Amicus Curiae Brief — Smith v. United States

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0 | JUL AE 2049

No. 10-18 ) OFFICE CT TES CLERK |

FP "Suarare Cont. US.

IN THE

Supreme Court of the Anited States

WEBSTER M. SMITH,

Petitioner,

U.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to

the United States Court of Appeals

for the Armed Services

BRIEF FOR THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

Jeffrey T. Green Jonathan L. Marcus

NATIONAL ASSOCIATION Counsel of Record

OF CRIMINAL DEFENSE Gregory M. Lipper

LAWYERS Jennifer Reid Whitfield

1501 K Street, NW COVINGTON & BURLING LLP

pg ge it 20005-1401 499) Pennsylvania Ave., NW

: suites Washington, DC 20004

(202) 662-6000

jmarcus@cov.com

July 30, 2010

Table of Contents

Be eg cee Tea aRCE: |

Interest Of Amicus Curiae ...........cccccccccecceccucccceecesenseee

ee LTT TE POT Mae Ny EAGER)» Stee

CMTOTO IE ov cnnnnsscoiesscons: 3

Reasons for Granting the Petition...............000c.08. ot

I. Under De Novo Review, the Court of

Appeals Would Have Concluded that the

Limitations on Cadet Smith’s Cross-

Examination of His Accuser Violated The

Confrontation Clause. ................cccccccceceeceeees es

Il. The Standard of Review is Likely to Be

Dispositive In Cases Throughout the

RIE. ois eevee kur eerie ay iG

Conclusion .......... 20

is

Table Of Authorities

Cases

Brady v. Maryland,

$73 U.S. 83 (lOGS) icicle 9

Chambers v. Mississippi,

410 US. 26611919) nko eee 3

Commonwealth v. Bohannon,

378 N.E.26 967 (Mass. 1976)... 9

Davis v. Alaska,

45 U5. SG... eee } Oe be

Hannon v. State,

S¢ F.30 BaD (Wy0. FOO®) occ 13, 14

Michigan v. Lucas,

S00 US. 100 (ISG) ee 13

Obiazor v. United States,

9644.34 347 GG POO NS)

Olden v. Kentucky,

488 U.S. 227 (1988) (per curiam)............. il. 12. 33

Redmond v. Kingston,

nen Fae Goo Cie Ut, Dee... eee 10

United States v. Collier,

Seed. 20) CC AE. SOO 8

United States v. James,

rad, Se es oes ec 17,18

United States v. Jimenez,

464 F.3d 555 (5th Cir. 2006) ....0.00000o..

United States v. McElhaney,

54 M.J. 120 (C.A.A.F. 2000)...000000000..

United States v. Robinson,

583 F.3d 1265 (10th Cir. 2009)...

United States v. Rosa,

11 F.3d 315 (2d Cir. 1993) ......

Unzied States v. Scheetz.

293 F.3d 175 (4th Cir. 2002)

United States v. Vega Molina

407 F.3d 511 (1st Cir. 2008) .......

United States v. Velarde.

485 F.3d 553 (10th Cir. 2007)...

United States v. Wilmore.

381 F.3d 868 (9th Cir. 2004).....

White v. Coplan,

399 F.3d 18 (1st Cir. 2005) .......

Other Authorities

Military Rule of Evidence 412(a)...

4,18

9, 14

Interest Of Amicus Curiae

The National Association of Criminal Defense

Lawyers (“NACDL”) is a nonprofit professional bar

association that works on behalf of criminal defense

attorneys to ensure justice and due process for those

accused of crimes or misconduct.! Founded in 1958,

NACDL has a membership of more than 11,000 and

affiliate memberships of almost 40,000. NACDL’s

members include private criminal defense lawyers,

public defenders, military defense counsel, law pro-

fessors, and judges. The American Bar Association

recognizes NACDL as an affiliated organization and

awards it full representation in its House of Dele-

gates.

NACDL has participated as amicus in many of

the Court’s most significant criminal cases, including

in cases in which the Court has recognized the im-

portance of the rights protected by the Confrontation

Clause. The Court’s review of this case is critical to

ensuring that trial courts do not unduly limit crimi-

nal defendants’ rights to cross-examine key wit-

nesses against them—rights that ensure the

| Each party has consented to the filing of this brief. Pursu-

ant to Rule 37.6, counsel for amicus curiae states that no

party's counsel authored this brie* in whole or in part and that

no party or party's counsel made a monetary contribution in-

tended to fund the preparation or submission of this brief. No

person other than amicus curiae, its members, or its counsel

made a monetary contribution to this briefs preparation or

submission. Pursuant to Rule 37.2, counsel of record for all

parties received timely notice of amicus’s intention to file this

brief.

