# Respondents Brief — Gray v. Maryland

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0095%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 185

## Text

Supreme Court, US.
a, FILED

SEP 30 1997

Supreme Court of the United States
OCTOBER TERM, 1996

KEVIN D. GRAY,
Petitioner,
Vv.

STATE OF MARYLAND,
Respondent.

ON WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF MARYLAND

BRIEF FOR RESPONDENT

J. JOSEPH CURRAN, JR.
Attorney General of Maryland

‘ 200 Saint Paul Place

Baltimore, 21202
(410) S16-6425

Counsel for Respondent

a
——— - --—--- a

EST AVAILABLE COPY.

7
-
8 een we we

QUESTION PRESENTED

Is the Confrontation Clause of the Sixth Amendment
complied with when a nontestifying codefendant's
confession, redacted to exclude the defendant's name by
substituting the words "deleted" and "deletion," is
introduced at a joint trial accompanied by an instruction to
the jury not to consider the confession against the
defendant?

i
PARTIES TO THE PROCEEDING

The caption contains the names of all the parties below.

ec re I a

om,

TABLE OF CONTENTS

QUESTION PRESENTED ....................
PARTIES TO THE PROCEEDING .............
EEE SE
STATEMENT OF JURISDICTION .............
CONSTITUTIONAL PROVISION INVOLVED ...
STATEMENT OF THECASE .................
SUMMARY OF ARGUMENT .................
IEE SOG. re Ss were ween cn ceWe ¥ét

THE CONFRONTATION CLAUSE OF THE
SIXTH AMENDMENT IS COMPLIED WITH
WHEN A NONTESTIFYING CODEFENDANT'S
CONFESSION, REDACTED TO EXCLUDE THE
DEFENDANT'S NAME BY SUBSTITUTING THE
WORDS "DELETED" AND “DELETION,” IS
INTRODUCED AT A_ JOINT TRIAL
ACCOMPANIED BY AN INSTRUCTION TO THE
JURY NOT TO CONSIDER THE CONFESSION
AGAINST THE DEFENDANT...............

A. Bruton and Richardson Provide the Framework
for Determining Whether the Admission of a
Confession at a Joint Trial Incriminates the
Nonconfessing Defendant in Violation of
the Confrontation Clause of the Sixth

D. The Trial Court's Cautionary Instruction to the
Jury Not to Consider Bell's Confession Against
Gray Ensured that the Jury Would Properly
Limit Its Consideration of that Evidence. . . . . 22

E. Even Under a Contextual Implication Analysis,
It Was Not Overwhelmingly Probable that the
Jury Would be Unable to Follow a Limiting
Instruction Not to Consider Bell's Statement
Against Gray .......--------eee creer 27

oo oP) rrr rrr 31

a

ee ee

v

TABLE OF AUTHORITIES

Cases:

Beam v. Paskett, 3 F.3d 1301 (9th Cir. 1993),

cert. denied, 511 U.S. 1060(1994)............. 15
Beech Aircraft Corp. v. Rainey,

488 U.S. 153 (1988)
Bourjaily v. United States, 483 U.S. 171 (1987) .... 21
Bruton v. United States, 391 U.S. 123

GED: oc tihdeeld died tide ve. Xuan es <o. 9, passim
California v. Green, 399 U.S. 149 (1970) ......... 21
Chambers v. Mississippi, 410 U.S. 284 (1973) ..... 21

Commonwealth v. Rawls, 419 A.2d 109
(Pa. Super. 1980), appeal dismissed,

FS 29
Donnelly v. DeChristoforo, 416 U.S. 637 (1974) ...25
Dutton v. Evans, 400 U.S. 74 (1970) ............. 21
Ewish v. State, 871 P.2d 306 (Nev. 1994) ......... 16
Gacy v. Welborn, 994 F.2d 305 (7th Cir.),

cert. denied, 510 U.S. 899 (1993).............. 24
Gray v. Maryland, 107 Md. App. 311,

OF a Ee eee ere l
Harris v. New York, 401 U.S. 222 (1971) ...... 17, 23

Harris v. State, 462 $.E.2d 425 (Ga. App. 1995)... . 29
Huddleston v. United States, 485 U.S. 681 (1988) . . . 23

James v. Illinois, 493 U.S. 307 (1990). ........... 21
Marshall v. Lonberger, 459 U.S. 422 (1983)... .... 20
Maryland v. Craig, 497 U.S. 836 (1990) .......... 20
Maryland v. Gray, 344 Md. 417,

ES l

Michigan v. Tucker, 417 U.S. 433 (1974)

Page

Miranda v. Arizona, 384 U.S. 436 (1966) ......... 17

Moran v. Burbine, 475 U.S 412 (1986) ........... 17

Oregon v. Hass, 420 U.S. 714(1975) ............ 17

People v. Fletcher, 917 P.2d 187 (Cal. 1996) ...... 29
People v. Rainge, 445 N.E.2d 535 (Ill. App. 1983),

cert. denied, 467 U.S. 1219 (1984)............. 16

People v. Ricardo B., 535 N.E.2d 1336 (N.Y. 1989) . 16
Richardson v. Marsh, 481 U.S. 200 (1987) .. 9, passim

Romano v. Oklahoma, 512 U.S. 1 (1994) ......... 23
Scarborough v. State, 437 A.2d 672 (Md. App.

1981), cert. denied, 292 Md. 639 (1982) ........ 16
State v. Corsi, 430 A.2d 210 (N.J. 1981)... ....... 16
State v. Watson, 397 So. 2d 1337 (La.), cert. -

denied, 454 U.S. 903 (1981).................. 16
United States v. Briscoe, 896 F.2d 1476 (7th Cir.),

cert. denied, 498 U.S. 863 (1990).............. 29
United States v. Donahue, 948 F.2d 438 (8th Cir.

1991), cert. denied, 503 U.S. 976 (1992) ........ 28
United States v. Havens, 446 U.S. 620 (1980) ...... 21
United States v. Lane, 474 U.S. 438 (1986) ........ 15
United States v. Nixon, 418 U.S. 683 (1974) ....... 20
United States v. Nobles, 422 U.S. 225 (1975) ...... 20
United States v. Sidman, 470 F.2d 1158 (9th Cir.

1972), cert. denied, 409 U.S. 1127 (1973) ....... 16

United States v. Washington, 431 U.S. 181 (1977) . . 17
United States v. Washington, 952 F.2d 1402 (D.C.

