Amicus Curiae Brief — Lilly v. Virginia

SS Co)

¥ No. 98-5881 a

In The

Supreme Court of the United States

October Term, 1998

+

BENJAMIN LEE LILLY,

Petitioner,

COMMONWEALTH OF VIRGINIA,

Respondent.

°

On Writ Of Certiorari To The

Supreme Court Of Virginia

e

MOTION FOR LEAVE TO FILE BRIEF AMICI

CURIAE AND BRIEF OF NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS, VIRGINIA

COLLEGE OF CRIMINAL DEFENSE ATTORNEYS,

AND VIRGINIA CAPITAL CASE CLEARINGHOUSE

AS AMICI CURIAE IN SUPPORT OF PETITIONER

¢

WiiuaM S. GerMer*

Professor of Law

Washington and Lee University

Virginia Capital Case Clearinghouse

Lexington, VA 24450

(540) 463-8525

Counsel for Amici Curiae

*Counsel of Record

[Additional Counsel Listed On Inside Cover]

Of Counsel:

Lisa KEMLER

National Association of

Criminal Defense Attorneys

108 N. Alfred Street

Alexandria, VA 22314

(703) 684-8000

Marvin MILLER

Virginia College of Criminal

Defense Attorneys

1203 Duke Street

Alexandria, VA 22314

(703) 548-5000

i

QUESTION PRESENTED

Whether the admission into evidence of a custodial

confession by an alleged accomplice, which confession

inculpates a criminal defendant in a capital murder case,

consistently minimizes the declarant’s role and shifts blame

onto others, offered under a state exception to the hearsay rule

as a declaration against interest of an unavailable witness when

the alleged accomplice refused to testify under the Fifth

Amendment, violates the Sixth and Fourteenth Amendments?

‘

IN THE SUPREME COURT OF THE UNITED STATES

BENJAMIN L. LILLY,

Petitioner,

vs. No. 98-5881

COMMONWEALTH OF VIRGINIA,

Respondent.

MOTION OF NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS, VIRGINIA COLLEGE OF

CRIMINAL DEFENSE ATTORNEYS AND VIRGINIA

CAPITAL CASE CLEARINGHOUSE FOR LEAVE TO

FILE AMICUS CURIAE BRIEF

COME NOW the National Association of Criminal

Defense Lawyers (NACDL), the Virginia College of Criminal

Defense Attorneys (VCCDA), and the Virginia Capital Case

Clearinghouse (VCCC), pursuant to Supreme Court Rule

37.2(b), and move this Honorable Court for leave to file an

amicus curiae brief in support of the Petitioner. In support of

this motion, NACDL, VCCDA, and VCCC state the following:

1. Counsel for Petitioner has consented to the

filing of an amicus curiae brief by NACDL, VCCDA and

VCCC. Counsel for Respondent has withheld consent.

2. NACDL is a non-profit corporation with more

than 10,000 members nationwide and 28,000 affiliate members

in 50 states, including private criminal defense lawyers, public

recognizes NACDL as an affiliate organization and awards it

~~ ————

full representation in its House of Delegates. NACDL was

founded in 1958 to promote study and research in the field of

criminal law, to disseminate and advance knowledge of the law

in the are of criminal practice, and to encourage the integrity,

independence, and expertise of defense lawyers in criminal

cases. NACDL seeks to defend individual liberties guaranteed

by the Bill of Rights and has a keen interest in ensuring that

legal proceedings are handled in a proper and fair manner.

Among NACDL’s objectives is promotion of the proper

administration of justice.

3. VCCDA is recognized by NACDL as its

Virginia state affiliate. It is a statewide non-profit organization

of approximately 416 criminal defense practitioners. It’s

purpose is to enhance and improve the quality of criminal

justice in the Commonwealth of Virginia and to advance the

same general goals of NACDL within the particular framework

of Virginia practice. To that end, it conducts continuing legal

provides direct services to its members when they face

important issues implicating the fundamental fairness of the

criminal justice system. These services include litigation

4. Virginia Capital Case Clearinghouse is a clinical

program of Washington and Lee University School of Law. Its

competitively selected students and tenured faculty director

pursue a single paramount goal; making the right to effective

assistance of counsel meaningful in Virginia capital cases.

That goal also describes the interest of VCCC in the case at

bar. .

Virginia Capital Case Clearinghouse has been in

operation since 1988, and has assisted defense counsel in

hundreds of cases, including this case at trial and on direct

IV

appeal. That experience has provided a unique vantage point

from which to assess the issues before this Court.

5. The movants submit that an amicus curiae brief

is desirable in light of the impact any decision made in the case

will have on the Sixth Amendment night to confrontation The

movants seek leave to submit the accompanying brief amicus

curiae, which they hope will assist the Court in deciding the

Constitutional issue before it.

WHEREFORE, based upon the foregoing, NACDL,

VCCDA and VCCC respectfully request that this motion be

granted

Respectfully Submitted,

! ois

thd - (re

Wilham S. Geimer

Washington and Lee University

School of Law

Lexington, Virginia 24450

Counsel for Amicus Curiae

National Association of Criminal

Defense Lawyers

Virginia College of Criminal Defense

- Attorneys

Virginia Capital Case Clearinghouse

EE en Qe

v

TABLE OF CONTENTS

IED 6 oie Skk ss Ale ev de Rema

Statement of Amici Curiae......................