2

integrity and preserve the truth-seeking function of

the criminal trial.

Introduction

Petitioner Webster Smith’s rights under the Con-

frontation Clause were violated by restrictions on his

ability to cross-examine his accuser about her motive

to fabricate sexual assault allegations against him.

Had the court of appeals reviewed these restrictions

de novo, as would have five other circuits, Cadet

Smith’s confrontation rights would have been vindi-

cated; reviewing for abuse of discretion, however, the

court of appeals upheld the limitations and affirmed

his convictions by a vote of 3-2. Moreover, the con-

flict in the circuits over the correct standard of re-

view is producing disparate results nationwide. The

Court should resolve this conflict because it impli-

cates an issue of fundamental importance, the scope

of a defendant’s constitutional right to confront his

accusers.

First, Cadet Smith would have prevailed on ap-

peal had review been de novo because the excluded

cross-examination was central to establishing a pat-

tern of false accusations by his accuser and her mo-

tive to implicate him. The dispute at trial was

whether his sexual encounter with his accuser was

coerced or consensual. Yet the trial judge prohibited

Cadet Smith from cross-examining his accuser about

a prior instance in which she had falsely alleged that

a consensual encounter (with an enlisted man) was

coerced. Courts in circuits that review de novo have

overturned sexual assault convictions tainted by

similar restrictions, and they have recognized that

3

information about prior false allegations of sexual

assault is essential to a jury’s assessment of an ac-

cuser’s credibility. This Court’s precedents confirm

that the trial court erred in prohibiting Cadet Smith

from eliciting this critical information.

Second, the standard of review affects not just

this case, but others nationwide. Courts applying de

novo review give meaningful scrutiny to limitations

on cross-examination that implicate the Confronta-

tion Clause and give full effect to defendants’ consti-

tutional right to thoroughly examine their accusers’

credibility; courts reviewing for abuse of discretion

far more readily uphold such restrictions. Thus, con-

stitutional violations that are redressed in the cir-

cuits that review de novo would be left undisturbed

in circuits that review only for abuse of discretion.

“The right of cross-examination is more than a

desirable rule of trial procedure. It is implicit in the

constitutional right of confrontation, and helps as-

sure the accuracy of the truth determining process.”

Chambers v. Mississippi, 410 U.S. 284, 295 (1978).

Considering the importance of a defendant’s right to

cross-examine his accusers, the divergent protection

of this right across the circuits warrants this Court’s

attention. The petition should be granted.

Statement

Webster Smith, a cadet at the Coast Guard

Academy, was convicted of sexually assaulting a fe-

male classmate (“SR”). He maintained that the en-

counter was consensual. SR had recently falsely

accused an enlisted man of sexual assault. She later

4

admitted that this encounter was consensual (and

thus a violation of Coast Guard Academy rules that

could have resulted in her expulsion and criminal

prosecution). The trial court prohibited Cadet Smith

from cross-examining SR about her prior false accu-

sation, which Cadet Smith sought to introduce as

evidence of her motives to fabricate, and pattern of

fabricating, allegations of sexual assault because she

feared military discipline and possibly criminal

prosecution.

The False Accusations. SR initially told Cadet

Smith that her previous sexual encounter—which

had generated rumors among enlisted personnel—

was not consensual. Pet. App. 60a. With SR’s ap-

proval, Cadet Smith “informed the enlisted personnel

who were spreading the rumors that the conduct was

not consensual.” Jd. But SR ultimately told Cadet

Smith that “the incident with the enlisted man had

been a consensual encounter and that the scope of

the encounter had been greater than she had previ-

ously described.” Jd.

In this case, SR alleged that Cadet Smith sexu-

ally assaulted her in the Academy dormitory. She

did not allege that Cadet Smith used physical force.

Rather, she claimed that he coerced her into engag-

ing in sexual activity by suggesting that he needec

“motivation” to continue to counteract rumors about

her previous consensual sexual encounter with an

enlisted man. Id. at 3a.