Cir. 1991), cert. denied, 503 U.S. 1009 (1992)... . 28
Williamson v. United States, $12 U.S. 594 (1994)... 3
Yee v. City of Escondido, 503 U.S. 519 (1992) ..... 25
Zafiro v. United States, 506 U.S. $34 (1993) ....... 15

vii
Page

Constitutional Provision:

a el, S08 eA ed eed 17

US. Covast. amend. VI.................. 1, passim

Statute:

ae ee ee eee l

Rule:

Federal Rule of Evidence 106 .................. 20

OPINIONS BELOW

The opinion of the Court of Appeals of Maryland
reversing the judgment of the Court of Special Appeals of
Maryland is reported, Maryland v. Gray, 344 Md. 417,
687 A.2d 660 (1997), and is reproduced in the joint
appendix. (J.A. 88-108).

The opinion of the Court of Special Appeals of
Maryland reversing the judgment of the trial court is
reported, Gray v. Maryland, 107 Md. App. 311, 667 A.2d
983 (1995), and is reproduced in the joint appendix. (J.A.
69-87).

The unreported opinion of the Circuit Court for
Baltimore City, Maryland, denying petitioner's motion for
severance is reproduced in the joint appendix. (J.A. 7-9).

STATEMENT OF JURISDICTION

The opinion of the Court of Appeals of Maryland
reversing the judgment of the Court of Special Appeals of
Maryland and affirming petitioner Gray's conviction was
filed on January 15, 1997. The petition for writ of
certiorari was filed in this Court on April 15, 1997, and
granted on June 16, 1997.

Jurisdiction of this Court is invoked pursuant to 28
U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION INVOLVED
United States Constitution, Amendment VI provides:

In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an

2

impartial jury of the State and district wherein the
crime shall have been committed, which district
shall have been previously ascertained by law,
and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses
against him; to have compulsory process for
obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.

STATEMENT OF THE CASE

Six young men beat Stacey Williams to death on
November 10, 1993 in Baltimore, Maryland. Petitioner
Kevin Gray, Anthony Bell, Jacquin Vanlandingham
(known as "Tank"), and several other unidentified
individuals chased the victim down the street immediately
before the beating. (Tr. 6/21/94, at 91). Tank hit the
victim in the mouth and then picked him up and dropped
him on his head. (/d. at 112-13, 120-22). Gray, too, lifted
the victim up and dropped him head-first onto the ground.
(Id. at 113-14, 120-22). After dropping the victim on his
head three times, the young men "stomped" and kicked the
victim repeatedly in the neck and head. (/d. at 114). After
the beating, Bell and Tank grabbed the victim by his neck
and dragged him to his girlfriend's house. (/d. at 122).

Several hours after the beating, the victim went into
seizures and was transported to the hospital. (/d. at 123-
24, 229). He died the next day of brain trauma and
injuries caused by being struck in the head and by his
head's striking a hard surface, such as cement or asphalt.
(Jd. at 229).

Bell gave a written statement to the police implicating
himself, Gray, Tank, and a "few other guys” in the victim's

a eee ee

3

death. (J.A. 10-12, 57-60). Other evidence at trial also
showed that as many as six persons were involved in the
crime. (Tr. 6/21/94, at 114). Gray gave an oral statement
nd the “nr oo he denied his involvement in the
ating clai to have been speaking on a
telephone when the beating occurred. (Tr. 6/22/94, at 38),
Gray and Bell were scheduled to be tried jointly.’
Before trial, Gray's attorney moved to exclude Bell's
statement from evidence. (J.A. 3).? When the trial court
suggested redacting the confession to eliminate the names
of the persons identified by Bell, counsel for Gray argued
that because the statement showed that the beating was a
group activity, the jury could nonetheless infer that Gray
was one of the persons named by Bell. (J.A. 3). Gray
also moved to have his case severed from Bell's, claiming
that Bell's statement could only be interpreted by the jury
as referring to Gray as one of the participants in the crime.
(J.A. 4). Ifthe cases were tried together, Gray argued, he
would be denied his right of confrontation because he
would be foreclosed from cross-examining Bell about the
statement. (J.A. 4).
The trial judge denied the severance motion, saying:
All nght. It seems to me in that light, that there
is not a difficulty here with a statement which

' Tank was fatally shot two days after the incident. (Tr.
6/22/94, at 147-48).

| ? The prosecutor made no attempt at trial to introduce
Bell's statement against Gray. Accordingly, any issue relating
to the use of Bell's confession as substantive evidence against
Gray, see Williamson v. United States, 512 U.S. 594 (1994), is
not before the Court.

4

involves two people where we redact the name of

the defendant who is making the motion, that

there's going to be this compelling implication to

the jury that the name that's been redacted or left

out must be the name of the co-defendant [Gray].

To the contrary, I think that where you've got
group activity and the evidence here is,
apparently, going to be that there were at least
five, and maybe as many as six men involved in
this assault on the victim, to redact this statement,
it seems to me, will not unduly prejudice Mr.
Gray.

It seems to me that this statement can be
sanitized in about three different spots so as to
remove the names of Tank and Mr. Gray and the
jury will not be left with the unavoidable
inference or implication that the person Mr. Bell
is referring to in the statement is Mr. Gray.

(J.A. 7-8).

When defense counsel expressed concern that the jury
would have only “one other person to choose from
because there are not five or six people on trial,” the trial
judge stated that he would instruct the jury not to consider
that the other persons alleged in the statement to have been
involved in the crime were not on trial. (J.A. 8). The
court also agreed to instruct the jury not to speculate why
the other individuals were not on trial and not to consider
Bell's statement as evidence against Gray. (J.A. 8-9).

At the joint trial, the prosecution admitted a redacted
version of Bell's statement through Detective Homer
Pennington, who had interrogated Bell. Before the
redacted statement was read into evidence, the judge
instructed the jury as follows:

5

Ladies and gentlemen of the jury, you're about to
hear evidence concerning the statement provided
by Mr. Bell when he was interviewed by the
detective. You should understand, and I will
remind you later, that this evidence concerning
the statement provided by Mr. Bell is to be
considered by you as evidence against Mr. Bell
only and in no way is Mr. Bell's statement
provided to the detective about which he's about
to testify to be considered by you as evidence
against Mr. Gray. It is evidence against Mr. Bell
only, and as I will instruct you later, you will
consider the evidence against each of the
defendants individually and reach a separate
verdict as to each defendant.

