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Paul Shechtman[/caption] May 20, 2018 marked the 50th anniversary of the Supreme Court’s decision in Bruton v. United States, 391 U.S. 123 (1968). Bruton is a Warren Court landmark and an example of its activism in the cause of defendants’ rights.

Background

On Good Friday, April 16, 1965, at about 2:00 p.m., two men entered the Robinson Jewelry Store in St. Louis, Mo., where they were waited on by Shirley Miller. Within minutes, one of the men pulled a gun and announced a hold-up. Miller and Paul Robinson, the store’s owner, were tied up in the rear of the store, and the robbers made off with jewelry and $30 in cash. The jewelry store also functioned as a Post Office branch, and the money was taken from a Post Office safe; the robbery was both a state and federal crime. Eleven months later, William Evans was arrested for the robbery of a Western Union office, and Miller and Robinson identified him in a lineup as one of the men who had robbed their store. Following the lineup, Evans confessed to a postal inspector and named George William Bruton as his partner in the jewelry store heist. As the postal inspector later told it:

[Evans] stated that he and Bruton were driving around, they went by the jewelry store and thought that this would be a good one. They went into the jewelry store and looked around. After being in for a little while they went ahead with the armed robbery, the victims were tied up, the phone was disconnected, they left the building by the back door, went down the alley … got into their automobile, and drove north on Kings Highway.

Evans and Bruton were indicted on federal charges (for taking $30 from the safe), and both went to trial. The case against Bruton was thin. Miller identified him as the second robber, recalling his droopy right eye, which had a “milky look” and was dotted with bloody spots. (She had been unable to identify him at a pre-trial lineup, claiming that his “bad eye” was not apparent at the time.) The prosecution’s final witness was the postal inspector, who testified that Evans had admitted his role in the robbery and named Bruton as his accomplice. The trial judge then gave the jury this instruction:

Gentlemen of the jury, I would like to say to you at this time yesterday there was testimony here with respect to a statement made by the defendant Evans to … the Postal Inspector … . That statement … if used, can only be used against the defendant Evans … . [Y]ou are not to consider it in any respect with respect to the defendant Bruton, because insofar as he is concerned it is hearsay.

Neither Evans nor Bruton testified in their defense. Both men were convicted and sentenced to 25 years in federal prison. On appeal, the Eighth Circuit reversed Evans’ conviction, finding that his confession was obtained in violation of Miranda. Miranda v. Arizona, 384 U.S. 436 (1966) was decided on June 13, 1966, and Evans and Bruton’s trial began one week later, making Miranda applicable to the case. (See Johnson v. New Jersey, 384 U.S. 719 (1966) (Miranda “appl[ies] only to trials begun after the decisions were announced.”).) Bruton’s conviction, however, was affirmed. The Eighth Circuit wrote: “To overturn Bruton’s conviction we would be required to speculate that the jury, presumably composed of prudent and intelligent men, disregarded the court’s instructions [to ignore Evans’ confession in deciding Bruton’s fate] and their oaths.” Put simply, if the jury followed the judge’s instruction and ignored the confession, it made no difference for Bruton that the confession had been improperly obtained. Bruton then successfully petitioned the Supreme Court for a writ of certiorari.

At the Supreme Court

At issue in Bruton was the continued vitality of Delli Paoli v. United States, 352 U.S. 232 (1957), which the court had decided in 1957, only a decade earlier. Delli Paoli, Whitley and three others had been tried for conspiracy to unlawfully transport alcohol. At their joint trial, Whitley’s confession, which named Delli Paoli as a co-conspirator, was introduced against Whitley with “an emphatic warning” that it was to be considered only in determining Whitley’s guilt. The question presented was whether that instruction provided Delli Paoli with sufficient protection to ensure that the jury would not use the confession against him, since, as to him, it was inadmissible hearsay. (Delli Paoli could not cross examine Whitley, who did not testify at trial.) The Supreme Court majority answered the question in the affirmative: “[u]nless we proceed on the basis that the jury can reasonably be expected to follow [the judge’s instructions], the jury system makes little sense.” Justice Frankfurter, joined by Justices Black, Douglas and Brennan, dissented. Calling the trial judge’s instruction “a futile collocation of words,” Justice Frankfurter opined that the “Government should not have the windfall of having the jury be influenced by evidence against a defendant, which, as a matter of law, they should not consider but which they cannot put out of their minds.” No doubt concerned that the court had granted certiorari in Bruton to overrule Delli Paoli, the government sought to prevent that outcome by confessing error. It argued that Bruton’s case differed from Delli Paoli’s on two grounds: first, the confession had been improperly admitted against Evans (the confession had been properly admitted against Whitley); and second, the evidence against Bruton was not strong (the evidence against Delli Paoli had been strong). As the government saw it, “[t]o argue in this situation, that the [non-confessing] defendant’s conviction should nevertheless stand may be to place too great a strain upon the [Delli Paoli] rule.” And so, the government urged the court, “in this particular case and in the interests of justice,” to reverse Bruton’s conviction and remand his case for a new trial. The oral argument in Bruton did not presage a landmark ruling. It began with this interchange between Bruton’s lawyer and Justice Brennan:

[Bruton’s lawyer]: The Eight Circuit’s reliance on Delli Paoli … is ill founded for two principal reasons. Number one in the Delli Paoli case, the court … found the evidence against that defendant was very strong. The evidence against Bruton [was] weak at best. [S]econd … there was no question as to the inadmissibility of the admission in the Delli Paoli case.