The Trial. At trial, Cadet Smith sought to cross-

examine SR about her prior false accusation. He

sought to use this evidence to “establish [SR’s] pat-

5

tern of lying about sexual events,” id. at 4a, in order

to “protect herself from discipline,” id. at 27a. Under

cadet regulations, “sexual conduct is prohibited on

Coast Guard Academy installations even if it is be-

tween consenting cadets.” Jd. at 16a n.3. Cadets

who violate this prohibition can be expelled. /d.

The government argued that this line of ques-

tioning was barred by Military Rule of Evidence

412(a), which precludes evidence of an alleged vic-

tim’s prior sexual behavior unless the exclusion of

such evidence would violate the accused’s constitu-

tional rights. Jd. at 6la. The trial judge concluded

that the Confrontation Clause did not entitle Cadet

Smith to cross-examine SR about her prior false ac-

cusations of sexual assault. Id. at 6la—64a.

Instead, the trial judge permitted Cadet Smith to

inform the jury only that his accuser had a “secret”

that “if revealed could have an adverse impact on her

Coast Guard career, including possibly disciplinary

action under the UCM.” Id. at 62a. The trial judge

believed that Cadet Smith’s Confrontation Clause

right was protected by this “generic formulation.” Jd.

As relevant here, the jury found Cadet Smith guilty

on the three counts relating to his sexual encounter

with SR.

The Appeals. On appeal, a divided Coast Guard

Court of Criminal Appeals affirmed. Jd. at 23a—33a.

The dissent concluded that the trial court’s restric-

tions on Cadet Smith’s cross-examination violated

the Confrontation Clause. According to the dissent,

had Cadet Smith been permitted to show that his ac-

cuser had falsely accused another person of sexual

6

assault following a consensual encounter, “members

could [have] infer[red] that she had followed a simi-

lar scheme in fabricating a false complaint of inde-

cent assault against [Cadet Smith].” Jd. at 42a—43a.

The dissent noted that “the Government made first

use of evidence of SR’s secret in its case-in-chief to

prove that she was extorted and coerced into sexual

relations with [Cadet Smith],” id. at 41a, yet the trial

judge’s ruling precluded Cadet Smith from counter-

ing the government’s theory “by showing the depths

of SR’s fear [of disclosure of the secret] and the

lengths she allegedly had gone—and was prepared to

go—to shield the facts of her misconduct,” id. at 43a.

Moreover, by requiring euphemistic references to a

“bad situation” or “secret,” id., the trial judge “al-

lowed the Government to create a substantially dif-

ferent impression of [SR’s] truthfulness than what

the defense had sought to show through the excluded

evidence,” id. at 41a.

The Court of Appeals for the Armed Forces also

divided on the Confrontation Clause issue and af-

firmed by a vote of 3-2. Id. at la—2la. Both the plu-

rality and concurring opinions upheld the trial

judge’s ruling after reviewing it for abuse of discre-

tion. Jd. at 5a, 8a-~10a. The dissent countered that

the trial judge’s ruling “deprived Smith of his best

opportunity to provide a motive for SR’s allegations

and to challenge her credibility.” Jd. at 19a. Instead,

with “limited information about SR’s secret, the

[jury] members were left to speculate whether the

secret was a minor disciplinary infraction or a more

serious charge, but they had no idea that the prof-

fered evidence directly implicated SR’s motive” to “lie

about the consensual nature of her sexual activities

to protect her career.” Jd. at 19a, 2la. The dissent

would have reversed because the jury never heard

Cadet Smith’s “commonsense explanation for SR’s

claim that the sexual activity was nonconsensual.”

Id. at 21a.

Reasons for Granting the Petition

I. Under De Novo Review, the Court of

Appeals Would Have Concluded that the

Limitations on Cadet Smith’s Cross-

Examination of His Accuser Violated The

Confrontation Clause.

The ultimate result in Cadet Smith’s case hinges

on the issue identified in the petition and on which

the circuits diverge: whether challenges to limita-

tions on cross-examination that implicate the Con-

frontation Clause are reviewed de novo or for abuse

of discretion. The court of appeals reviewed the trial

judge’s limitations on cross-examination for abuse of

discretion. A court reviewing de novo would have

reached a different result.

