Warren E. Burger: We will hear arguments first this morning in Lee against Illinois. Mr. Evers, you may proceed whenever you are ready.
Dan W. Evers: Mr. Chief Justice Burger, may it please the Court, this is the case of Millie R. Lee versus Illinois. I represent the petitioner, Millie R. Lee, who was convicted in the Circuit Court of St. Clair County, Illinois, of the murders of Odessa Harris and Mattie Darden. The issue presented before this Court today is one involving significant rights under the Sixth and Fourteenth Amendments of the Constitution of the United States involving the confrontation clause. The specific issue involved in this case is whether those amendments were violated when the trial judge in this case sitting as the trier of fact stated on the record that he was considering the co-defendant's confession against my client, Millie R. Lee, in finding her guilty of the two murders of Odessa Harris and Mattie Darden. The issue arises specifically because in this case in a bench trial the judge noted that he was considering this as substantive evidence.
William H. Rehnquist: Was the confession admitted in evidence earlier in the trial?
Dan W. Evers: Your Honor, the confession of Edwin Thomas was admitted by the trial court judge earlier, and it was found to be admissible against Edwin Thomas by the trial court judge at that time, yes.
William H. Rehnquist: And Thomas was being tried at the same time as she was?
Dan W. Evers: And it was a joint trial. The petitioner Millie Lee and the co-defendant Edwin Thomas had waived jury trial previously, and the day of trial they came in and waived out a motion to sever the case from each other, and they agreed that a bench trial would be proper if the judge considered the appropriate evidence only against each defendant. At trial--
William J. Brennan, Jr.: Well, was there any objection to the admission of the co-defendant's statement?
Dan W. Evers: --There was no objection made to the admission of the statement into evidence except with the understanding that the evidence was to be considered separately. At the beginning of trial when they said that their motion to sever would be moot or disregarded, it is because they went in on the understanding that the judge would be able to consider the evidence separately against each defendant. The general rule of law, of course, is that the judge can compartmentalize his mind and separate the evidence and consider the evidence separately. That is why--
William J. Brennan, Jr.: Did he say what was in the co-defendant's confession as it relates to this petitioner would not be considered as to this petitioner?
Dan W. Evers: --At the very beginning of trial, when they walk about the judge considering the evidence separately, Judge Hobin, who was the trial court judge, does state that he would do that, and so this trial began on the basis that the judge would separate the evidence and consider the admissible evidence only against each co-defendant.
William J. Brennan, Jr.: And did he say later that nevertheless he was now going to consider it against this petitioner?
Dan W. Evers: When he finds my client, Millie Lee, guilty at the end of the presentation of the evidence and at the end of arguments by counsel, the trial court judge states in his finding of guilt that the petitioner is guilty as charged, and he states, I reject... basically he says, I reject her defense because her argument is that she was not guilty of the murder of Odessa Harris because she had no intent to kill, did not plan to kill, and did not know that Edwin Thomas was going to kill Odessa Harris, and that her second defense was that the killing of Mattie Darden would be voluntary manslaughter. The trial court judge says, I reject that because whether there is a plan to kill is disputed by the co-defendant's confession. The co-defendant's confession clearly shows that there was premeditation, and then he also says that he rejects voluntary manslaughter because the co-defendant's confession says that Edwin Thomas had asked her to go in and take care of Mattie Darden.
William J. Brennan, Jr.: Asked her meaning asked the petitioner?
Dan W. Evers: Asked the petitioner. The general basic facts of the confession by the co-defendant Edwin Thomas and the statement by Millie Lee is, there is a great difference. I would argue that there is no confession to murder in Millie Lee's statement. Her statement only involves that she was in her apartment with her boyfriend, Edwin Thomas, her aunt Mattie Darden, and another woman by the name of Odessa Harris, and there had been some conflicts earlier, but in an argument with Odessa Harris, Odessa Harris was leaving, and Edwin Thomas snuck up behind her and stabbed her in the back. Edwin Thomas's statement, his confession says that Millie Lee and Odessa Harris were standing in the kitchen talking, and he went up to sneak up behind her in the kitchen and stab her in the back, but Odessa Harris caught him, and he had to wrestle her to the floor, and stabbed her in the chest or stomach area. There is a great difference. The problem is in this case Edwin Thomas's confession says that they had talked for months about the problem with Mattie Darden, and that they had talked about the need to kill Mattie Darden, and that that night they talked about it and talked about the need to kill Odessa Harris. There is no such admissions, there are no such statements in Millie Lee's statement.
Byron R. White: What did... Did you try the case?
Dan W. Evers: No, sir.
Byron R. White: What was said by trial counsel when the judge revealed that he was relying on the co-defendant's confession?
Dan W. Evers: The trial counsel does not make any objection on the record, and I do not know whether that is because trial counsel did not hear the statement, was not listening and inattentive at that time, and just went on assuming the trial court judge was keeping the evidence separate for--
Byron R. White: Well, how could he assume that when he said he wasn't?
Dan W. Evers: --I am not sure how that could happen, Your Honor. All I know is that there was no objection at that time during trial.
Warren E. Burger: Do you suppose that the failure to object was on the grounds that there was no point in calling more attention to it and that it didn't make any difference in the long run given the totality of the evidence?
Dan W. Evers: I do not believe that that would be a good assumption in this case.
Warren E. Burger: Do you suggest that the evidence was not strong, the evidence of guilt was not strong independent of this evidence?