Summary of Argument ....................0505.

ES Glee bets Wag carb edb eho eo 644 aAe ees 5

L SELF-SERVING STATEMENTS WHICH

SHIFT THE BLAME FOR A CRIME TO

ANOTHER ARE UNRELIABLE AND

INADMISSIBLE

A.

The Hearsay Testimony of Mark Lilly

A HOLDING IN FAVOR OF THE

COMMONWEALTH WILL EFFECTIVELY

EVISCERATE THE SIXTH AMENDMENT

- CONFRONTATION CLAUSE IN VIRGINIA

CAPITAL CASES

Se eee eB Oereceaes8. onsen eo © € €

il SUFFICIENCY OF “TRIGGERMAN”

EVIDENCE IS OF GREATEST

IMPORTANCE IN VIRGINIA CAPITAL

MP EPPEUEPEOVET ECR che kas kc hak 15

Coan. ky SAR ae AS. ARK 19

vii

TABLE OF AUTHORITIES

Cases Page

Brady v. Maryland, 373 U.S. 83 (1963) ............. 13

Briley v. Commonwealth, 22\ Va. 563, 272

Se IS hi iaitied v sik O% Ch oX Ecce wdd’., 16

Cardwell v. Commonwealth, 248 Va. 501,

| ares ees 13

Chambers v, Mississippi, 410 U.S. 284,

RI ee 13

Coppola v. Commonwealth, 220 Va. 243, 257

PII, PO WU eie oo hab eo mh vec 13, 16

Cheng v. Commonwealth, 240 Va. 26, 393 S.E.

Pec id De 16, 17, 18

Correll v, Commonwealth, 232 Va. 454, 352

I Sa 13

Davis v. Alaska, 415 U.S. 308, lt) ae cas 4

Eppes v. Eppes, 169 Va. 778, 195 S.E.2d

SE A ae ES a as s

Fitzgerald v. Commonwealth, 233 Va. 615, 292

Re PI a a ee te ue ve, 13

Gray v. Commonwealth, 233 Va. 313, 356 S.E.

ep Rs belek Si PERO iw Baers ests 13

Vili

Green v. McElroy, 360 U.S. 474 (1959)... 2.20.22... 4

Idaho v. Wright, 497 U.S. 805 (1990) .... 2.200000... 5

Johnson v. Commonwealth, 220 Va. 146, 255

ee CPE 556.4 8 Kae UE wae Cees ieee one 16

Lee v. Illinois, 476 U.S. 530 (1986). ............ 4,8, 11

Lilly v. Virginia, 255 Va. 558, 499 S_E. 2d

CVG, FROME bec likasrayaveuemoeeet oenewrae 11

Pointer v. Texas, 380 U.S. 400 (1965) ........... 4,6, 13

Ramdass v. Commonwealth, 246 Va. 413, 437

he 0 Se a. 9.) rele: 13

Rogers v. Commonwealth, 242 Va. 307, 410 S.E.

Be Get CIUOENs oo wR CCAR Rie meee, 16, 17, 19

Strickler v. Commonwealth, 241 Va. 482, 404 S_E.

S08 SET CORP CN vie Baik teehee 16

Weeks v. Commonwealth, 248 Va. 460, 450 S_E.

OE SPR, CE eee ORE FRR ES 13, 14

Williamson v. United States, 5112 U.S. 594 (1994) .. passim

Virginia Circuit Court Decisi

Commonwealth v. Burton, No. F91-214 (Cir.

Co SEED cb Vc ous ee bea Mitel Ges Ot ne 12

Commonwealth v. Ceparano, No. 97-186, 97-

187 (Cir. Ct. Grayson County) ................... 14

—_ ~~-—~

ix

Commonwealth v. Cressell, No. 98-73 (Cir. Ct.

gt PIERS Pe Le te Cee 14

Commonwealth v. Davis, No. CR 94118-121

ee ae a ae 12

Commonwealth v. Holden, No. 97 CR 141

(Cir. Ce. Acoomack Commty) . ccc eee 12

Commonwealth v. Jones, No. 8230 (Cir. Ct.

ER oy pe ee 12

Commonwealth v. Murray, No. CR 901478

(Cir. Ct. City of Virginia Beach) .................. 12

Commonwealth v. Selby, No. CR 96-51-

0010202 (Cir. Ct. Dinwiddie County) .............. 12

Commonwealth v. Taylor, No. 95-146,14,148,

149 (Cir. Ct. Washington County) .................. 12

Va. Code Ann. § 18.2-10 (Michie 1995) .............. 7

Va. Code Ann. § 18.2-18 (Michie 1997) .............. 7

Va. Code Ann. § 18.2-18(b)(Michie 1997) ......... 6, 16

Va. Code Ann. § 18.2-31(4)(Michie 1977) ........... 15

Va. Code Ann. § 18.2-32 (Michie 1998) .............. 7

Va. Code Ann. § 164.4 (Michie 1995) ................ 7

x

Va. Code Ann. § 19.2-164.4 (Michie 1998)............ 7

Va. Code Ann. § 53.1-165.1 (Michie 1994)............ 7

Rules

Federal Rule of Evidence 804(b)(3) ................ 8,9

Federal Rule of Evidence 803(b)(4) ................. w)

