish to engage in blind

questioning that risked devastating her client’s credibility.

The Commonwealth does acknowledge the prosecutor’s failure to produce Ms. Murrell’s statements to

police identifying another culprit. Opp.18. It then

wrongly suggests that petitioner “easily could have

crossed on them” anyway. Id. But learning at the

preliminary hearing that Ms. Murrell gave inconsistent statements is no substitute for proof of what

she actually said. This Court has recognized “the

value for impeaching purposes” of a statement itself

in “the cross-examining process.” Jencks v. United

States, 353 U.S. 657, 667 (1957); see Bazemore, 614

A.2d at 687 (“One is hard pressed to find just how defense counsel was ‘not restricted’ when the Commonwealth failed to provide [a witness’s prior inconsistent

statement] to the defense.”). And the Commonwealth

never explains why the Confrontation Clause should

be read to permit government-engineered impediments to effective cross-examination.

Finally, the Commonwealth’s effort to downplay

the medical examiner’s report also fails. As reflected

in the undisclosed report, the medical examiner “was

12

going to testify that . . . strangulation caused” Mr.

Murrell’s death. MIL Vid. 22:10-22. And the Commonwealth concedes that, had the report been disclosed, petitioner “could have elicited” from Ms. Murrell that there “was little opportunity for strangulation.” Opp.20.

The Commonwealth suggests that none of that hypothetical questioning matters because it would not

show that Ms. Murrell’s “whole story [was] inaccurate.” Opp.20. But even if so, that does not show

harmlessness. Cross-examination can be just as—if

not more—effective when used to elicit favorable testimony from an adverse witness. Nothing could have

benefitted petitioner more than using Ms. Murrell’s

cross-examination to show that he could not have

killed Mr. Murrell in the way the Commonwealth was

going to claim he did.

At bottom, the Commonwealth’s speculation about

cross-examination that could have occurred underscores that the testimony of the Commonwealth’s

“sole eyewitness” to an alleged murder was not “taken

at a time and under circumstances affording petitioner through counsel an adequate opportunity to

cross-examine” her. Pointer, 380 U.S. at 407. The

Commonwealth’s reliance on that testimony to support the conviction in this case “amount[s] to denial of

the privilege of confrontation guaranteed by the Sixth

Amendment.” Id. This Court should grant review and

say so.

13

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Gregory J. DuBoff

APPELLATE JUSTICE

INITIATIVE AT

MCGUIREWOODS LLP

800 East Canal St.

Richmond, VA 23219

Aaron R. Baker

DEPARTMENT OF PUBLIC

ADVOCACY

5 Mill Creek Park

Frankfort, KY 40601

February 15, 2023

Jonathan Y. Ellis

Counsel of Record

Francis J. Aul

APPELLATE JUSTICE

INITIATIVE AT

MCGUIREWOODS LLP

888 16th St. N.W.

Suite 500

Washington, D.C. 20006

(202) 828-2887

jellis@mcguirewoods.com