Dan W. Evers: I believe that the evidence of guilt is closely balanced, and is not clearly showing that she had... that the state proved her guilty beyond a reasonable doubt of the murder of Odessa Harris. You have to make a number of inferences in the case to reach that. In this case, the trial court judge had to reach out and grab hold of the co-defendant's confession in order to make that. The trial court judge was reaching for something more solid than a number of inferences from the petitioner's statement. I don't think that the trial court attorney, the attorney for Millie Lee at trial really heard what the judge was saying, for whatever reason which I don't know.
William H. Rehnquist: Wouldn't you expect trial counsel to be listening when the judge is sentencing his client?
Dan W. Evers: I would expect that to occur, and I could only speculate as to why trial counsel was not listening at that time.
Byron R. White: Maybe he didn't know that confession was not admissible against Lee.
Dan W. Evers: I really don't see how that would be possible under Illinois law since--
Byron R. White: It' sounds like it is more possible than that he didn't hear what the judge said.
Dan W. Evers: --I really don't think that's possible, Justice White, since she, counsel had filed a motion to sever when the jury trial was still a possibility, and in that motion to sever she alleges that prejudice would occur if trial would be conducted with the co-defendant, and the major reason why prejudice would occur is because of co-defendant's confession.
Thurgood Marshall: How in the world can I assume that a lawyer didn't hear something that was said in open court? How in the world can you assume that? Is there anything in the record that would give you the slightest idea? The answer is no.
Dan W. Evers: From the record--
Thurgood Marshall: How can you as counsel assume that which is against your client?
Dan W. Evers: --From the record, I can only state that the attorney either did not hear it or was not paying attention for some reason at that point in time.
Thurgood Marshall: Or agreed.
Dan W. Evers: Or just let it pass her by.
Thurgood Marshall: Or agreed. Or agreed to let it go.
Dan W. Evers: I do not believe that it can be said that trial counsel at that time agreed to let it go--
Lewis F. Powell, Jr.: Mr. Evers--
Dan W. Evers: --because she also filed a post-trial motion asking that a new trial be granted in which counsel again reiterates the defense of her client at trial, which was that there was no intent to kill based upon the statement, and that voluntary manslaughter was also a possibility as a verdict due to the petitioner's statement--
Lewis F. Powell, Jr.: --Mr. Evers--
Dan W. Evers: --and if she believed that the co-defendant's confession was admissible and usable against Millie Lee, then there would be no need to put that into the post-trial motion.
Lewis F. Powell, Jr.: --Mr. Evers, I didn't want to interrupt you, but I think I understood you to say at the outset that the trial court had agreed that it would not consider in response to the motion to sever the evidence introduced by one party against the other party. Did the judge say that on the record?
Dan W. Evers: The trial attorneys indicate that the motion is no longer needed to be heard because with a bench trial the judge would consider the evidence separately. The judge says it will be done so.
Lewis F. Powell, Jr.: So your position is, the judge did agree in advance that he would not consider the evidence with respect to Thomas in his consideration of whether Lee was guilty or not?
Dan W. Evers: Yes, Your Honor.
Byron R. White: He didn't mention the confession, so the confession wasn't specifically mentioned, because--
Dan W. Evers: At the beginning?
Byron R. White: --because the confession of the co-defendant surely relates to Lee.
Dan W. Evers: The confession of the co-defendant?
Byron R. White: Yes.
Dan W. Evers: Millie Lee is mentioned in the co-defendant's confession.
Byron R. White: So what makes you think... the judge never said he wouldn't consider the co-defendant's confession against Lee. He never said that specifically. He didn't say he would observe... that he would keep the two confessions separate.
Dan W. Evers: Admittedly they do not say on the record exactly what the evidence is that they are going to be keeping separate. They also conduct during this joint bench trial the suppression motion for both Millie Lee and Edwin Thomas. That also is to be kept separate. The point is that they moved, both Edwin Thomas and Millie Lee moved to sever their cases when they were proposing to have a jury trial, and in Millie Lee's motion to sever, it alleges prejudice would occur if the co-defendant was tried with her, and in that case the most prejudicial evidence against Millie Lee is the co-defendant's confession.
John Paul Stevens: Mr. Evers, may I go back for a minute to your suggestion that maybe the lawyer didn't hear what the judge was saying? We are talking, as I understand it, about the judge announcing his ruling and explaining his reasons for the ruling.
Dan W. Evers: Yes, Your Honor.
John Paul Stevens: Is it customary in Illinois for a lawyer to interrupt a judge who is ruling and tell him he object to the ruling as it is being delivered?
Dan W. Evers: It would be possible to--
John Paul Stevens: It would be possible, but is that customary?
Dan W. Evers: --It is not customary.
John Paul Stevens: The practice has changed since I was there if it is.
Dan W. Evers: It may be possible to object at that time, but it is not customary, and as far as what was going on, I am not sure, as far as how the courtroom scene was set up.
John Paul Stevens: Isn't the typical way to object to a judge's ruling by filing a post-trial motion? And isn't that exactly what was done in this case? So why do you have to assume that the lawyer didn't hear? I imagine the lawyer has to be courteous to the judge. Would it not also be a logical time when the judge concluded his statement to object then and there?
Dan W. Evers: That would also be possible. I would admit that, Your Honor. The important point, though, is that even though no objection was made, that this is a significant constitutional right, and one that implicates a fair trial?
Byron R. White: Did the motion for a new trial talk about Bruton?
Dan W. Evers: The motion for a new trial did not talk about Bruton.
Byron R. White: Did it say specifically that the co-defendant's... did it call to the judge's attention that the co-defendant's confession was not admissible against Lee?
Dan W. Evers: It does talk about the only evidence against Millie Lee is her statement, and that her statement does not indicate an intent to kill.
