The Justice Department has urged the Supreme Court to allow the lower courts to continue to explore– without the Justices’ involvement — whether to apply the Sixth Amendment right to confront one’s accusers to sentencing hearings, including those involving the death penalty. In a brief filed Dec. 13 in Fields v. U.S. (07-6395), U.S. Solicitor General Paul D. Clement argued that there is not yet “a sufficiently developed split [among lower courts] to warrant this Court’s review at this time….Further consideration of this issue in the lower courts is warranted…”  In the meantime, it argued that the right of confrontation does not apply at sentencing proceedings.

The case involves Sherman Lamont Fields, convicted of murder and other federal charges based on crimes he committed after escaping from federal custody in Waco, Texas, six years ago.  (The government brief can be downloaded here. A post on this blog discussing Fields’ petition can be found here; the post includes links to Fields’ petition, filed Sept. 4, and to the Fifth Circuit Court decision at issue.  Fields’ reply brief, filed Thursday, can be downloaded here.)

Fields’ appeal does not ask the Court to apply the right of confrontation to all criminal sentencing, but only to those proceedings that involve a potential death sentence.  The Court has long drawn a distinction between limits on evidence at the guilt phase, and the far more relaxed admission of evidence at sentencing proceedings in general. Fields contends that the law of sentencing has evolved to the point that, at least for death sentencing, more rigorous constitutional limits should apply to the evidence allowed

The Confrontation Clause issue Fields raises tests the scope of two Supreme Court rulings — the 1949 decision in Williams v. New York. finding that the Clause does not apply at sentencing, and the 2004 decision in Crawford v. Washington, barring the use as evidence of testimonial statements that had not been subjected to cross-examination.

Fields’ petition contended that, at least for death sentencing hearings, the jury should be allowed to hear only facts that have been tested through confrontation with the witnesses — the Crawford principle,  and thus testimony at Fiields’ sentencing (that he had previously been violent and would be dangerous in the future) should not have been allowed because it had not been subjected to cross-examination.

The government opposition relied upon the Williams decision, and a variety of more recent lower court rulings that have declined to apply the Clause to sentencing.  But it also drew a distinction between the use of untested testimonial evidence when a jury is deciding whether a given murder defendant is eligible for a potential death sentence, and when it is choosing whether to actually impose that sentence. 

The challenged evidence in Fields’ case, it said, was offered only on the second point.  The sentence-selection phase, it added, “involves a broad inquiry into all evidence relevant to the ultimate decision of what penalty to impose.”  No federal appeals court, the brief noted, “has held that the Confrontation Clause bars testimonial hearsay from the selection phase” of a federal death penalty proceeding.  The ruling in Fields’ case, it added, is the first such ruling in a federal appeals court to face the issue squarely.

One of the other reasons the government offered for leaving the issue to percolate in lower courts is that the Court’s 2002 ruling in Ring v. Arizona was said to be reshaping the issue of applying Sixth Amendment rights to death sentencing. Ring requires jurors to apply a reasonable doubt standard when it decides on the existence of a fact that would be necessary to make a murder defendant eligible for the death penalty. Lower courts need time to consider the impact of the Ring ruling on capital sentencing generally, the government asserted. (Fields’ petition also raised a Ring question, testing whether the reasonable doubt standard applied when jurors weigh whether aggravating factors outweigh mitigating factors.)

The government response also contended that procedural aspects of this particular case make it “an inadequate vehicle” on the Confrontation Clause question.

Fields’ reply, filed at the Court Thursday, argued that “there is a genuine and widespread conflict right now over the issue of whether a capital defendant should have the right to confront and cross-eamine adverse witnesses at the penalty phrase.  The conflict is sufficient to demontrate a need for guidance that calls on this Court to take up and resolve the question in this case.”

It went on to argue that Fields’ case is “ideally suited’ to raise the issue.  The confrontation violations at his sentencing hearing were “manifestly harmful.,” it argued.

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