This special edition examines the decisions of the United Supreme Court handed down June 10, 1999.

Lily v. Virginia  The Supreme Court strikes down this capital conviction, with all the Justices joining the majority or concurring, on the basis of a Sixth Amendment confrontation clause violation.  From the syllabus:

 
Petitioner, his brother Mark, and Gary Barker were arrested at the end of a 2-day crime spree, during which they, inter alia, stole liquor and guns and abducted Alex DeFilippis, who was later shot and killed. Under police questioning, Mark admitted stealing alcoholic beverages, but claimed that petitioner and Barker stole the guns and that petitioner shot DeFilippis. When Virginia called Mark as a witness at petitioner’s subsequent criminal trial, Mark invoked his Fifth Amendment privilege against self-incrimination. The trial court then admitted his statements to the police as declarations of an unavailable witness against penal interest, overruling petitioner’s objections that the statements were not against Mark’s penal interest because they shifted responsibility for the crimes to Barker and petitioner, and that their admission would violate the Sixth Amendment’s Confrontation Clause. Petitioner was convicted of the DeFilippis murder and other crimes. In affirming, the Virginia Supreme Court found that the Confrontation Clause was satisfied because Mark’s statements fell within a firmly rooted exception to the hearsay rule. The court also held that the statements were reliable because Mark knew that he was implicating himself as a participant in numerous crimes and because the statements were independently corroborated by other evidence at trial.

Held:  The judgment is reversed, and the case is remanded.
255 Va. 558, 499 S. E. 2d 522, reversed and remanded.

    Justice Stevens, delivered the opinion of the Court with respect to Parts I, II, and VI, concluding:

    1.  This Court has jurisdiction over petitioner’s Confrontation Clause claim. He expressly argued the claim in his opening brief to the Virginia Supreme Court; and his arguments based on Williamson v. United States,512 U.S. 594, and the Confrontation Clause opinion of Lee v. Illinois,476 U.S. 530, in responding to the Commonwealth’s position, sufficed to raise the issue in that court. P. 4.

    2.  The admission of Mark’s untested confession violated petitioner’s Confrontation Clause rights. Adhering to this Court’s general custom of allowing state courts initially to assess the effect of erroneously admitted evidence in light of substantive state criminal law, the Virginia courts are to consider in the first instance whether this Sixth Amendment violation was “harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24. P. 21.

    Justice Stevens, joined by Justice Souter, Justice Ginsburg, and Justice Breyer, concluded in Parts III, IV, and V that Mark’s hearsay statements do not meet the requirements for admission set forth in Ohio v. Roberts, 448 U.S. 56, 66. Pp. 4—21.

    (a)  The Confrontation Clause ensures the reliability of evidence against a defendant by subjecting it to rigorous testing in an adversary proceeding, Maryland v. Craig, 497 U.S. 836, 845, as by cross-examination of a declarant, see California v. Green, 399 U.S. 149, 158. Hearsay statements are sufficiently dependable to allow their untested admission against an accused only when (1) the statements fall “within a firmly rooted hearsay exception” or (2) they contain “particularized guarantees of trustworthiness” such that adversarial testing would be expected to add little, if anything, to their reliability. Roberts, 448 U.S., at 66. Pp. 4—6.

    (b)  Statements are admissible under a “firmly rooted” hearsay exception when they fall within a hearsay category whose conditions have proven over time “to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath” and cross-examination at a trial. Mattox v. United States, 156 U.S. 237, 244. The simple categorization of a statement as “against penal interest” defines too large a class for meaningful Confrontation Clause review. Such statements are offered into evidence (1) as voluntary admissions against the declarant; (2) as exculpatory evidence offered by a defendant who claims that the declarant committed, or was involved in, the offense; and (3) as evidence offered by the prosecution to establish the guilt of an alleged accomplice of the declarant. The third category, which includes statements such as Mark’s, encompasses statements that are presumptively unreliable, Lee, 476 U.S., at 541, even when the accomplice incriminates himself together with the defendant. Accomplice statements that shift or spread blame to a criminal defendant, therefore, fall outside the realm of those “hearsay exception[s] [that are] so trustworthy that adversarial testing can be expected to add little to [the statements’] reliability.” White v. Illinois, 502 U.S. 346, 357. Such statements are not within a firmly rooted exception to the hearsay rule. Pp. 6—16.