Byron R. White: Did it say to the judge, look, judge you made a mistake by considering the other confession against Lee?
Dan W. Evers: No, Your Honor.
Byron R. White: Well, for heaven's sake. Putting Justice White's question somewhat differently, assume that Thomas had been tried earlier and that his confession has been admitted against him in that trial. Would the confession have been admitted against Lee in a later trial?
Dan W. Evers: No, Your Honor. Illinois law would make that inadmissible, and from what occurred at trial, if Millie Lee and Edwin Thomas had a jury trial, under Illinois law the judge would have been required to sever the cases so that the confession of the Edwin Thomas would not prejudice Millie Lee at the jury trial. What the Court appears to be worried about is whether there is waiver of this constitutional right in this case, and I do not believe that that could be found on this record. The record is silent as to why no objection was made at the time, and to suggest that it was waived would be waiving out a significant constitutional right, and the Sixth Amendment confrontation clause was not suggested by the State of Illinois in the appellate court below or in this Court, and the general rule in Illinois is that any error made at a bench trial is preserved for appellate review without filling a post-trial motion.
John Paul Stevens: And in this case I guess the Illinois appellate court did review the merits.
Dan W. Evers: The appellate court of Illinois did review the merits of this case. The appellate court of illinois apparently extended the plurality opinion written by Justice Rehnquist in Parker versus Randolph to this case stating that this was an interlocking confession case. Parker versus Randolph distinguished Justice Brennan's opinion in Bruton, and indicated that there was no error in admitting the co-defendant's confession at a joint jury trial, but even in Parker versus Randolph the jury was instructed by jury instructions from the judge that they were not to consider the co-defendant's confession against each other. In Parker versus Randolph, it was clear that the jury was instructed that the co-defendant's confession was not to be used against the defendant who it did not involve, so i believe that there is a clear constitutional violation here in that the trial judge stated on the record that he was using the co-defendant's confession and not just a problem of prejudicing the jury by hearing the confession of the co-defendant and then being instructed to disregard it. If there would be no other questions, Your Honors, I would request that you reverse her convictions of the two murders, remand for a new trial where she would not be prejudiced by this confrontation clause Sixth Amendment violation.
Warren E. Burger: Do you ask also that it be referred to a different judge for trial?
Dan W. Evers: I believe that would be appropriate, Your Honor.
Warren E. Burger: Well, do you ask for it?
Dan W. Evers: Yes, I would ask for it.
Warren E. Burger: In your pleadings, in your papers filed with this Court?
Dan W. Evers: I did not put it into the pleadings, because as I understand it now the trial court judge is not doing criminal cases in St. Clair County. But I would indicate that it would not be proper for Judge Hobin to hear it again.
William H. Rehnquist: Mr. Evers, do you know of any case coming from a state court system where this Court has ever said that the case should be tried before a different state trial judge?
Dan W. Evers: No, Your Honor, I am not, but I had not really thought about that problem since I understand that the trial court judge was taken off the criminal bench.
Warren E. Burger: Very well. Mrs. Wine-Banks.
Jill Wine-Banks: Mr. Chief Justice, and may it please the Court, respondent's position, simply stated, is that there was no constitutional error in this case in the admission and use of the co-defendant's confession against the defendant, and secondly, that if there was any error, it was harmless. The tension that has long existed between the use of hearsay in a criminal case and the rights of confrontation under the Sixth Amendment can be lessened by the opinion of the Court in this case. The Sixth Amendment, of course, does not bar all hearsay. Competing rights and public policy interest may outweigh the defendant's right to confront the witnesses against him at a trial without any cross examination. Ohio v. Roberts establishes a two-pronged test for determining what hearsay is admissible without cross examination and without violation of the confrontation clause. By applying the logic and the sensible principles and the very workable guidelines of Roberts to the facts of this case, respondents believe that their position is supported and that the Court can find that the petitioner's rights under the Sixth Amendment were not violated or infringed by the use of her co-defendant's confession against her at the trial. For this reason, we urge that no error be found, and that the petitioner's conviction be left intact. The evidence in the record before this Court is overwhelming of her guilt beyond a reasonable doubt, even absent consideration of the co-defendant's remarks. For this reason, too, the opinion of the Illinois appellate court should be upheld.
John Paul Stevens: May I just ask on that point, is it correct, as I understand your opponent's brief to say that the trial judge did rely on some facts that were in the co-defendant's confession that were not in the petitioner's confession?
Jill Wine-Banks: Only in rebutting the petitioner's defense or claimed defense of self-defense, the judge did make one brief reference to a fact in the co-defendant's confession. However, in response to another question asked of my opponent, had there been an objection or this error called to the judge's attention, he could have just as easily rebutted her claimed defense on the basis of her own confession. If we look at her confession--
John Paul Stevens: But it is correct that at least in his explanation of his ruling, he did rely on evidence that was in the co-defendant's confession and not in the petitioner's confession.
Jill Wine-Banks: --In the statement, absolutely, that is true.
John Paul Stevens: And what you are saying is that we should assume that if he had been interrupted when he was making his ruling, he would have placed his ruling on a different ground.
Jill Wine-Banks: That is our secondary argument, yes. Our first argument is that having done so, it was not error, that under the--
John Paul Stevens: If we are to follow your reasoning on the harmless error point, what standard of harmless error should we announce? Do we have to be convinced beyond a reasonable doubt that he would have done that, or do we just think it is very likely that he would have done it?
Jill Wine-Banks: --I think that the test is, would the case against petitioner have been significantly reduced by the absence of the co-defendant's confession.
John Paul Stevens: And what case states that harmless error test?