(J.A. 10).
Bell's statement was then read aloud to the jury:

Question, what can you tell me about the
beating of Stacey Williams that occurred on 10,
November, 1993?

Answer, an argument broke out between
deletion and Stacey in the 500 block of Louden
Avenue. Stacey got smacked and then ran onto
Wildwood Parkway. Me, deleted, and a few
other guys ran after Stacey. We caught up to him
on Wildwood Parkway. We beat Stacey up.
After we beat Stacey up, we walked him back to
Louden Avenue. I then walked over and used the
phone, Stacey and the others walked down
Louden.

Question, when Stacey was beaten on
Wildwood Parkway, how was he beaten?

Answer, hit, kicked.

6

Question, who hit and kicked Stacey?
Answer, I hit Stacey. He was kicked, but I
don't know who kicked him.
Question, who was in the group that beat
Stacey?
Answer, me, deleted, deleted, and a few other
s.
ooo do you know the other guy's name?
Answer, deleted, deleted, and me. I don't .
remember who was out there.
Question, did anyone pick Stacey up and drop
him to the ground?
Answer, no, when I was there.
Question, what was the argument over between .
Stacey and deleted?
Answer, some money that Stacey owed
deleted. a
Question, how many guys were hitting on
Stacey?
Answer, about six guys.
Question, do you have a black jacket with Park
Heights written on the back?
Answer, yea.
Question, who else has these jackets?
Answer, deletion.
Question, after reading this statement, would
you sign it?
Answer, yes. He then signed it.
(J.A. 11-12) (emphasis added).’ The copy of the statement

3 There is a minor discrepancy, immaterial to the issue
before this Court, between the transcription of Bell's statement

7

admitted into evidence had blank white spaces where the
names once appeared. (J.A. 65-68).

Gray testified in his own defense and claimed to have
been speaking to his girlfriend on a nearby pay telephone
at the time of the beating. (Tr. 6/23/94, at 5-6, 15). Gray
called two other witnesses to support his claim that he was
not involved in the beating. (Tr. 6/22/94, at 176-77, 189-
91). Bell did not testify at the joint trial.

In its instructions at the close of all the evidence, the
trial court reminded the jury:

You must consider the evidence as it relates to
each defendant separately and you must consider
separately each offense charged against each
defendant. A separate verdict must be returned
for each charge against each defendant.

In this connection some of the evidence was
admitted only against one of the defendants and
not against the other defendant. You must
consider such evidence only as it relates to the
defendant against whom it was admitted. Each
defendant is entitled to have the case decided
separately on the evidence that applies to that
defendant.

(J.A. 14). The judge also admonished the jury: "[YJou
should not concern yourself with the fact that others who
may be implicated in the criminal offenses are not before

in the trial transcript and the transcription contained in the joint
appendix. The trial transcript reads: "Question, do you know
the other guy's name?" (J.A. 11). That same sentence in the
transcribed statement contained in the joint appendix reads:
"(Q) Do you have the other guys names." (J.A. 62).

you for trial." (J.A. 18). .

The jury found Gray and Bell guilty of involuntary
manslaughter. (Tr. 6/24/94, at 2-3). Gray received a
sentence of ten years, three of which were suspended in
favor of five years of supervised probation effective upon
his release. (Tr. 8/1/94, at 24).

Gray's conviction was reversed by the Court of Special
Appeals of Maryiand. (J.A. 87). The state intermediate
appellate court held tha: there was a substantial risk that
the jury would consider the confession as evidence of
Gray's guilt because the words "deleted" and "deletion"
did not render the statement nonincriminating as to Gray.
(J.A. 83-84). Adopting a "contextual linkage" analysis,
the court concluded that Gray's role in the crime was
"clearly demonstrated" by his codefendant's confession
and, therefore, Gray's constitutional right of confrontation
was violated by its admission into evidence. (J.A. 84).

The Court of Appeals of Maryland reversed the
judgment of the Court of Special Appeals, rejecting the
contextual implication approach employed by that court.
(J.A. 105, 107). Maryland's high court adopted instead a
version of the “facial implication" doctrine, which
provides that a defendant's right of confrontation is
satisfied when a codefendant's confession is redacted so
that it does not "facially, or by compelling and inevitable
inference, inculpate" the defendant. (J.A. 105). The
Court of Appeals held that, as redacted, Bell's confession
did not facially implicate Gray. (J.A. 106). Thus,
admission of the confession into evidence, coupled with
the limiting instruction, did not offend Gray's nght of
confrontation. (J.A. 106).

9

SUMMARY OF ARGUMENT

In Richardson v. Marsh, 481 U.S. 200 (1987), this
Court resolved the question whether redaction of a
codefendant's confession to eliminate any reference to the
existence of the nonconfessing defendant satisfies the
latter's nght of confrontation when the jury is instructed to
consider the confession only against the confessor. In
holding that the Confrontation Clause was satisfied. the
Court rejected a "contextual linkage" analysis in favor of
a "facial implication" approach. This approach focuses
solely on the redacted confession and does not consider
any links to the defendant supplied by other evidence in
the case. Undergirding the Court's decision in that case
were important policy considerations, including the
preference for joint trials, the desirability of verdict
consistency, and the practical difficulties attendant to use
of a contextual linkage approach.

Although the Court left open in Richardson the precise
question here, i.e., whether the Confrontation Clause is
satisfied by substituting neutral references for the
nonconfessing defendant's name, the logic of Richardson
compels an affirmative answer to that question. The
identical policy considerations addressed in Richardson
are at issue here. More importantly, redaction by use of
neutral references minimizes the possibility that the jurors
will ignore a proper limiting instruction. See Richardson,
481 U. S. at 206. Certainly, "there does not exist the
overwhelming probability of their inability to do so that is
the foundation of Bruton's"! exception to the general rule."

* Bruton v. United States, 391 U.S. 123 (1968)

10

Richardson, 481 U.S. at 208. Indeed, whenever a
confession is redacted to eliminate the defendant's name or
its functional equivalent, Bruton and Richardson are
satisfied.

In this case, the codefendant's confession was redacted
to eliminate Gray's name, the only identifying reference to
him. As redacted, the codefendant's confession did not
facially incriminate Gray, even though the confession on
its face indicated that others, b_ sides the confessor, were
involved in the crime. Under the analysis set forth in
Richardson, there was not an overwhelming probability
that the jury would be incapable of following an
instruction to consider the confession only against the
cautionary instruction, safeguarded Gray's rights under the
Confrontation Clause.

