New opinion: Third Circuit orders habeas relief based on admission of co-defendant’s confession

Johnson v. Superintendent Fayette SCI—habeas corpus—reversal—Rendell

The Third Circuit granted habeas relief today. How they got there takes a little explaining. Two men, Wright and Johnson, were tried together for a murder. Before the trial, Wright confessed to police and said Johnson was the shooter. If Wright were tried on his own, his own prior statement would have been admissible; if Johnson (the other guy) had been tried on his own, it would have inadmissible. So, at a joint trial, is it admissible?

Decades ago, courts would admit the “my co-defendant did it” statement at the joint trial and just instruct the jury to to consider it only against the defendant who said it, not the other guy, even though everyone knew full well that jurors would no such thing. In Bruton v. United States, the Supreme Court held that this practice violates’ other guys’ Sixth Amendment Confrontation Clause rights, because jurors aren’t robots. (Alas, the presumption that jurors follow their instructions remains alive and well in most other contexts to this day, with most courts impressively incurious about whether it’s grounded in reality.)

After Bruton, prosecutors adopted what some viewed as a cynical dodge: they’d introduce the statement but just change “my co-defendant did it” to “[the other guy] did it.” This “other guy” was never identified to the jury, so all but the dimmest jurors figured out that the “[other guy]” in the statement was the other guy being tried.

And that’s just what happened in this case. Wright’s confession came in, with “Johnson” changed to “the other guy” and the jury instructed not to consider Wright’s statement when deciding whether Johnson was guilty.  Except here it was even worse, because at the end of the trial both the prosecutor and Wright’s lawyer accidentally (or “accidentally,” for the cynics among you) revealed that Wright’s other guy was indeed Johnson. In 2012 the Pennsylvania courts denied relief, reasoning that the “other guy” plus the jury instruction was good enough. In federal habeas, the district court ruled that the state-court ruling was an unreasonable application of Bruton, but denied relief because it viewed the violation as harmless.

The Third Circuit reversed. It agreed that this was a clear Bruton violation and that the Pennsylvania ruling to the contrary was unreasonable. The bulk of the opinion focused on closely reviewing the overall evidence of Johnson’s guilt, concluding it was not overwhelming, and holding that under the Brecht standard the Bruton error was not harmless. The opinion began, “Although we generally rely on jurors to follow a court’s instructions, we cannot expect the superhuman from them.”

Joining Rendell were Krause and Matey. Arguing counsel were Craig Cooley of the Cooley Law Office for Johnson and Jennifer Andress of the Philadelphia D.A.’s office for the Commonwealth.