Reply Brief — Edwards v. Maryland

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Supreme Court: U.S. “a

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OCT 15 1996

CLERK

No. 96-245 ma

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1996

STEPHEN DANIEL EDWARDS,

Petitioner,

Vv.

STATE OF MARYLAND,

Respondent.

On Petition for a Writ of Certiorari to the

Court of Special Appeals of Maryland

REPLY BRIEF FOR PETITIONER

WALTER A. SMITH, JR.*

JONATHAN S. FRANKLIN

STEPHANIE ROBINSON

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004-1109

(202) 637-5728

* Counsel of Record Counsel for Petitioner

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.....0.0....0000000........ satiny cout ii

I. THE QUESTIONS PRESENTED ARE

PROPERLY BEFORE THE COURT................. 2

Il. THE QUESTIONS PRESENTED ARE

IMPORTANT ONES THAT DIVIDE THE

NE I ns ccorinananasncunsnesissnanie cediia- aad 6

Ill. THE PRESENT CASE IS A COMPELLING

ONE FOR RESOLVING THE IMPORTANT

QUESTIONS PRESENTED... ooo. i 9

PR ORAGMRIUNE astkchicierincantbaibehbasiiaticas bkacdiles ackivecs.ckou 10

TABLE OF AUTHORITIES

Page

CASES:

Bridges v. Wixon, 326 U.S. 135 (1945)... cece 7

Brandenburg v. Ohio, 395 U.S. 444 (1969) .................. >

California v. Green, 399 U.S. 149 (1970)..........0....00. passim

Hathorn v. Lovorn, 457 U.S. 255 (1982) ..................00+ 6

Hill v. California, 401 U.S. 797 (1971) «0.00.0... 5

Manhattan Life Ins. Co. v. Cohen, 234 U.S. 123

SII iesicnccicessSccscesaaceh ivan dadatbapinen eck teas cctgeaes 5

Nance v. State, 629 A.2d 633 (Md. 1993) .......00.0000.0..... 3,4,9

New York ex rel. Bryant v. Zimmerman, 278 U.S.

1 ee ee 5

Opper v. United States, 348 U.S. 84 (1954) ....0..o.cccec. 10

Gar +. Ge, GAB TLE. BS GF Fineness 5

Raley v. Ohio, 360 U.S. 423 C1959) ......00cccceccceessoseencees 5

Street v. New York, 394 U.S. 576 (1969)...................0.. 4-5

Thompson v. Louisville, 362 U.S. 199 (1960) ............... 7

United States v. Orrico, 599 F.2d 113 (6th Cir. 1979)... 7

Vogel v. Percy, 691 F.2d 843 (7th Cir. 1982) ................ 7

Ward v. Village of Monroeville, 409 U.S. 57 (1972)..... 5

Whitney v. California, 274 U.S. 357 (1927)................. 5

CONSTITUTIONAL PROVISION:

Sais Mm. SRNL: BOE © cccrasinsiseaxccashatduenaetintvohunmeae passim

RULE:

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-245

STEPHEN DANIEL EDWARDS,

Petitioner,

STATE OF MARYLAND,

Respondent.

On Petition for a Writ of Certiorari to the

Court of Special Appeals of Maryland

REPLY BRIEF FOR PETITIONER

As we showed in our petition, this case presents im-

portant questions of federal constitutional law that this

Court expressly left open in California v. Green, 399

U.S. 149 (1970), and upon which there is a clear conflict

among the state and federal courts. As we also showed,

this case—involving a 16-year-old petitioner convicted

of murder on the basis of uncorroborated, prior incon-

sistent statements recanted at trial—presents compelling

circumstances for resolving this longstanding conflict.

Significantly, in its brief opposing certiorari the State

does not dispute that the Due Process questions raised in

the petition are important ones meriting this Court’s

review. Neither does it deny that the lower courts are

divided on the questions. The State furthermore does

not dispute that the present case is a particularly persua-

sive one for resolving the questions, involving, as it

does, a murder conviction and life sentence resulting

solely from uncorroborated out-of-court statements of

youths who were pressured to make those statements.

Instead, the State opposes review by arguing that the

Due Process issues presented were not sufficiently pre-

sented below and, in any event, were not expressly left

open in Green. The State argues, in addition, that many

of the conflicting lower court decisions addressing those

questions do not involve grand jury testimony.

As we will show, the State’s contentions are all either

wrong or urelevant. The questions presented were

presented to, and decided by, the Maryland courts. They

were left open in Green, and even if they were not, it is

undisputed that they are important questions now

dividing the lower courts. Furthermore, the fact that not

all of the lower court cases involve prior grand jury

testimony is irrelevant to the Due Process questions

presented. And finally, it is indisputable that the present

case is a compelling one for resolving those questions.

