A new and interesting case on the not-for-truth end run

Stu Dedopoulos, a blog reader who diligently keeps me informed, has told me about Orlando v. Nassau County District Attorney’s Office, an interesting Second Circuit case decided this week.  In a 2-1decision, the majority (Circuit Judge Droney, joined by Circuit Judge Jacobs), upheld a Confrontation Clause challenge on habeas.  I think this was probably the right decision, but it’s a tough case, and there’s a very fine dissent by District Judge Shea.  The case is a good illustration of the difficulties that arise when the prosecution tries to justify what appears at first glance to be a blatant Confrontation Clause violation by citing an arguably plausible not-for-the-truth basis of admissibility.  Evidence teachers might find that it’s good fodder for an exam question.

Mark Orlando was accused of paying Herva Jeannot to murder Bobby Calabrese, allegedly to avoid paying a $17,000 gambling debt.  The police, believing that Orlando and Jeannot had been together the night of the shooting (in Island Park, NY, a few miles from where I grew up), interviewed them separately.  Orlando at first said he and Jeannot had gone together to pay Calabrese, they did so, and then left, without incident.  After some hours, one of the detectives returned repeatedly, eventually telling Orlando that Jeannot had given what they felt were “truer versions” of the events, and that Jenanot had admitted shooting Calabrese but said that Orlando had paid him to do it.  At that point, Orlando, who had said he was afraid of Jeannot, gave another statement, to the effect that after he paid Calabrese Jeannot unexpectedly shot him and took the money.

Orlando and Jeannot were both charged with murder.  The trials were severed, quite properly given Jeannot's confession, which plainly could not be introduced against Orlando for the truth of what it asserted.  But at Orlando's trial, the prosecution, over objection, presented evidence of all of the encounters between Orlando and the police described above – Orlando's first statement, the later interchange between Orlando and the detective, including the detective's summary of and apparent endorsement of Jeannot's statement admitting to the shooting and implicating Orlando, and Orlando's second statement acknowledging being present at the time Jeannot shot Calabrese.  Orlando was convicted, lost on appeals in the New York system and before the district court on his habeas petition, but won in the court of appeals.

I think the majority was right to emphasize that Jeannot was effectively a witness against Orlando; his statement was plainly testimonial.  I think it's also clear that, despite a limiting instruction that the trial judge gave, it's virtually certain that the jury would consider Jeannot's statement for the truth of its assertion that Orlando paid for the killing.  And, as the majority points out, in this case the evidence included not only the substance of the accusatory confession but also an effective endorsement by the police, a factor not present in Bruton.

But the case is not quite like Bruton.  There, the statement was admissible against the confessor, Evans, not against his co-defendant, Bruton.  The Supreme Court held that a limiting instruction would be ineffective; severance was required.  Here, there already was severance.  But the argument is that the evidence was admissible against Orlando for some reason other than to prove the truth of what it asserted.  And it is clear under Tennessee v. Street, which was reaffirmed by Crawford, that a statement does not pose a Confrontation Clause problem when it is admitted to prove some proposition other than the truth of a matter it asserted.

So what was that other proposition?  I take it as given that the prosecution had good grounds to show that Orlando gave shifting exculpatory stories; a person is more likely to shift stories if he is guilty and is adjusting to new information than if he is innocent. The explanation given by Orlando in the police station, and by counsel at trial, is that he was afraid of Jeannot, and so unwilling to say that Jeannot had shot Calabrese until he heard that Jeannot had confessed to doing so.  (Orlando had no objection to the jury hearing that Jeannot had confessed to being the triggerman.)  The fact that Orlando had also heard that Jeannot accused Orlando of having paid for the murder, and that the police were disposed to believe Jeannot, might make this account less plausible; it might suggest that Orlando changed his story only under pressure of knowing he was being credibly accused, and that he came up with an account that was exculpatory but fit the evidence that he knew the police had in hand (proof that he had the debt to Calabrese, that he was with Jeannot the night of the murder, and that Jeannot had admitted being the triggerman).

I'm willing to assume that this is a valid basis for admission.  Nevertheless, it appears to me to be a bad case of the tail wagging the dog.  The harm to the prosecution of not allowing this contextualizing evidence is nowhere near as weighty as the virtual certainty that the jury will take Jeannot's statement as proof that Orlando paid for the killing.  So I think sometimes the Confrontation Clause demands a balancing of how significant the valid evidentiary use is as compared to the probability that the jury will use the out-of-court testimonial statement, notwithstanding a limiting instruction, as proof of what it asserts.  Here, I think the majority drew the balance correctly.  It was virtually certain that the evidence would result in a Confrontation Clause violation, on the issue at the core of the case.  And the evidence, while helpful to the prosecution on the basis on which it was offered, was by no means essential.

I think this last point is especially so because, as the majority suggests, there were lesser alternatives.  For example, I believe a good solution would have been to allow the detective to testify that he had told Orlando that Jeannot had confessed to pulling the trigger but that the police had reason to believe that Orlando may have paid for the killing.  (There was some other evidence besides Jeannot's statement suggesting this that was presented to the jury, starting with the existence of the gambling debt and Orlando's friendship with Jeannot; there was also the lack of an apparent motive on the part of Jeannot.)  That, it seems to me, would have given the prosecution essentially all it needed, but without recital of the substance of an out-of-court accusation.

Two related points make the type of problem exemplified by this case both interesting and difficult.  First, I believe we are looking for second-best solutions.  That is, the ideal solution would be that the prosecution gets everything to which it is entitled and the accused's conforntation right is fully protected, but that is not always possible.  (In this case, I think we can get close.)  Second, I believe we are in an area of balancing – probability of a Confrontation Clause violation against loss of evidence used for a valid purpose – and that makes me very uneasy.  Sure, balancing is appropriate in many areas of the law, certainly including evidentiary matters, but when the Confrontation Clause is at stake hard-edged rules are more likely to provide protection, and that is one of the advantages of Crawford as compared to the old regime of Ohio v. Roberts. (I do believe there are other areas of Confrontation Clause doctrine that demand balancing.  For example, determining unavailability is often a matter of degree, and I believe so also is the question of the extent of mitigating action the state should be required to take before it can successfully contend that the accused forfeited the confrontation right by misconduct.)  It's too easy in cases of this sort, especially on habeas, just to say the prosecution had a good enough reason to justify admission, and so I give the majority credit, especially in the face of a careful and perceptive dissent, for declining to take that path.