Today is a red letter day for John S. Koehler, P.C. This morning I filed my first ever brief in the Supreme Court of Virginia — and now some poor staff attorney (or maybe a law clerk) will have to read it. To that person I say, “Thanks for not laughing out loud.”
In truth, the issue is one of some note and I would be chagrined if it was laughed at because it involves constitutional due process — Whether the Court of Appeals erred in finding that a violation of the defendant’s right to confront a witness against him was harmless beyond a reasonable doubt. What is interesting about the case is that while the standard of review for all constitutional due process issues is the that it must be harmful beyond a reasonable doubt, the application of that standard is different for Confrontation Clause cases, or at least that is the argument I have present to the 9th Street Side of the Appellate Courts Building. In the Court of Appeals, the cases cited by the Court did not apply what I consider to be the appropriate review — did the improper evidence have any tendency to influence the jury’s verdict. Rather, those cases applied the simple “but for the improper evidence was the remaining evidence sufficient” to prove guilt beyond a reasonable doubt? Only one even remotely invoked Confrontation in a jury trial, and in that case the evidence the defendant had want to use as rebuttal against the victim was admitted in other testimony of another witness. In other words, none of the case relied on by the Court dealt with improperly admitted evidence not subject to confrontation.
Now, had the Commonwealth rested its case just before the improper evidence would have been admitted, I think it was more than likely the jury would have convicted — so under the standard used by the Court of Appeals, the judgment would have been upheld on appeal, But once the Commonwealth (against all expectation) was able to introduce hearsay statements of an alleged accomplice who had asserted his Fifth Amendment right when called as a witness, I think the quantum of evidence got a big boost of credibility, and that is the standard that ought to apply — that is, did the jury consider this evidence as the “nail in the coffin” of what was otherwise a highly circumstantial case?
Watch this space for updates!