A. Although the trial court’s restrictions on Ca-

det Smith’s cross-examination of his accuser ham-

strung his defense, his opportunity to secure

appellate relief was narrow. The precedent of the

Court of Appeals for the Armed Forces required Ca-

det Smith to establish that the trial judge’s ruling

“was arbitrary, fanciful, clearly unreasonable, or

clearly erroneous.” United States v. McElhaney, 54

M.J. 120, 130 (C.A.A.F. 2000) (quotations omitted).

Indeed, that court will uphold restrictions on cross-

8

examination if the trial judge merely “articulate[d]

[his] balancing analysis on the record.” United

States v. Collier, 67 M.J. 347, 353 (C.A.A.F. 2009).

In applying that deferential standard, the court

of appeals failed to meaningfully address Cadet

Smith’s argument that cross-examination of his ac-

cuser about her prior false allegations of sexual as-

sault would have established her specific motive to

fabricate the sexual assault allegations against him.

Specifics about SR’s “secret” were critical to bolster-

ing Cadet Smith’s defense that SR would go to great

lengths to protect her career and avoid possible

criminal prosecution. The jury might have had little

reason to believe that SR would have falsely accused

someone of sexual assault to avoid potential military

discipline or prosecution unless Cadet Smith could

establish that she had done so once before.

In addition, upon learning that this was SR’s

second unlawful, consensual sexual encounter in the

military environment, the jury would have better

understood the intensity of her desire to lie. How-

ever weighty the risk of discipline that normally

might accompany consensual sexual activity in a

Coast Guard dormitory, discipline presumably would

have been more certéin and severe after a second

unlawful encounter than after just one.

As a result, a court reviewing de novo almost cer-

tainly would have granted Cadet Smith relief. For

instance, the First Circuit held under a de novo

standard that a defendant's rights under the Con-

frontation Clause were violated by limitations on his

ability to cross-examine his accusers about prior

9

false allegations of sexual assault. White v. Coplan,

399 F.3d 18 (1st Cir. 2005) (Boudin, J.). In White,

two girls accused the defendant of sexual assault; the

trial court prohibited the defendant from examining

them about their prior false allegations. Jd. at 20.

In reversing, the First Circuit found it significant

that “[t]he past accusations were about sexual as-

saults, not lies on other subjects.” Jd. at 24. Because

the past accusations involved the same conduct of

which the defendant was accused, the court con-

cluded that “fiJf the prior accusations were false, it

suggests a pattern and a pattern suggests an under-

lying motive”’—‘“very potent proof in [the defendant's]

favor.” Jd.

Other courts have reached the same conclusion.

The Massachusetts Supreme Judicial Court over-

turned a defendant’s rape conviction after the trial

judge precluded him from examining his accuser

about a prior false rape allegation; the accuser’s

credibility might have been “seriously damaged” by

“fe]vidence of prior false accusations of the specific

crime which is the subject of the trial.” Common-

wealth v. Bohannon, 378 N.E.2d 987, 991 (Mass

1978). Likewise, the D.C. Court of Appeals held that

the Confrontation Clause required reversal of a de-

fendant’s sexual assault conviction because the trial

court should have “allow[ed] cross-examination on

the subject of [the accuser’s}] prior sexual allegation

to support [the] defense’s bias theory.” Obuiazor v.

United States, 964 A.2d 147, 153 (D.C. 2009).2

2 Similarly, in considering a sexual-assault defendant's claim

under Brady v. Maryland, 373 U.S. 83 (1963), the Tenth Circuit

10

A meaningful cross-examination about SR’s prior

false allegation was especially important to allow

Cadet Smith to provide context to the jury for a de-

fense that might otherwise have seemed farfetched.

In Redmond v. Kingston, the Seventh Circuit recog-

nized the importance of providing such context. 240

F.3d 590 (7th Cir. 2001) (Posner, J.). There, applying

de novo review, the court held that a trial court's re-

fusal to permit cross-examination of the accuser

about her prior false allegation of rape violated the

Confrontation Clause. While the trial court had

ruled that such examination “was cumulative of

other evidence” that the accuser “had told les in the

past,” the Seventh Circuit observed that “none of the

other [admitted] evidence either involved a false

charge of being sexually assaulted or furnished a mo-

tive for such a charge.” /d. at 591 (quotations omit-

ted). Cross-examination about the prior rape

allegation could have established a motive, the court

concluded, “for what would otherwise be an unusual!

fabrication [against the defendant}.” Id. at 592.