    (c)  The Commonwealth contends that this Court should defer to the Virginia Supreme Court’s additional determination that Mark’s statements were reliable and that the indicia of reliability the court found, coupled with the actions of police during Mark’s interrogation, demonstrate that the circumstances surrounding his statements bore “particularized guarantees of trustworthiness,” Roberts, 448 U.S., at 66, sufficient to satisfy the Confrontation Clause’s residual admissibility test. Nothing in this Court’s prior opinions, however, suggests that appellate courts should defer to lower court determinations regarding mixed questions of constitutional law such as whether a hearsay statement has sufficient guarantees of trustworthiness. See Ornelas v. United States, 517 U.S. 690, 697. Thus, courts should independently review whether the government’s proffered guarantees of trustworthiness satisfy the Clause. Here, the Commonwealth’s asserted trustworthiness guarantees are unconvincing. Mark was in custody for his involvement in, and knowledge of, serious crimes. He made his statements under governmental authorities’ supervision, and was primarily responding to the officers’ leading questions. He also had a natural motive to attempt to exculpate himself and was under the influence of alcohol during the interrogation. Each of these factors militates against finding that his statements were so inherently reliable that cross-examination would have been superfluous. Pp. 16—21.

    Justice Scalia concluded that introducing Mark Lilly’s tape-recorded statements to police at trial without making him available for cross-examination is a paradigmatic Confrontation Clause violation. Since the violation is clear, the case need be remanded only for a harmless-error determination. P. 1.

    Justice Thomas, while adhering to his view that the Confrontation Clause extends to any witness who actually testifies at trial and is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial material, such as affidavits, depositions, prior testimony, or confessions, White v. Illinois, 502 U.S. 346, 365, agrees with The Chief Justice that the Clause does not impose a blanket ban on the use of accomplice statements that incriminate a defendant and that, since the lower courts did not analyze the confession under the second prong of the Roberts inquiry, the plurality should not address that issue here. P. 1.

    The Chief Justice, joined by Justice O’Connor and Justice Kennedy, concluded:

    1.  Mark Lilly’s confession incriminating petitioner does not satisfy a firmly rooted hearsay exception because the statements in his 50-page confession which are against his penal interest are quite separate from the statements exculpating him and inculpating petitioner, which are not in the least against his penal interest. This case, therefore, does not raise the question whether the Confrontation Clause permits the admission of a genuinely self-inculpatory statement that also inculpates a codefendant. Not only were the confession’s incriminating portions not a declaration against penal interest, but these statements were part of a custodial confession of the sort that this Court has viewed with special suspicion given a codefendant’s strong motivation to implicate the defendant and exonerate himself. Lee v. Illinois,476 U.S. 530, 541. A blanket ban on the government’s use of accomplice statements that incriminate a defendant sweeps beyond this case’s facts and this Court’s precedents. Pp. 1—5.

    2.  The Virginia Supreme Court did not analyze the confession under the second prong of the Ohio v. Roberts, 448 U.S. 56, inquiry, so the case should be remanded for the Commonwealth to demonstrate that the confession bears “particularized guarantees of trustworthiness” and, if any error is found, to determine whether that error is harmless. Pp. 5—7.

    Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and VI, in which Scalia, Souter, Thomas, Ginsburg, and Breyer, JJ., joined, the opinion of the Court with respect to Part II, in which Scalia, Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts III, IV, and V, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion. Scalia, J., and Thomas, J., filed opinions concurring in part and concurring in the judgment. Rehnquist, C. J., filed an opinion concurring in the judgment, in which O’Connor and Kennedy, JJ., joined.
 