The petition should be granted.

I. THE QUESTIONS PRESENTED ARE

PROPERLY BEFORE THE COURT

The State contends that the Court should not consider

the important issues raised by the petition because they

allegedly were not presented to or decided by the

Maryland courts. As a related point, the State also con-

tends that the lower court decided this case solely on

independent state-law grounds. Neither of these

contentions is correct.

1. The State concedes, as it must, that petitioner

squarely presented the trial court with the argument that

the Due Process Clause of the federal Constitution

barred a conviction in this case in light of the unrelia-

bility of the prior inconsistent statements upon which the

State’s case was based. See Opp. at 8-9.! Indeed, not

only did petitioner raise this argument at trial, but he

expressly renewed the argument in his written post-trial

motion for a new trial. See Memorandum of Law and

Argument in Support of Motion for New Trial at 12

(arguing that “[t]he admission of recanted Grand Jury

testimony and signed statements, accompanied by

abundant indicia of unreliability, violated Defendant’s

rights to due process of law”) (Dec. 27, 1994).

Contrary to the State’s contentions, petitioner also

renewed this argument at the appellate level, and the

Maryland Court of Special Appeals (the only appellate

court to have ruled on petitioner’s appeal) expressly

decided the issue on due process grounds. As the State

notes, petitioner’s appeals in the Maryland courts fo-

cused on the then-recent decision in Nance v. State, 629

A.2d 633 (Md. 1993). But the State fails to mention that

Nance itself constitutes the Maryland Court of Appeals’

application of the federal Due Process Clause to the use

of prior inconsistent statements as substantive evidence.

Indeed, in rejecting petitioner’s due process arguments,

the trial judge in this case—who was himself the author

of the Nance opinion—stated that:

On the first aspect of your motion, that is that the

statements offend due process and the constitutional

guarantee of confrontation, I think those concerns

were addressed in Nance and Hardy. Nance and

Hardy, and subsequently [Maryland Rule of

! The trial transcripts make this abundantly clear. See Tr. 6-7, 8,

Nov. 29, 1994 (counsel’s contention that use of coerced grand jury

testimony amounts to a “star-chamber” proceeding that would be “a

violation of due process of law”); id. at 11-12 (counsel's contention

that it “has got to be a violation of due process” when the State

calls a witness it knows will recant merely in order to use prior

grand jury testimony as substantive evidence). The trial court like-

wise considered and decided the due process claim. /d. at 21, 22.

Evidence] 5-802.1 . . . have established criteria for

the substantive use of prior inconsistent statements

by a witness.

The protections that were incorporated in Nance

and Hardy and in the Rule of Evidence were

intended to give force and effect to the constitutional

guarantees.

Tr. 21, Nov. 29, 1994 (McAuliffe, J.) (emphasis

supplied).2 Judge McAuliffe’s recollection is plainly

borne out by his opinion in Nance, which established

minimal conditions for the use of inconsistent, out-of-

court testimony as substantive evidence and held that

“[wjhen all of these conditions have been met, due

process of law is satisfied.” 629 A.2d at 644 (emphasis

supplied).

Petitioner unquestionably presented the same argument

to the Maryland courts that he now presents to this

Court—that his conviction must be reversed in light of

the unreliability of the prior inconsistent statements

upon which that conviction was based.? To preserve a

constitutional issue for this Court,

“({njo particular words or phrases is essential, but

only that the claim of invalidity and the ground

therefor be brought to the attention of the state court

with fair precision and in due time. And if the record

as a whole shows either expressly or by clear

intendment that this was done, the claim is to be

regarded as having been adequately presented.”

2 Hardy was a companion case to Nance decided in the same

appeal.

3 See Brief of Appellant at 17-21, Edwards v. State, No. 99

(Md. Ct. Spec. App. Nov. 24, 1995) (Opp. App. la-5Sa); Petition

for Writ of Certiorari at 11-13, Edwards v. State, Docket No. 646

(Md. Jan. 8, 1996) (Opp. App. 6a-8a).

Street v. New York, 394 U.S. 576, 584 (1969) (quoting

New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67

(1928)).

This standard was plainly satisfied here. Because

Nance itself rested on an interpretation of the Due

Process Clause, petitioner’s invocation of Nance before

the Maryland appellate courts is fairly understood as an

invocation of his federal constitutional rights. See also

Brief of Appellant at 17, Edwards v. State, No. 99 (Md.

Ct. Spec. App. Nov. 24, 1995) (noting that “the Court of

—_ in Nance based its analysis of the admissibility

of grand jury testimony upon federal law”) (Opp.