United States Supreme Court Rule 37.2(b) ............ l

United States Supreme Court Rule 37.3(a) ......... pare

United States Supreme Court Rule 37.6....... Ee, ie |

Other Authoriti

2 Charles E. Friend, The Law of Evidence in

Virginia § 18-12 (4th ed. 1993) ................... 8

INTEREST OF AMICI CURIAE

The National Association of Criminal Defense Lawyers

(“NACDL”), the Virginia College of Criminal Defense

Attorneys (“VCCDA”), and the Virginia Capital Case

Clearinghouse, A Special Project of Washington and Lee

University School of Law (“VCCC”), pursuant to this Court’s

Rule 37.3(a), file this joint brief in support of the petitioner.

Counsel for petitioner has consented to the filing of this brief

Counsel for respondent has withheld consent. '

NACDL is a non-profit corporation with a membership

of more than 10,000 attorneys and 28,000 affiliate members in

50 states, including private criminal defense lawyers, public

defenders and law professors. The American Bar Association

recognizes NACDL as an affiliate organization and awards it

full representation in its House of Delegates. NACDL was

founded in 1958 to promote study and research in the field of

criminal law, to disseminate and advance knowledge of the law

in the area of criminal practice, and to encourage the integrity,

independence, and expertise of defense lawyers in criminal

cases. NACDL seeks to defend individual liberties guaranteed

by the Bill of Rights and has a keen interest in ensuring that

legal proceedings are handled in a proper and fair manner.

Among NACDL’s objectives is promotion of the proper

administration of justice.

VCCDA is recognized by NACDL as its Virginia state

affiliate. It is a statewide non-profit organization of

: No counsel for any party to this case authored this brief in whole

or in part, and no person or entity other than NACDL, VCCDA, or VCCC

and their members made any monetary contributions to its preparation or

submission. See Rule 37.6.

2

approximately 416 criminal defense practitioners. Its purpose

is to enhance and improve the quality of criminal justice in the

Commonwealth of Virginia and to advance the same general

goals of NACDL within the particular framework of Virginia

practice. To that end, it conducts continuing legal education

seminars for criminal defense practitioners, and provides direct

services to its members when they face important issues

implicating the fundamental fairness of the criminal justice

system. These services include litigation advice and support,

research, and amicus briefing.

Virginia Capital Case Clearinghouse is a clinical

program of Washington and Lee University School of Law. Its

competitively selected students and tenured faculty director

pursue a single paramount goal: making the right to effective

assistance of counsel meaningful in Virginia capital cases.’

That goal also describes the interest of VCCC in the case at

bar.

Virginia Capital Case Clearinghouse has been in

operation since 1988, and has assisted defense counsel in

hundreds of cases at trial and on direct appeal. That experience

has provided a unique vantage point from which to assess the

issue before this Court. It is particularly important in the

Commonwealth of Virginia that the Confrontation Clause of

the Sixth Amendment not be reduced to a mere form of words.’

- The program statement of purpose reads: “The Virginia Capital

Case Clearinghouse is not about theoretical or philosophical support for or

opposition to the death penalty. Rather, it is about commitment to the

principle that one who stands to forfeit his life is entitled to the effective

assistance of counsel, both for his sake and for the sake of those who would

take that life.”

' Amici adopt the petitioner's Statement of Facts.

3

SUMMARY OF ARGUMENT

While all hearsay statements of accomplices in custody

are inherently unreliable, the statement of Mark Lilly was even

more suspect than usual. Virginia law governing accomplice

liability in capital murder prosecutions operates to render Mark

Lilly's statement that Benjamin Lilly caused the victim's death

not only unreliable, but actually self-serving. The hearsay

statement, if true, shielded Mark Lilly from a possible death

sentence and even relieved him from a mandatory sentence of

life without parole. The _ self-inculpatory aspects of his

statement pale in comparison to the benefits that would accrue

to him under Virginia law. Particularly in Virginia, there is no

reason to establish a Confrontation Clause standard that is less

stringent than that applied by this Court under the Federal

Rules of Evidence.

In Virginia, as elsewhere, capital murder prosecutions

involving multiple defendants who name others as the "trigger"

are common. These statements are often given to law

enforcement officers who have no independent corroborating

information and sometimes have little interest in obtaining it.

Currently, many of these purported accomplices enter into plea

agreements that provide for their testimony at the trial of the

person they have named. Presently, it is the function of

confrontation and cross-examination to allow the jury to assess

the factors that influenced the statements of the purported

accomplice who arrived first at the office of the prosecutor.

“(T]he arrest statements of a codefendant have

traditionally been viewed with special suspicion. Due to his

strong motivation to implicate the defendant and to exonerate

himself, a codefendant’s statements about what the defendant

said or did are less credible than ordinary hearsay evidence.”

Williamson v. United States, 512 U.S. 594, 601 (1994) (quoting

4

Lee v. Illinois, 476 U.S. 530, 541 (1986)). The ability to

confront and cross-examine one’s accuser is fundamental and

essential to a fair trial. As this Court has recognized, “[c]ross-

examination is the principal means by which the believability

of a witness and the truth of his testimony are tested.” Davis v.

