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Trial of man in slain toddler case ruled unconstitutional by high court

The New Yorker convicted in the death of a 2-year-old was denied his right to confront the witnesses against him when prosecutors read testimony into the record from an unavailable source.

WASHINGTON (CN) — Statements that the defendant had to make as part of his plea allocution did not "open the door" for prosecutors to trample his Sixth Amendment rights with inadmissible testimony, the Supreme Court ruled 8-1 on Thursday. 

The case stems from a 2006 shooting in the Bronx that killed 2-year-old David Pacheco. Prosecutors initially charged Nicholas Morris with Pacheco's murder but, after a mistrial, settled for Morris pleading guilty to possession of a .357 revolver. Importantly, Pacheco was killed with a bullet from a 9 mm handgun.

It was not until 2013 that investigators set their sights on Darrell Hemphill after a blue sweater that had been in evidence came up as a match for his DNA. Witnesses had described the shooter as a thin Black man wearing a blue top, but Hemphill said it was it cousin, Ronnell Gilliam, who was in the 2006 street fight that broke into gunfire.

Gilliam had pleaded guilty to a lesser charge as well, however, and testified that it was Hemphill who owned the 9 mm. Meanwhile, Hemphill intimated that Morris could have been the owner of both the .357 and the 9 mm. He noted that a police search of Morris' home turned up ammunition for both weapons. Prosecutors entered Morris' plea about the .357 revolver into evidence, and the jury returned a guilty verdict.

Hemphill was then given 25 years to life, a sentence that the New York Court of Appeals would affirm after ruling that he had forfeited his right cross-examine Morris because he made misleading claims about Morris' gun.

On Thursday, however, Justice Sonia Sotomayor wrote for the majority that this testimony violated Hemphill's rights under the Sixth Amendment to cross-examine the witnesses against him.

“The Confrontation Clause requires that the reliability and veracity of the evidence against a criminal defendant be tested by cross-examination, not determined by a trial court,” Sotomayor wrote. “The trial court’s admission of unconfronted testimonial hearsay over Hemphill’s objection, on the view that it was reasonably necessary to correct Hemphill’s misleading argument, violated that fundamental guarantee.” 

Back in October at oral arguments, the parties sparred over the constitutionality of the 2012 New York case People v. Reid, which says a criminal defendant can forfeit his right to exclude evidence otherwise barred by the Confrontation Clause if he "open the door" to it.

The majority ruled Thursday that there is no precedent for such a thing. 

“The Court has not held that defendants can ‘open the door’ to violations of constitutional requirements merely by making evidence relevant to contradict their defense,” Sotomayor wrote.

Hemphill's Sixth Amendment rights should have been the priority, according to the ruling.

“The role of the trial judge is not, for Confrontation Clause purposes, to weigh the reliability or credibility of testimonial hearsay evidence," Sotomayor wrote, "it is to ensure that the Constitution’s procedures for testing the reliability of that evidence are followed. ... For Confrontation Clause purposes, it was not for the judge to determine whether Hemphill’s theory that Morris was the shooter was unreliable, incredible, or otherwise misleading in light of the State’s proffered, unconfronted plea evidence. Nor, under the Clause, was it the judge’s role to decide that this evidence was reasonably necessary to correct that misleading impression. Such inquiries are antithetical to the Confrontation Clause.” 

In one of two concurring opinions that the case generated, Justice Samuel Alito said he agreed that the hearsay evidence against Hemphill violated the Sixth Amendment but that it is possible for defendants who have a full understanding of their rights to waive those rights. 

“Implied waiver can also occur when a defendant engages in a course of conduct that is incompatible with a demand to confront adverse witnesses,” Alito wrote. 

New York's rule has other issues, the justice found. 

“The problem with the New York rule at issue in this case is that its application is predicated on neither conduct evincing intent to relinquish the right of confrontation nor action inconsistent with the assertion of that right,” Alito wrote. “The introduction of evidence that is misleading as to the real facts does not, in itself, indicate a decision regarding whether any given declarant should be subjected to cross-examination.” 

Justice Brett Kavanaugh wrote a separate concurring opinion, and Justice Clarence Thomas was the sole dissenter. 

“Hemphill argues in this Court that the Reid rule violates the Sixth Amendment,” Thomas wrote. “That claim is not properly before us.” 

Saying Hemphill did not raise his Sixth Amendment claim before the New York Court of Appeals, Thomas described precedent saying that courts lack jurisdiction to review judgments of state courts on federal questions that have not been decided by those courts. Also according to Thomas, however, the court has recently abandoned this principle. 

“For most of our history, that requirement was unfailingly understood to be jurisdictional,” Thomas wrote. “And our cases have since departed from this principle without squaring that departure with §1257’s unqualified text. Accordingly, I would hold that this Court lacks jurisdiction to hear a federal claim on review from a state court where a petitioner, like Hemphill, fails to properly present his claim to the court below.” 

Thomas continues that the court’s action nullifies the state statute and is a grave matter. 

“That the Court decides this case despite Hemphill’s failure to present his claim to the New York Court of Appeals is not a mere academic defect,” Thomas wrote. “‘Federal nullification of a state statute,’ or any state rule, ‘is a grave matter.’”

Hemphill’s attorney and the Bronx County District Attorney’s Office did not immediately respond to requests for comment following the ruling. 

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