Wednesday, March 5th, 2014

Circuit Grants Rehearing and Vacates Three Convictions Tainted by Involuntary Confession and Ineffective Redactions Under Bruton

United States v. Taylor, Nos. 11-2201(L), 11-2426(CON), 11-2639(CON) (2d Cir. Mar. 4, 2014) (Kearse, Jacobs, and Carney), available here

In this published decision, the Circuit granted the government’s petition for panel rehearing and withdrew its original opinion vacating the convictions of all three defendants. Unfortunately for the government, the Court, on rehearing, not only again vacated the defendants’ convictions, but expanded its rationale for doing so. [Disclosure: the Federal Defenders of New York, Inc., represents one of the defendants in this case.]

All three defendants were convicted of charges related to the robbery of a Manhattan pharmacy. The Court’s original opinion (issued on December 4, 2013) vacated the convictions, holding that the admission of the main defendant’s involuntary confession was prejudicial to all three defendants. The Court found the confession so critical to the government’s case, and so essential to buttressing the credibility of the cooperating accomplice, that it prejudiced the co-defendants as well. Thus, the Court found it unnecessary to decide whether the admission of the confession, as redacted by the district court, also violated the co-defendants’ Confrontation Clause rights under Bruton v. United States, 391 U.S. 123 (1968).

The government then sought rehearing, arguing that the confession was admitted only against the defendant who made it (as a limiting instruction advised the jury), and that the confession therefore could not be grounds for a new trial for the co-defendants unless it violated Bruton.

In this new decision (authored by Judge Jacobs), the Court granted panel rehearing, withdrew its original opinion, and once again found the main defendant’s confession involuntary and prejudicial as to him. But this time the Court not only reached the Bruton issue, but resolved it in favor of the co-defendants. The panel held that the admission of the redacted confession violated the Confrontation Clause rights of the co-defendants because the redactions left it obvious that the confession implicated the co-defendants and had been redacted. The Court emphasized that the confession referred throughout to the testifying accomplice by her full name, Luana Miller, while referring awkwardly to the co-defendants as “two other individuals,” or as “the driver” and “the person who waited with Luana Miller,” and even as “the mother of one of the two other individuals.” The Court held that “the awkward circumlocution used to reference other participants, coupled with the overt naming of Luana Miller (only), is so unnatural, suggestive, and conspicuous as to offend Bruton, Gray [v. Maryland, 523 U.S. 185 (1998)], and [United States v.] Jass[, 569 F.3d 47 (2d Cir. 2009)].”

Accordingly, the Court once again vacated the convictions of all three defendants and remanded for a new trial.

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