Alaska, 415 U.S. 308, 316 (1974). And, regarding

confrontation and cross-examination this Court

said in Green v. McElroy, 360 U.S. 474, 496-

97:

They have ancient roots. They

find expression in the Sixth

Amendment which provides that

in all criminal cases the accused

shall enjoy the right “to be

confronted with the witnesses

against him.” This Court has

been zealous to protect these

rights from erosion.

Pointer v. Texas, 380 U.S. 400, 404 (1965).

Unless the defendant has an opportunity to cross-

examine the very person who is pointing the finger at him and

accusing him of being the “triggerman,” the jury will have no

basis for determining the trustworthiness of the statement.

Where jurors have the opportunity to see the witness

confronted, they have the ability to observe for themselves the

witness’ demeanor and may decide, as is their right, not to

credit the witness’ testimony. As a practical matter, however,

if the protection of the Confrontation Clause is withdrawn by

this Court, Virginia prosecutors will be encouraged not to run

this risk. It is difficult to imagine a case where the better

choice of prosecution witness would not be the law

5

enforcement officer who took the statement of the purported

accomplice. Efficiency might be enhanced by such a practice,

but truth wold certainly be the principal casualty.

The constitutional error in this case was far from

harmless. The issue before this Court is of great importance in

the capital appellate law of Virginia, as well as other states,

where the application of evidentiary rules results in the denial

of an accused’s constitutional right to confrontation. With the

exception of relief compelled directly by decisions of this

Court, the Supreme Court of Virginia has granted relief to

death sentenced prisoners only twice in this decade In both

instances the basis for relief was insufficiency of the evidence

that the defendant caused the death of the victim. Absent the

unlawfully admitted hearsay statement of Mark Lilly, it is

highly probable that Ben Lilly would not be on death row.

ARGUMENT

1. SELF-SERVING STATEMENTS WHICH SHIFT

THE BLAME FOR A CRIME TO ANOTHER ARE

UNRELIABLE AND INADMISSIBLE.

Our Constitution presumes that the accurate

determination of guilt or innocence in a criminal case is best

accomplished by giving the accused the opportunity to confront

and cross-examine witnesses against him. Despite the

seemingly absolute terms of the Confrontation Clause, tradition

makes exception for out-of-court statements by unavailable

declarants under circumstances that assure some degree of

reliability. This can be accomplished in either of two ways: by

showing that the statement fits within a “firmly rooted” hearsay

exception, or by establishing from the circumstances of the

particular statement indicia of trustworthiness. /daho vy.

Wright, 497 U.S. 805 (1990).

This case involves the admission of a statement by

Mark Lilly following his arrest in which he disavowed

responsibility for a murder during the course of a robbery and

identified petitioner as the tiggerman. This statement protected

Mark Lilly from prosecution for capital murder, despite his

participation in a string of robberies, including one resulting in

a death, and despite evidence that he possessed the murder

weapon and passed it to petitioner immediately before the

shooting. JA 2051, 2063-64. For petitioner, admission of this

statement made the difference between a conviction for first

degree murder and a conviction for capital murder, under

Virginia law evidence that petitioner was the triggerman was

needed to make him eligible for a death sentence. Given the

crucial importance of the identity of the triggerman under

Virginia's death penalty scheme and Mark Lilly’s interest in

avoiding prosecution for capital murder, his hearsay statements

were inherently unreliable and their admission violated the

Confrontation Clause, applicable to the states through the Due

Process Clause of the Fourteenth Amendment. Pointer v.

Texas, 380 U.S. at 404.

A. The Hearsay Testimony Of Mark Lilly Was

Self-Serving And Devoid Of Reliability.

The true significance of Mark Lilly’s hearsay testimony

can only be understood by reference to Virginia state law.

Title 18.2, section 18 of the Code of Virginia contains the

punished as principals in the first degree.‘ In cases of capital

: “[I)n the case of every felony, every principal in the second degree

and every accessory before the fact may be indicted, tned, convicted and

pumished in all respects as if a principal in the first degree... .” Va Code

7

murder, however, the section provides that accomplices may

be convicted of no higher offense than first degree murder, a

non-capital offense.°

For Mark Lilly, acceptance as truth of his statement

naming Ben Lilly as the person who caused the death of the

victim meant the first of two enormous benefits accruing to

Mark Lilly: immunity from exposure to a sentence of death.

This is hardly an indicia of reliability. It is, in fact, just the

opposite.

The second great benefit accruing to Mark Lilly if his

statement was believed was the possibility of one day regaining

his liberty. That possibility is not provided for in the case of

persons convicted of capital murder in Virginia, even if they

are sentenced to life in prison rather than death. In Virginia, a

defendant convicted of capital murder faces one of two

mandatory penalties: a sentence of death or life imprisonment

without possibility of parole. A defendant convicted of first

degree murder, on the other hand, is guilty only of a Class 2

felony.’ Not only is the possibility of the death penalty

completely removed," the defendant may be sentenced to as

Ann. § 18.2-18 (Michie 1997).

; “An accessory before the fact or principal in the second degree to

capital murder shall be indicted, tned, convicted and punished as though the

offense were murder in the first degree.” Id (emphasis added).