8. The court of appeals also improperly deferred

to the trial judge’s suggestions that the prohibited

line of cross-examination was embarrassing, distract-

ing, unreliable, and unrelated. A more searching re-

view would have revealed that the trial judge

misapplied the law in invoking these concerns.

a a

concluded that the accuser’s prior, false accusations of sexual

assault created a “reasonable probability that, had the defense

known of this evidence, the result ui ihe proceeding would have

been different.” United States v. Velarde, 485 F.3d 553, 563

(10th Cir. 2007) (McConnell, J.)

1]

1. The court of appeals improperly deferred to

the trial court’s concern about “unfair prejudice to

{the accuser’s] privacy interests.” Pet. App. 64a. Be-

cause the defendant’s right of confrontation trumps

concerns about embarrassment to his accuser, a

court reviewing de novo would have reached a differ-

ent conclusion.

This Court's decision in Davis v. Alaska, 415 U.S.

308 (1974), is instructive. In that case, one of the

state’s key witnesses against the defendant was on

probation from a juvenile conviction. The defendant

sought to cross-examine the witness about his “vul-

nerable status as a probationer” and about his “pos-

sible concern that he might be a suspect in the

investigation.” Jd. at 318. The trial court, however,

accepted the prosecution’s argument that “exposure

of a juvenile’s record of delinquency would likely

cause impairment of rehabilitative goals of the juve-

nile correctional procedures” and “cause the juvenile

offender to lose employment opportunities or other-

wise suffer unnecessarily for his youthful transgres-

sions.” Id. at 319. This Court held that these

concerns—including that “embarrassment might re-

sult to [the witness] or his family by disclosure of his

juvenile record’—were “outweighed by petitioner's

right to probe into the influence of possible bias in

the testimony of a crucial [prosecution] witness.” Jd.

In Olden v. Kentucky, 488 U.S. 227 (1988) (per

curiam), this Court reaffirmed the importance of

cross-examination into an accuser’s motivation—

even if it might embarrass her—in a case involving

allegations of sexual assault. In Olden, a white

woman accused a black man of rape. See id. at 228-

32. The defendant maintained that the sex was con-

sensual, and he sought to introduce evidence that his

accuser lied to avoid jeopardizing her romantic rela-

tionship with another man (who the jury knew was

black). Jd. at 232. The trial court forbade the defen-

dant from pursuing this cross-examination, con-

cerned that “revealing [her] interracial relationship

would prejudice the jury against her.” Jd. In revers-

ing, the Court reiterated that concerns about embar-

rassment to the accuser, even as relates to sex,

“cannot justify exclusion of cross-examination with

such strong potential to demonstrate the falsity of

[her] testimony.” Jd.

So too here. It was not enough for the trial court

to invoke the “high value we as a society place on

keeping our sexual behavior private.” Pet. App. 61a.

However substantial this concern under the rules of

evidence, it “cannot require yielding of so vital a con-

stitutional right as the effective cross-examination

for bias of an adverse witness.” Davis, 415 U.S. at

320. The force of the Court’s holdings in Davis and

Olden is especially strong here, since Cadet Smith

sought to cross-examine SR not on the details of the

previous sexual encounter itself, “but rather the alle-

gation that SR had previously lied about a sexual en-

counter under similar circumstances.” Pet. App. 18a

(Erdmann, J., dissenting).

2. The court of appeals further erred in defer-

ring to the trial court’s concern about “the potential

danger of sidetracking [the jury’s] attention.” Pet.

13

App. 64a. In this classic case of he-said/she-said, the

accuser’s motive to hie was anything but collateral.

Even when concerns about distracting the jury

are legitimate, “[rJestrictions on a criminal defen-

dant’s rights to confront adverse witnesses and to

present evidence may not be arbitrary or dispropor-

tionate to the purposes they are designed to serve.”

Michigan v. Lucas, 500 U.S. 145, 151 (1991) (quota-

tions omitted). Especially in light of less restrictive

alternatives such as limiting instructions, general-

ized concerns over “confusion of issues” must yield to

the “strong potential [of cross-examination] to dem-

onstrate the falsity of [the accuser’s] testimony.”

Olden, 488 U.S. at 232.