Even if the codefendant's confession were viewed in the
context of other evidence adduced at tral, Its admission
against Bell did not violate the Confrontation Clause.
Given the manner of redaction, the number of persons
involved in the crime, and the conflicts in the testimony,
it was not overwhelmingly probable that the jury would be
incapable of following the trial court's instructions.

1]

ARGUMENT

THE CONFRONTATION CLAUSE OF THE SIXTH
AMENDMENT IS COMPLIED WITH WHEN A
NONTESTIFYING CODEFENDANT'S
CONFESSION, REDACTED TO EXCLUDE THE
DEFENDANT'S NAME BY SUBSTITUTING THE
WORDS "DELETED" AND “DELETION,” IS
INTRODUCED AT A JOINT TRIAL
ACCOMPANIED BY AN INSTRUCTION TO THE
JURY NOT TO CONSIDER THE CONFESSION
AGAINST THE DEFENDANT.

A. Bruton and Richardson Provide the Framework for
Determining Whether the Admission of a
Confession at a Joint Trial Incriminates the
Nonconfessing Defendant in Violation of the
Confrontation Clause of the Sixth Amendment.

In Bruton v. United States, 391 U.S. 123, 135-37
(1968), this Court held that a defendant is deprived of his
rights under the Confrontation Clause of the Sixth
Amendment when the facially incriminating confession of
a nontestifying codefendant is introduced at their joint
trial. Underlying the Court's holding was the concern that
the tnal court's cautionary instruction to the jury could not
overcome the substantial risk that the jury would consider
the incriminating confession against the confessor’s
codefendant. /d.

Nineteen years later, in Richardson v. Marsh, 481 U.S.
200 (1987), the Court clarified that Bruton was limited to
situations in which facially incriminating statements made

12

by codefendants are used at trial. The Court recognized
that "the [Bruton] calculus changes when confessions that
do not name the defendant are at issue." Richardson, 481
U.S. at 211. Because the confession in Richardson was
not “incriminating on its face," as had been the confession
in Bruton, but became incriminating only when tied to
other evidence adduced at trial, the court's limiting
instructions were likely to prevent the jury from inferring
the guilt of the defendant from the codefendant's
confession. Richardson, 481 U.S. at 208.

Read together, Bruton and Richardson impart four
principles that guide the analysis of the issue presented by
this case. First, the Confrontation Clause is violated by
the admission of a nontestifying codefendant's confession
that expressly incriminates the defendant by name or other
identifying reference, notwithstanding a limiting
instruction that the confession be used only against the
defendant who made it. Richardson, 481 U.S. at 208, 211;
Bruton, 391 U.S. at 135-36. Second, Bruton established
a “narrow exception” to the "almost invariable assumption
of the law” that juries can be trusted to follow the mal
court's instructions; that assumption applies to the
admission of codefendant confessions that are redacted to
eliminate references to other defendants. Richardson, 481
U.S. at 206-08. Third, the Confrontation Clause is not
violated by the admission of a nontestifying codefendant's
confession is redacted so that it does not facially
incriminate the nonconfessing defendant. Jd. at 211.
Fourth, the question whether a nontestifying codefendant's
confession implicates the defendant is to be determined
from the text of the confession alone, not by reference to
other evidence in the case (the "contextual implication" or

13

“evidentiary linkage" approach). /d. at 208-09. The first
two principles are not in dispute; the latter two principles
lie at the heart of this case.

B. The Compelling Policy Considerations Supporting
the Court's Ruling in Richardson Apply Equally to
Redactions that Substitute Blanks or Neutral
References for the Defendant's Name.

This Court in Richardson rejected the contextual
implication approach to determining whether a confession,
redacted to eliminate all references to the nonconfessing
defendant's existence, incriminates the nonconfessing
defendant in violation of Bruton. The Court instead
adopted the facial implication doctrine, which provides
that only those confessions that on their face directly
inculpate codefendants raise Confrontation Clause
concerns. Richardson, 481 U.S. at 208. Where the
incrimination is only inferential, "the judge's instruction
may well be successful in dissuading the jury from
entering onto the path of inference in the first place, so
that there is no incrimination to forget." Jd. In other
words, where the defendant's culpability is established
only by viewing the codefendant’s confession in
conjunction with other evidence in the case, "there does
not exist the overwhelming probability" of the jury's
inability to obey the court's instructions “that is the
foundation of Bruton's exception to the general rule." /d.
The Court thus made plain in Richardson that the analysis
focuses exclusively on the confession, not its contextual

The Court's rejection in Richardson of the contextual
implication analysis in favor of the facial implication

14

approach was driven, in part, by compelling policy
considerations. Those considerations apply equally to
redactions that replace the nonconfessing defendant's
name, or the functional equivalent thereof, with a blank or
neutral reference. First, whereas facial incrimination is
curable by redaction that eliminates references to
coparticipants, there is no effective way to redact a
confession that is incriminating to the nonconfessing
codefendant only when tied to other evidence.
Richardson, 481 U.S. at 209. With Bruton limited to
facially incriminating confessions, redaction is a simple
way to comply with its dictates—a suggestion made by the
Bruton opinion itself. Richardson, 481 U.S. at 208-09,
citing Bruton, 391 U.S. at 134 n.10.

Second, if a contextual implication approach were used,
then a trial judge who is asked to rule on motions to
exclude the confession or to sever the trials would be
burdened with the task of considering not only the
confession itself but also other evidence, which typically
will not yet have been presented. Richardson, 481 U.S. at
209. It would often be impossible for a trial judge to
predict the admissibility of a confession in advance of the
trial. Jd. To remedy the situation, the trial judge would be
faced with the choice of having to (1) assess at the end of
the trial whether the confession, viewed in conjunction
with the other evidence, incriminated the defenda..: so as
to entitle him to a new trial; or (2) conduct a pretrial
hearing at which both the prosecu..ion and the defense
would be required to reveal the evidence they planned to
introduce. Jd. As the Court observed in Richardson, both
approaches open the door to manipulation by the defense,
numerous mistrials and appeals, and overall judicial
inefficiency. Jd.