Jill Wine-Banks: In Schnable I believe that is what the Court says. But if you went on a harmless beyond reasonable doubt standard, I believe that that, too, is satisfied because the evidence against the petitioner is so overwhelming in this case, I do disagree with my opponent on that. I think that a fair reading of her confession proves that she has admitted all of the elements of murder of both Odessa Harris and Mattie Darden. Premeditation is total surplusage.
John Paul Stevens: Now, is our inquiry that we think she is guilty beyond a reasonable doubt, or we are convinced the trial judge would have reached the same conclusion and we know that beyond a reasonable doubt?
Jill Wine-Banks: I believe that you are free to look at the record and make a determination of what the trial court judge, what a reasonable trier of fact would have concluded, and that you will conclude that indeed there is no... it would be a travesty to reverse this case where the evidence is so overwhelming, but it would also be wrong to reverse where under Roberts the evidence is so reliable that it was not error to use that evidence. We believe that rather than having a conviction saved by the harmless error argument after the fact, that it would be better for this Court to rule that it was admissible, and to give guidance so that prosecutors and trial courts know what evidence may be used in advance. Roberts really makes the touchstone for admissibility reliability, and under the two-pronged test of Roberts this was clearly the kind of reliable hearsay that the courts have long regarded as admissible.
Byron R. White: So that... and I suppose this would be the case if there were a jury there, and so Roberts, you think, puts a gloss on Bruton?
Jill Wine-Banks: Yes, Your Honor, and I think I would go even further and say not only would this apply at a jury trial as well as a non-jury trial, but it would apply at separate trials. If our theory is correct, this would be admissible at a separate trial.
Byron R. White: Exactly, so that Bruton is really sort of beside the point, you are saying.
Jill Wine-Banks: Yes, Justice White, I do think so.
Byron R. White: You think Roberts overruled Bruton?
Jill Wine-Banks: I think that it establishes a different test. I think perhaps the Bruton case would come out the same way under our test because in that case where you have only one confession and you have the overwhelming prejudice, if nothing else, under the Court's inherent power to keep our prejudicial evidence that is outweighed because of its prejudicial effect, that the result would be the same in Bruton. But where you have completely interlocking confessions, that--
Byron R. White: Well, they weren't interlocking in the sense that the said the same things. The co-defendant's confession said things that Lee's did not.
Jill Wine-Banks: --That is correct, but although there has never been a clear definition of what interlocking means, and indeed if you read the cases it seems as if wherever there are two confessions the courts say they interlock. I think that we could propose a very sensible rule defining what interlocking means, and that rule would be one that says where the confessions interlock on all of the elements of the offense, where they interlock on the relative culpability of the actors, and on all the salient facts of the crimes admitted, that that is an interlock, and in this case if we look at those three criteria, we will find that it is indeed a fully interlocking. The only--
John Paul Stevens: May I interrupt right there?
Jill Wine-Banks: --Yes.
John Paul Stevens: If you use that test, you don't need the other confession.
Jill Wine-Banks: Yes, Justice Stevens, that is correct. I believe that this was probably unnecessary.
John Paul Stevens: It is just cumulative evidence then.
Jill Wine-Banks: Yes, I think it is. That is correct.
John Paul Stevens: Then why should you bother admitting it?
Jill Wine-Banks: I think that a prosecutor should not have the constrictions of saying that they may not use evidence which may indeed be necessary.
John Paul Stevens: It doesn't hurt to prosecute her under your analysis.
Jill Wine-Banks: That is true by hindsight, but in the press of trial, I know from having been both a trial lawyer and an appellate lawyer, you look at the trial record as an appellate lawyer and you say, my goodness, why did they do that, that is overkill, but in the press of the trial you do not know what will be persuasive, and that anything that is reliable, such as this, should be admissible. The prosecutor should not be barred from using it just because it is unnecessary.
John Paul Stevens: It seems to me your argument also... your argument on reliability, you didn't need... you only needed one confession, and you could have used either one under your analysis. You were free to use the co-defendant's or the petitioner's.
Jill Wine-Banks: That is correct. They both--
John Paul Stevens: And either one would have been sufficient.
Jill Wine-Banks: --That is correct. But because I am willing to concede that in a one-confession case you might have a different rule, the existence of the two confessions does make a difference, and here, where you have the two confessions and they interlock, the reliability is definitely enhanced under the Roberts test.
John Paul Stevens: But how does the interlock enhance the reliability of the portion of the confession that does not duplicate the other confession?
Jill Wine-Banks: I think that we would argue that because a confession, once it is deemed to be interlocking and reliable, the entire portion... the entire confession, including the surplusage and the cumulative, comes in. There is nothing inconsistent, I should point out, in Millie Lee's confession. She has not admitted all of the facts, but I don't think that we can say that Edwin Thomas's confession is less reliable. Perhaps more damaging, but not less reliable, because it contains more information than Millie Lee's.
William H. Rehnquist: Mrs. Wine-Banks, what again is your theory under the law of evidence limited by the Constitution as to how Thomas's confession comes in against Lee?
Jill Wine-Banks: Justice Rehnquist, we would argue that it comes in as a statement against penal interest, which is reliable enough to meet the test of Roberts, which determines, we believe, when any type of hearsay is admitted. There have been several... at least two courts of appeal have admitted statements against interest by accomplices against the defendant, and have done so under the Roberts test, but they were reliable enough to be admissible, so the question then is, is a confession different enough from other statements against penal interest to have a different rule apply, and we would say that at least when there are interlocking confessions that are corroborated by other testimonial evidence in addition to being corroborated by the interlock, and are corroborated by the physical evidence, that those are so reliable that they can be treated as our other statements against penal interest.
