2d Circuit grants habeas petition in murder case

Convicted felons are allowed to file habeas corpus petitions, which claim their state-court convictions were unconstitutional. But these petitions are hard to win, as the case has already been through the state court appellate process, and federal judges are required by law to give state court judges some leeway in interpreting the Constitution. So it's always news when the Second Circuit rules that a conviction was in fact unconstitutional, which is what happened here in this homicide case.

The case is Orlando v. Nassau County District Attorney's office, issued on February 11. The district court rejected the habeas petition, but the Court of Appeals holds that trial errors in state court denied Orlando's clearly-established constitutional right under the Sixth Amendment's confrontation clause.

The jury said Orlando was guilty over his role in the murder of a man, Calabrese, when Orlando and another witness Jeannot, went pay Orlando his huge gambling winnings. Jeannot told the police that Orlando had paid him to kill Calabrese. At Orlando's trial, the police testified that Jeannot himself was the killer, but that Orlando had paid him. Jeannot did not testify at the trial, however, so when the police testified about this "admission," the trial court gave the jury a limiting instruction, telling them that the testimony was only relevant in understanding why Orlando then gave a different account of what happened on the day of the murder.

The Second Circuit ( Droney and Jacobs, with D.J. Shea in dissent) says the trial court clearly violated the confrontation clause and that the limiting instruction was not enough to ensure Orlando got a fair trial. After all, this hearsay account pinned the murder on Orlando. Hey, you can't throw a skunk in the jury box and ask the jury not to smell it. The Supreme Court has already stated that "when a non-testifying witness's confession 'expressly' implicates the defendant, 'the risk that the jury will not, or cannot, follow instructions to limit its consideration of the evidence for a proper purpose is so great, and the consequences of failure to vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.' When a jury hears such express incriminations, even if given a 'clear' limiting instruction, 'the effect is the same as if there had been no instruction at all.'"