15

Third, prohibiting the use at joint trials of confessions
that are not facially incriminating would result in fewer
joint trials, thereby exacting a significant toll on the trial's
participants and society as a whole. Separate trials of
codefendants necessitate that the prosecutor repeatedly
trauma, and, sometimes, danger to victims and witnesses
is not insignificant. See id. at 210. And, the last-tried
defendant is "randomly favored" by “knowing the
prosecution's case beforehand." Jd. This Court has
expressed its preference for joint trials because they play
a "vital role in the criminal justice system . . . by enabling
a more accurate assessment of relative culpability." Jd. at
209-10. Moreover, joint trials "promote efficiency and
‘serve the interests of justice by avoiding the scandal and
inequity of inconsistent verdicts." Zafiro v. United States,
506 U.S. 534, 537 (1993), quoting Richardson, 481 U.S.
at 210; see also United States v. Lane, 474 U.S. 438, 449
(1986) (joint trials “conserve state funds, diminish
inconvemence to witnesses and public authorities, and
avoid delays in bringing those accused of crime to trial"),
quoting Bruton, 391 U.S. at 134.

The alternative of using multiple juries, suggested by
Gray's amicus, (NACDL Amicus Br. 15), could likewise
lead to inconsistent verdicts, and has other drawbacks, as
well.* The procedure can impose an inordinate burden on

* Numerous lower courts have disapproved of using

multiple juries in a single trial. See, e.g., Beam v. Paskett, 3
F.3d 1301, 1304 (9th Cir. 1993) (multiple juries increase
complexity and likelihood of error, and impair each defendant's
ability to present a defense), cert. denied, 511 U.S. 1060

16

the trial court in coordinating the two juries, maintaining
their segregation, and ensuring their equal treatment. The
technique may entail separate jury venires, instructions to
the juries not to communicate, courtrooms large enough to
accommodate multiple juries, excessive moving of the
juries in and out of the courtroom, separate sets of jury
instructions, duplicate exhibits, and staggered verdicts.
And, inasmuch as certain procedures, such as opening
statements, closing arguments, and cross-examination of

(1994); United States v. Sidman, 470 F.2d 1158, 1170 (9th Cir.
1972) (expressing disapproval of use of two-jury trials), cert.
denied, 409 U.S. 1127 (1973); People v. Rainge, 445 N.E.2d
535, 551 (Ill. App. 1983) (use of dual juries should not be
encouraged because of problems inherent in keeping track of
"who testified before which jury, and even which jury is hearing
which testimony"), cert. denied, 467 U.S. 1219 (1984), State
v. Watson, 397 So. 2d 1337, 1342 (La.) (discouraging use of
dual juries absent criminal procedure guidelines), cert. denied,
454 U.S. 903 (1981); Scarborough v. State, 437 A.2d 672, 674-
76 (Md. App. 1981) (condemning use of dual juries because "all
the risks inherent in the traditional jury system become two-
fold"), cert. denied, 292 Md. 639 (1982); Ewish v. State, 871
P.2d 306, 316 (Nev. 1994) (instructing lower courts to refrain
from dual jury trials absent guidelines or statutes because such
trials are administratively cumbersome and “a breeding ground
for curious results, tainied justice, and issues for appeal"), State
v. Corsi, 430 A.2d 210, 213 (N.J. 1981) (recommending against
using dual jury procedure, noting it is exception rather than
rule); People v. Ricardo B., 535 N.E.2d 1336, 1339 (N.Y.
1989) (holding that multiple juries are exception, not rule, and
“are to be used sparingly and then only after a full consideration
of the impact the procedure will have on the defendants’ due
process rights").

17

particular witnesses would have to be repeated for the
benefit of each jury, the defense attorney going last will
benefit from knowing what to expect.

Finally, to forgo the use of codefendant confessions
altogether in such situations is too dear a price to pay in
view of “society's compelling interest in finding,
convicting, and punishing those who violate the law."
Richardson, 481 U.S. at 210, quoting Moran v. Burbine,
475 U.S. 412, 426 (1986). "[A]dmissions of guilt by
wrongdoers, if not coerced, are inherently desirable."
United States v. Washington, 431 U.S. 181, 187 (1977).
Indeed, excluding constitutionally valid confessions from
the purview of the jury distorts the fact-finding and truth-
seeking processes at the heart of the judicial system. "We
are, after all, always engaged in a search for truth in a
criminal case so long as the search is surrounded with the
safeguards provided by our Constitution." Oregon v.
Hass, 420 U.S. 714, 722 (1975) (evidence violative of
Miranda v. Arizona, 384 U.S. 436 (1966), is inadmissible
in prosecution's case-in-chief but admissible for
impeachment purposes; impeaching material would
provide valuable aid to jury in assessing defendant's
credibility); see also Moran v. Burbine, 475 U.S at 427
(expanding Miranda rules to require police to inform
suspect of status of legal representation is unnecessary for
protections of Fifth Amendment privilege and "would
come at a substantial cost to society's legitimate and
substantial interest in securing admissions of guilt"):
Michigan v. Tucker, 417 U.S. 433, 450 (1974) (system of
justice has strong interest in "making available to the trier
of fact all concededly relevant and trustworthy evidence
which either party seeks to adduce"); Harris v. New York,
401 U.S. 222, 226 (1971) ("The shield provided by

18

Miranda cannot be perverted into a license to use perjury
by way of a defense, free from the risk of confrontation
with prior inconsistent utterances.").

The compelling reasons set forth in Richardson for
permitting redaction notwithstanding possible contextual
linkage were critical to the result in that case. Those
considerations apply equally to this case and dictate the
same conclusion.

C. A Codefendant's Confession Redacted by
Substituting Blanks or Neutral References for the
Defendant's Name Does Not Facially Incriminate
the Defendant.

Although the Court in Richardson reserved ruling on the
admissibility of confessions in which the defendant's name
has been replaced by a symbol or neutral pronoun, 481
U.S. at 211 n.5, the reasoning of that case logically
extends to confessions redacted in that manner. So long as
a proper limiting instruction is given, the Bruton-
Richardson doctrine plainly permits the use at trial of a
confession redacted to include only neutral references to
codefendants. A statement in which the name of the
defendant has been deleted or replaced with some
nonspecific term does not “expressly” or “facially”
incriminate the defendant within the contemplation of the
doctrine.

Bell's redacted statement did not facially incriminate
Gray. The statement did not name Gray as a participant in
the crime, nor did it contain references to the functional
equivalent of his name, i.e., any information that readily
and unmistakably identified him as one of the persons
referred to as "deleted" or “deletion.” The copy of the

19

statement admitted into evidence had blank white spaces
where the names once appeared. (J.A. 65-68). The
statement merely informed the jury that others, besides the
declarant, were at the scene and involved in the incident.