Here, Cadet Smith’s proposed line of questioning

would not even have distracted the jury, because SR

was the only witness against him as to the sexual as-

sault charges. Cases such as Hannon v. State, 84

P.3d 320 (Wyo. 2004), instruct that when the lone

witness's motive to lie is central to the case, limita-

tions on cross-examination are especially suspect. In

Hannon, the accuser implicated the defendant in a

sexual assault only after the accuser himself was

questioned by police about his role in sexually as-

saulting someone else. Jd. at 332. The trial court

prohibited the defendant from cross-examining the

accuser about his motive to deflect attention away

from his own sexual improprieties. In reversing the

conviction, the Wyoming Supreme Court noted the

centrality of the accuser’s motive where—as here—

the accuser 1s the lone witness against the defen-

dant. See id. Whatever the residual risk of side-

14

tracking the jury, the court concluded, the defendant

was entitled “to fully explore this before the jury.”

Id.

Not only was SR’s “secret” the core of Cadet

Smith’s defense, but there was little risk of an in-

terminable sideshow. Cadet Smith sought only to

question his accuser about the prior incident; he did

not seek to introduce extrinsic evidence that might

have bogged down the trial. Other courts have rec-

ognized that “[i]f the witness were prepared to admit

on the stand that a prior accusation of similar nature

was false,” then “[n]o time-consuming excursion be-

yond the witness would be required.” White, 399

F.3d at 25.

3. Third, the court of appeals improperly de-

ferred to the trial] court’s reliance on its own assess-

ment of Cadet Smith’s credibility in precluding his

proposed line of cross-examination. The trial court

discounted the evidence of the prior false allegation

as “not strong” because it “comes from the accused,

who has an obvious bias.” Pet. App. 63a.

But it was not for the trial judge to resolve

whether Cadet Smith or his accuser was telling the

truth. Courts applying de novo review recognize that

it is improper to assume that a prosecution’s wit-

ness—who, as here, herself may “have an obvious

3. See also, e.g., United States v. Wilmore, 381 F.3d 868, 870

(9th Cir. 2004) (defendant entitled to cross-examine witness

about prior false allegations against him, notwithstanding trial

judge's desire to avoid “a circus” that would result from the

witness's repeated invocation of the Fifth Amendment).

bias’—is telling the truth. See United States v.

Jimenez, 464 F.3d 555, 559-62 (5th Cir. 2006).

As this Court explained in Davis, a court “cannot

speculate as to whether the jury, as sole judge of the

credibility of a witness, would have accepted this line

of reasoning had counsel been permitted to fully pre-

sent it.” 418 U.S. at 317. To the contrary, “the ju-

rors were entitled to have the benefit of the defense

theory before them so that they could make an in-

formed judgment as to the weight to place on [the ac-

cuser’s} testimony.” Id.

4. Finally, the trial judge improperly con-

cluded that “even if [SR] falsely told [Cadet Smith] in

confidence that her sexual encounter with the

enlisted man was nonconsensual in an effort to sup-

press rumors, this would have little value in proving

that her official allegations against Cadet Smith re-

sulting in a public trial are also false.” Pet. App. 64a

(emphasis omitted).

For one, SR’s first set of false allegations were

more than private. She not only shared the false al-

legations with Cadet Smith, but allowed him to tell

others that the enlisted man had sexually assaulted

her-—in order to counter public rumors that she had

engaged in unlawful consensual sexual activity. And

SR would have known that her first set of false alle-

gations, once they went public, could have reached

law enforcement and resulted in the enlisted man’s

prosecution.

Even more importantly, both sets of allegations

formed a single course of conduct. The prosecution

16

used SR’s “secret” to make its case. As the dissent in

the Coast Guard Court of Criminal Appeals correctly

explained, “the prosecution was able to present evi-

dence that SR was coerced into unwanted sexual re-

lations with [Cadet Smith] by the implied threat that

he would reveal the facts of her ‘bad situation.” Id.

at 43a. But the defense was prohibited from high-

lighting that the nature of this “secret” reflected a

pattern of SR’s false allegations of sexual assault and

supplied a motive for her to falsely accuse Cadet

Smith. The unnamed “secret” suggested that SR was

coerced without physical force; only the details of

that secret would have exposed SR’s pattern of false

allegations of coerced sexual activity to avoid milli-

tary discipline.

An unexplained “secret” about an undisclosed

“bad situation” is one thing. A pattern of false alle-

gations about sexual assault is quite another. With-

out the chance to cross-examine his accuser about

the details of her prior false accusation, Cadet

Smith's right to confrontation was irreparably im-

paired. Because a court reviewing de novo could not

have held otherwise, this case presents an ideal ve-

hicle to resolve the circuit conflict identified in the

petition.