City of Chicago v. Morales Supreme Court strikes down Chicago's anti-loitering ordinance.  From the syllabus:

Chicago’s Gang Congregation Ordinance prohibits “criminal street gang members” from loitering in public places. Under the ordinance, if a police officer observes a person whom he reasonably believes to be a gang member loitering in a public place with one or more persons, he shall order them to disperse. Anyone who does not promptly obey such an order has violated the ordinance. The police department’s General Order 92—4 purports to limit officers’ enforcement discretion by confining arrest authority to designated officers, establishing detailed criteria for defining street gangs and membership therein, and providing for designated, but publicly undisclosed, enforcement areas. Two trial judges upheld the ordinance’s constitutionality, but eleven others ruled it invalid. The Illinois Appellate Court affirmed the latter cases and reversed the convictions in the former. The State Supreme Court affirmed, holding that the ordinance violates due process in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties.

Held:  The judgment is affirmed.
177 Ill. 2d 440, 687 N. E. 2d 53, affirmed.

    Justice Stevens delivered the opinion of the Court with respect to Parts I, II, and V, concluding that the ordinance’s broad sweep violates the requirement that a legislature establish minimal guidelines to govern law enforcement. Kolender v. Lawson,461 U.S. 352, 358. The ordinance encompasses a great deal of harmless behavior: In any public place in Chicago, persons in the company of a gang member “shall” be ordered to disperse if their purpose is not apparent to an officer. Moreover, the Illinois Supreme Court interprets the ordinance’s loitering definition–“to remain in any one place with no apparent purpose”–as giving officers absolute discretion to determine what activities constitute loitering. See id., at 359. This Court has no authority to construe the language of a state statute more narrowly than the State’s highest court. See Smiley v. Kansas, 196 U.S. 447, 455. The three features of the ordinance that, the city argues, limit the officer’s discretion–(1) it does not permit issuance of a dispersal order to anyone who is moving along or who has an apparent purpose; (2) it does not permit an arrest if individuals obey a dispersal order; and (3) no order can issue unless the officer reasonably believes that one of the loiterers is a gang member–are insufficient. Finally, the Illinois Supreme Court is correct that General Order 92—4 is not a sufficient limitation on police discretion. See Smith v. Goguen, 415 U.S. 566, 575. Pp. 16—20.

    Justice Stevens, joined by Justice Souter and Justice Ginsburg, concluded in Parts III, IV, and VI:

    1.  It was not improper for the state courts to conclude that the ordinance, which covers a significant amount of activity in addition to the intimidating conduct that is its factual predicate, is invalid on its face. An enactment may be attacked on its face as impermissibly vague if, inter alia, it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty. Kolender v. Lawson, 461 U.S., at 358. The freedom to loiter for innocent purposes is part of such “liberty.” See, e.g., Kent v. Dulles,357 U.S. 116, 126. The ordinance’s vagueness makes a facial challenge appropriate. This is not an enactment that simply regulates business behavior and contains a scienter requirement. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499. It is a criminal law that contains no mens rea requirement, see Colautti v. Franklin, 439 U.S. 379, 395, and infringes on constitutionally protected rights, see id., at 391. Pp. 7—12.

