On Tuesday, the Supreme Court will spend the morning trying to sort out two constitutional puzzles about criminal trials and the rights of the accused.  The first case arises in the embattled zone between state and federal courts, focusing on when a federal court can overturn a guilty verdict in a state court trial.  The second tests when a state may take away the constitutional right of an accused person to demand that his accusers take the stand, where their version of events can be challenged.  Both cases exist in larger contexts, pushing their significance beyond the specific crime and verdict in each case.

First case: Brown v. Davenport  The hearing is scheduled for one hour, starting at 10 a.m. Listeners can hear the audio, but not the video, at the Quick Links section of the Supreme Court’s homepage – supremecourt.gov – and on TV at c-span.org/supreme court or on smartphones at the C-Span Now App.

At the core of this case is the ancient “writ of habeas corpus.”  Its origins are most often traced to the Assize of Clarendon in the 12^th Century reign of England’s Henry II.  (An assize was a kind of court decree.)  “Habeas corpus” is a Latin phrase that translates as “you have the body,” and means, in the law, that the government may have to justify in court why it is holding prisoner a person who claims his rights have been or are being violated.

Under the U.S. Constitution’s Article I, Section 9, the “writ of habeas corpus” is so highly regarded that it cannot be suspended except in times of rebellion or invasion.  And, under the so-called “supremacy clause” of Article VI, such a constitutional mandate is binding on the states as well as on the federal government.

How to apply the concept has produced decades of conflict between states’ rights and the power of the federal courts to review state court decisions, especially guilty verdicts in criminal cases.  During the 20^th Century “criminal rights revolution,” a liberal-dominated Court broadly expanded the habeas concept, only to be met by new legislation in Congress to curb federal courts’ power in that field.

The most significant such law was passed in 1996, partly in response to the Oklahoma City terrorist bombing; the law restricted the habeas remedy, but, necessarily, left its core intact.  It required federal courts to show considerably greater deference to state criminal verdicts.

Under the law surrounding habeas, the most controversial kind of case involves an individual who has been convicted in a state trial, pursues appeals in state courts, and then seeks to undo the verdict or the sentence by turning to a federal court, seeking a writ of habeas corpus.

In the case of a Michigan man, Ervine Lee Davenport, his habeas plea succeeded in a federal appeals court, overturning his conviction and life-without-parole sentence.  He was found guilty in 2008 in state court of first-degree murder for the strangling death of a women companion.  His only defense was self-defense, claiming that she attacked him with a box cutter while he was driving the two of them away from a party where drugs and alcohol had been consumed.

The key issue Davenport raised in his habeas plea was whether it was legally harmless that, during the trial, he appeared before the jury shackled around the waste and ankles, and handcuffed.  Under prior Supreme Court rulings, such shackling – suggesting to the jurors that the accused person was dangerous – was always harmful to the defense (“prejudicial,” in legal parlance).

But a federal judge ruled that the shackling was a “harmless error,” relying on the 1996 law requiring federal courts to defer to state verdicts unless there was proof “beyond a reasonable doubt” that the jury was affected by the shackling of Davenport.  The judge noted that all 12 jurors, questioned a couple of years after the trial, had said that they were not affected by the shackling.

A divided federal appeals court, however, overturned the verdict, relying on the precedents that shackling was always a harmful error, without separately asking whether the strict standard set by the 1996 law had been met.  Michigan state officials then persuaded the Supreme Court to hear their appeal.

The question before the Court: Is the only issue, in a federal habeas case involving shackling of the accused at a state murder trial, whether that was unconstitutionally harmful, or must there be a separate ruling that the shackling was harmful beyond a reasonable doubt?

Significance:  It is clear that the 1996 law limiting federal court power in reviewing state trial verdicts very likely is in direct conflict with the quite simple fact that the Supreme Court has treated shackling the accused person at a trial as always unconstitutional.

The 1996 law puts its heaviest emphasis on the flexible standard of what is reasonable, while the precedents against shackling are plain and direct.  Indeed, even the Michigan state officials’ appeal does not contend that the shackling of Davenport was constitutional, only that the prejudice to the jury was not shown to have been unreasonable.

However, it is a reality in the law generally that constitutional rights do not exist in absolute form.  And that is why Congress has felt free to impose restrictions on how federal courts apply habeas doctrine, primarily out of concern that guilty verdicts in state courts should not be subjected, years after trials are over, to second-guessing by federal judges.  Finality, Congress has believed, is important to maintaining respect for the criminal justice process.

With the Supreme Court now quite firmly in the control of more conservative Justices, the chances are that Congress may well find more sympathy for the concept of finality of state verdicts.