Gray and his amicus nevertheless complain that Bell's
confession should have been redacted to eliminate all
references to his existence, as was done in Richardson.
(Pet. Br. 12-14; NACDL-Amicus Br. 12-14). Gray,
however, never suggested a Richardson redaction and,
indeed, voiced no objection to the method of redaction
directed by the tal court, despite ample opportunity to do
so. (Tr. 6/17/94, at 52-56; Tr. 6/20/94, at 33-35; Tr.
6/21/94, at 252; Tr. 6/22/94, at 4-5).’

® Gray and his amicus also take issue, for the first time
in this Court, with the fact that the names of Gray and Tank
were concealed by white-out, because that method of redaction
signaled to the jury that names had been omitted. (Pet. Br. 12-
14, NACDL Amicus Br. 11). This charge is groundless. A
jury's awareness that names have been redacted from a
confession is not tantamount to a conclusion on its part as to
whose names have been omitted.

” Notwithstanding the trial court's suggestion that the
prosecutor and defense counsel confer on the best way to redact
the statement, (Tr. 6/17/94, at 52), defense counsel hewed to
her “all-or-nothing" position that severance was required or, in
the alternative, that the entire statement should be excluded,
(Tr. 6/17/94, at 4-5, 45-46, 54-55). When the trial court asked
defense counsel whether she agreed to the proposed redaction,
counsel, knowing full well that the redaction would consist of
whiting out the names of Gray and Tank, replied, "As a lesser
evil I think it needs to be redacted." (Tr. 6/20/94, at 33).

20

In any event, that this Court in Richardson approved
one particular method of redaction does not mean that all
other methods of redaction are prohibited. The relevant
inquiry is not whether one method is more favorable to the
defendant than another, but, rather, whether the method
employed satisfies constitutional dictates. See Marshall v.
Lonberger, 459 U.S. 422, 438 n.6 (1983). In an analogous
context, this Court has ruled that there are no "categorical
evidentiary prerequisites” to satisfying the Confrontation
Clause. Maryland v. Craig, 497 U.S. 836, 860 (1990).
Thus, contrary to the suggestion of Gray and his amicus,
the Confrontation Clause does not mandate that the radical
redaction used in Richardson be performed in every case.

Indeed, the redaction approved in Richardson may not
be appropriate in all cases. "[T]he deletion must not be
such that it will distort the statements to the substantial
prejudice of either the declarant or the Government."
Bruton, 391 U.S. at 143 (White, J., dissenting). Redaction
that requires substantial rewriting of the document may be
at odds with the common law doctrine of completeness
embodied in Federal Rule of Evidence 106. See Beech
Aircraft Corp. v. Rainey, 488 U.S. 153, 172 (1988) (where
part of document is admitted, rule of completeness
requires admission of other portions of document that are
necessary to avoid confusion or distortion), United States
v. Nobles, 422 U.S. 225, 231 (1975) ("The ends of
criminal justice would be defeated if judgments were to be
founded on a partial or speculative presentation of the

facts."), quoting United States v. Nixon, 418 U.S. 683, 709

1974).

Aesth of the Confrontation Clause is to advance the
integrity of the truth-determining process in criminal tnals
by ensuring that the trier of fact has sufficient information

21

to "find the truth." See Bourjaily v. United States, 483
U.S. 171, 182 (1987); Chambers v. Mississippi, 410 U.S.
284, 295 (1973); Dutton v. Evans, 400 U.S. 74, 89 (1970):
California v. Green, 399 U.S. 149, 161 (1970). "There is
no gainsaying that arriving at the truth is a fundamental
goal of our legal system." James v. Illinois, 493 U.S. 307,
311 (1990), quoting United States v. Havens, 446 U.S.
620, 626 (1980). Redaction that creates confusion and
distortion runs counter to these truth-seeking objectives.
To ensure that evidence is presented to the jury as
completely and accurately as possible, trial courts must be
permitted to exercise their discretion to determine which
method of redaction best achieves that goal, taking into
account such factors as the length of the statement,
whether it was written, audiotaped or videotaped, the ease
with which redaction may be accomplished, and local trial
practices. The weight a jury affords a confession may
well depend on its form and wording, and the process of
redaction should not distort the jury's ability properly to
evaluate it. So long as the redaction produces a statement
that does not facially incriminate the nonconfessing
defendant, it comports with Sixth Amendment dictates.
Maryland, like amicus for Gray, believes this Court can
draw a "principled and practical" line, (NACDL Amicus
Br. 3), between confessions that satisfy the Bruton-
Richardson doctrine and those that do not. Maryland,
however, believes that the line should be drawn at a
different place. Under Maryland's proposed rule,
codefendant confessions that do not name or otherwise
identify the defendant in such a way as to be the
functional equivalent of the defendant's name are
admissible at joint trials, so long as the jury is instructed
to consider the statement only against the confessing

22

defendant. This rule is clear, easy to apply, and is
consonant with the goals of the Confrontation Clause.

D. The Trial Court's Cautionary Instruction to the
Jury Not to Consider Bell's Confession Against
Gray Ensured that the Jury Would Properly Limit
Its Consideration of that Evidence.

Removing Gray's name from Bell's confession enabled
the jury to follow the trial court's instruction to consider
Bell's confession solely against Bell. Unlike the situation
in Bruton, where the jurors were confronted with the
defendant's name and then told to "wipe it from their
brains,” see 391 U.S. at 129, Gray's jury was not called
upon to ignore a vital piece of evidence to which its
attention had just been directed. As this Court observed in
Richardson, "the calculus changes when confessions that
do not name the defendant are at issue." 481 U.S. at 211,
"Specific testimony that 'the defendant helped me commit
the crime’ is more vivid than inferential incrimination, and
hence more difficult to thrust out of mind." Jd. at 208.
When a confession is redacted to eliminate the defendant's
inferential, "the judge's instruction may well be successful
in dissuading the jury from entering onto the path of
inference in the first place, so that there is no
incrimination to f " Id.

sai thacees ee Sententat Geo ny, tote ein Oe
statement was admitted into evidence, (J.A. 10), and at the
close of all the evidence, (J.A. 14, 18), not to consider
Bell's confession as evidence against Gray. The court also
admonished the jury generally to consicer the evidence
only as it related to the defendant against whom it was

23

admitted. (J.A. 14). These instructions, coupled with the
redaction that omitted Gray's name from Bell's confession,
ensured that the confession would be considered for the
limited purpose for which it was admitted.