    2.  Because the ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted, it is impermissibly vague. See, e.g.,Coates v. Cincinnati, 402 U.S. 611, 614. The term “loiter” may have a common and accepted meaning, but the ordinance’s definition of that term–“to remain in any one place with no apparent purpose”–does not. It is difficult to imagine how any Chicagoan standing in a public place with a group of people would know if he or she had an “apparent purpose.” This vagueness about what loitering is covered and what is not dooms the ordinance. The city’s principal response to the adequate notice concern–that loiterers are not subject to criminal sanction until after they have disobeyed a dispersal order–is unpersuasive for at least two reasons. First, the fair notice requirement’s purpose is to enable the ordinary citizen to conform his or her conduct to the law. See Lanzetta v. New Jersey, 306 U.S. 451, 453. A dispersal order, which is issued only after prohibited conduct has occurred, cannot retroactively provide adequate notice of the boundary between the permissible and the impermissible applications of the ordinance. Second, the dispersal order’s terms compound the inadequacy of the notice afforded by the ordinance, which vaguely requires that the officer “order all such persons to disperse and remove themselves from the area,” and thereby raises a host of questions as to the duration and distinguishing features of the loiterers’ separation. Pp. 12—16.

    Justice O’Connor, joined by Justice Breyer, concluded that, as construed by the Illinois Supreme Court, the Chicago ordinance is unconstitutionally vague because it lacks sufficient minimal standards to guide law enforcement officers; in particular, it fails to provide any standard by which police can judge whether an individual has an “apparent purpose.” This vagueness alone provides a sufficient ground for affirming the judgment below, and there is no need to consider the other issues briefed by the parties and addressed by the plurality.     It is important to courts and legislatures alike to characterize more clearly the narrow scope of the Court’s holding. Chicago still has reasonable alternatives to combat the very real threat posed by gang intimidation and violence, including, e.g., adoption of laws that directly prohibit the congregation of gang members to intimidate residents, or the enforcement of existing laws with that effect. Moreover, the ordinance could have been construed more narrowly to avoid the vagueness problem, by, e.g., adopting limitations that restrict the ordinance’s criminal penalties to gang members or interpreting the term “apparent purpose” narrowly and in light of the Chicago City Council’s findings. This Court, however, cannot impose a limiting construction that a state supreme court has declined to adopt. See, e.g., Kolender v. Lawson, 461 U.S. 352, 355—356, n. 4. The Illinois Supreme Court misapplied this Court’s precedents, particularly Papachristou v. Jacksonville, 405 U.S. 156, to the extent it read them as requiring it to hold the ordinance vague in all of its applications. Pp. 1—5.

    Justice Kennedy concluded that, as interpreted by the Illinois Supreme Court, the Chicago ordinance unconstitutionally reaches a broad range of innocent conduct, and, therefore, is not necessarily saved by the requirement that the citizen disobey a dispersal order before there is a violation. Although it can be assumed that disobeying some police commands will subject a citizen to prosecution whether or not the citizen knows why the order is given, it does not follow that any unexplained police order must be obeyed without notice of its lawfulness. The predicate of a dispersal order is not sufficient to eliminate doubts regarding the adequacy of notice under this ordinance. A citizen, while engaging in a wide array of innocent conduct, is not likely to know when he may be subject to such an order based on the officer’s own knowledge of the identity or affiliations of other persons with whom the citizen is congregating; nor may the citizen be able to assess what an officer might conceive to be the citizen’s lack of an apparent purpose. Pp. 1—2.

    Justice Breyer concluded that the ordinance violates the Constitution because it delegates too much discretion to the police, and it is not saved by its limitations requiring that the police reasonably believe that the person ordered to disperse (or someone accompanying him) is a gang member, and that he remain in the public place “with no apparent purpose.” Nor does it violate this Court’s usual rules governing facial challenges to forbid the city to apply the unconstitutional ordinance in this case. There is no way to distinguish in the ordinance’s terms between one application of unlimited police discretion and another. It is unconstitutional, not because a policeman applied his discretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion in every case. And if every application of the ordinance represents an exercise of unlimited discretion, then the ordinance is invalid in all its applications. See Lanzetta v. New Jersey, 306 U.S. 451, 453. Contrary to Justice Scalia’s suggestion, the ordinance does not escape facial invalidation simply because it may provide fair warning to some individual defendants that it prohibits the conduct in which they are engaged. This ordinance is unconstitutional, not because it provides insufficient notice, but because it does not provide sufficient minimal standards to guide the police. See Coates v. Cincinnati,402 U.S. 611, 614. Pp. 1—5.

    Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, in which O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts III, IV, and VI, in which Souter and Ginsburg, JJ., joined. O’Connor, J., filed an opinion concurring in part and concurring in the judgment, in which Breyer, J., joined. Kennedy, J., and Breyer, J., filed opinions concurring in part and concurring in the judgment. Scalia, J., filed a dissenting opinion. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined.

Beeder v. United States  Supreme Court revisitt harmless error analysis in this tax and mail fraudcase.  From the syllabus

 
Petitioner Neder was convicted of filing false federal income tax returns and of federal mail fraud, wire fraud, and bank fraud. At trial, the District Court determined that materiality with regard to the tax and bank fraud charges was not a question for the jury and found that the evidence established that element. The court did not include materiality as an element of either the mail fraud or wire fraud charges. The Eleventh Circuit affirmed. It held that the District Court’s failure to submit the materiality element of the tax offense to the jury was error under United States v. Gaudin, 515 U.S. 506, but that the error was subject to harmless-error analysis and was harmless because materiality was not in dispute and thus the error did not contribute to the verdict. The court also held that materiality is not an element of a “scheme or artifice to defraud” under the mail fraud, wire fraud, and bank fraud statutes, 18 U.S.C. § 1341 1342, 1344, and thus the District Court did not err in failing to submit materiality to the jury.

Held:

    1.  The harmless-error rule of Chapman v. California, 386 U.S. 18, applies to a jury instruction that omits an element of an offense. Pp. 4—17.

        (a)  A limited class of fundamental constitutional errors is so intrinsically harmful as to require automatic reversal without regard to their effect on a trial’s outcome. Such errors infect the entire trial process and necessarily render a trial fundamentally unfair. For all other constitutional errors, reviewing courts must apply harmless-error analysis. An instruction that omits an element of the offense differs markedly from the constitutional violations this Court has found to defy harmless-error review, for it does not necessarily render a trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. Omitting an element can easily be analogized to improperly instructing the jury on the element, an error that is subject to harmless-error analysis, Johnson v. United States, 520 U.S. 461, 469. The conclusion reached here is consistent with Sullivan v. Louisiana, 508 U.S. 275, on which Neder principally relies. The strand of Sullivan’s reasoning that supports his position that harmless-error review is precluded where a constitutional error prevents a jury from rendering a “complete verdict” on every element of an offense cannot be squared with the cases in which this Court has applied harmless-error analysis to instructional errors, see, e.g., Pope v. Illinois, 481 U.S. 497. The restrictive approach that Neder gleaned from Connecticut v. Johnson, 460 U.S. 73, a concurring opinion in Carella v. California,491 U.S. 263, and language in Sullivan–under which an instructional omission, misdescription, or conclusive presumption can be subject to harmless-error analysis only in three rare situations–is also mistaken. Neder underreported $5 million on his tax returns, failed to contest materiality at trial, and does not suggest that he would introduce any evidence bearing upon that issue if so allowed. Reversal without consideration of the error’s effect upon the verdict would send the case back for retrial focused not on materiality but on contested issues on which the jury was properly charged. The Sixth Amendment does not require the Court to veer away from settled precedent to reach such a result. Pp. 4—12.

        (b)  The District Court’s failure to submit the tax offense’s materiality element to the jury was harmless error. A constitutional error is harmless when it appears “beyond a reasonable doubt that the error … did not contribute to the verdict obtained.” Chapman v. California, supra, at 24. No jury could find that Neder’s failure to report substantial income on his tax returns was not material. The evidence was so overwhelming that he did not even contest that issue. Where, as here, a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless. Neder’s dispute of this conclusion is simply another form of the argument that the failure to instruct on any element of the crime is not subject to harmless-error analysis. The harmless-error inquiry in this case must be essentially the same as the analysis used in other cases that deal with errors infringing upon the jury’s factfinding role and affecting its deliberative process in ways that are not readily calculable: Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error? See, e.g., Arizona v. Fulminante,499 U.S. 279. Where an omitted element is supported by uncontroverted evidence, this approach appropriately balances “society’s interest in punishing the guilty … and the method by which decisions of guilt are made.” Connecticut v. Johnson, supra, at 86. Pp. 12—17.