William H. Rehnquist: Supposing you had a five-page confession that went into great detail as to just how a crime had been committed, and perhaps implicated several other people. Would the fact that the bottom line of the confession, so to speak, is against penal interest of the person making it make that all admissible just without limitation?
Jill Wine-Banks: Other than the limitations that we are proposing, which is that it interlocks... if that was a single confession, no. But where it is corroborated by all the other defendants admitting exactly the same elements and the same relative culpability and the same facts, yes, that would be fully admissible.
William H. Rehnquist: Did either of the defendants take the stand in this case?
Jill Wine-Banks: Only as part of the motion to suppress, which was part of the trial, so that after the state rested, both defendants testified on their suppression hearing.
William H. Rehnquist: But they didn't testify as to the merits, so to speak?
Jill Wine-Banks: No, although there is some suggestion, I believe, that because Edwin Thomas went beyond the suppression hearing, he was asked, "And so then you told the police exactly what happened. " and he answered, "Yes". I believe that perhaps that goes beyond the suppression--
William H. Rehnquist: In that case Bruton wouldn't apply.
Jill Wine-Banks: --Yes, that is correct.
William H. Rehnquist: If he were available for cross examination.
Jill Wine-Banks: Yes, and we do argue in our brief that he was available for cross examination.
Sandra Day O'Connor: Mrs. Wine-Banks, what is the Illinois law regarding admission of evidence if there were a single confession by Thomas, no confession by Mrs. Lee, and the Thomas confession was inculpatory? Is it admissible, the entire thing, as a statement against penal interest against Ms. Lee?
Jill Wine-Banks: It would be admissible only against the declarant in the single confession situation, but there... Illinois--
Sandra Day O'Connor: All right. Does Illinois as a matter of state law of evidence say that where there are two confessions, as here, that they are both admissible against the other as a matter of statements against penal interest?
Jill Wine-Banks: --Well, there are two halves to my answer to that. One is that clearly Parker has been adopted by or actually was... preceded Parker where they said that the harm of instructions will be deemed to not exist in the situation of corroborating interlocking confessions. So that it would be admissible at a joint trial against the declarant. We believe that in this--
Sandra Day O'Connor: If they are interlocking.
Jill Wine-Banks: --If they interlock. Yes.
Sandra Day O'Connor: And has Illinois defined for itself what interlocking means and what happens when they are only partially interlocking?
Jill Wine-Banks: Justice O'Connor, I am afraid that Illinois has done no better than any other court in being specific in its definition of interlocking.
Sandra Day O'Connor: So we don't know what the Illinois law of evidence is that applies here.
Jill Wine-Banks: Well, we know that they have adopted, for example, the Chambers standard for the use of an exculpatory statement against penal interest, and used the test of Chambers in admitting that kind of a statement against penal interest. We also know that in this case the evidence was admitted, that the appellate court affirmed the conviction without addressing or at all looking at or commenting on the admissibility question, and that is waived. Illinois is a very strict res judicata state, and--
Sandra Day O'Connor: Under Illinois law, you say that any objection to the use of the confession was waived.
Jill Wine-Banks: --Yes, Your Honor. There is no way that the petitioner could get a hearing on that issue at this point now that the direct appeal route is finished.
Sandra Day O'Connor: When was the earliest time that an objection could properly have been made in your view?
Jill Wine-Banks: I believe right at the trial, at the time of the statement by the judge that he was using that one sentence to rebut her defense.
Sandra Day O'Connor: That was in reading his findings?
Jill Wine-Banks: Yes, Your Honor.
Sandra Day O'Connor: That was after he had made them, but he was reading them in public, and at that time you say Illinois required an objection to be made.
Jill Wine-Banks: Well, I don't think that it would have necessarily been waived. I think that there could have been a post-trial motion challenging it, but that motion was limited--
Sandra Day O'Connor: But there was--
Jill Wine-Banks: --I am sorry.
Sandra Day O'Connor: --There was neither an objection nor a post-trial motion?
Jill Wine-Banks: The post-trial motion did not raise that issue. The post-trial motion raised the confrontation issue, which has been fully briefed and decided by the court--
Sandra Day O'Connor: And you take the position that is a waiver under Illinois law.
Jill Wine-Banks: --Yes. The courts have frequently in Illinois, the appellate courts frequently in Illinois raise sui sponte such an issue of admissibility where it sees a problem. They did not see the problem in this case.
Sandra Day O'Connor: Do you agree there was an agreement by the judge to limit the use of the confessions?
Jill Wine-Banks: It is only a statement--
Sandra Day O'Connor: And where would we find that in the material before us?
Jill Wine-Banks: --In the transcript, and I don't have the page reference, but I could provide it in a supplemental brief, in the very first few pages of the trial transcript. The waiver or the withdrawal of the severance motion is based on the fact that he will compartmentalize the evidence. There is absolutely no specific reference to the confessions. That is all that is said, is a very brief remark that because the judge can keep things straight and separate the evidence against each, we will withdraw the motion now that we have a non-jury trial, but there is no specific reference to the confessions, no specific promise about the confessions, and it is quite obvious when he is announcing his verdict that he has indeed used to rebut. And I would like to pursue that because if we look at the language of Millie Lee's confession, within the four corners of that confession we have a full confession to two murders. There is no question about that. We also have within hers the rebuttal to the self-defense, and really that is all we are talking about here, is the rebuttal to her claim of self-defense. The reason I say that she has totally admitted to all the facts that waive her self-defense claim is that, let's take it from the point where after she runs into the room and stabs her aunt, she then has disabled her aunt, who is lying prone, but still alive. At that point her self-defense is gone. There is no physical threat possible from Mattie Darden to the petitioner. But what does she do at that point? She gets a skillet from the co-defendant and pounds her aunt on the head. The skillet is hit with such force that it shatters, and so she sends the co-defendant for a second skillet, and again pounds her, and the pathologist in the transcript at Pages 77 and 78 makes it clear that it is not the stab wounds that killed her aunt, but that indeed it was the blunt blows to the head that killed her. So, the murder occurred after the self-defense, if ever there was one, and I think that her confession even earlier makes clear there is none, but certainly there is no doubt about it at that point, and Illinois case law on this is very clear that she would not have a self-defense left at that point.