* —. Va. Code Ann. § 19.2-164.4 (Michie 1998). Any defendant

sentenced to a term of incarceration for a felony in Virgima on or after

January |, 1995, is not eligible for parole. Va. Code Ann. § 53.1-165.1

(Michie 1994).

? Va. Code Ann. § 18.2-32 (Michie 1998).

: Va. Code Ann. § 18.2-10 (Michie 1995).

little as 20 years.”

Therefore, when Mark Lilly stated his version of the

criminal events, giving himself a secondary role in the crime

while fingering his brother Ben Lilly as the triggerman, he

actually did himself a great service. While his story contains

self-inculpatory statements, within the framework of Virginia

law described above and in the context of a custodial statement

to police, it is actually quite self-serving.

B. Admission Of Mark Lilly’s Confession As

An Exception To The Hearsay Rule By

Categorizing The Confession As A

Declaration Against Penal Interest Cannot

Be Squared With The Requirements Of The

Confrontation Clause.

In Virginia, declarations against interest are admissible

as an exception to the hearsay rule based on the notion that a

person will not usually make statements damaging to his own

penal interests unless such statements are true."° This is also

the reasoning behind the federal evidentiary hearsay exception

for statements against interest.'' However, as a general matter,

“[w]hen one person accuses another of a crime under

circumstances in which the declarant stands to gain by

inculpating another, the accusation is presumptively suspect

and must be subjected to cross-examination.” Lee v. //linois,

476 U.S. at 541 quoted in Williamson v. United States, 512

U.S. at 608 (Ginsburg, J., concurring).

° Id.

as 2 Charles E. Friend, The Law of Evidence in Virginia § 18-12 (4th

ed. 1993) (citing Eppes v. Eppes, 169 Va. 778, 195 S.E. 694 (1938)).

“ See Fed. R. Evid. 804(b)(3).

9

In Williamson, the defendant was convicted in a

proceeding that featured the introduction by the state of a

hearsay statement of the co-defendant. The hearsay testimony

consisted of a confession that was broadly inculpatory of the

co-defendant while also shifting criminal liability to

Williamson. This Court found that “the most faithful reading

of [the hearsay exception for statements against interest] is that

it does not allow for the admission of non-self-inculpatory

statements, even if they are made within a broader narrative

that is generally self-inculpatory.” Williamson, 512 US. at

600-01.

The facts of the instant case present an even more

compelling need for the right to confront and cross-examine

- accusers than was present in Williamson. There, as this Court

noted, the hearsay statement of witness Harris, if true, might

have had the effect of rearranging the hierarchy of liability in

a drug transaction, to Harris’ benefit. This possibility was

sufficient to call for remand to the Court of Appeals.

Williamson, 512 U.S. at 604. Here, the benefit to Mark Lilly

was quite literally a matter of life, death, and even potential

liberty.

Although the Williamson court divided over the proper

interpretation of Federal Rule of Evidence 803(b)(4)

(declarations against penal interest), all members of the Court

recognized that a statement like the one admitted at petitioner's

trial does not bear the indicia of reliability associated with a

statement against the declarant’s penal interest. “The rationale

for the hearsay exception for statements against interest is that

people seldom ‘make statements which are damaging to

themselves unless satisfied for good reason that they are true. "”

Williamson, 512 U.S. at 611 (Kennedy, J., dissenting) (quoting

Notes of the Advisory Committee to Rule 804(b)(3)). The

Williamson dissent went on to differentiate statements which

10

fit this definition from statements which, while containing

some self-incriminatory information, primarily serve the

declarant’s interest:

In the criminal context, a self-serving statement

is one that stands to reduce the charges or

mitigate the punishment for which the declarant

might be liable. For example, if two masked

gunmen robbed a bank and one of them shot

and killed the bank teller, a statement by one

robber that the other robber was the triggerman

may be the kind of self-serving statement that

should be inadmissible.

Williamson, 512 U.S. at 618 (Kennedy, J., dissenting). Thus,

the dissenting justices agreed that a statement interwoven with

declarations against penal interest should nevertheless be

excluded when it is unreliably self-serving because “it shifts

the blame to someone else for a crime the defendant could have

committed,” or when the declarant had a motive to obtain

favorable treatment by making the statement. Williamson, 512

U.S. at 620. See Williamson, 512 U.S. at 601(“a statement

admitting guilt and made while in custody may well be

motivated by a desire to curry favor with the authorities and

hence fail to qualify as against interest.”), 512 U.S. at 607

(Scalia, J., concurring) (same). As in Williamson, “{a]

reasonable person in [Mark Lilly’s] position might even think

that implicating someone else would decrease his practical

exposure to criminal liability, at least so far as sentencing

goes.” 512 US. at 604.

The unreliability of Mark Lilly’s statement implicating

petitioner as the triggerman is made even more apparent by the

fact that, at the time of petitioner’s trial, the charges against

Mark Lilly were unresolved and the prosecution held over

Mark Lilly’s head “the option charging [him] as the trigger

man if he change[d] his story during his brother’s trial and

trie[d] to take the blame. JA 3605. Thus, the actions of the

prosecution made him an unavailable witness when he invoked

the Fifth Amendment, thereby satisfying the requirement for

admitting the out-of-court statement. In short, the prosecution

was able to choose whether the jury would hear from a live

witness or whether it would receive self-serving hearsay.

