August 6, 2023
Samia v. United States, 599 U.S. ___, No. 22-196 (2023) (Thomas, J.)
Response by Dale B. Durrer
Geo. Wash. L. Rev. On the Docket (Oct. Term 2022)
Slip Opinion | SCOTUSblog
A State Court Trial Judge’s Thoughts on Samia v. United States: Not Entirely Consistent with Crawford v. Washington
I. Introduction
At the end of its 2023 term, the United States Supreme Court decided Samia v. United States.1 Samia represents the Court’s latest opinion on the Sixth Amendment’s right of confrontation guaranteed to criminal defendants.
A six to three majority held that because of long-standing historical traditions and the presumption of jurors following a limiting jury instruction, the Sixth Amendment’s Confrontation Clause did not prohibit admission of a nontestifying codefendant’s altered confession to avoid directly mentioning the nonconfessing defendant.
This brief comment analyzes whether such a historical tradition exists back to 1789 concerning nontestifying codefendants and jury instructions. Ultimately, Samia promotes judicial economy at the cost of the Sixth Amendment’s right of confrontation. The brief comment also considers whether Samia is consistent with the Supreme Court’s prior Sixth Amendment jurisprudence, including the 2004 landmark decision Crawford v. Washington.2
A. Factual Background
Adam Samia and two codefendants, Joseph Hunter and Carl Stilwell, were charged by the United States for a plethora of violent crimes, including the murder-for-hire of Catherine Lee, a real estate broker. Samia had travelled to the Philippines in 2012 to work for crime lord Paul LeRoux.3 While in the Philippines, Leroux recruited Samia, Hunter, and Stillwell to murder Catherine Lee.4
The United States tried all three defendants jointly in the Southern District of New York.5 The United States filed a motion in limine to admit Stillwell’s postarrest custodial confession where he admitted his presence in the van where Lee was killed.6 Stillwell, however, in his confession, claimed that Samia shot Lee.7
Stillwell did not testify at the trial and would be unavailable for cross examination under Crawford.8 His full confession implicated Samia. The United States proposed that the confession be introduced through a Drug Enforcement Agency (“DEA”) agent, who would testify concerning the statement’s content by eliminating any reference to Samia, while eliminating any evidence of redaction.9
The United States posited that Hunter hired Samia and Stillwell to pose as alleged real estate buyers and visit properties with Lee. Samia, Stillwell, and Lee rode in a van driven by Stillwell.10
The DEA agent testimony replaced references to Samia with the descriptor of “other person.” The DEA agent testified that Stillwell confessed to a “time when the other person he was with pulled the trigger.”11 Other portions of Stillwell’s confession referred to the “other person” concerning Stillwell’s roommate and who possessed a distinct firearm.12
The trial court provided a limiting jury instruction to the jury that the DEA agent’s testimony would be admissible only against Stillwell and should not be considered against Samia or Hunter.13
The jury convicted all three defendants of the murder-for-hire crimes.14 The district court sentenced Samia to serve a prison sentence of life plus ten years.15 On appeal, Samia argued that the admission of Stillwell’s confession rose to the level of constitutional error because the other evidence in the case caused the jury to immediately conclude that the “other person” in the confession was Samia.16
II. The Decision in Samia Is Not Entirely Consistent with the Court’s Ruling in Bruton and Is Not Explicitly Rooted in Historical Tradition Traceable to 1789.
The historical evidence cited by the majority concerning the Confrontation Clause is from the late 19th and early 20th centuries17 —somewhat temporally removed to provide a comprehensive meaning of the Sixth Amendment’s Confrontation Clause “at the time of the [nation’s] founding,” as Crawford demands.18 The text of the Confrontation Clause “admit[s] only those exceptions established at the time of the founding.”19 The only exceptions that existed in 1789 were dying declarations and forfeiture by wrongdoing.20
The right of cross examination is the “greatest legal engine ever invented for the discovery of truth.”21 At a joint trial of criminal defendants, however, the potential for extreme prejudice exists if the codefendant does not testify.22 American jurisprudence has a long history of distrusting accomplice confessions.23
In Samia, the majority cited no precedent of how the jurisprudence in 1789 considered the admission of codefendant’s confessions. The earliest treatise cited by Justice Thomas in support of the historical tradition of codefendant’s confessions is 1816, approximately twenty-five years after the nation’s founding.24 No historical analysis exists on this issue from 1789 to facilitate a healthy debate on its treatment at the nation’s founding.
The historical tradition of codefendant’s confessions is inconclusive as Justice Barrett correctly notes in her concurring opinion.25 Justice Barrett notes that one of the state court cases cited by Justice Thomas opined that a trial court should not alter a statement by redacting the codefendant’s name.26 It is further unclear whether the confessing defendants testified in Sparf v. United States27 or United States v. Ball,28 both cited by Justice Thomas in the majority opinion.29
The majority’s opinion is inconsistent with Bruton v. United States.30 The Bruton Court specifically opined that when codefendants are tried jointly, the pretrial confession of one defendant shifting blame to another codefendant is inadmissible unless the confessing defendant testifies.31 The Court also opined that in this situation a limiting instruction instructing the jury to consider the confession only against the confessor does not solve the right of confrontation guaranteed by the Sixth Amendment.32 Thus, Supreme Court jurisprudence holds when a codefendant’s confession is admitted at a joint trial and the codefendant did not take the stand, the defendant was denied his constitutional right of confrontation.33 Bruton applies even in the situation of a confession not explicitly naming the codefendant.34
Bruton emphasized the very narrow exception for nontestifying codefendants by stating that “there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.”35 The Court’s approach undoes Bruton without officially overruling it.36 The “truthfinding function of the Confrontation Clause”—and the fairness of the underlying criminal proceeding itself—“is uniquely threatened when an accomplice’s confession is sought to be introduced against a criminal defendant without the benefit of cross-examination.”37
While it is an established legal maxim that juries follow limiting instructions, Bruton created a narrow exception to that well-regarded theory.38 This narrow exception is consistent with the theory that a juror need only raise their eyes to the other codefendant(s) seated at counsel table to instantly realize to whom the altered confession refers.39 However, present day jury instructions did not exist at the time of the nation’s founding in 1789.40 Justice Thomas’s reliance on juries following limiting instructions is not based on historical precedent that existed in 1789. There is no historical evidence of what, if any, jury instructions existed in 1789.41
The Court took great care in Lilly v. Virginia42 to hold that a codefendant’s confession that generally inculpates a criminal defendant is not within a firmly rooted exception to the hearsay rule, as that rule has been defined in Confrontation Clause jurisprudence.43 The situation is markedly different when the codefendant testifies and is subject to cross-examination.44
The majority’s opinion in Samia does not follow the holding of Bruton, and Stillwell’s confession is inadmissible under the holding of Bruton. It further undercuts Crawford’s intense and explicit focus on procedure over reliability in Sixth Amendment jurisprudence. A jury will certainly reflect on the confession’s accusation in determining the nonconfessing defendant’s culpability and guilt.