Sandra Day O'Connor: The evidence as to Odessa is not as clear, is it, against Ms. Lee, based on her own confession alone?
Jill Wine-Banks: Yes... no, Justice O'Connor, I would not agree with that. What I think her confession viewed alone and excluding any reference to the co-defendants shows is that when the co-defendant was stabbing Odessa Harris, she ran into the bedroom, and when her aunt indicated a desire to help her friend by saying, get out of my way or I will kill you, which was her way of saying, don't stop me from helping my friend, what did she do? She didn't get out of the way. She got a knife and began to stab her aunt. By precluding her aunt... I am not suggesting she had an obligation to help Odessa, but she was guilty by accountability of murder for preventing her aunt from assisting Odessa Harris, and again, the cases we cite, the Illinois cases in our brief make that very clear, that that has been a specific holding. Where a defendant prevents assistance from being rendered, they become guilty by accountability of murder. So, I believe within her own confession it is absolutely clear that she has admitted to the murder of Odessa Harris.
Lewis F. Powell, Jr.: Will you clarify some trial facts for me, please, ma'am?
Jill Wine-Banks: If I may, Justice Powell.
Lewis F. Powell, Jr.: Did Thomas testify in his own defense?
Jill Wine-Banks: Only as part of the suppression hearing. Neither defendant put on a defense. They both took the stand after the state rested as part of and solely for the purpose of their suppression motion. That was the only testimony that they put on.
Lewis F. Powell, Jr.: So although Thomas was in the courtroom... well, he was in the courtroom. Was any effort made by Lee to put him on the stand?
Jill Wine-Banks: No effort at all, which makes the--
Lewis F. Powell, Jr.: If she had undertaken to use him as a witness, he could have invoked his privilege, could he not?
Jill Wine-Banks: --Yes, Your Honor. We believe that is why he is an unavailable witness, but if he hadn't invoked his privilege, then he would have been available for cross examination, and either way, the availability becomes a red herring, because if he had not taken the Fifth Amendment, as was his right, then he would have been available for cross examination, and there would be no confrontation clause problem for this Court to address. It is only because he was unavailable because of the existence of the Fifth Amendment privilege that we have the confrontation question.
Speaker: Thank you.
Jill Wine-Banks: One of the problems that has occurred in reading the cases is that there is a question about whether a confession is different than other statements against penal interest, and there has been perhaps some argument that there is a presumption against the reliability of such confessions. While even if a rebuttable presumption is warranted, we think that the creation as is suggested by this case of an irrebuttable presumption, that that is not required by the Sixth Amendment, nor is it consistent with this Court's rulings or with good public policy. Indeed, a reverse presumption of trustworthiness may even be warranted. As this Court said in California versus Green and in Matlock, a confession to murder has its own indicia of reliability. As Oliver Wendell Holmes said in his dissent in Donnelly, no other statement is so much against interest as a confession to murder. It is far more calculated to convince than the dying declaration. Because of the reliability of a murder confession, especially when coupled with the corroborative elements such as exist in this case, respondents urge this Court to find under Roberts that petitioner's co-defendant's confession had sufficient indicia of reliability to be properly admitted without trial cross examination. Such a holding would be consistent with Roberts and Pointer, California versus Green, Barber and Moates, which all permitted the inculpatory use against a defendant of preliminary hearing testimony where there was cross examination of the declarant, or perhaps even where there was only an opportunity for cross examination is suggested. It is also consistent with Dutton, wherein the Court ruled that a Georgia rule of evidence which permitted a concealment phase conspiracy statement to be admitted without violating the Sixth Amendment, and with Mancusi versus Stubbs-Maddox, which held the admission of a transcript from the first trial to be admissible without violation of the Sixth at the second trial. The ruling that we urge the Court here to find is also consistent with the purpose of the Sixth Amendment. According to Parker, the Sixth Amendment is intended to be a safeguard to ensure the fairness and accuracy of criminal trials. According to Dutton, the mission of the confrontation clause is to advance a practical concern for the accuracy of the truth determining process in criminal trials by assuring the trier of fact a satisfactory basis for evaluating the truth of the prior statements. Following the decisions and logic of this Court's rulings in Roberts and other cases, we believe that there is a satisfactory basis for evaluating the truth of the underlying statement, and at least two Federal Courts of Appeals have ruled that the admission of an inculpatory statement against penal interest is admissible against a defendant, and two courts have ruled that a co-conspirator confession statement inculpating the defendant is also admissible. These decisions and the logic and policy underlying them support the result respondents urge before this Court today, which is that the co-defendant's interlocking confession be included with other inculpatory statements against penal interest in the category of reliable and therefore admissible hearsay despite the absence of cross examination at the trial. Where the courts have found that the substantive use of hearsay is permissible against a defendant, the courts have said that although there is a preference for a face to face confrontation as a means of testing the truth of the underlying statement, that right of cross examination may be replaced by other guarantees of trustworthiness.
