The justices heard oral argument in the case of Adam Samia, a man convicted of murder for hire. He and his counsel have argued the use of a co-defendant's supposedly anonymized confession at trial violated the confrontation clause of the Constitution by allowing the jury to glean Samia's identity even though Samia could not cross-examine the confessing co-defendant, David Stillwell.
Samia's counsel have argued that six circuit courts already allow trial judges to consider the trial's context when deciding if the confession is properly redacted. However, the Second Circuit, which heard Samia's appeal, considers only whether the confession itself properly removes the co-defendant's name under the three cases Bruton v. U.S.
, Richardson v. Marsh and Gray v. Maryland .Samia was convicted of murder for hire alongside two co-defendants for a 2012 hit on a real estate agent in the Philippines. Before trial, Stillwell confessed to being the driver and implicated Samia as the gunman. Stillwell's confession was redacted to remove references to Samia's name, replacing it with the phrase "other person" so the jury allegedly could not tell that Stillwell had even named the other person when confessing.
However, Stillwell's confession was introduced at trial through the questioning of a U.S. Drug Enforcement Administration investigating agent. Prosecutors asked the agent further questions that contextually made it obvious that "other person" referred to Samia, essentially nullifying the redactions, Samia's lawyers have said.
Justice Elena Kagan suggested Wednesday there's no bright-line recipe for redaction that will work across situations and defendants.
She posed to Caroline Flynn of the U.S. Solicitor General's Office, which argues the current case law works fine, the hypothetical example of a case in which people named John and Mary rob a person named Bill. John gives a confession: "Mary and I went out and robbed Bill." Bruton made the use of Mary's name a constitutional violation. After that case, prosecutors could change the confession to read, "[Redacted] and I went out and robbed Bill." But Richardson and Gray put a stop to this because it still allows jurors to tell that a name was there and to infer that it was Mary's name.
So Justice Kagan asked Flynn if it would be acceptable to have the confession changed to say, "The woman and I robbed Bill." Flynn answered that it would be acceptable. But Justice Kagan said drawing the line in this spot would feel wrong.
"You can't take the law seriously when it says '[Redacted] and I went out and robbed Bill' is inadmissible, but 'The woman and I went out and robbed Bill' can be brought in," Justice Kagan said.
There would be a similar issue if the modified confession text changed the identity to "The one-eyed man" or replaced the defendant's real name with their nickname, Justice Kagan said.
Justice Neil Gorsuch made comments along the same lines, suggesting there's no clear place to create a bright-line boundary.
Juries are strongly presumed to follow the instructions given to them. But Bruton created a rare exception to that presumption because of how "devastatingly" prejudicial a co-defendant confession is, in the words of Samia's attorney Kannon Shanmugam.
"If jurors can't be expected to follow limiting instructions with respect to '[Delete],' '[Delete],' '[Delete],' why can they be expected to follow limiting instructions when it comes to 'Somebody,' 'Somebody else,' and 'Somebody else still'?" Justice Gorsuch asked Flynn. "I guess I'm stuck where Justice Kagan is."
Both Shanmugam and Flynn reminded the justices there is a circuit split. Shanmugam says six circuits currently allow for contextual decisions; Flynn said it's more like four.
Over the course of argument, the justices identified an entire range of possible ways to address the question. They could mandate additional limiting instructions to jurors, in conjunction with the way redaction is already done; there could be some kind of mandate for even more-aggressive redactions; or there could even be a rule that in a case with only two defendants, where one implicates the other, the trials must be severed.
Justice Amy Coney Barrett suggested that was the necessary endpoint of Shanmugam's argument.
"It seems to me, without rewriting [a confession] to make it misleading so that there's no reference to there being another person in the car ... At the end of the day, it boils down to, you just can't try two defendants together if you have a non-testifying defendant and a confession," Justice Barrett said.
Shanmugam suggested that the number of defendants is exactly the type of context that courts should be explicitly allowed to consider when deciding whether a confession can come in without violating a defendant's constitutional rights.
As expected with the six-conservative majority, many of whom embrace the doctrine of originalism, history came up as well in Wednesday's arguments. Justice Barrett and others wanted to know how co-defendant confessions were handled in the 1700s and 1800s, around the time of the founding of the country.
According to Shanmugam, around that time, it was not common for co-defendants to be tried together. There also was no such thing as jury instructions as we know them now, he said.
Samia is represented by Kannon Shanmugam, Elizabeth Norford, William Marks, Brian Lipshutz, Matteo Godi and Morgan Sandhu of Paul Weiss Rifkind Wharton & Garrison LLP.
The government is represented by Elizabeth Prelogar, Caroline Flynn, Kenneth Polite Jr. and Kevin Barber of the Solicitor General's Office.
The case is U.S. v. Samia, case number 22-196, in the U.S. Supreme Court.
--Editing by Linda Voorhis.