    2.  Materiality is an element of a “scheme or artifice to defraud” under the federal mail fraud, wire fraud, and bank fraud statutes. Pp. 17—23.

        (a)  Under the framework set forth in United States v. Wells,519 U.S. 482, the first step is to examine the statutes’ text. The statutes neither define “scheme or artifice to defraud” nor even mention materiality. Thus, based solely on a reading of the text, materiality would not be an element of these statutes. However, a necessary second step in interpreting statutory language provides that “ ‘[w]here Congress uses terms that have accumulated settled meaning under . . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.’ ” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322. At the time of both the mail fraud statute’s enactment in 1872 and the later enactment of the wire fraud and bank fraud statutes, the well-settled, common-law meaning of “fraud” required a misrepresentation or concealment of material fact. Thus, this Court cannot infer from the absence of a specific reference to materiality that Congress intended to drop that element from the fraud statutes and must presume that Congress intended to incorporate materiality unless the statutes otherwise dictate. Contrary to the Government’s position, the fact that the fraud statutes sweep more broadly than the common-law crime “false pretenses” does not rebut the presumption that Congress intended to limit criminal liability to conduct that would constitute common-law fraud. Durland v. United States, 161 U.S. 306, distinguished. Nor has the Government shown that the language of the fraud statutes is inconsistent with a materiality requirement. Pp. 17—22.

        (b)  The Court of Appeals is to determine in the first instance whether the jury-instruction error was, in fact, harmless. Carella v. California,supra, at 266—267. Pp. 22—23.
136 F.3d 1459, affirmed in part, reversed in part, and remanded.

    Rehnquist, C. J., delivered the opinion for a unanimous Court with respect to Parts I and III, and the opinion of the Court with respect to Parts II and IV, in which O’Connor, Kennedy, Thomas, and Breyer, JJ., joined. Stevens, J., filed an opinion concurring in part and concurring in the judgment. Scalia, J., filed an opinion concurring in part and dissenting in part, in which Souter and Ginsburg, JJ., joined.

DISCLAIMER & CREDITS-- Written and edited by Karl R. Keys, Esq.,  a Massachusetts  practitioner, who focuses his practice on the defense of condemned. (c) 1998.  THIS NEWSLETTER AND ALL INFORMATION ON THE SITE IS RELEASED INTO THE PUBLIC DOMAIN as long as attribution and my email address are included -- this excludes, however, federal materials (which are already in the public domain) and any copyrighted information owned by others such as the National Law Journal, Law Journal Extra, Callaw.com, lawstreet.com and WestLaw.    This newsletter is no substitute for legal research as it doesn't cover unpublished cases, and frequently misses cases. Similarly nothing posted is warranted as to accuracy, typos, or for that much of  anything else. For educational use only.   USE DOES NOT CONSTITUTE THE ESTABLISHMENT OF THE ATTORNEY CLIENT RELATIONSHIP & MAY BE CONSIDERED ADVERTISING UNDER THE RULES OF THE SUPREME JUDICIAL COURT OF MASSACHUSETTS.  LJX materials are reproduced pursuant to the subscriber agreement ¶ 3(b). Requests for assistance are gladly forwarded to the appropriate parties, but solicitation for counsel can not, unfortunately be forwarded at this time.  In memory of Harold McQueen & Rebecca O'Hearn -- both murdered, one by a man the other by a state. Dedicated to the men and women, attorneys, paralegals, investigators, legal support staff and jail house attorneys who fight daily for the most basic of human rights, the right to life.

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