While Virginia is free to define for itself the scope of its

hearsay exception for declarations against penal interest, it

cannot, by doing so, bypass the constitutional inquiry into the

reliability of an out-of-court statement. The Virginia Supreme

Court thought the fact “[t]hat Mark Lilly’s statements were

self-serving, in that they tended to shift principal responsibility

to others or to offer claims of mitigating circumstances, goes to

the weight the jury could assign to them and not their

admissibility.” Lilly v. Virginia, 255 Va. 558, 499 S.E. 2d 522.

534 (1998). But the whole point of the Confrontation Clause is

that cross-examination is the best means to allow the jury to

determine how much weight to give an accusation in light of

the witness’ self-interest in making it. The absence of cross-

examination impairs the jury’s ability to determine the weight

it should give to evidence, and distorts the fact-finding process.

As all members of this Court recognized in Williamson, self-

serving statements like the statement admitted against

petitioner are not reliable and are inadmissible even when

interwoven with admissions of criminal liability. This Court

has not yet determined whether the hearsay exception for

declarations against penal interest is “firmly rooted,” or

whether the constitutional inquiry depends upon the

circumstances surrounding each statement. Williamson, 512

12

U.S. at 605. Regardless of the answer to this question,”

whether a particular statement falls within a “firmly rooted”

hearsay exception is a question of federal constitutional law,

not one determined by the scope recently given to a hearsay

exception under the law of a particular state.

Il. A HOLDING IN FAVOR OF _ THE

COMMONWEALTH WILL EFFECTIVELY

EVISCERATE THE SIXTH AMENDMENT

CONFRONTATION CLAUSE IN VIRGINIA

CAPITAL CASES.

Because under Virginia law only the person who caused

death, the “triggerman,” may be convicted of capital murder,

this issue is of paramount importance in the Commonwealth.

This is especially true when there is an absence of forensic or

other independent evidence pointing unerringly to one of

several co-defendants. The existence of multiple potentially

culpable persons in an individual murder has rendered | -

triggerman issue central to the Commonwealth’s case in

numerous capital prosecutions.'® In many such cases, the main

= On this point, this Court, in Lee v. Illinois, rejected the state's

“categorization” of an accomplice’s confession “as a simple ‘declaration

against penal interest” because “[t}hat concept defines too large a class for

meaningful Confrontation Clause analysis." 476 US. at 544 nS. In

addition, at common law the declarations against interest exception applied

only to civil (not criminal) interests, maKing it implausible that the authors

of the Confrontation Clause envisioned an exemption for statements like the

one at issue in this case.

= See, e.g., Commonwealth v. Selby, No. CR 96-51-0010202 (Cir.

Ct. Dinwiddie County); Commonwealth v. Burton, No. F91-214 (Cir. Ct.

Wise County), Commonwealth v. Taylor, No. 95-146,147, 148, 149 (Cir. Ct.

Washington County), Commonwealth v. Murray, No. CR 901478 (Cir. Ct

City of Virginia Beach), Commonwealth v. Holden, No. 97 CR 141 (Cir. Ct.

Accomack County), Commonwealth v. Davis, No. CR 94118-121 (Cir. Ct.

13

evidence implicating the defendant as the triggerman is derived

from purported accomplices to the crime, who claim that they

were not the one who killed the victim." In the absence of

compelling independent evidence on the point, its resolution

may be heavily influenced by a race to the prosecutor’s office.

The triggerman statute creates an incentive, under

circumstances of highly questionable reliability, for these co-

defendants to make a plea agreement with the government in

exchange for testifying that another defendant caused the

victim’s death.

Even under present law, the situation described above

places a heavy burden on the right to confront and cross-

examine as the primary device for ferreting out the truth.’* If

that right is removed, accurate identification of the accused

who can lawfully be subjected to the death penalty will become

a guessing game in many cases, further infused with arbitrary

Smyth County), Commonwealth v. Jones, No. 8230 (Cir. Ct. York County).

1% See Cardwell v. Commonwealth, 248 Va. 501, 450 S.E.2d 146

(1994), Weeks v. Commonwealth, 248 Va. 460, 450 S.E.2d 379 (1994),

Ramdass v. Commonwealth, 246 Va. 413, 437 S.E.2d 566 (1993), Gray v.

Commonwealth, 233 Va 313, 356 SE.2d 157 (1987), Correll v.

Commonwealth, 232 Va. 454, 352 S.E.2d 352 (1987), Fitzgerald v.

Commonwealth, 233 Va. 615, 292 S.E.2d 798 (1982), Coppola v.

Commonwealth, 220 Va. 243, 257 S.E.2d 797 (1979).

- This is undoubtedly the reason this Court long ago declared the

right to be fundamental and has emphasized its pivotal role in criminal tnals.

Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038 (1973), Pointer v.

Texas, 380 U.S. 400, 85 S.Ct. 1065 (1965). This Court also recognized long

ago the importance to reliable capital sentencing of correctly determining

who caused death. That question prompted this Court’s seminal opinion on

the due process night of an accused to exculpatory evidence. Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). Both the question and the

means available to answer it then, have been deemed essential to due

process.