Byron R. White: Perhaps you have already answered this. Did you say that if they are granted separate trials, that the co-defendant's confession would have been admissible against Lee?
Jill Wine-Banks: Yes, Your Honor, that is the result of our position.
Byron R. White: I know, but how about under Illinois law?
Jill Wine-Banks: Yes, Your Honor.
Byron R. White: What?
Jill Wine-Banks: We believe that it would be admissible at a separate trial because to the extent that this--
Byron R. White: You think that is the rule in Illinois now, or would you just like it to be?
Jill Wine-Banks: --Well, because it has never come up, of course, I am only predicting that based on the fact that Illinois has no codified rules of evidence, it is perhaps unique in this regard, so that rules--
Byron R. White: So you think if there had been an objection, the judge would have said, this is perfectly admissible against Lee?
Jill Wine-Banks: --I think that the argument we are making here today, had it been made before the trial judge, would have been accepted by him, because Illinois has adopted and shown a trend to making its rules of evidence fully coterminus with the fullest extent of the constitutional guarantees, and to the extent we think this is fully consistent with the Sixth Amendment, we believe that the Illinois court would have even at a separate trial had that been the case found this reliable enough to be admissible.
Byron R. White: Even in a jury trial?
Jill Wine-Banks: Even in a jury trial. Like the cases that we have cited, petitioner's co-defendant's confession here is the type of hearsay that can be admitted against a non-declarant in a criminal trial without cross examination. The Roberts test, of course, requires unavailability, which we have already discussed and demonstrated why the declarant was unavailable, but there is also a substitute for that, which is that the cross examination would be of so little value that it is unnecessary, and again clearly here there would have been no benefit to the defendant in cross examining when she would have still been faced with the admission of the full crime in her own confession. The other test in Roberts is that the evidence be reliable. Again, clearly because of the nature of the corroborating evidence outside the interlocking confession and the nature of the interlocking confession, we can conclude that it was indeed reliable, and that the whole confession should be admissible.
John Paul Stevens: Mrs. Wine-Banks, can I interrupt with one question about the trial?
Jill Wine-Banks: Justice Stevens.
John Paul Stevens: To what extent was there other evidence relied upon other than the two confessions?
Jill Wine-Banks: In addition to the two confessions, there was a great deal of testimony. There was the testimony of the store owner who sold Millie Lee the can of charcoal lighter fluid which was used to burn the bodies and to dispose of them. There was testimony of all the investigators who heard the confession and who investigated, and who corroborated the confessions by, for example, when the knives were identified, they were asked, where are the knives.
John Paul Stevens: And was all that evidence admissible against both defendants?
Jill Wine-Banks: Absolutely.
John Paul Stevens: So the only really point in the trial where there might have been some evidence admissible against one but not the other was the two confessions.
Jill Wine-Banks: That is correct. Absolutely. In any event, under Ohio v. Roberts, we urge that no constitutional error be found, and that alternatively if any error should be found, although the evidence, we believe, is overwhelming, the error should be deemed to be harmless. The test, we believe, would be whether the case against petitioner would be significantly less persuasive without the confession of her co-defendant, and clearly here it would not have been diminished one iota because of the existence of her own confession which fully admits the guilt for both murders and rebuts her only defense. And I would point out that she only claimed a self-defense defense. She did not claim sudden and intense passion as a defense. Co-defendant claimed that. And there has been some confusion, I believe, in the record on that, but as I said, in addition to her own confession, we have all of the evidence in addition to that. And Odessa Harris's murder, as I said earlier, is fully admitted, because all it requires to prove her guilt of that is that she intended to assist or facilitate before or during her co-defendant's acts, and on her own confession, as I have pointed out, that is admitted. She did admit stopping her aunt from helping here, which under People v. Gill and People v. Richardson is enough to make her accountable for the murder of Odessa. Her confession is also complete as to the murder of her aunt. It also is replete with admissions that rebut her self-defense. Having hit her aunt with two different skillets after she was disabled totally eliminates that under People v. Thornton. Additionally, to the extent that petitioner has claim a sudden and intense passion or there has been any question about that, by looking at her confession we find that there is not one shred of evidence to support that claimed defense, and therefore once again her confession is complete and leads to the denial of her request here. In conclusion--
Byron R. White: But didn't the trial judge rebut that suggestion by reference to the co-defendant's confession?
Jill Wine-Banks: --Yes, he did, and it was unnecessary to do so, because--
Byron R. White: Well, he didn't refer to her confession for that purpose.
Jill Wine-Banks: --He did not, but he could have, and for harmless error purposes that is what the test is.
Byron R. White: You say it wasn't error anyway.
Jill Wine-Banks: That is correct, it wasn't error because it was admissible and he was proper in using it. That is exactly our point, is that the constitutional right--
Byron R. White: Is 25 and 26 in the joint appendix, is that the sole... is that the only statement the judge made?
Jill Wine-Banks: --Yes, Your Honor, this is the full announcement of his verdict.
Byron R. White: Yes. Thank you.
Jill Wine-Banks: In conclusion, we believe that the constitutional right of the petitioner to confront the witnesses against her is designed to ensure that the truth is accurately determined in a criminal trial. That right is fully protected by the admission against petitioner of her co-defendant's confession, which fully interlocks with her own confession on every material element of the crime and on every salient fact. Thank you, Your Honors.
Warren E. Burger: Do you have anything further, Mr. Evers?
Dan W. Evers: Yes, Your Honor.