Second case:  Hemphill v. New York  The hearing is scheduled for one hour, and is expected to start at about 11 a.m.  As noted above, listeners may follow the audio of the hearing on several outlets.

Background:  This is another case illustrating that the rights guaranteed by the Constitution are not absolute, putting repeated demands on the Supreme Court to decide when such rights must yield to other considerations – such as the authority of states to prosecute criminal conduct without having to prove that the system is perfect.  That is why, for example, the prosecution is required to prove guilt only by a standard of “beyond a reasonable doubt,” and not by absolute certainty.

A criminal trial is always something of a jousting match, and constitutional rights are sometimes put at risk of being compromised or forfeited in such contests.   Criminal trials are conducted under rules that govern when certain types of evidence can be put before the jury, and when other types are barred from the trial. It can be difficult to navigate between the two concepts.

Under the Constitution’s Sixth Amendment, a person accused of crime has a right to have those who made accusations brought into court and put on the stand, so that their stories can be challenged during questioning.  This “Confrontation Clause” has been interpreted to mean that statements given in a separate official proceeding by an accuser cannot be brought into trial by prosecutors as evidence against the accused, unless the accuser is brought into the trial to testify and be cross-examined.

Again, however, this right is not an absolute one, so it can be surrendered under some circumstances.  Suppose, as happened in the Hemphill case, that the accused person’s defense lawyer, during the trial, makes a reference to something that an accuser may have said in another, separate proceeding.  In lawyer-speak, that may “open the door” to allow the prosecutor to bring in evidence from that other person that blames the accused, without putting that accuser on the stand – thus avoiding the ban that the Confrontation Clause otherwise would impose.

That is exactly what happened to a New York man, Darrell Hemphill, who is now serving a prison sentence of 25 years for life following a second-degree murder conviction.  During a fist fight on a New York City street in 2006, someone fired a gun, killing a child in a passing car.  That is the crime that led to the guilty verdict against Hemphill; he has always insisted that another man was the gunman who fired.

That other man was Nicholas Morris. Hours after the shooting, police found in Morris’s home a gun like the one used in the shooting.  Another man, Ronnell Gilliam (who is Hemphill’s cousin), told police that Morris was the gunman.  Later, after talking to Morris, Gilliam changed his story and said that Hemphill had been the shooter.   That led directly to the murder charge against Hemphill.   Gilliam received a plea deal for a lesser criminal charge in return for testifying against Hemphill at the trial.  He testified that Hemphill owned the gun that killed the child.

Meanwhile, prosecutors made a plea agreement with Morris, setting aside a murder charge against him and replacing it with a less-serious charge of illegal possession of a different type of gun, not the type used in the crime.  Morris pleaded guilty to that charge, and made several statements about the incident during his plea hearing.

At Hemphill’s trial, his lawyers brought out that police had recovered the murder weapon from Morris’s home the night of the shooting.  Arguing that Hemphill had opened the door to testimony from Morris, prosecutors argued that they should be allowed to introduce what Morris had said about the guns at his plea hearing, without putting Morris on the stand.

Hemphill’s lawyer objected, arguing that, if Morris did not take the stand, the use of his prior statements would be a clear violation of the Confrontation Clause.  That objection failed, and Hemphill was convicted, partly on that evidence.  New York State appeals courts upheld his conviction, agreeing that Hemphill’s lawyer had opened the door to the Morris evidence against him. That led to Hemphill’s appeal to the Supreme Court.

The question before the Court: Under what circumstances does an accused person on trial forfeit his Confrontation Clause right if the accused opens the door for the prosecution to put before the jury evidence that normally would have been barred under that Clause?

Significance:  Although the facts in this case are complicated, the Supreme Court is faced with a simple task: is it now ready to create a new exception to the constitutional right to confront one’s accusers at a criminal trial?

In approaching this issue, the Court will not find clear guidance from lower courts.  In one category, courts have ruled that an accused can never open the door to admit evidence that would violate the right to confront; in a second category, courts have allowed the evidence in some circumstances, and a third category of courts have allowed the evidence if the opposition to its use misleads the jury.

It seems unlikely that this conservative Court would craft a general rule that “opening the door” never can lead to surrender of a constitutional right to confront.  A narrower ruling may be more likely, allowing waiver but leaving it to future trials and to lower courts to clarify the situations where that would be permitted.

On Wednesday, the Court is scheduled to hold one hour of hearing in a case involving a prisoner at Guantanamo Bay, Cuba. This will provide a rare look by the Court at claims of torture by the Central Intelligence Agency of suspected terrorists at so-called “black sites” run by the CIA in foreign countries. The federal government is seeking, on a state-secrets argument, to block a lower U.S. court from gathering evidence about the torture.  That hearing will be previewed here tomorrow.