The jury's task in this regard was not particularly
difficult to perform. In Richardson, this Court catalogued
several analogous, and even more difficult, situations in
which juries routinely are called upon and expected to
follow instructions to consider evidence for one purpose
but not another, or against one defendant but not a
codefendant. See 481 U.S. at 206-07 (collecting cases).
Since Richardson, this Court has continued to adhere to
the presumption that juries can and do follow limiting
instructions. See, e.g., Romano v. Oklahoma, 512 U.S. 1,
13 (1994) (admission of evidence in capital case regarding
defendant's prior death sentence did not deprive defendant
of fair sentencing proceeding because trial court's
instruction explicitly precluded jurors’ consideration of
prior sentence as agwravating factor); Huddleston v. United
States, 485 U.S. 68 |, 691-92 (1988) (concern that other
crimes evidence posed danger of prejudice mitigated by
trial court's instruction to jury to consider similar acts
evidence only for limited purpose for which it was
admitted). Surely a jury that can consider a defendant's
\clor convictions only as they relate to his credibility can
follow an instruction not to link a defendant to evidence
that, on its face, does not even mention him.

This Court has held that a defendant's Miranda-violative
confession can be used for impeachment of the defendant's
credibility, but not as substantive evidence. Harris v. New
York, 401 U.S. at 225-26. Implicit in this holding is the
assumption that juries can follow an instruction to ignore
a defendant's confession in deciding his guilt or innocence.

24

If juries can be counted on to accomplish that feat, they
certainly can follow the kind of instruction that was given
in Gray's case."

Gray and his amicus have no quarrel with the limiting
instruction given in this case. They do argue, however,
that the instruction was undermined by the prosecutor's
rebuttal closing a:ument, the order in which she posed
her questions to Detective Pennington, and the fact that

she adduced evidence that Gray owned a "Park Heights"
jacket. They claim that the prosecutor "linked Petitioner
to codefendant Bell's redacted confession," (Pet. Br. 15
n.17), by “explicitly connecting Bell's statement to Gray's
arrest," (NACDL Amicus Br. 12-13). Amicus argues that

* Amicus for Gray cites two empirical studies that have
of following trial courts’ instructions. (NACDL Amicus Br. 4
n.3). Notwithstanding these and other studies which, over the
years, have stated this as a general proposition, this Court, as
discussed in the text above, consistently has adhered to the
belief that juries can and do follow limiting instructions. Were
this body of social science research to be accepted, the entire
foundation of the jury system would collapse. As this Court
stated in Richardson, the presumption that juries follow
instructions is "rooted less in the absolute certitude that the
presumption is true than in the belief that it represents a
reasonable practical accommodation of the interests of the state
and the defendant in the criminal justice process." 481 U.S. at
211; see also Gacy v. Welborn, 994 F.2d 305, 314 (7th Cir.)
("The jury is a means to resolve disputes, not a waystation by
which the controversy at trial is transported to a higher level of
generality as a social science dispute about juries."), cert.
denied, 510 U.S. 899 (1993).

25

this "prosecutorial manipulation" of the evidence

"guaranteed that the cautionary instruction was
ineffective." (/d.). This contention, made for the first
time in this Court,” is belied by the record.

When read in context, the portion of the prosecutor's
rebuttal closing argument to which Gray refers in no way
pe renee wee any

to testimony of two prosecution witnesses,
Shay Yarberough and Tracey Brumfield, placing Gray at
the scene of the crime. The fact that the prosecutor
pny nah orogens of Bell's redacted confession in
conjunction evidence that Gray was among the
of men iaveived in the beating wes not impernissibie
"linkage"—but was, instead, appropriate closing argument.
See Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974)
(court should not readily infer most damaging meaning
from prosecutor's ambiguous remark, nor conclude that "a
jury, sitting through lengthy exhortation, will draw that
meaning from the plethora of less damaging
interpretations").

Gray's challenge to the propriety of the prosecutor's

* At trial, Gray did not object to either the prosecutor's
comments, (J.A. 50-51), or the direct examination of Detective
Pennington, (Tr. 6/22/94, at 33), and lodged only an untimely
general objection to the prosecutor's eliciting of evidence
concerning the "Park Heights" jackets, (Tr. 6/21/94, at 125,
206). Nor did Gray raise, brief, or argue these points in the
state appellate courts or in his petition for writ of certiorari in
this Court. Thus, none of these claims is properly before the
Court. See Yee v. City of Escondido, 503 U.S. 519, 535-37
(1992) (issue not raised in or addressed by state courts nor
raised in petition for certiorari not properly before Court).

26

direct examination of Detective Pennington also misses
the mark. Amicus for Gray maintains that the prosecutor
created the impression that information provided to the
police by Bell led directly to Gray's arrest, thereby linking
Gray to the deletions in Bell's confession. (NACDL
Amicus Br. 12-13). On the contrary, the context of the
detective's testimony shows that the sequence of the
questions related chronologically to the phases of the
investigation, not to any nexus between Bell's confession
and Gray's arrest.”

Finally, Gray's amicus takes issue with the fact that the
to a jacket emblazoned with ‘Park Heights,” thereby
ensuring that the jury would connect him with Bell's
confession, which made mention of such jackets.

© Detective Pennington testified that Gray was
developed as a suspect and an arrest warrant was obtained for
him before Bell was ever questioned. The detective testified
that on January 11 and 13, 1994, he interviewed Tracey
Brumfield and Shay Yarberough, who identified Gray, Bell, and
Tank as participants in the beating. (Tr. 6/22/94, at 15-16).
Based on that information, Detective Pennington obtained arrest
warrants for Bell and Gray. (/d. at 16-17). The police arrested
and interrogated Bell the next day but could not locate Gray
until January 19. (/d. at 17, 33). Because Bell was the first
suspect to be interrogated, the prosecutor naturally questioned
Detective Pennington first about Bell's statement. (/d. at 18-
33). The prosecutor then made the transition from Bell's
statement to Gray's statement, which Gray gave to the police
five days later: "All right, now, officer, after [Bell] gave you
that information, you subsequently were able to arrest Mr.
Kevin Gray; is that correct?" (/d. at 33)

OE le ee Oe oe Ne

27

(NACDL Amicus Br. 13). In the first instance, Bell's
reference to the Park Heights jacket was, in and of itself.
wholly innocuous. He stated simply that "deletion" owned
such a jacket. (J.A. 12, 56). Furthermore, that the
prosecutor adduced testimony that Gray himself owned a
was the jacket owner referred to in the confessivun. For all
the jury knew, a number of people had such jackets and
there is no reason to assume they were all present at the
crime scene. Even more to the point, the prosecutor did
not argue to the jury in closing that Gray's Park Heights
jacket linked him to Bell's confession.