14

factors. That is because, while co-defendants have great

incentive to name another as the killer, prosecutors will have

little or no incentive to put them on the witness stand. If this

Court upholds the Commonwealth’s position in this case, there

will be no reason for the state to put a purported accomplice on

the stand and risk a potentially damaging cross-examination by

defense counsel. Rather, the chosen tactic will be either to

present the taped out of court statement, as in this case, or, even

better, to have the fortunate chosen co-defendant make his

statement to a law enforcement officer who can then testify at

trial."°

A recent example of the critical need to subject

purported accomplice testimony to cross-examination may be

found in the cases of Commonwealth v. Louis James Ceparano,

No. 97-186, 97-187 (Cir. Ct. Grayson County), and

Commonwealth v. Emmett W. Cressell, Jr., No. 98-73 (Cir. Ct.

Grayson County). Both arose from the murder of GP.

Johnson on July 25, 1997, in Grayson County, Virginia.

Ceparano, Cressell, Johnson and two women had been drinking

together at Ceparano’s trailer in Grayson County during the

evening of July 24, 1997. In the early-morning hours of July

25, Johnson was burned and beheaded. The Commonwealth’s

Attorney initially decided that Ceparano killed Johnson.

Ceparano was charged with capital murder and Cressell with

first degree murder. Later, however, it was decided that

Cressell was the “triggerman”. Accordingly, a plea agreement

was made with Ceparano and the charges against Cressell were

upgraded to capital murder. At Cressell’s trial, Ceparano

testified for the prosecution, recounting the events of that night

and implicating Cressell as the “triggerman” responsible for

Johnson’s murder. Ceparano was subjected to a two-hour

16

(1994).

See Weeks v. Commonwealth, 248 Va. 460, 450 S.E.2d 379

15

cross-examination by Cressell’s counsel. The jury returned a

verdict of not guilty of the capital murder charge, instead

convicting Cressell of first degree murder."’

If this Court upholds the position advanced by the

Commonwealth, in future cases involving similar evidence,

the Commonwealth will have no reason to put a Ceparano on

the stand. After reaching an agreement with a co-defendant, it

will be a simple matter to prosecute the alleged principal first,

use the co-defendant’s hearsay statement, and conclude the

agreed upon disposition of the co-defendant’s case later. This

practice would preserve the Fifth Amendment “unavailability”

of accused who had made the deal, rendering his hearsay

statement admissible as a declaration against penal interest. As

a practical matter, there is little reason to expect that this would

not be precisely the practice that will flow from a holding in

favor of the Commonwealth. The principal casualty in many

cases will be the truth.

1. SUFFICIENCY OF "TRIGGERMAN" EVIDENCE

IS OF GREATEST IMPORTANCE IN VIRGINIA

CAPITAL CASES.

Not only does the issue of who caused the death of the

victim arise often in Virginia capital cases, it is treated as a

matter of utmost importance by the Supreme Court of Virginia,

indeed as an exception to the traditional deference afforded to

jury fact-finding.

It is well established under Virginia law that, unless a

case is one of a killing for hire, "only the person who is the

- The reason given for the not guilty verdict on the capital murder

charge was the weakness of the evidence adduced to prove that Cressell

robbed the victim. See VA. CODE ANN. § 18.2-31(4) (Michie 1997).

16

immediate perpetrator [of the killing] may be a principal in the

first degree and thus liable to conviction for capital murder."

Johnson v. Commonwealth, 220 Va. 146, 150, 255 S.E.2d 525,

527 (1979) (interpreting VA. CODE ANN. § 18.2-18(b) (Michie

1997)). In addition, it has also been established that when a

killing is one involving joint participation, both killers may be

considered an “immediate perpetrator" or “triggermen" and

both may be convicted of capital murder. Coppola v.

Commonwealth, 220 Va. 243, 257 S.E.2d 797 (1980); Strickler

v. Commonwealth, 241 Va. 482, 404 S.E.2d 227 (1991); Briley

v. Commonwealth, 221 Va. 563, 273 S.E.2d 57 (1980).

If the death was not caused by joint action, as is the

situation in the case at bar, determining who was in fact the

"triggerman" is of the utmost importance. That is, of course,

appropriate, since it is a matter of life and death. The capital

jurisprudence of the Supreme Court of Virginia illustrates the

primacy of this issue. With the exception of relief directly

mandated by a decision of this Court, the Supreme Court of

Virginia has granted relief on direct appeal to death-sentenced

prisoners only twice in the last seven years. In both Cheng v.

Commonwealth, 240 Va. 26, 393 S.E.2d 599 (1990), and

Rogers v. Commonwealth, 242 Va. 307, 410 S.E.2d 621 (1991),

the issue was sufficiency of the triggerman evidence.

In Cheng, the victim was shot four times in the head

and neck and the defendant was the last person seen with the

victim before his death. 240 Va. at 31, 393 S.E.2d at 601.

There was evidence that the defendant "'masterminded’ the

criminal plan", “expressed an intent to commit robbery",

"directed his accomplices to obtain a ‘sawed-off shotgun", and

had made incriminating statements to the police. 240 Va. at 43,

393 S.E.2d. at 608. A piece of paper containing the defendant's

name and address was also discovered in the car in which the

victim's body was found. 240 Va. at 32, 393 S.E.2d at 602.

17

Due to this sizable amount of incriminating evidence

against the defendant, a jury convicted him of capital murder.

