I am set to try a murder case next month and there are a total of four defendants. I want to try the two main actors together and we have moved to join them in one trial. However, each gave a non-custodial statement to the police (actually, more than one because when they were confronted with certain facts, they changed their stories and told the truth, or at least a version of the events that was closer to the truth). If I try the two together, can I play their statements to police (again, non-custodial) without violating Crawford? I think I know the answer to the question but wanted to get different perspectives. Obviously, each of the defendants would not be able to call the other at trial, so the declarant's testimony would be unavailable to them. Would a limiting instruction to the jury to consider each defendant's statement against that particular defendant solve the problem? Any help would be appreciated.
Shane, I recently researched the identical issue. I concluded that, in order to put on the statements in case-in-chief, you'd need to redact out any reference to the co-defendant's existence and only leave in that which implicates the one giving the statement. Makes for a rather disjointed and confusing statement most of the time. (And my confessions are all in Spanish, which makes it even more fun!)
However, if one defendant should testify, I think you could then come back and introduce that defendant's complete statement, including that which implicates the co-defendant, since the co-defendant's confrontation rights are then protected by the right of confrontation.
See: Bruton v. US, 391 US 123 and Richardson v. Marsh, 481 US 200.
I'm not sure there will be a way to redact either statement so that it did not mention the other defendant. The two I would like to try together were together during the crime, at least for the first hour or so. My case involves the two defendants and the deceased riding motorcycles coming home from a bar. My deceased failed to turn when the other two did (they were on the same bike) and flew off the road at 70 mph. He apparently fell asleep at the handlebars. Instead of calling for an ambulance, my two defendants decide to fetch a pickup, load the victim in the back, drive him to his house, and dump him on the garage floor. On the way to his house, one defendant was actually doing CPR on the victim in the back of the truck. As it turns out, the deceased had sustained a head injury (no helmet). They finally got around to calling 911 about 4 hours later, but by that time, the deceased's brain had swollen significantly. He lingered on life support for about a week and then died. The two defendants lied to police about what happened. I believe they did so to cover up the fact that they were together (both are married). They said they were just trying to help a friend avoid a DWI. I originally charged reckless manslaughter, but have upgraded it to felony murder based on the offense of tampering with evidence (moving him from the scene of a DWI accident) and affirmatively moving the body where he could not receive medical attention. I upgraded it because I think it is actually easier to prove felony murder than the reckless manslaughter, although I am reevaluating because I am concerned that a jury will hesitate to call the offense murder. The medical examiner, based on these facts, ruled it a homicide. Interesting case. Both defendants gave statements to the police, but I am very nervous about trying them together post-Crawford. Say hi to everyone in Austin. Shane.
I would add Gray v. Maryland, 523 U.S. 185, to the list of cases Lisa referenced. That case dealt with insufficient redacting of a confession. Maybe you ought to consider trying the better case first and using the result to negotiate a plea to the other defendant's case?
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
If the confessions can't be adequately redacted out, the question then becomes, can you meet your burden without the statements? If so, then go ahead and try them together and don't even mess with trying to introduce the statements on case-in-chief. If not, then try them separately.
quote:Originally posted by JohnR: I would add Gray v. Maryland, 523 U.S. 185, to the list of cases Lisa referenced. That case dealt with insufficient redacting of a confession. Maybe you ought to consider trying the better case first and using the result to negotiate a plea to the other defendant's case?
I agree with John, Shane. I'd try the best case first and see if the others plead after reality sets in from the first verdict.
I had a four defendant murder case last year, and decided against that method of trial. Three confessed and one did not. One case pleaded, then I tried the strongest case and got 99. The third one then pleaded to 40, and then tried the corroboration (the non-confessor) murder case last, and got 30 on that one. Two separate trials beat the heck out of one cluster.
I did see two cases tried, pre-crawford, in the situation you described, and it was just a cluster. Two juries were used, and juries had to be ushered in and out depending on who was testifying to what. The judge said he would never do that again.
Posts: 2578 | Location: The Great State of Texas | Registered: December 26, 2001
I also had this exact issue with 4 co-conspirators for "Conspiracy to Commit Capital Murder." After researching the issue, I determined, as others have, that I'd have to redact the statements, therefore losing alot of the good stuff from their statements. I don't think "non-custodial" matters here. Crawford and the 6th Amendment still apply - and you would be playing a statement from defendant 1 that implicated defendant 2, and defendant 2 would not have the opportunity to "confront the witness" (because defendant 2 cannot call defendant 1 as a witness to explain or refute the statement - and neither can the State, of course). So, as others have, I have decided to try the strongest case first!
Posts: 71 | Location: Angleton, Texas, USA | Registered: September 09, 2005
I am again contemplating the question of joint trials. I have 2 co-defendants in a capital case (seeking death on both). Neither has prior convictions and pretty sparse extraneous conduct, and both are equally culpable (multiple victims, each is a triggerman). Each gives a confession implicating himself as well as the other one. Confessions are reasonably easy to redact, if even necessary at all. Can't help but think about how much time and money I could save the county if I could do it in one death penalty trial.... Join them or no?
I'd love to hear from anyone who has prosecuted two defendants together, both for the death penalty, as to the logistical issues and the pro vs. con of such a plan.
The Leg is moving toward mandating separate trials for separate capital murder defendants. Recently, the Governor granted clemency to a defendant, based on his belief that the shooter and non-shooting accomplice should have been tried before separate juries.
Sen. Whitmire recently held a hearing that included that issue. Many prosecutors believe it is a no brainer to give the defendant a separate trial. Given the cost of postconviction litigation and the likelihood that the issue would be used to avoid imposition of the death penalty, my advice would be to have separate trials unless you get both defendants to agree in writing that they want joint trials. Even then, someone, somewhere, will eventually raise ineffective assistance of counsel.
My guess is that there will be a bill in the next Leg session to give a defendant the right to severance for capital murder trials, regardless of criminal history and defenses.
Lisa, while your situation is different from the one that drives the legislative interest and the grant of clemency last year (a non-shooter tried with a shooter in a joint death case), I think JB's advice to try them separately is good.
Wouldn't the distribution of challenges give the defense a slight advantage in jury selection?
You might talk to Toby Shook or Greg Davis--they've both handled death cases where multiple defendants received death for the same murder. Toby did six trials for the Texas 7 (one shooter committed suicide rather than be arrested) and Greg did separate trials for Gregory Wright and John Wade Adams.
The Lizard Man is innocent!
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