Il. The Standard of Review is Likely to Be

Dispositive In Cases Throughout the

Country.

The effect of deferential review on Cadet Smith's

case is not unique. The difference between review de

17

novo and for abuse of discretion is likely to affect the

outcome in Confrontation Clause appeals nation-

wide: the deferential standard applied by some cir-

cuits leads them to reject meritorious Confrontation

Clause claims that would likely be successful in cir-

cuits reviewing de novo.

Courts reviewing for abuse of discretion tend to

uphold decisions providing only minimal] latitude for

defendants to cross-examine even key witnesses

against them. For example, in United States v. Rosa,

11 F.3d 315 (2d Cir. 1993), the Second Circuit upheld

restrictions on cross-examination of a federal agent

about gaps in his written report. Reviewing for

abuse of discretion, the court determined that the

“challenged testimony was so strongly corroborated

by others officers participating in the same surve1l-

lance who testified to the same observation, that it

was highly unlikely that the jury would have drawn

any adverse inference from the absence of mention of

the event in the first agent’s written report.” Jd. at

337.

Similarly, in United States v. James, 61 M.J. 132

(C.A.A.F. 2005) the Court of Appeals for the Armed

Forces upheld limitations on cross-examination

about the witness’s plea agreement, since the jury

was already aware of the plea agreement and “limit-

ing the cross-examination simply precluded addi-

tional questioning on the subject.” Jd. at 135. And in

United States v. Scheetz, 293 F.3d 175 (4th Cir.

2002), the Fourth Circuit upheld the district court’s

preclusion of questioning witnesses about minimum

and maximum sentences, because the judge had in-

18

structed the jury about how the sentencing process

operates generally. Jd. at 184.

Under de novo review, by contrast, courts afford

defendants the necessary leeway to thoroughly ex-

plore the credibility of key prosecution witnesses.

Thus, in United States v. Vega Molina, 407 F.3d 511

(1st Cir. 2005), the First Circuit reversed the defen-

dant’s conviction after the trial court prohibited him

from cross-examining an alleged co-conspirator about

details of her prior criminal acts, because such ques-

tioning “had the potential” to undermine her credibil-

ity. Jd. at 523. And in United States v. Wilmore, 381

F.3d 868 (9th Cir. 2004), the Ninth Circuit over-

turned restrictions on cross-examination about in-

consistencies in the witness's testimony even though

it was “impossible to know what such cross-

examination would have revealed, if anything at all.”

Id. at 8738.

The disagreement between the majority and dis-

sent in a recent Tenth Circuit case illuminates how

Confrontation Clause appeals can turn on the stan-

dard of review. In United States v. Robinson, 583

F.3d 1265 (10th Cir. 2009), the Tenth Circuit major-

ity—reviewing de novo—held that the Confrontation

Clause required that the defendant be permitted to

cross-examine an informant about his mental health

history. Jd. at 1275. Conducting its own analysis,

the majority concluded that the excluded cross-

examination “into the [informant’s] mental health

history may have undermined [his] credibility as a

witness.” Jd, The dissent, however, applied a differ-

ent standard and reached a different result. Noting

19

that the district court had concluded that such evi-

dence would have been more prejudicial than proba-

tive, the dissent stated, “] cannot say the district

court abused its discretion.” Jd. at 1281 (Tymkovich,

J., dissenting).

As these cases confirm, the conflict over the

standard of review in Confrontation Clause cases is

not academic. When appellate courts review for

abuse of discretion, defendants such as Cadet Smith

are unable to redress violations of their constitu-

tional confrontation rights, even when relief would

be available from courts reviewing de novo. Given

that the different standards of review will often pro-

duce different outcomes—in cases about a constitu-

tional protection fundamental to the fairness of

criminal trials—the Court should grant the writ of

certiorari and resolve the question presented.

20

Conclusion

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Jeffrey T. Green Jonathan L. Marcus

NATIONAL ASSOCIATION Counsel of Record

OF CRIMINAL DEFENSE Gregory M. Lipper

LAWYERS Jennifer Reid Whitfield

1501 K Street, NW | COVINGTON & BURLING LLP

Washington, DC 20005-1401 1201 Pennsylvania Ave, NW

(202) 736-8291 Washington, D.C. 20004

(202) 662-6000

jmarcus@cov.com

July 30, 2010