App. la).

There is no question, moreover, that the Court of

Special Appeals expressly reviewed and decided peti-

tioner’s appeal on due process grounds. In rejecting

petitioner’s contention, the Court quoted from and relied

on the Court of Appeals’ holding in Nance that so long

as the minimal requirements of that case are met, “‘due

process of law is satisfied.” Pet. App. 12a (quoting

Nance, 629 A.2d at 644). That holding alone is suffi-

cient to preserve the issue for this Court’s review, for it

is an “‘elementary rule that it is irrelevant to inquire . . .

when a Federal question was raised in a court below

when it appears that such question was actually

considered and decided.’” Orr v. Orr, 440 U.S. 268,

274-75 (1979) (quoting Manhattan Life Ins. Co. v.

Cohen, 234 U.S. 123, 134 (1914)) (emphasis supplied).4

For all these reasons, the Due Process questions raised

in the petition are properly before the Court.

4 See also Ward v. Village of Monroeville, 409 U.S. 57, 61

(1972); Hill v. California, 401 U.S. 797, 805 (1971); Raley v.

Ohio, 360 U.S. 423, 436-37 (1959); Whitney v. California, 274

U.S. 357, 361-62 (1927), overruled on other grounds,

Brandenburg v. Ohio, 395 U.S. 444 (1969).

2. For these same reasons, the Court should also

reject the State’s contention that the rulings below rest

solely on “independent and adequate” state law grounds.

See Opp. at 11-12. Petitioner contends that the protec-

tions afforded him by the Maryland courts in this case

fall short of the guarantees provided him under the Due

Process Clause of the federal constitution. The

Maryland courts’ substantive rejection of this federal

claim cannot be insulated from this Court’s review

merely because the courts relied in part on a state rule of

evidence in reaching that result. See, e.g., Hathorn v.

Lovorn, 457 U.S. 255, 264-65 (1982) (state court’s

substantive rejection of federal claim is not an inde-

pendent and adequate state law ground).

Il. THE QUESTIONS PRESENTED ARE

IMPORTANT ONES THAT DIVIDE THE

LOWER COURTS

It is not surprising that the State devotes most of its

brief to arguing that the questions presented are not

properly before the Court, for the State cannot refute

that these are substantial questions worthy of this

Court’s review. When it finally addresses the merits of

the petition, the State argues (1) that this Court did not

leave open any due process issues in Green; and (2) that

the lower-court conflict on the questions presented does

not involve solely grand-jury statements. The first point

is wrong, but even if correct, it would not alter the im-

portance of the questions or the lower-court conflict over

them. The second point is correct, but irrelevant. The

important point is that the lower courts are completely

divided over the Due Process requirements affecting the

substantive use of uncorroborated, prior inconsistent

statements in criminal proceedings.

1. The State asserts that the Court in Green “in no

way ‘left open’ due process questions regarding the use

of all prior inconsistent statements ... .” Opp. at 14-15.

Even the most cursory reading of this Court’s opinion

belies that contention. Although in Green the Court

rejected the defendant’s Confrontation Clause argument,

the Court nevertheless expressly noted that “considera-

tions of due process, wholly apart from the Confronta-

tion Clause, might prevent convictions where a reliable

evidentiary basis is totally lacking... .” Green, 399

U.S. at 164 n.15 (citing Thompson v. Louisville, 362

U.S. 199 (1960)).

The State contends that this language, which clearly

leaves open a due process challenge to the use of prior

inconsistent statements as substantive evidence, in fact

forecloses such a challenge except where the declarant is

unavailable to testify at trial. See Opp. at 14-15. That is

simply not the case. The Court’s statement was made in

the context of distinguishing an earlier case, Bridges v.

Wixon, 326 U.S. 135 (1945), which had held that the use

of such evidence raised constitutional concerns. In

Bridges, however, the declarant was available to testify,

belying the State’s present contention that the issue left

open in Green applies only to absent declarants.

Even more importantly, lower courts applying Green

have not agreed with the State’s present interpretation.

As a result, whether or not Green left open the question

of Due Process limitations on the substantive use of

prior inconsistent statements, the lower courts have

treated that question as open and are now in conflict on

the answer to the question. See Vogel v. Percy, 691 F.2d

843, 846-47 (7th Cir. 1982) (applying due process

analysis left open in Green to case involving available

declarant); United States v. Orrico, 599 F.2d 113,

118-19 (6th Cir. 1979) (applying Green’s “strong hint”

that prior inconsistent statements are insufficient to

sustain conviction to case involving available declarant).