Thus, the alleged linkage about which Gray and his
amicus so strenuously complain was nonexistent. Under
their theory that every piece of prosecution evidence
improperly “linked” Gray to Bell's confession, the
prosecutor would be foreclosed from adducing any
evidence tending to establish Gray's involvement in the
beating, lest it be considered to subvert the redaction and
its accompanying jury instruction. Forcing the
prosecution to try its case in such a straightjacket surely
was not an intended outcome of Richardson.

E. Even Under a Contextual Implication Analysis, It
Was Not Overwhelmingly Probable that the Jury
Would be Unable to Follow a Limiting Instruction
Not to Consider Bell's Statement Against Gray.

Even if this Court were to apply a contextual
implication analysis to this case, the judgment below
should be affirmed. As redacted, the confession does not

28

specify the number of named participants in the crime."
But even assuming that the jury inferred from the
confession that Bell had named only two people, all of the
evidence implicated Bell and five others in the commission
of the crime, any two or more of whom could have been
the persons referred to in the statement as "deleted" and
"deletion." Redaction that substitutes pronouns or similar
neutral and nonidentifying terms for the name of a
codefendant accords with the Bruton-Richardson doctrine
if the crime was committed by a number of people, any
one of whom could have been the coparticipant mentioned
in the confession."? Because the evidence indicated that

1! In fact, the redacted confession did not make clear
that Bell named only two other people in his confession. It is
true that a jury bent on disregarding the limiting instruction
might have been able to infer that Bell named at least two
persons, because there are places where the manner of redaction
would have permitted the jury to infer that at least two different
names were given. (J.A. 10-12, 65-68). But there would have
been no way for the jury to know who Bell referred to at
various other points where the words "deleted" and "deletion"
were used, and thus there is no way to tell from the redacted
confession precisely how many people Bell named as having
been involved in the assault.

12 Many lower courts embrace this logic. See, e.g.,
United States v. Washington, 952 F.2d 1402, 1404-05 (D.C.
Cir. 1991) (use of indefinite pronoun or other general term in
place of name of defendant did not create “inevitable association
with" the defendant because terms could just as easily have been
referring to one of two other persons involved in charged
offense), cert. denied, 503 U.S. 1009 (1992); United States v.
Donahue, 948 F.2d 438, 444 (8th Cir. 1991) (references in

29

five individuals besides Bell participated in the crime, the
redacted confession did not automatically compel the
conclusion that Gray was among them.

Moreover, the prosecution's theory at trial was that
Bell's statement to the police was self-serving and,
therefore, untrustworthy inasmuch as he minimized his
own involvement in the crime. (Tr. 6/23/94, at 125-26).
The prosecutor urged the jury to disbelieve those self-

codefendant's confession to “everyone” and "they" did not
expressly implicate defendant and so it was not es Meee
probable that jurors would not be able to follow instructions to
consider statement against declarant only), cert. denied, 503
U.S. 976 (1992); United States v. Briscoe, 896 F.2d 1476, 1502
(7th Cir.) (reference to "we" in codefendant's confession could
Just as easily have referred to one group of defendants as to
another, defendant must be directly implicated "by being
specifically identified [in the statement] or by being the only
other participant in the charged crime"), cert. denied, 498 U.S.
863 (1990), People v. Fletcher, 917 P.2d 187, 195 (Cal. 1996)
(substituting pronouns or other nonidentifying terms for
defendant's name complies with defendant's confrontation right
if crime was committed by number of people); Harris v. State,
462 S.E.2d 425, 427 (Ga. App. 1995) (statement redacted by
replacing defendant's name with "someone" did not directly
implicate defendant, inasmuch as there were six or seven
persons present when crime was committed, any one of whom
could have been the "someone" who committed crime):
Commonwealth v. Rawls, 419 A.2d 109, 112-13 (Pa. Super
1980) (where references to two other defendants were replaced
jane “other cusstned "they," “someone,” and “one of the
Statement was not powerfully incriminating to defendant
because it alone did not serve to connect him with crime)
appeal dismissed, 452 A.2d 1347 (Pa. 1982)

30

serving aspects of Bell's confession and to credit instead
the State's evidence showing Bell's leadership role in the
beating. (/d. at 126-27; Tr. 6/21/94, at 114, 119). For his
part, Gray claimed that he was near the scene at the time
of the crime, but did not participate in its commission. He
and his defense witnesses testified that he was talking with
his girlfriend at a pay telephone while the beating
occurred.

Thus, not only did the jury hear that much of Bell's
confession was not to be trusted, they heard two very
different versions of Gray's complicity in the crime: the
State's, putting Gray at the heart of the affray, and Gray's,
not denying that the crime occurred and that Bell and
others participated in it, but denying that he, Gray, was
one of those persons. The evidence in its entirety, then,
did not impel the jury to disobey the judge's instruction
and insert Gray's name into Bell's confession.

But, even assuming the jury had been inclined to head
down "the inferential path” the instruction was designed to
avoid, and to speculate about the identity of the deleted
persons, it still does not follow that the jury would
necessarily have substituted Gray's name for "deleted."
The actions attributed to the persons whose names were
deleted from the confession were not so distinctive as to
compel the jury to match that conduct with Gray by
resorting to other evidence identifying him with that
conduct. Bell merely alleged in his confession that
"deleted" and "deletion" were among a group of men who
chased, hit, and kicked the victim. (J.A. 11, 55).

Although there may be situations where a contextual
implication approach would yield a contrary result, this is
not one of them. Given the nature of the crime, the
multiple participants, the manner of redaction, and the

Sh aes

se et et Mo

31

presentation of evidence at trial, Gray's right of
confrontation was adequately protected.

CONCLUSION

For the foregoing reasons, the State of Maryland

respectfully requests that the judgment of the Court of
Appeals of Maryland be affirmed.

Respectfully submitted,

J. JOSEPH CURRAN, JR.
Attorney General of Maryland

CARMEN M. SHEPARD
Deputy Attorney General

GARY E. BAIR*

MARY ELLEN BARBERA
RACHEL MARBLESTONE KAMINS
Assistant Attorneys General

Counsel for Respondent

*Counsel of Record

September 30, 1997

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0095%3A06. Public record. Not legal advice.