Lilly, Benjamin Lee v. Virginia (06/10/1999)

By: Jini Ryan, Medill News Service

Questions presented

(1) Does admission into evidence of a confession by an alleged accomplice that inculpates the defendant in a capital murder case, consistently minimizes the accomplice's role, and shifts blame onto others, offered under an exception to the hearsay rule as a declaration against interest of an unavailable witness because declarant refused to testify under the 5th Amendment, violate the confrontation clause of the 6th Amendment? (2) Is there a firmly rooted exception to the hearsay rule that would permit the admission into evidence of a confession by an alleged accomplice without violating the confrontation clause of the 6th Amendment? (3) In assessing the reliability of hearsay statements of an unavailable declarant, offered as a declaration against interest, do the 6th and 14th Amendments prohibit consideration of corroborating evidence other than the circumstances surrounding the making of the statement?

Brief

On Dec. 5, 1995, as Alexander DeFilippis checked his tire in the parking lot of a Convenience store in Blacksburg, Va., three men forced him at gunpoint to get in his car and drive off. DeFilippis' body was found four hours later, three bullets in his head and one in his arm.

Benjamin Lee Lilly, his brother, Mark, and Gary Wayne Barker were charged with the murder.

According to trial testimony in Montgomery County Circuit Court, the three men had been abusing alcohol and marijuana from the day before the murder. On Dec. 4, they had broken into a friend's house and stolen some guns, a safe and some liquor before driving off.

The next day, the three of them drove around, stopping to fire the guns at some geese. When their car broke down near Heathwood, an unsuspecting DeFilippis was nearby with his car. Lilly fatally shot DeFilippis, saying, ""I ain't going back [to the penitentiary],"" because DeFilippis had seen his face, according to evidence introduced at trial.

Subsequently, the three men robbed a convenience store and attempted to rob another. Their car soon broke down and police caught them shortly afterward.

Mark Lilly was tried separately and called as a prosecution witness in Benjamin Lillys case. When he invoked the Fifth Amendment, prosecutors used his pre-trial statements to police to build their case against his brother, Benjamin Lilly. In his statements, Mark Lilly implicated his brother as the ""triggerman"" in the murder. He also testified that Benjamin Lilly was the instigator of the carjacking.

Benjamin Lilly was convicted of capital murder and, on February 11, 1997, sentenced to die. Mark Lilly was sentenced to 49 years and Barker to 53 years in prison.

Benjamin Lilly appealed to the Virginia Supreme Court, arguing that his brothers statements were self-serving and shifted too much responsibility onto the other two men. He claimed he was denied his right to confrontation under the 6th and 14th Amendments because his attorneys could not cross-examine Mark after he invoked his Fifth Amendment rights. A unanimous Virginia Supreme Court affirmed Lillys conviction and death sentence.

""Absent [Mark Lilly's] confession in the record, there was scant credible evidence of capital murder against [Benjamin Lilly],"" according to Lilly's petition for certiorari to the U.S. Supreme Court.

Lilly argued that ""the unconstitutional admission of unreliable evidence not subject to cross examination unquestionably substantially contributed to [Lilly's] conviction and death sentence."" In assessing the reliability of hearsay evidence, only the circumstances surrounding the making of the statement are to be considered, said Ira Sacks, Lillys attorney.

According to Lilly's petition, the court allowed the hearsay testimony based on other ""supposed evidence"" that corroborated Mark Lilly's statements. The only evidence the state introduced which corroborated Mark Lilly's statements were alleged statements Lilly made to a police officer at his arrest, statements made by Lilly to his brother to give himself up because he was ""not the one who has done anything wrong,"" and forensic testimony about blood on Lilly's pant leg.

The U.S. Supreme Court granted certiorari on Nov. 9, 1998, and allowed Lilly to proceed in forma pauperis.

On, June 10, 1999, a unanimous yet divided Court reversed and remanded, holding that the admission of Lilly's brother's confession violated Lilly's confrontation clause rights. Rather than deferring to the Virginia Supreme Court's determination that the hearsay confession was reliable, the Court concluded that when it comes to mixed questions of constitutional law such as whether a hearsay statement has sufficient guarantees ofworthiness, appeals courts must makes their own decision.

Writing for four justices, Justice John Paul Stevens concluded that because Lilly's brother was in custody and primarily responding to the officers' leading questions, he had a natural motive to attempt to exculpate himself and blame his brother. Therefore his statements were not so inherently reliable because they were also against his interest that cross-examination would have been superfluous.

Justice Antonin Scalia concluded that introducing Lilly's brother's tape-recorded statements to police at trial without making him available for cross-examination violated the confrontation clause. Justice Scalia concluded, though, that the case need be remanded only for a harmless-error determination.

Justice Clarence Thomas and Chief Justice William Rehnquist agreed on the reversal and remand, but argued that the majority should not have addressed certain issues.

In addition, Chief Justice William Rehnquist wrote a concurrence for Justices Sandra Day O'Connor and Anthony Kennedy, arguing that a blanket ban on the government's use of accomplice statements that incriminate a co-defendant was not warranted. They would have remanded the case for a determination of whether the confession bore ""particularized guarantees ofworthiness"" and, if any error was found, whether that error was harmless.