Bobby Lee Holmes was convicted of a brutal rape murder and sentenced to death. The only evidence that connected him to the crime was forensic: a palm print, and blood and fiber evidence. (Biological samples taken from the victim for two rape kits were compromised and yielded no identifiable evidence.)

Holmes claimed that the state’s forensic evidence was planted and mishandled, and that the rape and murder were committed by another man, Jimmy McCaw White. At a pre-trial hearing three witnesses testified that they saw White near the victim’s house at about the time of the crime, and four others testified that they heard White admit his guilt.  White testified at the hearing and denied that he had committed this crime or made the statements to which the defense witnesses had testified.  The trial judge excluded all evidence about Jimmy White from Holmes’s trial.

The South Carolina Supreme Court upheld the trial court, and the Supreme Court granted cert on the claim that this ruling violated Holmes’s Sixth Amendment right to compulsory process, and his due process right to present a defense.  (The Court denied cert on a related due process claim: After successfully objecting to all this evidence of White’s guilt, the prosecutor argued to the jury, in effect, “If Holmes didn’t commit this atrocious crime, who did?”)

I filed an amicus brief in support of the defendant on behalf of 40 evidence law professors. We argued that the exclusion of the defendant’s evidence violated his Sixth Amendment right to trial by jury. Here’s why: 

The trial court excluded all testimony about White’s admissions as hearsay on the ground that they didn’t qualify for the exception for statements against penal interest. (The trial judge then excluded the other evidence about White as insufficiently probative, given that hearsay ruling.)  This hearsay ruling was insupportable. For one thing, the exception for statements against penal interest – codified as South Carolina Rule of Evidence (SCRE) 804(b)(3) – had no application to the case since it requires that the witness be unavailable, and White testified at the hearing.  More important, the South Carolina rule on inconsistent statements, SCRE 801(d)(1)(A) is broader than its federal counterpart; it excludes from the definition of hearsay any statement by a testifying witness that is inconsistent with his testimony.  Since White testified and denied involvement in the crime, his prior statements to the contrary were not hearsay under South Carolina law.

The South Carolina Supreme Court ignored the trial court’s hearsay ruling entirely.  Instead, it affirmed under South Carolina’s “third-party-guilt evidence rule,” which it modified for the occasion. It upheld the exclusion of the defendant’s evidence of innocence because, in its view, the prosecution’s evidence of guilt was overwhelming:

[Holmes] simply cannot overcome the forensic evidence against him to raise a reasonable inference of his own innocence.

***

Given the overwhelming evidence of appellant's guilt, the circuit court did not err by excluding the evidence of third party guilt. 

State v. Holmes, 605 S.E.2d 19, 24 (South Carolina, 2004).

That’s quite a holding: a criminal defendant is not entitled to present evidence of innocence to his jury if the judge (or in this case, the state supreme court) decides that he is clearly guilty.  It’s a frontal attack of the right to trial by jury.  It’s one thing to exclude evidence because it’s unduly prejudicial or has low probative value, or to serve some extrinsic policy. It’s quite another to allow a judge (or court) to decide that a defendant is so clearly guilty that he doesn’t get to present his defense.

The Supreme Court reversed in a unanimous opinion by Justice Alito, his first. The Court did not address the jury trial issue, although Holmes’s attorneys did pick it up in their brief.  That might be because the right to jury trial is not mentioned in the question on which cert was granted.  More likely it was simply that the Court was not interested in doing more than necessary to knock out the South Carolina precedent.  In any event, as one might expect from a unanimous decision, the opinion says relatively little.

The Court held that the exclusion of Holmes’s evidence violated his right to present a defense:

Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense.”

126 S. Ct. 1731, quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986).

That right is violated by

evidence rules that “infringe upon a weighty interest of the accused” and are “‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’”

Id., quoting United States v. Scheffer, 523 U.S. 303, 308 (1998).

If you were hoping this case would define the contours of the right to “a meaningful opportunity to present a complete defense” – sorry. It didn’t, unless you think you know what will be considered “arbitrary” and “disproportionate” next time around.  But the court did endorse that right again, and it reaffirmed its commitment to the scattering of earlier cases that reversed state-court convictions for exclusion of defense evidence:  Washington v. Texas, 388 U.S. 14 (1967) (testimony by accomplice); Chambers v. Mississippi, 410 U.S. 284 (1973) (evidence of another person’s guilt); Crane v. Kentucky, 476 U.S. 683 (1986) (circumstances of confession); Rock v. Arkansas, 483 U.S. 44, 58, 56 (1987) (hypnotically refreshed testimony by defendant).

Holmes could have been decided simply as an application of Chambers, except that the Court said in Chambers itself, and repeated in Scheffer, supra, 523 U.S. at 316, that the decision in Chambers was limited to “the facts and circumstances” of that case. If nothing else, Holmes may remove that unfortunate asterisk from the rule, however vague, if not from the Chambers opinion. In fact, Holmes was a stronger case for reversal than Chambers in two respects. First, Chambers’ jury did hear a considerable amount of evidence about the other suspect; Holmes’ jury heard none.  Second, the exclusion in Chambers was based on rules of general application –Mississippi’s hearsay rule, and its prohibition against impeachment by the party that called a witness – while the exclusion in Holmes was based on a special rule for criminal defendants who are determined to be clearly guilty.

Which brings me back to the holding of the South Carolina Supreme Court.  Judge Alito points out that in order to conclude, as the South Carolina Supreme Court did, that the evidence against Holmes is “overwhelming” a court must evaluate that evidence,

and where the credibility of the prosecution's witnesses or the reliability of its evidence is not conceded, the strength of the prosecution's case cannot be assessed without making the sort of factual findings that have traditionally been reserved for the trier of fact and that the South Carolina courts did not purport to make in this case.

126 S. Ct. at 1734.

This is a peculiar statement.  I would have said that the South Carolina Supreme Court did assess the reliability of the state’s evidence and found it “overwhelming,” but I don’t sit on the Supreme Court.  More important, does Alito mean that it would have been unconstitutional for a state court to base the exclusion of critical defense evidence on a finding that has “traditionally been reserved for the trier of fact” (i.e., the jury) – to wit, a finding that the defendant is clearly guilty? That was the position of the evidence professors’ amicus brief, and one could interpret the Court to agree, by implication.  Or does Alito just mean that if state courts want to make this sort of decision they have to do it more explicitly than the South Carolina Supreme did here?

I think he means something in between.  I think the intended message is something like this: “Everybody knows that this sort of decision is the core function of criminal juries.  So please guys, don’t make life hard for us by  ignoring such a basic common law rule. If you do, we might have to spell out the constitutional limits on your power to exclude defense evidence, and you wouldn’t want us to do that, now would you?”