Moreover, as noted in our petition, Vogel and Orrico are

themselves the basis for numerous, divergent state court

rulings on the same issue. See Pet. at 18-22. We believe

that these courts correctly interpreted Green as leaving

open the due process issue in circumstances involving

available declarants. But even if, as the State contends,

it is debatable whether all of these courts have wrongly

interpreted Green, this merely presents further reason to

grant the petition to resolve that issue.°

2. The State likewise fails to rebut our contention

that the state and lower federal courts are in conflict

over the questions presented. It first contends that the

Federal Rules of Evidence and some analogous state

rules authorize the admission of prior inconsistent grand

jury testimony as substantive evidence. See Opp. at

16-17. But that is entirely beside the point. As this

Court made clear in Green, the scope of evidentiary

rules cannot dictate the scope of the federal Constitution.

See Green, 399 U.S. at 155-56.

The State’s attempt to dispel the existence of a conflict

on the questions presented essentially rests on its asser-

tion that only two of the cases relied on in our petition

involved grand jury testimony. But that is irrelevant.

Neither this Court in Green nor any of the cases cited in

the petition drew any distinction between grand jury

testimony and other statements. The rulings in these

cases applied to ail prior inconsistent testimony, and the

rulings are hopelessly in conflict. See Pet. at 17-22.

The State does not, and cannot, refute that central fact.®

5 The State contends in ing that “due process concerns were

dispensed with by then Chief Justice Burger” in his concurring

opinion in Green. Opp. at 15 n.5. In fact, the Chief Justice was

merely noting that the federal Constitution does not necessarily

follow traditional hearsay rules. See Green, 399 U.S. at 171-72

(Burger, C.J., concurring). But even if he would have “dispensed”

with due process challenges entirely, his views alone would not have

resolved the issue for the Court and would not alter the conflict that

now exists in the lower courts over the issue. It should also be

noted that, contrary to the State's implications (see Opp. at 15 n.5),

Justice Harlan’s concurring opinion in Green expressly left open the

possibility of a due process violation on the facts of that case. See

Green, 399 U.S. at 189 (Harlan, J., concurring).

ments at issue here are not comprised solely of grand jury testi-

[Footnote continued]

Finally, the State wrongly implies that the Maryland

courts in fact conducted an independent examination of

reliability in this case. See Opp. at 22. Yet as the State

itself concedes, under the rule applied in this case con-

victions may be predicated on prior inconsistent state-

ments without any independent examination of the relia-

bility of the statements or the circumstances under which

were made, and without any corroboration what-

ever. Jd. As we have shown, while a small minority of

courts follow that approach, others hold that such

convictions are impermissible per se, and still others

require an independent examination of reliability before

a conviction can be upheld. There is thus a clear,

persistent conflict among the lower courts on the

questions presented by this petition.

Ill. THE PRESENT CASE IS A COMPELLING

ONE FOR RESOLVING THE IMPORTANT

QUESTIONS PRESENTED

As we explained in the petition, this case—in which a

sixteen-year-old boy was convicted and sentenced to life

in prison on the basis of recanted out-of-court statements

of dubious reliability—plainly presents compelling cir-

cumstances for resolving the conflict among the feear

courts over the questions presented. In its opposition,

the State fails to refute this point.

Specifically, the State does not dispute that this case

rests entirely on uncorroborated extrajudicial statements

from teenage boys regarding petitioner’s alleged admis-

[Footnote continued]

mony. Rather, the trial court also admitted as substantive evidence

two unsworn statements allegedly made by Pierre Wilson. See Pet.

at 6. These were held admissible under Nance, because they were

signed writings. See Nance, 629 A.2d at 643. They would not

have been admissible, however, under Fed. R. Evid. 801(d)(1)(A),

because they were not “given under oath subject to the penalty of

perjury at a trial, hearing, or other proceeding, or in a deposition.”

sions of guilt. Indeed, in its own recitation of the evi-

dence, the State points to no evidence of guilt other than

these statements. See Opp. at 3-6. Nor does the State

dispute that these extrajudicial statements were obtained

through pressure tactics that even the trial judge found to

be questionable. And the State concedes that the vast

majority of the statements were expressly recanted at

trial. Finally, the State does not dispute that where, as

here, a conviction rests upon alleged extrajudicial state-

ments of guilt by the defendant, that conviction cannot

~be upheld without further corroborating evidence, which

was absent from this case. See Opper v. United States,

348 U.S. 84, 89 (1954).

These undisputed facts, we submit, squarely present

the questions this Court left unresolved in Green, and

present compelling circumstances for resolving the

conflict among the lower courts on the resolution of

those questions.

CONCLUSION

For the foregoing reasons and the reasons set forth in

the petition, the petition should be granted.

Respectfully submitted,