The confession was redacted, in a sense—it eliminated any direct reference to Samia, instead referring to him as “the other person.”45 The Court’s endorsement of this practice may present issues in the trial setting. For example, a trial court could review drafts of the redacted confession through the prism of the other evidence in the case, including, without limitation, the other defendants’ physical characteristics or role in the offense to prohibit the confession from implicating the nontestifying codefendant in any way.46 The Court approved this approach by emphasizing the importance of a trial court’s ability to “predict the admissibility of a confession in advance of trial.”47
The majority’s holding that the nontestifying codefendant’s statement is covered by the Confrontation Clause means that only one thing ensures its reliability—cross-examination. Redacted confessions that replace the accused’s name with “someone else” do not satisfy Confrontation Clause jurisprudence defined under Crawford. The aspect of cross-examination was not available to Samia because the codefendant did not testify. The Samia opinion does not represent Crawford’s focus on procedure because it removes a defendant’s Sixth Amendment right of confronting a nontestifying codefendant.
III. Practical Observations of a State Court Trial Judge: The Elimination of Bruton’s Narrow Exception Will Allow the Jury to Infer the Identity of Persons Referenced in Confessions
The author has the privilege of serving as the presiding Judge of the Culpeper County Circuit Court within the 16th Judicial Circuit of the Commonwealth of Virginia. The 16th Judicial Circuit stretches from Charlottesville to Culpeper and as far east as Goochland County. In square miles, the 16th Circuit is larger than the state of Rhode Island and Delaware. The judicial circuit is slightly smaller than the state of Connecticut.
The Culpeper County Circuit Courtroom is small, with the jury facing the defendant in a Jeffersonian style. The judge is seated directly behind the jury.
Most criminal jury trials occur in state courts.48 At joint trials in the Culpeper County Circuit Court, there is room for only one table where the codefendants and counsel are seated. A maximum of four chairs can be placed at the table. Because of space constraints, the court could only try one additional codefendant with the defendant. The jury box is within five feet of where the defendants sit. At a joint trial with only one codefendant, the jury would need raise their eyes to the nontestifying codefendant to conclude the identity of the person referenced in the confession as “some other person.”
The ergonomics of the Culpeper County Circuit Courtroom and its constrained physical configuration allows the jury to look no farther than the nontestifying codefendant to draw the reasonable inference of the style of the confession adopted by the Samia majority. This judge could not have conducted a criminal trial with more than one codefendant because of the space constraints noted above. Any redacted confession that referred to “someone else” would allow the jury to immediately infer that the someone else is the other defendant sitting cramped at counsel’s table. Samia, however, promotes judicial economy, perhaps at the expense of the Sixth Amendment.
The jurors observed by this judge are conscientious and careful in their deliberations. This judge routinely issues limiting instructions for propensity evidence under the Virginia Rules of Evidence § 404(b).49 Limiting instructions are also issued in cases where a previous conviction is an element of the offense.50
Unless the record indicates differently, the Virginia Supreme Court presumes that a jury follows an explicit cautionary instruction given by the trial court.51
Both federal and state trial judges have become accustomed to Bruton and its narrow exception as it applies to nontestifying codefendants. Under Virginia law, Section 19.2-262.1 of the Code of Virginia permits the Commonwealth to move for joinder of actions if (1) “good cause” exists, (2) the defendants “participat[ed] in contemporaneous and related acts or occurrences or in a series of acts or occurrences constituting an offense or offenses,” and (3) a joint trial would not prejudice any defendant.52 “If the court finds that a joint trial would constitute prejudice to a defendant, the court shall order severance as to that defendant or provide such other relief justice requires.”53
Thus, the Samia decision is not consistent with prior United States Supreme Court Confrontation Clause jurisprudence and fails to account for the lack of original historical evidence concerning the admission of statements of nontestifying codefendants. The decision promotes some judicial economy, however, at the expense of the Sixth Amendment.
Dale B. Durrer serves as the presiding Judge of the Culpeper County Circuit Court within the 16th Judicial Circuit of the Commonwealth of Virginia. The author also serves on the adjunct faculty at the George Washington University Law School, American University’s Washington College of Law, and the Columbus School of Law—Catholic University, all in Washington, D.C.
Recommended Citation
Dale B. Durrer, Response, Samia v. United States, Geo. Wash. L. Rev. On the Docket (August 6, 2023), https://www.gwlr.org/a-state-court-trial-judges-thoughts-on-samia-v-united-states-not-entirely-consistent-with-crawford-v-washington.
