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Court bolsters defendant’s right to cross-examine witnesses

UPDATED: Thu., Jan. 20, 2022

By Mark Sherman Associated Press

WASHINGTON — The Supreme Court on Thursday buttressed a criminal defendant’s right to cross-examine prosecution witnesses, ruling in favor of a New York man who was convicted of killing a 2-year-old boy on Easter Sunday in 2006.

By an 8-1 vote, the justices held that defendant Darrell Hemphill’s constitutional rights were violated when a judge allowed jurors to read another man’s testimony that prosecutors used to undermine Hemphill’s defense. The man, Nicholas Morris, was unavailable at the trial.

Hemphill argued that Morris fired the 9-millimeter handgun whose stray bullet killed the child in the Bronx. Morris had initially been charged with the killing and illegal possession of a 9-millimeter gun. Police searching Morris’ apartment found a 9-millimeter cartridge and .357-caliber bullets on his nightstand.

The trial judge allowed jurors to see a statement Morris made when pleading guilty to the lesser charge of criminal possession of a .357 revolver. The plea deal made no mention of the 9-millimeter weapon.

But without Morris on the witness stand, the judge should not have allowed jurors to see his statement, Justice Sonia Sotomayor wrote for the court, invoking the constitutional provision that gives defendants the right to confront their accusers.

“For Confrontation Clause purposes, it was not for the judge to determine whether Hemphill’s theory that Morris was the shooter was unreliable, incredible, or otherwise misleading in light of the State’s proffered, unconfronted plea evidence. Nor, under the Clause, was it the judge’s role to decide that this evidence was reasonably necessary to correct that misleading impression,” the Bronx-born Sotomayor wrote.

Justice Clarence Thomas was the lone dissenter.

The state had argued that Hemphill had essentially opened the door to the statement from Morris by mounting a defense that Morris was responsible for the child’s death.

The Supreme Court decision may not be a complete victory for Hemphill. The state could still try to argue in a New York court that there was enough evidence to convict Hemphill anyway, even without Morris’ statement.

Jeffrey Fisher, who represented Hemphill at the Supreme Court, said by email Thursday that “our position is that Hemphill’s conviction must be reversed and he’s entitled to a new trial.”

The case is Hemphill v. New York, 20-637.

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