He appealed, contending that the evidence was insufficient to

sustain a capital murder conviction, for there was no direct

evidence in the record that he was the triggerman. The

Supreme Court agreed, reversing Cheng's conviction, and

stating that "[t]he evidence was insufficient ...to support the

inference that the defendant fired the fatal shots." 240 Va. at

43, 393 S.E.2d at 608. The court continued: “Suspicion of

guilt, however strong, or even a probability of guilt, is

insufficient to support a conviction." 240 Va. at 42, 393 S.E.2d

at 608. In Cheng, the Virginia Supreme Court made it clear

that it is not easy for the Commonwealth to meet its burden of

proving that the one accused of capital murder was the actual

perpetrator of the crime beyond a reasonable doubt.

A case even more illustrative of the question before the

Court in the case at bar was Rogers v. Commonwealth. In

Rogers, the defendant was convicted of capital murder for

brutally attacking, raping, and fatally stabbing a 74 year old

woman. 242 Va. at 309, 40 S.E.2d at 622. Police interviewed

Troy Malcolm, who apparently admitted that he was present in

the victim’s home at the time of the crime, but named Rogers

as the killer. 242 Va. at 316, 410 S.E.2d at 626. Rogers was

immediately arrested and interrogated. He admitted forcible

entry into the house, robbing and raping the victim, but denied

stabbing her. References by the interrogator to Malcolm’s

accusations were included as a part of Rogers’ confession

admitted at his trial. /d."* Rogers denied ever seeing a knife,

- The interrogations in Rogers illustrate another aspect of the

unreliability of untested co-defendant statements. The law enforcement

officers who take the statements are often uninformed about and sometimes

indifferent to the truth. Rogers was interrogated and released twice, the day

after the crime and two days later. In the second interview, he implicated

Malcolm. Two days later, Malcolm was interviewed and an arrest warrant

and testified that he was the last one to leave the scene because

he was scared and had never seen anything like what had been

done to the victim. 242 Va. at 316, 410 S.E.2d at 626. Forensic

testing done by the Commonwealth's experts was inconclusive.

242 Va. at 317, 410 S.E.2d at 627.

Based upon this evidence, the defendant was convicted

and sentenced to death. He appealed, and the Supreme Court,

as in Cheng, reversed his conviction. In the words of the court:

Whatever theory’ offered by _ the

Commonwealth, we hold that the evidence is

insufficient, as a matter of law, to prove that

defendant actually stabbed the victim, or

administered any other blows which caused her

death, As we have said, all necessary

circumstances must be consistent with guilt,

must be inconsistent with innocence, and must

exclude every reasonable hypothesis of

innocence....the Commonwealth has failed to

exclude Troy Malcolm [the co-defendant] as

the perpetrator.

242 Va. at 319, 410 S.E.2d at 628.

These cases leave no doubt as to the importance of

\

charging Rogers with capital murder was issued 1 upon

conclusion of the interview. 242 Va. at 314-15, 410 S.E.2d at 625-26. The

last of these interrogations was conducted within five days of the

commission of the crime. Given that no forensic or other independent

evidence pointing to Rogers or Malcolm as the killer was ever adduced, the

strong suggestion arises that the police in this case had none at the time of

the interrogations and just made a subjective decision about whose story

they would believe.

19

Mark Lilly’s hearsay statement."’ Had it been excluded, as the

Confrontation Clause requires, there is more than a reasonable

likelihood that Benjamin Lilly would not have been convicted

and sentenced to death, or that such conviction and sentence

would not have been permitted to stand. To paraphrase the

Rogers court, the Commonwealth has failed to exclude Mark

Lilly and Gary Wayne Barker as triggermen, and has not

established beyond a reasonable doubt that Benjamin Lilly in

fact caused the death of the victim.

CONCLUSION

This Court in Williamson resolved the question now

before it correctly on statutory grounds. There are no legitimate

reasons for this Court to establish a less stringent

Confrontation Clause standard. There are many reasons,

however, that the standards should be the same on this point.

They include (1) the fundamental importance of confrontation

and cross-examination, (2) a comparison of the policy

underlying recognition of the hearsay exception with the self-

serving nature of the statement at issue here, (3) the negative

practical impact on truth-finding of licensing prosecutors to

shield unreliable witnesses from juries, (4 ) the similar impact

of signaling to law enforcement officers that they may engage

in interrogation techniques without meaningful concern for the

truth; and (5) Benjamin Lilly’s right not to be deprived of his

For the foregoing reasons, amici urge this Court to

- Amici have not briefed the question of whether factors other than

the circumstances of Mark Lilly's hearsay statement may be considered in

the determination of its admissibility. On that point, amici adopt and

support the position of petitioner that, under this Court’s precedent, they

may not

20

reverse Lilly’s conviction and remand the case for a new trial..

Respectfully submitted,

Lisa Kemler William S. Geimer*

National Association of Professor of Law

Criminal Defense Lawyers Washington and Lee University

108. Alfred Street Virginia Capital Case

(703) 684-8000 Clearinghouse

Lexington, VA 24450

Marvin Miller (540) 463-8525

Virginia of Criminal ~~

Defense

1203 Duke Street

Alexandria, VA 22314

(703) 548-5000 * Counsel of Record