Justice Brennan: And you’re not asking to overrule Delli [Paoli]?

[Bruton’s lawyer]: I don’t believe that it is necessary to overrule Delli Paoli … .

Justice Brennan: [I]s it anymore or less [prejudicial] because his co-defendant obtained the reversal on the ground of the evidence, the admission from him had been illegally obtained. I don’t understand why you just don’t ask us to overrule Delli Paoli?

[Bruton’s lawyer]: I don’t think that it is necessary in order to obtain another trial for us to … .

Justice Brennan: Well, I have difficulty understanding that.

And later, when Bruton’s lawyer reiterated that “the case was distinguishable from Delli Paoli,” Justice White quipped that it was distinguishable “in the name of the case.” Solicitor General Erwin Griswold began his argument by joining Bruton’s lawyer in seeking a reversal of the conviction. He told the court that Bruton’s case was different from Delli Paoli’s because “the confession of Evans was held to be inadmissible as to him, a factor which was not present in Delli Paoli.” What came next was this:

Justice Stewart: You would agree Mr. Solicitor General I suppose that that in logic doesn’t really matter.

[Mr. Griswold]: I think that we are in an area where maybe logic chopping may not be exactly what should be done … . I [cannot] conscientiously undertake … to say that pure logic must prevail.

At the conclusion of the argument, Chief Justice Warren thanked the Solicitor General for his “fair and humane approach [to] this case.” The Solicitor General’s approach—reversing Bruton’s conviction but not overruling Delli Paoli—may have been “fair and humane,” but it found no traction with the court. At the post-argument conference, there were at least five votes to overrule Delli Paoli, and the only question was how broadly to proceed. (The conference vote and what followed is discussed in Bernard Schwartz, “Super Chief: Earl Warren and His Supreme Court—A Judicial Biography,” at 711‑15.) The conference voted to decide the case on non-constitutional grounds—to hold, as a federal rule of evidence, that confessions were inadmissible in joint trials unless references to codefendants were deleted—and the Chief Justice assigned the opinion to Justice Brennan, who had dissented in Delli Paoli. Justice Brennan’s draft opinion largely ignored the conference vote. It relied on the court’s 1964 opinion in Jackson v. Denno, 378 U.S. 368 (1964), which neither Bruton nor the government had cited in their briefs. In Jackson, the court held that a defendant is constitutionally entitled to have the trial judge first determine whether his confession was made voluntarily before submitting it to the jury. The Jackson court rejected the proposition that jurors could be relied on to decide the voluntariness issue and then ignore the confession if they found it involuntary. For Justice Brennan, Jackson was dispositive: “If it is a denial of due process to rely on a jury’s presumed ability to disregard [a defendant’s] involuntary confession, it [is] also a denial of due process to rely on a jury’s presumed ability to disregard a co-defendant’s confession implicating another defendant when it is determining that defendant’s guilt or innocence.” 391 U.S. at 130 (quoting People v. Aranda, 63 Cal.2d 518 (1965) (Traynor, J.)). On that basis, the court concluded that a limiting instruction was not an adequate substitute for Bruton’s constitutional right to confront Evans. After reading Justice Brennan’s draft, Justice Black announced that he would concur in the result for the reasons stated in Justice Frankfurter’s dissent in Delli Paoli. When asked why he did not join Justice Brennan’s opinion, Justice Black replied: “I don’t like opinions with so many footnotes citing authorities I didn’t have time to read, as well as cases [Jackson being one of them] which I dissented in.” Justice White, joined by Justice Harlan, dissented. To attempt to sway Justice White, Justice Brennan reminded him that he had cited Justice Frankfurter’s dissent in Delli Paoli approvingly in his opinion for the court in Jackson. Justice White was unmoved: “That was just in some footnote a law clerk had been able to sneak by me. You can’t expect me to be bound by that.” In his dissent, Justice White argued that the court’s opinion “will severely limit the circumstances in which defendants may be tried together for a crime,” thereby imposing unnecessary burdens on witnesses, prosecutors and courts, and breeding delay. He suggested that the impact of Bruton could be reduced if “all portions of [confessions] which implicate defendants other than the declarant are effectively deleted.” That suggestion has become the norm. Were Bruton and Evans tried jointly today, a jury would likely hear that Evans had told the postal inspector that “he [and another man] had robbed the jewelry store.”

* * *

Bruton’s success proved short lived. In the time between the Eighth Circuit’s decision and the Supreme Court’s reversal of Bruton’s conviction, Evans was retried for the jewelry store robbery and acquitted, but then convicted of another robbery and sentenced to prison. At Bruton’s retrial, Evans testified for the prosecution, and Bruton was convicted. This time, he could not complain that his right to cross examine Evans had been abridged. The Eighth Circuit affirmed Bruton’s conviction, finding that there were no substantial issues. United States v. Bruton, 416 F.2d 310 (1969). Paul Shechtman is a partner at Bracewell in New York and teaches evidence and criminal procedure at Columbia Law School.