Byron R. White: Previously you said you thought it was clear under Illinois law that if there had been separate trials, the co-defendant's confession would not have been admissible.
Dan W. Evers: Yes, Your Honor, and I think--
Byron R. White: I take it your--
Dan W. Evers: --there are a number of Illinois Supreme Court cases which we cite in the reply brief, People versus Clark, People versus Buckminister, People versus Eddington, and other cases--
Byron R. White: --And you think the same rule applies in a joint trial.
Dan W. Evers: --In a joint trial, Your Honor--
Byron R. White: Well, it is admissible against the one defendant, but not the other.
Dan W. Evers: --That would be governed by Illinois Pattern Jury Instruction Number 3.08, in which it instructs that one co-defendant's statement is not to be used against another, and that is the standard instruction which I believe is also used in federal trials.
Byron R. White: Is that backed up by state supreme court cases?
Dan W. Evers: Yes, Your Honor. Illinois Pattern Jury Instruction 3.08 is formulated by a committee formed by the Illinois Supreme Court. The Illinois Supreme Court directs them to draft pattern jury instructions for use in Illinois trials, and they adopt them. An Illinois Supreme Court rule which I believe is 612, Illinois Supreme Court Rule 612 directs the trial court to instruct where there is an applicable Illinois pattern jury instruction.
Byron R. White: Do you have... is there an Illinois case in which there was a bench trial of two defendants and it held that the confession of one is not admissible against the other?
Dan W. Evers: I am not aware of their saying that it is not admissible as far as an Illinois Supreme Court case. I am aware of one case called People versus Davis in which there was a bench trial with co-defendant confessions and the trial court judge in that case stated on the record that he would not consider the most inculpatory parts that were not interlocking. In that case, one co-defendant said, I shot... the other co-defendant shot the victim, and the other co-defendant blamed the other one, and the judge said, I won't consider that part, but I will consider this, and they said there was no reversible error. They did not say that it was admissible. They did not say that it was proper. They just said that under Parker versus Randolph and some other Illinois cases, that it was not error. How they came to that conclusion, I am not really sure, but that is what they said. The state's position today is at variance with what their position was in the response to the cert petition filed by Millie Lee. In the response to the cert petition the state conceded that this was inadmissible. In the cert petition the State of Illinois said, "A co-defendant's confession may be used only against the declarant, and the trial court should not in any way have considered the co-defendant's confession against the petitioner. " Now, that is what they conceded in the petition for certiorari response. How they come into this Court today and say that Illinois law would make this admissible I don't know. Their brief when they talk about Illinois law indicates that the Illinois Supreme Court may have some rule in the future, but they do not cite anywhere in their brief any case which would make this admissible. And as far as what the appellate court of Illinois decided in this case, they implicitly decided that it was admissible evidence. I would like to sure up and say that Your Honor should hold this as a violation because there is no reliability demonstrated by the State of Illinois in this case as to the parts that the judge used in finding Millie Lee guilty. The parts that the judge used are not parts corroborated by any other evidence. Your Honors in Bruton pointed out the extreme difficulties and unreliability of co-defendant confessions. Justice White himself pointed out those problems. These statements used by the trial court judge standing alone are no more reliable than if he had just merely said we plan to kill, we killed, and that is it. Instead, he gave an eleven-page written confession which is corroborated as to how certain events occurred after the killings occurred, but as to how the killings occurred, there is no reliability on the co-defendant's confession.
Warren E. Burger: Do you suggest any significant or material differences in the utterances of the two defendants?
Dan W. Evers: There are significant differences in that Millie Lee--
Warren E. Burger: Bearing on guilt?
Dan W. Evers: --Bearing on guilt. The state's position is based on their premise that Millie Lee's statement is overwhelming in implicating her guilt, yet if it was so overwhelming, why did the trial court judge feel the need to reach out and use the co-defendant's confession? If there was the sufficient evidence within the petitioner's statement, there was no need to reach out and grab hold of this prejudicial confession. There is a difference in the intents put into the different statements, and I would suggest that there is a problem with the co-defendant's confession in that it is unreliable. He gave the confession only after he knew that Millie Lee had given a statement implicating him in the killings. What effect that had upon him is not certain, but he would have a motive for malice, he would have a motive to lie about Millie Lee's involvement, whether to drag her down or to take her and implicate her more deeply in the killings, it is not certain, but what is certain is that his statements standing alone as to how the killings occurred and what motivated them are uncorroborated. The major point in that is that the state points to Millie Lee's statement where she witnessed the murder of Odessa Harris and then ran into her aunt's bedroom, was confronted by a knife, and she ran out. Now, they try and use that and say she had no need to come back, voluntary manslaughter would not be appropriate, but I would suggest that that is just a matter of fact. The point is that the judge also pointed to the idea in Edwin Thomas's confession that he originally gave Millie Lee a knife and said go keep your aunt quiet, and gave her a knife and sent her into the bedroom to stab here. Those are two different things. What happened in this trial is, the judge used that statement by Edwin Thomas to impute her helping, her aiding in the killing of Odessa Harris to Millie Lee. Millie Lee's statement only says she ran into the bedroom. Now, whether she did that to aid does not appear in her statement. She may have been just running away in a slightly shocked manner in which to get away from this very hideous killing by Edwin Thomas. But it cannot be said that her statement reflects that she was trying to aid Edwin Thomas by stopping Mattie Darden. That does not appear. That is just speculation brought out of the co-defendant's confession. I would also like to point out that the state could have brought Edwin Thomas in to testify. The state could have... my time is up, Your Honors. I would ask that you reverse the case, please.
Warren E. Burger: Thank you, counsel. The case is submitted.